Children – risk assessment at interim hearing – mother could not cope with cost of professional supervision

In Canfeld & Falkins [2020] FCCA 2570 (9 September 2020) Judge Altobelli heard a parenting case in which a primary issue was the choice of supervisor for the mother’s time with the children.

The three children of the relationship (aged 16, 11 and 8) lived with the father and spent time with their mother on a supervised basis. The mother sought that her time be supervised by ‘Mr L’. The independent children’s lawyer (ICL) supported this position. The father sought a professional supervisor.

The court said (from [20]):

“(…) ‘[67] In Deiter & Deiter [2011] FamCAFC 82, … the Full Court suggested that s60K (now s67ZBB) … signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. (…)

[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.”

The court continued (from [23]):

“For present purposes the real issue is under what circumstances should the children spend time with their mother. From the Court’s perspective, a way of looking at this issue is to ask this question: what risk of harm to the children cannot be addressed by supervision by Mr L that could be addressed by supervision by a professional supervised contact service? (…)

[31] In terms of supervised time … there are practical issues that cannot be ignored. The Court accepts the mother’s case that continuing to pay for private professional supervision is not sustainable. The Court appreciates that private non-professional supervision such as Mr L means that there is no professional objective person and no written report. (…) It is ultimately a balancing exercise and one which the Court believes can be achieved by using Mr L.”

The court made orders for the mother to spend time with the children, supervised by Mr L.

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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