Sexual Abuse
Sexual abuse is where a child has been exposed or involved in sexual behaviours that are manipulative and inappropriate to their age.
Examples of sexual abuse include sexual penetration, inappropriate touching, exposure to sexual acts and pornographic materials.
Allegations of sexual abuse are a serious risk factor to the children and must be disclosed to the Court in a party’s Notice of Child Abuse, Family Violence or Risk. The harm experienced by a child as a result of these behaviors is highly significant in the child’s wellbeing. Harm resulting from sexual abuse includes bodily injuries and infections, disturbances and impaired emotional development.
When a party raises concerns regarding sexual abuse the court is required to consider all evidence presented and may only make a positive finding that the allegation is true if it is satisfied with the civil standard of proof. This means that the Court is only required to be satisfied that there is a possibility, rather than a probability of this risk being present to a child.
Accordingly, the Court will typically adopt the following three step process as determined in the recent family law case of Isles and Nelissen [2022]:
- establish on the balance of probabilities whether past events occurred and if they posed a risk to the children;
- establish whether there is the possibility of unacceptable risk for the child. This may include consideration of historical risk, but must also be satisfied there is risk of ongoing or future risk; and
- determine how this future risk can be mitigated.
To help in making these decisions, the court will often direct the parties to undertake a Child Impact Report or Family Report. This is where the parties, children, and at times, other significant people, will meet with a Report Writer (usually a psychologist), who will interview the parties and children and determine the risks present to the children.
In Court proceedings where this is allegations of risk, the Court may also appoint an Independent Children’s Lawyer to be apart of the proceedings. The Independent Children’s Lawyer does not act for the children in the traditional sense of how a lawyer acts for a client, rather they act as an independent party to the proceedings and will make submissions to the Court based on the evidence provided through the expert reports as to what decision the Court should make that will be in the best interests of the children.
If you have concerns for a child’s safety and wellbeing contact the Department for Child Protection to discuss your concerns on 1800 622 258.
If you would like to know more or to book an appointment, please contact us at Armstrong Legal and talk to one of our specialist family law solicitors on 02 9261 4555.
