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Father Accused of Rape Denied Access To Son

The Australian recently reported that the father of a four year old boy has no access to his child. The basis for this decision was that the child’s mother alleges that notwithstanding the mother and the father had a brief relationship, this relationship ended when the father allegedly raped the mother. The father has faced criminal charges for this allegation.

Another element to this matter of distinctiveness is that the child had been raised to believe that his grandmother was his mother. The article does not report whether it was the child’s maternal or paternal grandmother.

The article does report that “had Justice Brown presided over the case as a criminal trial with no jury he would have found the father not guilty of rape.” This opinion seemingly was given based on issues with the mother’s credibility as much of her evidence was considered to be coincidental to Justice Brown. However, whilst credibility is an issue when giving evidence in family law matters, Justice Brown was not required to judge the criminal matter. When determining the family law matter, Justice Brown proceeded with caution and stated that “if the allegation of rape is true, it is likely to be emotionally difficult…for the mother to support the child having any form of relationship with the father. Even if it is not true she will remain chained to her concoction indefinitely, with devastating emotional consequences for both her and the child.”

Therefore, whilst the law provides that a primary consideration when determine what is in a child’s best interests is the child having a meaningful relationship with both parents, the other consideration is the need to protect the child from physical or psychological harm. This is set out in section 60CC(2) of the Family Law Act 1975 (Cth). Justice Brown considered that in these circumstances, there could be no avoidance of emotional harm to the child and any positives from the child having a relationship with his father would be negated by the conflict and confusion to which the child would be exposed.

It is interesting to note that the article does not report on the following key factors that are important to any family law matter:

  • Whether any order was made for the child to spend any time with the father at any point in his life. It is noted however that the mother has sole parental responsibility for the child, which means she has the power to make all the long term decisions concerning the child without any consultation with the father.
  • The involvement of the child’s grandmother in the proceedings as a significant person in this child’s life and the nature of the child’s relationship with her.
  • Whether the child is aware of who his biological parents are, notwithstanding the involvement of the grandmother and the father being denied spending any time with the father.
  • The timing of the application for parenting Orders in relation to the criminal charges against the father.

This is a highly controversial matter with a distinctive set of fact. However, at Armstrong Legal, no family law problem is outside of the scope of work we do. Therefore, no matter what your family situation, do not hesitate to contact Armstrong Legal for advice on dealing with your matter.

Image Credit – Kantver ©

Written by Bree Staines on April 26, 2017

Bree has a long held passion for family law, as she believes the law can be a mechanism to achieve positive and just change and resolutions for her clients. The diligence Bree puts into her work ensures she is always has a comprehensive understanding of the law and will be striving to achieve her client's goals, both efficiently and cost effectively. View Bree's profile

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