When Belief Becomes Risk: Family Court Rules Against Implacable Allegations of Abuse”

📝 Introductory Paragraph:

In Moss & Moss (No 2), the Federal Circuit and Family Court of Australia (Division 1) grappled with deeply disturbing allegations of sexual abuse brought by the mother against the father and paternal grandmother. At the heart of the case was the question of whether the children should live with the mother, who fervently believed the abuse occurred, or the father, whom the children had not seen for over two years. Judge Brasch meticulously reviewed extensive evidence, including drawings, s 93A interviews, medical records, expert reports, and the mother’s conduct, ultimately concluding that the abuse allegations could not be substantiated. Paradoxically, it was the mother's unwavering belief in abuse—and her conduct based on that belief—that was deemed an unacceptable risk to the children's welfare.

⚖️ Facts and Issues:

Facts:

• The children, X (born 2017) and Y (born 2020), lived with the mother since separation.
• The mother alleged both the father and paternal grandmother committed repeated sexual and physical abuse against the children.
• Allegations included digital and penile anal rape, and bizarre claims such as the grandmother breastfeeding and sexually assaulting the children.
• The children had not seen the father since January 2023.
• Medical and police investigations failed to substantiate the claims.
• The father denied all allegations and proposed supervised contact supported by therapeutic engagement.

Issues:

1. Whether the court could make positive findings that the father (and/or grandmother) committed acts of sexual abuse.
2. Whether the father posed an unacceptable risk of harm to the children.
3. Whether the mother posed an unacceptable risk of harm to the children due to her implacable beliefs and conduct.
4. What parenting orders should be made in the best interests of the children.

📚 Rule (Law):

The judgment primarily applied the following legal principles and authorities:

• Standard of Proof – s 140(2) Evidence Act 1995 (Cth): The more serious the allegation, the stronger the evidence required.
• Best Interests of the Child – s 60CA Family Law Act 1975 (Cth): Paramount consideration.
• Unacceptable Risk Test – Derived from M v M (1988) 166 CLR 69: The court must assess not just whether abuse occurred, but whether a parent poses an unacceptable risk.
• Evidentiary Caution – Jones v Dunkel and Browne v Dunn applied sparingly given the nature of parenting proceedings.
• Case Law: Alam & Sayid [2021] FamCA 564, Guerra & Guerra [2021] FedCFamC1F 73, Wei & Xia [2024] FedCFamC1A 65, and Quincey & Quincey [2024] FedCFamC1A 30.

🔍 Application (IRAC Analysis):

1. Positive Finding of Abuse?

Judge Brasch examined extensive evidence including:

• s 93A interviews (children made inconsistent or vague statements, sometimes denying harm)
• Medical records (showing non-specific symptoms like redness or discolouration often attributed to nappy rash or constipation)
• Psychologist reports (containing drawings and ambiguous phrases like "tummy finger")
• The lack of direct disclosures by children to medical professionals

Ultimately, Brasch J ruled no positive findings of sexual or physical abuse could be made, noting:

“Looking at the totality of the evidence, positive findings of abuse cannot be made… many of the allegations are vague, general and lack content and context”.

2. Did the Father Pose an Unacceptable Risk?

Despite the gravity of the allegations, the Court held the father did not pose an unacceptable risk of harm, citing:

“The evidence does not allow for a positive finding that any abuse occurred… the father does not pose an unacceptable risk of harm”.

3. Did the Mother Pose an Unacceptable Risk?

Yes. The Court found that the mother’s:

• Implacable belief in the abuse,
• Persistent questioning of the children, and
• Conduct such as photographing genitalia, making unsupported allegations, and involving professionals excessively

…created a psychological risk of long-term harm to the children, including false memories and identity issues.

“The mother poses an unacceptable risk of harm to the children via her implacable beliefs and associated evidence collecting conduct”.

4. Best Interests and Parenting Orders

Given the complexity and competing risks, the Court adopted a middle path:

• Children continue to live with the mother, but
• Father to have supervised time, increasing gradually
• Therapeutic supports to be implemented to address the children’s fear and confusion
• Future contact to be conditioned on progress in therapy

This approach aligns with Guerra & Guerra, emphasising incremental rebuilding of relationships through safe and supported measures.

🧠 Judgment and Reasoning:

Judge Brasch’s reasoning was steeped in:

• Caution against false positives (i.e., wrongly concluding abuse)
• Concerns about suggestibility and emotional harm from the mother’s conduct
• Recognition of the father's denial and limited contact
• Evaluation of the expert evidence and children’s developmental understanding

As the Judge noted:

“The children will grow up believing that they have been abused by the father if only exposed to the mother’s narrative – where such an inaccurate belief is harmful to the children’s sense of self”.

⚠️ Take-Home Lesson:

In parenting matters involving serious allegations, it is not only the truth of those allegations that matters, but the psychological impact of persistent unsubstantiated beliefs on the children’s well-being. The Family Court is willing to find that such beliefs themselves constitute an unacceptable risk.

Belief is not evidence. In family law, conviction without corroboration can cause more harm than protection.