Domestic Abuse And Fact Finding In Children Cases

What is domestic abuse?

Often a key concern that may impact a parent’s ability to agree contact with the other parent regarding their children and what is in the children’s best interests, relates to a history of domestic abuse.

The Domestic Abuse Act 2021 defines abusive behaviour as anything which is physical or sexual; violent or threatening; controlling or coercive; economic abuse; psychological and emotional.

When making or upon receiving an application for proceedings within the Family Court concerning children, the court’s primary concern is the welfare of the children. As a result, the applicant and/or respondent can lodge a C1A Form to provide supplemental information alleging harm and domestic violence as defined above.

Once allegations have been raised and denied by the other party, the court will decide whether it is proportionate and necessary to convene a Fact-Finding Hearing.

What is a fact-finding hearing?

A fact-finding hearing is where the court will assess the evidence in support of the allegations which have been made between the parties, to determine whether or not these are true, and ultimately, how this may impact the welfare of the children, and the order which could be made as a result.

The court must decide early on whether the allegations raised are likely to impact the decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any order.

If the court does determine that the allegations are relevant, they will list a fact-finding hearing to determine whether ‘on the balance of probabilities’ they are true. This will impact what order the court is likely to make and what type of contact the abusive party may be entitled to.

When is a fact-finding hearing necessary?

Following recent case law, judges have indicated that fact findings are only appropriate when ‘the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare’.

Not only will the court consider the children’s welfare, but they will also consider whether there are any more appropriate methods of dispute resolution. Judges are clear that if the matter could have been resolved through mediation or another alternative dispute resolution, avoiding the fact-finding hearing is more appropriate.

Therefore, it is not necessarily the case that making allegations will lead to a fact-finding hearing if the court deems it inappropriate and not relevant.

What will happen and how to prepare:

In order to prepare for a fact-finding hearing, the court may order that witness evidence is filed setting out the allegations. In addition to this, the court may order that a Scott Schedule is prepared which clearly sets out the allegations and responses in a table format to assist both parties, the judge, and their legal representatives. It is important that these documents are carefully drafted to ensure you have the best chance of successfully setting out your position to the judge.

This can be quite a stressful process to deal with, especially when sensitive details are being discussed. A fact-finding hearing can often be a daunting task given the prospect of being cross-examined by a legal professional within a court environment. Therefore, we would strongly suggest taking legal advice to give you support and guidance through this.

Our specialist family lawyers have experience in a range of children matters and regularly engage in family proceedings assisting people resolve their matters both in and out of court.