Care and protection — unacceptable risk of harm test — unexplained injuries — court satisfied that an order that allows the four children to reside with the parental grandparents would not expose the children to an unacceptable risk of harm.

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.

Standard of proof for unacceptable risk of harm — child alleged sexual abuse by father — father charged but later withdrawn due to lack of specific evidence — primary judge found that he could not make a finding that father sexually assaulted child, but held an unacceptable risk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.

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.

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.

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.

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.

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.

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.

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.