Separating from a partner often causes significant emotional and financial stress.
This is further heightened when there are children are involved, and the separating couple are hit with the reality that they will need to learn to co-parent with their estranged ex-partner in order to move forward.
When determining the care and communication for a child, the Family Court of Western Australia looks to what is in the best interest of the child. The paramount consideration being, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
So what should a parent do if they think their child is at risk of harm whilst in the care of the other parent? This includes direct risk imposed by the other parent or by someone else that the child is exposed to whilst in the other parent’s care, such as friends or other family members.
If there are Court Orders in place
If there are Court Orders in place which stipulate the care arrangements for the children, a parent should not go against these orders without real grounds for believing the health and safety of a person, including the child or the parent who holds the concerns, would be at risk. If you are considering withholding your child from the other party, despite Court Orders saying otherwise, you need to seek urgent legal advice. An experienced family lawyer will be able to assist your to ascertain whether or not you have grounds to withhold your child based on your concerns. Breaching Court Orders without reasonable grounds can result in the Family Court imposing a punishment on you.
If there are no Court Orders in place
If there are no Court Orders in place and a parent is of the view that their child is at imminent risk of harm in the other parent’s care, they should ensure the child is in a safe environment (whether with them, or with another well trusted relative) before seeking urgent legal advice. Dependent on the nature of the risk, an experienced family lawyer will be able to advise you to ascertain whether it is suitable to discuss the concerns with the other party and have a management plan in place, or whether an urgent application to the Family Court is required.
How does the Family Court deal with allegations of risk of harm?
Allegations of risk of harm come in many different forms, including but not limited to physical harm, sexual abuse and harm stemming from the use of alcohol and other drug use.
The Family Court has a range of broad discretionary powers which may result in orders whereby a parent must:
- submit to drug testing;
- attend behavioural modification courses;
- be restricted in who they can allow to come into contact with the child; or
- have the requirement that a third party must supervise any time they spend with their child.
What if the other party is withholding the child from you?
If the other parent is withholding the child from you and you hold concerns that the child is at risk of harm, you may need to seek the Family Court’s urgent assistance to recover the child. If you believe your child is in a life-threatening situation then you should contact 000. In most non-life-threatening circumstances, the local police will not be able to assist you without an order from the Court authorising them to locate and recover the child.
If the police are unable to assist you, and you cannot seek urgent legal advice due to it being out of hours, you should contact the Crisis Care Unit through the Department of Communities, Child Protection and Family Support on 9223 1111.
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About the authors:
Zoe Rosman is a Perth lawyer and was admitted as a solicitor of the Supreme Court of Western Australia in 2018 and specialises in Family Law and Wills & Estate Planning matters. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.