A recent decision by the Federal Circuit and Family Court of Australia demonstrates the court’s careful approach to reinstating a parent-child relationship where significant allegations have been made, prioritising a child’s long-term welfare through a structured, gradual process.
The case concerned parenting arrangements for a six-year-old child. The mother sought orders for the child to live with her and have no time with the father, or alternatively, for any time to be permanently supervised. Her position was based on allegations of historical family violence and concerns about the father’s parenting capacity, including past alcohol issues.
The father, conversely, sought a progressive increase in unsupervised time, culminating in a substantial shared care arrangement.
The Court’s Key Findings on Risk
After a thorough examination of the evidence, including a Family Report and witness testimony, the Court made several critical findings:
Historical Violence Accepted: The Court found the father had perpetrated family violence during the relationship, including a 2016 incident where he kicked a car door while the mother was inside, and other instances of verbal abuse.
No Unacceptable Current Risk: However, the Court found no “unacceptable risk” of physical or psychological harm to the child in spending future unsupervised time with the father. This was based on:
The historical nature of the violence.
The father’s apparent rehabilitation regarding alcohol consumption.
The absence of any violence in his new relationship.
Positive and appropriate interactions during supervised contact visits.
The father’s demonstrated capacity as a parent to his other children.
Mother’s Concerns Deemed Disproportionate: The Court found the mother’s current safety concerns, including a fear of sexual abuse for which there was no evidence, were disproportionate and would not justify denying the child a relationship with her father.
The Judge emphasised that while the mother’s fears were understood, depriving the child of a relationship with her father and paternal family in the absence of an unacceptable risk would be contrary to the child’s best interests.
The Final Parenting Orders
The Court largely adopted the proposal of the Independent Children’s Lawyer (ICL), crafting a detailed set of orders designed to rebuild the relationship safely and gradually:
Sole Parental Responsibility: The mother was granted sole parental responsibility for major long-term decisions, with an obligation to consult the father.
Graduated Time Arrangement: The child’s time with the father is to progress through multiple stages over several years, starting with short, supervised daytime visits and slowly building to alternate weekends and significant school holiday periods.
Specific Safeguards: The orders include robust safeguards, including:
A restraint prohibiting the father from consuming alcohol 48 hours before or during time with the child.
A requirement for the father to engage with the child’s medical specialists to better understand her needs.
Orders for both parents to use a communication tool (“Our Family Wizard”) and refrain from denigrating each other in front of the child.
Key Takeaways for Separating Parents
This case offers several important lessons for parents navigating family law disputes:
The Paramountcy of the Child’s Best Interests: The Court will always prioritise the child’s right to a meaningful relationship with both parents, provided it is safe to do so.
“Unacceptable Risk” is a Legal Test: The Court distinguishes between a parent’s subjective fears and an objective, unacceptable risk of harm. Historical behaviour is assessed in the context of evidence of change and current circumstances.
Graduated Orders as a Tool: Where a relationship needs to be rebuilt or trust is low, the Court will often implement a slow, predictable progression of time. This protects the child, allows the parent to demonstrate capacity, and can help the primary parent adjust.
The Role of the ICL: The Independent Children’s Lawyer plays a crucial role in providing the Court with a child-focused perspective, often helping to bridge vastly different parental proposals.
How We Can Help
Navigating complex parenting matters, especially those involving allegations of risk, requires skilled and sensitive legal guidance. Our experienced family law team can provide advice on your specific situation, help you understand the legal tests applied by the Court, and represent your interests while ensuring the focus remains on the welfare of your children.
Contact us for a confidential discussion.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. You should seek independent legal advice for your specific situation.
