Indefinite orders for supervision are not in the best interests of children

Bronson & May (No. 2) [2017] FCCA 2317

This is an interesting case regarding indefinite orders for supervised time and Court’s approach to the Rice & Asplund rule at a preliminary hearing.

There was a final parenting order in place which was made in 2015 requiring father’s time with the children (now 9 and 8 years of age) to take place at a contact centre or with a supervisor approved by the mother. Supervision had been ordered after consideration of family violence by the father and where he suffered from bipolar disorder. Crucially the final order from 2015 provided for no means of reviewing the supervision requirements. 

Subsequently the father applied for an order for unsupervised time with the parties’ children. Here the Court heard the mother’s application for summary dismissal of the father’s application.

The father’s application was for his supervised time to be incrementally increased in stages, including a supervisor “in substantial attendance” and ultimately unsupervised time. The mother sought summary dismissal of the father’s application, relying on Rice & Asplund rule.

The Court made it a point to state that there was a particular feature of this case which, in the Court’s opinion, was relevant and critical to deciding whether it should allow litigation regarding parenting orders for the children to re-commence. This was the fact that the 2015 final orders did not provide any review mechanism for the orders requiring ongoing supervision. 

The Court in this instance went on to mention that the Full Court of the Family Court of Australia has been critical of such orders on the basis that … “indefinite orders for supervision are not in the best interests of children. The leading case is Moose & Moose [[2008] FamCAFC 108], which was referred to with approval in the decision of Slater & Light [[2013] FamCAFC 4].”

Court has considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review(s). Court has further commented on the general undesirability of long-term supervised contact. 

The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). 

In Fitzpatrick & Fitzpatrick (2005) FLC 93-227 the Court having found that the evidence in the case ‘objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…’, then referred to the difficulty associated with long term supervised contact and said ‘the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests’.
The Court then explained “whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. 

The Court in this case went on to say that whilst there may be an argument whether the change in diagnoses of the father’s mental health and/or the passage of time during which professional supervision has taken place amounts to significant or material change, it is clear that the 2015 final orders are not working and, on the only independent evidence available, have not given effect to the best interests of the children.

Ultimately the Court was satisfied, on the evidence before it that the best interests of the children will be served by a consideration of alternative supervision arrangements and, whether the inclusion of a review mechanism of these arrangements are in the children’s best interests. 

In making the decision the Court noted that it had weighed this consideration against the adverse impact that embarking on litigation may have on the children’s emotional well-being and consequently their best interests. On balance, however, and with a degree of caution, Court decided that litigation should proceed.

Mother’s application for summary dismissal of father’s application for unsupervised time dismissed – Indefinite orders for supervision are not in the best interests of children.

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