Belief vs. Evidence: Court Rejects Mother’s Sexual Abuse Allegations and Finds Emotional Harm the Real Risk
In Moss & Moss (No 2) [2025] FedCFamC1F 510, Justice Brasch confronted one of family law’s most difficult dilemmas — allegations of child sexual abuse that could not be substantiated by credible evidence. The mother alleged that the father and paternal grandmother had physically and sexually abused both children, while the father denied all wrongdoing. The Court concluded that no positive finding of abuse could be made and that the father did not pose an unacceptable risk of harm. Conversely, the mother’s obsessive conviction and her “evidence-collecting” conduct were found to create emotional harm, justifying orders that limited her influence and introduced therapeutic support. The decision underscores that beliefs unsupported by evidence can themselves endanger children’s wellbeing.
Facts
- Two children, aged 7 and 5, lived with the mother.
- The mother alleged the father and paternal grandmother had committed acts of rape and molestation.
- Police and child-safety agencies investigated but filed no charges.
- The mother continued to gather “evidence” and reinforced the children’s beliefs that they had been abused.
- The Independent Children’s Lawyer (ICL) accepted no abuse could be proved but argued the lesser harm was to let the children live believing abuse occurred rather than move them to the father.
- The father sought to change residence or, alternatively, begin therapeutic contact to restore the relationship.
Issues
- Could the Court make positive findings of sexual or physical abuse?
- Did the father pose an unacceptable risk of harm to the children?
- Did the mother’s conduct amount to emotional abuse creating a greater risk?
- How should s 60CA and s 60CC (Family Law Act 1975 (Cth)) be applied to protect the children’s best interests?
Law
Statutory Provisions
- Family Law Act 1975 (Cth):
- s 60CA – Best interests paramount.
- s 60CC – Factors for best-interest determination.
- s 60CG – Court must avoid exposing a person to unacceptable risk.
- s 4, s 4AB – Definitions of abuse and family violence.
- Evidence Act 1995 (Cth) s 140 – Standard of proof on balance of probabilities, having regard to gravity of allegations.
Key Precedents
- M & M (1988) 166 CLR 69 – Balance-of-probabilities standard heightened for serious allegations.
- Merritt & Merritt [2018] FamCA 1107 – Caution in evaluating children’s statements about abuse.
- Guerra & Guerra [2021] FedCFamC1F 73 – Cumulative evaluation of evidence.
- Jones v Dunkel (1959) 101 CLR 298 – Failure to call a witness may permit inference evidence would not assist, applied cautiously in parenting cases.
- Browne v Dunn (1893) 6 R 67 – Cross-examination fairness rule; relaxed in Division 12A parenting context (Murdock & Madden [2011] FamCAFC 219).
- Goode & Goode (2006) FLC 93-286 – Interim parenting principles (cited by analogy).
Application
1. No Proof of Abuse (¶¶ 72–105)
Justice Brasch applied s 140 of the Evidence Act and M & M — noting the gravity of sexual-abuse allegations requires “clear and cogent” proof. The children’s statements were vague, inconsistent, and often prompted by leading questions. The 2020 police interview of child X, in which she said “mummy hurts me,” contradicted the mother’s narrative. No medical or independent evidence corroborated abuse.
2. Unacceptable-Risk Analysis (¶¶ 66–70, 81–90)
The father’s prior “unwanted erections” were acknowledged as confronting but insufficient to show present risk. There was no ongoing behavior placing the children in danger. Therefore, the Court found the father did not pose an unacceptable risk under s 60CG.
3. Emotional Harm from Mother’s Conduct (¶¶ 78–85, 430–438)
Justice Brasch held the mother’s “implacable belief” and “evidence-collecting behaviour” perpetuated a false narrative that the father was a sexual predator, causing significant psychological harm. This conduct deprived the children of a balanced sense of identity and amounted to emotional abuse within s 4 of the Act.
4. Weight of Expert and ICL Evidence (¶¶ 8–10, 55–60)
While the ICL argued the lesser harm was to maintain the children’s belief in abuse, Justice Brasch rejected that “abhorrent conclusion,” reasoning that living under a false trauma narrative was itself destructive. The Family Reports supported therapeutic re-engagement with the father.
5. Application of Jones v Dunkel and Browne v Dunn (¶¶ 42–53)
The Court refused to draw adverse inferences against the father for not calling the paternal grandmother, citing Murdock & Madden [2011] FamCAFC 219 — the rule’s limited use in parenting cases where issues are diffuse. Similarly, the rule in Browne v Dunn did not prevent rejecting the mother’s evidence, as the father’s denial of all allegations made his position clear.
Judgment and Reasoning
Justice Brasch concluded:
“The evidence does not allow for a positive finding that any abuse occurred. The father does not pose an unacceptable risk of harm to the children. The mother, by contrast, poses such a risk through her implacable belief and associated conduct.” (¶ 430–432)
Orders:
- All prior orders discharged.
- Mother retains sole parental responsibility and the children continue to live with her.
- Father to have supervised contact with a therapeutic scaffold, transitioning gradually to unsupervised time.
- Both parents to engage with psychologists and follow therapeutic recommendations.
- Independent Children’s Lawyer discharged after implementation of therapeutic steps.
Cited Paragraphs and Authorities
- Abuse findings – ¶¶ 72–105
- Jones v Dunkel – ¶¶ 42–48
- Browne v Dunn – ¶¶ 49–53
- Emotional harm – ¶¶ 78, 430–438
- Statutory best-interest analysis – ¶¶ 62–70
Take-Home Lesson
“Belief without proof can itself become harm.”
Family law protects children from both physical and emotional danger. A parent’s sincere but unfounded conviction of abuse can distort a child’s reality and inflict lasting psychological damage. Courts must ground decisions in evidence, not belief, balancing protection with the child’s need for truth and stability.
