Assessing Possibilities And Probabilities When Determining An Unacceptable Risk

25 AUG 2022

 

The Full Court of the Federal Circuit and Family Court of Australia recently heard the case of Isles & Nelissen [2022]. This case clarified the Court's role in parenting matters when assessing unacceptable risks where there are allegations of child abuse. In such cases, the Court is required to assess whether the child's right to have a meaningful relationship with both parents should be offset against the need to protect the child from harm.

This case highlighted the difference between two overlapping but nonetheless different determinations that can be made. The first is findings of facts related to child abuse. This is a retrospective assessment of allegations, which are often challenged throughout the litigation process through expert evidence and cross examination. The second is assessing whether there is an unacceptable risk of harm. This is a prospective assessment based on whether there is a possibility in the future that harm may occur.

Facts

Approximately 3 years prior to the Hearing when the child was 7, he disclosed in the presence of his parents and other adults that his father had sexually assaulted him. The father denied the allegations. It was alleged at the Hearing that the father whispered to the child at the time of the disclosure and apologised to him.

Police were involved and conducted various interviews. During the second interview, the child disclosed the alleged penetration and during the third interview, the child confirmed that the father did apologise to him. The criminal matter did not proceed due to vagueness of the evidence.

Throughout the family law matter, the child consistently recounted the disclosure to various parties, including court experts and third parties.

Judgment

The Court found that when assessing risk to children, 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 could result in significant trauma for the child.

The Court did not make a finding of fact to confirm their view as to whether or not the father sexually abused the child, as disclosed by the child and alleged by other parties.

The possibility of whether future events shall occur lies on a spectrum of possibilities. The Court also considered other factors, being the elder child's allegations of sexual abuse by the father, evidence of the father's sexual interest in other adolescents and evidence of the father's interest in child exploitation material. The Court ultimately determined that there was an unacceptable risk of harm.

Conclusion

It was ordered that the child live with the mother and spend supervised time with the father. The Court did not make a determination that the father had sexually abused the child but assessed the future risk of harm to the child in light of the allegations and other evidence with respect to the father.

The tasks of making findings of fact and assessing risk of harm are related but separate. As such, these tasks should be subject to different methods of determination. Findings of fact only are subject to the balance of probabilities and look to the past, while assessing future risk is prospective.

 

The contents of this publication is for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

 

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