Unacceptable Risk to Children

Whether there is unacceptable risk  of abuse to children is a key determinant of what time, if any, the family courts will order that children spend with a parent as well as regards any restrictions to be imposed in relation to time that may be ordered.

In our blog, “Child Abuse“, we considered the concept of unacceptable risk in relation to where child abuse by a parent of their own child is alleged in parenting proceedings. In this blog, we look at how the Federal Circuit Court of Australia has dealt with other allegations of parental conduct which the other parent claims poses an unacceptable risk to children.

If you have concerns regards an unacceptable risk of harm to your children or any other family law issue, contact our experienced Brisbane child custody lawyers or our North Brisbane child custody lawyers. We can assist you in all areas of family law, including regards parenting arrangements and family law property settlement. We will advise you regards likely outcomes for your particular circumstances and the options available to you. This will allow you to make an informed decision. You are also welcome to read on for further information right now………

The case law is clear that a court should not make a finding of sexual abuse unless it is satisfied on the civil standard of proof. In parenting matters, the court must consider what is in the best interests of a child as the paramount consideration. In the Federal Circuit Court of Australia in Corson & Corson [2018] FCCA 3487 (11 December 2018), the sitting judge observed that “in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place” unless the Court is so satisfied on the civil standard of proof. The Court’s obligation is to determine whether on the evidence there is a risk of sexual abuse or unaccceptable risk of harm occurring if access to children is allowed and to make an assessment of the magnitude of that risk.

The test put forward by the High Court of Australia in M and M  (1987) FLC 91-830  is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

The mother in Corson’s case claimed in interim proceedings an unacceptable risk of abuse by the father. The Court noted that it is often not possible to test the evidence in interim proceedings. The Court observed that:

“There is a difference between a parent undertaking conduct that another parent might find to be unacceptable, and indeed possibly repulsive, and that same activity presenting an unacceptable risk of harm to children. It was incumbent on the Mother to assist the Court in understanding how behaviour which is clearly socially inappropriate, and possibly even repulsive, amounted to an identifiable risk to the children of both the Father and the Mother. The Mother conceded that the risk to the children was not that the Father would sexually abuse them. The risk was framed in terms of being inappropriate boundaries, but it was hard to understand why, even if the Court accepts (as it does) that the Father’s behaviour was demonstrative of inappropriate personal boundaries, that this presented a risk of harm to his own children…..It should not be left to the Court to guess what, precisely, the asserted risks to the children are. That was the position that the Court was left in. In many ways, the Mother’s case was based on innuendo. When all these examples of the Father’s inappropriate behaviour are put together in collage like fashion, it presents a picture of a sexual deviant who posed a risk to his children. But what risk?”

The Court concluded that there was no unacceptable risk of the father to the children that required to be managed by professionally supervised time as the Mother was asserting. However, the Court did provide in orders for restrictions upon the father and did not make any orders for overnight time on an interim basis. The Court said that these restrictions were imposed in part to reassure the mother and alleviate her anxiety. They were also imposed as orders were necessarily made at an interim hearing in a context where the evidence cannot be tested in cross-examination. Whilst at the final hearing it may be that it would be established that restrictions were not necessary, the difficulty of risk assessment at an interim hearing made it necessary that the restrictions be imposed.

Contact our child custody lawyers Brisbane or child custody lawyers Brisbane Northside for advice concerning any area of family law, including regards claims of unacceptable risk to children.  Our goal is to assist our clients to reach an amicable agreement concerning parenting arrangements for their children or for family law property settlement. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane child custody lawyers or our child custody lawyers Brisbane Northside.