Added: February 22, 2014 – Last updated: April 8, 2017


Author: Wendy Lee Foote

Title: Child Sexual Abuse Allegations in the Family Court

Subtitle: -

Thesis: Ph.D. Thesis, University of Sydney

Advisor: Lesley Laing (and Marie Wilkinson)

Year: December 2006

Pages: 399pp.

OCLC Number: 271556201 – Find a Library: WorldCat

Language: English

Keywords: Modern History: 20th Century, 21st Century | Oceanian History: Australian History | Prosecution: Trials; Types: Child Sexual Abuse, Incestual Rape


Link: Sydney eScholarship Repository: Digital Repository of the University of Sydney (Free Access)


Abstract: »This research is concerned with decision-making in judgments made in the Family Court of Australia where there are allegations of child sexual abuse. The focus of the research is the identification of the concepts that are relied on in the assessment of these allegations by professionals providing evidence to the court and how judges determine what evidence should be given weight and relied on. This research was undertaken against a historical and current backdrop of scepticism about the veracity of child sexual abuse allegations in family law disputes, despite the heightened risk to children, and in particular to girls, after their parents separate and/or divorce. In this context the Family Court is also increasingly becoming a part of the child protection system as allegations of abuse are raised in hearings. This research has taken place in the period of time after the Reform Act (1995) and before new proposed legislation for 2006 was proclaimed.
This research is based on a detailed thematic analysis of 21 judgments of first instance trials between 1997 and 2001 that were selected for the presence of a child sexual abuse allegation and at least two professionals disputing some aspect of the allegation. Twentyfive family members, including 18 mothers and four maternal grandmothers, made allegations about 28 family members, 21 of whom were fathers. Professionals who gave evidence included 11 child protection officers and 20 court-ordered private assessors (including 17 child and family psychiatrists, three clinical psychologists and 11 court counsellors).
This research found that the context of the allegation, the family law litigation, had a dominant influence on how the allegations were assessed and interpreted: the impact of two influential paradigms, the separation and divorce and the legal/psychiatric paradigms, resulted in a reticence to test out the allegations of child sexual abuse made against fathers. Concepts from these paradigms were applied by court-ordered assessors and represented the sceptical conceptualisation of allegations of child sexual abuse as the product of the parental conflict, associated maternal anxiety and mental illness. In contrast, fathers were not scrutinised as closely against criteria for sex offending even when they made admissions relating to the allegations. Evidence from and about children was not central to the hearings and professionals who were in a position to present assessments of the child sexual abuse allegations to the court were discredited as a result of concerns about ‘contamination’ relating to criticisms of investigation and other methodological errors. In addition, allegations from children were frequently not fully examined or analysed by assessors or the judiciary.
There were glimpses of a child-focused approach in a small number of hearings and, while there was no specialist assessment of the child sexual abuse allegations, there was evidence of specialist knowledge pertaining to domestic violence in cases in which there was a high level of evidence relating to serious domestic violence.
This research has shown that there is a continuing influence of a sceptical paradigm in relation to the assessment of child sexual abuse allegations in the Family Court. It suggests that the scope of assessments needs to go beyond the usual scope of parental competencies to include an assessment of the propensity for child sexual abuse perpetration and the dynamics and effects of incest.« (Source: Thesis)


