Family Voilence – When will a parent be refused time with a child?

The importance placed on the relationship between a parent and child under the Family Law Act 1975 is significant. However, the best interests of the child are considered paramount and a number of issues, including any history of family violence involving the child or a family member of the child, must be considered.

In these situations, the Court must assess the risk of family violence to the child and determine whether it is considered to be an “unacceptable risk”. The unacceptable risk test is the standard used by the Family Court to achieve a balance between the risk of harm to a child and the chance of the child benefitting from spending time with the parent. As the test is not actually defined in the Act, examples of how the test has been applied are provided in case law (which are essentially decisions made during Court cases).

In a case in 2000 (known as MvM), a father was refused time with his children after threatening to kill the mother and children if she ever left him. The Family Court found that there was a risk of violence to the children, both physical and emotional, as well as injury. Another factor that contributed to the decision was the possibility, from observing the father’s violent behaviour, that the children may develop the notion that abusive relationships are the norm and physical and emotional abuse are acceptable.

On the other side of the coin, in a 2007 case (Johnson and Page) , where the mother had made allegations that the father had sexually abused their child, the trial judge found that spending time with the father would not expose the child to an unacceptable risk of abuse and made orders that the father was to have unsupervised time. The mother appealed the decision but the judgment was upheld (that is, the original decision was retained) on the basis that while the trial judge had assessed that there was some risk of abuse to the child through unsupervised contact with the father, this risk was not deemed to be at a level regarded as “unacceptable”.

In 2009 (Partington v Cade (No 2)) a case involved two young girls who had allegedly been sexually abused by their father. Despite the fact that there was found to be an unacceptable risk of sexual abuse to the children if they spent unsupervised time with the father, it was found that the children had a strong relationship with their father and disallowing contact entirely would not be in their best interests.

Finally, as recently as 2010 (Nikolakis v Nikolakis), a father appealed a decision made where he was only permitted to spend supervised time with his children four times a year. While there were allegations that the father had sexually abused other children, the trial judge stated that these incidences alone were not sufficient to conclude that an unacceptable risk of sexual abuse to his own biological children was present. Instead, the reasons for the decision made at first instance were based on other factors, such as having made the children keep various things secret from the mother, which according to expert witnesses had inflicted emotional abuse and manipulation on the children.

Overall, even where family violence has occurred, it is rare for the Court to order that a parent be refused time with a child. In most cases where there are allegations of abuse, supervised time is granted. Family Law is very complex as you can see.  It’s a difficult to make “blanket laws” that cover every situation so it’s important that if you find yourself in a situation where you feel your rights as a parent are not being reasonably assessed or decisions made about your future relationship with your child are are not what you think they should be, you should seek experienced legal advice. At Andersons we have a dedicated team of solicitors working in our Family Law department. So if you’d like some more information on this topic or your Family Law rights and entitlements generally, why not get in touch our Senior Associate in Family Law, Ryan Thomas.

Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation.