Allegations of child sexual abuse pose agonisingly difficult issues for families, family law professionals and the courts. We present data from the population (N=521) of Family Court of Australia judgements containing allegations of child sexual abuse published in the Australasian Legal Information Institute’s Australian database.
Our data cover all in-scope judgements published between mid-2012 and mid-2019, of which 71 dealt with cases that were uncontested. A further 70 were contested but the allegations were abandoned before the end of the trial. We classified the remaining 380 cases as “fully contested”.
Of this group –
- (a) in 14% of cases, judicial officers expressed a direct or clearly implied belief that the allegations of child sexual abuse were true;
- (b) risk of sexual harm to a child was found in 12% of judgements;
- (c) when no risk of sexual harm was found, judges were more than twice as likely to regard the allegations as genuine but mistaken rather than to have been deliberately misleading;
- (d) just under two-thirds of allegedly unsafe parents had the time they spent with their child(ren) increased by the court; and
- (e) in 17% of judgements, children’s living arrangements were changed to the allegedly unsafe parent.
4.2 Key findings
In the majority of judgements examined, children lived primarily with their mother at the beginning of the hearing (85%) and most allegations of child sexual abuse were raised by mothers. The applicant in contested hearings tended to be the father against whom an allegation of child sexual abuse was made. Typically, in these cases the applicant father alleged a breach of parenting orders because the mother was withholding the child/ren on the basis that the child was being sexually abused while in the father’s care.
Among all judgements arising from fully contested hearings: (a) judicial officers expressed belief that allegations of child sexual abuse were true in 14% of the cases; (b) risk of sexual harm to a child was found in 12% of judgements; (c) when no risk of sexual harm was found and a judicial view could be determined, judges were more than twice as likely to regard the allegations as genuine but mistaken rather than to have been deliberately misleading; (d) just under two-thirds of allegedly unsafe parents had the time they spent with their child(ren) increased by the court; and (e) in 17% of judgements, residence arrangements were changed to the allegedly unsafe parent.
When considered against uncontested hearings, judges expressed belief in 73% of judgements, while risk of sexual harm was found in 65% of judgements. A risk of sexual harm was not found in any of the judgements in which the allegations were abandoned during the hearing although, in one such case, the allegations were believed. Allegations were more likely to be abandoned where there was an expert report rather than when no such report existed, and during a trial rather than an interim hearing. Being on the Magellan list, on the other hand, made no difference to whether allegations were abandoned.
4.3 Triangulation of findings
Our findings are broadly in line with those reported by Ferguson et al. (2018) in Australia and more recently by Meier (2021) in the United States. As noted, Ferguson et al found that only 10% of the allegations of child sexual abuse made in the Family Court of Australia were “substantiated”. They found that 73% were “unsubstantiated” and 16% resulted in no determination. Of the “unsubstantiated” cases, 84% were coded as disbelieved.
Meier (2021) reported on 2,189 judgements resulting from mothers’ allegations of family violence and child maltreatment made to a wide range of courts in the United States. With respect to allegations of child sexual abuse, Meier (2021) found, among other things, that mothers were believed in 19% of the judgments.
Like the present study, the data from Ferguson and her colleagues were derived from a population of AustLII judgements. Their population of 156 judgements was considerably smaller than ours, and many of the coding categories differed. However, two key outcomes – a low percentage of findings of unacceptable risk, and a low percentage of cases in which judges indicated belief in the truth of the allegations – are consistent with our own.
In addition, among the 73% of judgements in which allegations were categorised as unsubstantiated, Ferguson et al. (2018) found that almost one in four were thought by the judge to contain elements of “parental alienation”;28 and among the 16% of judgements in which no determination was made, one in five judges nonetheless identified parental alienation as a factor to be considered.
The present study did not code for suggestions of “parental alienation” but did code for an overlapping variable: that the allegedly protective parent did not hold a genuine belief in the truth of his or her allegations (i.e. the parent made allegations that the judge regarded as deliberately misleading). Of those judgements arising from a contested hearing in which the judge’s view could be discerned, 25%29 contained a formal finding that the allegations were deliberately misleading. This figure is consistent with the parental alienation data coded by Ferguson and her colleagues. It is also consistent with the findings that restraining orders or warnings were directed toward the allegedly protective parent in 25% of the fully contested hearings.
