Supervision in Parenting Matters

What is supervision in the family law context?

In some matters, it may be appropriate for the time children spend with a parent to be supervised. The time can be supervised by a professional supervision service or another responsible third party, such as a friend or family member. The changeover can also be supervised to minimise the risk of conflict.

 

The supervisor’s role

The supervisor has an obligation to remain with the child at all times. This means the supervisor must always be able to see and hear the child.

 

When is supervision ordered?

The Court may make an order for supervision in circumstances where:

1. The child is estranged from a parent for some time and it would be in their best interests to be gradually introduced to the other parent. Usually, a person familiar to the child will act as supervisor;
2. There are allegations that the child is afraid of their parent;
3. The child has requested someone else be there during the time; or
4. The court has concerns that there is a risk of harm to the child if the time is unsupervised:
   1. If there are allegations of family violence including perpetrated towards a parent in the presence of the child.
   2. Where there are allegations of abuse of the child including neglect, emotional, physical or sexual abuse;
   3. Where a parent poses a risk to a child by virtue of serious mental health issues;
   4. Where a parent poses a risk to a child due to drug and/or alcohol abuse;
   5. Where a child has unreasonably been exposed to danger by a parent;
   6. If there are allegations or risks of abduction.

 

Legal Principles

The Family Law Act (“The Act”) does not contain a specific provision outlining when supervised time should be ordered, however, it is related to the overarching principle in parting matters; that the child’s best interests are the paramount consideration in making a parenting order.[1] The primary considerations when determining what is in a child’s best interests are:

1. the benefit to the child of having a meaningful relationship with both of the child’s parents;[2] and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;[3] and

The Court must give greater weight to the second consideration.[4]

Section 60CG of the Act states:

1. In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order; and
   1. is consistent with any family violence order; and
   2. does not expose a person to an unacceptable risk of family violence
2. For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

It therefore follows that where there is an unacceptable risk of harm to the child in a parent’s care, supervised time is an option often considered by the court.

 

Conflicting Evidence of Family Violence –  it’s all about risk

As the Court made clear in Goode v Goode[5], it is usually the case that at an interim hearing, there are significant factual disputes between the parties and these cannot be determined without the evidence being tested in the context of a trial. In that case, the Court held that the legislative pathway requires the Court to apply a “cautious approach” but not to be “drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”

In Eaby & Speelman[6], citing Marvel & Marvel[7] the Court observed that even in cases of disputed facts where findings are not possible, the Court must not disregard evidence on the topic and determine the case solely by reference to agreed facts. In Salah, the Court clarified that even where a Judge is precluded from making findings on disputed issues and untested evidence, Section 60CG is not constrained in it’s operation despite that inability. The Section requires the Court to consider risk of family violence not determine who’s evidence is preferred.

 

[1] Section 60CA Family Law Act 1975 (Cth)

[2] Section 60CC(2)(a) Family Law Act 1975 (Cth)

[3] Section 60CC(2)(b) Family Law Act 1975 (Cth)

[4] Section 60CC(2A) Family Law Act 1975 (Cth)

[5] (2006) FLC 93-286; [2006] FamCA 1346.

[6] [2015] FamCAFC 104; (2015) FLC 93-654

[7] [2010] FamCAFC 101; (2010) 43 Fam LR 348

 

Contact our Family Law Team for any queries regarding supervision in parenting matters.