When determining custody arrangements, it is essential that the best interests and welfare of children takes priority.

In a recent case, a father and mother had four children. The father had previously been charged with possession of child exploitation material. The couple’s eldest child claimed the father had sexually assaulted him. The mother confronted the father. However, he denied these allegations. Nevertheless, the mother withheld all the children from the father, believing that he posed an unacceptable risk of harm to the children. The father then sued in the Family Court seeking orders for access to the children.

The eldest child was interviewed by the police three times. During the first interview he did not repeat the abuse allegations but during the second and third interviews the child repeated the allegations he had made to the mother.

The child had also repeated the sexual abuse allegations to his uncle, to an expert psychologist and to the family consultant. The father was charged with sexual assault after the second interview, but these charges were later withdrawn due to a “lack of specificity”.

During the trial in the Family Court, the judge was unable to make a finding of sexual assault however he was able to make a finding that if the father had unsupervised time with the children there would be an unacceptable risk. The judge therefore ordered that the children should live with their mother and that any time with the father would have to be supervised.

Allegations of abuse should always be taken seriously. Sometimes there will not be enough admissible evidence to get a criminal conviction, but the same evidence may satisfy the standard needed for the Court to make parenting orders.