Risk can come in different forms in Parenting matters. The risk of drug abuse appears to be more prevalent than before, leaving people with issues in both Family Law and Criminal Law.
Check out our other blogs on drug offences in a Criminal Law context.
When making Parenting Orders, the Family Court must consider the best interests of the child. In determining the best interests of the child, the Family Court has regard to primary considerations and additional considerations outlined in the legislation.
The primary considerations are for the child to have the benefit of a meaningful relationship with both parents and, the need to protect the child from physical or psychological harm, due to family violence, or abuse.
The need to protect the child from harm will override the benefit of them having a meaningful relationship with both parents.
When allegations of harm are made, the Family Court identifies if there is an unacceptable risk and then considers what Parenting Orders can and should be made to minimise the child being subjected to, or exposed to, that risk.
In doing this, the Court will identify the nature of the risk and whether, with or without safeguards, it is acceptable. The determination of an unacceptable risk applies to sexual abuse allegations as well as other forms of risk, such as drug and alcohol abuse, mental health or family violence.
If the Family Court is satisfied that there is a risk posed to the child by a parent, Parenting Orders supervising the child’s time with that parent may be considered enough of a safeguard to remove the child being exposed to that unacceptable risk.
However, the concept of unacceptable risk poses complexity, and at an interim level, it is further complicated because the Court is unable to making findings about the allegations being made.
To assist the Family Court in dealing with the allegations, subpoenas to relevant services and agencies can be issued, and the material subpoenaed can be provided to the Family Court. The Family Court can also appoint an Independent Children’s Lawyer, involve the Department of Communities, and have the parents take part in an assessment by a Family Consultant to ‘screen’ for the risks being alleged.
If allegations of risk have been made against you, or you consider that your child is at risk in the other parent’s care, it is important that you seek legal advice from an experienced Family Lawyer so that any parenting arrangements are considered in the best interests of the child.