Re W (Sex abuse: standard of proof)

The Full Court of the Family Court of Australia (Kay, Holden and O'Ryan JJ) considered an appeal concerning allegations of sexual abuse made by a child against their father. The primary dispute revolved around the standard of proof to be applied by the court when determining whether such allegations were established.

The central legal issue before the Full Court was whether the standard of proof for allegations of sexual abuse in family law proceedings should be the ordinary civil standard of proof on the balance of probabilities, or a higher standard, akin to that required in criminal proceedings, due to the gravity of the allegations.

The Full Court affirmed that the ordinary civil standard of proof on the balance of probabilities applies to all allegations in family law proceedings, including those of sexual abuse. Their Honours reasoned that the Family Law Act 1975 (Cth) does not prescribe a different standard for such allegations. While acknowledging the seriousness of sexual abuse allegations and the need for careful consideration, the Court held that the balance of probabilities standard, which requires a finding that an allegation is more likely than not to be true, is sufficient. This standard allows for the protection of children while ensuring fairness to the parties involved. The Court emphasised that the application of this standard requires a thorough and careful evaluation of all available evidence.