A Guide To Unacceptable Risk In Family Law

Child holding blocks that spell 'help'

The Federal Circuit and Family Court of Australia recently revealed worrying data on just how common it now is to have risk factors such as family violence raised in family law cases.

The Court data exposes that around 80% of family law cases involve allegations of at least one major risk factor. Further, it shows that 50% of high-risk matters involve a mix of four or more major risk factors.

These numbers provide even more impetus for our family law system to continue to focus strongly on issues of safety and risk.

Here, we take a look at how the Court handles parenting matters involving allegations of risk and unacceptable risk.

Outline of unacceptable risk in family law

The best interests of the child

According to the Family Law Act 1975 (the Act), our Courts must ensure that the best interests of the child are the paramount consideration in parenting matters.

Considering best interests, the two primary considerations are: whether the child can benefit from a meaningful relationship with each parent, and whether there is a need to protect the child from harm. More weight is given to the need to protect the child from harm, which is where the concepts of risk and unacceptable risk come in.

What is “risk” in family law?

Risk can be thought of as any situation or circumstance which places a child’s life, health or wellbeing in danger. It can take a number of forms:

  • There may be the danger of physical violence or sexual abuse by a parent or third party
  • A parent may have unmanaged or inadequately managed mental health issues, or alcohol or substance abuse problems, all of which can affect parenting capacity
  • Sometimes, physical or intellectual impairment of a parent can impact parenting capacity, creating risk
  • There may be a flight risk, where a parent could take the child and flee, particularly to an overseas, non-Hague Convention country
  • There may be risk due to neglect issues: risk can be created through both acts and omissions
  • There may be a risk of emotional or psychological harm, such as by a child witnessing family violence.

Further, our Courts are increasingly alert to parental alienation as presenting another risk of emotional harm to a child, as it can irreparably destroy a child’s relationship with the alienated parent.

Sometimes, a risk-alleging parent simply does not accept a Court’s finding that there is no unacceptable risk, and they become a risk of harm to the child themselves due to their entrenched false belief against the co-parent and the impact of that belief on their ability to parent.

This can also lead to emotional harm caused when a parent has deliberately made false allegations of risk against their co-parent, especially if the child has been inculcated to believe abuse occurred when it did not.

As reflected in the Court data, a number of risk factors can be present at the same time. For instance, family violence risk is often accompanied by drug/alcohol misuse risk.

What is “unacceptable” risk?

A risk becomes unacceptable to the Court if it outweighs the benefit of the child having a meaningful relationship with the parent alleged to be the cause of the risk.

The National Domestic Violence and Family Violence Bench Book notes, “To assess for unacceptable risk is to identify the nature and degree of the risk and whether, with or without safeguards, it is acceptable”.  Safeguards, or mitigation strategies, may convert an “unacceptable” risk to an “acceptable” one.

How do Courts find out about risk factors?

When seeking parenting orders via the Courts, parents must file a mandatory form called the “Notice of Child Abuse, Family Violence or Risk” with any applicaton or response filed, including for consent orders. This helps direct families to targeted assistance and intervention. But the Court also uses Notice information to triage cases and gather evidence for the parenting matter.

What happens when risk is alleged?

Once advised of risk, the Court must take prompt action to work out interim orders to protect the child/ren and gather evidence on the allegations for the final hearing.

The  Court is likely to order Court Child Expert (previously known as Family Consultant) assessments, which include further screening for family violence and risk. The Court may also  make orders to obtain documents from other agencies. An Independent Children’s Lawyer may be appointed, and they may issue subpoenas to further parties.

Ultimately, under section 68B of the Act, the Court can make any orders or grant any injunctions it considers appropriate for the protection of the child.

The family law test for unacceptable risk

When risk allegations have been made, the Court must decide whether an unacceptable risk exists and what could potentially minimise the risk. Case law has adopted the following questions as a useful framework for assessing risk:

  • What harmful outcome may be present?
  • What is the probability of that outcome being realised?
  • What risks are probable in the short, medium and long term?
  • What factors could increase or decrease the risks?
  • What measures are available to mitigate the risks?

Proving the assertion of risk

The Courts seek to make judgments based on the totality of available evidence. Evidence may include expert evidence, independent records, collateral information, and corroboration. 

Courts will be receptive to all kinds of elements in determining risk, including:

  • Details of who made allegations to whom
  • Whether there were opportunities for events to have taken place
  • Any effects exhibited by the child and likely future effects
  • Any innocent explanation for allegations,
  • An assessment of the mindset of the alleging parent

They will look for evidence of behaviours that could indicate risk, such as threats made. Inferences may be drawn, for example, from the credibility of parties.

Mitigating risk

If risk(s) are identified as existing, then risk mitigation is the next task. This is especially important at the interim hearing stage, before evidence can be tested at a final hearing. This is where Courts usually want to err on the side of caution when making orders.

Risk mitigation strategies vary according to the nature of the risk. There may be restrictions on spending time with the child, depending on compliance with risk-minimising orders or on the results of expert reports addressing parental capacity. Aside from limiting time and/or communication, time with the child could be ordered to be supervised. This is often the case if there is a risk of sexual abuse or family violence.

When there may be parental drug or alcohol abuse, there might be restraints on the use of alcohol or substances while caring for the child. Or, time and communication might be made contingent on rehabilitation, proven sobriety, or regular drug testing.

If risk stems from a parent with mental health issues, orders may be made for ongoing treatment or for time and communication to be dependent on compliance with prescribed treatments. Again, time might be restricted or supervised.

Where there could be a flight risk, a child’s name might be placed on the Family Law Watch List or a parent may have to surrender their passport when they have the child.

In cases where there is family violence risk, depending on the seriousness of the risk, no time might be ordered and restraining orders may also be implemented.

Conclusion

The early identification of risk factors is vital in parenting matters, so the Courts can best help protect children from harm. If you need help with a family law matter which may involve allegations of risk, please get in touch with our team here at Ryan & Seton Lawyers. We can advise on the best legal strategy whether you are concerned about your co-parent’s behaviours or you are subject to allegations in your parenting matter.

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