Should your ex-partner spend time with your child unsupervised?

At least two in three family law cases filed in the Federal Circuit and Family Court of Australia (“the Court”) allege one or more parties have experienced family violence during the relationship. This aspect of a family law matter often sees one or more parents fearing their child or children spending time with the other parent.

How time can be spent

When a case is judicially determined in the context of family violence concerns, the following options are usually considered by order of preference and may be used in combination:

1. Unsupervised time (where there is no unacceptable risk);
2. Supervised time in the community with a Contact Service;
3. Supervised time at a Contact Centre;
4. Regular telephone/video contact only;
5. Limited identity-contact only;
6. No time (where there is unacceptable risk unable to be mitigated).

What is Family Violence anyway?

The definition of family violence is broader than you might realise. Section 4AB of the Family Law Act 1975 (Cth) (“the Act”) lists some examples of behaviour that may constitute family violence, such as; assaults, stalking, repeated derogatory taunts, sexual assaults, sexually abusive behaviour, intentional damage to property or an animal, unreasonable financial control, isolation from other family and friends and controlling one’s freedom unlawfully.

Effect on Parental Capacity and Co-Parenting

Parenting after separation can be challenging at the best of times, but that is especially so when there are allegations of family violence. So, can you seek orders that limit a child spending time with a parent because of the stress and anxiety it may cause you or the child due to a history family violence? –As is so often the case with these things…it depends.

This issue was discussed in a case called Re Andrew [1996] FamCA 43, where the appellant father was not granted unsupervised time as the mother argued her caregiving capacity would be affected if it was permitted. The Full Court of the Family Court (as it was then known) agreed that it was within the trial judge’s power to determine that the negative impact on the mother of child spending unsupervised time with the father would be detrimental to the child’s welfare, and that consideration ultimately outweighed the benefit of the father spending unsupervised time with the child.

Why the Courts are slow to adopt Re Andrew today

It is clear that whether a parent’s time with a child is to be the subject of supervision, or not, turns on the facts of each individual case. However, the principles set out in Re Andrew were the subject of discussion in the decision of Keane & Keane [2021] FamCAFC 1, in which the Court sought to clarify the way those principles ought to be taken into consideration.

The appellant mother in Keane sought to rely on Re Andrew in appealing the trial judge’s decision to transition the child’s time from supervised to unsupervised time. The original order for supervised time was made on the basis of allegations that the father had perpetrated family violence on the mother prior to and after separation, in addition to allegations of sexual abuse by the father on the child, the latter of which was held by the trial judge to be “so unlikely that it cannot establish any real chance of sexual abuse.”

At trial, the mother did not produce any evidence to show the extent to which her parenting capacity would be impaired should an order for unsupervised time be made, other than her being genuinely distressed by the proposition. She conceded that counselling and therapy were open to her should she need to seek help in that regard. The trial judge therefore exercised their discretion, weighed the risk factors, and found it was in the best interest of the child that they should spend unsupervised time with their father. This discretion was upheld at appeal.

Keane was determined with the benefit of twenty-six years of jurisprudence since the introduction of “the best interests of the child” principle under section 60CA of the Act in 1995. It is this paramountcy principle that balances against “unacceptable risk” to the child when considering parenting orders.

Put simply, it is the all too frequent reality for many parents that there exists some level of risk in another parent spending time with a child. However, this risk could be mitigated, for example, by time being spent in public settings as opposed to private settings, or for shorter periods of time. For the child to have the benefit of a meaningful relationship with both parents as envisioned under section 60CC(2) of the Act, which is a primary consideration for any judge making a decision, the Court understands that meaningful relationship is difficult to maintain in a constantly supervised arrangement, and will usually adopt this as a short-term solution, with the intention of moving to unsupervised time if and when the Court can be satisfied that any risk is properly addressed.

Consequently, the Court is cautious in restricting the time a parent spends with a child on the basis of another parent’s alleged impaired capacity, unless presented with evidence of sufficient weight that goes beyond a general statement of fear.

*This article was prepared with the assistance of Alex Feng