Definitions of abuse

Physical abuse and sexual abuse are not defined in the Children Youth and Families Act 2005. Courts in Australia have accepted various actions as abusive.

Physical abuse

Non-accidental physical contact or the threat of physical contact to a child that causes or is likely to cause more than minimal or transient adverse physical or emotional consequences for the child.

Physical abuse of a child can occur regardless of the intention of another person.

Actual or inferred intention of a person may be relevant as a matter to be taken into account in deciding whether or not physical abuse has occurred but does not of itself determine whether or not physical abuse has occurred.

Failure to avoid behaviour or to protect a child from physical harm which results in physical injury or harm to the child may amount to physical abuse of the child.

Certain actions by an out of home carer in relation to a child in out of home care are prohibited by section 161B of the Act and will be considered by the Suitability Panel in appropriate cases.

Sexual abuse

Sexual or indecent conduct by an adult toward a child or exposure by an adult of a child to sexual or indecent conduct.

Sexual abuse involves a sexual or indecent element.

Sexual abuse may involve exposure of a child to sexual or indecent conduct.

Failure to avoid behaviour, failure to protect a child from sexual or indecent behaviour or exposure of a child to the risk of such behaviour can amount to sexual abuse of the child.

Sexual abuse of a child can occur regardless of the intention of another person.

Sexual abuse of a child can occur whether or not the alleged behaviour is engaged in for sexual gratification.

Sexual abuse of a child can occur whether or not a power imbalance exists between the child and another person.

Examples of behaviour

Acts of physical abuse include but are not limited to physical assault or battery, striking or hitting with a hand, fist, foot or other object, punching, kicking, stabbing, choking, burning, shaking, pushing, throwing, pinching, biting, pulling hair, and actions resulting in physical injury. They may also involve exposure of a child to or putting them at risk of such conduct by others.

Acts of sexual abuse involve sexually inappropriate behaviour including but not limited to sexual assault, rape, molestation, indecent conduct, sexual exploitation, prostitution, sexual touching and exposure to pornography. In all circumstances, though, the conduct will have a sexual or indecent element. They may also involve exposure of a child to or putting them at risk of such conduct by others.

Principles and working definitions

As a result of cases which have been heard by the Suitability Panel the following principles and working definitions of physical abuse and sexual abuse have been formulated.

Physical abuse

  1. Physical abuse is not defined in the Children Youth and Families Act 2005. There are however many actions which have been accepted by courts in Australia and overseas as amounting to physical abuse. These include but are not limited to physical assault or battery, striking or hitting with a hand, fist, foot or other object, punching, kicking, stabbing, choking, burning, shaking, pushing, throwing, pinching, biting, pulling hair, and actions resulting in physical injury.
  2. In some jurisdictions, there is a requirement that actions which amount to physical abuse are non-accidental. However, intention is not a determinative consideration. A child can be seriously adversely affected by one-off act or by sustained conduct which is inflicted with no intention to cause adverse effects.
  3. There may be circumstances where failure to avoid behaviour or failure to act to protect a child from physical harm which results in physical injury or harm to a child may also amount to physical abuse. It may be that, objectively, adverse consequences were reasonably foreseeable and therefore should have been refrained from or avoided. For example, it may be that, the circumstances of provision of care to a child were so neglectful, unreasonable or risk-creating that it was reasonably foreseeable that some form of injury or physical harm could come to a child.
  4. The actual or inferred intention of the person who causes harm or creates the relevant circumstances which give rise to harm are amongst the matters to be taken into account in determining whether on the balance of probabilities physical abuse has occurred.

The Suitability Panel has adopted the following as a working definition of physical abuse for the purposes of s105 of the Act:

Non-accidental physical contact or the threat of physical contact to a child that causes or is likely to cause more than minimal or transient adverse physical or emotional consequences for the child.

It follows that the circumstances outlined in point 1 fall within but are not limited within this definition which may include other circumstances as well.

Sexual abuse

  1. It is accepted that sexual abuse involves sexually inappropriate behaviour including but not limited to sexual assault, rape, molestation, indecent conduct, sexual exploitation, prostitution, sexual touching and exposure to pornography. Generally, such conduct when engaged in by adults in relation to children involves an imbalance and exploitation of the power relationship between an adult and child. Generally, but not always, such conduct will involve conduct engaged in for the sexual gratification of the adult. In all circumstances, though, the conduct will have a sexual or indecent element. It may also involve exposure of a child to such conduct by others.
  2. As with physical abuse, the adult in whose care the child is placed, may be responsible for circumstances where a reasonable person would foresee that the circumstances are so neglectful or risk-creating that failure to avoid the situation or failure to act would expose the child to sexually inappropriate or indecent circumstances and therefore amount to sexual abuse of the child.

The Suitability Panel has adopted the following as a working definition of sexual abuse for the purposes of s105 of the Act:

Sexual or indecent conduct by an adult toward a child or exposure by an adult of a child to sexual or indecent conduct.

It follows that the circumstances outlined in point 5, would fall within but are not limited to this definition. Other circumstances may also fall within the definition.

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