If a child is at risk to experience severe psychological or physical abuse or neglect and they continue to live with a parent or caregiver, this is known as a “significant risk of harm” in family law in Australia. When deciding between parents, the court will always put the child’s best interests first, which includes taking into consideration the idea of significant risk of harm.
According to the Family Law Act 1975 (Cth), a significant risk of harm is “a risk that is serious and could occur, but is not established on the balance of probabilities.” The court will evaluate the existence of a substantial risk of harm by evaluating a variety of factors, such as the character and extent of the harm, the likelihood of the harm happening again, and the parent or caregiver’s ability to safeguard the child from harm.
The following are examples of circumstances that may result in a substantial risk of harm in family law cases:
- The inability of a parent to provide adequate care for their child due to substance usage.
- Domestic or family violence within the household
- Problems with the parent’s or caregiver’s mental health that make it difficult for them to give a child a stable home life.
- The child or another family member has been the victim of sexual or physical abuse.
- Lack of attention to the child’s mental, emotional, or physical well-being and growth.
In order to protect a child from harm, the court may decide to change the child’s living situation or to establish supervision during the child’s time with the parent or caregiver. If the court finds that the caregiver or parent is not looking out for the child’s best interests, they may order the child to spend time away from the individual in question.
What evidence must be shown to establish the occurrence of historical abuse?
Should the Court be requested to determine the existence of past abuse, it will not be able to definitively declare the claim true unless it is convinced, on balance of probabilities, that it has occurred. An occurrence must have been an “actual persuasion” to occur in order for the balance of probability to be satisfied.
Once the risk of harm has been identified, what will happen?
Court findings of potential risk do not necessarily preclude the child and parent from spending time together; rather, they demand an evaluation of the risk’s severity and the availability of “tools and circumstances” to mitigate it, such as a supervision centre or other strategies to ensure the child’s contact with the parent.
What is the impact of this on parenting matters?
Expert legal advice should be sought in all cases involving parenting matters where a child’s safety is at risk. A child’s best interest must be considered when establishing orders. In determining whether an unacceptable harm exists, the court must take into account all available facts. Although it has been established that the evidentiary test is lower for assessing the likelihood of harm, determining whether an unacceptable risk exists depends on known facts and circumstances; the evidence can either support the existence of the risk or disprove it. In the absence of evidence, the court may decide that no risk exists, even though the risk is presentProtect your family and navigate the complexities of family law with expert guidance. If you’re facing a significant risk of harm, contact Quill Legal today for professional legal assistance. Let us help you safeguard your rights and those of your loved ones.
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