Assessing Risk to Children and Young People: What Courts Consider When Allegations of Harm Are Raised

Assessing Risk to Children and Young People: What Courts Consider When Allegations of Harm Are Raised

When allegations of abuse or other concerns of harm to a child are raised, courts must carefully consider the available evidence and determine what arrangements will best protect the child. A recent decision of the Federal Circuit and Family Court of Australia (FCFCA) highlights the importance of assessing potential risks and carefully considering the evidence before making parenting orders.

What is Child Abuse?

Child abuse can take different forms and may include physical abuse, sexual abuse, emotional or psychological abuse, neglect and/or exposure to family violence. Harm may be caused by a single incident or may occur through a series of ongoing behaviour.

Concerns about abuse can arise from a child’s disclosure, observations by professionals, information from family members, and/or other circumstances that indicate a potential risk of harm.

When concerns are raised, the response should focus on the child’s safety while ensuring allegations are assessed fairly based on the available evidence.

The Case: Morris & Lissa

Allegations of Abuse and Risk

In Morris & Lissa [2026] FedCFamC1A 163 (Morris & Lissa) the child had previously lived with the appellant under final parenting orders. The respondents subsequently retained the child and raised allegations concerning abuse and the risk of harm to the child in the appellant’s care.

The primary judge ordered that the child live with the second respondent and spend time with the appellant under professional supervision.

The Appeal

The appellant appealed the orders, arguing that the primary judge had not properly considered the child’s best interests or given sufficient weight to relevant evidence.

The evidence considered included matters concerning the child’s relationship with the appellant, police observations and allegations that the child had been coached in their disclosures.

The FCFCA dismissed the appeal. It found that the primary judge’s assessment of the evidence and risk was open on the material before the Court and that the appellant had not established an appealable error.

How Do Courts Assess Risk?

Looking at the Available Evidence

When allegations of abuse are raised in parenting proceedings, the Court must consider the evidence available to it and assess the circumstances affecting the child’s safety and welfare.

This may involve evidence from parents and other family members, children, police, medical professionals, and other relevant witnesses.

The Court must consider the overall evidentiary picture rather than examining an allegation in isolation.

Risk Can Be Relevant Before Findings Are Made

A significant consideration in parenting proceedings is that the Court may need to make orders while further evidence or investigations are still outstanding.

An allegation does not necessarily need to have been substantiated before the Court considers whether arrangements should be put in place to manage a potential risk to the child.

In appropriate circumstances, this can include supervised time or other protective arrangements while the matter progresses.

The Importance of Evidence

Evidence Must Be Assessed Carefully

Morris & Lissa (Decision) demonstrates the importance of carefully assessing evidence when allegations concerning child safety are raised.

The appellant argued that particular evidence should have been given greater weight, including police observations and matters concerning the child’s relationship with the appellant. Allegations of coaching were also raised.

However, the FCFCA found that the primary judge’s assessment of the evidence was open to them. The fact that another interpretation of the evidence may have been possible did not establish an appealable error.

A Balanced Approach is Important

The Decision also highlights that responding to child safety concerns requires both careful risk assessment and fair consideration of the available evidence.

Concerns should not be dismissed simply because they cannot immediately be substantiated. Equally, allegations should not automatically be treated as established facts.

The circumstances, available evidence and potential risks should all be considered when determining an appropriate response.

What This Means For Organisations

Although Morris & Lissa is a Family Law decision rather than an organisational safeguarding matter, it provides a useful reminder that organisations working with children and young people need clear processes for responding to allegations, disclosures and concerns about abuse or harm. This includes appropriately recording, assessing and escalating concerns and considering whether immediate protective action is required.

Organisations should also take a broader approach to child safety and wellbeing rather than focusing only on whether an allegation can currently be substantiated. Building a culture of child safety and providing opportunities for children and young people to talk about their wellbeing can help staff notice changes in behaviour, circumstances or presentation that may indicate a concern of harm.

A strong safeguarding framework should support organisations to listen to children and young people, take concerns seriously, respond to potential risks and ensure appropriate safeguards are in place.

How Can Safe Space Legal Help?

At Safe Space Legal, we have extensive experience working with organisations across Australia to strengthen safeguarding frameworks and meet their legal and regulatory obligations. We support organisations across the full safeguarding cycle, including:

• Conducting safeguarding investigations which are compliant with relevant state and territory legislation and regulations;
• Supporting organisations to have robust recruitment strategies to keep children and young people safe;
• Providing organisations with advice on their legal obligations and compliance;
• Drafting best practice child safety policies, procedures and codes of conduct;
• Conducting gap analysis audits of critical incidents;
• Delivering tailored safeguarding training to ensure organisations are aware of their sector-specific requirements and obligations;
• Ensuring that complaints handling and reporting processes are compliant with legal obligations; and
• Provide sound legal advice on risk mitigation.

Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.