The Family Law Act 1975 (Cth) provides that any parenting orders are to be made in the best interests of the children, and in determining these best interests, the Court must have regard to the following:
- The benefit to the children in having a meaningful relationship with both parents; and
- The need to protect the children from physical or psychological harm.
Out of the above considerations the Court is to prioritise and make orders necessary to protect the children from harm.
Therefore, the question the Court is often faced with is whether risk alleged in a case is an “unacceptable risk” warranting greater consideration, or whether there are means to mitigate such risk such as orders for supervised time with the party who poses the risk, for example.
The recent Full Court decision of Isles & Nelissen [2022] FedcFamC1A 97 clarified that in assessing the risk of harm, it does not need to be proven that such harm is likely to occur on the balance of probabilities for there to be a deemed unacceptable risk.
In this case, during the trial the parties’ eldest child (aged 10) made disclosures of sexual abuse allegedly perpetrated by the father. The father was subsequently charged, however the criminal proceedings were withdrawn as a result of insufficient evidence.
The parties entered into consent orders shortly thereafter for the father to spend unsupervised time with the children. The state child welfare agency then intervened and obtained orders in the state Court for the father’s time to be supervised.
The father then commenced proceedings in the Federal Circuit and Family Court of Australia and joined the state welfare agency to the proceedings. The trial Judge held that despite being unable to make a positive finding of sexual abuse, this would not prevent the Court from finding that there is an unacceptable risk and accordingly, held that the father posed an unacceptable risk to the children.
The father appealed this decision and argued that the trial judge failed to apply the civil standard of proof (being a finding on the balance of probabilities) when determining the unacceptable risk.
However, the Full Court rejected this and confirmed that the trial judge was correct in finding that the test for making a positive finding of sexual abuse is separate from findings of unacceptable risk of harm.
In determining unacceptable risk, the Court held that there are 3 relevant factors to assess including:
- Whether there are facts that indicate risk, either presently or in future;
- Magnitude of the risk; and
- Whether there are tools/circumstances that can adequately mitigate that risk.
Therefore, this case clarified that determining an “unacceptable risk” is a predictive exercise looking at the possibility which cannot be determined according to the civil standard of proof, and whilst evidence based, it is not limited to findings of past fact.
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