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As requested evidence of "Lives with Parents" making false allegations to enact vengeance or for monetary gain.

Krach & Krach [2009] FamCA 507 (5 June 2009) said
Overviewing this case shows a not uncommon pattern in Family Court disputes with conflict and bitterness between the parents at the end of the relationship, a pattern of reduction in contact between the children and the non-residential parent, the re-partnership of the non-residential parent, escalating allegations from the residential to the non-residential parent starting with less serious allegations and moving up to more serious allegations.

Warning

The links to the actual decisions may contain disturbing material


1. High Court Appeal

In the Matter Of: N Appellant/Wife and S Respondent/Husband and the Separate Representative [1995] FamCA 139 (20 December 1995)

77 - In our view the course adopted by the trial Judge was perfectly open to him in the circumstances of the case. He had concluded that the allegations relating to sexual interference of the child by the father had not been made out. He then had the difficult task of determining what was best for the long term future of the child, given that the mother was unlikely to accept the findings of the Court. One of the options open to him was to conclude that the welfare of the child required there to be an access regime created with the hope that the access regime would eventually turn out to be successful. That is the course that his Honour adopted and in our view it cannot be said that his Honour in so doing acted upon any wrong principle. In our view no basis for allowing the appeal has been made out.


2. Davidson & Davidson [2010] FamCA 5 (14 January 2010)

Davidson & Davidson [2010] FamCA 5 (14 January 2010)

43 The court must find that it can have no confidence in the mothers capacity for objective recollection. It can have no confidence in her capacity to give an accurate account of her own history, an accurate account of observed behaviour of the children or others, an accurate account of conversations with experts involved with the children or an accurate account of the childrens own statements. When holes in her evidence were pointed out, the mother was swift to attribute responsibility to others or to pull new allegations or explanations from thin air. Although it was her case that she only ever acted on the advice of experts when making the allegations of abuse, I am not satisfied that was the case.
 
44 It is to be hoped every parent thinks his or her children are special but the sense the mother gave was of needing her children to be seen as exceptional and she saw behaviour which others might see as problematic (such as autism or cross-dressing) as demonstrating their particularity. A benign but illuminating example of this is the answer the mother wrote on the document completed for the childrens referral to a pre-school officer in October 2009 which contains a question about the language spoken at home with the child who is to commence school. In respect of L, the mother reported the languages spoken at home with him as English, Spanish, Mandarin and Arabic. L may be having lessons in one or more of those languages and may have family or friends who speak one or more of them. There is no evidence to suggest these are the languages used with him in the home. He is a flamboyant and dramatic little boy and if he were multi-lingual it is inconceivable he would not have drawn attention to this with one of the many professionals with whom he spoke.


3.Krach & Krach [2009] FamCA 507 (5 June 2009)

Krach & Krach [2009] FamCA 507 (5 June 2009)
"There is no evidence that [the father] has any propensity to sexually offend, and in contrast, presents as a well balanced individual, who has his childrens best interests at heart.

[The father] is in a stable and long-term relationship. His partner, [the stepmother], was also interviewed regarding these issues. There is a high level of consistency in the explanations that the father and his partner provided regarding the allegations.

Overviewing this case shows a not uncommon pattern in Family Court disputes with conflict and bitterness between the parents at the end of the relationship, a pattern of reduction in contact between the children and the non-residential parent, the re-partnership of the non-residential parent, escalating allegations from the residential to the non-residential parent starting with less serious allegations and moving up to more serious allegations.
"

367     Having heard and having regard to all of the evidence, rigorously tested, over three weeks and to the thoughtful and thorough submissions of the parties, I am not persuaded that the father represents any risk to the safety of the children in either a physical or emotional sense. I am very comfortable in concluding that the father has not abused them as alleged by the mother or at all. I am not satisfied that the father has even touched the girls in a manner which they think is inappropriate. I am satisfied that the mothers beliefs about the  sexual abuse  are without foundation but that the fact that she holds them and has pursued them with such vigour, represents the greatest danger to the welfare of L and S. I will now consider the findings in the context of the additional factors to which I am required to have regard.


4. Langmeil & Grange (No. 4) [2011] FamCA 605 (3 August 2011)

Langmeil & Grange (No. 4) [2011] FamCA 605 (3 August 2011)
    I am satisfied that the childrens best interests require that the father have sole parental responsibility and that they continue to live with him (when the allegations were made the children resided with the other parent). The mother has reported  sexual abuse  of the children despite seeing them only under supervision. She has continued to allege that the father physically abuses and neglects the children. There was abundant indication in the evidence that she will persist with complaints of this nature.
    Supervision by people aligned with the mother is unlikely to provide adequate protection for the children. Supervision by her former partner Mr Y, for example, proved to be unsuccessful for reasons indicated. It seems to me that the children can spend time with the mother, in a climate of emotional safety, only at a contact centre or under the supervision of persons nominated by the father.
    I appreciate that open-ended orders for supervised time are generally undesirable but I can see no alternative in this case. I cannot see how the fathers proposal for further assessments of the mother would advance the situation, given her unshakeable belief that he is a sexual abuser and the difficulty of enforcement of his proposed order.


5. Hemiro & Sinla [2009] FamCA 181 (17 March 2009)

Hemiro & Sinla [2009] FamCA 181 (17 March 2009)
355. Taking into account the inconsistencies in the childs accounts; the lack of any signs of physical trauma when examined by Dr. Y in 2007; the reliance on drawings made only when with the mother and never duplicated; the absence of anything suggestive of a machine in the childs accounts, save when drawn back to the drawings (save once, very briefly, with Ms. W); the finding the father did not remove the penis pump; the mothers preoccupation with the potential for  sexual abuse  since discovering the pornography; the absence of any, or any sustained, sexual themes in the childs play; the quality of the childs relationship with the father; the childs lack of fear of the father; and the potential for the mother to have distorted the childs reality, as she has distorted her own; I am not satisfied it is more probable than not that the child has been sexually abused by the father or touched by him, in any way, which is sexualised or sexually inappropriate. Nor am I satisfied there is an unacceptable risk the child will be sexually abused by the father or exposed to the potential for  sexual abuse  in his care.
356. I do not doubt the mother believes, and has believed for some years, that the child has been sexually abused. No judgment of this court is likely to move her from that conviction.


6. TKR & CPW [2006] FamCA 72 (22 February 2006) (Full court)

TKR & CPW [2006] FamCA 72 (22 February 2006)
The appeal upheld the original decision made that the child was not at risk of sexual abuse, although it's not really stated well in any particular place as the appeal was against the contact that ha been ordered.


7. Knibbs & Knibbs [2010] FamCA 446 (28 May 2010)

Knibbs & Knibbs [2010] FamCA 446 (28 May 2010)
161. I have dealt sufficiently with matters relating to risk of  sexual abuse  and found there is no unacceptable risk and thus not a need to protect the children in this regard.
162. There is not any case of the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence in the fathers household.
163. There is not any case of the need to protect the children from physical or psychological harm from being subjected to or exposed to neglect in the mothers household.
164. There is however a need to consider the evidence of disclosures by the children to the father of physical abuse in the mothers household, and also consider whether the mothers coaching of the children as to  sexual abuse  allegations against the father is or may be tantamount to abuse such that the children should be protected from the mother.


8. Stamos & Mariakis [2008] FamCA 727 (16 July 2008)

Stamos & Mariakis [2008] FamCA 727 (16 July 2008)
528. It is the combination of all these matters, together with other matters set out in these reasons, which leads me to the conclusion that there is no unacceptable risk to the child of being in her fathers care.


9. Dalziel & Belladonna [2009] FamCA 254 (7 April 2009)

Dalziel & Belladonna [2009] FamCA 254 (7 April 2009)
471. Balancing all the evidence I do not find there to be an unacceptable risk that R will be exposed to sexual or physical abuse in her fathers care. Further, this is a case where I am satisfied the evidence supports a finding, on the balance of probabilities, that the father has not sexually or physically abused R.
472. I must find that R is at risk of emotional and psychological abuse in her mothers care. There is no evidence the mother suffers from any psychiatric or psychological disorder. The court cannot determine the origins of her predisposition to see normal behaviour as sexualised and build castles of abuse on a foundation of objectively unexceptional observations.
473. On the evidence before the court, it is hard to see in what circumstances the mother might change her mind and accept that R has not been sexually abused and is entitled to pursue a healthy and normal relationship with her father. She has been seeing a psychologist for some years and ongoing counselling or treatment is a matter for her. It is possible that reality (that is, a change of Rs residence) may itself effect a change, and she may be able to view R through a lens which does not distort Rs reality.


10. Mackillop & Jell [2009] FamCA 191 (13 March 2009)

Mackillop & Jell [2009] FamCA 191 (13 March 2009)
381. The mother has lost residence of T because I am satisfied that she will not permit T to have a meaningful relationship with the father (when it is in Ts best interests to do so), and that since July 2007 she has maintained and invested in allegations against the father of  sexual abuse  of T with consequences which have been contrary to Ts best interests and constituted emotional abuse of him.


11. In the Matter Of: C and J [1996] FamCA 86 (8 August 1996)

In the Matter Of: C and J [1996] FamCA 86 (8 August 1996)
171. In my view, given the role of an appellant court as outlined, it would be inappropriate for this Court to interfere with his Honour's findings. His Honour has carefully identified each portion of the evidence on which he relies, and there is evidence to support the conclusions to which he came. The trial Judge performed the very task which he was required to perform, namely he evaluated the evidence, made a finding that was clearly open to him on the evidence and then evaluated the relevant considerations and concluded that access was likely to promote the welfare of the children. In my view it has not been shown that he has fallen into any error. In my view the appeal ought be dismissed.


12. KN and Child Representative & NN and JN [2006] FamCA 611 (17 July 2006)

KN and Child Representative & NN and JN [2006] FamCA 611 (17 July 2006)
128. However, in my opinion, the statement from the High Court in M and M earlier cited makes it clear that a finding of unacceptable risk has to be made according to the civil standard. Thus if a Court is confronted with allegations of abuse, it must at least satisfy itself that the allegations support a finding of unacceptable risk according to the civil standard, if a decision is to be made wholly or in part on the basis of those allegations. In other words, unless in this case his Honour was able to satisfy himself that the allegations of abuse supported a finding (according to the ordinary civil standard) of unacceptable risk, he could not rely on the allegations to support his decision. The problem as I identified it earlier, is that it is not clear whether or not his Honour made that finding.

Note

In this case it is the grandparents who are the "lives with" parents so it could be debated that they are not true "lives with" parents. However, it is believed that they are in effect the same as "lives with" parents.


