When The Family Court (or the Federal Circuit Court) of Australia is presented with a case where allegations of unacceptable risk of harm to a child have been made, their role is to ensure the best interests of children are met – and in doing so the Court needs to balance the need to protect the child from risk and the need to promote the continuation of a meaningful relationship between a parent and child.
In some parenting cases, one of the parents may have been accused of being an unacceptable risk of harm to a child. When cases of this nature are before the Court evidence needs to be collated to address the allegation of risk.
The Role of Evidence in protecting children from an unacceptable risk of harm
Inevitably, matters of this nature proceed to a final court hearing (also known as a final trial) and involve substantial evidence which is given to the Judge who will make a final decision.
Parents in such a situation, whether they are alleging there is an unacceptable risk of harm or defending such an allegation, need to ensure their evidence is presented in the best possible manner.
The evidence that is presented to the Court is crucial to the determination and the final Order made by the Judge. The Judge analyses and determines whether, in their opinion, there is an unacceptable risk of harm to a child (whether that be mentally or physically) and if so, whether that risk is so severe that there should be no time and no communication between a parent and a child.
Factors that the Court takes into account in cases of this nature include the following:
- The specifics of the allegation of risk of harm and the severity of such an allegation
- Whom the allegation was made by and to
- Whether the accused parent has been charged and/or convicted of an offence
- Disclosures made by a child
- Witness statements
- Medical reports
- Police reports
- Psychologists and psychiatrists reports (for a child, or one or both parents)
- The carer parent’s ability to promote a meaningful relationship with the ‘accused’ parent
- Appropriateness of supervised and unsupervised time (whether supervised time be at a contact centre – consideration should be given to the long term implications including effect on the child and costs involved. Supervision by an independent adult. The appropriateness of the proposed supervisor and ability of that individual to protect the child from harm)
- The actions of the ‘accused’ parent, whether they have sought treatment, acknowledged their actions were wrong, sought assistance and advice, have they rehabilitated, are they at risk of reoffending
- Whether a no-time and no-contact order will negatively affect the child, particularly in relation to that child forming relationships in their adult life.
It’s worth noting that the Court is not obliged to make a finding of fact, this means that the Family or Federal Circuit Court does not need to establish that a criminal offence has occurred to make a final order for no time between a parent and a child based on risk of harm allegations.
Often unacceptable risk of harm cases relate to offences that are not ‘hands on’. In the case of Fan & Napoli 2011, the Father was found to have child pornographic images on his computer. Based on the evidence presented, the Judge made a no time and no contact order, despite the criminal charges against the Father (for possession of child pornographic material) ultimately being dismissed.
If you find yourself in a situation where either an allegation has been made against you, or your matter involves unacceptable risk of harm, it is worth talking to a family lawyer about your options and what steps you should, or should not, be taking.
Adapted from a presentation made by Belinda Chitts to Semester 3 Bond University Family Law Class on Thursday, 18 October 2018.
Jones Mitchell Family Lawyers is proud of its long association with the Faculty of Law at Bond University. Our Special Counsel, Assoc Prof Kathy Atkins, is the Associate Dean (External Engagement and International) of the Faculty of Law and co-ordinates the subject, Family Law.