The Full Court clarifies the evidence required to prove whether a party is an unacceptable risk to a child

Isles & Nelissen [2022] FedCFamC1A 97

Many of the parenting matters that come before the Court involve allegations of unacceptable risk.?Most family law practitioners would agree that the most challenging of all unacceptable risk cases are matters involving allegations of sexual abuse of a child.?In 1988 the High Court of Australia in M v M (1988) 166 CLR 69 decided that in the context of alleged child abuse cases, there is a distinction between:

1. Fact finding: Has the child been sexually abused by a party; and
2. Risk assessment: Notwithstanding whether the court can determine whether the child was actually sexually abused by a party, whether the child at an unacceptable risk of abuse in the care of a party.

While the High Court determined that the standard of proof required for determining whether a child had been sexually abused in parenting matters was the civil standard of proof with due regard to the factors mentioned in Briginshaw v Briginshaw (the Briginshaw principle), the High Court did not decide the evidence required to determine whether a party is an unacceptable risk to the child.??

To recap, the standard of proof refers to the level of certainty and degree of evidence required to prove a fact.?In civil matters, like in family law, the standard of proof is on the balance of probabilities, whereas in the criminal context it is the higher standard of beyond reasonable doubt.?The Briginshaw principle means that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.?For example, if the fact to be proved is of a serious nature, it is inherently unlikely to be true and there are serious consequences if true then the evidence to prove the fact will need to be of a higher standard, but still on the balance of probabilities.?The Briginshaw principle is now reflected in section 140(2) of the Evidence Act 1995 (Cth).

Since 1988, there have been conflicting decisions of the Court regarding the standard of proof required to prove a person is an unacceptable risk in parenting matters.?On 1 July 2022 the Full Court of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, comprised of five Justices (Alstergren CJ, Mcclelland DCJ, Aldridge, Austin & Tree JJ) determined this issue in the decision of Isles & Nelissen [2022] FedCFamC1A 97.?

The facts???????????

• The matter concerned 4 children aged 6-10 years at trial;
• The eldest child disclosed to the mother, other family members, experts and the Police that the father had sexually abused him;
• The Police charged the father but the State Director of Public Prosecution later dropped the charges due to “lack of specificity” in the evidence;
• In September 2020, final consent orders were made for the children to live with the mother and to spend unsupervised time with the father following a period of graduated supervision;
• Those orders did not take effect because the designated representative of the State Department of Communities (the child welfare agency) commenced child welfare proceedings in the State Magistrates Court, securing orders for the children to live with the mother and to spend only supervised time with the father. Those welfare orders gazumped the interim orders made under Pt VII of the Act (s 69ZK(2));
• The father commenced fresh proceedings, in response to which the child welfare agency agreed to participate as a party and abandon the welfare proceedings still pending before the State Magistrates Court;
• The primary judge ultimately found the mother was induced to consent to the orders in September 2020;
• The mother and the child welfare agency both submitted the primary judge should make a positive finding of sexual abuse against the father, but contended for an alternate finding that he posed an unacceptable risk of harm;
• The mother and the child welfare agency argued that the Court could rely on a number of examples of tendency evidence where the father had engaged in inappropriate sexual behaviour towards underage males including relatives and that child exploitation material had been found on his computer, in respect of both the making of a positive finding and to the issue of unacceptable risk;
• The father denied that he had sexually abused the child or that he was an unacceptable risk to the children.?The father contended that the mother had engaged in parental alienation and had encouraged the eldest child to repeatedly make false sexual abuse allegations against him;
• The ICL did not take a position;
• Prior to the trial, pursuant to section 69ZT(3), the primary judge made an order that the Evidence Act applied at trial because the mother and the child welfare agency were seeking a positive finding of criminal conduct.?

The decision at first instance

The primary judge was unable to make a positive finding that child abuse had occurred, however ordered the mother have sole parental responsibility and final supervised time orders for the father in circumstances where the Court was satisfied the father posed an unacceptable risk to the children.?At paragraph 286 of the judgement the primary judge set out the reasons why His Honour determined the father was an unacceptable risk to the children.?The reasons included tendency evidence about the father and that the child had consistently maintained his complaints of abuse for 3.5 years.

The appeal

The father appealed the decision, the two main appeal grounds being:

1. The primary judge erred by not applying the correct standard of proof as set out in section 140 of the Evidence Act (i.e the balance of probabilities) in finding that the father presents as an unacceptable risk to the children; and
2. The primary judge erred by using tendency evidence to facilitate the finding that the father poses an unacceptable risk of harm to the children.?

Standard of proof

The Full Court held that the civil standard of proof does not apply to determining unacceptable risk.?The Full Court agreed with the primary judge’s statement that the notion of an unacceptable risk concerns a predictive or prospective determination about whether:

• there is a risk into the future;
• the magnitude of the that risk; and
• whether there are tools or circumstances to adequately mitigate that risk.

The Full Court added that determining unacceptable risk was limited to findings of past fact, looking into the future and with a focus on “possibilities”.?

The Full Court gave the following example as to why it would be illogical for the civil standard of proof to apply to determining unacceptable risk:

“86. We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only?possible?but not?probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.”

Tendency evidence

Tendency evidence is evidence ‘of the character, reputation or conduct of a person, or a tendency that a person has or had’, adduced to prove that the person ‘has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind’.?There are strict rules of evidence as to when tendency evidence is admissible.??

The Full Court held that the evidence that the father had engaged in inappropriate sexual behaviour towards underage males and that the father had been in possession of child exploitation material had been mischaracterised as “tendency evidence”.?However even if it was tendency evidence it was admissible because it was relevant to and probative of the fact in issue, being whether the father was an unacceptable risk to the children.?Accordingly, this ground of appeal failed. ??

Decision

The Full Court dismissed the appeal.

Practical implications

When drafting court material solicitors acting for the parent alleging the other parent is an unacceptable risk need to include in their client’s affidavit the following:

• Past facts that indicate unacceptable risks: This is the fact or facts that your client is relying on to say that the other parent is an unacceptable risk;
• The magnitude of that risk:?This factor examines the impact the past fact has on the child and/or the parent’s capacity to parent the child; and
• Whether there are tools or circumstances to adequately mitigate that risk: Sometimes the other party suggests tools to mitigate risks, for example supervised visits at a contact centre.?If your client does not agree to the suggestion then the reason why should be addressed in their affidavit.??

As mentioned at the beginning of this article, alleged child abuse cases are the most challenging parenting cases.?We are either acting for a client who fears their child will be sexually abused by another parent if left unsupervised or a parent who believes they have been wrongly accused of the most heinous crime imaginable.?However, even in the most contentious matters, it is imperative that as legal practitioners we show respect to one another and are sensitive to competing views.?When negotiating consent orders in these matters practitioners should seek the input of child experts and remain focused on the best interests of the child or children.??

Helen Davison

Helen Davison is a Brisbane based barrister focusing on family law. Prior to commencing at the bar, Helen worked as a family lawyer at a leading family law firm from 2010 to 2021.