The primary consideration in parenting proceedings in the Federal Circuit and Family Court of Australia is the best interests of the child. While each case turns on its own facts, there are recurring risk factors that, if not managed appropriately, can significantly undermine a party’s position and ultimately the success of their matter. We have seen how it can be crucial for parties that are involved in parenting matters to take proactive steps to mitigate risk factors that may exist within their matter to materially improve outcomes.
At Mellor Olsson, we regularly help clients in similar circumstances and assist them to navigate this complex time in their life. The purpose of this article is to outline practical ways you, as a parent, can minimise risks in parenting matters.
Assessing what is in the best interests of a child
While it may appear to be a simple question, the manner in which the court determines what is in the best interests of the child is often vastly different to how parents would otherwise answer this question. This is because, the court is guided by current, and ever-changing legislation, when considering what is in a child’s best interest.
In parenting matters, the primary considerations, amongst others, are:
- Promoting the safety of the child, including safety from being subjected to or exposed to family violence, abuse and neglect;
- The ability of the parents to provide for the child’s development, psychological, emotional and cultural needs;
- The benefit to the child of being able to have a relationship with their parents and other people who are significant to the child.
Hence, concerns relating to substance use, parenting capacity, insight, and willingness to engage with supports are assessed through this lens.
Importantly, the Court is less concerned with punishment and more concerned with risk management and child safety.
This means, that if the court considers your circumstances as not being in the child’s best interest, then this will negatively impact your parenting matter. Once of such factors the court takes a particular interest in is substance and alcohol abuse as this can affect a person’s parenting capacity and may also relate to underlying issues such as mental health issues or family violence. Therefore, if steps can be taken to alleviate these issues, the better prepared you can be to set yourself up for a positive outcome.
Address substance use concerns early and transparently
Allegations of drug or alcohol misuse are among the most significant risk factors in parenting cases. Even historical or intermittent use can raise concerns if it affects parenting capacity or decision-making. As family lawyers, we often tell our clients that transparency is key. If you have engaged in any type of drug use, get ahead of it.
What are some of the proactive steps that you can take to reduce risk?
- undertaking voluntary and independent drug testing;
- complying with any court-ordered testing regime; and
- avoiding minimisation or defensiveness when substance use is raised.
The Court places considerable weight on objective evidence. Hair follicle testing, urine screening, and transdermal drug patches are commonly relied upon. A clear pattern of negative results over time can significantly mitigate this being shown to be a current risk.
Conversely, refusal to test, missed tests, or inconsistent compliance may be interpreted adversely, even in the absence of a confirmed positive result. So, you may not have ever engaged in drug use, but due to the lack of evidence to the contrary, the court may draw the inference that there are risk issues which they should continue to stay cautious about.
But what if you do have extensive drug history? What then?
Engage in drug rehabilitation or counselling
Where substance use has been an issue, the Court expects parties to have some insight into their drug usage and to be taking active steps toward rehabilitation.
Participation in a recognised drug or alcohol treatment program can demonstrate:
- acknowledgment of the issue;
- commitment to change; and
- prioritisation of the child’s welfare.
Programs may include:
- outpatient or residential rehabilitation;
- counselling with a qualified drug and alcohol practitioner;
- relapse prevention programs; or
- medically supervised treatment where relevant.
Evidence of completion, attendance records, and reports from treating professionals can be critical in demonstrating reduced risk and improved parenting capacity.
Parenting courses & insight
Parenting capacity is generally the next major issue many parents in parenting proceedings face. It is not uncommon for a party to feel personally attacked when their parenting ability is questioned. While this is a completely normal reaction, it is relevant to keep in mind its purpose. Parenting courses are frequently ordered by the Court, particularly where there are concerns about conflict, communication, insight, or where age-appropriate parenting becomes an issue.
However, waiting until a course is ordered can be a missed opportunity. Voluntarily completing a recognised parenting program can demonstrate insight and willingness to improve and reduce allegations of poor parenting capacity.
No one is perfect, and the court does not expect perfection. If you are able to demonstrate insight and a willingness to grow, the Court can be far more persuaded in your ability as a parent and a caregiver.
A lack of insight, blame-shifting, or refusal to engage with services often presents a greater risk than the underlying issue itself.
Ultimately, the best way to minimise issues in your parenting matter is to seek specialised family law advice early, be clear of any issues you think that may arise or be raised by the other party, being transparent with your family lawyer will help us provide the best advice that is most suitable for your circumstances. In addition to this, a lot of issues in parenting matters can be mitigated by maintaining respectful and child-focused communication, complying with existing court orders, because non-compliance, reactive behaviour, or poorly prepared evidence can quickly escalate concerns and negatively affect your credibility.
In many instances, timely and proactive steps taken before a first court date can substantially impact outcomes and the overall trajectory of the proceedings.
Finally, minimising risk in a parenting case is not about winning, it is about demonstrating to the Court that a parent can provide a safe, stable, and supportive environment for their child and most importantly, promote the child’s best interests.
For further support or tailored legal advice, please contact the experienced Family Law team at Mellor Olsson.