I met with a new client this week who had serious concerns about the safety of the children, whilst they were in the other parents’ care.
When I asked why they had not sought ‘protective’ Orders from the Court, with respect to the ongoing care arrangements for the children, they told me that:
“I wanted to, but I was so frightened of doing that because I had a lawyer tell me that if I tried to limit the other parents time with the children, I would risk losing them.”
Unfortunately, this is not the first time I have had heard this feedback from a client.
However, this was a matter where:
- the parent (my client) had been physically assaulted by the other parent in the presence of the children;
- one of the children had been physically assaulted by the other parent, whilst in their care;
- a threat to kill had been made by the other parent; and
- the other parent had significant substance abuse issues.
It appeared there were serious ‘risk issues’ that needed to be appropriately investigated and addressed, to ensure the children were not placed at an unacceptable risk of harm.
However, despite the serious nature of the risk issues being raised in many matters, we do also, from time to time, encounter a parent who is reluctant to take those ‘protective’ steps, because there appears to be a common misconception that to do so, would result in the ‘protective’ parent ultimately being viewed as having ‘alienated’ the children from the other parent. In many of these matters, it would likely be regarded as entirely appropriate to put ‘safeguards’ in place, at least in the short term, pending issues being investigated, and addressed in a manner that ensures the safety of the children moving forward.
It seems therefore, that there needs to be a distinction made between:
- on one hand, a parent taking the necessary steps to protect a child from harm, or a genuine risk of harm; and
- on the other, a parent who seeks to take steps to undermine or erode the relationship between the child and the other parent based on spurious allegations, that have no foundation, or a parent who takes those steps only in an attempt to secure a ‘strategic advantage.’
Genuine Concerns Regarding Safety
In the first scenario – a parent who says to a Court that they have genuine concerns with respect to the other parents’ conduct, where it places the children at risk of harm, and a parent who, having regard to those risk factors, asks the Court to put the appropriate safeguards in place so that the children are protected, whilst those risk factors are investigated and addressed, is not someone who is alienating the children from the other parent. In that instance, the concerned parent has an obligation to act protectively, and in the best interests of the children. In fact, if there are risk factors and the concerned parent neglects or refuses to place protective measures in place for the children, there ought to be a question around that parent’s ability to protect the child from harm.
Unfounded Allegations
However, in the second scenario – a parent who is not able to demonstrate a genuine risk of harm to the children (by simply making unfounded or malicious allegations against the other parent) or where the risk factors that were once present, have been adequately dealt with, but a parent continues to impose unnecessary restrictions, without sufficient evidence to warrant those restrictions being put in place, may ultimately themselves be considered a risk of psychological harm to the children.
In some instances, that parent may be found not to have the capacity to facilitate the children having a meaningful relationship with the other parent, and therefore, a change of residence might ultimately be considered to be in the children’s best interests.
It is therefore important that the distinction between these two scenarios is drawn and carefully considered from the outset, so as to ensure that parents, like the client I saw this week, are not being left feeling as though they cannot seek protective orders, where it is appropriate to do so, for fear of there being a change of residence.
Whilst there are a myriad of considerations taken into account when assessing what arrangements are in the children’s best interests, the need to protect the children from harm is the overarching consideration, balanced carefully with the need to ensure that the children have the benefit of a meaningful relationship with both parents.
We Can Help
In order to better understand how these considerations would be weighed in the context of your matter, and to assess whether protective measures may be appropriate, having regard to your individual concerns, feel free to arrange an appointment with me at BGM Family Lawyers or call 1300 246 529
