Allegations of child abuse can raise issues across family law, child protection and criminal proceedings. Each jurisdiction serves a different purpose and applies its own legal requirements.
In parenting proceedings, the court’s focus is the child’s best interests, including their safety. In criminal proceedings, the prosecution must prove the elements of a particular offence beyond reasonable doubt.
Understanding this distinction is essential when considering allegations, evidence and potential outcomes.
Section 4(1) of the Family Law Act 1975 (Cth) defines abuse of a child to include:
The definition therefore extends beyond physical injury. It also recognises serious psychological harm and neglect.
Allegations involving sexual assault or other sexual offending against a child may also lead to a separate criminal investigation.
In M v M (1988) 166 CLR 69, the High Court addressed allegations of child sexual abuse in the context of parenting arrangements.
The decision established the importance of assessing whether proposed arrangements would expose a child to an unacceptable risk of sexual abuse. This protective assessment is distinct from determining whether a criminal offence has been committed.
A court may need to assess future risk even where it cannot make a positive finding that abuse occurred in the past. However, the assessment must be grounded in evidence rather than speculation.
Assessing unacceptable risk involves considering the available facts and circumstances, the nature and magnitude of the potential harm, and whether protective arrangements could adequately manage the risk.
Relevant questions may include:
In Isles & Nelissen [2022] FedCFamC1A 97, the Full Court clarified the distinction between proving past events and assessing future risk.
The unacceptable-risk assessment is a predictive, evidence-based exercise. It is not simply a requirement to prove that future abuse is more likely than not.
When a family-law court makes findings about alleged past abuse, the applicable civil standard is the balance of probabilities.
The principles discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 recognise that serious allegations require careful consideration of the quality and strength of the evidence.
Briginshaw does not create a higher standard of proof. Describing it as the “higher end” of the balance of probabilities can therefore be misleading.
Assessing an unacceptable risk of future harm is a separate task from deciding whether a past allegation has been proved.
The child’s best interests are the paramount consideration when a court makes parenting orders.
Under the current statutory framework, relevant considerations include arrangements that promote the safety of the child and their carers, the child’s needs and views, and the benefit of significant relationships where it is safe to maintain them.
The court considers the individual circumstances. There is no automatic outcome merely because an allegation has been made or because criminal charges have not resulted.
A family-law risk assessment does not amount to a criminal conviction.
In a criminal prosecution, the court considers the elements of the specific offence charged. The prosecution must prove those elements beyond reasonable doubt.
Family-law proceedings instead determine appropriate parenting arrangements and protective measures. Different purposes and standards mean that outcomes in one jurisdiction do not automatically determine outcomes in another.
These matters require careful handling, particularly where family-law proceedings, protective orders and criminal allegations overlap.
George Sten & Co can advise on criminal investigations and charges, review the prosecution evidence and explain the available defence options. Separate family-law advice may also be needed about parenting arrangements or orders.
Call (02) 9261 8640 to arrange an appointment. For urgent criminal law assistance, call 0412 423 569, available 24 hours.