13. Wang & Dennison [2009] FamCA 206 (20 March 2009)

Wang & Dennison [2009] FamCA 206 (20 March 2009)

359. I do not know why the mother acted as she has but her behaviour in not permitting the girls to have a relationship with the father is a serious deficit to her being able to provide for the needs of the children, at least historically. The mothers imagination and capacity to invent allegations of immoral and violent conduct on the part of the father and others associated with him appears to be completely unrestrained by any moral sense of right and wrong. I t is common ground that the mothers life in China was difficult. I do not know to what extent those difficulties have shaped her personality. For whatever reason, the mother appears to me to have no appreciation of truth as an abstract value so that she appears to be readily able to dispense with acting honestly or being truthful when it is convenient for her to do so. This has had tragic consequences for S and N who have been deprived of sharing in the lives of the father and their siblings since 2005 and who were required to give evidence in the Country Court trial. It has been tragic for the father who has gone through a committal hearing, a lengthy criminal trial and this trial on the basis of the mothers allegations of violence,  sexual abuse  and moral misconduct which, I am satisfied, have no foundation in fact.


14. Licha & Wunscher [2007] FamCA 357 (14 February 2007)

Licha & Wunscher [2007] FamCA 357 (14 February 2007)

290. Now that the proceedings have adjusted, it is important the mother moves forward without rancour or ill feeling towards the father. It is essential she recognises, in an unfeigned way the goodwill and trust reposed in her by this resolution, and consign the past to where it belongs. The future is the direction now to be travelled for the benefit of the child under the guidance of both of her parents.
291. In my view the father has been very patient indeed and has never wavered in his journey to ensure that the child has the benefit of two parents, despite the serious allegations made against him. I am sure that, notwithstanding, he bears no ill will against the mother, in circumstances whereby it would not have been an unnatural expectation on his part. With both parents sharing in the childs life, she has a ready opportunity to be happy and become a productive member of the community.


15. Young & Young [2010] FMCAfam 931 (3 November 2010)

Young & Young [2010] FMCAfam 931 (3 November 2010)
141. Notwithstanding the reservations I have about the evidence in the mothers case, it is abundantly clear from the subpoenaed documents that the children have made disclosures of a graphic kind. I therefore cannot rule out the possibility that that which the children assert, has in fact happened, ie, that their father has abused them. Given the state of the evidence, however, I certainly cannot make a finding that this in fact occurred, especially having regard to the higher standard of proof that applies in cases where such serious allegations are made, and where the consequences for the father are so profound. I am comfortable in stating that, in my opinion, the evidence against the father would not lead to a finding of abuse against him by reference to the criminal standard, or the Briginshaw standard. Indeed, it is unlikely that a finding could be made against him on the balance of probabilities.

note

This could be classed as bordeline from the above. It has been classed as false allegations based upon the decision maker clearly doubting the evidence and the appropriateness of the "lives with" parent's evidence and of the evidence of third parties. as per:

138. Overall, I have some doubts about the mothers evidence. I think the evidence that she gave about the relationships she was pursuing with various men, and the exposure of the children to these various relationships during the post-separation period, was evasive. Her failure to disclose her own previous experience of  sexual abuse , reinforced by a contemporary event, also raises issues about her evidence. The mothers failure to give evidence about the childrens disclosures is remarkable. The mothers failure to tell people who she trusts, including her mother, doctor and psychologist about the first disclosure is difficult to understand. The mother has, in my opinion, clearly understated the extent to which these children have been exposed to discussions about the allegation, about the extent to which she has shielded them from her own concerns, and that of the maternal family. Despite her denials, there is more than ample evidence to indicate that the allegations and concerns were repeatedly reinforced in the childrens minds particularly in 2006 and 2007. I cannot rule out the possibility that the mother offered the children inducements to tell their story to third parties. Whilst I believe that the mother has not acted maliciously, it is quite likely that amidst the emotional turmoil caused by the childrens disclosures she has allowed her fears and concerns to drive her actions. In this the mother was closely supported by the maternal grandmother. In short these two fuelled each others concerns whilst at all times completely excluding from their minds other possible explanations for the childrens disclosures.

139. There are aspects of the grandmothers evidence that are unreliable. Where her affidavit is inconsistent with her diary, it is more likely than not that her diary is the more accurate record. However, I am not sure that the records were as contemporaneous as the grandmother asserted in cross-examination. There are inconsistencies between the grandmothers oral evidence, the mothers oral evidence, the grandmothers affidavit, and the diary record. The extent of these inconsistencies is not so great that I would entirely discount the evidence in question, but it does raise issues about the weight to be given to this evidence. I believe that the grandmother, who clearly loves and wants to protect her grandchildren, has actually created an environment in which the concerns about the fathers alleged actions have been continually reinforced. It was clearly inappropriate for certain discussions to take place in the presence of both children as I suspect happened on numerous occasions.

140. It was clearly inappropriate for the mother to lead the discussions that resulted in disclosures, especially the early ones. It was inappropriate for her to seek for the children to republish those disclosures to third parties.
 


16. Stapleton & Hayes [2009] FamCA 437 (25 May 2009)

Stapleton & Hayes [2009] FamCA 437 (25 May 2009)
146. A great deal of the evidence has revolved around facts bearing on the allegation that the children have been subject to or exposed to abuse, either physical/ sexual abuse  while in their fathers care or psychological abuse while in their mothers care. I am satisfied the children have not been and will not be at risk of harm in their fathers care. I am not satisfied they have not been at risk of harm in their mothers care and there are substantial concerns they will remain at risk of harm while they are in her care. That risk relates to their exposure to their mothers actions when her functioning has been impaired, her lack of insight into the need to address her mental health by seeking treatment and maintaining treatment consistently, the restricted and limited relationship they would be permitted with their father while in her care, and the children taking with them into the future the idea they have been the victims of  sexual abuse  and they are unsafe in their fathers care. That reality is their mothers but no basis in fact and there is not apparent any motivation by the mother to examine the situation from any point of view but her own and no encouragement to do so from those close to her. This does present risk of harm to the psychological and emotional welfare of the children and its magnitude is unacceptable.


17. Langmeil & Grange [2010] FamCAFC 12 (5 February 2010)

Langmeil & Grange [2010] FamCAFC 12 (5 February 2010)
316. We have otherwise found no merit in the complaints advanced on behalf of the mother. The appeal will therefore be allowed only insofar as it deals with the order allocating parental responsibility(i.e. grounds surrounding yet again raising sexual abuse failed).


18. Zammit & Zammit [2009] FamCA 265 (7 April 2009)

Zammit & Zammit [2009] FamCA 265 (7 April 2009)

94. Also contrary to those submissions, the weight of the evidence establishes to the requisite standard that  sexual abuse  of P by the father can be excluded since it is highly improbable and ultimately without any credible indicia or support. In other words, this is one of those cases in which it can be comfortably said that the father did not sexually abuse his child and the child is not at risk of harm in his care; it can certainly be said, and I find, that the orders proposed by either parent would not expose P to an unacceptable risk of  sexual abuse  by his father.

95. There was aired at the hearing the prospect that what underlies all this is the mother being seen as manipulative and deceptive or, alternatively, highly emotional and likely to overreact to a situation without intending to be devious. But in the final analysis the ambit of the case makes it unnecessary to make any finding about the genesis of it; it is sufficient to reject the proposition that the mother has, or had, a genuine belief that  sexual abuse  occurred.


19. Donaghey & Donaghey [2011] FamCA 13 (19 January 2011)

Donaghey & Donaghey [2011] FamCA 13 (19 January 2011)
234. I have determined that the father does not pose any risk of harm to the child as alleged against him. J deserves, and needs, to have a meaningful relationship with his father. If he lives with his mother, that will not occur at any time in the foreseeable future, and probably never. The mother has no current, or likely future, capacity (or willingness) to facilitate any substantive form of meaningful relationship between the child and his father. I am completely convinced that, if the child lives with his mother, he will, for all practical purposes, grow up without a father. That is a very significant detriment to him in both the short and long term.

235. If the child continues to live with his mother, he will, in light of my earlier ultimate finding as to risk, suffer the psychological harm identified by Professor Q in her most recent report. This harm is, in my view, very serious. The child needs to be protected from it.


20. Merton & Merton [2007] FamCA 1350 (19 November 2007)

Merton & Merton [2007] FamCA 1350 (19 November 2007)
145. On balance, I am unable to conclude that the level or degree of the risk of  sexual abuse  of the child by the father outweighs the possible benefit to her from spending time with the father, so that, in my view, there is not an unacceptable risk of  sexual abuse  to the child from spending time with the father.

146. Further, in relation to s 60CC(2)(b) of the Act, I am unable to conclude, on all of the evidence, that there is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse from the child spending time with the father.


21. Campbell & Wilson and Anor [2009] FamCA 1260 (23 December 2009)

Campbell & Wilson and Anor [2009] FamCA 1260 (23 December 2009)

92. I have carefully considered all of the evidence, and the submissions, and am satisfied that even on the accumulation of factors principle being the seventh in the Honourable John Fogartys summary of principles, there is not an identified risk of  sexual abuse  of the child by the father. In particular, not only is it the case that none of the allegations is proved but, as submitted by Ms McDiarmid, there are significant internal inconsistencies and discrepancies between what the mother and the maternal grandmother described to Dr G, and other evidence (p2); there are so many inconsistencies and discrepancies in the evidence surrounding each particular incident or allegation (p5); and there was a changing nature in the maternal grandmothers evidence under cross examination (p5). Ms McDiarmid referred also to Dr Gs evidence that each of the childs behaviours is consistent with the behaviours of an un-abused child. There is also the circumstance that the allegations arose amid considerable hostility between the maternal grandmother and the father; and that the childs alleged disclosure to the mother plainly was prompted, as I have observed earlier. I have dealt already with other evidence, including that of Ms S. Ms Ts evidence, to which I have not earlier specifically referred, was one of the rubbing and smelling incidents with which I have dealt as a category. Further, in relation to Ms Ts evidence, I would refer to Mr Traviss written submissions at pars 35 and 39, which observations I would adopt, without setting out.

93. Further, I am attracted to the summary in Mr Traviss written submissions, par 54, which I have already set out as a plausible criticism of the maternal grandmothers and the mothers  sexual abuse  theory.


