It is very upsetting when someone makes false allegations against you or your client, but what is more upsetting is when it seems like the Court believes them and there is nothing you can do about it.
This article highlights some useful tips for dealing with false allegations in family law proceedings.
What you can do when someone makes false allegations against you
There are a few things you can do when someone makes false allegations against you to give your self the best chance of success in your family law matter:
Put in place shields to protect your mental health
It is recommended that before you start litigating you make sure you have the following:
- A regular recurring appointment with a counsellor/psychologist.
- Good support networks: friends, family, Facebook groups.
- A plan for good diet and regular exercise.
You might say that you don’t need a counsellor however, every person that goes through separation, let alone a separation with a child custody battle, is going through a traumatic experience and will no doubt be assisted by obtaining mental health support to manage their mental health. Prevention is better than cure when it comes to looking after your mental health.
As we always say, when a plane is crashing there is a reason the attendant tells you to put your own oxygen mask on first. You can’t be the best parent to your children if you don’t put yourself first and look after your own mental wellbeing first.
When false allegations are made, try to stay calm, talk to your lawyer, and come up with a plan
When first confronted with a false allegation you will feel a rush of emotion from anger to fear to sadness. Try not to panic. It is best to talk to your Brisbane family lawyer as soon as possible. Your family lawyer will be able to give you an objective opinion on the seriousness of the allegation, the relevance/importance of it, and how best to proceed legally.
Send a letter to the other party or their lawyer noting the allegation, denying it and responding to it
It is useful to address the allegation quickly by letter to the other party.
Addressing the allegation quickly by letter will remove any doubt that the other side and their lawyer are aware of your position, and this will help you later in your proceedings when the allegation is ultimately proven to be false.
If court proceedings have already started, depending on the nature of the allegation, your family lawyer may also recommend that you be proactive and address the allegation in an Affidavit as the allegation may be raised when the matter comes before the Court.
If the false allegations have been made in a Court document or affidavit, you can respond to them in your own affidavit
Affidavits are sworn or affirmed statements that are used to communicate the parties’ side of the story to the Court. There may be very serious consequences for knowingly making false statements in an affidavit. These can include a finding by the Court that that person is not a credible witness (which will be detrimental to their case). The Court might also make a Costs Order against a party or they may be referred to the department of prosecutions for consideration as to whether they should be charged with perjury.
Process of an application for a parenting order
It is important to understand the Court process, and in particular, how long you might be waiting before the Court can deal with the false allegation.
After you have complied with the Pre-Action Procedures, summarised in our article ‘Can I go to court without doing mediation first’, you can make an Application for Parenting Orders. The Court can make interim parenting orders, which are temporary until a Trial. At a Trial, the Court will be in a position to listen to cross-examination by you and your former partner and any other relevant witnesses. At that time, the Court will make a final parenting order in respect to the care and welfare of your children. To prepare for the Trial, the Court in some cases will: appoint an Independent Children’s Lawyer, require expert reports to be prepared, obtain documents from various organizations such as schools, doctors/hospitals, the police, DOCS, and require the parties to attend mediation (more than once). This process takes at least 12 months.
The paramount consideration when a Judge is making a parenting orders, is the child’s best interests. All of the above information needs to be obtained to assist the Court in making a final decision about what orders are in your children’s best interests.
You will go to Court multiple times before your Trial. The different court events prior to a trial are commonly referred to as interim hearings and directions hearings. The purpose of a directions hearing is to organize all the things mentioned above to enable the matter to progress in a meaningful way to a conclusion, whether by agreement or by the Judge making a decision at a Trial. The Court will not generally make any orders of substance, that is, for example, with respect to the care and welfare of the children, at a directions hearing. If an interim application is filed and/or orders are sought urgently by a party, the court will list your matter for an interim hearing. At the interim hearing, both parties can rely upon their affidavits and any independent evidence available to the court, to make arguments as to what interim orders should be made, in the children’s best interests, pending a final hearing (trial). The difficulty is that at an interim hearing, the Court is not in a position to decide whether the allegations are true or false. The independent evidence available at an interim hearing is also usually limited. Given the court is not in a position to determine who is telling the truth and who is lying, at an interim hearing the court will always proceed cautiously, and the Court will base their decision on the agreed facts, the facts not in dispute and the independent evidence. This means that if a serious allegation is made, the Court will always take it seriously and proceed as if it is true, unless and until there is more independent evidence before the Court (for example a family report) to assist the Court in determining what orders are in the children’s best interests. This is why if someone has made a false allegation that you are abusive, or a drug addict, the Court will usually make interim Orders for the children to only spend time with you under supervision and the Court might order drug testing, to provide evidence to the Court about the drug use of an accused party This may seem unfair, but step into the Judge’s shoes. The Judge can’t reasonably determine whether a party is telling the truth or not until they have the opportunity to listen to cross-examination of the parties at a hearing. There is no perfect solution to this problem, it is just an exercise in risk management. The Judge is not siding with anyone other than your children, and the Judge’s primary objective and obligation, is to put the child’s safety and best interests first.
Importantly, it may take up to two years for your matter to reach a Final Hearing stage. The process is long and arduous, and it is therefore very important that you obtain legal advice from a family lawyer about the steps you should be taking so that your matter proceeds in the most positive way and in order to put you in the best strategic position leading into a Final Hearing date.
False Allegations – Conclusion
These tips are designed to fortify yourself for the ordeal that is to come. There is no use in sugar coating anything, because it will be an ordeal.
The reality is that it does not matter how good your family lawyer is or how much money you spend, if you are not ready to weather the storm, you will fail.
Even with a family lawyer, you will need to be able to give them your clear instructions, you will need to interview with expert report writers, and ultimately give your evidence orally to the Court. How you perform at each of these tasks will be crucial to the outcome of your matter.
Outside of your litigation, you will need to be a present parent to your children or a diligent employee to your employer. Your life cannot be placed on hold for 12 months or more while your legal matters take their course.
Whilst your legal response to false allegations is important, it is your non-legal response that will make the most difference in helping you through your legal matter in order to achieve the best practical outcome for you and your family. Check out our article on the Top Ten things people do wrong in child custody matters for more information.
Your family lawyer will do their best to guide you through the legal system so do not hesitate to book a reduced rate consultation with one of our experienced Brisbane Family Lawyers to have a confidential discussion about your individual circumstances and we can develop a strategy to achieve the best possible outcome in your case.