Articles and legal news from the Atkinson Vinden Team.

Identifying Unacceptable Risk in Family Law

Family Law

Recent publicity has highlighted once again the real danger that mental health, violence and domestic violence poses to our society and in particular families.

Separation is a heightened risk time for family violence.  For some it is the only time of physical risk which is triggered by the separation. For others who have experienced ongoing family violence, that violence may escalate.  It is important to obtain advice from experienced family law practitioners and the police about legal strategies including court orders to minimise the risk of further violence.

At separation it is important that there is a safety plan so that if there is a risk of violence, appropriate steps can be taken to protect family members including the children. It is sensible to formulate that safety plan before separation.

In parenting matters, the paramount consideration, when determining care arrangements for children is risk of harm.  This overrides any other consideration to spend time with the other parent, when that parent poses a risk issue.  It is important to identify the source of the risk. In many families where family violence is an issue, part of the underlying risk is substance abuse. Consequently, part of any risk minimising strategy can include that the parent who poses the risk spend time with the children under court ordered supervision including at contact centres, that time be contingent on sobriety and that the parent who poses the risk undertake and complete rehabilitation, which can be monitored with regular testing.

Similarly, risks may arise from a poorly managed mental illness. Again, court orders could include ongoing treatment, and time with the children may be supervised and contingent on compliance with all prescribed treatments.

Other orders can include restraining orders, orders preventing the abusive parent attending at the child’s school or former partner’s home or place of work or contacting members of their extended family, ordering that the other parent or third party (such as a grandparent) have sole parental responsibility for the children and depending on the nature of the family violence – an order providing for no time with the abusing parent/individual.

Understanding and identifying risk factors can be difficult.  Mental health issues, violence and domestic violence pose a significant risk to children. It is important that where any risk factors exists theses are identified and appropriately dealt with in parenting orders so as to adequately protect children from harm. For more information or assistance, please contact a member of our family law team.


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