22. Frome & Frome (No. 2) [2010] FamCA 1104 (6 December 2010)

Frome & Frome (No. 2) [2010] FamCA 1104 (6 December 2010)

70. In so concluding, I have considered very carefully also the submissions of all three Counsel in the case. Mr Green of Counsel, for the mother sought that I make a finding of actual  sexual abuse , and provided comprehensive written observations as to the material. However, for the reasons explained, I am satisfied that no  sexual abuse  or inappropriate touching of the child by the father occurred. The finding that no  sexual abuse  occurred was sought by both Ms Lyons of Counsel, for the independent childrens lawyer and Mr Selfridge of Counsel, for the father.

71. I have determined that S was not sexually abused by the father. There is no basis upon which to conclude that there is a risk in the future of  sexual abuse . It follows that analysis of the detriment/benefit balance does not arise.


23. Senn & Jolimont [2007] FamCA 1740 (28 August 2007)

Senn & Jolimont [2007] FamCA 1740 (28 August 2007)
Taking all those matters into account together with the findings I have made pursuant to each of the questions raised, and the findings I have made about the credit of the witnesses earlier in the judgment, the evidence satisfies me that there is no unacceptable risk to S of  sexual abuse  by her father if she were to spend unsupervised time with him in the future. I wish to make it abundantly clear that it is not one particular piece of evidence, nor one single category of evidence which has been determinative of that outcome. It is the cumulative effect of all of the evidence and findings.



24. Warsow & Warsow [2010] FamCA 591 (14 July 2010)

Warsow & Warsow [2010] FamCA 591 (14 July 2010)

362. As I have already found, I am not persuaded the father presents an unacceptable risk of abuse to the child. The child has enjoyed a wonderful relationship with him which, according to Dr M, should resume in a real way if a no unacceptable risk finding was made. It is my view this is the only way the child would have the benefit of a meaningful relationship with the father and move beyond her current erroneous belief he hurt her. She needs again to experience him carrying out his parenting role to the fullest appropriate extent. Thus, and notwithstanding the difficulties with the parties ability to communicate and their different views upon whether the father presents an unacceptable risk of  sexual abuse  to the child, it is in her interests that the parties have equal shared parental responsibility.


25. Johnson & Page [2007] FamCA 1235 (18 October 2007)

Johnson & Page [2007] FamCA 1235 (18 October 2007)

97. We are satisfied that from his Honours findings summarised above, the trial Judges determination that L would not be exposed to an unacceptable risk spending unsupervised time with the father was open to him on his assessment of the evidence.

98. In summary, we are satisfied that his Honour was not in error in his application of the principles stated in M and M and that his reasons for his ultimate conclusion that the child would not be exposed to an unacceptable risk are adequate


26. Gillee & Gillee [2010] FamCA 1141 (17 December 2010)

Gillee & Gillee [2010] FamCA 1141 (17 December 2010)

88. The conclusions to which I have come concerning alleged  sexual abuse  of the child have effect that, readily, I conclude there is no identifiable risk of  sexual abuse  of the child by the father.
8. It follows that any analysis of the detriment/benefit balance does not arise.


27. Ulmer & Bagley [2009] FMCAfam 255 (24 March 2009)

Ulmer & Bagley [2009] FMCAfam 255 (24 March 2009)

53. Even in the context of an interim hearing, on the material before me, I cannot conclude that there is an unacceptable risk of  sexual abuse  to [X] from her father. I stress that, in an interim hearing, the threshold for a concern about unacceptable risk of abuse is, in my opinion, a relatively low one, but, even so, the evidence does not justify it. The mother's evidence lacks persuasive force for a number of reasons.
        a. The timing of the articulation of the mother's concerns. On the mother's own evidence, she had concerns that the father had sexually abused [X] since at least March 2008 but these concerns are neither expressed to the father or aired in a public context until her affidavit filed 5 December 2008, after the father had commenced proceedings in this Court.
        b. The mother's own actions so far as the father's time with [X] are quite inconsistent with her concerns about [X]'s safety. In these proceedings, the mother's primary position is that there is an unacceptable risk of abuse to [X] such that she should have no time with her father based on the evidence she adduces. Nonetheless, the mother allows [X] to have time with her father, albeit in her presence, right through to October/November 2008. The mother's actions seem strangely inconsistent with her stated concerns.
        c. [X] makes no disclosure to the mother or to any other person which indicates she may have been sexually abused.
        d. The behaviour of [X] referred to in the mother's affidavit as founding a concern about the risk of abuse seem innocent, even as described by the mother herself. They do not appear to constitute inappropriate sexualised behaviour by the child.
        e. Despite the mother's referrals to [X]'s paediatrician, psychiatrist and psychologist and her assertions to them that [X] has been sexually abused, none of these people, all of whom are mandatory referrers, make a notification.
        f. There is a significant inconsistency between the mother's evidence about what she told the school principal in a telephone conversation and what the school principal notified DOCS via a risk of harm report. This inconsistency lessens the weight that would otherwise be given to the mother's assertions.

54. I therefore find there is no unacceptable risk of abuse from the father, based on the assertions of  sexual abuse.


28. McCoy & Wessex [2007] FamCA 489 (29 May 2007)

McCoy & Wessex [2007] FamCA 489 (29 May 2007)

153. I have found that the child is not at risk with the father and that their relationship is appropriate and sound. I am satisfied that the father has the capacity to attend to his needs and to be a responsible parent. In these circumstances it is not for one parent to attempt to constrain the behaviour of the other in that way.


29. Eyles & Seng [2010] FamCA 602 (20 July 2010)

Eyles & Seng [2010] FamCA 602 (20 July 2010)

208. Taking into account all of the evidence and in particular the oral evidence under cross-examination of the mother and maternal grandmother, the Court is not satisfied that there is a need to protect the child from any unacceptable risk of physical or  sexual abuse  by the father.


30. Stratfield & English [2008] FamCA 54 (30 January 2008)

Stratfield & English [2008] FamCA 54 (30 January 2008)

126. The childs reported behaviours and disclosures raise the spectre of  sexual abuse . However, viewed in the context of the mothers suspicion, subsequently verified, underpinned, and promoted by Ms Ps unprofessional approach, I cannot be satisfied that the childs disclosures and behaviours were not tainted, suggested, led and/or reinforced. To the contrary, there is a very real likelihood that they were, from the very first moment when, on the back foot for wetting his pants, he was questioned by his mother.

127. The evidence in relation to the application of cream to his genitals is the starkest example of how dysfunctional the parenting had become in relation to this issue after the Wiggles concert. I am concerned that in their minds, the mother and Ms J have under-emphasised anything that did not support a claim of abuse, and over-emphasised anything that could do so. I cannot rely on their claims that the childs disclosures have been truly spontaneous, or his behaviours not reflective of general anxiety and/or unwitting suggestion or re-inforcement by them.

128. I am not satisfied on the balance of probabilities that the child has been sexually abused by his father or that he faces an unacceptable risk of such abuse.


31. Ganley & Ganley [2009] FamCA 641 (22 July 2009)

Ganley & Ganley [2009] FamCA 641 (22 July 2009)

131. In relation to the parties competing proposals, and the ultimate proposal put by the independent childrens lawyer, it is significant that I have determined that neither the paternal grandfather nor the father has sexually abused the child, nor been engaged with or engaged the child in any untoward inappropriate sexual activity, and that after the separation, and in particular on Fathers Day in September 2007, the father did not physically abuse the child.

132. Further, it is significant that I have determined that there is no unacceptable risk of  sexual abuse  of the child by the paternal grandfather or the father, nor physical abuse by the father.


32. Geiger & Geiger [2010] FamCA 796 (10 September 2010)

Geiger & Geiger [2010] FamCA 796 (10 September 2010)

86. The findings sought by the mother as to emotional abuse of the children by the father are bound up with the allegations of physical and  sexual abuse .
87. As I have determined that there was no physical or  sexual abuse , it follows that there has been no emotional abuse by the father of the children. In particular, there are no independent allegations of emotional abuse.


33. Dodd & Carson [2011] FamCA 256 (13 April 2011)

Dodd & Carson [2011] FamCA 256 (13 April 2011)

In relation to the question of unacceptable risk of harm to the child, the Court finds that the evidence does not sustain such a finding. In support of that finding, I have taken into account the whole of the evidence and many of the submissions by counsel for the father thereon, in particular:


34. Plant & Barrett [2008] FMCAfam 652 (31 August 2007)

Plant & Barrett [2008] FMCAfam 652 (31 August 2007)

29. Having regard to all of the evidence I am satisfied that, on balance, A has made a disclosure, and there is the theoretical risk of abuse, but that risk does not come from either the father or his partner. If there is an unacceptable risk of abuse its context arises if the children were left with L alone. I stress in the clearest possible terms to the mother, the father and to [Ms B] who was present for most of the hearing of this matter that I am not saying that L has done anything inappropriate to any of the children. There is certainly no evidence on which I could conclude, on the balance of probabilities, that that is the case. However, I cannot rule it out and as these are interim proceedings I must act to protect the children whilst at the same time ensuring that they maintain a meaningful relationship with their father.

Note

As can be seen allegations(shown to be false) were made against the other parent and the other parent's partner.



35. Eicher & Roman [2010] FamCA 777 (7 September 2010)

Eicher & Roman [2010] FamCA 777 (7 September 2010)

174. The issue of protecting M from the risk of  sexual abuse  has already been discussed. I do not find that the father has sexually abused M, or T and L. I find there is not an unacceptable risk of  sexual abuse  if M is to spend time with his father.


36. Wright & Wright [2010] FamCA 1109 (7 December 2010)

Wright & Wright [2010] FamCA 1109 (7 December 2010)

89. The application of those principles to the evidence leads to two findings. I am not satisfied on the evidence that the father sexually abused the eldest child. Nor am I satisfied on the evidence that the father poses an unacceptable risk of  sexual abuse  to either child. The fathers denials were convincing, the childs statements were demonstrably false in material respects, and the single expert posited plausible and logical explanations for the childs unreliability which were not seriously challenged.

90. By the conclusion of the evidence the mothers counsel conceded that the evidence carried insufficient weight to prove that the father had sexually abused the eldest child. Although the mothers counsel continued to press for a finding of unacceptable risk, there was no evidence to found such a risk, apart from that evidence which was already conceded to be unpersuasive.


