Unacceptable Risk of Harm

Unacceptable Risk of Harm

Pepper & Rawlings

Unacceptable Risk of Harm

121. It was submitted on behalf of the mother that the Court needed to take a cautious approach. While a cautious approach in light of relevant authorities may be warranted in certain cases, it is not enough to simply make an allegation and to then submit that because of the allegation the Court is bound to take a cautious approach and limit time with the parent against whom the allegation is made.
122. The cautious approach at the interim stage is an assessment of “the likely impact on children in the event that a controversial assertion is acted upon or rejected^[18]” and that surely must be based on evidence of such likely impact. If there is a lacuna in the evidence, it is not up to the Court to speculate on what may or may not be ‘a likely impact’ of something happening or not happening.
123. As the Full Court made clear in A & A^[19] the principles relating to risk of sexual abuse as stated in M & M^[20] apply to other risks of harm to the child. However, it must not be forgotten that the resolution of an allegation of abuse is subservient and ancillary to the Court’s determination of what is in the best interests of the child.^[21] In the present proceedings, the mother does not, to the Court’s understanding, make any grave allegation of abuse by the father as against the child, they allegations of family violence largely relate to the father’s conduct towards her and her other child. The mother submits to the Court that because of the child’s behaviours, including threats of self-harm and refusal to spend time with her father, the child would be placed at an unacceptable risk of harm if orders for the child to spend time with the father were made other than as sought by the mother.
124. As Her Honour Justice Ryan stated:^[22]
     If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.^[23]
125. The issue is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.^[24] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.^[25]
126. At this stage of the proceedings, particularly noting that much of the evidence is in dispute and that there has been no testing of the evidence in cross-examination, the Court is not able to make any findings that the father has engaged in family violence as alleged by the mother.
127. When examining the issue of unacceptable risk of harm to the child, the Court finds that the mother’s evidence, even at its highest, does not support the requisite standard^[26] a finding that there is an unacceptable risk of harm to the child if she was to spend unsupervised time with the father, time in accordance with her wishes or if she was to spend time with the father other than in accordance with the recommendations of the child’s treating psychologist.
128. It is concerning to the Court that the child, at such a young age, is receiving counselling for the reasons stated by the mother and that her concerning behaviours appear, at least prima facie, to be tolerated and even supported by the mother.
129. The mother’s actions in:
     1. Taking her son to counselling after he was accidentally sprayed in the face with deodorant by the father,
     2. Taking the child to counselling in circumstances as described by the mother in her evidence, and
     100. Seeking to put the responsibility for both children’s states of mind on the father, where both children live with the mother and very seldom see the father,

are all matters of significant concern to the Court.

It was submitted that the mother is acting protectively. This may be so. She may also either intentionally or not intentionally, be undermining the child’s relationship with the father by not giving her the emotional permissions to have a relationship with the father. She certainly seems not to hold the father in high esteem, and says she is threatened and intimidated by him. She does not give evidence of how she encourages the child’s relationship, except to say to her things such as “because he is your father and he would like to talk to you”. This is not evidence of encouraging a child’s relationship with the other parent.

130. Although said in the context of contravention proceedings, the comments of Justice Fogarty in Stevenson & Hughes^[27] are nevertheless pertinent:

It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.

131. It is also important for the mother and father to enlist the child’s school in encouraging the child’s relationship with the father. Exhibit 1 shows not only an anxious child who was struggling to cope with school, but also that the school is reinforcing the child’s apparent anxiety about her father. Why the school is sending the message to the child that she is not safe when her father is around is an enigma based on the objective view of the evidence in the parties’ cases. It appears to the Court that the child’s school has sided with the mother at the suggestion that the child ought not to be seeing the father except if she is happy to do so.
132. The Court in coming to a conclusion about the orders which are in the child’s best interest, has certainly taken into account the evidence in the mother’s case about the child threatening self-harm and saying she has hit herself. This is a matter for the parents to handle together and to assist their child in coming to terms with the fact that she has two parents and the right to know and be cared for by both her parents. She does not need to take sides.