  Abstract (p. 8)
  Acknowledgements (p. 11)
  Chapter One - Court Under Siege (p. 14)
  1.1 Introduction (p. 14)
  1.2 This thesis (p. 17)
  1.3 My interest in this area (p. 18)
  1.4 Feminism and Child sexual assault (p. 22)
  1.5 Questions pursued in the research (p. 23)
  1.6 Incidence (p. 24)
  1.7 Percentage of father offenders (p. 25)
  1.8 The impact of incest (p. 26)
  1.9 Key terms (p. 28)
  1.10 How to read this thesis (p. 31)
  Chapter Two - The Family Court/Child Protection Nexus (p. 37)
  2.1 Introduction (p. 37)
  2.2 The Family Law Act 1975 (p. 38)
  2.3 Australian research on child abuse in the Family Court (p. 40)
  2.4 Challenges in assessing allegations of child sexual abuse in the Family Court (p. 47)
  2.5 Research on the impact of the Reform Act (1995) (p. 62)
  2.6 Summary: the Family Court as part of the child protection system (p. 64)
  Chapter Three - The Roots of Scepticism: The Context of Decision-Making (p. 66)
  3.1 Introduction (p. 66)
  3.2 The two positions (p. 67)
  3.3 The nature and context of child sexual abuse: The high level of difficulty in assessing child sexual abuse allegations (p. 67)
  3.4 The fixation on false allegations (p. 69)
  3.5 The inadequacy of the 'true/false' dichotomy (p. 74)
  3.6 The historical context (p. 76)
  3.7 Dissent (p. 92)
  3.8 The 'rediscovery' of child sexual abuse (p. 95)
  3.9 Conclusion (p. 97)
  Chapter Four - Child Abuse in the Family Court: The Family Law Backlash (p. 100)
  4.1 Introduction: The defence of the sceptical paradigm (p. 100)
  4.2. The 'great divide' and the 'backlash' (p. 101)
  4.3 The family law backlash (p. 105)
  4.4 The use of forensic psychiatry in the family law (p. 107)
  4.5 Critique of the sceptics' position (p. 114)
  4.6 The counter-response (p. 117)
  4.7 The mother as the key subject of examination (p. 127)
  4.8 The context of the allegations (p. 131)
  4.9 Conclusions (p. 140)
  Chapter Five - Methodology (p. 144)
  5.1 Introduction (p. 144)
  5.2 Aim and research questions (p. 144)
  5.3 The theoretical orientation of the research (p. 145)
  5.4 The orientation of the research and the research approach (p. 149)
  5.5 The sample selection and the data collection (p. 152)
  5.6 Ethical considerations (p. 156)
  5.7 Analysis of the data (p. 157)
  5.8 Limitation of the methodology and research findings (p. 160)
  5.9 Conclusion (p. 161)
  Chapter Six - The Judgments (p. 162)
  6.1 Introduction (p. 162)
  6.2 The cases (p. 162)
  6.3 The profile: children parents and grandparents of this research (p. 190)
  6.4 Dominant themes in the research findings (p. 202)
  6.5 Conclusion (p. 205)
  Chapter Seven - Managing Uncertainty Judicial Decision-Making (p. 206)
  7.1 Introduction (p. 206)
  7.2 The judge as the active narrator: deconstructing and excluding evidence (p. 208)
  7.3 The evaluation of competing professional evidence (p. 212)
  7.4 Discussion (p. 229)
  7.5 Conclusion (p. 234)
  Chapter Eight - Mothers under the Lens, and Children out of Sight: Who and What is the Focus of Assessment? (p. 237)
  8.1 Introduction - an unequal legacy (p. 237)
  8.2 'Gendered decision-making': Mothers and their motives (p. 238)
  8.3 'Bad mothers': Maternal vindictiveness (p. 240)
  8.4 Exceptions - Glimpses of a domestic violence paradigm (p. 266)
  8.5 Discussion: The mother categories (p. 270)
  8.6 Conclusion (p. 274)
  Chapter Nine - The Assessment of Fathers in Family Court Hearings: Sexual Abuse Perpetrators out of Sight (p. 278)
  9.1 Introduction (p. 278)
  9.2 Adult-child sexual interaction (p. 278)
  9.3 Lack of sex perpetrator assessment (p. 279)
  9.4 Fathers where there was a 'no risk' finding (p. 282)
  9.5 Minimisation: underestimating the possible risks of child sexual abuse (p. 288)
  9.6 The association of a 'positive risk' of child sexual abuse and other risk factors (p. 295)
  9.7 The use of a domestic violence paradigm to assess other forms of coercive behaviour (p. 298)
  9.8 Positive findings of risks of child sexual abuse (p. 305)
  9.9 Discussion - The use of different paradigms (p. 306)
  9.10 Conclusions (p. 308)
  Chapter Then - Children: The Subjects of Judicial Decisions (p. 312)
  10.1 Introduction (p. 312)
  10.2 The marginalisation of evidence from and about children (p. 313)
  10.3 Disbelief of the child (p. 320)
  10.4 Inconsistent examination of allegations of sexual abuse (p. 321)
  10.5 Children as victims of a parental dispute (p. 324)
  10.6 The 'parental dispute' as the causal agent of a false allegation (p. 325)
  10.7 Children as creators of false allegations (p. 329)
  10.8 Risk assessment (p. 332)
  10.9 Attempting to understanding the child's world (p. 337)
  10.10 Conclusions (p. 340)
  Chapter Eleven - Conclusions (p. 344)
  11.1 Introduction (p. 344)
  11.2 The context (p. 350)
  11.3 The two orthodoxies and the 'best interests of the child' (p. 353)
  11.4 Implications (p. 354)
  References (p. 357)
  Appendix I - Coding and Conceptual Tree Used to Group Phrases and Concepts (p. 387)
  1. Coding (p. 387)
  2. Summary of the Conceptual Tree (p. 387)
  3. Summary of the revised conceptual tree: revised categories for coding and definitions (p. 388)
  4. Nodes (p. 390)
  Appendix II - Tables (p. 395)
  Table 1: Parental/child characteristics (p. 395)
  Table 2: Explanations for child sexual abuse allegations in judgments (p. 396)
  Table 3: Comparisons - Characteristics where mothers scored higher frequencies than fathers (p. 397)
  Table 4: Categories where fathers were coded more frequently than mothers in negative parenting characteristics (p. 397)
  Table 5: Cases where there was a positive finding of risk in relation to the allegation of sexual contact by a father with a child (p. 398)
  Table 6: Maternal health/emotional state of mind (p. 399)

Wikipedia: History of Oceania: History of Australia / History of Australia since 1945 | Court: Family court / Family Court of Australia | Law: Family Law Act 1975 | Sex and the law: Child sexual abuse, Incest