Johnson & Page

The Full Court of the Family Court of Australia heard an appeal concerning parenting orders made by a trial judge. The primary dispute involved allegations of unacceptable risk of sexual abuse to a child when spending unsupervised time with the father. A secondary issue arose from an injunction sought by the independent children's lawyer at the conclusion of the trial, which restrained the mother's new husband from certain activities with the child, despite no allegations of abuse being made against him.

The court was required to determine whether the trial judge had applied the correct legal principles in assessing the question of unacceptable risk of sexual abuse. Specifically, the appeal questioned whether the trial judge erred in failing to provide adequate reasons for concluding that the child would not be exposed to an unacceptable risk in the father's care. Furthermore, the court considered whether the trial judge's discretion miscarried in granting an injunction against the mother's new husband, and if there was an adequate foundation for such an order. The court also addressed the application of section 140 of the *Evidence Act 1995* (Cth) and whether an excessively high test had been applied.

The Full Court clarified that the trial judge applied the correct standard and onus of proof, particularly as no finding of actual abuse was sought. The court emphasised that the notion of "unacceptable risk" requires a qualitative analysis, focusing on the potential magnitude of harm to the child, rather than a mere counting of factors favouring or opposing contact. The court reiterated that while a finding of sexual abuse on the balance of probabilities is powerful, its absence does not preclude a finding of unacceptable risk. The court found that the trial judge had erred in granting the injunction against the mother's new husband, as there was an insufficient foundation for its exercise of discretion, and allowed the appeal in relation to this aspect. The mother's appeal against the finding of no unacceptable risk was wholly unsuccessful.

Regarding costs, the mother was ordered to pay two-thirds of the father's costs, as her appeal on the unacceptable risk issue was unsuccessful. No order was made for the independent children's lawyer's costs.