Protecting children from “Unacceptable Risk”
In a recent case, Freeman Family Law successfully argued, on an interim basis at least, that our client’s daughter should not have any contact with the respondent father, in circumstances of family violence. This was a “positive” order in the sense that it determined that the father not have any contact rather than simply dismissing the husband’s application. The judgement stated that allowing the father to have contact with the daughter pending the trial of the matter, which is over 12 months away, posed an unacceptable risk to the child. Unacceptable risk refers to a situation of potential physical, emotional or sexual abuse.
In this case, there was significant independent evidence that the child had been exposed to family violence and had been a victim herself. The child, aged 13, had also told an independent consultant that she didn’t want to see her father. The Family Law Act provides that one of the primary considerations in determining what is in the best interests of a child is the clear benefit of both parents having a meaningful relationship with the child.
Where there is a potential risk, the court must weigh up the benefits of the child having contact with the other parent against the risk and determine whether there is an unacceptable risk that outweighs any of the benefits of contact with the other parent. On an interim basis, the court does not have the time or ability to fully hear the evidence or allow for witnesses to be cross-examined and therefore cannot make a finding of fact. It must weigh up the affidavit material before it and legal argument in making a decision that is in the best interest of the child.
To achieve this outcome, the affidavit material provided must be presented exceptionally well and Freeman Family Law was delighted to help our client and her daughter achieve this very important outcome. Freeman Family Law is always here to provide advice in all aspects of family law.
Contact us today if you require any assistance or advice with an upcoming or ongoing family law matter.