4.4 Two contextual observations
Before concluding, two contextual observations warrant brief mention. The first speaks to reflections by Meier (2021), whose key findings have been noted above. The second speaks to reflections by Middleton et al. (2014) on the “dynamics of silence”.30
Meier (2021:33) asks the question, “Why are mothers’ claims of abuse so widely denied in court?”. Meier is clearly of the view that many such denials are ill-founded. As she puts it, “[s]ocial media and professional reports abound in which clear evidence of almost certain abuse is ignored, minimized and sidestepped, or its existence denied” (Meier, 2021:44). Meier’s (2021:44) belief is that “human brains are hard-wired with defenses against awareness of horrific realities, especially those inflicted by humans against others”. She suggests that “simply inferring that too many judges are ignorant or biased is both questionable and unfair to the many conscientious judges doing their best to achieve what they believe is right for children” (Meier, 2021:44).
Our reading of the judgements, many of which go to considerable lengths to carefully weigh the evidence presented, is consistent with this suggestion. It may also be, as Meier believes, that we have inherited a neurological tendency or perhaps an ongoing social disposition to minimise both the impact of child sexual abuse and the frequency with which it occurs. A competing hypothesis, however, is that we have indeed become increasingly aware of the key issues around child sexual abuse but that our adversarially informed decision-making processes are failing families and require revision, reform or replacement (see, e.g. Cossins, 2020).
Finally, we note the views of Middleton et al. (2014). Like Meier (2021), these authors believe that the existence of child sexual abuse continues to be denied or minimised but link the primary problem to more global issues of gender and power. Theirs is a darker perspective, which suggests continued widespread ignorance about what they see as deliberate attempts to silence victims of child sexual abuse.
Readers will no doubt make up their own minds about the value of these two perspectives. We have seen our main task not as providing commentary but as that of extracting and reporting on the data. In a spirit of allowing the data to “do the talking”, we conclude by asking fourteen questions. Though not exhaustive, we hope these questions might help shape future engagement with this important issue. We would welcome responses from readers – particularly those on the frontline of child protection and decision making about children.
4.5 Some questions arising from the data
- To what extent are the findings from the present study surprising, unsurprising, or both? Why?
- Which patterns and assumptions in our data require further investigation? Ideally, what would that research strategy, related method(s) and analytic approach look like?
- How adequate are current litigation processes for responding to, and making determinations about allegations of child sexual abuse made in the context of post-separation parenting disputes? Should alternatives to adversarial processes be explored?
- How affordable, accessible and adequate are current investigative processes in child sexual abuse cases? What level of assistance do they provide to courts?
- Should all cases in which child sexual abuse is alleged be referred to the Family Law Courts’ Lighthouse Project and/or considered as candidates for the Evatt list or the Magellan list?31
- In the light of what is known about the impact of child sexual abuse, to what extent are judges, barristers, solicitors and Court staff, as well as independent experts employed within and outside the Court aware of and trained in trauma-informed practice?
- To what extent is equal shared parental responsibility feasible and viable in cases in which child sexual abuse is suspected or alleged?
- How workable are the presumptions, limitations and internal logic inherent in the “unacceptable risk” test set out in the 1988 High Court Judgment in M & M?
- Why do so few child sexual abuse cases result in a finding of unacceptable risk?
- Why do so few child sexual abuse cases attract a formal statement of belief in the allegations?
- Should parents expect an indication from judges as to whether allegations of child sexual abuse are credible or otherwise?
- Why do some parents who allege child sexual abuse abandon their allegations during contested court proceedings? Are there lessons to be learned from a close examination of these cases?
- Should lawyers consider aligning advice to parents wishing to make allegations of child sexual abuse with findings from the present study? Would it be prudent to await evidence from further studies? Or do such studies fall outside the ambit of individual advice?
- Across all jurisdictions concerned with the protection of children, how can child sexual abuse investigations be better coordinated?