Is There a Basis For a “No Access” Order?
In a recent case the mother wanted the father to have ‘no contact’ with the child. The mother alleged there was an ‘unacceptable risk’ to the child if contact were to occur. So what is this concept of ‘unacceptable risk’ that frequently comes up in family court parenting cases.
The court decision last month provides a useful guide to the approach taken by the court when allegations of ‘unacceptable risk’ are raised.
The mother sought a “no contact” order, on the basis that she alleged the father to be violent towards his current partner and that the children would be subjected to or exposed to family violence if they spent time with him.
The court appointed independent children’s lawyer (ICL) also submitted that there was an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care but did not support a ‘no time’ order as sought by the mother. The ICL proposed that the children ‘spend time’ with the father for three hours each alternate Saturday, but only under the supervision by an accredited supervised contact service nominated by the father.
It was the father’s position that the children were not at risk and he denied any allegations of family violence. He sought that the children ‘spend time’ with him for two full days each alternate weekend from 7.00 pm on Friday to 7.00 pm on Sunday, half of school holidays, on Father’s Day and at Christmas.
The “unacceptable risk” test is applied by the courts in determining where a child ‘lives’ and with whom a child ‘spends time,’ as well as conditions which apply whilst a child is in the care of or spending time with a parent. Assessment is required of the “chances” of the risk occurring and the magnitude of potential harm if it did occur. Further, the court must consider the advantages and detriments of the children ‘living with’ or ‘spending time’ with that parent. The nature of the risk must be identified as well as the degree of risk that may occur, and the harm that may be caused for a child if it did occur. The court must evaluate the risks and the options available, all in the context of what is in the ‘best interests’ of the child.
The judge found the evidence of the mother compelling and was quite concerned with the father displaying little admission of his violent behaviour both during and post his relationship with the mother. Orders were made as sought by the mother for the children to ‘live with’ her and spend no time with the father. The judge suggested that ordering ‘no time’ between the children and father ‘…might force him to confront the reality of the situation’.
If you have concerns regarding abuse of a child and protecting that child post separation, then we highly recommend that you seek legal advice. We can advise you on what steps can be taken to best ensure the safety of the child. For a fixed-fee initial consultation with one of our experienced family lawyers, please call (07) 3221 4300.
