In family law cases whether over property division or children’s issues, spouses or parents are often quite prone towards making wild and highly damaging allegations of impropriety against the other. In some instances, some allegations are false or highly exaggerated and often leave the other spouse/parent eager to clear their name. This triggers exorbitant amount of hostility and tension between the parties, sometimes causing them to lose focus of the focal theme in their case, whilst also unknowingly increasing their legal costs.
Outside of the Family Courts, there are anti-defamation laws that provide for the payment of monetary compensation or publishing of retractions or apologies to the aggrieved party where appropriate. However, in a family law dispute, these laws do not usually apply.
However, we often see in children’s cases, Orders prohibiting parents and or their agents from making derogatory statements about the other parent within earshot of the children. The intent behind this is that informing the child of their parent’s past discretions whether true or false will only serve to confuse and harm the child. Section 67ZBB of the Family Law Act also imposes obligations on the Courts to take prompt action in relation to allegations of child abuse or family violence and to question each party in children proceedings about the presence of risk of family violence or child abuse.
Under section 117 of the Family Law Act, the Family Court has discretionary powers to make costs orders if the Court is of the opinion that there are circumstances to justify doing so. This may include scenarios where a party has knowingly made false allegation or statement against the other during the course of proceedings.
The subject of character assassination in family disputes was discussed in the recent case of Huda & Huda (No.2) [2020]. In this case, the Court found that the father falsely accused the mother of sexually abusing the children, concluding that he made these allegations even though he knew them to be false. It was raised that an allegation that a parent has engaged in sexual abuse of their own child is an allegation of the most serious kind.
Quoting the case of Simpson v Hodges [2007], the Court stated “a judicial officer who believes that offences have been committed is under a duty to refer the proceedings to relevant authority”. Orders were made directing the Registrar to forward its Reasons for Judgment and the transcript of the entire proceedings to the Commonwealth Director of Public Prosecutions, for consideration as to whether the father should be prosecuted – noting that section 35 and 36 of the Crimes Act (relating to giving false testimony and fabrication of evidence respectively) may need to be considered.
In summary, a false allegation can quickly take a toll on a family law case if not appropriately controlled and contained. If you find yourself in a similar predicament to the above scenario, whichever side that may be, please do not hesitate to contact one of our experienced family lawyers on 03 9614 7111 to discuss how to best navigate your situation.