Family Law Case Examples Involving Risk

Sometimes a parent alleges the child or children are at an unacceptable risk of harm due to the other parent's behaviour. Risk of harm issues may involve substance misuse, family violence, child abuse, neglect or exposing the children to other dangerous or harmful situations. In relation to unacceptable risk, see the (five-member) seminal Full Court decision of Isles & Nelissen [2022] FedCFamC1A 97, whcih provides that If risk issues are present, the Court will seek to:

1. Identify the risk(s) (present or future), consider whether there are facts to support the allegation(s);

2. Assess the magnitude of the risk (if the danger were to become a reality); and

3. Consider whether there are ways to mitigate the risk so the relationship can continue safely

   
   

A later Full Court in Pacotto & Galvin [2025] FedCFamC1A 27 discussed Isles & Nelissen as follows at [38], stating the following:

“As for risk, or unacceptable risk,… the Full Court clarified in Isles & Nelissen… that past allegations of violence are to be determined by reference to s 140 of the Evidence Act 1995 (Cth) and that the assessment of an unacceptable risk cannot be measured by the civil standard of proof; rather, the court is required to look at possibilities. The factual findings made about past events inform the task of the risk assessment predicting the safety of the child or the parent from family violence.”

Put simply, when making findings of fact about past events the Court must be satisfied on the balance of probabilities (the civil standard) that such occured. However, when assessing unacceptable risk of harm in the future in parenting matters - the Court looks to the "possibility" of the possible harm becoming a reality, the gravity of such harm and whether there are ways to mitigate such harm. In Isles & Nelissen the parties 7 year old child made sexual abuse allegations against the father, the child made the disclosure in front of various individuals and so there was no dispute that the allegations were made, the Father denied the truth of the allegations. The Father was charged with rape, the charge was later withdrawn in 2019 due to lack of specificity. The child repeated the disclosures to various individuals including the single expert psychologist, the paternal uncle and the Family Consultant. The Father had been caught and charged with child exploitation material on his computer in 2018, ultimately he was not convicted. There was insufficient evidence to find (to the civil standard) that the father had in fact sexually abused the child. However, based on the gravity of the possible risk and the evidence, the Court still considered the Father to pose an unacceptable risk of harm to the child. Even a small possibility of serious harm eventuating may be sufficient to warrant serious mitigation orders. Although the primary judge found that he could not make a finding that the father did sexually assault the child, he still found an unacceptable risk exists which could only be mitigated through supervised time, this decision was upheld by the Full Court.

In McDevitt & Duchamps [2026] FedCFamC1A 11, the full court said (at [98]):

“Moreover, a finding of unacceptable risk does not mandate the termination of arrangements for a child to spend time, or even unsupervised time, with a parent. To the contrary, once a finding of unacceptable risk is made, the task of the trial judge becomes to consider measures that provide for a child to have a relationship with the non-resident parent while mitigating against the identified risk. Those mitigating measures must be proportionate to the identified risk (Keane & Keane [2021] FamCAFC 1… at [83]–[84]).”

Case Examples

Some case examples where risk issues were identified and orders were made to mitigate such risks follow:

• In Masson & Serban [2024] FedCFamC1F 176, Baumann J ordered (at orders 8 and 9):

  
  

“That the father must not expose the child to his use of marijuana and the father must not consume marijuana whilst the child is in his care.

“That the father must not consume alcohol to excess whilst the child is in his care.”

• In Yarrow & Yarrow [2021] FedCFamC2F 651, Judge Taglieri made the following order "The father shall not consume alcohol to the extent that he is unable to care for the children (must not exceed 0.05), or consume illicit substances whilst the children are in his care."

• Similarly, Jarrett J, in Qodirova & Arrighetti [2025] FedCFamC1F 323, ordered (at orders 12(a) and (b)):

“The parents shall:

“not consume alcohol to excess whilst X is in their care, noting that this would include any volume that would render them unable to legally drive a motor vehicle or remain in the company of others consuming alcohol to excess;

“not consume, or expose X to anyone who is under the influence of, any illicit substances whilst X is in their care, save for those prescribed by a medical practitioner”.

• In Walsh & Linnane [2025] FedCFamC1F 698 Carter J made the following orders requiring the father to complete a breathalyser test at 10 pm of each visit and at 8 am the next morning and for the purpose of the test:

  "(i) use a breathalyser device capable of connecting wirelessly with a compatible phone app, or a breathalyser with an inbuilt camera; and

  (ii) forward to the mother photographic evidence of him using the breathalyser with the reading, date and time of the reading."

• For detailed orders requiring hair follicle drug analysis and CDT (blood alcohol) testing, see Morvand & Sleeman [2024] FedCFamC1F 894 (at orders 15, 16 and 17). Hair testing can test a history of 3 or more months, and so such orders are common when substance misuse is an issue.

• For examples of detailed orders concerning hair follicle testing, see orders 8 to 16 made by Altobelli J in Rahal & Rahal (No 5) [2025] FedCFamC1F 141 and orders 2 and 3 made by Baumann J in Brydan & Sillars [2021] FedCFamC1F 198.

• In Irina & Harald [2025] FedCFamC1F 881 Smith J made the following order "The children shall only spend time with the mother, MS IRINA (born in 1992) as agreed between the parties in writing, and at the absolute discretion of the father, who may require supervision."

  
  

Conclusion

Identifying the risk or risks that relate to a particular matter is the first step, the next step is to consider the gravity of the risk (if the danger or harm became a reality) and to consider whether there are ways to mitigate the risk(s) so the relationship can continue safely (if possible, in reasonably rare situations "no time" orders are best for the child).