Re W Abuse Allegations; Expert Evidence

This matter concerned parenting orders regarding the residence of a child, with the wife alleging child sexual abuse by the husband and paternal grandparents. The wife maintained her allegations throughout the proceedings, despite the trial judge ultimately finding no abuse had occurred. The appeal concerned the trial judge's approach to the wife's position and the expert evidence presented.

The central legal issues before the Full Court of the Family Court of Australia were whether the trial judge erred in their assessment of the wife's evidence and her continued assertion of abuse allegations, and whether the expert evidence relied upon by the trial judge was properly considered, particularly concerning the role and function of a child psychiatrist and whether one expert had assumed the role of an advocate.

The Full Court found that the trial judge had made an error in their assessment of the wife's evidence, particularly in relation to her continued allegations of abuse. The Court held that the trial judge's approach had been unduly critical and had failed to adequately consider the wife's perspective and the potential impact of the allegations on her. Furthermore, the Court reviewed the expert evidence, noting the importance of experts remaining impartial and avoiding advocacy. The Court indicated that the expert evidence had been considered, but the trial judge's overall assessment of the wife's evidence was flawed.

The Full Court allowed the appeal, set aside the original parenting orders, and remitted the matter for redetermination by a different judge.