Should Your Ex-Partner Only Spend Supervised Time with Your Child?
By Carmel Morrison (Principal Partner – Head of Family Law)
Family law cases often involve complex dynamics, and allegations of family violence can further complicate matters, particularly when determining the time a child spends with each parent.
In the Federal Circuit and Family Court of Australia, concerns about family violence during a relationship can lead to various orders, ranging from unsupervised time to no contact. This article explores the different options available and the considerations involved in determining whether a parent should only spend supervised time with a child.
Understanding Family Violence
The definition of family violence extends beyond physical harm.
Section 4AB of the Family Law Act 1975 (Cth) outlines examples of behaviour constituting family violence, such as assaults, stalking, derogatory taunts, sexual abuse, financial control, isolation, and unlawful restriction of freedom.
Recognizing these behaviours is crucial when assessing the impact on parental capacity and co-parenting.
Options for Time Spent with a Parent
When family violence is a concern, the court considers various options for the time a child spends with each parent. These options, ordered by preference and sometimes used in combination, include:
- Unsupervised time (where there is no unacceptable risk)
- Supervised time in the community with a Contact Service
- Supervised time at a Contact Centre
- Regular telephone/video contact only
- Limited identity-contact only
- No time (where there is unacceptable risk unable to be mitigated)
Effect on Parental Capacity and Co-Parenting
Navigating co-parenting after separation is challenging, especially when family violence is involved.
Parents may wonder if they can seek orders limiting a child’s time with a parent due to the stress and anxiety it may cause. The case of Re Andrew (1996) FamCA 43 highlights that a court may restrict unsupervised time if it determines that the negative impact on the custodial parent outweighs the benefits for the child.
Evolution of Legal Principles
In the case of Keane & Keane (2021) FamCAFC 1, the court revisited the principles set out in the case of Re Andrew [1996] FamCA 43. The appellant mother sought to rely on the precedent to appeal a decision transitioning the child’s time from supervised to unsupervised. The court clarified that the paramount principle is the best interests of the child, balancing against the “unacceptable risk.” The court upheld the discretion exercised by the trial judge, emphasizing the importance of evidence regarding impaired parenting capacity beyond mere fear.
Balancing Act: Best Interests of the Child
The court acknowledges that some level of risk may exist in a parent spending time with a child. Mitigating this risk through public settings or shorter periods of time is considered. The court is cautious about restricting a parent’s time unless presented with substantial evidence that goes beyond a general statement of fear. The goal remains to facilitate a meaningful relationship between the child and both parents, as mandated by section 60CC(2) of the Act.
Conclusion
Determining the appropriate time a parent should spend with a child in the context of family violence allegations is a delicate and complex process. While the court recognizes the need to protect children from harm, it also strives to ensure that meaningful relationships with both parents are maintained.
As legal principles evolve, the focus remains on the best interests of the child, and evidence of impaired parenting capacity is crucial in shaping court decisions.
If you require legal advice or representation with respect to your Family Law matters, please contact our highly experienced Family Law Team at MST Lawyers on (03) 8540-0200 or at familylaw@mst.com.au.
