Autumn 2023 Family Law Case Watch
How does the court protect children when there are allegations of child sexual abuse? What happens when positive factual findings of abuse cannot be proven, but a strong risk of further harm nevertheless exists? The 2022 decision of the Federal Circuit and Family Court of Australia in Isles & Nelissen  FedCFamC1A 97 provides clarification on these issues.
On Friday, 1 July 2022 in the case of Isles & Nelissen  FedCFamC1A 97, the Federal Circuit and Family Court of Australia considered child sexual abuse and the distinction between the finding of fact on the balance of probabilities and the assessment of future risk.
Chief Justice Alstergren, Deputy Chief Justice McClelland, Judge Aldridge, Judge Austin and Judge Tree (‘the Court’) delivered the judgment. The Court concluded that the finding of unacceptable risk of harm is a prospective consideration of the possibility and not the probability of harm. This consideration of risk should be conducted separately from the fact finding of past acts or behaviours of sexual abuse. In considering this distinction, the Court emphasised previous cases and how the two issues have previously been conflated.
In this case the parties were the parents of four children. In April 2018 the parties’ eldest child (‘the child’) was almost seven (7) years of age. At this time the child alleged that his father sexually assaulted him. The child was interviewed three (3) times by police throughout 2018. While the child’s father was originally charged with the child’s rape, the State Director of Public Prosecutions later withdrew the prosecution in June 2019 due to a ‘lack of specificity’ in the evidence.
Despite the State Director’s withdrawal, the mother of the children believed the child and did not allow the father to see the children. The father commenced parenting proceedings which eventuated in interim orders for the children to spend supervised time with the father, with final consent orders in September 2020 specifying for the children to spend unsupervised time with the father following a graduated supervision period.
After this, the designated representative of the State child welfare agency commenced child welfare proceedings against the father. The welfare agency secured orders for all four (4) of the parties’ children to live with the mother and spend supervised time with the father. This caused the father to commence new proceedings. The trial of these fresh proceedings began in February 2021 and concluded in August 2021. The central issue before the primary judge was ‘the allegation that the father posed an unacceptable risk of harm to the children’. This ‘unacceptable risk’ is distinct from proving the father committed the act of sexual abuse as alleged by the child. The father appealed the decision of the primary judge and later amended his grounds of appeal.
The Court upon appeal referred to the seminal High Court case of M v M (1988) 166 CLR 69. Notably, the High Court stated in M v M that proving alleged sexual abuse must be in accordance with the civil standard of proof, on the balance of probabilities, and that this is distinct from establishing the risk of sexual abuse occurring in the future. The High Court did not elaborate on how this alleged risk of abuse would be established. This led to several disparate following decisions that also failed to apply a consistent test for assessing risk.
Due to this, the Court in Isles & Nelissen took the present appeal as an opportunity to:-
‘… clarify these principles and to state clearly and authoritatively, in the context of alleged child abuse in parenting proceedings under Pty VII of the Act, the distinction between fact finding and risk assessment.’
Historical Overview and the Law
The Court began its judgment by outlining a number of historical cases that touched on unacceptable risk but did not address how unacceptable risk needed to be evaluated. This includes the cases of WK v SR (1997) FLC 92-787, Re W (Sex abuse: standard of proof) (2004) FLC 93-192, W and W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 and Napier and Hepburn (2006) FLC 93-303. Notably, the Full Court in Napier and Hepburn observed that a rejection of allegations of sexual abuse does not default to a finding of no unacceptable risk of harm. This sentiment is reflected in later cases.
The Court then went on to outline two (2) main cases where it was found that an unacceptable risk needed to be proven on the civil standard of the balance of probabilities, namely, Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344. The Full Court in Potter and Potter found, for the first time, that a finding of unacceptable risk must be proven on the balance of probabilities. The Court in Isles & Nelissen found this to be without jurisprudential analysis and without basis because an authority for the reasoning was not cited. Similarly in Johnson and Page, it was implied that an unacceptable risk needed to be found on the balance of probabilities. These decisions were important for the Court to reference because they assumed that risk was synonymous with the finding of fact that an act of sexual abuse had occurred.