37. SS & AH [2005] FamCA 481 (10 June 2005)

SS & AH [2005] FamCA 481 (10 June 2005)

    66. I have carefully reviewed all of the evidence pertaining to this issue. I am satisfied that the child K has not made any disclosures which could reasonably be concluded to be genuine disclosures of  sexual abuse  being perpetrated upon her by the Father. Accordingly, on the totality of the evidence, I am not satisfied that the allegations of  sexual abuse  of K have been proved.
    67. My Reasons for these findings include the following:-

    (a)   The evidence contained in the Crime Report (Exhibit 2); the Department of Child Safety records (Exhibit 19), the oral evidence of Ms N and the oral evidence of Detective O, all of which points to any statements by the child K being the product of pressure upon her to make negative statements about her Father rather than being genuine disclosures of abuse;
    (b)   Ks presentation when out of the care and control of her Mother including when in the care of her Father;
    ©   The fact that K has never made a direct disclosure of alleged  sexual abuse  to any person other than the Mother;
    (d)   the flawed processes adopted by Ms L, Ks counsellor, and Ms H in their methods of interviewing K;
    (e)   The fact that Exhibit 4 as elaborated upon by K in the tape recorded recitation by Ms L on 13 October represents the high point of any disclosures;
    (f)   The feature that once peripheral detail is explored with K, the disclosures evaporate as genuine disclosures of abuse;
    (g)   Her failure to make any disclosure directly to Dr C despite the extraordinary pressure he placed upon such a young girl;
    (h)   The Fathers adamant denials of anything untoward;
    (i)   The conclusions reached by both the Officers of the Department of Child Safety and the Officers of the Queensland Police Service who were able to conclude that there was nothing of substance in Ks disclosures notwithstanding Ks involvement in the numerous interventions by Ms L and others at the instigation of the Mother during the critical investigative phase.


38. Sony & Hansell (No. 2) [2008] FamCA 810 (11 September 2008)

Sony & Hansell (No. 2) [2008] FamCA 810 (11 September 2008)

163. In terms of the risk of abuse, I accept and adopt the submissions of the independent childrens lawyer and counsel for the father. That is that the direct and indirect evidence arising out of the events over the weekend of 21 and 22 July 2007 is such that I am able to be positively satisfied, to the civil standard as discussed by the High Court in Briginshaw v Briginshaw [1938] HCA 34 and in accordance with the provisions of section 140(2)© of the Evidence Act 1995 (Cth) that no abuse took place.


39. Greer & Carson [2009] FamCA 770 (26 August 2009)

Greer & Carson [2009] FamCA 770 (26 August 2009)

110. Having found no persuasive evidence of past  sexual abuse  by the father, and no unacceptable risk posed by him to the children, I turn to consider the subjective opinions of the mother about those issues.


40. Baker & Borthwick and Ors [2010] FamCA 1018 (16 November 2010)

Baker & Borthwick and Ors [2010] FamCA 1018 (16 November 2010)

123. So that it is clear, I agree with the parties and the Independent Childrens Lawyer, the father does not present an unacceptable risk to the child.



41. Yeddich & Meier [2007] FamCA 1739 (24 February 2007)

Yeddich & Meier [2007] FamCA 1739 (24 February 2007)

96. Taking into account all of the evidence before me, I am not satisfied to the requisite standard that there has been any  sexual abuse  of the child by the father. The evidence falls far short of establishing such a contention.



42. McFein & Sarapova [2010] FamCA 1229 (23 December 2010)

McFein & Sarapova [2010] FamCA 1229 (23 December 2010)

105. It is thus my assessment that there is an innocent explanation for the childs genital redness and pain and for her disturbed behaviour. I consider it likely that she has been encouraged to continue to make complaints of  sexual abuse  by her father because of positive reinforcement by the mother and Mr C. The father strongly denied any  sexual abuse  but agreed that he had touched the child in the genital region for appropriate, indeed necessary, reasons. There has been no opportunity for  sexual abuse  since December 2008. For all of these reasons I am satisfied to the requisite standard, and I find, that the father did not sexually abuse the child and that there is no unacceptable risk that he will do so in future.


43. Hartford & Ansilda [2009] FamCA 23 (22 January 2009)

Hartford & Ansilda [2009] FamCA 23 (22 January 2009)

251. I am satisfied that the childs best interests demand that she live primarily with her father and spend regular and frequent time with her mother and the siblings who live in her mothers home. If this does not occur the prognosis for the childs relationship with her father is grim; she will live in an environment in which she is poisoned against him and may grow up believing she has been subjected to significant  sexual abuse , abuse which did not occur. She is entitled to a meaningful relationship with both her parents, as long as that can be done in a way which renders her safe and secure. In my judgment, it is only by living primarily with the father that she will be able to have those meaningful relationships. It is true that the father has not been a fulltime parent but the court can be confident he has the capacity to provide for the childs physical, emotional and intellectual needs, and that he will deal sensitively with any distress which manifests as a result of the significant change to her living arrangements.


44. Grandhouse & Grandhouse [2010] FamCA 921 (16 September 2010)

Grandhouse & Grandhouse [2010] FamCA 921 (16 September 2010)

1082. Having reviewed all the evidence on this issue I find no case made out to establish the child has been sexually assaulted at all let alone sexually assaulted by the father. I am able to say I am satisfied the father has not sexually abused the child.


45. Reisner & Reisner (No. 2) [2010] FamCA 678 (4 August 2010)

Reisner & Reisner (No. 2) [2010] FamCA 678 (4 August 2010)

136. For these reasons, I find to the requisite standard that the paternal grandfather did not sexually abuse the child.


46. Crestwell & Judd [2007] FamCA 645 (27 June 2007)

Crestwell & Judd [2007] FamCA 645 (27 June 2007)

151. Now, whether or not the father has conceded it or not, to repeat, I find that the father has not sexually abused A. Having made that finding the next question is whether there is nevertheless an unacceptable risk that the child will be sexually abused or at least the subject of inappropriate behaviour if the child spends unsupervised time with the father.

152. ….. It can be seen that these are the very questions that I have addressed in providing my reasons for finding that I am not satisfied that the father has sexually abused or behaved inappropriately towards A. Thus, in my view there is not an unacceptable risk here and my reasons for that are the same as my reasons for not being satisfied that the husband has sexually abused or behaved inappropriately towards A.


47. Segur & Segur (No. 2) [2010] FamCA 801 (10 September 2010)

Segur & Segur (No. 2) [2010] FamCA 801 (10 September 2010)

204. I am not satisfied that the fathers direct care of the children will expose them to an unacceptable risk of sexual or other abuse. I also find that the children have not been subjected to  sexual abuse  by the father, and are not at risk of such abuse in future.


48. B & J [2009] FamCAFC 103 (19 June 2009)

B & J [2009] FamCAFC 103 (19 June 2009)

260. Although I have found merit in some of the grounds of appeal, I nevertheless consider that the appeal itself should be dismissed.

261. The errors I have identified relate to the failure of his Honour to take positive steps to ensure the attendance of Dr Cohn and the way in which he dealt with Lawrie Js finding arising from Dr Cohns evidence in the earlier proceedings. The question that must be determined is the extent to which the decision might have been affected had Dr Cohns evidence been given again and accepted.

262. The reasons given by Lawrie J (which are recited in the judgment of May and Strickland JJ) indicated that whilst Dr Cohn had found an anal tear in one of the boys, he:

    was unable to determine the cause;
    agreed the tear could be caused by constipation;
    was concerned about the lax anus of the boy, but was aware of the pitfalls of reading too much into it; and
    agreed that of itself the tear was not enough evidence to establish abuse.

263. Given all of these reservations, even had Dr Cohns evidence been given again and accepted, the Court would have been left in doubt as to the reasons why one of the boys had experienced an anal tear. This is of importance, since while it is apparent that Lawrie J had found Dr Cohns evidence provided corroboration of the mothers claims, her Honour had based her finding primarily on the reliability of the mothers own testimony. This in turn was based largely on her Honours finding that there was no psychiatric basis for the allegations the mother was making.

264. The evidence before Bell J concerning the mothers mental health painted an entirely different picture and I am satisfied his Honour would have  and should have  reached the same conclusion even if he had the benefit of Dr Cohns evidence.

265. In determining that the appeal should be dismissed, notwithstanding the errors identified, I accept that his Honour was correct when he concluded (at paragraph 130) that the testimony of the expert counsellors, social workers and psychiatrists [was] compelling and persuasive and that as long as the children remain in the care of the … mother they are at risk of ongoing emotional and psychological abuse. I have come to that view based on my own examination of the relevant evidence.

266. I have also taken into account his Honours unchallenged finding (at paragraph 132) that the fathers present wife was a compelling witness, fully informed of the previous allegations. His Honour considered that at the very least, if the children are to be in the residential care of the … father, his present wife can act as a counterbalance and an outside influence on the children. His Honour properly concluded that this was a decisive factor that places the … father in a better position to provide for the children.

Note

The appeal was an attempt to re-introducde/retrial sexual abuse allegations i.e. 7. This appeal is concerned with the approach of Bell J to the hearing and whether he should have come to different conclusions from those of Lawrie J about the alleged  sexual abuse  of the children by the father and the mothers mental health in so far as it effected her parenting. Central to the appeal is the question whether his Honour incorrectly dealt with the application of issue estoppel and the rule said to be established in Rice and Asplund (1979) FLC 90-725.


49. Lindsay & Baker [2007] FamCA 1273 (26 October 2007)

Lindsay & Baker [2007] FamCA 1273 (26 October 2007)

(1) That the appeal be dismissed.
7. It was the mothers position, as stated in paragraph 44 of her outline of argument for the purposes of the appeal, that the time the child and father spend together be supervised, until the child is of an age to be able to protect himself from  sexual abuse .

Note

Appeal (dismissed) which included attempt to re-open allegations of sexual abuse


50. Kent & Shaw [2010] FamCA 587 (15 July 2010)

Kent & Shaw [2010] FamCA 587 (15 July 2010)

154. For the fathers part, with the allegations of  sexual abuse  put to rest, there should be no issue about the fathers ability to meet the emotional needs of the child. I would be concerned though if the father was not able to put behind him any negative feelings towards the mother as a result of what has happened since May 2007.


51. Surnam & Cromie [2010] FamCA 470 (11 June 2010)

Surnam & Cromie [2010] FamCA 470 (11 June 2010)

171. As indicated previously in the judgment the evidence does not establish that A has been abused by his father or that there is an unacceptable risk of abuse by his father.



52. Dupleix & Duroc [2008] FamCA 626 (8 August 2008)

Dupleix & Duroc [2008] FamCA 626 (8 August 2008)

170.Dr. M said she was sure that the mother believed that she had seen what she described to her. The mothers concession (that there is no unacceptable risk) removes him as a potential perpetrator. Dr. A said that if the child had engaged in the behaviour with the kitten which was alleged, it would raise very serious concerns about the childs socio-psychopathology. If that were the case, the court would be entitled to ask whether the cause of that pathology lay in the mothers home or care.

