Unacceptable risk and best interests

  • Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
    This report presents a comprehensive review of legal responses to Family Violence in Australia. The commissions received many submissions. At p 268, the report notes – ‘…in making parenting orders, family courts have to ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence’.
  • Chisholm, Richard, ‘Family Courts Violence Review: A Report’ (Canberra: Attorney-General’s Department, 2009).
    Professor Chisholm was required to ‘assess the appropriateness of the legislation, practices and procedures’ that apply in cases where family violence is an issue and to recommend improvements. The report considers the issue of family violence in the family law system. Part 2 considers practices and procedures of the federal family courts in cases with family violence issues. Part 3 discusses issues with the applicable legislation in force at the time. Part 4 considers other matters, mainly relating to support services, information sharing and legal representation. See in particular from p 101, where the author discusses risk.
  • Family Law Council and Family Law Section of the Law Council of Australia, ‘Best Practice Guidelines for Lawyers Doing Family Law Work’ (2017).

    See section 7 – ‘Child Abuse allegations and family violence’. In particular, 7.1 (p 19) states:

    ‘Clients may allege that a child has been abused or is at risk of abuse or that a child has been exposed to, or is at risk of being exposed to, family violence. Lawyers should be aware of the provisions of the Family Law Act and the Family Law Rules in relation to the mandatory filing and service of notice of such allegations, including the requirements for service on the alleged perpetrator of abuse. If a lawyer considers a child to be at imminent risk of abuse, the lawyer should encourage the client to report the allegation directly to the relevant child welfare authority. Clients should be aware that any Independent Children’s Lawyer appointed in the proceedings has a similar duty to file a Notice of Risk should he or she become aware of such allegations.’
  • Faulks, John, ‘Justice and the Protection of Children’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014)’.
    This chapter considers how the Family Court of Australia deals with matters involving children where there are allegations of abuse. The author discusses the issue of unacceptable risk in relation to child abuse at pp 161-162. A particular ‘conundrum’ is considered – ‘If the court were satisfied that the events alleged had occurred, then there must necessarily be some risk for the child in spending time with that parent, at least unsupervised. If the court is satisfied that the events alleged had not occurred, is it not reasonable that the parent and the child should have the opportunity to develop a proper relationship?’
  • This document contains a general overview of the Family Court’s transition from the traditional common law adversarial trial to the less adversarial trial (LAT). It contains a history of procedural reforms to the Family Court. It discusses the differences between adversarial and inquisitorial systems, and contains detailed discussion of the operation of the LAT model. See in particular at p 22, which contains discussion of the issue of unacceptable risk, specifically in relation to the ‘Magellan’ case management model in the Family Court and the decision in M and M (1988) 166 CLR 69.
  • Higgins, Daryl and Rae Kaspiew, ‘Child protection and family law… Joining the dots’ (NCPC Issues No. 34, Australian Institute of Family Studies, 2011).
    This paper looks at the specific issues facing those responsible for ensuring the safety and wellbeing of children in the context of parental separation, and the two separate legal systems: family law and child protection. Of most relevance here is the discussion from p8 which considers the family law system specifically. In particular, the discussion on p 12 considers the application of the ‘unacceptable risk test’ in the context of allegations of child abuse and child neglect in the family courts. The paper also contains summaries of cases which serve to illustrate the interaction between the family law and child protection systems.
  • Kaspiew, Rae, et al, ‘Experiences of Separated Parents Study’ (Evaluation of 2012 Family Violence Amendments)’ (Report, Australian Institute of Family Studies, 2015).

    This report sets out the findings of a core element of the Evaluation the 2012 Family Violence Amendments project—the Experiences of Separated Parents Study (ESPS). This element is based on a comparison of data from two cross-sectional samples of the Survey of Recently Separated Parents (SRSP): the 6,119 parents surveyed in the SRSP 2012, who used family law system services in 2011; and the 6,079 parents surveyed in the SRSP 2014, who experienced the system in 2013. The family violence amendments introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 came substantially into effect on 7 June 2012, meaning the SRSP 2012 survey represents parents’ pre-reform experiences and the SRSP 2014 their post-reform experiences.

