Finding Facts When Evidence Can’t Be Tested: Redefining Interim Risk Evaluation in Family Law
In Walshe & Walshe [2025] FedCFamC1A 231, Justice Campton delivered an important appellate decision clarifying the powers and responsibilities of family judges when assessing risk in interim parenting disputes. The Court confirmed that, even when evidence is untested or conflicting, judges are not prohibited from making factual determinations necessary to protect children. The decision affirms the judiciary’s duty to act cautiously but decisively in child-related matters — particularly where allegations of sexual abuse or family violence arise.
Facts and Issues
The mother alleged that the father posed an unacceptable risk to their daughter (born 2019) due to sexual abuse, family violence, and emotional harm. Police obtained a provisional ADVO protecting the child after she disclosed that her father had touched her genital area while wiping her after using the toilet.
The father sought professionally supervised time with the child, claiming the mother had influenced her and that any disclosures were “innocuous.” The Independent Children’s Lawyer (ICL) supported a limited reintroduction of contact. The mother opposed, seeking dismissal of the father’s application.
The primary judge, considering the gravity of risk and the absence of evidence that reintroduction would ensure the child’s safety, refused to reinstate contact. The father appealed, arguing the judge erred in law by making “findings on contested facts” at an interim hearing without tested evidence.
The key issue before Justice Campton was:
Can a family court judge make factual determinations at an interlocutory stage when evidence has not been tested through cross-examination?
Application of Law to the Facts
Justice Campton rejected the father’s argument, holding that a judge is not prohibited from making factual determinations at an interlocutory stage if necessary to assess unacceptable risk and ensure a child’s safety.
Drawing on Pilot & Silver [2022] FedCFamC1A 191 and Banks & Banks (2015) FLC 93-637, His Honour noted that although findings on contested facts should be circumspect, evidence “must not be ignored simply because it is disputed”.
The Court reaffirmed the two-step test from Isles & Nelissen (2022) FLC 94-092:
- Determine whether conduct allegations are established to the civil standard; and
- Assess whether the proven or possible conduct creates an unacceptable risk of harm.
Importantly, s 102NJ of the Family Law Act 1975 (Cth) expressly empowers the Court to “make findings of fact in child-related proceedings at any stage”, confirming the Court’s obligation to weigh credible evidence even where full testing is not yet possible.
Thus, the primary judge was entitled — indeed, required — to make interim factual assessments to decide whether supervised contact was safe.
Judicial Reasoning and Analysis
Justice Campton’s reasoning emphasised the protective function of interim parenting orders:
- The Court must not “ignore credible evidence” merely because it is contested.
- Determining risk at the interlocutory stage involves a conservative evaluation of probabilities and potential harm.
- Judges must weigh both the benefit of contact and the risk of harm, even if the full factual matrix awaits trial.
The primary judge’s detailed reasoning — acknowledging the limits of interim evidence while evaluating consistent reports from the child, daycare staff, GP, and police — demonstrated “circumspect engagement” with the statutory duty to safeguard children.
Justice Campton held that the father’s complaint was “hollow” because the trial judge had not made definitive findings of guilt or abuse, but rather weighed the available evidence to determine that it was not safe to reintroduce time.
The appeal was dismissed, with costs fixed at $13,143.99 against the father.
How a Judge Can Make Factual Determinations at an Interim Stage
This decision is now a leading authority confirming that:
- Section 102NJ expressly empowers courts to make interim factual findings in child-related proceedings to assist in determining disputes.
- Judges are not confined to uncontested facts; they may engage with contested evidence when safety demands it.
- Findings are not final — they are “conservative assessments” to manage immediate risks pending trial.
- The obligation under ss 60CC and 60CG (Family Law Act 1975 (Cth)) to ensure safety means a judge must evaluate risk, even without cross-examination.
- As per Pilot & Silver and Fowler & Northwood (2022) FLC 94-114, ignoring credible evidence simply because it is disputed would be a failure to exercise jurisdiction.
In short, a judge’s duty to protect outweighs the procedural constraint of untested evidence.
Take-Home Lessons
✅ 1. Safety First, Facts Later: Interim hearings are not mini-trials, but courts must still engage with credible evidence to assess risk.
✅ 2. Section 102NJ confirms judicial power to make findings mid-proceeding.
✅ 3. Credibility ≠ Certainty: Disputed evidence may still be weighed for interim protection.
✅ 4. Appellate scrutiny is limited: Unless a judge’s interim reasoning is illogical or ignores statutory mandates, appeals will fail.
✅ 5. Risk assessment is evidence-based, not discretionary: The Court must balance probabilities and potential harm with great caution.
Cited Authorities
- Walshe & Walshe [2025] FedCFamC1A 231
- Pilot & Silver [2022] FedCFamC1A 191
- Isles & Nelissen (2022) FLC 94-092
- Banks & Banks (2015) FLC 93-637
- Kellerman & Kellerman [2024] FedCFamC1A 126
- Fowler & Northwood (2022) FLC 94-114
- Family Law Act 1975 (Cth) ss 60CC, 60CG, 102NJ
