Kings & Murray

This case concerned allegations of child sexual abuse made by a mother against the father of their daughter. The dispute centred on whether there was sufficient proof on the balance of probabilities that the alleged abuse had occurred. The court was required to consider conflicting evidence, including the mother's report of the child's disclosure and the father's sworn denial, as well as the opinion of a single expert witness psychiatrist who indicated that the abuse was unlikely. The proceedings were heard in the Family Court of Australia before Faulks DCJ.

The court was tasked with determining the legal issues surrounding the standard of proof in allegations of child sexual abuse, particularly in light of the High Court's decision in *M & M*. This involved assessing whether time spent between a parent and child would give rise to an "unacceptable risk" of abuse, and clarifying that this "unacceptable risk" test does not create an additional standard of proof beyond the balance of probabilities, but rather mandates judicial awareness of potential risks. Furthermore, the court had to evaluate the expert evidence presented, noting a lack of clear and elaborate detail in how the expert reached conclusions regarding the unlikelihood of abuse.

In its reasoning, the court applied the civil standard of proof, requiring it to be satisfied on the balance of probabilities that the alleged abuse occurred, with due regard to the principles in *Briginshaw v Briginshaw*. The court found that it could not feel an "actual persuasion" that the alleged abuse had occurred, nor could it confidently conclude that it had not. This inability to make a positive or negative finding meant that the court focused on the child's best interests under section 60CC of the *Family Law Act 1975* (Cth), balancing the benefit of a meaningful relationship with both parents against the need to protect the child from harm. The court noted the inherent contradiction in the "unacceptable risk" test when a positive finding of abuse cannot be made.

Ultimately, the court made no finding that the sexual abuse alleged against the father had occurred. Consequently, the mother was granted sole parental responsibility for the child, with specific provisions for consultation between the parents regarding the child's health and education. The court also outlined a phased approach to supervised and then unsupervised time between the father and the child, commencing with supervised contact and gradually increasing the duration and frequency of unsupervised time, contingent on the parties completing a specified program.