The decisions that judges in family law matters make depend on their evaluation of the facts of a case, with the outcomes delivered only as good as the quality of the information made available to them in proceedings. That’s why the courts require full and frank disclosure from parties–and not only parties, but their legal representation too.
An article in Mondaq took a look at a recent parenting case in the Federal Circuit Court which focused on the issue of candour, with a father and his lawyers’ lack of full and frank disclosure ultimately affecting the outcome of the matter. The result was that orders that had been made for the children to live with the father were reversed, and the children were ordered to live with their mother.
The background of the case was that the mother and father had begun their relationship overseas and had relocated to Australia, the father’s home country. After separation, the mother went to live in her home country, taking the couple’s two small children with her. The father then made an ex parte application in the Local Court for recovery of the children, and an order was made for the children to live with him. (An ex parte proceeding refers to a hearing where one of the parties is not present.)
The mother subsequently began family law proceedings in the Federal Circuit Court, seeking parenting orders for the children, asking the court to order that the kids live instead with her, in the context of a family violence scenario.
Apparently, the affidavit supplied to the Local Court by the father contained no information that would give rise to any cause for concern regarding the children’s welfare if they were to live with him. Yet during the Federal Circuit Court proceedings, the mother subpoenaed the NSW Police to produce the father’s history, and the documents obtained told a very different story.
Rather than having provided the court with full and frank disclosure regarding his past, it turned out the father actually had “an extensive criminal history between 1978 and 2003, including (amongst other notable crimes) assault occasioning actual bodily harm, larceny, breach of community service order, stealing, self-administering drugs, possession of a prohibited drug, supply of a prohibited drug, unlicensed driving and break, enter and steal. After 2003, the only charges against the father concerned an alleged incident involving the mother in Federal Circuit Court proceedings in 2016, with these charges having been dismissed.”
Not only were these charges and convictions not revealed by the father or his legal representatives during the original Local Court proceedings, but in the course of the later parenting proceedings, the father explicitly denied ever having being violent and also falsely claimed he had never been imprisoned.
The Federal Circuit Court was particularly concerned with the man’s charge and conviction for assault occasioning bodily harm against a previous partner. This assault, which included choking and hair-pulling, was found by the Federal Circuit Court to be relevant to the risk assessment in the parenting matter.
In a parenting case, withholding information that would clearly help the court determine the best interests of the child is seen as casting doubt on the withholding party’s credibility and their parenting ability. The judge in this case noted that, “When a party fails to disclose relevant information to the Court in a parenting case, this may reflect adversely on their capacity to provide for the emotional needs of the child (because of the emotional trauma associated with the recovery, for example) and their attitude to the child and to the responsibility of parenthood. It is, in any event, certainly a fact or circumstance that a Court might consider relevant”.
The judge also referred to the duty that lawyers have in relation to “ensuring that no statement, or pleading for that matter which is perjured or that contains half-truths, [is submitted] which thereby may otherwise mislead the Court”.
The outcome in this case was that the original recovery order was discharged, with the Federal Circuit Court judge reversing the man’s primary custody, sending the children to live with their mother, to spend time with the father instead. However, the judge did make orders for equal shared parental responsibility.
The courts are mandated to make orders in the best interests of the child in family law matters, and take a dim view of anyone who attempts to manipulate outcomes by withholding pertinent information from the court. Full and frank disclosure in family law proceedings is a duty that is imposed on both the parties involved and their solicitors, and must not be taken lightly.
Read also: our previous blog on disclosure in family law, which applies in relation to both financial and/or parenting information.
Do you need advice in relation to a parenting matter or other family law issue? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.