The Isles & Nelissen Case:

Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022)

Facts:

The case involves four children, with the eldest being 10 years old. The father had a history of inappropriate sexual interest in children and had been previously charged for possession of child exploitation material. The eldest child alleged in April 2018 that he was sexually abused by the father, and the father was charged with rape. However, the charge was later withdrawn due to a "lack of specificity" in the evidence. The mother withheld the children from the father, believing that he posed an unacceptable risk to the children.

Decision:

The Full Court upheld the primary judge's findings and decision, stating that although the primary judge could not make a finding that the father sexually assaulted the child, an unacceptable risk still existed, which could only be mitigated through supervised time. The standard of proof for determining past abuse is based on empirical evidence, but the question of whether there is an unacceptable risk requires a predictive and prospective analysis of the future. The Court needs to consider the magnitude of that risk and whether there are tools or circumstances that can adequately mitigate that risk. A finding of unacceptable risk is not discretionary, but the order made by the judge about the arrangements in the best interests of the children is discretionary.

Conclusion:

The Isles & Nelissen case clarifies the standard of proof in family abuse cases and emphasises the need to prioritise the safety of the child. The court must consider the risk posed by a parent or person in contact with the child and make orders that protect the child from harm.

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