Family law cases that involve allegations of risk to children can be difficult for everyone involved, particularly because of the broad range of issues which can arise. Children can be at risk of sexual or physical abuse, or at risk because a parent’s mental health, alcohol or substance abuse impacts on their parenting capacity. They can be at risk of harm by neglect, or a ‘flight risk’ if one parent is seeking to relocate overseas without the other parent’s consent. They can be at risk of emotional harm by being exposed to family violence, or of emotional harm arising in some other way.
When an allegation of risk is made, the Court must carefully consider what Orders are necessary (if any) to protect that child from that risk. The Court must consider the level of risk and the type of harm, and then look at those factors along with all of the other considerations that must be taken into account when determining what outcome will be in a particular child’s best interests. The Court might make Orders requiring that one parent be supervised when spending time with a child, or that they undergo drug or psychological testing. What is appropriate will vary depending on the specific circumstances of each case, and every case is different.
Sometimes allegations of risk in family law matters turn out to be nothing but mere allegations, but it can take time for a Court to sort through whether or not a child really is at risk or not. This can be incredibly frustrating for the parent against whom the allegation is made, particularly if their time with the children is stopped or curtailed while the allegations are being examined. In other cases, the risk of harm ultimately proves to be real and Orders will be made either trying to manage that risk, or to prevent the risk entirely by stopping a child from spending any time with that parent.
In the recent case of Syms & Syms (2021) FLC 94-010, the Mother made allegations that the Father was sexually abusing their three children. She refused to allow him to spend any time with them, and so the Father commenced Court proceedings in the Family Court. The matter went on for several years and the trial Judge ultimately formed the view that Father was not a risk to the children, but that they were at risk – from the Mother’s unshakeable view that they were being abused. The Judge was concerned that if the children stayed living with the Mother, they would not only lose their relationship with their Father, but they would also come to accept their Mother’s belief that they were being sexually abused. This represented an unacceptable risk of emotional harm, and accordingly Orders were made of the children to live with their Father. They were prevented from spending any time at all with the Mother for four months, and were then permitted to spend supervised time with the Mother until the Father decided the supervision requirement was no longer necessary. The Mother appealed the decision and was ultimately unsuccessful. This case serves as a reminder that risk and harm can exist in many different forms, and that sometimes where a family law matter starts out can be very different from where it ends.
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