Part 2 – Child Abuse

“Abuse of Children is abhorrent and unacceptable to any right thinking person.  Where it is found to have occurred or to be occurring, or where it is found that there is an unacceptable risk of it occurring, the weight to be given to the need to protect the child or children from that abuse must, necessarily, be greater than the weight given to the benefit to the child or children having a meaningful relationship with the parent who is the abuser or at whose hands the child is at an unacceptable risk of suffering abuse.”

  • Justice Forrest at paragraph 20, Baldwin & Baldwin [2014] FamCA 43

You will recall in Part 1 of this series [hyperlink to first article], we outlined the primary considerations of the court when deciding parenting applications.  We also outlined the brief facts and issues of Baldwin & Baldwin [2014] FamCA 43, a recent judgment in the Family Court of Australia.

Primary considerations for the best interests of the child

This part examines the application of the ‘best interest principles’ by Justice Forrest in the recent matter of Baldwinheard in the Family Court of Australia.

When applying the primary considerations, at paragraph 20 His Honour observed:-

In a parenting case, where allegations of abuse of a child by a parent or allegations of there being a risk of harm to a child in the parent’s unsupervised care, are made these two primary considerations and their interplay take on critical importance”

In 2012, the Family Law Act 1975 (Cth) (as amended) (hereinafter referred to as “the Act”) was amended to include section 60 CC (2A), which requires the court to place greater emphasis on the need to protect a child from harm or being subjected to or exposed to abuse, neglect or family violence, than for the child to have a meaningful relationship with both parents.

The importance of considering allegations of abuse

His Honour made it clear that careful consideration needs to be given when allegations of sexual abuse arise:-

“Carefully determining appropriate parenting orders in cases where abuse is alleged to have occurred or where it is alleged that there is an unacceptable risk of it occurring in the future is amongst the most onerous of the responsibilities that fall on this court.

The onus of proof for determining whether an allegation of abuse has occurred

In his judgement, His Honour referred to the decision of the court in M & M ([1]) and referred to section 140 of theEvidence Act 1995 (Cth) and stated:-

The Court should not make a positive finding that an allegation of abuse is true unless it is satisfied on the balance of probabilities that the allegation has been proved, regard being had at the same time to the seriousness of the allegations, the inherent likelihood of that which has been alleged actually occurring, and the gravity of the consequences flowing from a particular finding.” At paragraph 23

At paragraph 24, His Honour concluded:-

“… In those cases where the Court is unable to make a positive finding that an allegation of abuse is true, but nevertheless at the same time be satisfied that parenting orders for a child to live with a particular parent, or to spend time with a particular parent, would expose the child to an unacceptable risk of sexual advise or other harm,such parenting orders should not be made.”

His Honour considered the allegations by the mother that the father acted sexually inappropriate with the child during bath time, further there were other incidents in the mother’s evidence before the court which showed the father’s conduct during the relationship which included alleged inappropriate behaviour with two underage women and alleged inappropriate behaviours with a child at a playground.

His Honour concluded at paragraph 109:-

“Whilst I am satisfied that the father has personality flaws, including poor anger management, a lack of judgment, inappropriate setting and maintenance of boundaries including in his direct interaction with other persons, and a willingness to tell lies in an attempt to protect himself and portray himself in a better light than the truth would portray him in, I am not satisfied that he was sexually abusing their fifteen month old child in the bath that evening in front of the mother as she asks the Court to accept. Furthermore, the preponderance of the evidence, including all that evidence that has been led that goes to the father’s sexual behaviour, does not convince me that the child, now 5 years of age, is at an unacceptable risk of being sexually abused by his father if he spends unsupervised time with his father.”

When considering the evidence before him, His Honour was not satisfied that the child would be placed at an unacceptable risk of being sexually abused by the father.

Justice Forrest did place precautions in the orders to protect the child from exposure to family violence.  In part 3 of this series, we will examine how His Honour regarded the allegations of family violence in this matter.