How does the Court decide whether a child is at a risk of harm?

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In all court cases dealing with the care of a child, the Court must consider whether there is a risk to a child in spending time with either parent.

On 1 July 2022, five Judges of the appellant jurisdiction of the Federal Circuit and Family Court of Australia delivered an important decision detailing how the Court considers risk and confirmed that there is a different test required between proving that an event has taken place in the past and assessing whether there is a possibility of there is a potential risk of harm in the future.

What is required to provide that historic abuse has occurred?

If the Court is asked to decide if historic abuse has occurred, the Court cannot make a positive finding that the allegation is true unless the Court is satisfied that it has occurred on the balance of probabilities. The balance of probabilities requires an “actual persuasion” of the fact that an event occurred.

What is required for the Court to find that there is an unacceptable risk of harm?

An unacceptable risk of harm can be found irrespective of whether a positive finding of abuse has occurred in the past. The assessment risk is an evidence-based conclusion, based on evidence and the circumstances of the case.

The Court in the recent case of Isles & Nelissen gave the follow:

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.

In summary, whilst finding that abuse has occurred is based on balance of probabilities, the finding that there is a potential risk of is based on possibilities (even if it may not be probable), it is a discretionary judgment determined by a Judge.

What happens is a risk of harm is found to be possible?

If a court make a finding that there is a potential risk, it does not mean that no time will occur between the child and the parent, the Court must then assess the magnitude or severity of the risk, and then make an assessment about whether there are ‘tools and circumstances’ available to manage the risk, for example by using a supervision centre or other means to facilitate time between the child and that parent.

How does this affect parenting matters?

In any parenting matters where there is the possibility of unacceptable risk of harm to a child it is extremely important that specialised legal advice if obtained. Orders must be made in the best interest of a child. The Court must consider all evidence when assessing whether there is an unacceptable risk of harm. Whilst the evidentiary test has been confirmed to be lower for as assessment of the possibility of a risk of harm, a finding about whether an unacceptable risk exists, is based on known facts and circumstances, is either open on the evidence or it is not, and if evidence is not available, the court may not find that a risk exists even if such a risk is present.

If you have any questions regarding parenting proceedings in the Federal Circuit and Family Court of Australia or any associated family law matter please contact our firm to make an appointment with Matthew Carney, an Accredited Specialist in Family Law on 4944 3322.

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