Who gets the Children?
One of the most recognised principles of family law is that a child should have a meaningful relationship with both parents, which can be achieved in many configurations. For example, orders often allow parents to share the care, or parental responsibility of the children, equally, considering typically children are often ordered to live with one parent whilst the other parent has time on alternative weekends and half of the school holidays. On the other hand, in more complex matters, time spent with the children may be supervised contact visits with one or both parents.
What happens when a parent poses an unacceptable risk to the child/ren? Can I apply for a no-contact order?
If a parent has a proven history of violence, alcohol, drug, or mental health issues, this may warrant sole parental responsibility to the primary parent and subsequently deem the respondent parent unsuitable for contact with a child. In a situation with supporting evidence such as the above, it may permit a parent to apply for parenting orders seeking sole parental responsibility, in addition, to seeking a no-contact order with the other parent.
Courts do not take this decision lightly, considering sufficient evidence must be established, identifying that such behaviour poses an unacceptable risk to the child and cannot be mitigated through alternative orders. Consequently, such an order in conjunction with evidence must be in the best interests of the child.
Best Interests of the Child
The most important consideration in determining parenting orders is what is in the best interest of the child. In accordance with Section 60CC of the Family Law Act 1975 (Cth), the Court determines and relies on, specifically, two primary considerations:
- The child’s right to have a meaningful relationship with both parents
- The child’s right to be protected from harm, abuse, neglect or family violence.
The second consideration holds greater weight to the decision in comparison to the consideration of the former. A range of factors will be considered in deciding the correct balance between the two occurs:
- The relationship between the child and each parent;
- The contribution made by each parent to maintain the child;
- The capacity each parent has to provide for the child;
- The attitude of the parent to the child;
- Any family violence in the family; and
- The child’s views (in accordance with the age and maturity of the child).
Judges are required to give substantial consideration to the facts of the case and decide whether those facts can substantiate an unacceptable risk of harm to the child and that risk cannot be ameliorated. If the court does recognise that a parent poses an unacceptable risk to the child, then an order of no contact may be made against that parent. However, in circumstances where a parent does have a history of violence, drug abuse, alcohol abuse or is mentally ill does not automatically satisfy the requirements to an unacceptable risk to the child. On a case-by-case basis a Judge will assess the facts and circumstances of a case and make a determination regarding the best interests of the child, balancing the benefits of a meaningful relationship with both parents and the need to be protects from harm, abuse, neglect, or family violence.
In order to mitigate the risks posed to a child, often orders can be made that the children only have contact under certain conditions, these can include but are not limited to;
- That a parent returns a negative drug test;
- That the parent is not to consume alcohol in the presence of the child;
- That visits are to be in a public place, either supervised or unsupervised;
- That the child is to visit during the day if the night is a higher risk in relation to time;
- That the parents are to attending counselling.
In circumstances where conditions like these can alleviate risks posed by a parent’s lifestyle or behaviour, these will generally take place prior to granting a no contact order.
No contact in circumstances where a parent has never engaged with the child
When a parent has never engaged with a child, particularly with no connection or attachment to them, this simply does not satisfy a no contact order. The court takes the understanding that it is never too late to establish a potential relationship between a child and their parent, and that child has to be able to benefit from the relationship.
No contact where contact is not in the child’s best interests
Circumstances in which it may be possible to get a ‘no contact’ order where a parent does not pose an unacceptable risk to the child are generally limited to:
- Age of the child
- Expert psychological evidence
- Child’s best interest
- Equal time or substantial and significant time with each parent
- Neither equal nor substantial and significant time
- Shared care may work well for some families however, badly for others, especially those marked by high conflict.