Isles & Nelissen [2022] FedCFamC1A 97: Unacceptable Risk in Parenting Proceedings
Background
Isles & Nelissen was decided by the Full Court of the Federal Circuit and Family Court of Australia on 1 July 2022. The appeal was heard by Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ.
The case concerned parenting arrangements for four children. The dispute arose after the eldest child, who was almost seven years old, alleged that his father had sexually assaulted him. Criminal charges were brought against the father, but those charges were later discontinued because of a lack of specificity in the evidence.
The father commenced family law proceedings in 2018 after the mother withheld the children from him. He alleged that the mother had encouraged the child to make false allegations. Although the mother had initially agreed to consent orders allowing the father to spend unsupervised time with the children, the Department of Communities intervened. That intervention prevented the proposed unsupervised arrangements from proceeding and led to further parenting proceedings.
The Primary Judgement
At first instance, McGuire J was not satisfied, on the balance of probabilities, that the alleged sexual abuse had occurred. The Court therefore did not make a positive finding that the father had sexually abused the child.
The issue for the Court, however, was broader than whether the allegation could be proven as a past fact. The Court was also required to assess whether the evidence established an unacceptable risk of future harm to the children.
McGuire J found that the father posed such a risk. Final parenting orders were made in September 2020 for the children to live with the mother and spend supervised time with the father indefinitely.
The Father’s Appeal
The father appealed the decision. His primary argument was that the primary judge had incorrectly assessed unacceptable risk.
He argued that section 140 of the Evidence Act 1995 (Cth), which requires facts to be proven on the balance of probabilities, should have been applied to the finding of unacceptable risk. In effect, he argued that the Court could not find that he posed an unacceptable risk unless the underlying allegations were proven to the ordinary civil standard.
The father also challenged the use of evidence concerning his alleged sexual interest in adolescents and child exploitation material. He argued that this evidence was tendency evidence and should not have been admitted or relied upon unless it satisfied the tendency evidence requirements under the Evidence Act. The Full Court dismissed the appeal.
Proving Past Facts and Assessing Future Risk
The Court drew an important distinction between proving past facts and assessing future risk. Past facts must be proven on the balance of probabilities. Unacceptable risk, however, is a predictive assessment.
The Court is not only concerned with what has been proven to have occurred in the past. It is also concerned with whether the evidence, viewed as a whole, establishes a real and unacceptable possibility of future harm to the child.
Possibility Is Not the Same as Probability
The Full Court explained that possibilities are not the same as probabilities. A risk may be unacceptable even if it is not more likely than not to occur.
The Court gave a practical example. If a child faced a 33.33 per cent chance of being abused by a carer, no sensible adult would expose the child to that risk, even though the risk would be less than 50 per cent and therefore not probable in the strict sense.
This was one of the central points in the decision. A court does not need to make a positive finding that abuse probably occurred before it can make protective parenting orders. If the evidence establishes a real risk of serious harm, and that risk cannot be safely managed without supervision or restriction, the Court may make orders to protect the child.
Tendency Evidence and Risk Assessment
The Full Court also rejected the father’s argument concerning tendency evidence.
The Court held that the tendency rule did not control the assessment of future risk in the manner suggested by the father. In parenting proceedings, the Court must consider evidence relevant to the child’s safety and best interests.
Evidence capable of informing the assessment of future risk may be considered where it is relevant and influential. The Court also noted that the father had not objected to the evidence during the original trial.
Best Interests of the Child
The decision confirms that the best interests of the child remain the paramount consideration in parenting proceedings.
Where allegations of serious harm are raised, the Court must consider both whether past conduct has been proven and whether the evidence discloses an unacceptable risk of future harm. The protective focus of parenting proceedings means the Court is not limited to a narrow historical inquiry. The Court must assess the child’s safety in practical and forward-looking terms.
Final Outcome
The father’s appeal was dismissed. The orders requiring the children to live with the mother and spend supervised time with the father remained in place.
The father later sought special leave to appeal to the High Court of Australia, but that application was refused in November 2022 because it did not raise questions with sufficient prospects of success.