Child abuse can be closely linked to domestic violence and is a common cause of parental separation. However, child abuse does not necessarily cease as a result of a separation.
Family law proceedings will often follow a separation where a parent seeks to protect a child from being abused, whether by the other parent or another family member.
Under the Family Law Act 1975, abuse in relation to a child is recognised to extend beyond child sexual abuse and encompasses emotional and psychological abuse and neglect of a child.
Abuse, in relation to a child is defined in section 4 of that Act to mean:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
The High Court of Australia in B and B (1988) FLC 91-978 and in M and M (1988) FLC 91-979 determined the test to be applied when the Court is considering whether or not to grant a party custody or access (these days considered in terms of “living with” and “spending time and communicating with”) in cases involving allegations of child sexual abuse. The family courts will not make an order providing a parent with custody of or access to, a child “if that custody or access would expose the child to an unacceptable risk of sexual abuse” (M and M, at p 77,081).
Unless the court is satisfied on the civil standard of proof, the court need not make a positive finding as to whether the alleged sexual abuse occurred or not.
The “unacceptable risk” test is applied by the courts in determining where a child lives and with whom a child spends time as well as conditions which apply whilst a child is in the care of or spending time with a parent.
The test requires that the Court assesses the “chances” of the risk occurring and the magnitude of potential harm if it did occur. The Court must consider then the advantages and detriments of the child living with or spending time with the concerned. The nature of the risk must be identified as well as the degree of risk that may occur and the harm that may be caused for a child if it did occur. The Court must evaluate the risks and the options available, all in the context of what is in the best interests of the child.
Where the court makes a finding of unacceptable risk, the primary care of a child may be changed. The court may also make interim orders in case of alleged child abuse, including various terms and restrictions to ensure that the child’s best interests when spending time with a parent.
However, the courts are slow to totally exclude even an abusive parent from a child’s life. Instead, in appropriate cases, the court will often put in place protective measures to apply whilst the child is spending time with a parent, such as supervised time at a contact centre. It is not the role of the court to punish a delinquent parent or to concern itself with justice to the “innocent parent”.
The courts’ concern is with what is determined to be in the best interests of the child. Best interests can often lie in giving the opportunity for restoring the relationship between parent and child and ensuring that conditions are in place to ensure that that may occur in a safe environment for the child.
What next? | Family Lawyers Brisbane
If you have concerns regards abuse of a child and protecting that child post separation, contact LGM Family Law and speak to one of our experienced Brisbane family lawyers about what steps can be taken to best ensure the safety of the child. Call us today for a complimentary 15-minute phone consultation on (07) 3506 3651.
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