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Allegations of child abuse or family violence

Sections in the new Family Law Act that cover false allegations and related penalties

The SPCA often hears of, or receives complaints that one parent is making allegations of violence or some other false allegation that slows up any proceeding and significantly disadvantages the contact parent.

The following sections relate the new legislation to specific actions that are now required.

60K Court to take prompt action in relation to allegations of child
abuse or family violence……………………………………….133


Subdivision D–Allegations of child abuse 205
67Z Where party to proceedings makes allegation of child abuse …..205
67ZA Where member of the Court personnel, family counsellor,
family dispute resolution practitioner or arbitrator suspects
child abuse etc. ……………………………………205
67ZB No liability for notification under section 67Z or 67ZA…………….207

117AB Costs where false allegation or statement made ……………………….459

AND

Division 8–Other matters relating to children
- liability of a father to contribute towards child bearing
expenses if he is not married to the child's mother
- orders for the location and recovery of children
- reporting of allegations of child abuse
- other orders about children

AND

60K Court to take prompt action in relation to allegations of child
abuse or family violence


(1) This section applies if:
(a) an application is made to a court for a Part VII order in
relation to a child; and
(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings
for the order; and
© the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:

(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; and

(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.

(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
© deal with the issues raised by the allegation as expeditiously as possible.

The court must take the action required by paragraphs (2)(a) and (b):
(a) as soon as practicable after the document is filed; and
(b) if it is appropriate having regard to the circumstances of the case–within 8 weeks after the document is filed.
(3) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain
reports from State and Territory agencies in relation to the allegations.

(4) Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(5) A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.

AND

67A What this Division does
This Division deals with:
(a) the liability of a father to contribute towards child bearing expenses if he is not married to the child's mother (Subdivision B); and
(b) orders for the location and recovery of children (Subdivision C); and
 the reporting of allegations of child abuse (Subdivision D);
and
(d) other orders about children (Subdivision E).

AND

Section 67Z
Subdivision D–Allegations of child abuse

67Z Where party to proceedings makes allegation of child abuse
(1) This section applies if a party to proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at
risk of being abused.
(2) The party must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
(3) If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.
(4) In this section:
prescribed form means the form prescribed by the applicable Rules of Court.

Registry Manager means:
a) in relation to the Family Court–the Registry Manager of the Registry of the Court; and
(b) in relation to the Family Court of Western Australia–the Principal Registrar, a Registrar or a Deputy Registrar, of the
court; and
© in relation to any other court–the principal officer of that court.

AND

102A Restrictions on examination of children
(1) Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which
relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.

(2) Where a person causes a child to be examined for the purpose of deciding:
(a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or
(b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused; subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.

(3) In considering whether to give leave for a child to be examined, the court must have regard to the following matters:
(a) whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;
(b) the qualifications of the person who proposes to conduct the examination to conduct that examination;
© whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;
(d) any distress already caused to the child by any previous examination associated with the proceedings or with related
proceedings;
(e) any other matter that the court thinks is relevant.

(4) In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:
(a) the evidence relates to relevant matters on which the evidence already before the court is inadequate; and
(b) the court will not be able to determine the proceedings properly unless the evidence is admitted; and
© the welfare of the child concerned is likely to be served by the admission of the evidence.

(5) In this section:
examined, in relation to a child, means:
(a) subjected to a medical procedure; or
b) examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).

Note: Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the
law against hearsay.

AND

117AB Costs where false allegation or statement made
(1) This section applies if:
(a) proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.

Part XV Miscellaneous
Section 117A
460 Family Law Act 1975
(2) The court must order that party to pay some or all of the costs of
another party, or other parties, to the proceedings.

