Sexual Abuse in Parenting Matters

In Australia, sexual abuse allegations are treated with utmost seriousness in family law proceedings. Under the Family Law Act 1975, the primary consideration in parenting cases is the best interest of the child, and specifically their physical safety and emotional and psychological wellbeing. The Federal Circuit and Family Court of Australia (the court) must carefully balance all of the factors in each case to determine the best interests of the child, a particularly challenging task when there are serious but unsubstantiated allegations of child sexual abuse. This article looks at the impact of sexual abuse allegations in parenting matters. 

Child Sexual Abuse

Child sexual abuse occurs when a child is involved in or exposed to sexual behaviour that is inappropriate for their age. It includes exposure to sexual acts and pornographic materials, inappropriate touching and sexual penetration. Children who are victims of sexual abuse often experience significant bodily harm, including injury and infections, and invariably also serious emotional and psychological impacts.

When there are allegations of sexual abuse, the court’s first priority is to protect the child from harm. This consideration takes precedence over the parents’ wishes and any desire they have to exercise parental responsibility towards the child. This does not mean that the court simply accepts every allegation as fact and acts accordingly. On the contrary, the court carefully examines the veracity of abuse claims and determines what is best for the child based on the presented evidence.

Evidence of Abuse

In family law proceedings, the court assesses allegations of sexual abuse against a civil standard of proof rather than the criminal standard (which requires proof beyond a reasonable doubt). Therefore, the court only has to believe the accusation on the balance of probabilities.

However, it can be challenging to reach even this lesser standard of proof in such cases. Due to the very nature of the act, establishing sexual abuse of a child within the family can be incredibly difficult given a lack of material evidence and conflicting testimonies. Depending on their age, children are often incapable of understanding or communicating sexual abuse or are reluctant to make sexual abuse allegations against their parent.

In cases of alleged sexual abuse, the court is compelled by evidence such as expert reports, police reports, child protection investigations, and the submissions of independent children’s lawyers. While this evidence is gathered and evaluated, the court may take a conservative approach that protects the interest of the child by ordering supervised contact with the parent.

The court is less likely to find affidavit evidence of one party alone to be sufficient evidence of sexual abuse. However, courts are also alive to the possibility that a child could be left at great risk if it takes too strict an approach to establishing abuse. As a result, the court must balance factors such as the credibility of witnesses and the consistency of the presented evidence, while maintaining a tight focus on the best interests of the child.

False Accusations and Parental Alienations

Of course, with any contentious family law matter, there is always a chance that someone will make a false accusation of abuse. Studies have shown that in Australia, false accusations of abuse are quite rare. When someone does make exaggerated or completely fabricated claims, it is usually intended to punish the parent or deny them access to their child. Such cases can be devastating for both the accused parent and the child.

Sometimes, false allegations are one parent’s attempt to damage the child’s relationship with the other parent. The court is aware of the potential for these allegations to occur as part of a wider campaign of parental alienation. Parties should be aware that the court takes a dim view of parental alienation. When the court determines that there has been parental alienation, it will often order that the offending parent have reduced contact with the child. This is intended not so much as a punishment, but rather a recognition that encouraging alienation demonstrates a lack of maturity and commitment to the best interests of the child.

Potential Outcomes

When the court does identify a risk of sexual abuse, it has several options to protect the best interests of the child. When making a determination, the court considers the child’s age, the nature of the relationship between the child and adult and the impact of unequal power and intimidation. The court must determine whether contact with the alleged abuser poses a risk to the child and whether they should order measures to minimise the risk to the child.

The court can order:

Suspension of contact

In the most serious cases, the court can suspend all contact between the child and their alleged abuser, either in a temporary measure or on a more permanent basis, depending on the evidence and the specific circumstances.

Supervised contact

If the parent poses a risk to the child, then the court can order supervised visitation. This allows a child to maintain a relationship with their parent while in a controlled and safe environment.

Therapeutic Interventions

In some cases, the court might recommend or mandate that the child or accused parent undergo counseling, family therapy, or rehabilitation.

Restraining Orders

The court does not issue Family Violence Orders, as they are issued by the relevant state or territory court to stop an alleged abuser from attempting to approach a child or other parent. However, the court will take into account the terms of the restraining order when making parenting decisions. It is important to note that as a federal court, the parenting decisions of the court supersede the orders of the state or territory courts.

Contact our family lawyers at Go To Court on 1300 636 846 for advice about establishing sexual abuse allegations in a parenting matter, or any other family law issue.