Benton & Benton 2014 FamCA 251
A mother held a genuine strong belief that the father had sexually abused his stepdaughter (the mother’s daughter) when aged 13 years, but the father had been found not guilty in criminal proceedings. The father had two children aged 7 and 10 years at the time of the hearing, and the mother asserted that the father had also earlier sexually abused the younger daughter.
When aged 13 years the step-daughter had accessed pornography and in explaining to her mother said that her stepfather had inappropriately touched her and kissed her, and the stepfather had acknowledged touching her in horseplay in a way that made her feel uncomfortable. The matter was taken to trial four years later.
The judge found that the family court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access is granted, and must assess the magnitude of that risk. A court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The judge cited Justice Fogarty’s principles including that the onus of proof is the ordinary civil standard of ‘on the balance of probabilities’, but the components which make up that conclusion do not all need to be established to that standard, as a court may reach a conclusion of unacceptable risk from the accumulation of factors, none or only some of which, are proved to that standard.
The judge found that there was an unacceptable risk that the father might cross the line between tickling, raspberries and roughhouse play with his step-daughter onto deliberately touching her on the breasts in an inappropriate way (sexualised behaviour by parent).
A second issue involved a daughter aged 5 years who used night nappies, and who asked for assistance to put barrier cream on her urethra to prevent soreness. The girl told the maternal grandmother that the father put the cream inside the vagina as well as on the labia. The family consultant observed the child jump on her father’s lap and the judge found that the children had a strong relationship with their father. The judge did not find that there was an unacceptable risk that the father had sexually abused the child.
The judge found that it was in the children’s best interests for the father not to be alone with the children, and that it was in the best interests of the children to spend time with the father in the presence of another adult who acknowledges the findings made about the father’s behaviour.