Important cases — Unacceptable risk

[3-1460] DCJ and Evie and Grace [2023] NSWChC 1

Last reviewed: June 2024

Twin infants had healing fractures at multiple sites — most probable cause was the application of excessive force by a parent — parents unable to explain injuries and children were assumed into care and placed with their maternal great aunt — non-exhaustive list of factors in assessing safety at [53] — parents are intelligent, educated and engaged with services as recommended by the Department — parents have made the children available for medical assessments and reviews and have personally undertaken medical tests in search of a medical explanation for the injuries — parents have both attended psychologists to address concerns about their capacity to support their children — exposure of the harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children — children’s maternal uncle and grandparents will remain connected to the children and are alert to any signs of physical distress — children attend childcare three days each week and are supported by a nanny — risk of harm has been sufficiently mitigated such that the children are likely to be safe in the care of their parents — realistic possibility of restoration of children to their parents.

Isles and Nelissen [2022] FedCFamC1A 97

Standard of proof for unacceptable risk of harm — child alleged sexual abuse by father — father charged but later withdrawn due to lack of specific evidence — primary judge found that he could not make a finding that father sexually assaulted child, but held an unacceptable risk exists which could only be mitigated through supervised time (Isles and Nelissen [2021] FedCFamC1F 295) — test for making findings of sexual abuse distinguished from findings of unacceptable risk of harm — standard of proof as to whether abuse has occurred in the past is determined on the balance of probabilities — s 140 Evidence Act 1995 (Cth) — an unacceptable risk of harm does not require civil standard of proof on the balance of probabilities — unacceptable risk of harm requires a predictive or prospective exercise not limited to findings of past fact, but also possibilities — M v M FC 88/063 (1988) 166 CLR 69 followed — three relevant factors to consider when assessing unacceptable risk of harm: whether there are facts that indicate risk, either present or future; magnitude of risk; and tools or circumstances that can adequately mitigate that risk — appeal dismissed.

DCJ and Janet and Xing-fu [2022] NSWChC 7

Standard of proof for unacceptable risk of harm — child alleged sexual abuse by stepfather — later retracted her complaint — whether stepfather presents an unacceptable risk — if an allegation of sexual abuse is made out/not made out on the balance of probabilities, court then assesses risk, without conflation — Isles and Nelissen [2021] FedCFamC1F 295 followed — standard of proof in assessing risk is not on the balance of probabilities, the court looks to possibilities —Isles and Nelissen [2022] FedCFamC1A 97 followed — court satisfied that there was no evidence of sexual abuse — no unacceptable risk — court finds there is a realistic possibility of restoration within a reasonable period of Xing-fu to his father — court made finding prior to hearing that realistic possibility of restoration of Janet and Xing-fu to their mother.

A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872

Care and protection — allegation father sexually abused daughter — both children removed from parents and placed in care of Minister — children at unacceptable risk of harm — the ground for care orders under s 71(1)(c) has been made out in relation to both children — orders made by the Children’s Court confirmed.

Re Benji and Perry [2018] NSWSC 1750

Care and protection — Children’s Court ordered children to be returned to their carers — “unacceptable risk of harm” test in M v M (1988) 166 CLR 69 — s 9(1) Care Act — necessary to balance possibility of harm if children are returned to their carers with probability of psychological harm if they are not returned — application dismissed.

AA v DFaCS [2016] NSWCA 323

Care and protection — whether actions of DFaCS under Care Act valid — father charged interstate but not convicted of indecent and sexual assault involving a child under 12 years — risk of harm report about the father’s alleged history of sexual assaults — risk of violence alerts — mother’s three older children from a former marriage assumed into care and subject to an emergency care and protection order — high risk birth alert issued for impending birth of child and any future children — whether DFaCS’s assumption of care order and the high risk birth alert valid — DFaCS case in totality conveyed a serious risk of harm — parents did not establish grounds for relief — allegations of misconduct against DFaCS officers not found — DFaCS not motivated by ill-will but acted in the children’s best interests.

DFaCS re Eggleton [2016] NSWChC 4

Application under Care Act — application of the unacceptable risk of harm test — parental history of alcohol and drug abuse — accidental death of younger sibling — realistic possibility of restoration — strong and positive attachment between child and parents — magnitude of risk not sufficient to meet the threshold for unacceptable risk of harm.

S, DFaCS and the Marks Children [2016] NSWChC 2

Application that father is not the children’s “parent” — alternative application to exclude father from the proceedings — exceptional circumstances — allegations of domestic violence, sexual interference, abduction and threats to kill the children — father in immigration detention — father and legal representative not to be served with materials — father prohibited from having contact with the children — father found to be a “parent” for the purposes of these proceedings — compelling reasons that it is in the children’s best interests that the father be excluded from proceedings — father poses unacceptable risk to the children.

Re June [2013] NSWSC 969

Application by foster carers challenging decision of Children’s Court — whether magistrate erred in failing to admit relevant evidence — need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence — whether magistrate failed to comply with s 9(2)(c) Care Act — whether magistrate failed to properly apply s 79(3) — whether foster carers were entitled to an opportunity to be heard on matters of significant impact — what constitutes an opportunity to be heard — s 87 — where an order may have a significant impact on a person who is not a party to proceedings, there is a need for that person to be given an opportunity to be heard on that issue — ex tempore judgment — whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 — if not, whether manifest defects in hearing before and reasons of Children’s Court constitute “exceptional circumstances” — whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 — order quashed and matter remitted to the Children’s Court to be heard by a magistrate other than the magistrate who made the order that has been quashed.