Match­ing Par­ent­ing Orders to Risk: Craft­ing orders to prop­er­ly address the dan­gers in a fam­i­ly law matter

The focus of any par­ent­ing mat­ter being dealt with in the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia is what orders are in the best inter­ests of the child. To deter­mine what is in the best inter­ests of the child, the Court must con­sid­er all of the evi­dence pre­sent­ed in light of the six con­sid­er­a­tions list­ed in sec­tion 60CC(2) of the Fam­i­ly Law Act 1975 (Cth): 

1. What arrange­ments would pro­mote the safe­ty of the child and each per­son who cares for the child; 
2. Any views expressed by the child; 
3. The devel­op­ments, psy­cho­log­i­cal, emo­tion­al and cul­tur­al needs of the child; 
4. the capac­i­ty of each per­son to pro­vide for the child’s needs; 
5. the ben­e­fit to the child of hav­ing a rela­tion­ship with their par­ents and oth­er sig­nif­i­cant peo­ple to the child, where safe to do so; and 
6. Any­thing else rel­e­vant to the par­tic­u­lar cir­cum­stances of the child. 

Safe­ty is ref­er­enced twice in these six con­sid­er­a­tions, and some of the most com­plex par­ent­ing mat­ters for the Court to deter­mine are often those that involve alle­ga­tions that the safe­ty of a child is at risk as a result of one par­en­t’s behav­iour but that par­ent should still spend time with the child. In those cir­cum­stances, the ques­tion is not whether the child should spend time with that par­ent, but what orders should be made to man­age the risks that exist when the child does spend time with that parent. 

The Court and legal rep­re­sen­ta­tives, and the par­ties they rep­re­sent, need to care­ful­ly craft orders that log­i­cal­ly address the spe­cif­ic risks that exist in the mat­ter in order to ensure time can occur between the child and par­ent in a safe manner. 

The dif­fi­cul­ty in doing this was high­light­ed in the recent Appeal Court deci­sion of Chiles & Petrenko [2024] FedCFamCA1A 112. 

At the orig­i­nal tri­al in that mat­ter, the Court was asked to deter­mine the time a 9 year old boy should spend with his father in cir­cum­stances where the father had a lengthy and seri­ous his­to­ry of dri­ving offences which had result­ed in his dri­ving license being sus­pend­ed, or the father’s dri­ving priv­i­leges with­drawn, on at least 12 occa­sions and for peri­ods of approx­i­mate­ly five years, and the father had pre­vi­ous­ly failed to com­ply with par­ent­ing orders. As a result of con­cerns about the risk the father posed to the child on these bases, the moth­er sought orders that the pater­nal grand­par­ents be gen­er­al­ly present from 6.30pm onwards when the child spent time with the father, and if this could not occur, the father not spend overnight time with the child. 

The tri­al judge con­clud­ed that the father posed an unac­cept­able risk of harm to the child if the child were a pas­sen­ger in a vehi­cle the father was dri­ving, found that the father had failed to com­ply with pre­vi­ous par­ent­ing orders, and made rel­e­vant orders for: 

1. The pater­nal grand­par­ents to be present from 7.30pm until 9am when the child was in the father’s care for a two year peri­od, or the father would not spend overnight time with the child but could still spend day time peri­ods with the child; 
2. The father be restrained from dri­ving with the child in the car; 
3. Oth­er restraints includ­ing that the father not con­sume alco­hol with­in 12 hours of the child being in his care. 

The father appealed a num­ber of the orders made by the tri­al judge, in par­tic­u­lar the orders that required the pater­nal grand­par­ents to super­vise his overnight time. 

The father was suc­cess­ful in appeal­ing those orders. In his rea­sons for allow­ing the appeal, and remit­ting the mat­ter on the spe­cif­ic issue of any con­di­tions to be placed on the father’s time with the child, Tree J made the fol­low­ing impor­tant points: 

1. While super­vi­sion of a par­en­t’s time with a child can be an appro­pri­ate way to man­age risk, there has to be a cogent rea­son for super­vi­sion occur­ring only at night, and why the risk was dif­fer­ent at night than dur­ing the day. 
2. The tri­al judge did not find that the risks posed by the father to the child, in par­tic­u­lar the risk he may breach the restraints against him, were greater at night than they were dur­ing the day, and there­fore no log­i­cal rea­son could be dis­cerned as to why super­vi­sion would only be required at night and not at all times. 
3. The usu­al course of assess­ing risk (as set out in Isles & Nelis­sen (2022) FLC 94 – 092) to iden­ti­fy the con­tend­ed risk, gauge the like­li­hood of it occur­ring, and then con­sid­er the mag­ni­tude of harm if the risk does occur is crucial. 

It is impor­tant to make clear that Tree J’s con­cern was that he could not iden­ti­fy the rea­son­ing under­pin­ning the tri­al judge’s order that super­vi­sion only occur at night, not that the order itself was unsup­port­able gen­er­al­ly, which was why the appeal was allowed on this ground. 

Chiles & Petrenko high­lights that the risk assess­ment process should be applied to all alleged risks in a mat­ter and orders craft­ed that clear­ly, log­i­cal­ly and pro­por­tion­ate­ly address those risks. With­out this process being fol­lowed, prop­er con­sid­er­a­tion of what ame­lio­ra­tive con­di­tions can be imposed to mit­i­gate the risk is dif­fi­cult, and the rea­son for the spe­cif­ic order is not clear and leaves the order open to appeal. 

If an order is sought for super­vi­sion for only cer­tain peri­ods a par­ent spends with a child, the dif­fer­ent risks posed by dif­fer­ent peri­ods of time must be clear­ly iden­ti­fied and assessed, and an expla­na­tion giv­en for how dif­fer­ent orders mit­i­gate those risks dur­ing the dif­fer­ent periods. 

If the order can­not be explained, it may be open to chal­lenge, or sim­ply may not achieve its pur­pose of ensur­ing the safe­ty, and meet­ing the best inter­ests, of the child.