By Anita Petrovic.
One of the primary considerations in parenting matters is the right of a child to have a meaningful relationship with both of their parents as set out throughout Part VII of the Family Law Act 1975 (Cth). So, when will the Court decide that it is best for the children to spend no time with one of their parents?
“No time” orders are typically reserved for the most extreme of cases, including cases where an Order for a child to spend time with one parent would expose the child to unacceptable risk of sexual harm (M v M [1988] HCA 68) or otherwise where a parent has been abusive towards the relevant child.
Controversially, there are a series of cases where the Courts have held that the anxiety that contact between a child and the non-resident parent would cause the child’s primary carer, and the impact of that anxiety on the primary carer’s parenting capacity, are relevant considerations in deciding whether an Order for contact between a party and a child should be made at all. In many of these cases, there are no allegations that the non-resident parent has been violent towards the children directly.
The Full Court of the Family Court sitting in Brisbane in the case of H & R [2006] FamCA 878 made Orders for the children to spend no time with their father in circumstances where there was extensive violence towards the mother by the father including threats to kill the mother during the relationship, where such violence stopped at the time of separation and where the mother was so frightened of the father that any contact between the children and the father would negatively impact her parenting capacity.
In this case, a period of supervised time between the children and the father had been undertaken. The mother explained in her evidence the day-to-day effects of her anxiety resulting from the children spending supervised time with the father, including the effect on her sleeping, her eating, the occurrence of nightmares, her inability to focus at work leading to taking a period of unpaid leave, the compromise of the children’s schooling due to her sudden relocation to another state to get away from the father and hiding her whereabouts for 2 years, etc. Such deleterious effects on the parenting capacity of the mother (the children’s primary carer) resulting from the occurrence of supervised contact between the children and the father lead to the Court making an Order that the children spend no time with the father.
A “no time” Order is the most extreme Order that a Court can make; but where it is the Order that is in the children’s best interests based on an assessment of the circumstances as a whole, the Court will not shy away from making it.
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