When Family Law disputes become Criminal Prosecutions

When Family Law Disputes Become Criminal Prosecutions

From a defence perspective, I am seeing a concerning prevalence of historical domestic violence allegations emerging during both property and parenting disputes in the Family Court, sometimes resulting in multiple criminal charges and AVOs that restrict time with children and can exclude those from their home.

Such allegations must always be treated seriously, but a charge or an AVO is not a finding of guilt. The result of having charges or an AVO when there are Family Law proceedings on foot however can be devastating. The timing and family law context do not establish falsity, but they may be relevant to motive, credibility and forensic advantage. Police should examine readily available objective evidence which includes messages, metadata of photos, prior reports and post-separation parenting communications, however time restraints and pressure to act in domestic violence matters means that this often doesn’t occur until the time of a hearing of the evidence. Often that can be more than a year without a child seeing an excluded parent due to the effects of the AVO and charges.

Criminal proceedings can immediately disrupt parenting time, employment and reputation, even where charges are later withdrawn or dismissed. A fair system must protect genuine victims while ensuring that historical allegations arising amid family law conflict are subjected to timely, rigorous and impartial evidentiary scrutiny. Fortunately, the last three defended hearings that I completed resulted in verdicts of Not Guilty with no AVO imposed - however this was at the expense of children not seeing their other parent for a significant period of time. Other occasions result in the owner of a premises being excluded from their home due to the complainant also residing there.

I am committed to supporting survivors of domestic abuse in both the Family Court and the Criminal Courts. I am also committed to supporting those falsely accused prepare a case that will result in vindication. I have appeared for both women and men who have been falsely accused of family violence, resulting in an ultimate not guilty verdict. Whilst the result is a success, the time they have been excluded from their children can never be regained.

The domestic violence legislation is a shield. It should never be a sword.