The case of Lankester & Cribb [2018] FamCAFC 60 demonstrates how a Court will evaluate and balance the primary considerations in s 60CC of the Family Law Act. The matter concerned whether the primary judge had erred in making Orders initially suspending time between the mother and the child.
On appeal, the judge considered the reasons given by the primary judge and determined there was sufficient explanation of the reasons for the Orders with proper consideration of s 60CC.
Facts
Ms Lankester and Mr Cribb had a child in mid-2009 before separating in late-2009. Parenting proceedings then commenced in the Family Court of Australia (as it then was) in 2010. The child continued to live with the mother until Final Parenting Orders were made in 2017 in which the father was granted sole parental responsibility and prohibited the mother from seeing the child for six months before progressing to a graduated time arrangement.
The primary judge reasoned that this was due to the significant psychological and emotional risks posed to the child by the mother. This risk of harm to the child was due to the ongoing attempts by the mother to ‘convince’ the child of her own unfounded belief that she had been sexually abused.
The mother then appealed the Orders, arguing that the significant change in care arrangements was not justified in accordance with s 60CC.
The Appeal
The appeal judge had to consider whether the primary judge had failed to give adequate reasons for the making of the Orders concerning the new care arrangements for the child. In particular, the appeal judge had to consider whether the primary judge failed to properly apply s 60CC of the Family Law Act.
For context, s 60CC details how a court determines what it in the best interests of the child when making parenting Orders. The primary considerations contained in s 60CC are:
- That the child have a meaningful relationship with both parents, and
- The protection of the child from harm.
The appeal judge found the primary judged had not erred in relation to the care arrangements Orders. The primary judge had properly considered s 60CC and set out her reasons for the Orders made.
Risk of Harm
The Court determined that the risk of harm posed by the mother was so significant as to outweigh the value of the child having a meaningful relationship with her for a short period.
The relevant harm included significant mental health problems that could be caused by the mother and “centre[d] on her lack of insight into [her own] behaviour, her inability and/or unwillingness to address the emotional manipulation and harm she is causing her and her inability to support the child’s relationship with her father, demonstrated time and again in various contexts and scenarios, be it in or out of the school environment, reported on time and again by court experts and others independent of the mother and father.”
The Effect
This case demonstrates the substantial weight given to any risk of harm to the child by the Court in determining final parenting arrangements. Although the child had spent the last 8 years living with the mother, the Court considered that the significant risk of harm posed to the child in the mother’s care justified the prohibition of face-to-face contact between the child and the mother for six months. Despite the initial impact this change would cause to the wellbeing of the child, the Court believed that the short-term harm of an altered care arrangement would be less than that if the mother were not prohibited from continuing to see the child and cause further harm.
Due to the primary considerations in s 60CC, where the child is at risk of significant harm, the Court has the power and potential to make significant alterations to any existing care arrangements, even if the existing arrangements have already been in place for several years.
If you have more questions about s 60CC and how it might apply to you, please contact our office on (02) 9688 6023.
This is not legal advice.