171. Balancing all the evidence, I find it more probable than not that the observations described by the mother arose from a combination of factors. To maintain her relationship with Dr. S, and Dr. Ss support of her in these proceedings, she exaggerated and distorted observations to fit a scenario of  sexual abuse . She attributed routine toddler tantrums and sleep disturbance to abusive behaviour. Having given up fulltime work to concentrate on her child, she analysed the childs every word and movement, with an eye to a sinister explanation. She invested herself in the success of the litigation, success meaning she, A and the child could continue to operate as a unit, without the troublesome prospect of paternal involvement. Whether consciously or unconsciously, she sought to punish the father for his abandonment of her and her children, and the demolition of her dreams of an intact family.


53. KMA & SAN and Anor [2008] FamCA 1211 (19 December 2008)

KMA & SAN and Anor [2008] FamCA 1211 (19 December 2008)

204. I am not satisfied that the father sexually abused any of the children or that there exists an unacceptable risk he may. This is a finding to which I attach significant weight. I am satisfied that the mother has pressured the children to disclose that the father sexually abused them without a reasonable basis for so doing. While her heightened sensitivity to the risk of child  sexual abuse  is a contributing factor this does not lessen the probability that in the future she is unlikely to desist. The mothers actions have had catastrophic consequences for the family and the children in particular. The effects of her actions on the children have been emotionally and psychologically damaging. In Ns case also physically violating. If the children live with the mother it appears that her disturbed thinking is likely to have her continuing to pressure them to validate her belief that the father sexually abused them. In so doing the mother would deny the children the opportunity for an appropriate relationship with their father and in all probability have them growing up believing a terrible lie. As children and adults their ability to form trusting and healthy relationships is highly likely to be severely compromised. These risks are not present if the children live with the father or paternal grandmother. These are all findings to which I attach significant weight.


54. Stapleton & Hayes [2011] FamCAFC 70 (31 March 2011)

Stapleton & Hayes [2011] FamCAFC 70 (31 March 2011)

4. Her Honour erred and her discretion miscarried in making a determination and making a finding that the allegations of  sexual abuse  made by the mother were groundless … and/or were not grounded in reality… . The reasons for such error are that:

i. such findings were contrary to the weight of the evidence.

and

ii. if the resolution of allegations of sexual assault are subservient and ancillary to the courts determination of what is in the best interests of child (M and M [1988] HCA 68; (1988) 166 CLR 69 at 76), in the circumstances of this case, the Court should not have been diverted by the need to arrive at a definitive conclusion on the allegations of  sexual abuse . (original emphasis)

Note

Appeal (dismssed) attempting to re-introduce sexual abuse allegations as per 4.


55. Licha & Wunscher [2008] FamCA 147 (11 March 2008)

Licha & Wunscher [2008] FamCA 147 (11 March 2008)

139. Considering all the evidence now before me, including the mothers evidence of things said and done by the child, as well as the evidence of the experts who have seen the child, and the fathers evidence, I have no hesitation in finding that I am not satisfied the father has sexually abused the child. No court can ever assert that there is no risk a child will be harmed in a parents care. On the evidence before me I am satisfied that it is highly improbable the child is at any risk of  sexual abuse  when with her father.


56. Milbury & Milbury [2008] FMCAfam 1210 (14 November 2008)

Milbury & Milbury [2008] FMCAfam 1210 (14 November 2008)

297. The mother knew or should reasonably have known that she had fabricated the gaping hole incident, the bed rocking incident and numerous other allegations. The mother knew or should reasonably have known that she had a tendency to fabricate  sexual abuse  allegations. The mother knew or should reasonably have known that [X] was a young child who would be susceptible to her influence and who would make false statements to make her mother happy. The mother knew or should reasonably have known that the statements made by [X] were unlikely to have been true. In such circumstances, I do not accept that the mother had reasonable grounds on 7 and 14 June 2007 for a belief that not allowing [X] or [Y] to spend time with their father was necessary to protect [X]s or [Y]s health or safety.
Moreover, for the reasons given in paragraph 269 and following, I do not accept that the mother genuinely believed that [X]s statements were true. Because the mother did not have a genuine belief or a reasonable belief that not allowing [X] or [Y] to spend time with their father was necessary to protect the health or safety of [X] or [Y], she did not have a reasonable excuse for the contraventions on 7 and
14 June 2007.

Note

Contravention Hearing


57. Wasser & Wasser [2007] FamCA 163 (9 March 2007)

Wasser & Wasser [2007] FamCA 163 (9 March 2007)
115. 115. It should be emphasised that I have, in deciding that I am not satisfied that the husband has sexually abused the child, applied the civil standard of proof while acting in accordance with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Nevertheless, I have then taken some steps further. I have concluded not only that there is no unacceptable risk of  sexual abuse  from unsupervised contact between the child and the husband but that the husband has not sexually assaulted the child or groomed her for sexual assault. I regard it as necessary to take these further steps because the additional findings are of importance in deciding what orders are to be made for contact. The ultimate finding that the husband did not assault the child sexually puts the wifes behaviour into proper perspective and is necessarily an element in deciding what contact orders ought to be made.


58. Materanzi & Suskain (No 4) [2011] FamCA 337 (14 April 2011)

Materanzi & Suskain (No 4) [2011] FamCA 337 (14 April 2011)

62. I have carefully considered the evidence in relation to these allegations. Independently of the mothers abandonment of the allegations, I am comfortably satisfied, and I find to the requisite standard, that the father did not sexually abuse H. I find that the child would not be placed at unacceptable risk of  sexual abuse  in the unsupervised care of the father.


59. Layman & Louise [2007] FamCA 27 (1 February 2007)

Layman & Louise [2007] FamCA 27 (1 February 2007)

47. The submission by all parties that the allegations of  sexual abuse  ought to be treated as set out earlier in these reasons are well bases and I will adopt same. That is I will make no positive finding that the abuse did or did not occur and I find that there is not an unacceptable risk of  sexual abuse  by the father of the children or either of them.


60. Mason & Finton [2011] FamCA 583 (26 July 2011)

Mason & Finton [2011] FamCA 583 (26 July 2011)

78. I find, on the balance of probabilities, that the father did not sexually abuse C for the following reasons:

    she never made a statement which could be construed as a complaint of  sexual abuse  to any person other than the mother
    she never displayed sexualised behaviour to any person other than the mother
    she spent unsupervised time with the father for approximately nine months after the January 2009 incidents, with no further statement whatsoever which could be construed as a complaint of  sexual abuse
    she told the mother, the father and the Family Consultant that her statements were untrue
    it is likely that the mother, the maternal grandmother and the Organisation 1 counsellor have had limited discussions with her about the issue of  sexual abuse  by the father
    there was no physical evidence of  sexual abuse  (which is, of course, far from uncommon)
    the father has been vehement and consistent in his denials that he perpetrated  sexual abuse
    she made no complaints of  sexual abuse  in two police interviews
    she showed no fear of the father when observed with him by the Family Consultant
    the two complaints were found to be unsubstantiated by officers of the Department of Child Safety

79. I further find, to the requisite standard, that neither child will be exposed to an unacceptable risk of  sexual abuse  in the unsupervised care of the father. Such a risk cannot be extrapolated from the two statements made by C, in combination with the fathers alleged issues with boundaries in interpersonal relationships.


61. George & Kopek [2011] FMCAfam 776 (3 August 2011)

George & Kopek [2011] FMCAfam 776 (3 August 2011)

247. I consider that [X] will not be exposed to an unacceptable risk of  sexual abuse  if she spends unsupervised time with the father. However, the children need to be protected from an unacceptable risk of psychological harm by being exposed to negative comments made by the father about the mother and by being exposed to conflict between their parents.


62. Lindsey & Baker [2007] FamCA 1037 (15 March 2007)

Lindsey & Baker [2007] FamCA 1037 (15 March 2007)

116. Having regard to the limited unsupervised time he has spent with his father since separation, the tenuous nature of the relationship and the damage done to the parental relationship by the  sexual abuse  allegations and non-compliance with contact orders I think the overall best interests of this child will be best promoted by the graduated and increasing levels of unsupervised time recommended by the family reporter and reflected in the proposed orders of the Independent Childs Lawyer.



63. Maguire & Sheldon [2011] FMCAfam 919 (7 September 2011)

Maguire & Sheldon [2011] FMCAfam 919 (7 September 2011)

119. Having regard to the above deficits in evidence I have some real concerns and particularly having regard to the manner in which
Ms Sheldon has given her evidence. I have real difficulty in accepting Ms Sheldons evidence. That is not to suggest that I disregard in their entirety the allegations raised by Ms Sheldon. However, I am satisfied that:

    a) [X] has not been exposed to physical violence between her parents beyond that referred to above.
    b) There is no unacceptable risk of [X] being sexually abused by her father.
    c) There is not sufficient evidence of probative value such as would satisfy me that the children are at risk of physical harm from their father.

120. The above matters do not, however, conclude the issue as clearly there is the potential for the children to be exposed to psychological or emotional harm having regard to the force with which Ms Sheldon expresses her fear.



64. Morcombe & Preston [2010] FamCA 165 (5 March 2010)

Morcombe & Preston [2010] FamCA 165 (5 March 2010)

507. The allegations that the children have been sexually and physically abused by the father are not established.

508. I find that the children are not at risk of physical or psychological harm or being subjected to abuse, neglect or family violence in the care of the father, particularly with the assistance of his mother.

509.I accept the evidence of the Family Consultant which was supported to a considerable extent by the evidence of the psychiatrist, Dr B, that the mothers delusions, and her insistence to the children that they have been sexually abused by the father, puts the children at risk.


