This is a sample (posted 20 July 2022) of “Latest Notable Cases”, which is posted monthly with live links for members at the Members’ Home Page under Members’ Practice News. Also available at our Members’ Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members’ Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

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Children – Assessment of unacceptable risk is a predictive exercise that includes mere possibilities – Oxymoron to expect possibilities to be forensically proven on the balance of probabilities  

In Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022), the Full Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) heard a father’s appeal from orders made by McGuire J that 4 children live with the mother and spend supervised time with the father.

The eldest child who was 10 at the date of trial, had disclosed sexual abuse by the father in front of witnesses; and again in one of three police interviews ([61] – [62]). The father had been charged with rape of the child in criminal proceedings that had been discontinued for “lack of specificity” in the evidence ([63]).

The parents entered into consent orders that included unsupervised paternal time, resulting in the State child welfare agency securing child welfare orders for supervised paternal time ([65]). The father then brought proceedings under Part VII of the Family Law Act with the Department of Communities agreeing to same on the condition of it being a party.

At first instance, McGuire J found it could not make a specific finding of sexual abuse; but found the father presented an unacceptable risk of harm ([72] – [73]).

After citing M v M (1988) 166 CLR 69 as to the distinction between the evidence required to establish a finding of sexual abuse; distinct from that necessary to establish an unacceptable risk of harm, the Full Court noted cases (including Potter and Potter [2007] FamCA 350; Johnson and Page [2007] FamCA 1235; and the majority in Fitzwater v Fitzwater [2019] FamCAFC 251) had gone so far as to posit that (from [6]):

“[T]he risk of … abuse … must be proven on the balance of probabilities according to the civil standard of proof, in just the same way as facts are proven. We consider that statement of principle to be incorrect and now state it to be so …

[7] Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) HCA 67 at [151]), but are instead postulated from known historical facts and present circumstances.

( … )

[34] Bant v Clayton [2015] FamCAFC 222 … was an appeal concerning the alleged unacceptable risk of the father abducting and withholding the child from the mother, with deleterious emotional consequences for the child. In that context the majority said:

in assessing whether there is a risk that something may happen, ‘possibilities’ are a legitimate basis for finding that there is such a risk (Malec v J C Hutton Pty Ltd [1990] HCA 20), as long as there is a proper basis for those ‘possibilities’. …

( … )

[37] Summarising then, in Partington & Cade (No 2) [[2009] FamCAFC 230], Nikolakis & Nikolakis [[2010] FamCAFC 52], Bant v Clayton, and Oswald & Karrington [[2016] FamCAFC 152], the Full Court clearly emphasised how the possibility of abuse could be enough to vindicate a finding that an unacceptable risk of harm exists.

( … )

[50] In Fitzwater, Austin J [ed. in dissent] rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:

( … )

The assessment of risk is a predictive exercise and while it is … liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.

Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

( … )

[51] We agree with and adopt that commentary as being a correct statement of the law.

( … )

[56] It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about ‘unacceptable risk’ were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A [1998] FamCA 25 … ).

( … )

[58] Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase ‘unacceptable risk’ did not then appear within the Act. … But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an ‘unacceptable risk of family violence’ and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to ‘abuse’, ‘neglect’ or ‘family violence’ …

[59] … The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an ‘unacceptable risk’ of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.

( … )

[81] The [father’s] submissions asserting the need to make any finding of ‘unacceptable risk’ on the balance of probabilities according to the civil standard of proof are wrong and are rejected, as is the ground of appeal.

[82] Correctly, the primary judge … distinguish[ed] positive findings of sexual abuse from findings of unacceptable risk of harm …

[83] Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.

[84] In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.

[85] The assessment of risk is an evidence-based conclusion and is not discretionary. … The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. …”

The appeal was dismissed with no order as to costs.


Our latest notable cases this month also include summaries of cases that involve the following:

Property – Trust property excluded from asset pool and treated as a financial resource – Despite her role as appointor, wife never had control of the trust and third parties contributed to trust property

Property – Injunction – Freezing orders are to preserve the status quo, not change it in favour of the party who seeks the order – Court erred in assuming the wife could recall monies transferred to relatives in China

Property – Wife receives 100 per cent of net asset pool where net equity in former matrimonial home was $38,000 – No order made as to joint debt in favour of wife’s parents, leaving each liable and with a net deficit

Divorce – Division 2 of FCFCA not clearly inappropriate forum to order divorce, despite Indian marriage and matrimonial proceedings in India

Children – Vague and contradictory final orders as to reintroduction of maternal time were arguably interim orders – Prescriptive and enforceable orders must be made on either an interim or final basis

Property – Contribution assessment of 75:25 where wife’s initial contribution exceeded the net asset pool at trial – Where parties had spent 10 years together and 10 years apart