Under the Family Law Act 1975, the paramount consideration when determining parenting arrangements is the best interests of the child. In assessing the best interests of the child, the Court has regard to (among other factors):

1. The benefit to the child of having a meaningful relationship with both parents; and
2. The need to protect the children from harm.

This second factor carries greater weight. If a parent poses an unacceptable risk to their child, the Court must make orders that protect the child from the risk of harm.

Over the years, the Courts have applied varying tests when assessing the existence of ‘unacceptable risk’.

The recent Full Court decision of Isles & Nelissen clarified that while assessment of risk of harm is evidence-based, it does not need to be shown that harm is likely to occur on the balance of probabilities for there to be an unacceptable risk.

In Isles & Nelissen, orders were made in proceedings involving a father, mother, and State child welfare agency, for the children to live with their mother and spend supervised time with their father. The eldest child (aged 10 at the time of trial) had disclosed that the father had sexually abused him. The father was charged with rape but the charges were withdrawn due to lack of specificity in the evidence.

The trial judge found he was, on the evidence, unable to make a positive finding of sexual abuse. He held however that the inability to make a positive finding that abuse occurred does not prevent the Court from finding that there is an unacceptable risk to a child. His Honour found that in the circumstances of the case, the father posed an unacceptable risk to the children.

On appeal, the father submitted that the trial judge failed to apply the civil standard of proof (enshrined in section 140 of the Evidence Act 1995 (Cth)), when determining that the father posed an unacceptable risk to the children. The Full Court rejected this ground of appeal and held that the trial judge was correct to distinguish the test for making positive findings of sexual abuse from findings of unacceptable risk of harm. The Full Court affirmed that the latter is a ‘predictive exercise’ and while evidence-based, its assessment is not limited to findings of past fact; it looks to ‘possibilities’; and it cannot be determined according to a civil standard of proof.

In assessing whether there is an unacceptable risk to a child, the Court and practitioners should consider:

1. Whether the facts suggest that there is a present or future risk;
2. The magnitude of the risk; and
3. Whether there are tools and circumstances to adequately mitigate the risk.