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“Unacceptable Risk” – Stack & Searle [2015] FCWA 44

On 12 June 2015 Judge Crisford of the Family Court of Western Australia delivered judgment in the case of Stack & Searle [2015] FCWA 44 which dealt with an application by a father for equal shared responsibility and supervised time with his two daughters aged 14 and 12.

The facts of this particular case make it an important decision, particularly when determining whether or not a parent poses an unacceptable risk to their child or children.

The father had been released from prison on June 2012 after serving a 3 year sentence for one count of indecent dealing with a child who is a lineal relative, four counts of possession of child pornography and one count of supplying child pornography.  Subsequently, after being released from prison, the father was further charged with sexual penetration and indecent dealing with a child under  13 which was alleged to have occurred in January 2006.

The father argued that it would be for the benefit of his children to have a meaningful relationship with both of their parents.  At the time of the hearing the father did not have a relationship with the children however he submitted that historically he had a very good relationship with them while both parties were still together. The mother, however, argued that the father had developed a close relationship with their children for the purposes of grooming them.

The issue for determination by the Court was whether the father’s past behaviour and alleged past behaviour posed an unacceptable risk to the children. The father provided evidence from his psychologist that suggested that the father had been completely rehabilitated of his sexual tendencies towards prepubescent girls or that he had, at the very least, developed strategies to ensure that such tendencies did not manifest themselves in unlawful behaviour again. The father also argued that all the allegations against him were historical and the age range of the children was outside the age range of the alleged victims.

It was argued that, taken at face value, both these arguments supported the fact that the father no longer posed a risk to his children. However, the Court held that it needed to determine whether the father’s past allegations generally posed an unacceptable risk of psychological harm to his children in the future.

The Court ultimately decided that it was not in the children’s best interests to have a relationship with the father due to his known past abuse, allegations of past sexual abuse and likelihood of future offending. The Court held that the father did pose an unacceptable risk of harm to the children.

Orders were made for the children were to live with the mother, and for the mother to have sole parental responsibility.

By Nicholes Family Lawyers


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