ISLES & NELISSEN [2022] FedCFamC1A 97
“It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the Court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse”.
- Justice Austin (Minority View) in the case of Fitzwater v Fitzwater (2019) 60 Fam LR 212 at paragraph 140.
“A comparatively small risk of really serious harm can justify action, while even virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the evidence is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.”
- Hale LJ in Re C and B (Children) (Care Order: Future Harm) [2011] 1. FLR 611 at [28].
Background
2 weeks ago, the Full Court of the Federal Circuit and Family Court of Australia made an important decision. It is significant because it clarified the existing law in cases where there are allegations of child abuse, and the Court is called on to assess risk and make parenting orders. These are the most delicate of cases because the Court must consider how to mitigate future risk of children in view of allegations of abuse made. There are several factors at play in such cases: the quality of the evidence; the credibility of the witness’ giving testimony; proportionality between orders made and risks identified; and most importantly, the safety and best interests of the children involved.
This case importantly noted the distinction between two related, though distinct concepts: –
1. Findings of fact of abuse – arriving at a conclusion that something in the past probably did or did not happen based on historical evidence (i.e. witness testimonies).
2. Unacceptable risk of harm – assessing the possibility of future events occurring which may harm a child, and crafting orders / safety measures accordingly.
In the first, the task is retrospective. It is a matter of assessing the veracity of the allegations made and seeing if they stand up to scrutiny. In the context of a hearing, this occurs through cross-examination of witnesses and assessing other variables such as the timing of the allegations, identifying motives, and other potentially relevant factors such as a witness’ psychological state. After considering all this, the Court will either be satisfied or not that the abuse in fact took place.
In the latter, as the Court noted several times in this case, the task is prospective. The Court must look forward and make a risk assessment based on the possibility that harm may ensue in the future.
Prior to this case, there seemed to some confusion as to how the two concepts were dealt with. It was understood that assessing unacceptable risk had to be done using the same standard as a finding of fact, namely on the balance of probabilities. In this case the Court took the opportunity to clarify this is not so, in the context of a parenting dispute involving sexual abuse allegations against the father.
The Facts
The case concerned a boy who was 10 at the time of the hearing. When the boy was 7 years old, he had made a disclosure that the father had penetrated his anus with two fingers. This disclosure was made in the presence of the mother, father and other adults who were present. When the mother confronted the father about this, the father denied this ever occurred. Evidence revealed that, at the time the father confronted the allegation, the father pulled the boy aside and whispered something into his ear. What the father whispered was incomprehensible to the mother. At trial, it was alleged that the father had apologised to the boy and assured him it would not happen again.
Following this, Police became involved and interviewed the boy on 3 separate occasions. During the first interview, the boy did not disclose the alleged penetration, however in the second interview he did, and on the third he even confirmed the apology given by the father. A prosecution against the father was commenced, however ultimately discontinued for a lack of specificity in the evidence.
Concerned for the child’s safety, the mother suspended the father’s time with the child. The father then filed proceedings in the Federal Circuit Court seeking parenting orders. Interim orders were made providing supervised time for the father. The case ended when the parties signed consent orders which provided for the father to have unsupervised time with the child following a period of graduated supervision. Concerned by the outcome, the State Welfare representative filed proceedings before the State Magistrate and sought Orders for the father to spend only supervised time with the father. The father then commenced fresh proceedings in response (this case), and the child welfare agency then discontinued the other proceedings and became a party to this case.
During the life of the case, the child consistently recounted the allegation of abuse by the father to numerous parties, including the single expert psychologist, family consultant, and the paternal uncle.
Legal Overview
The Court conducted a detailed analysis of the previous cases that had grappled with the concept of risk of harm to children. Overall, it found that the two distinct ideas listed at the commencement of this blog (namely, proving a fact and assessing risk) had been conflated, and that it was necessary to probably demarcate them once and for all.