65. Salvati & Donato (No.2) [2009] FMCAfam 883 (20 August 2009)

Salvati & Donato (No.2) [2009] FMCAfam 883 (20 August 2009)

48. The Independent Childrens Lawyer examined Dr Kasinathan about the potential impact on [X] of implementing his proposals at transcript pp.39-40 lines 37-15:

    Mr Meehan: And since, effectively, the later part of 2008, it's always been day contact. If [X] was to go to live with dad, do you see it as a transitional process, or how would you see that process to be undertaken; secondly - - -?
    Dr Kasinathan: Yes.
    Mr Meehan: - - - is there any comment you could make about what stresses may exist for [X] in that process?
    Dr Kasinathan: I think it's more harmful for her to remain in her current environment with the paternal grandmother present and - and in the context of her ongoing delusions. In my opinion, she should just be transitioned across to - to reside with the father and that there's no real need for a - a phasing-in. I mean, a phasing-in is quite - in - for an adult, I suppose, phasing-in makes sense but for a child it's actually confusing because they're spending, you know, different amounts of time with different people. It just makes more sense to just change it immediately.
    Mr Meehan: From your observations of [X] with her dad, do you see - in terms of that process, for example, "You go and live with dad now - - -"?
    Dr Kasinathan: Yes.
    Mr Meehan: - - - any stresses for [X], at all, in - - -?
    Dr Kasinathan: I mean, [X] actually said she wanted to spend more time with her father, in - in the assessment, and she wanted to stay over with - with her dad and with the paternal side of the family, so I don't see that as being a problem for [X]. I mean, I think [X] should still have some supervised contact with her mother. Her mother is still important. I'm not trying to say that - that she should have no contact, but it should be, in my opinion, supervised by the maternal grandfather, or, if the Court finds someone else that they wish to supervise, that's fine, but not the maternal grandmother.


49. In conclusion I accept Dr Kasinathans report and his evidence. I found him to be a forthright and impressive expert witness.


66. Flood & Piper and Ors [2008] FamCA 852 (30 September 2008)

Flood & Piper and Ors [2008] FamCA 852 (30 September 2008)

259. On all the evidence it is clearly established that the allegations S made were not a result of any sexual assault by her father, but a result of long term emotional abuse (including by her father) in relation to sexual assault suspicions without any reasonable basis and the mothers unfounded preoccupation of possible sexual assault of S by her father.

260. The evidence establishes on the balance of probabilities that S was not sexually abused by her father.

270. The evidence does not establish any unacceptable risk of sexual assault of either child by the father if time is spent with him unsupervised.


67. Lendar and Anor & Mines and Anor [2010] FamCA 676 (28 July 2010)

Lendar and Anor & Mines and Anor [2010] FamCA 676 (28 July 2010)

75. I have found that the maternal step-grandfather did not sexually abuse either the mother or L. I cold detect nothing further in the evidence which suggested a risk of  sexual abuse  of the children in the household of the maternal grandparents. Accordingly, I find that there is no unacceptable risk that either L or M will be sexually abused by the maternal step-grandfather.

91. I am persuaded that neither the maternal grandmother nor the maternal step-grandfather present an unacceptable risk of physical abuse to the children. There was no suggestion of any psychological or emotional abuse of the children by them. Nothing in the evidence suggested to me that the children are at risk of such abuse in the future.


68. J & C [2002] FMCAfam 183 (5 December 2002)

J & C [2002] FMCAfam 183 (5 December 2002)

172. I have considered all the evidence very carefully and I find that I cannot possibly come to the conclusion, on the Briginshaw test referred to above, that there has been any  sexual abuse  on the part of the father.


69. Josephs & Searle [2010] FamCA 1009 (11 November 2010)

Josephs & Searle [2010] FamCA 1009 (11 November 2010)

2. …..During closing addresses, the mother said the evidence did not establish and she did not believe the father posed an unacceptable risk of  sexual abuse  to the children and she abandoned her claim for such a finding………


70. Manziati & Manziati [2011] FamCA 277 (21 April 2011)

Manziati & Manziati [2011] FamCA 277 (21 April 2011)

85. Ultimately, considering the whole of the evidence in this matter, and, more particularly, having regard to all of those matters I have just discussed, I cannot say that I am satisfied to the requisite standard that  sexual abuse  of B has occurred at the hands of her father. Whilst I stop short of an absolute finding that the father has not sexually abused B, such a finding being, as a matter of course, I acknowledge, very difficult to make, I do find that it is most unlikely in this case that he did.


71. J & B [2008] FamCA 184 (14 February 2008)

J & B [2008] FamCA 184 (14 February 2008)

119. This is not an appeal from Justice Lawrie's decision and I am not minded to frame my reasons in response to, or in assessment of, her Honour's own findings and conclusions. That notwithstanding, her Honour placed much weight upon the Respondent Mother's credibility as a witness moving from the first premise that she was not psychologically unsound. That can no longer be said with any degree of certainty. Expert evidence presented in the instant proceedings clearly demonstrates that not only is the Respondent Mother severely mentally unwell at present, but that illness has developed and become all the more consuming since her original appearance before Justice Lawrie. In light of this evidence, one can only conclude that the allegations made at the first proceedings are, whilst possibly founded in reality, the questionable outgrowth of an unsound and dangerous mind. On that basis, in the absence of any evidence before the Court in the instant proceedings as to the original  sexual abuse  allegations against the Applicant Father beyond the continued assertions of the Respondent Mother, I cannot make a finding that the children will be subject to or exposed to abuse from their father at this time or into the future.


72. Auber & Wagram [2007] FamCA 1286 (2 November 2007)

Auber & Wagram [2007] FamCA 1286 (2 November 2007)

146. The evidence does not support a finding that the father sexually abused the child. Nor does it support a finding that the child will be at risk of  sexual abuse  if allowed to spend unsupervised time with him.


73. Temple & Doborovic [2010] FamCA 338 (22 April 2010)

Temple & Doborovic [2010] FamCA 338 (22 April 2010)

181. Having found that I am not satisfied that the father has sexually abused C the next question is whether there is nevertheless an unacceptable risk that the child will be sexually abused if the child spends time with the father.

182. It has been recognised, including by the High Court in M and M [1988] HCA 68; (1988) FLC 91-979 that there is difficulty in defining with any degree of precision what constitutes an unacceptable risk (W and W [abuse allegations: unacceptable risk] [2005] FamCA 892; [2005] FLC 93-235). However, in W and W the Full Court indicated that the questions posed by Fogarty J in N and S and The Separate Representative (1996) FLC 92-655, at 82,714 provides a structure or framework which may assist a Trial Judge to assess future risks to a child. Fogarty J said this:

In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from  sexual abuse ? What are the likely future effects on the child?

This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.

It can be seen that these are the very questions that I have addressed in providing my reasons for finding that I am not satisfied that the father has sexually abused C. Thus, I am also not satisfied that there is an unacceptable risk here and my reasons for that are the same as my reasons for not being satisfied that the husband has sexually abused C.


74. Udall & Oaks [2010] FMCAfam 1482 (22 October 2010)

Udall & Oaks [2010] FMCAfam 1482 (22 October 2010)

199. I am satisfied, as I previously indicated, and I so find that [X] has not been sexually abused by his mother.


75. Galloway & Steele [2011] FamCA 550 (8 July 2011)

Galloway & Steele [2011] FamCA 550 (8 July 2011)

325. The Court finds that the evidence does not enable it to find that the father was sexually abused, that he knew of it and that he has falsely denied it.
326. The Court finds that there is no evidence which would sustain the assertions of sexual or physical abuse and also finds that the evidence does not convince it that there is an unacceptable risk of harm in the care of the father.


76. Hammond & Hammond [2010] FamCA 778 (3 May 2010)

Hammond & Hammond [2010] FamCA 778 (3 May 2010)

148. Finally, and to wholly discount any past  sexual abuse  of the child I very clearly record that neither the father nor any member of his family, on all of the evidence and documents before me, have been or in any way ever attempted to sexually abuse or inappropriately conduct themselves with the child. For the purposes of the parenting and time spent with orders that I have pronounced, I have wholly disregarded these allegations of the mother save that I have balanced the fact that they were made by her and have caused anguish and enormous disruption to the lives of the child and her father and paternal family. I have not, and in the interest of the child it would be improper to in any other way punish the mother as the orders that I have pronounced are exclusively concluded upon the best interests of the child both in the immediate and long-term future.


77. Regent & Driscoll [2009] FamCA 14 (9 January 2009)

Regent & Driscoll [2009] FamCA 14 (9 January 2009)

182. I consider that the evidence falls a long way short of that which would be required to satisfy me to the relevant evidentiary standard that the child has been sexually abused by the father (or anyone else).

183. Similarly, in my judgment, the evidence falls a long way short of that which would be required to satisfy me to the relevant evidentiary standard that the child is at an unacceptable risk of  sexual abuse  at the hands of her father (or anyone else).


78. Aviva & Bentoin [2010] FamCA 1222 (12 November 2010)

Aviva & Bentoin [2010] FamCA 1222 (12 November 2010)

86. As noted, both the JIRT team and Dr R had serious reservations about the veracity of the allegations of  sexual abuse . I find compelling Dr Rs hypothesis as to the genesis and development of these allegations. For the reasons which I have indicated, I find to the requisite standard that the father did not sexually abuse either M or L.


79. Claringbold & James [2007] FamCA 1032 (3 September 2007)

Claringbold & James [2007] FamCA 1032 (3 September 2007)

125. As I have said,  sexual abuse  was not an issue requiring determination in this case. It is clear from the SOCAU information, however, that there have been real concerns about the mothers propensity to make allegations which were not capable of being substantiated as well as the substance of the allegations made.


80. Stamos & Mariakis [2009] FamCAFC 172 (18 September 2009)

Stamos & Mariakis [2009] FamCAFC 172 (18 September 2009)

37. At this stage we need only say that the trial Judges reasons disclose a meticulous examination of all the evidence before him, including the statements made by the child, the evidence of the mother and the grandmother, but particularly a careful review of the expert evidence before him. Nothing to which we have been directed supports a finding that the trial Judge gave inappropriate weight to the evidence of Dr Q, or failed to give appropriate weight to the evidence of Dr G. Dr G saw the child after 16 July 2006 when, in the opinion of the Court expert, the childs statements had to be viewed as very contaminated. We find no appealable error by the trial Judge in his treatment of Dr Gs evidence or his findings, based on an overall consideration of all of the evidence, that the child would not be subject to an unacceptable risk of  sexual abuse  in spending time with the father.


81. Bachmeieir & Foster [2011] FamCA 86 (23 February 2011)

Bachmeieir & Foster [2011] FamCA 86 (23 February 2011)

88. I accept the conclusions of the single expert about the  sexual abuse  allegations, which conclusions were not seriously challenged. Her opinions are consistent with the factual anomalies apparent from the evidence. The conclusion is inescapable that the childs sexual allegations against the father are unreliable. I am not satisfied the father perpetrated  sexual abuse  upon the child, or that he poses an unacceptable risk of  sexual abuse  to the child.


82. Smithers & West [2008] FamCA 772 (10 August 2008)

Smithers & West [2008] FamCA 772 (10 August 2008)

174. When one stands back and considers all of the evidence which the mother adduces in relation to her allegations of  sexual abuse  and/or the fathers lack of sexual boundaries, whether considered individually or combined, there is insufficient evidence to establish an unacceptable risk to the child of  sexual abuse  or inappropriate sexual behaviour.

