Payback for false allegations

Across Australia there are men who have been falsely accused of domestic violence and suffered the dreadful consequences of violence orders based on a pack of lies. But since courts refuse to take action over perjury in such cases, the accuser walks free.

Now there may be a new legal option for victims of lying women to get some justice. A few weeks ago, the High Court gave the green light to a South Australian man (MT) to proceed with his case (MT v SE) of malicious prosecution against his ex-wife over her numerous false violence allegations.

Originally the District Court had ruled that a civil action for malicious prosecution was not possible in domestic violence cases. The Court of Appeal then overturned that decision leading to the ex-wife appealing to the High Court to try to stop MT's action.

And now the High Court has turned down her appeal. Wow! Won't that set the cat amongst the pigeons?

Just days before the High Court announced its decision, a University of South Australia law professor, Sarah Moulds, wrote about the MT v SE case warning about the "chilling effect" of successful malicious prosecution cases on "victim-survivors" who might fear their accounts of violence will not be believed by police. This could result in "fewer reports of domestic violence, leaving many without the protection they desperately need," claimed Moulds.

No mention, of course, of the chilling effects of false allegations on accused men and their children, who are often deprived for years of contact with their dads as a result of these accusations. Clearly this professor believes the law should only protect women.

Included in the MT Court of Appeal judgment was this example of the threats made against MT by his wife when she objected to him seeking more time with his children:

On 25 July 2014, [the respondent] threatened my ability to work as a teacher and blackmailed me in regard to my requests to spend more time with my son by stating in Facebook messages 'If you want continued phone contact [with our child] and upadates [sic] [regarding our child] I'd leave that right now. Play hard ass with me and I'll talk to the educaiton [sic] department and the courts. Don't' [sic] try it."

When MT went ahead with efforts to seek more time with his kids, the wife then denied him contact and he lost his teacher's registration as a result of the physical, emotional and sexual abuse allegations included in her application for intervention orders.

So now he is mounting an action for malicious prosecution, seeking over $104 k for lost earnings plus loss of reputation, and damage to his character – claiming his wife had maliciously used the intervention orders without reasonable cause.

In malicious prosecution, an individual claims that proceedings were initiated against them by another person, the police or the state, in circumstances where they weren't warranted, were initiated maliciously and without reasonable cause. These actions are normally instituted against prosecuting bodies or police, but there is good law – which the High Court has obviously upheld – to say that, where a citizen's information is primarily responsible for police taking action against another citizen, and the police cannot really be sure about whether this is true, the citizen can be sued personally for malicious prosecution.

Such an action is normally only available where there has been a criminal prosecution, but the law also allows it in some civil actions. In MT v SE the critical issue was that MT claimed that it was his wife, rather than the police, who actually was responsible for the intervention orders – since she'd supplied the false information which the police had relied on to take out the actual orders. It was argued by the wife's lawyers that she could not be sued because the police are responsible for taking out the orders, and that she was only, in effect, a witness.