By Bridget Dowdle, Lawyer & Sophia Pippos, Special Counsel
Despite best efforts, it’s not always possible for separated parents to reach an agreement regarding parenting arrangements for their children into the future. In such cases, either or both parents can make an application to the Court. Though, a Court can bring about a decision and impose finality or resolution to a long-standing disagreement the time, cost and lack of control of the outcome can have serious and longstanding consequences.
When the Court is called upon to make such critical decisions regarding parenting, section 60CC of the Family Law Act 1975 (Cth) (the Act) dictates that it must determine what is in the child’s best interests and in doing so, consider a raft of relevant matters including what arrangements would promote the safety of the child. The consideration of safety applies to people who have parental responsibility for the child, as well as people who provide day-to-day care for the child but may not have parental responsibility.
What does “promote the safety of the child” mean though, especially in the context of a dispute and potentially a long history of deep-seated issues or differences of opinion, or personal challenges for the child and/or parents. What does it also mean practically on a day-to-day basis? Is it physical safety? Emotional security or safety? Psychological stability or safety? The word ‘promote’ also suggests some kind of positive obligation, like to encourage and support, does it not?
The term ‘safety’ is not defined in the Act. The interpretation of this term in the legislation is therefore left to the Judicial Officers of our Courts to give this term recognition and meaning in case law.
In Heijman & D’Onofrio [2024] FedCFamC1F 551, The Honourable Justice Jarrett considered the meaning of safety, for which he used the Macquarie Dictionary definition:
“safety:
His Honour also further stated:
“The concept of safety cannot be understood except in the context of a nominated risk posed, its gravity, likelihood, and anything which might ameliorate it. In that sense, the process set out in the jurisprudence is still relevant to the new provision. If anything, the current text of s 60CC(2)(a) provides more discretion when it comes to formulating orders. That is because whilst “the need to protect the child from harm” is quite prescriptive, a consideration of “what arrangements would promote the safety…” might be considered to be broader. There may be many different orders which all promote safety to different degrees, and there is discretion to consider which of those arrangements might be most appropriate. That discretion is, of course, informed by the characteristics of the risk.”
This concept of safety suggests that the Court needs to balance a myriad of “nominated” risks and further determine whether each, any or every one of them is “unacceptable” or more “unacceptable” than the other.
The concept of unacceptable risk has a long standing history in our jurisdiction and was recently confirmed in the case of Machak & Lewy [2024] FedCFamC2F 505 at [167] as necessitating the identification of a risk of serious harm to the physical or psychological welfare of the child, that is an event, situation or a combination of facts and circumstances which have the potential to cause harm or serious detriment.
But how can any Judicial Officer determine this when they have not been witness to, or involved in, the daily experiences, history or dynamics of a family. What weight can they place on each person’s version of events or felt experiences? Add to this compounding documents and information from a child’s school or treating and allied-health professionals or others known to a child, or not. Also, the limited resources and time that the Court has in amongst the multitude of other cases with similar or other concerning issues on the daily.
To ensure the right evidence is gathered, the Court can utilise the powers given to it under the Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) to refer the assessment of issues to other appropriately qualified professionals.
While Courts cannot delegate their core-decision making authority, they can appoint independent experts such as family consultants, psychologists, psychiatrists, social workers etc. to assess and report on families and children. For example, a Court may appoint one of those aforementioned professionals as a family report writer to review any necessary material (which can include, for example, documents filed in Court, any medical reports or assessments, and any subpoenaed documents) and interview the family, conduct observations between the parents and the children and provide an opinion on the issues at play and to provide recommendations as to what arrangements would be in a child’s best interests. A family report writer’s role is relatively all-encompassing in this regard and the idea is that that they have the necessary qualifications and expertise to opine on the relevant issues in the matter in which they are appointment.
Particularly in cases involving allegations of unacceptable risk, the Court can also make Orders for the appointment of an Independent Children’s Lawyer (ICL) who must form an independent view of the child’s best interests. Note, they are not a mouthpiece for the child or for one particular parent – a very common misconception. Rather, they are tasked with a ‘hands on’ role to focus on getting to the bottom of all necessary issues and gathering and analysing relevant evidence and advocating and drawing the Court’s attention to matters which go directly to a child’s best interests. This is sometimes critical and extremely helpful in cases which otherwise contain a lot of ‘noise’, so to speak, or where both parents self-represent in Court.
The Court can also make Orders that time spent with a parent be supervised. In these cases, a supervised contact centre is generally engaged by the parties to supervise time between the child/ren and a parent, and the specific supervisors engaged then prepare a report as to their observations including how the parents and child interact with each other, how their time together progresses, whether they identify any potential risks of harm or untoward behaviour etc. Referring cases to agencies and supervisors allows the Court to ensure that time between a child and parent occurs and is tested, but in a way that is safe.
The above examples are only a few of the more common examples which we see in day-to-day practice. Importantly, whilst the Court also has the power to appoint other professionals and refer cases into other avenues (parenting coordination and reunification therapy are some others) it does so in a controlled way, and if an application is filed in Court regarding parenting matters, the Court still remains the final authority to weigh up the evidence and determine any issues or questions of fact and make parenting Orders that it thinks are appropriate.
Basically, the Court needs assistance to gather evidence, assess and report on relationships and other relevant matters.
Sometimes, parents also just need a little bit assistant and if parents can reach their own agreement in this process, the Court can also make Orders by consent i.e. by agreement between parents. This hands back control over the outcome to the parents, while still bearing the full force and effect of a binding and enforceable Order.
This is why it is also important to seek the advice of a family lawyer at the outset of any parenting dispute – because if it is the case that alternative avenues or opinions haven’t been explored, advice and direction could be provided to that end which could avoid the Court system entirely, which is in everyone’s best interests.
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