Family law · 14 September 2026
Protective powers exist for good reason and are used honestly in the ordinary case. Where they are deliberately misused, the consequences fall on a child who keeps growing while adults argue about what should happen next.
Any legal practitioner who knowingly helps manufacture allegations, or pursues protective proceedings for an improper purpose, should face scrutiny for the consequences. That is a serious proposition, and it requires equally serious evidence.
A lawyer who knowingly advises a parent to fabricate danger can set in motion proceedings whose effects extend far beyond the original application. Other lawyers may become involved. Public funding may be approved. Parenting arrangements may come under scrutiny. Children may live with restrictions while the allegations remain disputed.
Where that process begins with deliberate professional misconduct, accountability must examine the advice that helped start it. It should also examine anyone who subsequently participates with knowledge of the deception.
That is a serious proposition. It requires equally serious evidence. Neither an unsuccessful application nor an outcome that benefits one parent establishes that the process was abused. But the possibility of misuse deserves examination through evidence, fair procedures and scrutiny of professional conduct.
The central concern is the child. Where protective powers are deliberately misused to keep a child away from a safe parent, the consequences cannot be reduced to legal fees or an eventual correction on a court file. A child continues growing while adults argue about what should happen next.
Family violence intervention orders, or FVIOs, operate under the Family Violence Protection Act 2008 (Vic). Their conditions can restrict contact, exclude someone from a home and protect children. Interim orders provide temporary protection while the court considers the matter further. Their conditions remain binding while the orders are in force. Victoria Legal Aid’s explanation of FVIOs
These powers serve an essential purpose. Family violence includes psychological, economic and coercive abuse as well as physical violence. A person may need protection without having suffered a physical assault or facing a threat that will be carried out that evening. The absence of an immediate physical threat does not establish that an application is unnecessary.
The issue is whether protective powers are being invoked honestly and for their proper purpose. A practitioner who knowingly invents a protective basis, encourages a materially false account or pursues proceedings for an improper purpose should be required to answer for that conduct.
The distinction between tactical benefit and improper purpose matters. Legal action can protect someone and also improve their position in another dispute. That additional benefit does not automatically make the action abusive. The critical questions concern the factual foundation, the purpose of the conduct and what the practitioner knew.
An allegation that a lawyer knowingly helped fabricate danger therefore requires more than disagreement with the application. It requires evidence connecting the lawyer to the alleged deception. Proving that a statement was false and proving that a particular adviser knew it was false are different tasks.
Experienced barristers and solicitors are expected to understand the implications of their advice. They should understand that urgent restrictions can materially change a family’s circumstances before disputed allegations receive a final determination.
The Uniform Barristers’ Rules applicable in Victoria require advice to invoke a court’s coercive powers to be reasonably justified by the available material and appropriate to advancing the case on its merits. It must not be given principally to harass, embarrass or secure a collateral advantage outside court. Allegations made under privilege are also subject to requirements of justification and proper purpose. Uniform Barristers’ Rules, rules 60–61
Those obligations deserve attention at the point where advice is given, allegations are framed and restrictions are sought. Where evidence establishes knowing misuse, the subsequent arrival of another solicitor, a funded representative or an ICL does not erase the original adviser’s responsibility.
Nor should professional seniority determine whose conduct can be questioned. Experience may explain why advice was influential. It cannot establish that the advice was sound or honestly given. A credible complaint should be assessed by reference to the material and the applicable duties.
Barristers, solicitors and ICLs may repeatedly work with the same judicial officers and other practitioners. Familiarity within a specialist professional community is unsurprising. It can support efficient communication and competent case management.
Knowing one another does not establish collusion, favouritism or bias. Judges and magistrates cannot be expected to have no professional history with the lawyers appearing before them. The relevant question is whether a particular relationship or interaction compromises, or reasonably appears to compromise, impartiality.
