LSB November 2018_Web

FAMILY LAW
suffer some level of emotional distress
if they did not continue to spend regular
time with him.
In addition, the two older children, to
the relevant family consultant engaged for
the case, had indicated a preference to live
with their father.
At first instance, the trial Judge found
that although the father had not attempted
to alienate the children from their mother,
he had engaged in a process of destroying
their relationship with their mother
and causing them to align with him, by
sowing the seeds to enable the children
to constantly question their safety with
their mother. This had led to the children
exhibiting anti-social behaviour and one of
them, symptoms of psychological conflict.
The trial court was satisfied that this
conduct represented an unacceptable
risk that the children concerned had
been exposed to coercive and controlling
behaviour, within the rubric of family
violence, which was psychologically
harming to them. The trial Judge also
noted that the children would experience
significant sadness and distress, if
separated from their father, who was
described as being warm and affectionate
with all of the children.
Accordingly, the dilemma facing the
court was that the children were strongly
aligned with their father and beginning
to show signs of rejecting their mother,
with serious implications arising for their
psychological wellbeing.
In these circumstances, it was ordered
that the children should continue to live
with their mother and spend time with
their father, only every second month,
subject to professional supervision.
There was also an order that the
father was granted liberty to make a
fresh application for the lifting of the
supervision requirement, in the event
he completed a course of “regular and
consistent therapy with a child and family
therapist for a period of not less than 24
months and thereafter provided a report
that he had gained insight into his hitherto
coercive behavior”
Issues on appeal centred on the viability
of orders for long-term supervision and
whether the court at first instance had
given sufficient reasons to support such
a decision. The Full Court determined
that although “permanent imposition of
supervision upon the interaction between
children and a parent is undesirable, the
relevant circumstances of this case did
justify it.”
In the case, the Full Court provided a
summary of when an order for indefinite
professional supervision is justified. I will
add my own thoughts to that summary.
One of the rationales for the
Government’s funding of Children’s
Contact Centres is to provide a mechanism
for separated parents to move to a process
of self-regulation of their parenting
arrangements. The objectives of these
services are outlined in Children’s Contact
Services: Guiding Principle Framework for
Good Practice, published by the Australian
Government Attorney-Generals’
Department, as follows:
“CCSs occupy a unique and important
position within Australia’s family law system
with their core business focusing on the needs
of separating or separated families.
CCSs enable children of separated parents
to have safe contact with the parent they do
not live with, in circumstances where parents
are unable to manage their own contact
arrangements. Where separated parents
are not able to meet without conflict, CCSs
provide a safe, neutral venue for the transfer
of children between separated parents. Where
there is a perceived or actual risk to the child,
they provide supervised contact between a child
and their parent or other family member.
Parents may be ordered to attend a CCS by
the family court to facilitate changeover or have
supervised visits with their children.
The key goal of CCSs is to assist separated
families to move, where possible and it is
considered safe to do so, to self-management
of contact arrangements, both in terms of
changeover and unsupervised contact. CCSs
ensure that the children’s best interests are kept
central to the contact process. Services should
only accept cases after careful assessment and
where they consider that their facilities and
resources allow them to deliver services that are
safe and appropriate for all parties.
The overall objective for CCSs is to provide
children with the opportunity of re establishing
or maintaining a meaningful relationship with
both parents, and other significant persons in
their lives, when considered safe to do so.”
The guiding ethos of CCCs is that
parents should move to self- management
of arrangements for their children’s
care. Accordingly, an order for indefinite
supervision of time between a parent and
children is exceptional. In Moose & Moose
May J said as follows:
“In my view, where an order is made that the
time a parent spends with a child be under
supervision indeterminately, there would need to
be cogent reasons to support such orders. 1
Very often the cogent reason put
forward such long-term supervision
is that in its absence the child or
children concerned will be subject to a
significant degree of risk either physical
or psychological, from being exposed
to the other parent concerned, which
can be circumvented only by rigorous
professional supervision.
The Full Court in Slater & Light
expressed the task of assessing risk in the
following terms:
“The nature of the risk is best expressed by
the term ‘unacceptable risk’. It is an evaluation
of the nature and degree of the risk and
whether, with or without safeguards, it is
acceptable.” 2
For obvious reasons, it is preferable that
all outstanding issues arising in respect
of the parenting of a child be resolved at
the final hearing stage. In cases involving
indefinite supervision, such a desirable
outcome is not easily achievable. In
addition, such cases may raise issues
relating to the rule in Rice & Asplund’ 3 as to
whether there has been a sufficient change
of circumstances to warrant the reopening
of such a case, at a later stage.
In Gorman & Huffman the Full Court
accepted that there was a guideline, which
the court was required to consider, when
contemplating indefinite supervision.
Murphy J said as follows:
T
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THE BULLETIN November 2018