If my ex is a danger to my kids, how do I stop them from seeing my kids?

If one party claims that the other is a risk to the children, the test is whether the children spending time with that person poses an unacceptable risk to them. The court assesses whether, on the evidence, there is a risk of harm if time is allowed, and the magnitude of that risk, and whether it can be reduced to an acceptable level, for example by supervision.

Many people report that it can be quite unfair if they are faced with allegations that they pose a danger or risk to the children. The reason for this is that the Court does not need not make a finding that any abuse or violence actually occurred. The Court may decide that even though it can’t or doesn’t find that any abuse occurred, if it can not rule it out completely, the chance that it may have occurred poses an unacceptable risk to the children.

The Court applies the civil standard of proof set out in the case of Briginshaw v Briginshaw. The test is that something occurred on the balance of probabilities (not beyond a reasonable doubt) with the standard of proof increasing with the seriousness of the allegation and the gravity of the consequences. This is almost the opposite to how the criminal courts operate. Sometimes parties will “beat” the criminal allegations only for the same allegations to be used as the reason that they cannot see their children.

If it is found that there is some sort of risk associated with a parent spending time with a child, the usual protective response is structured, supervised time designed to protect the child while preserving a relationship where safe, rather than automatic termination.

Where supervision cannot make the risk acceptable, no contact is available, as safety is the first consideration under section 60CC(2)(a) that the Court must consider.

However, studies routinely show that children benefit from a meaningful relationship with both parents which is why it is something that is legislated as a consideration. A non-contact order preventing a parent from having a relationship with a child is an extreme step reserved for the most extreme circumstances.

See also:

‍Briginshaw v Briginshaw[1938] HCA 34

‍M v M[1988] HCA 68 at [22], [24]–[25].

Napier & Hepburn[2006] FamCA 1316 at [47]–[50].

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Can I see my kids if I have a criminal record?

A criminal record is not a bar in itself. It is relevant only insofar as it bears on the risk to, and best interests of, the child, or is otherwise relevant, (for example if they have a criminal record for child abuse or child abuse related offences).

The enquiry is into the nature and magnitude of the risk the conduct evidences and whether safeguards can render time acceptable.

Weight depends on the connection between the offending and any risk to the child: unrelated or historic convictions may carry little weight, while child related offending carries great weight.

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See also:

Harridge & Harridge[2010] FamCA 445

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Can I stop my ex from seeing my kids if they do drugs?

‍Drug use does not automatically exclude a parent. It is assessed within the unacceptable risk framework: the court examines the nature and degree of the risk in the particular case and whether safeguards can make it acceptable.

The Court will regularly make drug testing orders as a condition of time (random urine or hair follicle testing), with time contingent on clean results and graduated consequences for a positive test.

The enquiry is child focused, not punitive. Where safeguards to prevent the children from being cared for by someone under the influence of drugs cannot reduce the risk to the children (the risk being exposure to drug use or normalisation of drugs, risk of harm from a parent under the influence of drugs), then that person will have their time with the children restricted.

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See also:

‍Vokic & Vlass[2012] FamCA 56.