In circumstances where there has been family violence or abuse or another situation which potentially place a child at risk of harm, the question for a Court is whether a parent who creates such a risk should spend time with the child, and if so, how that time should occur, and whether that time is best supervised.
In the Court case of Stott & Holger and Anor  FamCAFC 152 the Court heard an appeal by the maternal grandmother against a Court Order that permitted a 10 year old child who lived with her to spend unsupervised time with his father who had “a history of serious violence”.
The Court will put protective measures in place if the situation presents an unacceptable risk. The High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable?
Where an unacceptable risk is alleged, the Court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm.
In devising the test the Courts endeavour to achieve a balance between the risk of detriment to the child from exposure to family violence or abuse and the possibility of benefit to the child from spending time with a parent. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of harm.
Jacqueline Conquest, Principal, Accredited Family Law Specialist