The family law session was full of practical guidance on evidence and orders. Here is a summary of the frameworks that stood out, with the key cases named so you can read the source.
Joint minutes
- Courts generally require specific evidence and submissions before making orders. Blanket requests are often set aside.
- Joint minutes help map what is agreed, which is frequently more than expected, and isolate the issues that genuinely need determination.
- Agreed orders in a joint minute tend to be respected unless there is good reason to disturb them. Some judges will only make orders on matters they have been required to determine.
The three-step unacceptable risk framework
The framework tracks the approach the Full Court set out in Isles & Nelissen [2022] FedCFamC1A 97, the leading authority on unacceptable risk.
- Identify the risk. Family violence, physical or psychological abuse, neglect, substance misuse, mental health vulnerabilities. It must be substantiated by evidence, through a particularised affidavit or corroborative material, not speculation. Past abuse is not a prerequisite, but it helps establish where the concern originates.
- Assess it forward. Is the risk likely to continue, and is it unacceptable? Consider likelihood on a continuum from remotely possible to highly probable, weighed against the gravity of harm. Separation itself sometimes removes a risk, especially where the conflict was context-specific.
- Mitigate it. Even where the risk is unacceptable, what protective factors can be put in place? Supervision, structured arrangements, therapeutic or educational supports, the child’s age and resilience. This is the step practitioners are most often undercooked on, with strong affidavits on risk but weak proposals on mitigation. A realistic proposal from the client, who knows the family best, is highly persuasive.
On moratoriums, the session’s view was that they should be a last resort, supported by compelling expert evidence. A recent Division 1 example saw a moratorium extended 12 months on the strength of a psychologist’s report for an adolescent child. The key risk is cutting a child off from an otherwise capable parent without explanation, which causes significant harm.
Family violence and drafting orders
- Family violence now needs full evidential treatment in both parenting and property matters. In property, it is often given lip service, but stating that it happened is not enough. You need to show the ongoing effect and the impact on contributions or future needs.
- In Pickford & Pickford [2024] FedCFamC1A 249, the Full Court drew a clear line between genuine family violence and ordinary parental conflict, confirming that disagreement or tension does not automatically amount to coercion or control.
- Drafting traps to avoid: vague terminology like “from time to time”, “best endeavours”, “child-focused communications” and “not unreasonably refused” all create unenforceable orders and contravention risk. Interstate travel notice requirements are routinely weaponised against primary carers. Less is more, so only order what is necessary.
- Third parties: don’t make schools forced changeover locations without notice, and don’t subpoena a teenager’s medical files without strong justification when a report would do.
- Disclosure obligations have been elevated into the Family Law Act, but minor delays rarely drive major credibility findings. Willis & Mulder was cited on the role of disclosure in proceedings.
With thanks to Martin Bartfeld AM KC, Barrister of the Victorian Bar, who presented this session at the 2026 Law Institute of Victoria conference. This is one of five wraps from the conference.
These are takeaways from public conference sessions, shared as general information for the profession. This is not legal advice. Where cases or legislation are named, check the current source yourself.