Sexual abuse in parenting proceedings and related allegations must be addressed on the evidence before the Court. In appropriate cases, a Court may determine that compelling inferences are open on the evidence before it.
Where allegations of sexual abuse in parenting proceedings are made in relation to a child, any finding made by the trial judge regarding those allegations will stand on any appeal unless they are contrary to the evidence or compelling inferences or are obviously improbable.
It is not necessarily enough to succeed on allegations of sexual abuse in parenting proceedings to rely upon affidavit evidence of a parent or alleged key witnesses. The consistency of that affidavit evidence and the credibility of witnesses will be of real importance. Where a court finds that a witness has been influenced by another person regards the affidavit evidence of that witness, the integrity of the evidence of that witness is severely compromised.
Recent Case Law
In Ferreday & Layh , the Full Court of the Family Court of Australia dismissed an appeal by the father who claimed amongst other things that the primary/trial judge had failed to make a finding of sexual abuse in parenting proceedings in relation to a child. Orders sought by the father included that all sexual interference with the child was to cease and a declaration that the child had been sexually abused by both the mother and a Mr. Y.
The primary judge had not accepted as true the allegations of sexual abuse of the child that had been made by the father. The Full Court noted that there had been significant differences regards the affidavit evidence given by the paternal grandmother and her statutory declaration concerning the allegations that she made of having witnessed sexual abuse of the child. Her evidence was internally inconsistent and inconsistent with the father’s evidence. Both her evidence and the evidence give by a neighbour were found by the primary judge to have been coloured by their obvious acceptance of the father’s concerns. The primary judge considered that it was likely that the paternal grandmother’s evidence was “either promoted by the [father] or at the very least significantly coloured by his presentation to her”. The primary judge had however found Mr Y to be a credible witness.
The Full Court considered that these findings were open to the primary judge.