By Sharla Stevens
Often a person’s ex-partner will re-partner and when there are children involved you may be worried about the impact of that new relationship on the children. Occasionally, one may have real concerns about the character of the new partner and whether the children are at risk being around that person.
If this is the case you may wish for there to be an injunction against your ex-partner allowing the children to be left alone with their new partner, or you may think the risk is so serious that the children should not have any contact with the new partner. The family courts certainly have jurisdiction to order such injunctions but you must be able to show the Court sufficient evidence so that the Judge is satisfied that there is a real risk to the children. Otherwise, this would impact upon a parent’s general ability to make decisions for themselves about who choose to be in a relationship with and also their ability to make day-to-day decisions about who the children spend time with (this is not normally a matter that is considered a ‘parental responsibility’ issue to be jointly decided between the parents). The Court must consider an application for this type of injunction in the overall scheme of whether it’s in the children’s best interests to do so and protecting the children from risk of harm.
A recent case shows the high threshold that you must meet in order to get such an injunction. In the case of Lang & Partington [2017] the father alleged that the mother’s new partner posed an unacceptable risk of physical or psychological harm to the child, who was seven years old, on the basis that the new partner had been charged in December 2009 with four counts of supply prohibited drugs, supply prohibited drugs on an ongoing basis, conspiracy to supply prohibited drugs, possession of heroin and possession of a firearm. The man had pled guilty to those offense as well as to another offence of possession of heroin. He was sentenced to six years and five months in prison.
The Judge that originally heard the matter did not find that the new partner posed an unacceptable risk to the child on the basis that:
- The new partner attended upon a psychologist for anxiety while incarcerated and after he was released on parole. He had been prescribed medication, which he then stopped taking 18 months before his release.
- While incarcerated he attended wo drug and alcohol rehabilitation courses.
- After his release he obtained employment, w here he had been promoted, and had worked with the Department of Corrective Services where he was assessed as having no current substance abuse issues. He had also resumed the care of his four children immediately after his release.
Based on this assessment he did not order an injunction preventing the new partner from having contact with the child. The Father appealed the decision in the Family Court but his appeal was dismissed and he was ordered to pay the Mother’s costs of the appeal.
If you have concerns about a new partner we would suggest that you obtain legal advice as to whether there is sufficient evidence to meet the threshold as to whether there is an unacceptable risk to the children. Please contact Cristina Huesch, or one of our solicitors, Sharla Stevens or Angela Li, at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information regarding obtaining the correct legal advice, please contact Alliance for a free first conference.
