The Balance of Harm Test
The first, often referred to as the balance of harm test, sets out the court’s duty to balance the harm caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made. In accordance with Section 33(7), the court must make an order if:
“…It appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order…is not made’.
There are however exceptions to this test. This is the case particularly when it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by the respondent or the child is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made. In cases where it can be established that there is a risk of significant harm to a child, the interests of the child will be the court’s paramount consideration.