The Australian Guide to Judicial Conduct distinguishes ordinary professional association from relationships whose closeness may require disclosure or disqualification. Its guidance is contextual: familiarity alone is generally insufficient, while a particularly close social relationship can raise a different issue. Guide to Judicial Conduct
The High Court’s apprehended-bias standard asks whether a fair-minded observer might reasonably apprehend that the decision-maker might not approach the question impartially. The Victorian Government Solicitor’s Office explains this principle in its discussion of Charisteas v Charisteas. The test concerns reasonable apprehension, rather than requiring proof that a judicial officer actually decided to favour someone. Victorian Government Solicitor’s Office on apprehended bias
For a parent facing restrictions on time with a child, these distinctions can feel remote. Seeing the other side’s lawyer apparently familiar with people in the courtroom may create a sense of exclusion. That feeling should be met with clear explanations and transparent procedure. It should not be converted into an allegation of a conspiracy without evidence.
The concern becomes materially different if evidence shows someone attempting to exploit a relationship, seek preferential treatment or make improper private representations about a case. Such conduct deserves scrutiny on its own facts.
If evidence establishes that professional relationships were deliberately used to help secure unjustified restrictions separating a child from a safe parent, the consequences for that child should form part of the examination. The existence of the relationship, the improper conduct and its connection to the outcome must each be established. An adverse decision alone cannot do that work.
A parent should be able to understand the basis for restrictions and have a meaningful opportunity to answer the case. Confidence in those safeguards should rest on the fairness of the process, rather than anyone’s personal familiarity with the people administering it.
Victoria Legal Aid explains that a respondent may consent to an intervention order while disagreeing with the applicant’s account. This is consent without admissions. Urgent applications can also be heard without the respondent attending the initial hearing. Victoria Legal Aid’s explanation of hearings and consent
A consent outcome does not itself establish an admission of the allegations. An initial protective decision should not be described as though every disputed fact had been tested at a final hearing. Equally, withdrawal or dismissal does not automatically establish that an applicant lied.
These distinctions matter whenever the history is summarised in later correspondence, reports or proceedings. A careful account identifies what was alleged, what was admitted, what was determined and what remains unresolved. Uncertainty should not disappear through repeated retelling.
Victoria Legal Aid assesses applications for funded representation under its eligibility guidelines. Ordinary grants generally involve financial eligibility, the relevant assistance guideline and an applicable merits or reasonableness assessment. Different forms of assistance have different requirements. A funding decision is not a judicial determination of every allegation in the case. Victoria Legal Aid’s funding criteria
Consider a hypothetical case in which an adviser knowingly encourages a false account, that account forms the basis of an FVIO application, and a party subsequently receives legal aid for related proceedings. This is an illustration of the concern, not a claim about an identified family or the frequency of such conduct.
The later involvement of a funded lawyer would not establish that the lawyer knew of the fabrication. The funding would not validate the original account. Each professional would still need to discharge their own duties in light of the material available to them.
The risk is that an unresolved allegation could acquire apparent authority as it appears in successive documents and is discussed by successive professionals. A report recording that an allegation was made does not necessarily provide independent corroboration of the underlying event. The source and purpose of the document matter.
That distinction should remain visible throughout the case. The fact that several documents repeat the same account should prompt attention to whether they contain separate evidence or simply refer back to the same source.
Advising someone to apply for legal aid is legitimate. Public assistance allows people who might otherwise be unable to participate effectively to obtain representation. Deliberate misuse, if established, lies in the deception or abuse of process. Access to representation is not evidence of wrongdoing.
Although FVIOs arise under Victorian law, parenting proceedings and Independent Children’s Lawyer appointments are governed by federal family law, including when a case is heard in Victoria. Where the court orders an ICL’s appointment, Victoria Legal Aid arranges it and determines whether funding can be approved. Victoria Legal Aid on ICL appointments
An ICL represents the child’s best interests. The role requires an independent view based on evidence, impartiality towards the parties, attention to the child’s views and efforts to ensure relevant material reaches the court. It also includes promoting timely resolution consistent with the child’s interests. Court-endorsed ICL Guidelines
Those responsibilities are especially important when accounts are sharply disputed. An ICL may properly support restrictions that a parent strongly opposes. Agreement with one parent’s position does not establish that the ICL has abandoned independence.
But an appointed ICL who knowingly assists fabrication or pursues an improper tactical objective would compromise the role entrusted to them. A credible concern about that conduct should be examined through the evidence. The professional title should provide no exemption from scrutiny.
