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Custody of Children and the Concept of Risk

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Custody of children and the concept of risk

Description: This blog examines the court’s approach to determining child custody arrangements in circumstances where there is a risk to the child.

Introduction

The child’s best interests are the paramount consideration whenever the court is determining arrangements concerning the custody of children. They are determined, in part, by reference to the “primary” considerations set out in s 60CC(2) of the Family Law Act. The primary considerations consist in:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There are situations where the primary considerations may conflict with one another. When this occurs, the need to protect the child from harm must prevail over the benefit of having a meaningful relationship with both parents. The Full Court’s decision in Blinko [2015] FamCAFC 146 outlines the step that a court must take before making orders that limit a child’s time with one of their parents on the basis of mitigating the risk of harm to the child.

Background

This matter involved an appeal from a parenting order that the father of a child should neither spend time nor communicate with his child. The basis for making the order was that the mother’s capacity to care for the child would be seriously undermined if the father either spend time, or communicate, with the child. This stemmed from the trial judge’s finding that the mother had been so profoundly affected by the father’s violent behaviour during the course of their relationship.

The Full Court’s Reasoning

The Full Court ordered that the appeal be allowed and the matter remitted for hearing. If a court orders that the non-resident parent, in this case, the father, should have neither time nor communication with a child because no safeguards would not render the risk acceptable, then it must clearly explain how it arrived at that conclusion.

The trial judge correctly identified a risk to the child that would result from orders for time or communication between the child and the father. If such orders were granted, then the mother’s psychological well-being would be dramatically affected. The effect that the custody orders would have on the mother would adversely affect her ability to parent the child. And this, in turn, would be detrimental to the child.

The father, however, identified a number of safeguards that he claimed would render the risk acceptable:

  • Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly;
  • Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis);
  • Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and
  • Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father.

The trial judge failed to explain to risk to the mother’s psychological well-being could be managed by any of the safeguard proposed by the father. This supported the finding that the trial judge failed to explain why it concluded the relevant safeguards would not render the risk to the child acceptable.

Final Thoughts

The point of implementing safeguards in relation to the custody of children is to make an unacceptable risk to the child acceptable. In determining whether orders that restrict a child’s contact with the relevant parent should be made, the court must carefully assess whether any proposed safeguards are capable of sufficiently mitigating an otherwise unacceptable risk. A failure to do so may amount to an appealable error.