Children – assessment of unacceptable risk…

family law casenotes

…a predictive exercise that includes mere possibilities

In Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022), the Full Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) dismissed a father’s appeal from orders made by McGuire J that four children live with the mother, and spend supervised time with the father.

The father had been charged with rape of the eldest child in criminal proceedings that had been discontinued for “lack of specificity” in the evidence ([63]).

McGuire J found he could not make a specific finding of sexual abuse; but found the father presented an unacceptable risk of harm.

The Full Court noted cases had gone so far as to posit that (from [6]):

“[T]he risk of … abuse … must be proven on the balance of probabilities according to the civil standard of proof …We consider that statement of principle to be incorrect …

[7] … [I]t is an oxymoron to expect … possibilities to … be forensically proven on the balance of probabilities … By definition, possibilities are not, and could never be, probabilities. (…)


[56] … [T]he principles enunciated in M v M (1988) 166 CLR 69 about ‘unacceptable risk’ were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A [1998] FamCA 25 …) (…)

[59] … The provisions of [the Family Law Act 1975 (Cth) (the Act)] … are [now] wide enough to embrace most, if not all, assertions of an ‘unacceptable risk’ of harm … and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act. (…)

[85] The assessment of risk is an evidence-based conclusion and is not discretionary. … The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment … which entails an exercise of discretion. …”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (

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