Things often happen very quickly within the context of family law matters. This is particularly evident when parties separate, as the children go to live with one or other of the parties and there can be uncertainty as to where the children are living, or when it is that they will spend time with the other party.
In most cases, it is necessary for parties to attend mediation and obtain a Section 60(I) Certificate prior to going to court – although it is important to note that the need to attend mediation can be waived in circumstances of urgency. If the matter is deemed sufficiently urgent (such as not knowing where a child may be, or not being able to spend time with the child), it is possible to attend court. In cases where the matter is extremely urgent, Orders can be sought on an ex parte basis, meaning that the matter will be dealt with without the other party having the opportunity to attend court, or present evidence.
A relatively recent case of Drew & Jensen, which we wrote about earlier in the year, highlights some of the dangers attached to bringing an ex parte application before the court and not telling the full story.
In that matter, the parties separated, and the father brought a Recovery Application (that is, an Application to have the children returned to his care) to the Local Court (which has jurisdiction to deal with family law matters). An order was made by the Local Court, on an ex parte basis, for the children to live with the father.
Soon after those proceedings were commenced by the father, the mother commenced proceedings in the Federal Circuit Court of Australia for Parenting Orders with respect to the children. She highlighted that she had unilaterally decided to take the children to live with her, in circumstances where she was escaping family violence and held concerns for the children’s welfare.
When commencing proceedings in the Local Court, the father omitted a number of relevant facts, which I suspect would have impacted upon the decision being made by the Local Court Magistrate.
The father noted that he had two children from a previous relationship, one of whom was 12, that he did not have a relationship with, indicating that the lack of relationship was due to circumstances where he had moved abroad, whilst the child had not.
It subsequently came to light that the father had a significant criminal history, which included an assault on that particular child. The father also indicated, in the Local Court proceedings, that he had never been violent towards the mother (a claim which overlooked the fact that he had been charged with an assault against the mother), and similarly denied that he had ever been incarcerated (the subpoena material produced by the Police indicated that this was incorrect).
These were all matters that were relevant to the assessment of risk related to the Application brought by the father in the Local Court proceedings.
His Honour Judge Altobelli in the Federal Circuit Court of Australia was critical of both the father and his lawyer, indicating that there is a duty to the court to ensure that no misleading evidence is put before it. Furthermore, Judge Altobelli clarified that lawyers have a duty to ensure that no statement or pleading put before the court is knowingly false, contains half-truths, or that it may otherwise mislead the court.
In relation to ex parte Applications, His Honour found that there is a greater onus on lawyers to ensure that the court is armed with all material necessary in making decisions reflecting the best interests of the child, and that it is necessary to, in essence, put both parties’ cases before the court to ensure that it has access to all relevant facts and materials.
As a consequence of the way in which the father and his lawyer had conducted the proceedings, Orders were made for the children to return to the care of the mother.
It is understandable that parties, when bringing matters before the court (whether ex parte or otherwise) do not want to set out all of the negative aspects of what has occurred throughout the relationship in so far as it relates to them. However, it has been my experience that the court will commend parties who have made mistakes, who then own up to them and set out, for the benefit of the court, what specific steps have been taken to address those failings.
Rest assured, if your ex-partner is represented by competent lawyers, then the correct subpoenas will be issued, and all questions asked in order to ensure that all of the relevant material is put before the court. It is far better to take ownership and admit to things that have happened which might be viewed by the court in a negative light, rather than having them brought to your attention at a later date, with explanations having to be provided as to why you yourself did not bring those matters before the court.
In short, honesty is looked upon favourably by the court, whereas attempted deception is not.
As a White Ribbon Accredited Workplace, Coleman Greig Lawyers takes a zero-tolerance stance with regard to any and all forms of violence against women. If you are concerned that you may be a victim of domestic violence, we urge you to seek help via the White Ribbon Australia website.
Should you be going through a separation, and believe that urgent proceedings are warranted, but you are unsure of how to go about them, please do not hesitate to get in contact with one of our Accredited Family Law Specialists.
