In all parenting cases before the Federal Circuit and Family Court, parties are required to file a Notice of Child Abuse Family Violence or Risk, also known as a “notice of risk” form. In that document, the parties are to articulate the “risk” that the child has been subjected to, or is at risk of being subjected to in the parties care in the future. Risk can take the form of exposure to, or risk of exposure to:
In many cases, you will hear the barristers and lawyers speaking of the child/ren being at “unacceptable risk”
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen [2022], who agreed with and adopted Austin J’s dissenting judgment in Fitzwater v Fitzwater [2019] as being the correct statement of the law. In Fitzwater at [138]–[139], Austin J relevantly said that:
“The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm ... Risks of harm must be heeded even if they are improbable eventualities.
Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible ... At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.”
Thus, determining the issue of risk essentially involves applying a risk template, whereby it is necessary to consider the hypothetical seriousness of the harm in the context of the probability of its occurrence. Thus, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might occur to the child if there is a future act of abuse, harmful or neglectful behavior, but also to assess the prospect or probability of such an act or conduct occurring that would cause such harm.
There are a number of common themes that emerge from case authorities, they are:
While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact.
In Stott & Holgar [2017], the Full Court accepted that, where unacceptable risk is alleged, the court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the court is then required to consider whether that unacceptable risk could be ameliorated: Stott at [41], citing Bennett and Bennett [1990].
Thus, the court will make orders to “manage” or “ameliorate” the risk. Orders can take the form of:
If you or a member of your family requires legal advice on a matter involving parenting proceedings, please contact our office for advice at 0435 802 855.
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