In family law, an “unacceptable risk” refers to any situation where a child may face potential physical or psychological harm if time or contact with a parent continues without safeguards. The Court must prioritise safety above all else, and understanding what constitutes an unacceptable risk in family law is essential for parents navigating parenting disputes. This concept was further clarified in the leading case of Isles & Nelissen [2022] FedCFamC1A 97, which explained how courts should approach and assess risk.
The definition of “unacceptable risk” varies but can include abuse, mental health issues, substance abuse, disability, or flight risks. Recently, in the case of Isles & Nelissen [2022] FedcFamC1A 97, the Full Court clarified this term and its evidentiary requirements in parenting matters. This article explores the case’s background and implications, highlighting the importance of legal expertise in addressing these complex issues.
“Unacceptable risk” Generally
The Family Law Act 1975 (Cth) (“the Act”) enshrines the fundamental principles governing parenting arrangements to ensure any orders are made in the best interests of the child (or children).
In determining what is in the child’s best interest, the Act, prior to 6 May 2024 required the Court to look to the two (2) primary considerations of:
- The benefit to the child or children of having a meaningful relationship with both parents and
- The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
From 6 May 2024, the Act sets out that the Court must determine what is in the child’s best interests, with safety as the paramount concern.
It considers:
- The safety of the child and carers, including any history of family violence, abuse, neglect or protection orders.
- The child’s views.
- The child’s developmental, psychological, emotional and cultural needs.
- Each parent’s capacity to meet those needs.
- The benefit of relationships with parents and significant people, where safe.
- Any other relevant circumstance.
For Aboriginal or Torres Strait Islander children, the Court must also consider the child’s right to maintain and enjoy their culture.
Should there be an “unacceptable risk” of harm to the child posed by one of the parents, the parenting arrangements must prioritise the child’s safety and protect them from the risk of potential harm.
The “unacceptable risk” will depend on the circumstances of the individual case, but may include sexual or physical abuse perpetrated by a parent against a child. It may also involve any such risk affecting an individual’s capacity to parent, including their mental health, alcohol or substance abuse, physical or intellectual disability or flight risk to a non-Hague Convention country.
Examples
Examples of situations that may be treated as unacceptable risk in family law include:
- A parent’s untreated mental health condition affecting their ability to supervise a child
- Substance misuse affecting decision-making or safety
- Exposure to family violence or ongoing conflict
- Lack of insight into boundaries or age-appropriate behaviour
- Concerns raised by schools, psychologists, healthcare providers, or child welfare agencies
If there is evidence of an “unacceptable risk,” the Court must assess the degree of the risk and how likely it is to occur if the parent is granted time with the child. If the Court finds that the magnitude of the risk is too great, orders may be made for the parent posing a risk to spend only supervised time with the child or even for no time to be spent with that parent, should the risk be particularly serious.
Courts assess unacceptable risk by examining both the likelihood of harm occurring and the seriousness (magnitude) of the harm if it did occur. This approach ensures that even risks that are possible (though not necessarily probable) are examined carefully when the potential consequences are severe. This balanced assessment is central to the unacceptable risk test applied in parenting matters.
The meaning of “unacceptable risk” and what conduct constitutes the same has been depicted throughout case law; however, it was not until the recent landmark case of Isles & Nelissen [2022] FedcFamC1A 97 that the Full Court clarified the meaning of “unacceptable risk” and what evidence is required to determine the same in parenting matters.
Background – Unacceptable Risk
The Isles & Nelissen decision is significant because it clarified how courts should approach the task of identifying risk. The Full Court explained that determining unacceptable risk is a predictive exercise based on possibilities supported by evidence, not a strict mathematical probability test. This case helped standardise how judges examine allegations, weigh evidence, and decide whether safeguards such as supervision are required.
Isles & Nelissen concerned a Mother and Father who shared four (4) children, the eldest child being 10 years old at the time of the Full Court’s judgment in 2022.
The Father had previously been charged with possession of child exploitation material and shown an inclination for inappropriate sexual interest in children.
In April 2018, it was alleged by the eldest child that he had been sexually abused by the Father when he was 7 years old. However, he had initially not disclosed the incident. The eldest child made subsequent disclosures to police, leading to the arrest of the Father, who was charged with rape. The charge was later withdrawn due to the “lack of specificity” of evidence.