    The core focus of the SRSP 2012 and 2014 studies were on investigating parents’ experiences of family violence and safety concerns (including children’s exposure to family violence) and their experiences in disclosing family violence and safety concerns to family law system professionals. These data sets indicate that family violence is a common experience among separated parents, with a majority of participating parents in both cohorts reporting physical or emotional abuse before/during separation, and mothers reporting these experiences in greater proportions compared to fathers.
  • Kaspiew, Rae et al, ‘Evaluation of the 2006 Family Law Reforms’ (Australian Institute of Family Studies, 2009).
    This evaluation of the impact of the 2006 changes to the Family Law Act involved the collection of data from some 28,000 people involved or potentially involved in the family law system - including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers - and the analysis of administrative data and court files. See generally chapter 10 – ‘Family violence and child abuse: Parents’ pathways and professionals’ perspectives’. The discussion from p 250 regarding burdens of proof is especially relevant for risk considerations.
  • Kaspiew, Rae, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
    Building on findings of the Survey of Recently Separated Parents 2012, the Longitudinal Study of Separated Families, and the 2009 AIFS Evaluation of the 2006 Family Law Reforms, this report examines the impacts of changes to the Family Law Act 1975 (Cth) in the area of family violence. See generally chapter 4 which considers risk assessment. Section 4.3.2 deals with the use of screening and assessment tools such as DOORS (Detection of Overall Risk Screen) (pp 38-39).
  • Kaspiew, Rae, et al, ‘Court Outcomes Project’ (Report, Australian Institute of Family Studies, October 2015).
    The 2012 amendments to the Family Law Act 1975 (Cth) ‘were intended to support increased disclosure of concerns about family violence and child abuse, and to support changed approaches to making parenting arrangements where these issues are pertinent to ensuring safer parenting arrangements for children. The Court Outcomes Project examined the effects of these 2012 reforms on court filings, patterns in court-based parenting matters and the judicial interpretation of key legislative provisions introduced by the amendments’ (p vii). See generally chapter 4 which deals with risk considerations and contains extensive analysis of relevant cases. See in particular, section 4.2.2 for discussion of the uncertainty around the application of the unacceptable risk test (pp 68-70).
  • Moloney, et al, ‘Allegations of family violence and child abuse in family law children's proceedings: A pre-reform exploratory study’ (Research Report No. 15, Australian Institute of Family Studies, 2007).
    This study examines (a) the prevalence and nature of allegations of family violence and child abuse in family law children's proceedings filed in 2003 in selected registries; (b) the extent to which alleging parties provided evidence in support of their allegations, and to which allegations were denied, admitted or left unanswered by the other party; and (c) the extent to which court outcomes of post-separation parenting disputes appeared to be related to the presence or absence of allegations.
  • Moloney, et al, ‘Understanding parenting disputes after separation’ (Research Report No. 36, Australian Institute of Family Studies, 2016).

    ‘This report explores the behaviour of separated parents by exploring the psychology of post-separation parental disputes and then interrogating three independent data sets to see what further insights they provide on the issues.’

    See in particular the findings in Chapter 3, which considered, ‘Practitioners’ experiences of Parenting Disputes’: ‘Practitioners noted that often families who were in entrenched conflict had multiple problems, including psychiatric, substance use and violence issues. These issues contributed to disputes as they are often sources of safety concerns’ (p 36).
  • Parkinson, Patrick, ‘Violence, abuse and the limits of shared parental responsibility’ [2013] (92) Family Matters 7.
    The thesis of this article (and a book by the author published in 2011) is that family law around the Western world has shifted fundamentally and irreversibly. Jurisdictions across the Western world have come to the sometimes painful conclusion that while marriage may be dissoluble, parenthood is not. The author argues that one issue with Australian legislation is that it focuses on a historyof family violence or abuse at any time in the course of the relationship, rather than on current safety concerns, and without sufficient clarity about how that history needs to be taken into account in decision-making (see esp. p 12-15).
  • Strickland, Justice Steven, ‘Attachment Theory and Family Violence: a judicial perspective’ (Paper delivered at AFCC 49th Annual Conference, Chicago, 6-9 June 2012).
    This paper discusses the 2006 and 2011 family law reforms from the perspective of attachment theory. Attachment theory, which relates to the need for strong bonds with ‘attachment figures’ from an early age is outlined from p 3. See also in particular the comments regarding notices of risk at pp 31-32.