Unacceptable Risk to Children in Family Law
Parents in parenting cases can be accused of conduct that places their children at unacceptable risk of harm. When such a risk is established, the court may order that the children not live with that parent or, in the most serious cases, that they spend no time with that parent at all.
Several recent decisions of the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) illustrate the wide variety of circumstances that can amount to unacceptable risk.
In M'Devitt v Duchamps [2026] FedCFamC1A 11, the findings against the father at trial included:
• pushing the mother in the shower, causing her to fall and injure the infant child;
• berating the mother during her pregnancy;
• behaving aggressively during the birth at the hospital;
• providing irregular and inadequate financial support;
• contacting the mother's employer about her working time; and
• cutting the line during the mother's phone calls with the child.
On this basis, the Full Court dismissed the father's appeal against orders allowing the mother to relocate internationally with the parties' 6-year-old child.
In Arrighetti & Qodirova (2026) FLC 94-292, the Full Court dismissed an appeal against orders that changed the child's residence from the mother, who lived with the maternal grandmother, to the father. The orders allowed the mother no time with the child for six months, after which she could have two hours of supervised time each fortnight. The maternal grandmother was to have no contact. The unacceptable risk lay in the mother's unfounded belief that the father had sexually abused the child, and her belief that the child would suffer emotional harm if in his care. The maternal grandmother shared the same mistaken belief.
In Jefford & Kaluza (2026) FLC 94-293, the Full Court allowed the father's appeal against an order that he spend no time with his children, aged 8 and 6. The trial judge had relied on more recent disclosures of sexual abuse, which the expert considered carried significant weight, to find unacceptable risk, despite an earlier judge having found insufficient evidence of a risk of abuse. The Full Court held that a long-term supervision order should be considered, and its benefits and disadvantages assessed, at the rehearing.
A different kind of risk arose in Novakova & Novakova [2026] FedCFamC1A 34. The mother, who lived overseas, appealed against orders refusing her permission to relocate the children overseas. The Court found an unacceptable risk to the child because the mother admitted administering non-prescribed substances, including THC oil and psilocybin (a hallucinogen). She was also found to be wrongly fixated on the idea that the child had various neuropsychiatric disorders.
In that case the Full Court restated the test for unacceptable risk: "The assessment of risk is a predictive exercise based on the evidence entailing the foresight of possible harm. Risks of harm are not susceptible to scientific demonstration of proof (CDJ v VAJ at [151]) but are instead postulated from known historical facts in present circumstances. Possibilities are a legitimate basis for finding that there is such a risk, as long as there is a proper evidentiary basis for these possibilities."
If you have concerns about parenting arrangements or allegations of unacceptable risk involving your children, it is important to seek legal advice. each case turns on its own facts and evidence, and early advice can help you understand your rights, obligations and available options.