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Children’s Rights: Protecting the Child From Physical and Psychological Harm in Family Law Proceedings

children's rights

Children’s Rights Under the Family Law Act: Protection From Harm

The child’s best interests are the paramount consideration in determining an application for parentings orders. Ascertaining the child’s best interests in a particular case requires the court to have regard a number of factors. These factors are set out in ss 60CC(2) and 60CC(3) of the Family Law Act. One of the primary considerations among these factors is the need to protect the child from harm.

This particular factor was one the pre-eminent considerations underpinning the Full Court’s decision in Rilak & Tsocas [2017] FamCAFC 26. In Rilak, the appellant mother filed an appeal against parenting orders made by Loughnan J on 13 November 2015. The orders related to a seven year old child, B, and provided that she would live with her father and he would have sole parental responsibility. The appellant mother, on the other hand, would spend time with B under supervision at a contact centre.

The orders in question brought about a significant change in B’s life. Up until the trial, B had lived with the appellant mother and spent time with the father. Fundamentally, the trial judge had sought to effect a dramatic change to these arrangements given the “grave” risk of harm she would face if she were to remain in the mother’s full-time care.

Children’s Rights Under the Family Law Act: Can the Risk of Psychological Harm Be Mitigated by Prior Conduct?

Although the mother had raised a number of ill-defined issues on appeal, her claim was essentially predicated upon two grounds. First, the mother claimed that her relationship to her daughter had significantly deteriorated because of the trial judge’s orders. This, the mother alleged, was caused by the failure of the trial judge to make appropriate orders for both the transition of the child to the father’s care and a “graduated time arrangement” to come into effect when the period during which the mother would have supervised time had ended. According to the mother, these so-called transition orders would have served the child’s best interests by reassuring the child that the mother had not abandoned her. Her case was that the orders ought to have provided that the daughter’s transition to the father’s care would be supervised by appropriate professional. The orders also should have provided for the parties to return to court within one to two months’ time to assess the daughter’s transition.

Second, the trial judge had erred in failing to consider that there was no evidence of the child having been subject to physical or psychological harm up to, but not including, the time of trial. Specifically, the mother argued that the trial judge failed to properly consider that the child had not been physically assaulted by the mother during that period.

Children’s Rights: Prior Conduct That Meets Standards of Adequacy May Not Compensate for Subsequent Conduct

The court found that the trial judge had committed no error. With the first ground, the Full Court held that the trial judge had, in fact, made “transitional orders’’ of the kind described by the mother. Specifically, the parties were ordered to attend upon a family therapist. They were also ordered to adhere to each of the therapist’s recommendations, including attending upon further professionals for the benefit of either party or the child. Orders of this kind, the Full Court held, answer the mother’s description of “transitional orders.” In spite of these orders having been made, neither party had attended upon the family therapist. That, however, does not establish that the trial judge had erred. The orders could easily have fulfilled the very function the mother claimed they could not.

In relation to the second ground, the Full Court held that the trial judge’s finding that the mother had not physically assaulted the child prior to the trial carried little weight. This is because the trial judge had found that, at the time of the trial, the child would be at a grave risk of harm if she were to remain in the mother’s care. The risk related to the mother’s unfounded belief that the father had sexually assaulted the child, and her extraordinary attempts to marshal supporting evidence. For instance, the mother had embarked on a campaign of interrogating the child. The purpose of these interrogations was to elicit information from the child to the effect that the father had abused her. The mother had also put a number of unsupported claims to the child concerning the father’s untoward conduct. This lead to father’s concerns about the child developing false memories and sustaining serious psychological harm more generally. The trial judge had also expressed similar concerns.

This conduct was compounded by the mother’s improprieties related to her attempts to gather evidence in support of her baseless allegation of child sexual abuse involving the father. Her attempts involved subjecting the daughter to intense questioning, drug tests, psychological therapy and even a vaginal swab. The mother engaged in this conduct despite recommendations from various authorities and professionals concerning the deleterious effects they would have on the child. That the mother had ignored these recommendations caused the trial judge to find that the mother would not relent in her efforts to establish her version of events had the child remained in her care. Accordingly, the trial judge had not fallen into error in ordering that the child live with the father.

Children’s Rights: A Grave Risk of Harm May Justify a Residence Order in Favour of the Non-Custodial Parent

Residence orders are rarely made in favour of a non-custodial parent. Oftentimes, the courts are reluctant disturb a longstanding status quo, unless there are compelling reasons for doing so. Rilak & Tsocas is instructive in provides an example of compelling reasons for an order changing a child’s living arrangements. Specifically, it sheds light on the extent to upholding children’s rights (i.e., the right to protection from harm) may justify a dramatic change in circumstances. It also serves as a stark reminder that unjustifiably attacking your ex-partner’s conduct is never a good strategy in parenting proceedings.