Risk and Unacceptable risk? Isles & Nelissen [2022]

Isles & Nelissen [2022] FedCFamC1A 97

Isles & Nelissen [2022] FedCFamC1A 97 

Appeal from: Isles & Nelissen [2021] FedCFamC1F 295
Appeal number(s): NAA 9 of 2022
File number(s): LNC 376 of 2017
Date of judgment: 1 July 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Standard of proof – Whether the primary judge erred at law by not applying s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) to a finding that the father posed an unacceptable risk of harm to the children – Where s 140 of the Evidence Act is reserved for the proof of facts and is not the measure by which an unacceptable risk of harm is assessed – Where the assessment of risk is a predictive exercise and risk is postulated from known historical facts and present circumstances, not requiring the proof of any possible harm as a probability – No error identified – Tendency evidence – Whether the primary judge erred by admitting and then relying upon certain evidence as tendency evidence and using such evidence to facilitate the finding of unacceptable risk – Where the father did not object to the admissibility of the evidence at trial – Where the tendency rule has no bearing on the assessment of risk – Where evidence which is relevant to and influential in that predictive inquiry is admissible – No error identified – Appeal dismissed – No order as to costs.


In July 2022, the Full Court of the Federal Circuit and Family Court of Australia provided clarification on how to assess the concept of “unacceptable risk” and determine if a parent poses a threat of harm to their child. The Court emphasized that unacceptable risk does not need to be measured on the civil standard of proof and a lack of evidence of past abuse does not impede a determination of unacceptable risk.

The Court’s determination of unacceptable risk is a predictive exercise that considers the possibility, probability, or certainty of future harm and whether there are sufficient tools or circumstances to mitigate that risk. The Court can make a finding of unacceptable risk based on a possibility of future abuse or family violence, even if the evidence is grounded on past conduct.

In this case, the Father had initiated family law proceedings in 2018 after the Mother withheld the children due to allegations of sexual assault. Despite charges being withdrawn against the Father due to a lack of evidence, final orders were made in September 2020 for the children to live with the Mother and spend supervised time with the Father. The State child welfare agency sought to limit the children’s time with the Father to supervised visits, leading the Father to commence new proceedings. Ultimately, the Court upheld the decision for the children to live with the Mother and have supervised time with the Father only.