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Unacceptable Risk to a Child

The issue of unacceptable risk to a child spending time with a parent was dealt with extensively in the case of Theophane & Hunt [2014] FamCA 1038. This case therefore provides a useful guide to the approach likely to be taken by the courts when such issues arise.

The parties met in December 2005 when the mother was 27 and the father 39. Cohabitation commenced in early 2006 and the child was born in September 2006. The parties separated in September 2007.

At the time of the trial, the father had been charged with six counts of rape of the mother, however these charges were yet to be decided at a trial. The court found for the purposes of the family law proceedings that non-consensual sexual intercourse had taken place.

The mother had experienced a dissociative episode where she had lain in wait for the father and stabbed him with a large knife. She was sentenced to 18 months’ imprisonment for attempted murder but immediately released on 18 months’ probation.

The mother sought “no contact” orders, not because of any alleged direct risk of harm to the child, but because of the likely impact on her parenting capacity of continued contact with the father.

The father was seeking that the child live with him and spend supervised time with the mother. This was due to alleged risk to the child relating to the mother’s mental health, alleged risk of sexual harm from maternal family members and emotional harm due to the mother’s alleged poor boundary setting earlier in life.

The judgment summarised the case law relating to the notion of unacceptable risk, and adopted the following list provided in an earlier case as being helpful in analysing the asserted risk:

  1. What harmful outcome is potentially present in this situation?
  2. What is the probability of this outcome coming about?
  3. What risks are probable in this situation in the short, medium and long term?
  4. What are the factors that could increase or decrease the risk that is probable?
  5. What measures are available whose deployment could mitigate the risks that are probable?

The Court found the father displayed coercive personality traits and used a variety of antisocial means to achieve his desired objectives, particularly where his needs were in conflict with the needs of others. This caused concern for the child, especially as she grew older. In summary, the Court found that if the mother continued to interact with the father as a co-parent there was a substantial risk she would attempt to kill herself, the father or both.

In relation to the mother, the Court found that the impact on the child of losing her relationship with her mother, as would be likely if she lived with the father, would be profound in most areas of her life. The mother was established as the child’s primary attachment. The risk of harm to the child from living with the mother was found to exist but was found to be neither great nor unacceptable.

Orders were made providing that the child live with the mother and spend no time the father before her eighteenth birthday. Communication with the father was limited one letter or card on the child’s birthday and at Christmas each year. The father was also found to be a vexatious litigant and was restrained from instituting further proceedings without first being granted leave by the court to do so.

By Nicholes Family Lawyers


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