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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 the paragraph 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 paragraph 5, would fall within but are not limited to this definition. Other circumstances may also fall within the definition.