The benefit to the children of a meaningful relationship with both parents – a prospective approach
- The preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach:that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents. Of course, an affirmative finding of benefit does not depend simply on there being a lack of danger of physical or psychological harm to the children from time and/or communication with a parent.
- From separation until mid-April 2014, both parents clearly held the view that all of the children would benefit from the opportunity to spend time and continue to develop a meaningful relationship with both of their parents. So much can be concluded from their entry into the January 2013 Order and the later Parenting Plan and their implementation of an equal time shared parenting regime until about mid-April 2014.
- I accept the evidence from Ms D (the supervisor of the children’s time with their father after the allegations were made in mid-April 2014) about the father’s interactions with the children during those visits. The children have clearly enjoyed spending time with him and he has generally interacted with them in a caring, attentive and loving manner. Given this and subject to a consideration of whether time with the father would place the children at an unacceptable risk of harm, I conclude that the children will likely benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with their father.
- I did not understand the father to suggest that the children would not benefit from the opportunity to continue to develop and maintain a meaningful relationship with their mother provided that such opportunity occurred in a manner designed to protect them from the unacceptable risk of neglect to which he asserts they are exposed whilst in her care. Given this, and subject to a consideration of whether time with the mother would place the children at an unacceptable risk of harm – via neglect in particular – I conclude that the children will likely benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with their mother.
- As each parent’s case now involves assertions that the children are at an unacceptable risk of harm if they spend unsupervised time with the other, I must consider whether the established benefit to the children in having a meaningful relationship with each parent needs to give way to the imperative of protecting them from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either of their parents.
- It is, I think, logical that I first determine whether the children are at an unacceptable risk of harm if they spend unsupervised time with the father: given the nature of the allegations of sexual abuse, I consider that, if I am persuaded that he represents a risk of sexually abusing E, his case that all children live primarily with him cannot reasonably succeed, even if his contentions about the mother’s asserted neglect and relative impairment of parental capacity are made out.
- In undertaking this exercise, I, of course, immediately acknowledge that the resolution of allegations of sexual abuse (and other forms of abuse) is “subservient and ancillary” to this Court’s determination of that parenting order which is in each of the children’s best interests. However, a consideration of such allegations – and those asserting physical harm and neglect – is clearly necessary when the legislation imposes an imperative of protecting children from harm.
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Queensland / New South Wales / Victoria