Under the Family Law Act(the Act) child abuse can include any physical or sexual assault against a child, or a sexual activity where a child is used as an object for sexual gratification.
Under s 4(1) of the Act, abuse of a child means:
· an assault, including the sexual assault of a child; or
· a person (the first person) involving a child in a sexual activity with that first person or another person in which the child is used directly, or indirectly as a sexual object for the first person or another person where there is unequal power in the relationship between the child and the first person; or
· causing a child to suffer serious psychological harm, including, but not limited to, when that harm is caused by the child being subject to, or exposed to family violence; or
· serious neglect of a child.
The s 4(1) definition of abuse in the Act was derived from a number of court cases, but it was the matter of B and B; M and M (1988) 166 CLR 69; (1988) FLC 91-979 where the High Court formulated the test which was to be applied during some instances of child sexual abuse. The test that was set out by the Court involved three steps and the following three questions had to be asked when making a decision:
1) Is there a risk of sexual abuse occurring if custody or access is granted?
2) What is the magnitude of that risk?
3) Would granting custody or access expose a child to an ‘unacceptable risk’?
The Court will generally make their decision taking into account the best interests of the child and if a positive finding is made, then the civil standard of the balance of probabilities will be applied – but at the “higher end” of the standard in accordance with the decision in Briginshaw v Briginshaw.