Unacceptable risk in abuse cases: a shift in the law
By Christopher Ragozzino, Associate & Rocky Zhou, Lawyer
Five judges of the appellate jurisdiction of the Federal Circuit and Family Court of Australia (FCFCOA) recently found against a father who was alleged to have sexually abused his child.
The Background
The appellant father and respondent mother are the parents of four children. The eldest son was 10 years at the time of judgment.
In April 2018, when the eldest son was nearly seven years of age, he alleged in the presence of several adults and children that the father sexually assaulted him. Two days later, the mother confronted the father about the allegation, which the father denied.
Following the alleged incident, the child was interviewed by the police three times. The father was charged with rape, but this charge was later withdrawn by the police.
As a result of the allegations against the father, the mother withheld the children from spending time with him. The father commenced parenting proceedings in July 2018 to spend time with the children. Interim orders were eventually made for the children to spend professionally supervised time with the father.
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. Before the orders took effect the State child welfare agency stepped in and commenced child welfare proceedings seeking orders that the children live with the mother and spend only supervised time with the father. These welfare orders overrode the parenting orders which were in place.
The decision at trial
The father commenced fresh proceedings. In response to this the child welfare agency agreed to participate as a party and abandon the welfare proceedings.
The central issue before the trial Judge was the allegation that the father posed an unacceptable risk of harm to the children. The mother and the child welfare agency both contended that he did, whilst the father denied this, claiming the mother encouraged the child to make false allegations against him.
The judge ultimately found that the father did present an unacceptable risk to the children if he spent unsupervised time with them, despite there being no positive finding that he had sexually abused the child. Orders were subsequently made providing the father with only supervised time with the children.
The appeal
The father then appealed to the appellate division of the FCFCOA. On appeal, the court agreed with the decision of the trial judge.
The court confirmed that, in cases where allegations of child sexual abuse are made, it is incorrect to deal with the risk of the abuse being proven on the balance of probabilities, in the same way as facts are proven. The appellate court agreed with comments made by the trial judge that “the evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities”.
Whether or not abuse has occurred is a finding of fact made by the judge after hearing the evidence. The applicable rules of evidence apply to this question. Then, the court looks at whether unacceptable risk exists, based on known facts and circumstances. The finding of unacceptable risk is one that the Judge makes, at their discretion, considering the facts and circumstances of the case.
Take-away points
- This decision reinforces how the court will consider allegations of abuse in family law parenting proceedings. As is evident in this case, a positive finding of fact that sexual abuse occurred is not required when making the finding that a parent poses an unacceptable risk of harm to children.
- The two questions are: whether or not allegations of abuse are proven on the balance of probabilities and whether or not an unacceptable risk of harm is demonstrated. In terms of assessing whether there is an unacceptable risk of harm, the correct test is directed at assessing the possibility of a child being harmed in the future and whether that possibility amounts to an unacceptable risk.
- Attention should be given to risks of harm, even if they are improbable eventualities.
- If issues of risk arise, a family violence intervention order can provide initial protection for a child.
A special leave application has recently been lodged with the High Court of Australia following this decision. We will update this article as the application progresses.