I found one hypothetical scenario used by the Court to be instructive, namely: –
Imagine a child who will be minded by 1 of 3 randomly allocated carers. Assume 1 of the carers would sexually abuse the child, but the other 2 would not, meaning the child stands a 33.33% 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 their care unless shown he or she was susceptible to sexual abuse by 2 of the 3 carers and the risk was then rated at 66.66% [at paragraph 86].
Indeed, when assessing risk in relation to children, a possibility of merely 1% may be sufficient to implement measures to mitigate against that risk. The severity of the potential outcome (in this case the possibility of sexual abuse, and a potential life of trauma that could ensue from that) dictates the appropriate response. In this area, one’s “appetite” for risk must surely be very low – and as it should be, when there is the wellbeing of children at stake. Better to take an overly cautious approach that not, as affirmed by Her Ladyship Hale LJ in the quote extracted at the start of this post.
A Finding of Fact: Probabilities
The Court maintained the view that proving that abuse did occur must be done according to the rigorous Briginshaw (1938) standard found in section 140(1) of the Evidence Act. Whilst the standard/hurdle is not as high as the criminal standard of proof (“beyond reasonable doubt”), the alleging party must still clear a significant hurdle if they are to successfully prove the other parent has committed an abuse to the child.
In this case, the Court did not make a positive finding of fact that the father had sexually abused the child as alleged.
Finding Unacceptable Risk: Possibilities
The Court shunned any idea that a future unacceptable risk of harm had to be proved in the same manner as a finding of fact. When assessing future risk, the Court cannot be concerned with mathematical concepts of probability. Future events may lie on a continuum of things possible, namely “impossible” on one end of the spectrum and “certain” on the other. It is more likely that Courts will be called on to consider events which may fall between these poles, for example “remote… likely… not very likely”.
“A conclusion of there being unacceptable risk may be had from the cumulative consideration of factors where each individually might not be proved to the requisite standard (of balance of probabilities)”
Despite the Court not finding as a matter of fact that the father had sexually abused the child, it drew on other considerations in finding an unacceptable risk existed, namely: –
1. The elder child’s plausible but unproven allegations of sexual abuse by the father.
2. Evidence of the father’s sexual interest in other adolescents.
3. Evidence of the father’s interest in child exploitation material.
As to point (3), tendency evidence was adduced to prove the fact in issue, namely the father’s alleged sexual abuse of the child. The mother and child welfare agency sought to rely on evidence that the father had possesses child exploitation twice before. Regarding the first, the father was convicted, however it was quashed on appeal because it was not proven beyond reasonable doubt that the possession was intentional. As to the second, it was not subject to any criminal prosecution.
The Court used the fact of the first failed prosecution in assessing unacceptable risk. Despite the father being acquitted, the Court saw it “not as tantamount to a declaration of innocence… it was an uncontroversial fact that the child exploitation material was found on his computer, so it is possible his possession of the material was intentional, even though the prosecution could not establish it to the criminal standard of proof”.
Therefore, the Court then drew on other evidence in combination with each other to make a finding of unacceptable risk.
Conclusions
“Facts of the [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…”
“The ascertainment of future earning capacity involves an evaluation of possibilities, not establishing fact as a matter of history… the Court must form an estimate of the likelihood that the possibility will occur”
“To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the nature of the evaluation”.
Brennan and Dawson JJ in Malec (at 639-640)
In this case, the Court found that the father spending unsupervised time with the child posed an unacceptable risk. As a result, the Court ordered that the children should live with the mother and spend only supervised time with the father. In this case, despite not making a positive finding that the father had sexually abused the child, the Court still went on to assess future risk of harm by reference to the same allegations, alongside other evidentiary material which showed the father’s past sexual interest in children.
This case clearly delineated the Court’s task when needing to make findings of fact and assessing unacceptable risk of harm. They are two related, though separate exercises which, while they may overlap at times in terms of the evidence employed, are subject to different methods.
Findings of fact look to the past, while assessing risk is gazing into the future; and further, most importantly, it is only finding of facts that will be subject to the standard of proof of the balance of probabilities.