AND

117A Reparation for certain losses and expenses relating to children
(1) Where:
(a) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened a parenting order to the extent to which the order provides that:
(i) a child is to live with a person; or
(ii) a child is to spend time with a person; or
(iii) a child is to communicate with a person;
(b) a person has been convicted of an offence against section 65Y or 65Z in respect of a child;
© a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened an injunction granted, or an order made, under section 114; or
(d) a person has been found to be in contempt of a court exercising jurisdiction under this Act by reason of having taken a child away from another person or having refused or failed to deliver a child to another person; a court having jurisdiction under this Act may, subject to subsection (2):
(e) on the application of the Commonwealth–order the person to make reparation to the Commonwealth or to a Commonwealth instrumentality, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the Commonwealth
instrumentality, as the case may be, in recovering the child and returning the child to a person; or
(f) on the application of any other person–order the first-mentioned person to make reparation to that other person, by way of money payment or otherwise, in respect of any loss suffered, or expense incurred, by that other person in recovering the child and, if applicable, returning the child to
a person.

(2) Nothing in subsection (1) empowers a court to order a person to make reparation to the Commonwealth, to a Commonwealth instrumentality or to another person in respect of any loss suffered, or any expense incurred, where a court has, under section 21B of the Crimes Act 1914, ordered the first-mentioned person to make reparation to the Commonwealth, to the Commonwealth instrumentality or to that other person, as the case may be, in respect of the same loss suffered or expense incurred.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Action is needed

I feel that the only way for a good father to get access to the children and get a quick and fair go in getting access to the children is to take action.

Sue the state government for the rights of the children because of the time and the money spent trying to get the children rights listened to by the courts in a faster and different way.

I call for a group action in this i will stand up in any court and say my children had been ripped off me by the time and false allegations made by my X  and the court process which has been way to slow to take action in the mater  :(

Last edit: by OneRingRules

Malmsteen thare a many groups here who are very concerned about false allegations. A number of significant chnages were made in the Family Law Act last year to deal with false allegations. I suggest you look at the post from the Secretary SPCA and see if any of that can be communicated to the court you are in. I have assumed you are in court at the moment.

Another post of interest here View topic: Forum Admin issues with "edit this" - flwg.com.au

Last edit: by OneRingRules


Site Director
False allegations can be dealt with very quickly. There are specific time frames now that the courts must act within and get a resolution wheras previously these things could go on for months and years.

Finding a way to minimise delay

DrJohn said
False allegations can be dealt with very quickly. There are specific time frames now that the courts must act within and get a resolution wheras previously these things could go on for months and years.
 



The operative word from Dr Jon is "can". Sadly the Courts still allow themselve to be manipulated  by unscruplious parties. Late filing oaffidavits and the like. Too often I hear that these cases have been delayed yet again because one party has lodged documents very late. The court then adjourns the matter yet again, resulting in another 3 months delay. It only needs 4 of these to make up a whole year. It is time the Courts found a away to manage theseissues. Perhaps they could ban a solicitor for a few months. I bet the practice would soon stop.


For me - Shared Parenting is a Reality - Maybe it can be for you too!
Yes late filing is still an issue although Justice John Faulks has on numerous times indicated he is more likley to proceed regardless. They appear to be clamping down and "If yr paper work is not in by the date TOOooo bad"... thats the message I have heard. I have also heard some of the Magistrates, in Parramatta particulalry, give solicitors and extremly hard time when papers are not ready.

Site Director
There is a culture of 'why bother' and we can 'ask for an extension' that pervades the Courts and even their employees (I get very upset when a Counsellor tells someone not to worry - just ask for an extension)

It is a serious issue. Faulkes is but one Judge. Bryant and Pascoe could issue very clear Practice Directions about this instead of it being left to the discretion of an individual Judge or Magistrate on the day.

FINE the legal profession personally and the situation may sort itself out

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
From a recent published case.. this part of what FM Walters said


. In 1995 the Full Court dealt with the question of adjournment of a trial date in the case of Reed & Draper [1995] FLC 92-649. The Full Court identified two basic principles associated with adjournments. The first it described as "the injustice principle", and the second it described as "the court resources principle".  
12. The injustice principle is a principle well known to lawyers and to the court system. Each of the jurisdictions has its favourite case which states the effect of the principle. The State that I come from, which is Western Australia, relies on Myer [1969] WAR 19 in relation to the injustice principle. In essence it requires the court to balance the potential injustice to each of the parties of an adjournment being granted or refused. If the justice of the case requires an adjournment, then it is to be granted[1].  
13. With effect from approximately 20 years ago, if not more, there has been a concurrent (or countervailing) principle described in Reed as "the court resources principle". That principle emphasises that the days of parties and their practitioners setting time frames for litigation and proceeding leisurely along the track towards a trial are long gone. Modern case management principles, and the huge and multiple pressures on courts, compel judicial officers to ensure that parties move along the litigation pathway at a pace set by the court, and that they do so efficiently.
14. Parties must have demonstrably good reasons for not complying with orders and directions designed to ensure that matters proceed to trial efficiently. Part of the problem that led to the enunciation and formulation of the court resources principle is the sad fact that more and more litigation is being conducted in the courts, and fewer and fewer judicial officers (proportionally) are available to deal with that load. It is very easy for delays to occur. It is very easy for court lists to blow out if matters are not compelled to proceed on the dates that they are allocated.  


