01 Oct Court denies contact with Father due to unacceptable risk
Case review: Stack & Searle  FCWA 44
In the recent decision of Stack & Searle, the Family Court of Western Australia considered the important issue of whether a parent’s past behaviour exposes a child to an unacceptable level of risk.
In March 2008, Mr Stack was arrested and charged with one count of indecent dealing with a child who was a lineal relative, four counts of possession of child pornography and one count of supplying child pornography. In October 2009, he was sentenced to three years imprisonment. Mr Stack was ultimately released from prison in July 2012. Two years later, in June 2014, Mr Stack was charged with one count of sexual penetration of a child under 13 years and one further count of indecent dealing with a child under 13 years in respect of incidents that were alleged to have occurred in 2006.
Mr Stack and Mrs Searle had two daughters aged 14 and 12. Mr Stack applied to the Family Court for orders allowing him to spend supervised time with the children each fortnight, and to communicate with them by telephone and in writing. Mr Stack argued that he had always played an active role in the children’s lives but that their relationship had deteriorated significantly following his arrest in 2008.
Mrs Searle agreed that Mr Stack had developed a close relationship with the children previously but argued that this was for the purposes of Mr Stack grooming them. Mrs Searle contended that Mr Stack’s past criminal behaviour placed the children at risk of harm. She sought orders that the children live with her and that she be granted sole parental responsibility. In addition, Mrs Searle sought an injunction restraining Mr Stack from attending at the children’s school and opposed Mr Stack having photographs of the children or coming near their home. Mrs Searle also made an application to have the children’s surname changed from Stack to Searle.
Section 60CA of the Family Law Act 1975 (Cth) provides that a Court must regard the best interests of the child as the paramount consideration when making a parenting order. In determining what is likely to promote the best interests of a child, a Court will consider a number of factors, including that there is generally a benefit to the child of having a meaningful relationship with both of his or her parents. A Court will also consider whether there is a need to protect a child from physical or psychological harm, abuse, neglect or family violence, and whether the need for protection overrides any benefit that a child may stand to gain from sharing a meaningful relationship with his or her parent.
In the matter of Stack and Searle, Mr Stack submitted that it was in the children’s best interests to share a meaningful relationship with both of their parents. He argued that the offending was historical and that it related to children in an age range of which the parties’ children no longer belonged. He provided the Court with reports from his psychologist supporting his position that he had been rehabilitated and that it was unlikely that he would re-offend.
Mrs Searle maintained her argument that sharing a relationship with Mr Stack would expose the children to an unacceptable level of risk. Further, Mrs Searle provided the Court with medical evidence suggesting that it would be unreasonable to expect that she would be able to support contact between the children and Mr Stack without it causing her considerable distress and having a negative impact on her psychologically.
At the time of the Family Court of Western Australia’s decision, the criminal charges against Mr Stack had not been finalised. In making its determination, the Court considered whether the pending charges against Mr Stack, together with his criminal history posed an unacceptable risk of harm to the children. The Court also considered Mrs Searle’s ability to facilitate a relationship between the children and Mr Stack.
The Court ultimately determined that the risk of harm to the children was unacceptable and outweighed any benefit the children stood to gain in sharing a relationship with Mr Stack. It was ordered that the children live with Mrs Searle and that she have sole parental responsibility. Mrs Searle was also successful in her application for an injunction and to have the children’s surname changed.
Belperio Clark Lawyers