Sex Offence, Indecent Assault & Child abuse laws in Australia

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There are some crimes that are considered more abhorrent when compared to others, and any offence involving child abuse is deemed to be particularly heinous. 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.

What are the circumstances which require mandatory notification to child welfare authorities?

A number of professions under State and Territory law require that if a person on reasonable grounds holds concerns that a child may be suffering abuse, they must report their concerns to the relevant welfare authority irrespective of any other law that may require confidentiality. Some of the professions that are affected by the requirement includes teachers, doctors and other medical or mental health professionals, along with community service workers, just to name a few.

In the legal realm, the Act also compels any court staff members, family and child counsellors and dispute resolution practitioners to report any information or suspicions of child abuse to the relevant child welfare authority. Therefore, a person in the course of performing their duties, functions or exercising of their powers under s 67ZA(3), that if the person has reasonable grounds for suspecting that a child:

• has been ill treated, or is at risk of being ill treated; or
• has been exposed or subjected, or is at risk of being exposed or subjected to behaviour which psychologically harms the child, must notify the prescribed child welfare authority of their suspicion.

Notification of child abuse can be done to any court that exercises a family law jurisdiction by filing a Notice of Child Abuse or Family Violence – Form 4 with an affidavit that sets out the evidence in which the allegations are based. The court must then consider if an order should be made in regards to the allegations.

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