The Family Law Act defines abuse of a child as an assault, including sexual assault; or a person involving the child in sexual activity. Section 61DA(1) of the Family Law Act requires that the Court when making a parenting Order to apply a presumption that is in the best interest of the child for the parents to have equal shared parental responsibility for the child.
This presumption, however, does not apply in cases where there are reasonable grounds to believe that a parent has engaged in abuse.
The Court recognises that abuse adversely affects children and will effect what parenting Orders should be made. A primary consideration when considering a parenting Order is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse.”
Case law has made it clear that the paramount issue when making parenting orders is whether the Orders are in the interests of the welfare of the child. This paramount issue does not change when there is an allegation of sexual abuse.
Although findings on the disputed allegation of sexual abuse will have an important and sometimes a decisive impact on a resolution of that issue, the Family Court is not under the same duty to resolve in a definite way the allegation of sexual abuse as if it were a Court exercising criminal jurisdiction.
The Family Law Courts apply a strict civil standard, being on the “balance of probabilities”. Without limiting the matters in which a Court may take into account, in deciding if satisfied the assault took place, the Court is to take into account the following:
The Court is required to weigh up the risk of sexual abuse to the child, with the benefit to the child to spend time with both parents. The Court will consider whether the child or children are likely to be exposed to an unacceptable risk of sexual abuse when considering what parenting Orders should be made.
The difficulty in sexual abuse cases is that the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim. Further, difficulties arise when the victim is very young and does not give a direct statement that could be subject to forensic testing.
Depending on the nature of the allegation, the court may take a cautious approach about the time that a child spends with the “alleged” offender where there may be a progression of time, which may or may not be supervised. In other cases, the court may consider it necessary for there to be an Order, not allowing anytime between a child and the alleged perpetrator.