After the allegation was made, the Mother withheld the children from the Father as she believed him to pose an unacceptable risk of harm to the children. This led the Father to commence proceedings. In September 2020, the parties entered final Consent Orders, which provided for the children to spend time with the Father after a period of supervised time. These Orders never came into effect as the state child welfare agency commenced proceedings before a State Magistrate, where orders were made for the children to live with the Mother and spend only supervised time with the Father.
The Father commenced new proceedings, where the child welfare agency agreed to participate as a party to the proceedings as the second Respondent. The Mother and child welfare agency argued that the Father posed an unacceptable risk to the children, noting that throughout these proceedings, the eldest child recounted the allegation of child sexual abuse perpetrated by his Father to several third parties, including a family consultant, single expert psychologist and paternal uncle. The Father maintained that he did not pose any risk, and the ICL did not take a side.
Ultimately, the Court found that the Father did pose an unacceptable risk of harm to the children and made Orders that the children live with the Mother and only spend supervised time with the Father indefinitely.
The Father subsequently appealed this decision to the Full Court.
Full Court’s Findings
The Full Court upheld the primary judge’s decision that the Father posed an unacceptable risk to the children. As such, it was not in the children’s best interests to spend any unsupervised time with the Father.
The Full Court implemented a hypothetical (detailed below) to illustrate that assessing what constitutes an unacceptable risk is a predictive exercise where one must consider various possibilities.
[86] “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.”
So long as there is a proper basis for these possibilities, such as known historical facts or current circumstances, the Court will accept that there is a legitimate foundation for a finding of unacceptable risk.
If there is a finding of unacceptable risk, the Court must consider the magnitude of the risk and what can be implemented to appropriately mitigate the risk.
In many cases, to mitigate the risk posed by one parent, any time spent with the child will be supervised by a third party. The supervision is often sufficient to offset the risk of harm to the child while ensuring the parent and child maintain and foster a meaningful relationship.
This case, while clarifying the meaning of “unacceptable risk” and what evidence the Court will consider to show the same, acts as a reminder of the many difficulties involved in parenting matters and the consequences of retaining legal advice to assist in addressing and resolving those issues.
What Evidence Matters When Assessing Unacceptable Risk?
Courts typically consider a wide range of evidence, including:
- Expert reports (psychologists, psychiatrists, family consultants)
- Disclosures made by the child to trusted adults
- Criminal charges or police reports, even if withdrawn
- Child welfare involvement or safety concerns
- Patterns of behaviour raising concern about safety or supervision
No single piece of evidence is determinative. The court looks at the whole picture when deciding if risk is unacceptable.
How Courts Manage or Reduce Unacceptable Risk
When risk is identified, the court may introduce safeguards, including:
- Supervised time with the child
- Therapeutic programs or parenting courses
- Restrictions on overnight time
- Conditions such as drug testing or mental health treatment
- Use of contact centres for changeovers or supervision
These measures aim to maintain the child’s safety while still supporting a meaningful relationship where appropriate.
What Parents Should Do if They Suspect a Risk
If you have concerns about your child’s safety, consider:
- Keeping written records of incidents or disclosures
- Seeking advice from a family lawyer early
- Speaking with relevant professionals (GP, psychologist, school counsellor)
- Requesting supervised time if immediate safeguards are needed
- Contacting police or child protection if there is imminent danger
Learn more about Ramsden Family Law and the expertise our team offers you in all cases, such as child abuse, family violence, or applying for a domestic violence order.
Your Child’s Safety is Our Priority: Speak to Ramsden Family Lawyers
Family law matters can be intricate, especially when your child’s safety is at the forefront. The landmark case of Isles & Nelissen [2022] highlights the significance of comprehending the term “unacceptable risk” and its implications in parenting matters. Given the complexities and nuances surrounding these cases, it’s imperative to have seasoned legal professionals guide you through the process.
At Ramsden Family Law, we understand that every child’s safety is paramount. Our dedicated team, backed by extensive expertise in the Family Law Act of 1975, is committed to ensuring that your child’s best interests are prioritised. When you entrust us with your case, we delve deep, offering you clarity, counsel, and unwavering support every step.
Don’t leave such pivotal decisions to chance. If you or someone you know is facing challenges related to parenting matters or concerns about unacceptable risks to their child, contact us. Let our experienced professionals at Ramsden Family Law guide you to safeguard your child’s well-being.
Ramsden Family Law – Advocates for your child’s best future.
Book a consultation online, call 1300 749 709, or email [email protected].
