What is unacceptable risk?
In a parenting proceeding, it may be alleged that some serious harm has already occurred to a child and/or that the risk of harm to a child is likely to occur as a result of the actions of a parent, the court may find that the harm concerned constitutes an unacceptable risk of harm to the child in that parent’s care.
Risks of harm might include sexual or physical abuse, or other risks which affect the parenting capacity of a parent, including, for example, mental ill health of a party, alcohol or substance abuse, physical/intellectual impairment of a party or flight risk to a non-hague convention country.
When the court is required to determine what orders are in the best interests of a child, the court looks to what evidence there is of the risk occurring if the parent is granted time with the child, and the court must assess the magnitude of the risk.
The magnitude of the risk which will justify a court in denying a parent care of a child is if by providing the parent with care of a child, it exposes the child to an unacceptable risk of harm. The degree of risk has also been described as follows:
- risk of serious harm;
- an element of risk;
- an appreciable risk;
- a real possibility;
- a real risk.
The unacceptable risk test is now found in the section 60CC considerations under the Family Law Act.
The two primary considerations under section 60CC in determining what orders are in a child’s interests are the child’s right to have a meaningful relationship with both parents, balanced against the child’s right to be protected from harm.
Where a child is at risk of physical or psychological harm, abuse or neglect in the care of one parent, their right to be protected from harm is given priority over the child’s right to have a relationship with that parent.
In some circumstances, this may necessitate a change of residence of a child in order to protect that child from harm they are suffering in the care of one parent.
In Willmore & Menendez, a change of residence was ordered from the Mother to the Father because of an unacceptable risk of harm to the child in the Mother’s unsupervised care.
Unacceptable Risk Case: Willmore & Menendez
In Willmore & Menendez the child was living with the Mother at separation and spending 3 nights a week with the Father, which the Mother suspended in 2010 and 2020 after interim orders were made following allegations by her that the Father had sexually abused the child.
A family report recommended overnight unsupervised time but despite this at the time of the trial the child was spending only two hours each alternate weekend with the Father. At trial the Mother maintained her allegations of sexual abuse, alleged the Father posed an unacceptable risk of harm to the child and sought supervised time.
The Father argued that the Mother made such allegations to remove the child from the Father’s life and in doing so posed an unacceptable risk of psychological abuse to the child in the Mother’s care. At trial Her Honour determined that the child (6) was at an unacceptable risk of psychological harm in the Mother’s care.
The Judge made orders that the Father have sole parental responsibility, that the child live with the Father and spend supervised time with the Mother for 2 years, transitioning to unsupervised time.
Unacceptable Risk Case on appeal
On appeal, the Full Court said that the primary judge explained her conclusion as to with whom the child should live, the benefits of the child’s relationship with the Mother as against the risks and how those risks might be minimised and having regard to these matters, what time the child should spend with the Mother, in her best interests.
The primary judge then provided reasons for making orders for the child to spend supervised time with the Mother for the first three months, however, she fell into error by failing to give adequate reasons for making orders that the child spend restricted supervised time with the Mother for a period of nearly two years and thereafter proposed an immediate re-introduction to unsupervised overnight time, continuous days and one half of all school holidays.
The Full Court said:
“In reaching that conclusion, her Honour was required to carefully outline why the risks that she identified, when balanced against the benefits of the child maintaining a meaningful relationship with the appellant, could not be ameliorated such that the child could spend time with the appellant, more frequently and in part unsupervised, prior to the expiration of a two year period.”
The case was remitted for rehearing before a different judge to deal with the issue of the time the child would spend with the mother, in what circumstances and upon what conditions.
Unacceptable risk of Harm & Change in residence applications
Are you concerned your children are at risk of unacceptable harm in the other parent’s household?
Are you seeking a change in residence?
We strongly encourage you to obtain prompt legal advice about the risk factors. If you sit and do nothing and allow the other parent to continue to spend time with the child without either (a) asserting the risk that exists and (b) commencing court proceedings, the Court may perceive that you do not believe that the children are at risk of harm in the other parent’s household, due to your failure to take action.
If you have concerns about your child being at an unacceptable risk of physical or psychological harm in the other parent’s are, contact us to book a reduced rate initial consultation with one of our experienced Brisbane Family Lawyers, to discuss your rights and formulate a plan to achieve the best possible outcome in your case and an outcome that ensures your children are protected from harm in the future.
