The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Salah (2016)

If parties are unable to reach an agreement regarding the arrangements for children, then a court order regarding where the children live and how much time the children spend with each parent may be necessary.

When there are allegations of family violence the need for the court to order arrangements to be in the best interests of the children takes has even more importance. However, until there is a final hearing (which may be 2 or 3 years away) the initial decision made but the court will be in an interim hearing. An interim hearing will occur without cross examination, without the allegations been tested. The process for an interim hearing is that the judge reads the affidavits of the parties and hears the submissions from the parties lawyers before making a decision. Therefore it is necessary for the court to make interim orders after only a shorter and less in depth hearing.

The recent decision of Salah clarified the process for a court in such interim matters where there are issues of family violence. The family law act requires that an order must not expose a person to an unacceptable risk of family violence. This case emphasises it is the risk that needs to be the emphasis, not whether or not the violence actually occurred.

This case determined that in an interim hearing this does not mean that the court has to make a finding of whether or not the violence occurred, but rather note the allegation and ensure orders made protect the children in light of such an allegation. This may mean that there are limits put in place (like supervised time, shorter periods of time) until a final hearing when allegations can be tested.

This case also confirmed that in an interim hearing the allegation of family violence does not have to be supported by corroborating evidence to be taken into consideration. This is significant because of course the nature of family violence often means such evidence is not in exsistence, especially at an early interim hearing.

This is a very useful decision in an area that can often be difficult in busy interim hearing lists at court.