Judge's decision to limit mother's allegations of domestic abuse set aside

The High Court has ruled that a judge's decision to limit a mother’s allegations of domestic abuse in a children act case was wrong and should be set aside, saying that "The allegations beyond those in the Scott Schedule were not either inadmissible or irrelevant; quite the opposite”.

The case involved a married couple who separated in 2019. They had two children aged 12 and three. 

In 2020, they each issued applications for child arrangement orders. Each made allegations of abuse against the other. 

The judge ordered that they each file a Scott Schedule limited to five allegations and their evidence in support of those allegations. The mother however expanded those allegations within her narrative statement. The father argued that those new allegations, not included in the schedule should be removed. 

The father was successful in the lower court, but upon the mother’s appeal of that decision, a High Court Judge considered that “a strict adherence to single incidents in the Scott Schedule would have to be considered”. 

The mother’s original allegations within her schedule included that the father had negligently allowed the younger child to fall from a table at the age of 6 months and refused that the child stays at the hospital overnight; he had forced her to have sex with him and in doing so passed on the sexually transmitted disease to her; he had slapped the eldest child, thrown a parcel at him and threatened to kill him; he had self-harmed and called the police saying that she was responsible; and had shouted at the oldest child, undermined and mocked him, and twisted the older child's arm.

She also filed a statement adding more detail and examples of the abuse she alleged the father had inflicted on her and the children, which included allegations that he had forced her to have sex on more than one occasion and had hit the older child more than once. The mother also filed a number of witness statements from third parties in support of her allegations.

The father himself made allegations that the mother was attempting to alienate the eldest child against him.

The father argued that the mother’s statement went beyond the five allegations that were permitted by the order and highlighted a number of elements as being “irrelevant, inadmissible or otherwise objectionable”. The father was successful on the lower court and a number of allegations were removed from the mother’s evidence, and she was directed to file a new statement, limited to the 5 allegations raised in the schedule.

The mother appealed on grounds that the judge had been wrong to exclude some matters in her statement as that limited her ability to explain the history of the father's behaviour and the background to specimen allegations and that it was “perverse for the judge to invite counsel for the father, being the alleged perpetrator, to propose redactions to the mother’s statements”.

The High Court judge was satisfied that the judge's decision that the mother could not adduce the evidence she sought to do in her statement could not stand. The allegations beyond those in the Scott Schedule were neither inadmissible nor irrelevant. 

The fact that the father was alleged to have hit the older child more than once was plainly an allegation of a pattern of behaviour highly relevant to an application for contact. So too were allegations that he had forced the mother to have sex on several occasions, and that he was a bully to his older child. 

These matters are also relevant to the father’s case, in particular, that the mother was the one who was violent and that she was alienating the children from him. These allegations demonstrated that strict adherence to single incidents in the Scott Schedule would have to be reconsidered. The court allowed the appeal and set aside the judge's order.

The mother was ordered to file a narrative statement setting out her allegations against the father, including any allegations of a pattern of violent, abusive, or controlling behaviour.

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