Allegations of child sexual abuse: An empirical analysis of published judgements from the Family Court of Australia 2012–2019
Allegations of child sexual abuse: An empirical
analysis of published judgements from the Family
Court of Australia 2012–2019
Nola Webb1
* | Lawrence J. Moloney2 | Bruce M. Smyth3 |
Robyn L. Murphy4
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which
permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no
modifications or adaptations are made.
© 2021 The Authors. Australian Journal of Social Issues published by John Wiley & Sons Australia, Ltd on behalf of Australian
Social Policy Association
*Retired.
1
Barrister-at-Law, Supreme Court of NSW,
Lismore, NSW, Australia
2
La Trobe University, Melbourne, VIC,
Australia
3
Australian National University, Canberra,
ACT, Australia
4
Technologies Consultant, Melbourne, VIC,
Australia
Correspondence
Bruce M. Smyth, ANU Centre for Social
Research & Methods, Research School of
Social Sciences, RSSS Building, 146 Ellery
Cr, Acton, ACT 2601, Australia.
Email: Bruce.Smyth@anu.edu.au
Abstract
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
| WEBB et al. 323
1 | INTRODUCTION
Allegations of child sexual abuse made after parental separation raise highly consequential
and generally long-term issues for family members. In an atmosphere frequently plagued by
uncertainty and with high stakes for all, anecdotes about outcomes in litigated cases prompt
claims ranging from judicial objectivity and fairness to excessive judicial subjectivity and systemic bias. In this article, we analyse all published in-scope judgements heard in the Family
Court of Australia over a recent seven-year period. By providing a contemporary empirical
benchmark of court outcomes in this difficult area of decision making, our core aim is to stimulate much-needed discussion about children alleged to be at risk of sexual harm in the care
of a separated parent.
We begin by noting that mainstream definitions of child sexual abuse continue to lack precision (Mathews & Collin-Vézina, 2019), ranging from the broad (e.g. Butchart Harvey, Mian, &
Fürniss, 2006) to the more detailed and focused (e.g. Quadara, Nagy, Higgins & Seigel, 2015).
We note too that there are cultural and legal variations in the literature with respect to issues
such as what constitutes “childhood” and what defines a “sexual act”. Notwithstanding these
limitations, there is broad agreement in the literature that the key ingredients of child sexual
abuse include children’s lack of comprehension and consent alongside a profound betrayal of
the trust placed in the perpetrator who, in the eyes of the child, typically holds a position of
power and “prestige” (Commonwealth of Australia, 2017:12).
1.1 | Impact and frequency
Multiple reviews in the past two decades have demonstrated that child sexual abuse is associated with a plethora of negative emotional and physical outcomes (MacGinley, Breckenridge
& Mowll, 2019).1
Important but less extensive research points to factors associated with moderating these impacts (MacGinley et al., 2019).2
In addition, the broader consequences of child
sexual abuse have been shown to reach far into families and communities, with significant
costs associated with primary and rehabilitative healthcare, education and welfare assistance,
child protection and the justice system (Fang, Derek, Brown, Florence & Mercy, 2012).
Estimates of the extent of child sexual abuse have varied according to a range of factors, including the representativeness of data and the child sample’s gender ratio, the country in which
the sample was derived and within-country ethnic background of subsamples, how narrowly
or broadly child sexual abuse is defined,3
how the data were gathered (e.g. face-to-face interviews typically yield differing results to other survey methods), the nature and sequencing of
questions (i.e. order effects) and reporter source (e.g. self-report vs carer) (e.g. see Peters, Wyatt
& Finkelhor, 1986; Stoltenborgh, Van Ijzendoorn, Euser & Bakermans-Kranenburg, 2011;
Wyatt & Peters, 1986). There is also persistent evidence that for a variety of complex reasons,
child sexual abuse has been – and almost certainly remains – significantly under-reported by
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.