Unacceptable Risk


Unacceptable Risk

We are often asked by parents “When does a Court order that a parent spend no time with a child?”

In all parenting matters, the Court must consider the best interest of the child or children. This includes a consideration of a myriad of things including the considerations as listed under section 60CC of the Family Law Act 1975. The Court must weigh up the benefit of a child/children having a meaningful relationship with their parent versus the child’s safety.

There are circumstances where the Court may determine that there is an unacceptable risk to the child to spend time with a parent and there are instances where a parent may be ordered to have no time or limited time.

The case of Theophane & Hunt [2014] FamCA 1038 provides a detailed approach as to how the Court may consider a matter where unacceptable risk is raised.

In that matter, there were charges of sexual assault by the father to the mother. The mother then had a dissociative episode where she had assaulted the father with a knife. The mother was sentenced to 18 months’ imprisonment for attempted murder.

The father sought that the child live with him and spend supervised time with the mother due to allegations that the child would be at risk in the mother’s care due to her actions, due to concerns of her mental as well as other issues that were raised in the matter.

The Judge in that matter outlined that the following must be considered:

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

In that matter, the Court found that there were a multitude of risks including:

  1. That if the mother was forced to continue interacting with the father as a co-parent, there was as substantial risk that she would attempt to kill herself, the father or both.
  2. That the father displayed coercive personality traits and used a variety of antisocial behaviours to achieve his desired objectives and this caused concern as to what impact this would have on the child;
  3. That the impact of the child losing the relationship with her mother would be profound in most areas of the child’s life and the mother was established as the child’s primary attachment.
  4. That risk of harm of the child living with the mother was neither great or unacceptable.

The Court decided that the child live with the mother and spend no time with the father, save for the father being permitted to send a letter/card on the child’s birthday and Christmas each year.

This example of unacceptable is one where there were very serious mental health concerns, very serious incidents of violence and very serious allegations raised in relation to both parents. To establish unacceptable risk, the Court must consider if there are ways to mitigate the risk to the child/children and assess the risk itself.

We recommend that you seek legal advice to determine if your matter falls into the “unacceptable risk” category.

If you would like to know more, contact Claire Naidu & Co, Lawyers and Mediators.  Click here for our contact details.



Note: This blog does not constitute legal advice and Claire Naidu & Co is not responsible for any reliance upon its contents in the absence of legal advice being provided to you in conference or in writing concerning your specific circumstances.