The fundamental principle in determining parenting arrangements under the Family Law Act 1975 (Cth) is to ensure that any orders made are in the best interests of the children. In determining what is in the children's best interests, the court must have regard to the following primary considerations:
- The benefit to the children of having a meaningful relationship with both parents.
- The need to protect the children from physical or psychological harm.
The second consideration will trump the first consideration. So, if one party poses an unacceptable risk of harm to the children, the court must prioritise the safety of the children, and make orders that protect the children from that risk. In many cases, this will include that the children's time with the party who poses the risk is to be supervised.
The recent Full Court decision in Isles & Nelissen  FedcFamC1A 97 has clarified the meaning of "unacceptable risk" in parenting matters and the evidence required to establish that a party poses an unacceptable risk to the children.
The case related to a father's appeal of orders that provided that the parties' four children live with the mother and spend supervised time with him. The parties' eldest child, aged ten at the time of the trial, made disclosures of sexual abuse allegedly perpetrated by the father. The father was charged with sexual offences against the child, but the criminal proceedings were discontinued as a result of lack of evidence.
Following this the parties entered into consent orders, which provided for the father to spend unsupervised time with the children. This prompted the state child welfare agency to successfully obtain child welfare orders in the state court for the father's time with the children to be supervised.
The father then commenced proceedings in the Federal Circuit and Family Court of Australia, joining the Department of Communities as a party to those proceedings. At first instance, the Court found that it could not make a positive finding that sexual abuse had occurred, but found that the father presented an unacceptable risk of harm to the children. Given this, orders were made for the father to spend supervised time with the children on an indefinite basis. This decision was appealed to the Full Court by the father.
On appeal, the Full Court determined that there are three relevant factors to take into consideration when assessing whether one party poses an unacceptable risk to children. Those factors included the following:
- Whether there are facts that indicate risk, either presently or in the future
- The magnitude of the risk
- Whether there are tools or circumstances that can adequately mitigate that risk
It was noted that the Court will not only consider whether risk has actually been perpetrated but also whether there is a possibility of future harm, which the Court referred to as a "predictive exercise" where the Court is to determine the likelihood of that future harm.
Ultimately, the Court held that the father spending unsupervised time with the children posed an unacceptable risk of harm, and accordingly was not in the best interests of the children. Final orders were therefore made for the children to live with the mother and spend supervised time with the father.
This precedent noted an important distinction between findings of fact of abuse (that is, something that probably did or did not happen in the past), which is a fact that must be proved on the balance of probabilities, and unacceptable risk of harm (that is, assessing the possibility of future events occurring which may harm a child). While those concepts are related and evidence may overlap at times, the two findings are subject to different analysis.
The case also confirms that, even in circumstances where a court does not or cannot make a positive finding that abuse has occurred, the court can assess future risk of harm by reference to the same allegations alongside other evidence.
The outcome of this matter serves as a timely reminder of the complexities that arise in parenting matters and the importance of obtaining legal advice in relation to those issues.
Lander & Rogers' family lawyers have extensive experience advising individuals on parenting matters. Please contact a member of our Family & Relationship Law team for more information on the topics raised in this article.
Photo by Luke Pennystan on Unsplash
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.