175. It is my understanding that the State government is awaiting the outcome of these proceedings before concluding its investigation into the mothers sister notification. In making her complaint she has taken the issues in these proceedings beyond the court. It is important that the State government, therefore understands I am satisfied the father did not sexually abuse or behave in a sexually inappropriate manner with his nephew or his daughter. To the contrary I am satisfied the mother has deliberately given false evidence about the fathers behaviour and in many other instances manipulated innocuous events in a deliberate attempt to reduce the time the father and child may spend together.


83. DML & DVT [2006] FMCAfam 714 (22 December 2006)

DML & DVT [2006] FMCAfam 714 (22 December 2006)

179.    Having heard the mother and father in the witness box, having read each parties affidavits, observed Dr Quadrio give evidence, read her report and her findings that there is no risk of sexual or other abuse of this child whilst in her fathers care, I am satisfied there is no unacceptable risk of harm to this child whilst in her fathers care.


84. Tartar & Millsey [2009] FamCA 777 (25 August 2009)

Tartar & Millsey [2009] FamCA 777 (25 August 2009)

78. In coming to this view I have not overlooked Professor Ns conclusion that it is not possible to either exclude or verify any  sexual abuse . However on the basis of the facts as I have found them to be I am not persuaded there is an unacceptable risk to the child of  sexual abuse  from either party.


85. Marlin & Otif [2008] FamCA 1264 (29 April 2008)

Marlin & Otif [2008] FamCA 1264 (29 April 2008)

71. Ultimately the  sexual abuse  issues are dealt with as follows in Dr Bs report, significant in circumstances where the mother says that following the release of Dr Bs report she abandoned any allegation of inappropriate conduct towards the father. Dr B says on page 15:


86. Luckwell and Anor & Herridge and Anor [2011] FamCA 52 (10 February 2011)

Luckwell and Anor & Herridge and Anor [2011] FamCA 52 (10 February 2011)

97. At the hearing the mother did not press any allegations that the children had been sexually abused by the father. In fact, she withdrew them. This does not mean that the allegations she made are irrelevant. One needs to consider whether she might make allegations in future, and whether she was motivated by the childrens best interest and a belief in the truth of the allegations she made.

98. A problem which was created by the withdrawal is that not all the childrens interviews with JIRT were put into evidence. However, there is a little material upon which I can rely. It is exhibit DD. It records that DOCS first involvement with these boys  sexual abuse  allegations was on 6 May 2005. It became involved because B said his fifteen year old cousin had licked my do do. The next involvement was on 3 May 2007. It indicated that the report JIRT received, presumably from the mother either directly or indirectly, painted a much different picture from that which the mother later told Ms Y and Ms T. It is that B or H had not simply volunteered information. The mother had asked H and B if anyone had touched their do do. Bs reply was [the father] did, he bent it. H said the father had come into his room and put it in my face. These claims were investigated by JIRT who took no further action. One would expect these revelations, if they are to have even a scintilla of credit, to have occurred at the time the mother reported them, more than a year after the father had last had care of the children. One must be quite sceptical about the mothers motives in having asked this question in early 2007 if that is when she asked them. As I have already noted, H would have been less than three years old at the time he is alleged to have been assaulted.


87. Woodrow & Baker [2009] FamCA 658 (28 July 2009)

Woodrow & Baker [2009] FamCA 658 (28 July 2009)

201. I find that there was never any systemic  sexual abuse  of D by P. I find that there is no unacceptable risk that D or N are in danger of  sexual abuse  at the hands of P. I find that it is unlikely that any inappropriate sexual conduct will occur in the future.


88. Lindsay & Baker [2010] FamCA 421 (28 May 2010)

Lindsay & Baker [2010] FamCA 421 (28 May 2010)

80. Notwithstanding there may be matters which I have overlooked in the extensive evidence before me which may be of some assistance to either of the parties, I am quite satisfied on the evidence that there is no evidence or any sufficient evidence to convince me that the child, B, is being sexually assaulted, nor is there any unacceptable risk of his being sexually assaulted whilst in the primary care of the father, in whose care he has been since 2008 when the child was recovered pursuant to a recovery order.


89. Lunn & Carpenter [2007] FamCA 196 (13 March 2007)

Lunn & Carpenter [2007] FamCA 196 (13 March 2007)

146. Even though the Mother no longer seeks to establish that the Father abused the child [I] and/or the child [G] or sexually abused the child [G] I am satisfied, subject to the admissions of the Father about the incident with the child I, that the Father has not physically or sexually abused either child.



Note

Continued in subsequent response due to length of post limitations

Last edit: by MikeT

90 Walsh & Walsh [2010] FamCA 152 (18 February 2010)

Walsh & Walsh [2010] FamCA 152 (18 February 2010)

77. I conclude that there is likely to be no deleterious effects caused to the child if she is to continue living with the father, as she has done pursuant to the interim orders made in August 2009.

78. I am satisfied that the father has the capacity to provide for the needs of the child, including her emotional and intellectual needs.

79. There is nothing about the maturity, sex, lifestyle and background of the father which casts any doubt upon his capacity to continue being the primary carer for the child.


91. Brachen & Woodhouse [2011] FamCA 153 (9 March 2011)

Brachen & Woodhouse [2011] FamCA 153 (9 March 2011)

97. I am not satisfied that there is an unacceptable risk of either child being subjected to  sexual abuse  within the fathers household. The father and Ms C are now well aware of the allegations and I accept that they will be careful to prevent such behaviour. They only learned of the allegations from the Family Consultant in July 2010 and then immediately moved proactively to address the issue by taking Ms Cs children to a psychologist to receive protective behaviours training[89] and by keeping the children separated from Ms Cs children in accordance with interim orders.[90] The father thoughtfully contemplated the problem presented by the allegations. He rationally told the single expert he doubted such sexual conduct had occurred but was not prepared to dismiss the allegations out of hand.


92. In the Marriage Of: K Applicant/Husband and K Respondent/Wife [1989] FamCA 24 (17 May 1989)

In the Marriage Of: K Applicant/Husband and K Respondent/Wife [1989] FamCA 24 (17 May 1989)

229. I am therefore reasonably satisfied that she did not sexually abuse DK, as alleged, on 11 April 1988. I accept the evidence of Mrs I in this regard, and regard her as a disinterested party and her observations as accurate. In the result, I do not accept Dr B's opinion, and I affirm again that I am reasonably satisfied that the evidence that the wife had sexually abused the children, either alone or in concert with BS, should not be accepted, for the reasons that I have given.


93. Lunn & Carpenter [2009] FamCA 466 (27 February 2009)

Lunn & Carpenter [2009] FamCA 466 (27 February 2009)


23. I can see no reason why I and G should be deprived of the benefits of equal shared parental responsibility. The reality is that everyday decisions will be made by the father, as the children will spend most of their time in his care. It seems to me, however, that they would benefit from the knowledge that they have a devoted, loving mother who is keenly interested in participating in major decisions about their lives. Insofar as it is necessary, I propose to order that the parties have equal shared parental responsibility for the children.
I am then required to consider making an order for equal time with each parent. This concept can be rejected without difficulty. The mother did not seek an order for the children to spend equal time with each of their parents. She has spent only three hours each fortnight with the children on alternate Saturdays, on a supervised basis, since 2005. Her present application recognises the reality that the critical issue now is the point at which supervision is dispensed with and the extent to which the boys time with her can be increased. Equal time is simply an unviable proposition at this time, from the perspective of the childrens best interests. The same observations can be made in respect of the consideration of substantial and significant time with each parent. I digress at this point to remark that I give full credit to the mother for her preparedness to amend her proposal by the end of the trial. I am of the view that she was motivated by a realistic consideration of what arrangements would be in the childrens best interests at this point in their lives.



94.

Lane & Arthurs [2006] FamCA 87 (28 February 2006)

126. Of course there is a natural caution and hesitation to come to a definitive finding on a matter as grave as this where error is likely to have such serious consequences for the children. But even acknowledging that, I am comfortably satisfied in this case there has been no  sexual abuse  of either of the children by their father but a web of complex dynamics from a variety of directions conspired to produce these allegations. It follows that I am also satisfied there is no unacceptable risk of such abuse occurring in the future should Mr Lane either be the full time parent carer for the children or the children have unsupervised contact with him.


95. Kolovos & Kolovos [2009] FMCAfam 1169 (24 November 2009)

Kolovos & Kolovos [2009] FMCAfam 1169 (24 November 2009)

3. For the reasons that follow, I have concluded that [X] has not been the subject of  sexual abuse  by her cousin, or by any member of her fathers extended family, including the father.


96. Horvill & Horvill [2007] FamCA 1009 (5 February 2007)

Horvill & Horvill [2007] FamCA 1009 (5 February 2007)

24. In a rather extraordinary turn of events at the commencement of his final address on behalf of the mother, her counsel, Mr Wiltshire, made a clear and firm concession that, on the evidence, no case of  sexual abuse  had been made out against the father. Perhaps even more remarkably, he conceded that the children had been exposed to emotional abuse at the hands of his client.


97. Taylor-Black & Vasser [2008] FamCA 335 (15 May 2008)

Taylor-Black & Vasser [2008] FamCA 335 (15 May 2008)

200. Abuse is narrowly defined in the Act as assault or sexual activity. I have found in this case that there is no unacceptable risk that the father has been involved in any untoward sexual activity so far as the child is concerned. There is no allegation the mother has been physically abusive to the child.


98. Harris & Jackson [2009] FamCA 550 (26 June 2009)

Harris & Jackson [2009] FamCA 550 (26 June 2009)

105. The father denies categorically any sexual impropriety toward his daughter. So, too, he denies any sexual impropriety of any type towards L. I believe him.

106. I am satisfied on the whole of the evidence before me that I can find that the father does not present an unacceptable risk of harm to either child. Specifically, I am unable to find that the father spending unsupervised time with E gives rise to the need to protect her from harm or is likely to expose her to abuse or harm of any kind.


99. Hall & Hall [2008] FMCAfam 893 (26 October 2007)

Hall & Hall [2008] FMCAfam 893 (26 October 2007)

63. I have already indicated my view in relation to the issue of abuse of these children. I find, obviously, that not only is there no unacceptable risk in relation to physical or  sexual abuse  of the children by the paternal grandfather, or of course by any other members of the father's family, but my concern is that there is, at least to some degree because perhaps of a lack of appreciation of the affect of their actions, a possibility of psychological harm being affected to or upon these children by the actions of the mother and the maternal grandmother.


