In a recent case involving parenting arrangements for an eight-your-old child, a father who had been found not guilty in the criminal court of charges relating to serious domestic violence after a Court had not accepted the mother’s evidence, argued that he shouldn’t have to face the same allegations in the Family Law proceedings.  The case delved into whether the findings of State Courts should influence the Federal Court’s decision in parenting matters.

Allegations of Violence and the State Court Proceedings

The mother alleged that the father had subjected her to physical and emotional abuse during their relationship.  Specifically, she claimed that in April 2018 the father had hit her over the head, squeezed her throat and held a carving knife over her while she was pinned against the wall.  She also stated that he destroyed three engagement rings he had given her, actions that she viewed as volatile and threatening.

Following these incidents, the father was charged with various criminal offences relating to assault and intimidation.  These charges were heading the criminal Court where the Magistrate ultimately dismissed them.  The Magistrate stated, “I’m not satisfied beyond reasonable doubt as to the allegations presented.”

At the same time, an Apprehended Domestic Violence Order (ADVO) was sought by the police against the father for the protection of the mother.  The Magistrate granted the ADVO on the ‘balance of probabilities’, noting that, “I think on the balance of probabilities I can find the complaint established on the evidence.”

The father appealed that decision and the case proceeded to the District Court, where the Judge set aside the ADVO.  The District Court Judge noted that the mother’s evidence had not been accepted to the necessary standard of proof, then remarked with regard to the ADVO order being made that, “It is hard to see how that possibly could be the case when the form of the arguments that were raised in relation to the other offences were all rejected.”

Essentially the District Court found that since the criminal charges were dismissed, there as insufficient basis for the ADVO.

Differences in the Family Court Proceedings

When the case reached the Federal Circuit and Family Court for parenting orders, the father argued that the previous State Court findings should prevent the mother from raising the same allegations of violence.  He contended that the Court should adopt the State Court’s conclusions, which found that there was insufficient evidence to prove his alleged violence behaviour.

However, the Court took a different approach.  The Judge examined whether the findings from the State Courts created what is referred to as an ‘issue estoppel’, which is a legal principle that could prevent the same issue from being re-litigated, or argued again in another Court.  The Judge explained that for an issue estopped to arise, “It was necessary to demonstrate that the previous proceedings were between the same parties … and that specific findings that were made were necessary for the determination of the previous proceedings.”

The Court found that an issue estoppel did not apply in this case.  The Judge noted that the previous criminal proceedings were primarily between the father and the State (the police) and not between the father and the mother directly.  Also, the Judge pointed out that the standard of proof in criminal cases differs from that in family law proceedings.

In criminal cases, the standard of proof is “beyond reasonable doubt” which requires the prosecution to establish the defendant’s guilt to such a degree that there is no reasonable doubt in the mind of a rational person.  This is the highest standard of proof in the legal system, reflecting the serious consequences of a criminal conviction, such as imprisonment and a criminal record.

In contrast, family law proceedings apply the “balance of probabilities” standard.  This means that the Court assesses whether it is more likely than not that a particular event occurred.  This lower threshold recognises the need for the Court to make determinations in the best interests of the child, even when evidence may not be as definitive as that required in criminal proceedings.

The difference in standards matters because conduct that does not result in a criminal conviction due to insufficient evidence at that higher standard can still be found to have occurred in family law proceedings.  This is crucial in matters involving allegations of family violence, as the Family Court must ensure the safety and welfare of the child.

The Court’s Decision

The Judge acknowledged that although the State Courts did not find the father guilty of criminal offences, it did not preclude her from making findings about his behaviour in the context of parenting arrangements, especially when considering the best interests of the child.  After reviewing all the evidence, including testimonies and family reports, the Judge made her own findings regarding the allegations of violence and stated, “I find that I prefer the mother’s account of the events that took place.”  Accordingly the Court found that the mother was exposed to family violence by the father when he hit her over the head, squeezed her throat and held a large carving knife over her head, and that the father had engaged in volatile and unpredictable behaviour on some occasions including when he destroyed the three engagement rings and threw the mother’s belongings out of the house.

In Family Law proceedings generally each party is to bear their own costs, except where there are circumstances justifying an order for one party to pay the legal costs of the other.  In this case, the Court concluded that it was appropriate for the father to pay the mother’s costs.

It is often the case that Family Law proceedings also involve cases in the criminal court.  Although this case determined that what happens in the State Court doesn’t determine the Family Court proceedings it is still very important to understand how and when the different cases might impact upon each other.  Websters Lawyers have specialist solicitors in both Family Law and Intervention Order matters working collaboratively to provide all the legal advice and assistance needed whether for those subject to such an Order, or those for whose protection an Order has been made.  For an obligation free telephone consultation call 8231 1363.

Adler v Parrow [2024] FedCFamC1A 192

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2024/192.html