By Amy Sarcevic and Ugur Nedim
As children, many of us heard the fable about the boy who cried wolf. For most of us, the story did its job and we learned never to make false assertions, for fear of being ignored the next time we needed someone to listen. But somewhere along the way, some of us forgot this age-old lesson.
Sadly, false accusations are rife in the legal system, and have the potential to ruin the lives of innocent people.
Perhaps one of the most devastating examples is somebody being falsely accused of abusing his or her own child – a claim sometimes made to bolster the accuser’s position in parenting proceedings.
Instances like this are surprisingly common. Research cited in a report by the Australian Institute of Family Studies suggests that one in five accusations about child sexual abuse may be made out of malice.
The problem is so serious that it caused a retiring Family Court justice to call for additional measures to address the issue of parents using false claims of child abuse as a “weapon” to stop spouses from seeing their children.
Here’s some information that may assist you if you are falsely accused.
A false accuser can face serious consequences
Currently, there are laws which impose severe penalties for such conduct. One of these is under section 314 of the Crimes Act 1900, which prescribes a maximum penalty of seven years in prison for false accusations made with the intention of subjecting an innocent person to an investigation.
In addition, under section 117 of the Family Law Act, the courts have discretionary powers to make “cost orders”, meaning that your spouse may have to pay your legal fees if they are caught out making a false allegation against you.
While many who make false claims escape the direct consequences, there are certainly others who have faced both criminal prosecutions and civil proceedings for compensation over their misconduct.
According to the Judicial Commission of NSW, 50 percent of those who pleaded guilty or were found guilty of making a false accusation between January 2018 to September 2019 were sentenced to full time imprisonment; with the remainder receiving intensive correction orders, community correction orders and section 9 good behaviour bonds.
The statistics are on your side
Consistent with global trends, only a fraction of child abuse claims made in Australia are substantiated. Out of 355,935 child abuse notifications made to the AIHW made in In 2015 to 16, only 60989 were authenticated, while a high number could not be proven.
Also, despite the commonality of false accusations in the Family Court, the research shows that very few result in an unfavourable outcome for the falsely accused parent.
The Australian Institute of Family Studies found that 97 percent of fathers retained visiting or parenting rights, despite allegations made against them.
That said, being the target of such a claim can work against you during court proceedings.
A range of bodies are tasked with determining the credibility of claims
These include state and federal police forces; and special Joint Investigation Response Teams comprising police officers, members of the Department of Family and Community Services (or FACS), medical examiners and counsellors.
These will work together to determine whether a child is at risk and if there is a reasonable suspicion that a crime has occurred.
Criminal defence lawyers also undertake investigations on behalf of those who are charged with – or suspected of – child abuse.
This process can include engaging private investigators and other experts, interviewing witnesses, serving subpoenas on various bodies and communicating with prosecutorial bodies.
They may seek to establish flaws in such claims; prevent charges from being brought; or push to have brought charges withdrawn and false accusers criminally prosecuted.
Establishing good character can help
Part of the investigative process may involve an inquiry into whether the accused person has previously committed similar offences, or any criminal offences at all.
Evidence of good character, such as a clean or unsubstantial criminal record, gainful employment and contributions to the community can help overcome serious claims such as child abuse.
Remaining vigilant is the key
Above all, it is important to be proactive when faced with a false accusation, and not give up in the face of a vindictive party, seeking to use their claims against you as a “weapon” to further their interests.
Keeping or obtaining materials which undermine claims – whether on your own or through a professional on your behalf – can put you in a strong position when it comes to countering the accusations and seeking justice against a false accuser.
So, remain vigilant, be strong and don’t let a vengeful person get the better of you, especially when it comes to your relationship with your children.