The Court then outlined several cases that followed. These cases emphasised how the possibility of abuse could be enough for unacceptable risk of harm to be established (Partington & Cade (No 2) (2009) FLC 93-422, Nikolakis & Nikolakis  FamCAFC 52, Bant v Clayton (2015) 53 Fam LR 621 and Oswald & Karrington (2016) FLC 93-726). A further two (2) cases were outlined by the Court (Sahrawi & Hadrami (2018) FLC 93-857 and Bant & Clayton (2019) FLC 93-924). These latter cases found that assessing the risk of an event needed to be by reference to the facts established by the evidence, and they neither rejected nor reaffirmed the decisions in Potter and Johnson.
From this the Court elucidated the split decision in Fitzwater v Fitzwater (2019) 60 Fam LR 212 and outlined how the majority judgment implied that an unacceptable risk needed to be found on the balance of probabilities. The Court compared this with the dissenting judgment of Judge Austin in Fitzwater v Fitzwater. Judge Austin rejected the majority’s proposition and substantiated his reasoning by quoting the judgment in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (‘Malec’). In Malec it was found that while facts of a historical kind needed to be proven on the balance of probabilities, it may be sufficient that the possibility of past abuse can establish a future chance or risk of sexual assault. Accordingly, in the judgment of Malec it was stated that:-
‘… in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable…’
The Court in Isles & Nelissen found the commentary of Malec to be a correct statement of the law, thus rejecting earlier propositions that an unacceptable risk of abuse needed to be established on the balance of probabilities.
After completing its historical analysis, the Court also emphasised how unacceptable risk needed to be applied using the paramountcy of the best interests of the child principle and in accordance with the Family Law Act 1975 (Cth) (‘the Act’). The Act requires courts to avoid making orders that will expose any person to an unacceptable risk of family violence and further obliges courts to protect children from subjection or exposure to abuse, neglect or family violence. Sexual abuse comes within this purview.
The primary judge in Isles & Nelissen followed the reasoning of Judge Austin in Fitzwater v Fitzwater (and Malec) and found that the positive finding of past sexual abuse by the father was a separate consideration to unacceptable risk. The primary judge was not persuaded by the evidence that, on the balance of probabilities, the father did sexually abuse the child as it was alleged by the child.
However, the primary judge found that the Court’s paramount focus on the best interests of the child principle meant that ‘a separate and predictive consideration as to risk where the focus is on the adjective ‘unacceptable’’ was required and that ‘the consideration here is as to “possibilities” in a prospective sense’. In other words, the primary judge found that unacceptable risk did not need to be proven to the same standard as actual past harm. Ultimately the primary judge found that unacceptable risk can be established by a possibility of harm, even if the harm had not been established on the balance of probabilities.
The father appealed the primary judge’s decision on multiple grounds as follows:-
- Ground One (1)
Regarding ground one (1), the father appealed the primary judge’s decision by contending the judge had erred in basing the decision off the dissenting opinion of Judge Austin (as above), and that unacceptable risk needed to be found on the balance of probabilities. The Court upon appeal agreed with the primary judge’s decision because the primary judge did not conflate the finding of fact with the finding of risk. The Court found that the primary judge had correctly inferred the existence of an unacceptable risk by looking at a combination of facts and circumstances. This included:-
‘… 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.’
The Court enunciated how the risk of harm is not susceptible to empirical proof because the risk of child sexual abuse is unacceptable even if it is not ‘probable’, or in other words, above a certain mathematical likelihood. Ultimately, the Court found that even where the prospect of sexual abuse is only possible, that this risk is still too high to tolerate.
- Grounds four (4) and seven (7)
Regarding grounds four (4) and seven (7), the father contended that the primary judge erred by admitting certain tendency evidence and then also erred by relying on that evidence to facilitate the finding of unacceptable risk of harm. On appeal, the Court found that because the father did not object to the evidence being admitted in relation to the finding of fact, and because it was properly admitted, that he could not then prevent the primary judge from using the evidence in the consideration of risk.
The father’s appeal failed on the basis of lack of merit.
This judgment is important because it clarifies the issue of risk assessment in the context of child sexual abuse, making it easier for courts to protect children in their best interests even where findings of ‘fact’ cannot be proven to the requisite evidentiary threshold.
This makes it possible for the courts to make orders for supervision or no contact, where it otherwise would not be possible if an assessment of risk was contingent upon the finding of fact.
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