Whether you are the accused parent or the concerned parent, when it comes to allegations of serious harm inflicted to the child or children of the relationship, some of the questions both parents  or interested parties, in family law matters, have asked include “What if there is no prior evidence proving that the accused parent has caused serious harm to the child or children?"

Despite the lack of concrete proof, a concerned parent may hold serious concerns that there is a potential for future harm upon a child from the actions of the accused parent.  An accused parent may also hold serious concerns given the serious allegations against him that may impact their relationship with the children or outcome of the matter.

This article will offer insights into how the Federal Circuit and Family Court of Australia (family court) assesses the unacceptable risk of harm when making decisions about the care arrangements for children.

What is an unacceptable risk of harm in parenting matters?

Remember the structure and objective of the family court and the family law act 1975 (the Act) are that, in simple terms, the child or children, have a right to be loved, cared for by both parents and that their best interest is of paramount importance when determining care arrangements.  

Section 60CC(2) of the Act sets out the two primary considerations that the court takes into account when considering parenting arrangements:

Firstly: the benefit to the child of having a meaningful relationship with both of the child's parents; andSecondly:  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

However, if it can be proven that one of the parents of the child or children presents an unacceptable risk of harm to the child or children, the family court must prioritise the children's safety being the second primary consideration.

This often may result in supervised time between the children and the parent posing the unacceptable risk or no time at all.

Below is a recent case  in which the family court evaluated the likelihood of the possibility of future harm to a child, even in the absence of evidence and findings demonstrating past abuse or harm.

Isles & Nelissen [2022] FedcFamC1A 97

The case of Isles & Nelissen [2022] FedcFamC1A 97 sheds light to the meaning of unacceptable risk in parenting matters. This case involved a father appealing a court’s decision that specified his time with the children to be supervised. The father had previously been charged with sexual abuse of the eldest child, the charge was dropped, and the father’s criminal proceedings discontinued.

While the father was not found guilty of the alleged sexual abuse the Court considered the possibility of unacceptable risk if he were to spend time with the children unsupervised. The family court held that these possibilities are a legitimate basis for concluding that there is a risk that something may happen. The family court considered that the existence of risk of harm to a child can be accepted based on the assessment of known historical facts and present circumstances.

Ultimately, the family court found that unsupervised time with the father posed an unacceptable risk for the children, leading to orders for the children to live with the mother and have supervised time with the father.


This case highlights that even without a positive finding of past abuse, the court can assess the risk of harm based on allegations including the possibility of an unacceptable risk. In navigating the complexities of parenting matters, seeking legal advice is crucial. New South Lawyers offer extensive experience in advising individuals on these issues.

However, if you are experiencing difficulties with your parenting arrangement during the festive season do not hesitate to contact the New South family law team for a full and confidential discussion.

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.

To find out more, chat with a member of New South Lawyers' Family Law Team today.