Duty of Care: A Foundational Legal Principle — Except for FVO Respondents?

In Australian law, “duty of care” is not an exotic doctrine. It is a foundational organising principle.

In negligence law, a duty of care arises where harm is reasonably foreseeable and a relationship of proximity exists.

In statutory law, Parliament routinely codifies positive duties to prevent foreseeable harm.

In administrative law, decision-makers must act reasonably, proportionately, and consistently with statutory objects.

Yet in the context of Family Violence Orders (FVOs), a structural anomaly emerges: while the system is expressly designed to protect applicants, it contains no articulated duty of care toward respondents — even where foreseeable psychological harm arises from state intervention.

Duty of Care in Common Law

At common law, a duty of care exists where:

1. Harm is reasonably foreseeable;

2. There is sufficient relational proximity; and

3. It is fair, just and reasonable to impose responsibility.

Once that duty exists, the actor must take reasonable steps to prevent foreseeable harm.

Importantly, the duty is not limited to protecting “innocent” parties. It applies wherever harm is reasonably foreseeable.

Foreseeability is the trigger.

Statutory Duty of Care: A Clear Example

The Work Health and Safety Act 2011 (Cth) provides a textbook example of legislated duty of care.

Section 19 establishes a “primary duty of care”, requiring a person conducting a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers and others  .

Key features:

• The duty is positive.

• It applies proactively, not reactively.

• It explicitly includes psychological health (see definition of “health” in s 4).

• It incorporates a “reasonably practicable” risk management test (s 18).

• It applies even where multiple duty holders share responsibility (ss 16–17).

The legislative architecture assumes:

If risk is foreseeable, systems must be designed to manage it.

The Act does not say: “Protect only some categories of people.”

It says: ensure health and safety so far as reasonably practicable.

That is orthodox statutory design.

The Family Violence Act 2016 (ACT): Objects Without Reciprocity

By contrast, the Family Violence Act 2016 (ACT) is structurally unilateral in its risk framing.

Its objects focus on:

• Ensuring the safety and protection of people who experience family violence;

• Holding perpetrators accountable;

• Preventing and reducing family violence.

What is absent is any express recognition that:

State intervention itself can create foreseeable risk to respondents.

There is no articulated statutory duty requiring:

• Suicide risk assessment at point of service;

• Psychological harm screening;

• Mandatory referral pathways;

• Risk-to-self analysis integrated into risk-to-others analysis.

This omission is not rhetorical — it is structural.

Foreseeability Is No Longer Hypothetical

The ACT Domestic and Family Violence Review Biennial Report 2025 records that between 2020 and 2024:

• 25 perpetrators died by non-homicide means (primarily suicide);

• 80% had a history of FVOs;

• 36% were under a current FVO at death;

• 32% were facing imminent legal consequences.

This establishes foreseeability.

Once data demonstrates that a legal intervention correlates with elevated suicide risk, the question becomes:

Does the state owe a duty to mitigate that foreseeable risk?

In other legal contexts, the answer would be straightforward.

Foreseeable risk + state power + vulnerability = duty.

State-Created Risk Doctrine (Conceptually)

When the state exercises coercive power — exclusion from home, firearm seizure, restrictions on contact with children — it is not a passive actor.

It is intervening.

Where that intervention creates a predictable risk spike (psychological collapse, suicide, escalation), a failure to assess and mitigate that risk would ordinarily engage:

• Administrative reasonableness principles;

• Human rights proportionality analysis;

• Potential negligence exposure;

• Procedural fairness considerations.

Yet FVO regimes do not embed reciprocal safeguards.

They embed protective mechanisms for applicants — appropriately — but not stabilisation mechanisms for respondents.

This is asymmetrical risk governance.

The “Reasonably Practicable” Test — Missing in FVO Design

Under the Work Health and Safety Act, risk management requires weighing:

• Likelihood of harm;

• Degree of harm;

• Knowledge of the hazard;

• Available control measures;

• Proportionality of cost  .

Applying that framework to FVO service:

Likelihood: ACT data confirms elevated suicide risk in this cohort.

Degree of harm: Death.

Knowledge: The Review documents the pattern.

Available controls: Mental health screening, referral, structured warning sheets, staged engagement.

Cost: Minimal compared to mortality.

Under orthodox statutory reasoning, the failure to implement controls would be difficult to justify.

Yet no equivalent “reasonably practicable” safeguard is embedded in the FVA framework.

Consent Without Admissions: Compounding the Gap

A further structural feature of FVO systems nationally is the prevalence of orders made by consent without admissions.

Where allegations are not tested:

• The system imposes binding restrictions;

• There is no finding of fact;

• There is no adjudicated culpability;

• There is no structured psychological triage.

Some respondents are genuine perpetrators.

Some are falsely accused.

Many fall into evidentiary grey zones.

But from a risk-management perspective, the state cannot distinguish risk to self based on adjudicated guilt — because adjudication often never occurs.

Therefore, risk screening should be universal.

The absence of screening is not neutral.

It is a policy decision.

Administrative Law and Proportionality

In public law, discretionary power must be exercised:

• For a proper purpose;

• Taking into account relevant considerations;

• Without taking into account irrelevant considerations;

• In a manner that is not legally unreasonable.

If suicide risk is a known systemic phenomenon following service of orders, failure to consider it may constitute failure to consider a relevant consideration.

This is not a claim of current illegality.

It is a question of evolving standards of reasonableness.

As data accumulates, what was once unforeseeable becomes foreseeable.

As foreseeability increases, so too does the standard of care.

Implied Duty of Care Across Jurisdictions?

While this article focuses on the ACT, most Australian FVO statutes share structural similarities:

• Interim ex parte orders;

• Immediate exclusion powers;

• Broad conditions;

• No mandatory psychological triage;

• No statutory duty framed toward respondent safety.

There is no national dataset quantifying false allegations.

There is no national dataset quantifying respondent suicide following order service.

But where jurisdictional reviews identify the pattern, the principle is transferable.

Risk design should not depend on postcode.

Protecting Victims Does Not Negate Respondent Duty

A duty of care to respondents does not undermine victim protection.

In fact:

Unmanaged respondent suicide risk may increase homicide-suicide risk.

Unmanaged psychological destabilisation may increase escalation risk.

Unmanaged collapse undermines system stability.

Integrated risk management is not soft.

It is structurally intelligent.

Policy Reform: Minimal, Rational Adjustments

A duty-of-care framework would not weaken FVO protections. It would require:

1. Standardised suicide-risk screening at service;

2. Mandatory provision of mental health referral pathways;

3. Clear written information explaining legal process and review rights;

4. Data tracking of post-order self-harm;

5. Integration of risk-to-self factors into lethality assessments.

These are low-cost, high-impact measures.

They align with established legislative logic in other domains.

Conclusion: The Legal Anomaly

Duty of care is a standard element of Australian law.

It appears in:

• Negligence jurisprudence;

• Workplace safety statutes;

• Child protection frameworks;

• Public health legislation;

• Custodial settings.

It is conspicuously absent in FVO statutory architecture when it comes to respondents.

Once data establishes foreseeable harm arising from state action, silence is no longer neutral.

It becomes a design choice.

The question is not whether victims deserve protection.

They unquestionably do.

The question is whether a mature legal system can acknowledge that when the state exercises coercive power, it assumes responsibility for managing all foreseeable risk created by that power.

If duty of care applies everywhere else in Australian law, the exception deserves explanation.

And reform deserves consideration.