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Can a restraint on behaviour overcome risk?

Often times in family law matters restraints on parents behaviour are included in Orders; but is there some behaviour – or some parents – when a restraint cannot overcome a potential risk?

In the recent decision of Saunders & Yorke the Appeal Court agreed with the trial Judge that two children were not to spend any time with their father because restraints on his behaviour would not be sufficient to actually restrain his behaviour.

In this case there was no dispute that the children enjoyed their time with the father – and wanted to continue spending time with him. The question was whether behaviour of the father associated with his paraphilia posed a risk to the children – that could not be overcome if restraints were included in the Orders. 

The trial Judge – adopting the concerns of the Court Child Expert – was of the view that behaviour of the father posed a risk of psychological harm to the children and that the father could not be effectively restrained from exposing the children to that risk. The trial Judge expressed concern that “the father was prepared to say whatever he thought the court would expect him to say in order to maintain his connection with [the children]”. Ultimately the trial Judge found that the father did not genuinely agree that his behaviour presented any risk to the children and that there was therefore little utility in making the restraint orders.

The Appeal Court found no error in the trial Judge’s decision.

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