Isles & Nelissen [2022] FedcFAMC1A 97

The recent case of Isles & Nelissen [2022] FedcFAMC1A 97 is now the landmark case dealing with the standard of proof to determine whether a parent (or person in contact with a child) poses an unacceptable risk to the child.

According to the Family Law Act 1975, orders that are made to determine parenting arrangements and matters must adhere to the fundamental principle of being in the best interests of the children involved. There are two key considerations that must be taken into account when determining what the best interests of the children are.

These considerations are:

• • the benefit to the child of having a meaningful relationship with both of the child’s parents; and

• • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

The court is to give greater weight to the second of these two considerations. If a party poses an unacceptable risk of harm to the children, the safety of the children must be prioritised and orders that protect the children from the risk must be made.

In the case of Isles & Nelissen [2022] FedcFAMC1A 97, the evidence that is required to establish that a party poses an unacceptable risk to the children, as well as the meaning of “unacceptable risk”, has been clarified.

Below, we have summarised the issues, facts, and decision of this case.

Issues

1. 1. What is the standard of proof in determining whether a parent poses an unacceptable risk to a child?

1. 1. How is an “unacceptable risk” determined? (including probability vs possibility)

1. 1. What is the nature of a Judge’s discretion in these matters?

Facts

1. The parents are the parents of four (4) children, with the eldest being 10 years of age.

• • The father had a propensity for an inappropriate sexual interest in children and had been previously charged for possession of child exploitation material.

• • In April 2018, the eldest child was 7 years of age and alleged that he was sexually abused by the Father. It was undisputed that the child in fact made these allegations as he made them in the presence of various individuals.

• • The child initially made no disclosure of the incident when interviewed by Police in April 2018, however he did so in subsequent interviews taking place later in April and November 2018. The Father had been charged with rape; however, the charge was later withdrawn in June 2019, owing to a “lack of specificity” in the evidence.

• • The Mother withheld the children from the Father after it became known that the allegation was made concluding the Father posed an unacceptable risk to the children. Accordingly, the Father commenced proceedings in July 2018.

• • In September 2020, the parties entered into consent orders whereby the children were to spend time with the father after a period of supervised time first. The Orders made in September 2020 never took effect as the State child welfare agency stepped in and commenced proceedings before a State Magistrate.

• • Following the commencement of those proceedings, orders were made in the State children’s court for the children to spend supervised time only with the Father.

• • The Father commenced new proceedings in the Family Court (as it then was) and it was ultimately found by the trial judge that the Mother had been unduly persuaded to enter into the September 2020 consent orders.

• • The child repeated the allegations of sexual abuse to third parties including the single expert psychologist, the family consultant, and a paternal uncle.

• The ICL did not take sides. The mother and the child welfare agency took the view the father posed an unacceptable risk. The father denied it.

Decision

Finding and law

Primary judge’s findings and decision upheld by the Full Court:

1. 1. Although the primary judge found that he could not make a finding that the father did sexually assault the child, he still found an unacceptable risk exists which could only be mitigated through supervised time.

1. 1. The standard of proof as to whether abuse has occurred in the past, is a fact-finding task and is determined on the balance of probabilities (section 140 Evidence Act). Determining whether an incident of abuse occurred in the past is based on empirical evidence.

1. 1. The question of whether there is an unacceptable risk does NOT require such standard of proof.

1. 1. Unacceptable risk requires a predictive and prospective analysis into the future on which past conduct may have weight.

1. 1. If an unacceptable risk exists, the Court needs to consider the magnitude of that risk and whether there are tools or circumstances which can adequately mitigate that risk.

1. 1. The Full Court added that a finding of unacceptable risk is not a discretionary finding. What is discretionary is the order made by the Judge about the arrangements in the best interests of the children.