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Family Law in Canberra – What do you do if you think your children are at risk of abuse from your Ex?

By September 2, 2014No Comments

By Cristina Huesch

A recent Family Court case handed down allowed a mother to refuse to hand over her children in circumstances where she genuinely thought the children were at risk of sexual abuse from the father. The mother in the case of Starkey (No 2) had children aged 8 and 10 with her ex-husband. She feared that the children had either been abused by the father, or were at risk of unacceptable abuse in future by the father. The court ordered that the children don’t spend any time with the father.

Many parents are concerned that an order for contact (or ‘time spent with’) is made, even where there are allegations of abuse.  What made this case different to others? Let’s take a look at the facts which, taken as a whole, made this case different:

  1. The father had suffered a major head injury in a car accident and lost 1/3 of his capacity.
  2. A clinical psychologist wrote a report as to the levels of insight the father had to his children’s needs and found he had poor insight particularly about issues such as sexual boundaries.
  3. The children themselves made certain statements and allegations about what the father had done to them.
  4. There was evidence from the mother that no supervised contact was available; and even if it were, supervision was not appropriate for the children;
  5. Child Protection Services (CPS) were involved and also found that the allegations of sexual abuse were the most likely explanation for the children’s comments about the father.
  6. There was evidence that the mother’s ability to provide ongoing emotional and psychological care for the children would be compromised, if an order for contact was made. Basically, she so genuinely believed the father was abusive, that she would be unable to properly function as a mother if she had to hand the children over for contact.

It’s interesting that whilst CPS didn’t actually agree that the father abused the children, they noted that the allegations alone and the mother’s belief about them had a detrimental effect on the children.

There are also many variances in cases about children, and for judges and courts to consider what order is in the children’s best interests is a hugely difficult task. Whether you are successful or not can depend on the quality of your evidence (including issuing subpoenas to  child protection workers, schools, police) and having individuals assessed (ie by clinical psychologists who prepare reports for the court). An independent children’s lawyer can also be appointed and that lawyer may meet the children and can ask them for their views. Preparing such a case is a long drawn out, complex and expensive matter (if not Legally Aided).

Leave your parenting matter in the best hands – come and see Cristina Huesch, Accredited Specialist in Family Law, and also trained independent children’s lawyer, for comprehensive and realistic advice on your prospects.


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