However, in the recent case of Isles & Nelissen [2022], the Full Court of the Federal Circuit and Family Court of Australia went on to clarify the Court's role in parenting matters when assessing what is an unacceptable risk where there are allegations of child abuse.
What were the facts of the case?
The case involved a child who disclosed that his father sexually assaulted him, The father denied the allegations. The matter did not proceed as a criminal matter due to the vagueness of the evidence. Instead, it was dealt with as one pertaining to family law.
How did the family law courts determine what is an unacceptable risk?
The court did not make a finding on the facts of whether the accused father actually assaulted his seven-year-old child. However, they did use the case to determine what is an unacceptable risk when it comes to assessing risk to children. This was for the purpose of granting a parent access.
The court found that even a small possibility may be sufficient to require precautions to be implemented to reduce that risk. The severity of the risk should dictate the appropriate measures. In this case, the potential of future sexual abuse could have dire outcomes and result in significant trauma for the child. For this reason, the court ultimately determined that there was an unacceptable risk of harm.
Why is it important to understand what is an unacceptable risk?
In this case, the court ordered that the child live with his mother - with his father granted supervised visits. It is important to distinguish that the court did not actually find that the father had sexually abused his son. However, they decided that there was an unacceptable risk of future harm. And had to take action to ensure this risk did not eventuate.
Unlike findings of fact, which look to the past, courts that attempt to assess unacceptable risk will see the courts look to the future. It's important to understand this approach as it impacts how the court approaches upcoming requests for child custody. Need help navigating custody matters? Our experienced family lawyers are here to help. Reach out today.
New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.
