“No Contact, No Risk”: When the Court Draws a Hard Line on (non pysical) Unacceptable Risk in Parenting Cases
In Dayan & Shaul [2026] FedCFamC1F 242, Parker J delivered a powerful and sobering decision on unacceptable risk, confirming that serious non-physical family violence, coercive control, mental health factors, and lack of insight can justify a complete severance of parental contact. The Court ultimately ordered no time, no communication, and strict injunctions, prioritising the child’s safety over any theoretical benefit of a relationship.
🧩 Facts and Issues
Facts:
The case concerned a five-year-old child who had lived exclusively with the mother since birth. The father had no meaningful relationship with the child, having last seen her as an infant.
The mother alleged serious family violence, including:
- Threats to kill and rape
- Coercive control, intimidation, and stalking
- Harassment via messages and associates
- Psychological manipulation using her past trauma
The father denied these allegations, but the Court found:
- His evidence was unreliable due to cognitive impairment
- His behaviour demonstrated anger, impulsivity, and poor insight
- There was illicit drug use, criminal history, and ongoing risk factors
Expert evidence (family consultant and psychologists) raised significant concerns about risk, particularly given:
- No existing relationship with the child
- The father’s volatility and lack of insight
- The likely psychological harm to the mother, impacting her parenting
The Independent Children’s Lawyer (ICL) supported the mother’s position:
➡️ No time, no communication
Issues:
- Whether the father posed an unacceptable risk of harm to the child.
- Whether any protective measures (e.g. supervision) could adequately mitigate that risk.
- Whether it was in the child’s best interests to have any relationship with the father.
⚖️ Applicable Law – Legislation, Regulations, Rules
Family Law Act 1975 (Cth)
- s 60CA — Best interests of the child are paramount.
- s 60CC — Factors include safety, psychological needs, and parental capacity.
- s 60CG — Court must ensure orders do not expose a person to unacceptable risk of family violence.
- s 4AB — Defines family violence broadly, including coercive control and threats.
- s 68B — Power to grant injunctions for child welfare.
Evidence Act 1995 (Cth)
- s 140 — Balance of probabilities (with Briginshaw considerations for serious allegations).
📌 Precedents Relied On
Unacceptable Risk Framework
- M & M (1988) 166 CLR 69 — foundational test for unacceptable risk
- A & A (1998) FLC 92-800 — extension beyond sexual abuse
- B & B (1993) FLC 92-357 — broader application to harm risks
Risk Assessment & Parenting Orders
- McCall & Clark (2009) FLC 93-405 — no contact where harm outweighs benefit
- Maluka & Maluka (2011) FLC 93-464 — balancing risk vs benefit
- Keane & Keane (2021) FamCAFC 1 — proportionality of protective measures
Family Violence & Risk
- Pickford & Pickford (2024) — coercive control focus on behaviour and impact
- Hendy & Penningh (2018) — trauma affects disclosure consistency
- Amador & Amador (2009) — victims need not report to be believed
🧠 Analysis
Issue
Does the father pose an unacceptable risk of physical, psychological, or emotional harm to the child, and if so, can that risk be mitigated sufficiently to allow any form of relationship?
Rule
The Court must:
- Prioritise child safety as the starting point in best interests (s 60CC).
- Refuse contact where there is an unacceptable risk of harm (M & M).
- Conduct a prospective risk assessment, not just historical findings.
- Consider whether protective measures (e.g. supervision) can sufficiently reduce risk.
- Ensure any orders are proportionate to the risk.
Application
1. Serious Family Violence Without Physical Assault
The Court made a critical point:
➡️ Absence of physical violence ≠ absence of risk
The father engaged in:
- Repeated death threats
- Psychological abuse
- Coercive control
These were found to constitute serious family violence with lasting psychological impact.
The Court emphasised:
- Threats themselves are harm
- Fear induced is itself a form of violence
- Non-physical abuse can be equally dangerous
2. Lack of Insight = Ongoing Risk
A decisive factor was the father’s:
- Denial of wrongdoing
- Lack of remorse
- Mocking and minimising behaviour
The Court accepted expert evidence that:
➡️ Lack of insight = high risk of repetition
This meant there was no basis for confidence in future behavioural change.
3. Compounding Risk Factors
The Court did not rely on one issue alone, but a cumulative risk profile, including:
- Brain injury and impaired judgment
- Mental health disorders
- Illicit drug use (including methamphetamine)
- Criminal history and non-compliance
- Aggression and impulsivity
Together, these created a predictive risk of harm, not just historical concern.
4. Impact on the Mother = Impact on the Child
A key modern principle reinforced:
➡️ Harm to the primary carer = harm to the child
The Court accepted that:
- The mother had PTSD and genuine fear
- Contact would destabilise her mental health
- This would impair her parenting capacity
Thus, even indirect exposure to the father posed a risk to the child’s emotional security.
5. No Existing Relationship = Lower Benefit
Unlike many cases:
- The child had no meaningful relationship with the father
- Therefore, the benefit side of the balancing exercise was minimal
The Court held:
➡️ No relationship = no loss if not created
➡️ But high risk if attempted and failed
6. Supervision Could NOT Fix the Risk
The Court carefully considered supervision and rejected it because:
- It would not address psychological harm
- It would still distress the mother
- It would place emotional burden on the child
- It could not prevent escalation or boundary breaches
Conclusion:
➡️ Risk was not ameliorable
Conclusion
The Court found:
- The father posed an unacceptable risk of harm
- The risk was serious, multifaceted, and ongoing
- No protective measures could adequately mitigate it
Accordingly:
✔️ No time
✔️ No communication
✔️ Injunctions imposed
This was one of the rare but justified cases where complete severance of the parental relationship was necessary to protect the child.
🧠 Take-Home Lesson
This case is a textbook application of the unacceptable risk doctrine and makes several critical points:
- Coercive control alone can justify no contact
- Threats and psychological harm are “real” violence
- Insight and accountability are central to risk assessment
- Supervision is not a cure-all
- Where no relationship exists, courts are more willing to refuse one entirely
- The child’s safety overrides all other considerations—even parental rights.
