Past and Future: Assessment of Facts vs Risk in Family Law Cases & the Possibility of Future Harm
By: Robert Kukuruzovic, Lawyer
On 15 June 2022, the Full Court of the Federal Circuit and Family Court of Australia, in an Appeal from the findings of the trial judge, handed down its decision in the case of Isles v Nelissen (2022) 65 Fam LR 288. In so doing, the Full Court confirmed that there are differing standards of proof to be applied when considering the existence of past abuse and the risk of future abuse.
This case involved a parenting dispute between a mother and father of four children, who had separated in March 2016. In 2017, Orders were made which allowed for the children to spend equal time with both parents.
In 2018, the eldest child, then aged 7, disclosed to the mother and other adults that the father ‘puts his finger up my bum’. The child repeated this statement when interviewed by a police officer, and later in the same year, further disclosed that following a discussion between the mother and father, the father had apologised to the child to the effect of “I love you. I’m sorry. I won’t do it again”.
The mother sought orders that she have sole parental responsibility for the children’s care, that they live with her, and that any time the children might have with the father be professionally supervised.
Issues at Trial
The trial judge, Justice McGuire, had two main legal issues to determine:
- Whether or not the alleged abuse occurred; and
- Whether or not there was an unacceptable risk of future harm occurring.
During the original trial, one consideration was whether or not tendency evidence put forward by the mother was admissible and had value. Tendency evidence is submitted to prove past behaviour and is used in an effort to show that a person has or had a tendency to act in a particular way.
In this case, there were historic “MSN” communications between the father and his then 15-year-old cousin, which the mother asserted were indicative of a sexual relationship or a form of grooming. The father had also been convicted in 2009 of being in possession of child exploitation material.
The mother put forward these events as tendency evidence to support the child’s allegations, maintaining that the father had engaged in similar behaviour in the past which proved that he posed an unacceptable risk of harm to the children in the future.
Held at Trial
In his decision, Justice McGuire explained the differences involved when the court is required to consider past abuse as compared to the risk of future abuse.
Issue 1 – Past Abuse
Whether or not the alleged abuse occurred is determined by whether there is a greater than 50% chance that it occurred, that is, whether on the balance of probabilities, the abuse occurred.
Justice McGuire held that the tendency evidence in this case did have significant value in assisting the Court to decide whether the father had abused the child. However, even when considered in combination with the child’s allegations, the Court did not find that the abuse had in fact occurred, given that there were alternative plausible and innocent explanations for what the child had said.
His Honour noted that the gravity of the allegations and seriousness of the consequences were also important factors to consider when weighing up the evidence.
Issue 2 – The Risk of Future Abuse
On the other hand, deciding whether or not the father posed a future and unacceptable risk of harm to the children involved a wider consideration of many factors, and was more focussed on possibilities rather than probabilities.
Therefore, the Court found that even though the child’s allegations and tendency evidence were not strong enough proof of past abuse, they were strong enough indicators of future unacceptable risk to the children.
Based on the combined effect of the evidence put before the court, and the suggested lower standard of proof (i.e. based on possibility), Justice McGuire found that the father did pose an unacceptable risk of future harm to the children until they were able to self-protect.
Therefore, Justice McGuire ultimately agreed with the mother and made orders in the terms she sought.
Basis of Appeal
The father appealed the Trial Judge’s finding that he posed an unacceptable risk of future harm to the children.
The father argued that the Trial Judge’s approach and reasoning with respect to the risk of future harm was incorrect, and that a finding of unacceptable risk also had to be made on the balance of probabilities.
The Decision on Appeal
The five Full Court Justices who heard the appeal, including Chief Justice Alstergren and Deputy Chief Justice McClelland unanimously dismissed the father’s appeal.
On the issue of unacceptable risk, their Honours referred to the case of M v M, in which the High Court held that the Court must determine ‘whether on the evidence there is a risk of sexual abuse occurring if custody or access is granted and assess the magnitude of that risk’ but did not say how that risk would be established.
In this appeal, their Honours noted that while the Family Court had previously used the balance of probabilities standard in deciding whether there was unacceptable risk, this was incorrect. That standard only applies to findings of fact, for example, whether a previous event had occurred, not future possibilities.
Their Honours also referred to previous Full Court decisions which clearly emphasised that a possibility of past abuse occurring could be enough to make a finding that there is an unacceptable risk of abuse in the future.
They further explained that if one accepted that the Court should react to a possibility of risk, then it is unreasonable to expect that the possibility should be proven to such a high standard as on the balance of probabilities. Risks of harm should be carefully considered, even if they are unlikely to occur.
Deciding whether there is an unacceptable risk of harm occurring in the future means that the Court must, by definition, try to predict what will happen, and logically, such predictions cannot be proven to the same standard as past events.
This case serves as a good explanation of the different approaches necessary when making findings about past abuse compared to future risk of abuse in family law proceedings.
Anyone who finds themselves involved in a similar situation should be aware that while evidence of past abuse may not be enough to prove that abuse, this does not prevent the Court from using that evidence to make orders which protect children in the future.
If you require legal advice or representation with respect to your Family Law matters, please contact our highly experienced Family Law Team at MST Lawyers on (03) 8540-0200 or at email@example.com.