The fundamental principle in determining parenting arrangements under the Family Law Act 1975 is to ensure that any order made by the Federal Circuit and Family Court (Sometimes allegations of serious family violence or sexual abuse are investigated by police but do not result in charges being laid. Sometimes charges are laid and later withdrawn. Sometimes the charges are not proven and dismissed at trial.
If allegations are not provable in criminal proceedings, why and how are they relevant in parenting proceedings?
The answer to that question lies in the specialised legislation applied by the Family Court
The fundamental principle in determining parenting arrangements under the Family Law Act 1975 is to ensure that any order made by the Federal Circuit and Family Court (for ease of reference “the Family Court”) is in the best interests of the child.
It is useful to think of the child’s best interest as a final destination. To arrive at that destination the Family Law Act provides a series of signposts, or if you like directional markers. These signposts are matters the Family Court must consider on its journey to arriving at a decision that is in the best interests of the child.
The two primary considerations (i.e. signposts) are:
- The benefit to the child of having a meaningful relationship with both parents;
- The need to protect the child from physical or psychological harm.
The second consideration trumps the first consideration. So, if a parent poses an unacceptable risk of harm to the child, the Family Court must prioritise the safety of the child when making orders. In many cases this will require the child’s time with the party who poses the risk to be supervised.
In the case of Isles and Nelissen [2022] FedCFamC1A 97 the father appealed against orders that provided his four children live with the mother and spend supervised time with him. The parties’ eldest child (aged 10 at the time of trial) made allegations of sexual abuse against his father. The father was charged with sexual offenses against the child. However, those criminal proceedings were discontinued due to lack of evidence. The mother persisted making the allegations and the father could not see his children unless supervised.
The father commenced proceedings in the Family Court. The court could not, on the evidence available, make a positive finding that sexual abuse had occurred. Nonetheless the court made the decision that the father presented an unacceptable risk of harm to the children. Given this, orders were made for the father’s time to be supervised on an indefinite basis. The father appealed.
Key Takeaways from the Appeal Judgement
- There is an important distinction between making findings of fact and risk assessment, although both are key functions of the Family Court.
- A finding of fact is a finding on the balance of probabilities (i.e. more probable (51%) than not (49%) that something probably did or probably did not happen in the past).
- Sometimes the court cannot be sure either way, so a finding of fact is not possible. That uncertainty does not mean that they ignore the allegations, or the potential for risk of harm to come to the child.
- The court must take the allegations into account when making an assessment about future risk and determine whether the level of risk has reached an “unacceptable” level.
Madsen Law have extensive experience advocating for clients in parenting matters. Please contact our office for more information on this topic or parenting matters generally.
