FATHER SEEKS TIME WITH HIS TWO CHILDREN DESPITE MOTHER’S ALLEGATIONS THAT HE POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN
Delanoy & Delanoy [2020] FCCA 2512 (2 October 2020)
This case involves the father seeking unsupervised time with his two children where the mother alleges that the father poses an unacceptable risk of harm to the children.
Facts:
This matter involves parenting proceedings commenced by Mr Delanoy the applicant father, against Ms. Delanoy the respondent mother, concerning their two children, X, aged approximately 7 years and Y, currently five years old.
The applicant father sought substantial and significant time with the children living with him, on a week about basis while the mother seeks that the children live with her and that she have sole parental responsibility. Any time spent with the applicant father until the end of 2021, be supervised.
The respondent mother took Y to H Children’s Hospital, where she was examined by the Child Protection Unit. Y was diagnosed with a blunt force trauma to the labia minora. The cause of the injury was unexplained and the matter was referred to the Joint Investigation and Response Team (“JIRT”) for further investigations. In January 2018, both the respondent mother and the applicant father were advised that the investigation regarding Y’s injuries was being closed. No criminal charges were laid against any person however, the injury remains unexplained.
Counsel for the applicant father submitted that there was no unacceptable risk of harm to the children in the applicant father’s care. The injury to Y is not explained, but on the applicant father’s case, it happened when she was in the care of the respondent mother.
Issue:
Should the father spend unsupervised time with the children even if the mother alleges that the father poses an unacceptable risk of harm to said children?
Law:
- Section 60CC (2) of the Act, provides that the primary considerations in what is in the child’s best interests are:
- the benefit to the children having a meaningful relationship with both of the child’s parents and
- the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Analysis:
The applicant father has had significant supervised time with the children. They are now much older and able to articulate their thoughts and feelings. Y will be starting school at the beginning of the 2021 school year and this will provide an additional oversight mechanism. Whilst the Court understands the reluctance of the respondent mother for there to be unsupervised time, the Court is not satisfied on the totality of the evidence before it that the children are at risk, if they were to spend unsupervised time with their father, beginning immediately.
However consistent with the recommendations, there should be a stepped approach, in relation to increased time being spent by the children with their father, eventually leading to unsupervised overnight time. Such an approach will allow for there to be a period of confidence building in both parties, that unsupervised time can take place without there being incidents.
Whilst it is entirely a matter for the applicant father, he may wish to consider initially, at the commencement of overnight time, ensuring he has a female relative present in order to provide independent verification that nothing untoward has taken place. This will provide a protective mechanism against unfounded allegations being made against him.
Conclusion:
The father poses no risk with his children is entitled to spend time to his children.