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Supervised Visitation: When Might It Be Implemented on a Long Term Basis?
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Is a Child at Risk of Harm by Coming Into Contact With a Person Who Has a History of Serious Criminal Conduct?

Divorce Settlement Advice:

Introduction

Does the mere fact that a person with whom the child lives has a criminal record relating to serious offences expose the child to an unacceptable risk of harm? This was the main issue for determination in the recent Full Court decision of Lang & Partington [2017] FamCAFC 40.

In Lang, the father had sought to interim parenting orders in relation to the parties’ child, X, born in 2009. Specifically, he sought an order restraining the mother from brining the child into contact with her new partner, Mr V. The basis for this order was the father’s submission that the Mr V exposed the child to an unacceptable risk of harm under s 60CC(2)(b) of the Family Law Act. This submission was rejected by the trial judge. Accordingly, the father appealed to the Full Court.

Background Facts

The parties separated in 2013. Parenting orders were in place. The orders provided that the parties’ children, X and Y, would live with the father and spend time the mother each Thursday evening and each alternate weekend between Friday and Sunday.

In 2014, the mother had entered into a relationship with Mr V. She moved into Mr V’s home in 2015. The father determined that X should not have contact with Mr V. Accordingly, he did not consent to the mother spending time with X at Mr V’s home. This resulted in a scenario where the mother would spend overnight time with the children each fortnight at the maternal grandmother’s home.

The mother filed an application for both property and parenting orders in 2015. The orders sought were generally uncontroversial, given that they reflected the current arrangements.

In his Response, the father sought orders for X to spend one less night with the mother. He also proposed that the mother should be restrained from bringing X into contact with Mr V. The basis for this proposal was that Mr V posed an unacceptable risk of physical or psychological harm with respect to X.

The father submitted that the risk of harm stemmed from Mr V’s prior criminal conduct. Mr V’s criminal history consisted in being charged with:

    four counts of the supply of prohibited drugs;
    supplying prohibited drugs on an ongoing basis, a conspiracy to supply prohibited drugs;
    possession of heroin; and
    supplying certain firearms.

Mr V pleaded guilty to each offence and served a prison sentence of six years and five months.

The Father’s Case

The father’s appeal was fundamentally predicated upon his submission that Mr V exposed the child to an unacceptable risk of harm. In turn, this submission was predicated upon the following grounds:

    The evidence relating to Mr V’s criminal history were very serious and thus the court should have resolved any factual disputes in favour of protecting the child;
    The trial judge ought to have taken account of the evidence raising concerns about Mr V’s mental health. Of particular concern was the reference to a self-harm incident set out in a case note subpoenaed from the Correctional Centre
    The trial judge had attached excessive weight to Mr V’s admissions that he had lied to the sentencing judge.
    The trial judge did not attach sufficient weight to the evidence of Y, the parties’ daughter. Y’s evidence was marshalled in support of a submission that Mr V’s behaviour was volatile, especially when drinking. The father claimed that the trial judge had not attached sufficient weight to this evidence on the basis that Y had become estranged from the mother.

The Full Court’s Decision

In assessing the father’s submissions, the Full Court noted that he had not specified the nature of the harm in question. Counsel for the husband did not refer the trial judge to any particular harm or potential risk. Instead, the father’s case proceeded on the basis that Mr V’s behaviour posed an unacceptable risk of general psychological or physical harm.

With regards to the existence of an unacceptable risk of harm, the Full Court affirmed the trial judge’s findings that no such risk existed. Specifically, the Full Court upheld the trial judge’s finding that: “[a]t this interim stage, based on the evidence before the Court, the Court is of the view that there is no unacceptable risk to the child” (at [70]).

The trial judge’s finding that the self-harm incident did not pose an unacceptable risk of harm was also affirmed by the Full Court. In this regard, the Full Court indicated that a mental health issue that was diagnosed on 9 February 2014 does not establish the inference that Mr V had a mental health condition at trial. Nor did the father establish that the mental health issue posed an unacceptable risk of harm to the child.

The submission that the trial judge had attached too much weight to Mr V’s admissions was rejected on the following grounds. First, there was no obvious reason as to why the trial judge had accorded excessive or decisive weight to Mr’s V’s admissions. Second, even if those admissions were “put entirely to one side”, the father would still shoulder the onus of establishing an unacceptable risk to the child.

On the other hand, the Full Court was somewhat sympathetic to the father’s claim that the trial judge had given too little weight to Y’s evidence. The basis for the trial judge’s decision to attach less weight to Y’s evidence stemmed from her “unsatisfactory relationship” with the mother. This was found to be a “somewhat troubling” finding on account of the following. First, the mere fact that a child has a poor relationship to their parent is not a basis for discounting the child’s evidence of the relevant parent’s conduct. Such an approach, the Full Court held, is overly simplistic. Second, it is generally inappropriate to make findings of credit in the context of an interim hearing where witnesses have not been cross-examined and the evidence is incomplete.

However, the Full Court also found that Y’s evidence did not establish that the trial judge was in error in regards to finding that the father had not shown an unacceptable risk of harm to the child. Y’s evidence contained allegations that:

    The mother and Mr V had gotten intoxicated from whisky, argumentative and Mr V got “very close” to Y’s face while speaking to her; and
    Mr V became so aggressive towards the mother that Y thought it was necessary to take his children away so that they did not witness the incident.

In this regard, the Full Court found that, even if the trial judge had given full weight to this allegation, it would not establish that Mr V poses an unacceptable risk of harm to X. Hence the totality of the Full Court’s findings led to dismissing the father’s appeal.

Concluding Remarks

Two important points emerge from the Full Court’s decision in Lang. First, it is important to specify the nature of the relevant physical or psychological harm in question. This is particularly so when relying upon a claim that the child would be exposed to an unacceptable risk of harm. The father in Lang failed to specify the precise nature of the unacceptable risk of harm to the child. Instead, he relied upon a general claim that Mr V posed a risk of physical or psychological harm to the child. His case suffered as a result.
Second, in the context of an interim hearing, the trial judge’s capacity to determine factual disputes is greatly limited. This also applies findings about a witnesses’ credit.