Why the court is so cautious about child abuse claims

by Peter Magee on January 10, 2012

Peter MageeAn article titled “Rights of Child Supreme in Abuse Claims” was published in the Sydney Morning Herald on 23 August 2011.

The opinion piece was provided by Diana Bryant who is a chief justice of the Family Court of Australia. In this article Chief Justice Bryant explains the difference between the level of proof of harm required in criminal proceedings as opposed to family law proceedings. A judge does not have to find that the allegation of child abuse has occurred on the balance of probabilities in order to refuse to make an order for contact between a child and a parent. The focus for a judge is if such an order would expose a child to an unacceptable risk of abuse.

On the one hand this may seem unfair to the parent who has been accused of abusing  the child. On the other hand, Chief Justice Bryant makes the point that “the Court is ultimately deciding what is in the best interest of the child, not whether abuse can be proved to have occurred”. Any potential injustice to the other parent is not the primary concern of the Court, rather the best interests of the child are the paramount concern of the Court.

Chief Justice Bryant raises the difficult balance between protecting children from the possible risk of harm with preserving a relationship that they may have with a parent.

While the Court has an overriding duty to promote the “best interests” of the children, and most people would agree that the “best interests” of children should come first, what does or should this mean?

On the one hand it makes sense to have a cautious approach when dealing with allegations of abuse to a child. To expect that the allegation be proved may be exposing a child unnecessarily to risk of abuse.  On the other hand to “simply act on allegations raised by one side” may sever a child from a relationship they have with a parent where no abuse has occurred.

On both sides there would be parents who were convinced that their children have been abused by the other parent and feel that their matter had “fallen through the cracks” with orders being made that exposed their child to abuse in the future. On the other end of the spectrum, there would be parents who say they have been falsely accused of abusing their child as part of a strategy to deny them access to that child. Both these scenarios would result in a significant amount of pain and resentment in those who have experienced them first hand.

If you are involved in Family Court proceedings where abuse against a child has been alleged and you would like further advice please do not hesitate to contact our offices on 9261 4555.

Leave a Comment

Previous post:

Next post: