N & S & The Separate Representative

The Full Court of the Family Court of Australia heard an appeal concerning the custody and access arrangements for a four-year-old child. The mother, the appellant, had denied the father access to their daughter due to the child's repeated and specific allegations of sexual abuse by the father. The father sought access and later custody. The trial judge, Coleman J, was not satisfied on the balance of probabilities that the alleged sexual abuse had occurred.

The legal issues before the Full Court included whether the trial judge erred in failing to give proper weight to the evidence of sexual abuse, and whether the trial judge correctly applied the concept of "unacceptable risk" in determining access arrangements. Specifically, the court considered whether the trial judge's finding that he was not satisfied of abuse on the balance of probabilities logically led to the conclusion that the father was not unfit to be a custodian or access parent, and whether the trial judge adequately assessed the risk of harm to the child.

The majority of the Full Court, comprising Kay and Hilton JJ, dismissed the appeal. They held that the trial judge had weighed the relevant evidence and concluded there was no unacceptable risk to the child, characterising this as a discretionary judgment that should not be interfered with, citing the principles in *House v. R.* and *Gronow v. Gronow*. Fogarty J, dissenting, found that the trial judge had erred by failing to directly address the question of unacceptable risk. His Honour reasoned that in cases involving allegations of sexual abuse, the court must assess whether the evidence, even if insufficient to prove abuse on the balance of probabilities, creates an unacceptable risk of harm to the child, considering the grave consequences of such abuse. Fogarty J noted that the trial judge incorrectly equated a lack of satisfaction regarding the occurrence of abuse with a lack of unfitness for access.

The Full Court ordered the dismissal of the appeal. While the majority acknowledged that the trial judge should not have awarded interim custody to the mother given the father's unrealistic proposals for custody, they noted that the mother had not specifically appealed this aspect of the order. The court also indicated that custody would likely not be re-investigated at the end of the six-month period.