The Full Court of the Federal Circuit and Family Court of Australia handed down a decision last week which will assist in determining when a parent is an “unacceptable risk to a child”.
In Isles and Nelissen , the court ordered for the Father to spend supervised time with the Children indefinitely, on the basis that anything other than this would ‘present an unacceptable risk to the Children of perpetrating sexual abuse’. This decision was appealed by the Father and the matter was before the Full Court in 2022.
The court established three relevant factors to assess when considering whether one party may pose an unacceptable risk to a child. These are:
- The presence of facts that indicate risk, either presently or in the future, being in an affidavit or other sworn material;
- The magnitude or severity of the risk, which would be at the discretion of the court to determine; and
- Whether there are ‘tools and circumstances’ available to manage the risk, for example a supervision centre or other means.
Chief Justice Alstergren and Justices McClelland, Aldridge, Austin and Tree held that it is not a question of whether risk has been ‘actually perpetrated’, but instead whether, upon consideration of all of the circumstances (or ‘tendency evidence’), there is the possibility of ‘unacceptable risk in the future’, which they referred to as a ‘predictive exercise’.
This precedent will assist parties and the court in determining parenting orders to make when risk to the Child/ren may be present. If you would like to discuss the above, or have queries about how this may relate to your matter, please contact Richardson Murray.
Full Citation: Isles & Nelissen  FedCFamC1A 97
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