Who Has the Burden of Proving Family Violence Allegations in Family Court?

Family violence is one of the most serious and sensitive issues that can arise in family law proceedings. Allegations of violence often have a significant impact on parenting arrangements, the allocation of parental responsibility, and the court’s overall assessment of what is in the best interests of the child.

But when one party alleges family violence, who has the burden of proving it?

In the Federal Circuit and Family Court of Australia (FCFCOA), the burden of proof generally lies on the person making the allegation. This means that if one party alleges that family violence has occurred, they must provide evidence to support that claim.

The standard of proof in family law cases is the civil standard — known as the balance of probabilities. In other words, the court must be satisfied that it is more likely than not that the alleged events occurred.

This is a lower threshold than the beyond reasonable doubt standard applied in criminal cases, but it still requires the court to carefully examine the evidence before making findings of family violence.

Evidence the Court May Consider

Evidence of family violence can take many forms, including:

• Police reports or intervention orders

• Medical or psychological records

• Text messages, emails, or social media communications

• Witness statements

• Affidavit evidence from the parties

• Photographs, videos, or other supporting material

The court assesses this evidence in context, taking into account credibility, consistency, and corroboration.

How Allegations Impact Parenting Orders

When determining parenting arrangements, the court’s paramount consideration is the best interests of the child (s 60CA, Family Law Act).

If the court accepts that family violence has occurred, it may:

• Restrict or supervise the time a parent spends with a child

• Order no contact between a violent parent and the other party

• Allocate sole parental responsibility to one parent

• Impose conditions or restraints to ensure safety

The Full Court has recently cautioned against making findings of family violence without proper evidentiary foundation. In Pickford & Pickford [2024] FedCFamC1A 249, Justices Austin and Wilson highlighted the importance of forensic rigour when dealing with disputed allegations:

“However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue… The party alleging the fact bears the burden of proving it… and the standard of the burden is the balance of probabilities.” (Pickford, at [79])

Allegations of family violence cannot be assumed to be true simply because they are made, and that findings should only be made on the basis of evidence properly tested before the Court.

If you are involved in proceedings where family violence has been alleged, it is essential to obtain legal advice. At Kennon Lawyers, we can help you gather and present evidence, respond to allegations, and ensure your rights — and your children’s safety — are protected.