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Derek Legal Blog

Author: Derek Legal


Derek Legal Blog

How Does the Family Court Deal With Access to a Child When There is an Allegation of Sexual Abuse?

The Full Court of the Family Court considered the question in Johnson v Page [2007] Fam CA 1235.

The Court decided as follows:

1.       The decisive issue is and always remains the best interests of that child. All other issues are subservient.

2.       The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

3.       Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

4.       The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

5.       The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

6.       The onus of proof in reaching that conclusion is the ordinary civil standard.

7.       But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

The Briginshaw civil standard of proof is on the balance of probabilities, but that standard must take into account the seriousness of the allegations.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 11 July 18

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