The practitioner’s actual role must also be identified accurately. A lawyer who undertakes ICL work in other cases is not automatically the appointed ICL in a particular dispute. Responsibility should be assessed according to what the person actually did and the capacity in which they acted.
The Federal Circuit and Family Court explains that its response to relevant allegations includes considering protective interim measures and obtaining evidence promptly. Protection and the examination of the underlying concerns are both part of the process. How the Court considers safety and risk
For a child, the interval between an interim decision and a later hearing is lived experience. Where restrictions are necessary, that interval may provide vital safety. Where restrictions are unnecessary, it may mean losing ordinary contact, changing routines and becoming less familiar with a parent who previously played a substantial role.
A hypothetical case in which someone deliberately prolongs unjustified restrictions raises a particular concern: the circumstances created during the delay may themselves become part of the later dispute. The child may then need support to restore a relationship that the process unnecessarily disrupted.
That possibility is a reason for timely evidence gathering and review. It is not a reason to presume that every adjournment is tactical, every restriction is excessive or every child’s reluctance has been manufactured. The explanation must be established in the individual case.
The Federal Circuit and Family Court’s guidance identifies risks associated with intense parental conflict, including emotional, social and behavioural difficulties and disruption to children’s sense of security. It also warns about involving children in adult hostility, including using them as messengers or making them feel unable to express affection for the other parent. The guidance distinguishes parental conflict from family violence. Parental conflict and its effects on children
Where deliberate misuse creates unnecessary restrictions, a child may lose school routines, meals, celebrations and the small, repeated interactions through which relationships develop. Where it prolongs conflict, the child may experience uncertainty or pressure to take sides.
These are potential consequences that require attention to the child’s circumstances. They should never be inferred solely from the existence of litigation. Children’s safety may require separation from a parent, and the fact that a parent wants more contact does not establish that more contact would be safe.
The corresponding principle is equally serious: where contact with a safe parent has been unnecessarily disrupted through deliberate deception, the child’s loss should be recognised. A final decision cannot replay an earlier stage of childhood. Restoring arrangements may address what happens next, but it cannot recreate everything that was missed.
Professional advice should take account of those consequences. A child’s relationship should never be treated as an expendable means of increasing pressure on an adult. Where evidence establishes that someone deliberately used it that way, accountability should address the harm as well as the procedural misconduct.
Victoria Legal Aid may investigate whether an ICL has met its practice standards. The Victorian Legal Services Board and Commissioner can receive complaints about professional conduct. An application to remove an ICL is determined by the court; a complaint to Victoria Legal Aid does not itself remove the ICL or change a court order. Victoria Legal Aid’s complaints guidance
A useful examination identifies the disputed statement or action, the evidence said to contradict it, the practitioner’s involvement and the basis for saying the practitioner knew of the problem. Concerns about improper influence should identify the relevant relationship or communication and explain its connection to the decision in question.
Those requirements protect the integrity of accountability. Suspicion alone cannot establish deliberate misconduct. Neither can an opponent’s confidence, a practitioner’s reputation or an outcome one parent considers unfair. But specific evidence deserves a substantive response, including where the practitioner is experienced or well connected.
There is also a case for improving the process before a complaint becomes necessary: clear records of findings and unresolved allegations, timely access to evidence, appropriate handling of relevant relationships, and sufficiently prompt review of restrictions affecting children. These safeguards support people seeking protection as well as people answering an application.
Any evaluation should examine the safety achieved and the consequences of unnecessary restrictions. Counting completed cases cannot, by itself, answer either question. The quality and timeliness of decisions matter because families live with the results.
Victoria’s family violence system should be able to provide urgent protection and withstand scrutiny of how its powers are used. Lawyers, ICLs and judicial officers have distinct responsibilities within that system. Each person’s conduct should be assessed fairly against the responsibilities of their role.
Where deliberate involvement in misuse is established, accountability should reach everyone who knowingly contributed. Professional expertise and professional relationships must never become a means of securing unjustified separation between a child and a safe parent.
A child’s wellbeing must never become the price of an adult’s manufactured legal advantage. Professional expertise carries a responsibility to prevent that harm, and accountability where it is deliberately used to cause it.