In Family Law parenting cases, the best interests of the child or children is the fundamental principle in determining care arrangements. The RMB Family & Relationships Law Division explains why the issue of unacceptable risk can be a key element.
In Family Law, the Court determines the best interests of the child based on a number of criteria, with two primary considerations:
- The benefit of the child having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court gives greater weight to the second consideration in order to protect a child from any harm.
If there are allegations that serious harm has already occurred to a child and/or that harm to a child is likely to occur due to a parent’s actions, the Court must determine whether there is an unacceptable risk of harm to the child in that parent’s care.
In the recent case of Isles & Nelissen [2022], the Full Court had to determine whether a father posed an unacceptable risk to the parties’ four children. Although the father had been charged with rape of one child in criminal proceedings, those proceedings had been discontinued due to “lack of specificity” in the evidence.
While the Federal Circuit and Family Court of Australia (FCFCOA) could not make a specific finding of sexual abuse in the circumstances of this case, the FCFCOA held that the father posed an unacceptable risk of harm to the children.
In reaching this conclusion, the FCFCOA noted that the assessment of unacceptable risk is a predictive exercise that includes mere “possibilities”. The FCFCOA held that these possibilities are a legitimate basis for finding that there is a risk that something may happen, as long as there is a proper basis for those possibilities. The existence of risk of harm to a child can be accepted based on the assessment of known historical facts and present circumstances.
The FCFCOA further noted that it is incorrect to suggest that such possibilities have to be proven on the balance of probabilities according to the civil standard of proof.
We encourage you to obtain prompt legal advice if you have concerns about your child being at risk in the other parent’s household. Failure to take action may lead to a perception that you do not believe that the risk of harm actually exists. Your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.