In the recent decision of Stott & Holgar and Anor  FamCAFC 152, the Full Court of the Family Court of Australia considered whether a father posed an unacceptable risk to the child, and consequently, the amount the time child is to spend with the father.
The case was an appeal from the Family Court of Australia, arising from particularly unfortunate circumstances.
At the centre of the dispute is a 10 year old child (diagnosed with autism), who was subject to an order in 2014. The order required the child to live with the maternal grandmother. The primary judge in that decision “found that the order was made in circumstances of “significant uncertainty” about the ability of the mother and father “to provide a safe and protective environment for the child.””
Since that judgment, a further order was made on 13 May 2015 that provided for the father to spend time with the child each alternate Saturday. Not content with that Order, the father made an application for the child to live with him, and only spend time with the grandmother.
The father, in the decision of Holgar & Stott and Anor  FamCA 632, was granted the following orders on 5 August 2016:
- the father be permitted to spend six hours with the child each alternate Saturday;
- From 15 November 2017, the father can spend time overnight unsupervised time with the child from 10am Saturday to 4pm Sunday each alternate weekend; and
- The increased time would be conditional upon the father undertaking and completing a successful course of counselling and therapy in relation to family violence.
The grandmother appealed the orders on 22 grounds of appeal, which the Court dealt with through four questions:
- Did the primary judge misapprehend the Family Consultant’s evidence?
- Did the primary judge afford procedural fairness to the grandmother?
- Did the primary judge err in applying the unacceptable risk test?
- Did the primary judge give adequate reasons?
Ultimately, the Court allowed the appeal, setting aside the orders of 5 August 2016, and remitting the case back to the Family Court of Australia to rehear the issue of the father’s time with the child.
In coming to its decision, the Court referred to a number of statements made in relation to the “unacceptable risk” test, including the following comments:
- From the High Court decision of M v M (1998) 166 CLR 69:
“To achieve a proper balance [between the risk of detriment of sexual abuse and the possibility of benefit to the child from time with a parent] the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
- From the Full Court of the Family Court of Australia in B and B (1993) FLC 92-357:
“… the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is finding that the risk of harm to the children in having access with a parent outweighs the possible benefits from that access.”
- From Hon. John Fogarty AM’s journal article “Unacceptable Risk – A return to basics” (2006) from the Australian Journal of Family Law:
“…unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’…”
In re-applying the unacceptable risk test, he Court held that the primary judge misapplied the test, and did not provide adequate reasons considering the nature, magnitude and potential effect of the risks for the child.
There were a significant number of findings made by the primary judge that gave rise to this view of the Court, including:
- The father’s proven history and propensity for violence and criminal history;
- The father’s incapability to accept his history and dismissive approach to his propensity to violence;
- The special management required for the child, arising from the child’s autism; and
- The strongly held view of the grandmother that the child was at risk of abuse by the father.
It remains to be seen what final orders will be made now that the matter has been remitted back to the Family Court of Australia. However, the decision assists in giving further clarity around the balance between the risk of detriment to the child, and the potential benefit from the child spending time with a parent – and when that balance arises in an unacceptable risk.