So do we research the Reed and Draper case or use this Walters Judgment as a form of argument for a case to proceed in the absense of material

Injustice is late or no service. As regards Court Resources - that may sound the biggest bell in todays overloaded registries


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
AGOG said

FINE the legal profession personally and the situation may sort itself out



To borrow the words of Elspeth's Counsel in Elspeth and Peter. "I don't think a fine is appropriate in this case" - Like Benjamin J - I would have to agree - Jail em - a day for every day late ( that for the first occurence, then double and redouble on each susequent ocassion)


For me - Shared Parenting is a Reality - Maybe it can be for you too!
How about some restrospective legislation - one day in clink per day late etc. That way half the legal profession would have a paid holiday for about a Year.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

do you think it needs to be retrospective?

Does it realy need to be retrospective. The way some solicitors behave, even without backdating they would still manage to accrue a years worth of Her Majesties Pleasure within a month.

Won't ever happen though. They would need to build 27 new gaols - at least


For me - Shared Parenting is a Reality - Maybe it can be for you too!
I wonder how Malmsteen is getting on in relation to these allegations of abuse. If he (assumed) posts again here perhaps one of the site Moderators can get a phone number and we can follow up off post and see what can be done. I understand this matter is in the New Castle Registry. We need to be monitoring these cases to ensure the new laws are being executed properly  :cool:

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
well it still  go on i have my kids to day but have lost so much time with them. now my x is saying that i am having sex with girl under age and so on to me not to the courts but it make it had when i do have my children , becouse of the lies and hurt full thing being said around the children , h feel i have lossed my children before the court has taken action is some respect becouse of the time loss with them , i have been told i will may be be in court in march next year becouse it is leagal aid , sotime goes by as i see my children slipping away in some respects and my x has got away with my children time with the father who has done nothing other then want a realiship with his children other a brake up , and has been put thought hell buy my x still to this day, my helth is not good becouse of the lies my life is on hold , my children are not getting the access that thay should be getting , and the years tick over , and even tho the family law court has changed i feel that not action will be dont over my x   saying i a abussing my children haveing sex with girls under age and stoping the children from moveing on to what is right for the children from the start to see there father who love them as much if not more then there mother what ever action the court takes now will nether give me and my children back the time we have missed out on , thoght lies and the court taking to long to give the children there rights , thay know i have not abussed my children , the police know i have not abussed my children , i havw letters from them saying that the children rep said i should have 7 out of 14 day with my children but when in a nother year when the relation ship with my kids is less and the children find it hard to  spending 7/ 14 day with me becouse thay have been living away from me for greater time than before the aligation where made , over the  passed 2 year , if i lied to the police like she has i would be charged with fulse aligation nothing has happen over it , nothing other then less acess to my children , i have lived on the central coast for 30 year know lots of people and now i am a petiafile becouse of the lies my x is saying about me trying to drive me out of town , she has came close some times but i will not give in and the court need to take action with what ever thay can as hard as thay can on this woman that what my children to her self and my children to forget about there father , and at the moment in some respces the court is letting he do this , the police are letting her do this , if a man did this the court would take the children away from them , the police would put u in jail , the children would be hurt and its all for the woman   need laws in place till it goes to court and quicker action i feel  :}
for making us wait over a yea, and having docs put us in the to hard basket, i will enocourage my step son to sue when he gets older. he has waited way way to long

Rarghhhhhhhhhh!!!!!!!!!!!!

Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
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