Can Safety Concerns Affect a Custody Agreement?

In a divorce or separation, the goal is to create simple custody arrangements, often called 'spend time arrangements,' that allow both parents to spend time with their children.

However, what happens when one parent doesn't believe that the other parent can provide a safe environment for their child(ren)? What if there are real concerns about leaving the child/ren in the other parent's care? How do these concerns impact custody agreements?

In this article, we'll look at different cases where safety concerns were raised and find out what the Court decided in each of the cases.

Inconsistencies in decisions affect the father’s supervision time

In Garraghan and Westerfield (No. 2) [2014] FamCAFC 96 (6 June 2014), the father appealed against interim orders made by Judge Monahan for him to spend supervised time with his child.

After living together for five years, the parties separated in 2011 after the father assaulted the mother when the child was an infant. For two years, the child lived with the mother and spent time with the father, supervised by the maternal grandparents. However, in 2013 the father filed an appeal application after the mother stopped all contact. A court decision was made which was appealed by the father.

In the original case, it was emphasised that protecting the child from abuse, neglect or family violence was more important than considering the child’s benefit from a meaningful relationship with both parents. While the father had admitted guilt for assaulting the mother, there was no active Apprehended Violence Order (APO) in place and she was willing to supervise the child’s time with the father.

There were inconsistencies regarding who could supervise the father’s visits and determining suitable supervision locations. The original judge needed to clarify the reasons for the supervision decisions made.  There were also inconsistencies in assessing the risk posed to the child during visits with the father.

Consequently, the appeal was granted and the case was scheduled for a rehearing before a different judge.

Determining “unacceptable risk”

In the case of Garman and Jackson [2013] FamCA 54 (21 February 2013), the father was accused of sexual abuse and violence towards the mother and their 10-year-old child (at the time of the case). However, the father denied these allegations.

A Senior Child Protective Worker expressed her belief that it was likely the child had been sexually abused by the father. The Department of Human Services conducted an assessment and concluded that the child's allegations seemed to be influenced by the strained relationship between the parents and were "seriously contaminated."

In its ruling, the Court emphasised its primary responsibility to make orders based on the best interests of the child. The Court does not need to determine whether the child has been sexually abused, but rather whether there is an "unacceptable risk" of abuse occurring.

In these “exceptional” circumstances, the Court has the power to issue orders and provide guidance on any relevant matters that they deem necessary.

Unsubstantiated allegations

In the case of Raki and Perez Varela [2013] FamCA 122 (1 March 2013), the mother made an allegation that the father had engaged in sexually inappropriate behaviour towards their child. However, the Court found that the allegation was unsubstantiated.

Johnston J found that unsupervised time with the father would not expose the child to an unacceptable risk of abuse and recognised the need for the child to bond with the father.

To address the mother's concerns and ensure safety, overnight visits were delayed until the mother felt comfortable and confident that the child was not being exposed to any risk of improper or damaging behaviour.

The court ordered the child to live with the mother initially and have limited unsupervised time with the father, gradually increasing to overnight stays and holidays.

No visitation time was ordered due to the risk of violence

In the case of Dunst [2014] FamCA 964 (11 November 2014), a mother of five children (aged between 6 and 17) went into hiding due to her fear that the father posed a threat to their lives. Although the father did not acknowledge the mother's fear as valid, the Court found evidence that convincingly demonstrated that the father posed “risks of harm to the children”.

The children's feelings towards the father varied, ranging from contempt and fear in the case of the eldest two, to more mixed and ambivalent attitudes among the younger three. It was determined that contact with the father had a detrimental effect on the children and their mother, and the risk of violence was deemed harmful.

As a result, the Court concluded that there “was no safe alternative but to eliminate all personal contact between the father and the children”. However, the father was allowed to write to the children periodically, and when the children are capable of doing so, they can decide whether to initiate contact with the father in the future.

No visitation time was ordered due to the psychological impact

In Churchill and Wileman [2014] FCCA 1047 (10 April 2014), interim parenting arrangements were considered for a two-year-old child.

The father requested supervised visits to progress to unsupervised weekend time. On the other hand, the mother opposed any contact with the father, alleging that he had “engaged in coercive and controlling violence throughout their relationship”.

In addition to other allegations of violence, the father had previously faced charges including common assault, assault occasioning bodily harm, stalking, intimidation and breaching a good behaviour bond.

The judge expressed concerns that the father had minimised the incidents that occurred during the relationship. He recognised that, although it’s not uncommon to fabricate allegations of violence, he was inclined to treat these allegations seriously and be cautious in his decision.

As a result, the Court ordered that the child should not have any visits or communication with the father, granting the mother sole parental responsibility.

What’s best for the child

The emphasis on the child's best interests in these cases highlights the crucial importance of creating a supportive and nurturing environment for children, especially during parental disputes.

It reminds us that in a custody agreement, safeguarding their well-being physically and emotionally and providing a loving atmosphere should always remain a top priority, regardless of any disagreements between parents.

Family Lawyers in your area

Joliman Lawyers in Victoria are experts in family law. Our team of experts will do everything we can to guide and support you through the family law minefield, from custody agreements to property and asset distribution, to minimise anxiety and achieve the best outcome. We have offices in Swan Hill, Echuca and Cohuna. Call us on 03 5032 2121.