Murphy & Murphy 2007 FamCA 795
The Family Law Act refers to ‘reasonable grounds to believe.’ The judge found that facts that provide reasonable grounds for a suspicion or belief do not lead to a positive finding of abuse or violence. Probability or likelihood is not required. The possibility of the abuse or violence complained of is sufficient (standard of proof).
The statutory notion of substantial and significant time in s 65DAA(3) evidently envisages parents being as co-extensively involved with as many aspects of their children’s lives as the circumstances permit. It includes routine week days as well as weekends and holidays as well as occasions of special significance to either the child or the parent such as sporting fixtures, birthdays, concerts, family weddings or christenings. For some children it may also include special religious or cultural events.
The benefit to a child of spending time with each parent is not measured solely in hours or weeks. The emphasis is not merely on the quantity but also the quality of time that is spent with each parent. The quality of the time children and adults spend together is as important as the quantity.
Where there is no evidence of abuse, violence, neglect, emotional stress, intractable parental conflict or strong resistance from the child, the best-interest presumption will ordinarily apply and trigger the operation of the joint decision–making provisions about major long term issues.
In 2000, the President of the Family Division of the UK Court of Appeal sought the advice of two eminent child psychiatrists about the risks and cost/benefits of contact with a non-residential parent in cases involving allegations of domestic violence but the principles apply equally to other forms of marital misconduct including sexual abuse. The court-appointed experts identified the different functions of contact as including: the sharing of information and knowledge; giving a sense of origin and identity which is important as a part of self-esteem; maintaining meaningful and beneficial relationships (or forming and building up relationships which have the potential for benefiting the child); reparation of broken or problematic relationships; opportunities for reality testing for the child – children need to balance reality versus fantasy and idealisation versus denigration; facilitating the assessment of the quality of the relationship or contact (most relevant where a return to a particular parent is being considered) and severing relationships, for example, farewells (meaningful relationship).
However, lack of attachment is not in itself a sufficient reason against at least trying to build a new prospective relationship (attachment nil). There is a wealth of evidence about the adverse effects on a child of long term separation from a parent. For this reason the court will bend over backwards to establish or to preserve a relationship with even the most deficient of parents provided effective protective measures can be put in place to prevent any relevant risks of harm (capacity to protect).
The court may conclude that there is not any advantage to the child of having contact with a parent due to, for example, his or her having strongly resistant views or because the relationship has irretrievably broken down or the parent may be unable to offer a meaningful relationship because of mental illness or some other disability.
Another situation may be where a non-resident parent has failed to fulfill his obligations as a parent by continually cancelling contact visits on short notice or by not turning up to collect the child (parental attitude).
Authority Patrick Parkinson suggested that when deciding whether supervised contact (access supervised) should be ordered on the basis of s 60CC(2)(b) concerns, account needs to be taken of the following considerations:
– the child’s age and protective capacities including avoiding and reporting inappropriate behaviour by adults;
– the need to address the fact that the child believes that something happened to him or her;
– the need to avoid stress that would maintain or increase the child’s emotional state;
– the need to maintain and expand the relationship between the child and his or her parent;
– the distances between the households and whether regular direct contact is practicable;
– the need to build on the mother’s confidence that unsupervised contact carries with it no unacceptable risk of sexual or other abuse;
– the absence of a loved parent especially in the context of the inclusion of a new adult in the household.