When it comes to risky parental behaviour, can family courts order parents not to do extreme sports? Should the courts intervene to prevent a parent’s participation in risky parental behaviour – like dangerous sporting activities? This is the question recently asked by an American family lawyer, but it gave us pause to think about the comparable situation in Australia. How far into the lives of families do family law judges interfere? What is seen as unacceptably risky parental behaviour?
The US lawyer posed the question in response to a client seeking advice on whether they could have their co-parent legally forbidden from participating in risky parental behaviour such as “risky” triathlons. The mother believes the father should give up his chosen sport for the sake of not leaving the children fatherless should he have a heart attack while pursuing the hobby.
Think this might be a bit cooky” Well, the risk of death from participating in a triathlon is not insignificant: The rate of death is generally agreed to be 1.74 per 100,000 competitors. While that seems like a small number, the overall figure in healthy athletes, for comparison, is 0.5 per 100,000 per year. Stated otherwise, participating in a triathlon raises the risk of death by a factor of more than 1,000.
But plenty of parents participate in triathlons. Can they be prevented from participating in their sport of choice, merely because there is a higher statistical risk of death for that particular sport?
The short answer is no.
Courts don’t tell parents that they can’t participate in risky parental behaviour such as extreme sports if they want to keep spending time with the kids. The number 1 reason for not intervening is that such micromanagement of people’s lifestyles is in fact frowned upon in the court system. After all, people participate in a wide variety of “risky” activities (e.g. scuba diving, horse-riding, even just driving a car). Should all such pursuits be forbidden in order to limit the risk of psychological and emotional harm to a child, should they lose a parent due to the risky activity?
What is “unacceptable risk” when it come to risk parental behaviour?
But risk is very much a factor when it comes to parenting proceedings. In Australia, the paramount consideration for the family courts is the welfare of the child. The need to protect the child from physical or psychological harm in fact trumps the need to ensure a child has a meaningful relationship with both parents. And the term “unacceptable risk” is standard parlance in the courts when it comes to safeguarding children’s welfare in parenting matters.
Courts screen for risk at the very beginning of proceedings, and ultimately determine whether orders need to be made to mitigate any identified risk. The Family Law Act 1975 empowers the family courts to grant whatever injunctions are considered appropriate and necessary for the protection of a child, and powers of arrest are attached to injunctions.
There are many ways that a parent can pose an unacceptable risk to a child. Obviously, a parent can pose a risk to a child due to inflicting sexual or physical abuse on them or through neglect. Risk can also be identified where something affects a parent’s ability to properly parent, for instance, the presence of mental health issues, homelessness, social isolation, or impairment due to alcohol and/or substance misuse.
How is risk managed?
The court often make orders designed to manage such risks. They may impose supervision requirements for a parent when spending time with the child. They might compel a parent to attend a parenting course or a behaviour change program, or submit to drug testing. Risk mitigation might come in the form of undertakings from a parent not to allow another party to have contact with the child (for instance, a new partner who presents risk issues). There might be restraints imposed, for example on things like leaving children unsupervised or using physical discipline.
But parental lifestyle choices only become an issue if there is a direct link to potential harm to the child. For example, judges routinely make orders for parents not to consume alcohol or substances while they have the care of their children, or even not to view pornography.
However, parental choices as to sports and hobbies are left alone by the court system unless an activity can be directly shown to pose a potential risk to a child. And, if a party attempts to have a court micromanage their co-parent’s lifestyle choices to such a degree, the courts are likely to form an unfavourable view of the micromanaging parent as someone who is trying to control their ex-partner’s behaviour from afar.
Instead, the courts expect that parents act as adults and work out such issues privately with each other or via alternate dispute resolution processes. Parents are encouraged to take responsibility for deciding minor issues themselves, rather than further clog up the family court system with attempts to litigate unnecessary issues.
If you are concerned about a possibly risky parental behaviour
On the other hand, whether or not something is “trivial” is a highly subjective matter. Your co-parent’s behaviour might not fall into the clearcut categories of obvious risk that the family courts must deal with, but it may be concerning enough to you that you wish to try to get your co-parent to “see reason” for the sake of the children’s emotional or psychological wellbeing. While the courts want parties to be able to settle such matters themselves without burdening the court, there will always be situations where parents simply can’t agree and need a third party to intervene. Being able to ventilate such issues in mediation or other alternate dispute resolution processes can be very productive.
Don’t be afraid to discuss your concerns with a family lawyer to get some advice on how you should proceed. If you need help, contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct family law advice, please contact Alliance Family Law.
