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Children – child welfare – mother failed to satisfy court that supervision of father was both necessary and available

In Aitken & Gladstone [2020] FCCA 966 (8 May 2020) Judge McGuire heard an interim application by the father to spend unsupervised time with his six-year-old child X.

The mother sought an order that the father be supervised. The Department of Health and Human Services, Victoria (DHHS), which had been the applicant in state court child protection proceedings for three years, appeared as amicus curiae. DHHS supported the mother’s case, which was consistent with the existing state sourt order.

The parties had been involved in Federal Circuit Court (FCC) proceedings since 2013, including two parenting trials. There had been long-standing state court intervention orders including an interim accommodation order made in the Children’s Court that the father’s time with X be supervised.

The court said (from [77]):

“…[I]t is the mother who argues that X’s time with the father should continue to be supervised. …[S]he offers no further particulars…except leaving the obligation for the orders that she seeks on the father…She insists on a supervisor but does not nominate one. (…)

[80] …I think it disingenuous to simply leave the finding of a supervisor to the father … where he does not seek an order in those terms and when the Department suggests no availability. (…)

[83] …I am not persuaded that X’s time with his father needs to be supervised in the interim. Significantly, I have found importance for X in maintaining a relationship with his father. I am not satisfied on the evidence that any supervisor, even if necessary, is available. …In this sense, the obligation to show that supervision is both necessary and available sits here with the mother and the Department. (…)”

An interim order was made that X spend unsupervised time with the father, the state court order to be discharged.

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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