Family Law Blog

“No Access” Parenting Orders and Unacceptable Risk

In the separation process when it comes to parenting orders, there is no hard and fast rule about exactly how much time a child will, or should, spend with each parent. Of course, as a matter of practical outcomes (absent any distinguishing features), each parent’s time with and input into a child’s life may often be roughly equal.

In some cases, however, one parent might feel strongly that their ex should not be permitted to spend any time with their child. In such a case, they might want to apply for a “no access” parenting order (sometimes called a “no contact” order).

In this article we will discuss some of the circumstances in which a Court might consider making such an order.

The Overarching Principles

In separation matters involving children, the Court’s dominant purpose is to try and determine the outcome for parenting arrangements that is in the best interests of the child.

It does so by considering all of the available and relevant principles and evidence, and then weighing them in order to decide on an outcome.

One thing the Court is required to consider, however, under section 60CC(2) of the Family Law Act is:

“The benefit of the child having a meaningful relationship with both the child’s parents”.

Of course, the immediate next thing the Court must consider is:

“…the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

So when it comes to children, the starting position is that the Court will adopt a stance which accepts and acknowledges the general benefit that a child will receive by having contact with, and a “meaningful relationship” with, both of that child’s parents.

At the same time, however, the Court also accepts that children must be protected from harm and will consider such situations accordingly.

Applying for a “no access” order, where one parent can have no relationship with the child, is asking the Court to make an order against the first general principle. As a result, the circumstances in which a Court might grant those orders needs to be sufficiently serious and well proven in order to displace the starting position.

The Unacceptable Risk Test

So, we understand that the circumstances have to be pretty serious for a Court to make a “no access” order. But just how serious do they need to be, and what is the threshold by which the Court might consider granting such an order?

The usual way the test is phrase is something like this: after giving real and substantial consideration to the facts of the case, the judge is to decide “whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child”.

This is commonly called the “unacceptable risk” test.

What Might be “Unacceptable Risk”?

The most common scenarios of unacceptable risk are things like a history of violence, serious mental health concerns, drug or alcohol abuse.

The situations are not necessarily limited to those, but they tend to be the most common.

The question though is not just “what is the risk” but, rather, “what evidence is there to persuade a Court of the likelihood and seriousness of the risk”?

For example, putting forward evidence that your spouse enjoys a glass of wine on a Friday night whereas you do not drink – without any history of drunken, violent or otherwise concerning behaviour – is not likely to convince a Court that there is an “unacceptable risk”.

Similarly, unpleasant or even recalcitrant behaviour (for example, a parent who was distant from their child due to work) by itself will not necessarily be sufficient. In the same vein, mental health issues are not all the same – some might carry unacceptable risk, and others might not.

On the other hand, a history of drunken behaviour from your ex, accompanied by violence towards your child while intoxicated, together with indications that the behaviour is continuing, would be a more compelling situation to consider seeking a “no access” order.

Evidence for “No Access” Orders

Because “no access” orders are commonly sought in fairly serious situations, it is extremely important to discuss with your family lawyers the type and extent of the evidence that should be gathered to support your application.

That might include, for example:

  1. Evidence of previous incidents, including witness statements, footage, social media posts, or police reports;
  2. Evidence of continuation of the behaviour (as opposed to isolated incidents);
  3. Expert evidence regarding the relevant behaviour, including potentially an assessment of the likelihood of the risk of it either improving or getting worse;
  4. Evidence about the desires of the child, especially if they are over 10 years old;
  5. Evidence from other relationships with your ex, to the extent they exhibited a similar pattern of behaviour.

There are a wide range of potential areas to discuss for evidence, and no one case is the same, so running through all the potential scenarios with your lawyers is the best plan.

Conditional Access vs No Access

There may be times where, based on evidence, the Court decides there is an unacceptable risk but that it can be mitigated by imposing conditions on the other parent or the nature of contact with the child.

For example, is the unacceptable risk is a result of a drug addiction, the Court might order that the other parent attend a drug rehabilitation program and that visits with children are conditional on a clean drug screen immediately prior to the visit.

Other conditions might include things like visits being supervised, the child not being exposed to some activities or individuals, or that your ex must not consume alcohol when the child is present.

It could also be that some contact might be maintained using technology, if a physical visit was not possible or desirable for some reason.

If the Court is satisfied (again – based on the evidence) that a condition will mitigate the otherwise unacceptable risk, it might consider that the best interest of the child are served by making a conditional access order rather than a no access order.

Do you Need to Apply for a No Access Order?

Applying for a no access order is a serious and difficult situation.

Contact our family lawyers today to ensure that you have experts in your corner to help you at each step and ensure that your interests and those of your children are protected.

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