The recent announcement of another inquiry into family law reform has caused yet another divided response among those affected by the system, and those who work within it.
This current battle of family law is now focused on the issue of false allegations. This subject is one which I believe is often misunderstood and misrepresented.
Before this can be discussed it is important to acknowledge that family violence is a widespread problem in Australia and affects women, men and children as victims. The broadening of the definition of family violence from a violent assault, to include behaviours, has increased the opportunities for allegations to be raised in court as having an impact on the wellbeing of family members.
Critics of the inquiry are questioning if false allegations are a genuine problem. There seems to be a fear that if we discuss the issue that somehow parents in family court will not feel confident to speak up about their experiences. I don’t foresee that there will be any consequences on the individuals, rather what will come from this inquiry is an awareness, data and hopefully an improved system. These are uncomfortable conversations, but they are vital if we are to have a fair and just process.
False allegations are often reported in the media as being rare or almost non-existent. This is factually correct. Technically speaking, anyway. When giving evidence you are required to take an oath, to tell the truth. Failure to speak the truth is known as perjury. A false allegation can only be proven if there is a prosecution for perjury, and this is extremely rare in family court matters for a number of reasons.
Firstly, there was the repealing of Section 117AB of the family law act which means that a complainant in family law can not be prosecuted for perjury unless there are extreme extenuating circumstances. Secondly, after enduring years of a family court matter, most people are financially and emotionally drained and can not sustain more time and energy in the court system.
The Australian Institute of Family Studies holds an archived report on a study of some 300 family law cases in which allegations of family violence were present. The report states that it was not within the scope of the study to determine if allegations were ‘true’ or ‘false’, but rather the strength of the ‘probative’ evidence to support the claims. Probative refers to the weight of the evidence, meaning if it was substantial enough, or not, to be considered in a judgement.
According to the published data, 82% of the cases involved allegations which did not hold probative weight to determine those allegations as substantiated.
As the battleground of family law has evolved over the past 50 odd years, we have seen the initial complainants being the vast majority of mothers, to a significant rise in complainant fathers. Each trying to get in first to lay claim on the children by proving the other parent unfit. And so, the data shows that those alleging spousal and family violence in family court are both mothers and fathers. Where allegations were corroborated, it was more mothers who provided evidence (56% mothers; 33% fathers).
The Evidence Process
When being able to provide evidence of family violence the court process often relies on subpoenas of police reports, medical and therapists attendances, if they apply. These reports add to the probative weight. The absence of probative weight does not mean allegations are false, merely that there was no evidence.
The consequence of family court decisions made on hearsay can give dire and life long impacts both for the accused, and their children. As can ignoring them altogether.
Determining family violence allegations is an extremely complex matter for the judiciary. Family violence is known to largely occur behind closed doors and includes a wide range of offences including subjective behavioural matters, such as a feeling of being controlled or abused. A judge must make a determination on ‘he said; she said’ version of the events and look for patterns or other behaviours which corroborate the allegations being made.
In considering if the current family law inquiry is necessary, you must also consider the impact of judgments made with little or no supporting evidence. For some children, this can result in the permanent removal of a parent, or limited time with them. It is in the best interests of the child to ensure this process can pass scrutiny. And if not, then we improve it until it does.