but how long does it take? do you need to disprove it all? does the court err on the side of caution?
How long does the Child Arrangements Family Court process take? 12 months on average, depending on the issues creating the parenting dispute and the region.
Welfare risks are what the Family Court are concerned about. The decisions they make are in the interests of the children caught up in the dispute.
But allegations that constitute welfare risks to children from their parents, such as domestic violence, abuses of all sorts, substance misuse, criminal activity are either historically evident from records of past indicents, completely new and/or undiscovered or they never happened at all.
There are numerous ways in which the Family Court is different from, say, the Criminal Court. But the Family Court still needs to decide if something is fact or has actually happened?
In Child Arrangements cases, there can often be factual elements in dispute. If a parent alleges that the other parent has been abusive or is neglegent, the other parent may deny it. When that occurs, the Fact Finding Hearing needs to be held and the court will make a decision about the events on which the parties disagree. After those facts have been established, the court then has a clearer picture to make its Child Arrangements decision.
There's probably a simpler way to explain this, but Family Law, like Civil Law, differs from Criminal Law when it comes to the procedure and also establishing the necessary standard of proof. Instead of putting a case before a jury of the public to determine if the defendant did the act “beyond all reasonable doubt”, each party must make their case directly to a judge who will apply what's called the “probability” test.
The burden of proving a fact rests on the person who asserts it, i.e. makes the allegation. So, if an ex makes an allegation against her childrens father to justify obsructing contact, it is not the father's responsibility to prove the accusation false. This is a fundamental part of the legal system as a whole. But the standard applied is not the criminal standard. What counts as evidence in Family Law cases can include, live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. Using available evidence, the judge then makes a decision about what has occurred and applies the probability test.
The standard of proof is the balance of probabilities. Is it more likely than not that the event occurred?
Any fact in a dispute has to be proved on the balance of probabilities. This means that, to be treated as having happened, any fact in a dispute has to be proved to be more likely than not. It’s also referred to as the civil standard of proof - to distinguish it from the criminal standard of proof, in which a jury must be 'sure' (or be 'beyond reasonable doubt') to convict someone.
To use an extreme example, say that somebody has killed their child, even if a separate criminal trial for murder has resulted in an acquittal following a jury not being 'sure' the accused commited the killing based on the available evidence. If there were other children in that family, the Family Court may need to make a decision on what happens to them, and to do so would decide on the balance of probabilities whether the parent was responsible for the death.
So in short, the answer is no. You do not need to disprove anything. The person making the assertion against you needs to prove it.