100. Weston & Weston [2008] FamCA 124 (29 February 2008)

Weston & Weston [2008] FamCA 124 (29 February 2008)

107. In the final analysis, consistent with the submissions of counsel for the ICL, I am unable to find that the level of risk to this child of harm from her father through sexual wrongdoing could be called unacceptable.


101. Mohem & Wittner [2009] FamCA 1367 (27 October 2009)

Mohem & Wittner [2009] FamCA 1367 (27 October 2009)

51. For all of these reasons I find, to the requisite standard, that the child was not sexually abused by her paternal grandfather, Mr Mohem (Snr). I also find, to the same standard, that there is not an unacceptable risk that the child will be exposed to  sexual abuse  by her paternal grandfather, while in the care of her father.


102. Whitman & Burr [2011] FamCA 199 (28 March 2011)

Whitman & Burr [2011] FamCA 199 (28 March 2011)

83. Bearing those extreme pressures in mind, by reason of the matters dealt with above, in particular the investigation conducted by the Department and Ds statements to both Ms P and Mr My, I am satisfied that the father poses no unacceptable risk of harm to his daughter: B and B (1988) FLC 91-978 and M and M [1988] HCA 68; (1988) FLC 91-979.


103. Rose & Rose [2010] FamCA 935 (20 October 2010)

Rose & Rose [2010] FamCA 935 (20 October 2010)

116. The father has consistently denied that he has in any way sexually abused L. He gave evidence before me and was extensively cross examined. His evidence was consistent and credible. He made concessions where appropriate and in my opinion, was telling the truth. I unequivocally accept his evidence on this issue.
    
117. Consequently, not only do I find that there are no reasonable grounds to believe that a parent of the child has engaged in abuse of the child pursuant to s 61DA(2)(a), but using the words of the High Court in M & M (supra), this is a case in which I have no hesitation in rejecting the allegations as groundless.



104. McLory & McLory [2011] FamCA 364 (12 April 2011)

McLory & McLory [2011] FamCA 364 (12 April 2011)

161.I am satisfied to the requisite standard (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Evidence Act 1995 (Commonwealth) Section 140), that the father does not pose an unacceptable risk of harm to V. I record that I would be satisfied of that fact beyond a reasonable doubt, were that the standard to be applied.



105. B & S – [2001] FMCAfam 112 (8 October 2001)

B & S – [2001] FMCAfam 112 (8 October 2001)

13. After hearing all the evidence and perusing the file from the Department of Community and Health Services (Children's Protective Services) that was produced pursuant to Subpoena, I am of the view that the allegation of  sexual abuse  on the part of the father has been blown out of all proportion. The child may well have told her mother that her father had touched her in her genital area. However, I am sure that it was an innocent remark that was immediately taken out of context by the mother. I am also sure that this has been repeated by the mother and the maternal grandmother so often in front of the child that she is now saying what they expect to hear. During the hearing, I commented that I had gained the impression that the child was now playing to her audience. I still hold that very clear impression.


106. W & W & L [2007] FMCAfam 438 (29 June 2007)

W & W & L [2007] FMCAfam 438 (29 June 2007)

69.   I am not satisfied that there is an unacceptable risk of any from of  sexual abuse  by Mr W against C.


107. P & D [2001] FamCA 1197 (29 August 2001)

P & D [2001] FamCA 1197 (29 August 2001)

455.3 (iii) Not only am I satisfied that no  sexual abuse  by the father occurred, I am also satisfied that there is no unacceptable risk of such abuse occurring in the future, were the father to be either the parent with whom S. resides or with whom he has unsupervised contact.


108. Michaels & Michaels [2008] FamCA 69 (18 January 2008)

Michaels & Michaels [2008] FamCA 69 (18 January 2008)

27. I propose to leave the children in the care of the mother. My reasons are as follows. I want to make it clear, I do not place any weight on the allegations of  sexual abuse . As I have said the complaint was only made after a five month delay. It was made well after there had been ample opportunity to bring the matter to the attention of the police. The subject of the  sexual abuse  allegation appears to have been a light hearted incident. I shall refer to a passage in the subpoenaed documents to that effect.


109. L & C [2001] FMCAfam 180 (3 August 2001)

L & C [2001] FMCAfam 180 (3 August 2001)

9. Although a good deal of the cross-examination during this matter was directed at the wife's behaviour and whether she was justified in pursuing as vigorously as she did, the allegations of  sexual abuse  and her motivation in doing so, I ultimately found that it was unnecessary to make findings with respect to those matters.

I do note, however, that Mr Papaleo's comment, it may be said in the cold light of day that maybe she has over-reacted. Whilst in many cases of alleged  sexual abuse  it is difficult to make a positive finding that no abuse occurred, I do so in this matter.


110. Smeeden & Wulandri [2011] FamCA 619 (8 August 2011)

Smeeden & Wulandri [2011] FamCA 619 (8 August 2011)

33. In final submissions counsel for the mother said: the mother conceded that she must accept that the  sexual abuse  allegations cannot be substantiated. This concession was necessary in light of the mothers ultimate proposal for a graduated regime of a regime of time with the father, culminating in a week-about arrangement. The mothers abandonment of the  sexual abuse  allegations is also consistent with the outcome of an investigation by the police and Department of Human Services (DHS) and the opinion of Dr R. The evidence satisfied me that K was not sexually abused by the father.


111. Peddar & Vina (No. 2) [2008] FamCA 893 (9 September 2008)

Peddar & Vina (No. 2) [2008] FamCA 893 (9 September 2008)

36. The need to insulate the children from the mother's allegations of  sexual abuse  is as vital now as it was when the proceedings were before the courts in Sweden in 2004. The issue is whether I can confidently predict that the mother will be good to her word and not raise the allegations with the children, to them or about them to the authorities.


112. Cain & Irvine [2008] FMCAfam 1373 (18 December 2008)

Cain & Irvine [2008] FMCAfam 1373 (18 December 2008)

49. On a careful consideration of all the evidence before me, I accept
Dr Jacobsons opinion that the likelihood [X] was sexually abused by Mr T in 2000 is low, for the reasons Dr Jacobson has given. I also accept his evidence that the grandmother is no longer in denial, if she once was, about the possibility of [X] being at risk of  sexual abuse  in the future. I am not satisfied [X] faces an unacceptable risk if left in the care of her uncle, Mr T.


113. J & P [2006] FamCA 1386 (22 December 2006)

J & P [2006] FamCA 1386 (22 December 2006)

128. Consequently, I find that the issue of unacceptable risk in terms of possible abuse by the father of the child has not been established on the balance of probabilities.


114. Kings & Murray [2009] FamCA 565 (12 June 2009)

Kings & Murray [2009] FamCA 565 (12 June 2009)

44. In that sense, I do not find in this matter that there is an unacceptable risk to the child, because, in my opinion, to do so would be to dilute the non-finding that I have already made.


115. Rudolf & Meicher [2008] FamCA 637 (21 July 2008)

Rudolf & Meicher [2008] FamCA 637 (21 July 2008)

12.     None of the above witnesses was required for cross examination. The evidence is therefore before the Court on an unchallenged basis. It does not sit comfortably that the Father should make serious allegations involving physical, sexual and emotional abuse of the children by the Mother when he is not prepared to have the evidence of these character witnesses challenged in any way, shape or form. In any event, by the fifth day of the hearing the Father had resiled from the allegations of physical and  sexual abuse .


116. Whitman & Burr [2009] FamCA 233 (31 March 2009)

Whitman & Burr [2009] FamCA 233 (31 March 2009)

1. D is not at risk of sexual harm in the care of her father.



117. Porter & Stevens [2008] FamCA 630 (8 August 2008)

Porter & Stevens [2008] FamCA 630 (8 August 2008)

109(g).
The need to protect the children from harm, either physical or emotional, by being subjected or exposed to abuse, ill treatment, violence and other behaviour - The mother has made allegations of violence against the father. She said there were some incidents where the father was violent to her while the child was either a witness to them or to the consequence to her of them. There is also the allegation that the father has been violent to the child by sexually abusing him. I have found that the latter, to a high level of probability, did not occur


118. Magee & Kennedy [2011] FamCA 698 (5 September 2011)

Magee & Kennedy [2011] FamCA 698 (5 September 2011)

76. It is inapposite to reach any conclusion about the magnitude of risk to the child of  sexual abuse  at the hands of the father because of the lack of precision in the evidence and the absence of thorough evaluation of that evidence. In any event, in final submissions, the mother essentially contended there should be no orders prescribing the time to be spent by the children with the father because of the fathers voluntary severance of the relationships, not because of any unacceptable risk of  sexual abuse .


119. Marsden & Winch (No. 3) [2007] FamCA 1364 (21 November 2007)

Marsden & Winch (No. 3) [2007] FamCA 1364 (21 November 2007)

293. The question to be answered in this case is:- Did his Honour, the learned trial judge, rely upon Inexact proofs, indefinite testimony, or indirect inferences to make his finding that the father was masturbating at the [swimming pool] on the occasion of the observation by [the witness called by the wife]? Did he have before him the quality of evidence to enable him to make that finding? For my part the answer to the first question is yes and the second no. Accordingly I would determine that the finding was unavailable to the trial judge on the evidence before him.


120. Wheldon & Dinh [2010] FamCA 740 (20 August 2010)

Wheldon & Dinh [2010] FamCA 740 (20 August 2010)

145. On all of the evidence before me and taking into account my observations of the mother and the father during the course of the proceedings, I am not satisfied that the mother has come close to satisfying the onus of establishing, to the appropriate standard, that  sexual abuse  of S has occurred and/or has occurred at the hands of the father. (See generally M v M at 76-77).

146. Further, I am not satisfied on the evidence before me that the father presents an unacceptable risk of abuse or, indeed, any other harm to S.




Information/Statistics

Of the 952 (currently only sexual abuse allegations) decisions 207 have been looked at and there are 120 that are clearly decided as being false allegations, approximately 58%.
 
(note i) that the due to the reasons for exclusion it cannot be taken that the excluded decisions are findings of sexual abuse e.g. they may be excluded due to the allegations being made by the "spends time with" parent, they may have been excluded because an appeal was dismissed or set for retrial or for other reasons. As such the percentage of false sexual abuse allegations made by "lives with" parents must be higher than the percentage provided.

(note ii) Unlike methods for determining DV/FV statistics, the very frequent use of multiple false allegations within a decision are not counted separately.
.

(note iii) The search order (the default) is by relevance (how many times the search argument(sexual abuse) was found), hence the apparent disorder according to date.


Note!

This list will be expanded upon over time.

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