When a client tells us their former partner is an “unfit parent”, the first thing we look at is whether the concern is about the child’s safety. Australian family courts do not decide parenting cases by asking who is the better parent. They ask what arrangement is in the child’s best interests, and the child’s safety comes first.
That means some things parents are very worried about will make little difference in court, while other issues can change the outcome completely. Here is how we explain the difference to clients.
Key takeaway: There is no legal test called “unfit parent”. The court asks whether time with a parent would expose the child to an unacceptable risk of harm, and what arrangement is in the child’s best interests.
What does not make a parent unfit
Plenty of complaints we hear from separated parents are real frustrations, but they are not safety issues. On their own, the court is unlikely to treat these as making a parent unfit:
- A messy or untidy house
- Not taking the child to soccer practice or other activities
- Different rules about screen time, bedtimes or food
- Running late to handovers
- Having a new partner
- The parent’s job or how they earn a living
We have acted in matters where one parent argued the other was unfit because they were an adult sex worker or had an OnlyFans account. Unless there is evidence that the work creates a real risk to the child, for example the child being exposed to it, the court will not treat it as making that parent unfit. The question is always what is happening to the child, not whether the court approves of a parent’s choices.
Need advice on your situation? Our family lawyers can help with your parenting arrangements. Book a consultation to talk it through.
What the court is concerned about
The court becomes concerned when what a parent is doing could harm the child. The issues that most often affect parenting outcomes are:
- Family violence, including coercive control, and the child being exposed to it
- Drug or alcohol misuse that affects the parent’s ability to care for the child
- Untreated mental illness that puts the child at risk
- Neglect, such as a child not being fed, supervised or taken to medical appointments
- Physical, sexual or emotional abuse
- Exposing the child to dangerous people or situations
When deciding what is in a child’s best interests, the court considers the child’s safety, the child’s views, their developmental and emotional needs, each parent’s capacity to meet those needs, and the benefit of the child’s relationships with parents and other important people. Since 6 May 2024, these factors are set out more simply in the Family Law Act, with safety at the top of the list.
Key takeaway: The same behaviour can lead to very different outcomes. What matters is how it affects the child, how recent it is, and whether the parent has addressed it.
Evidence that helps, and evidence that backfires
Allegations alone do not carry much weight. The court needs evidence, and how you gather it matters.
Social media
Social media posts are often good evidence. Photos, videos and messages a parent has posted themselves can show drug or alcohol use, dangerous behaviour, or who the child is spending time with. Take screenshots that show the date and the account, and keep the originals.
Secret recordings
Be careful with secret recordings. Whether recording a conversation is legal depends on the state you are in and the circumstances, and sharing a recording can be an offence even where making it was not. Getting a recording into evidence is possible, but it is not straightforward. Talk to a lawyer before you record anyone or use a recording you already have.
Other useful evidence
- Police reports and intervention orders
- Medical, school and childcare records
- Child Protection reports, where they exist
- Text messages and emails
- Notes of incidents, written at the time with dates
Coaching children or asking them to report on the other parent almost always backfires. Family report writers and judges are experienced at noticing it, and it reflects badly on the parent who did it.
How these cases end
Where the court finds a parent poses a real risk, the outcome depends on how serious the risk is and whether it can be managed. In our experience, outcomes range from:
- No time with the other parent, where the risk cannot be managed
- Supervised time, often at a children’s contact service
- Time with strict conditions, for example drug or alcohol testing before and during time with the child
- Time that increases in stages as the parent shows the risk has been addressed
We work with many children’s contact service providers to set up supervised time and changeovers. We do not work for Child Protection, but in many of our matters we read its reports and the department is involved in the case.
Key takeaway: Courts rarely cut a parent out completely. The more common result is time with safeguards, such as supervision or testing, until the court is satisfied the child is safe.
What to do if you are worried about your child’s safety
If your child is in immediate danger, call 000. If you have concerns about the other parent, get advice early, before agreeing to arrangements or stopping time. Withholding a child without a good reason can count against you, but so can ignoring a real risk.
We can help you work out whether your concerns are likely to matter to the court, what evidence to gather, and whether you need urgent orders.
