In the making of any parenting orders, including orders which prescribe who a child lives with, spends time with and communicates with; the Family Court of Western Australia (the Court) must regard the best interests of the child as the paramount consideration.
The Court can therefore make orders restraining a parent's behaviour including restraining their freedom of movement and restraining them from bringing the children into contact with various persons.
In the recent Full Court case of Lang & Partington [2017] FamCAFC 40, a father sought to appeal a first instance decision on the basis that the primary Judge erred in making an order for the child to spend time with the mother, where her new partner had a criminal history and where the Judge refused to make an order restraining the mother’s new partner from having contact with his child.
Central to the appeal was the complaint that the primary Judge did not accept the father’s contention that the new partner posed an “unacceptable risk of harm” to the child. The mother’s partner had previously served a sentence of imprisonment for supply of guns and drugs. The primary Judge queried whether the current partner posed a present risk of harm and determined that he did not.
The primary Judge specifically took into account that the mother’s partner had seen a psychologist for anxiety while incarcerated, and attended two drug and alcohol rehabilitation courses over a 6 year period. The primary Judge did not ignore the father’s claims for concerns. They were considered and found not to establish a risk.
Importantly, his Honour did not find that the mother’s partner posed an unacceptable risk to the child. Rather, his Honour found that “at this interim stage, based on the evidence before the Court, the Court is of the view that there is no unacceptable risk to the child.” Quite simply put, his Honour was of the view that the evidence was not sufficient to establish a risk.
The primary Judge clearly raised with the father’s counsel that there was not sufficient evidence to justify the orders sought. Even at the hearing before the primary Judge, Counsel for the father was unable to specify any risk other than a general risk of psychological or physical harm.
The primary Judge clearly raised with the father’s counsel that there was not sufficient evidence to justify the orders sought. Even at the hearing before the primary Judge, Counsel for the father was unable to specify any risk other than a general risk of psychological or physical harm.
The Full Court was not satisfied that there was any merit in the appeal and the appeal was dismissed with the father ordered to pay the mother’s costs of the appeal.
It is quite common for concerns to arise following a separation and your former partner starting a new relationship. You and your former partner both have the right to form new relationships and to introduce the new partner to the children; unless there is a court order in place that expressly prohibits your former partner from bringing the children into contact with a new partner. If there is doubt, the Court will certainly assess the situation taking into account the best interests of the child as the paramount consideration.
