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Third Party Experts cannot Decide when a Parent can Spend Time with a Child

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On 27 July 2023, the Federal Circuit and Family Court of Australia delivered a judgment in the matter of Lainheart v Ellison in which it was subsequently found on appeal that the trial judge’s decision effectively divested judicial power from the court and unlawfully conferred judicial power on a third party psychologist to determine the father’s future parenting arrangements.

During the trial, the judge found that there had been a significant history of family violence perpetrated by the father against the mother, and that there was an unacceptable risk of harm to the child in spending unsupervised time with the father.

The trial judge made final parenting orders stipulating that the child should live with the mother who was to have sole parental responsibility for the child and providing a gradual increase in the child’s time with the father. It was the wording of the orders for the spend time arrangements which subsequently became the subject of an appeal.

Appeal

The mother appealed against the trial judge’s final spend-time orders on the basis that they did not reflect any proposal made by the mother or the Independent Children’s Lawyer at the trial, and that they did not correlate with the recommendations of the family expert report produced for the trial.

The order which was the subject of the appeal was essentially as follows:

4. The child was to spend time with her father as follows:

  • a. Until order 4(b) took effect, the child was to spend supervised time with the father each Saturday for 3.5 hours at specified times;
  • b. The Father’s time would increase to 4 hours every Saturday after:
    • The father had engaged in a course of cognitive behavioural therapy with a qualified clinical psychologist: and
    • That therapist had provided a report confirming in the therapists’ view that:
      • The father had understood and accepted he had significant anger management problems that had led to him perpetrating physical and psychological family violence upon the mother; and
      • The father had gained an understanding that he needed to manage his anger to eliminate any future unacceptable risk of harm to the child while the child was in his care;

In effect, the child would spend 3.5 hours of supervised time with the Father each Saturday until a psychologist provided a letter to the Mother stating that he had understood his anger tendencies and the effect these had on the mother and child.

Outcome of the Appeal

On appeal, the Court held that the fact that the Orders did not reflect those submitted by the parties was ‘not necessarily’ problematic as the trial judge was duty bound to make orders which were in the child’s best interests, whether they were suggested by the parties or not.

However, the Court did find that the Orders were made in error on the following grounds:

  1. The orders essentially transferred the Court’s power to determine the future parenting arrangements for the child onto a third party; and
  2. The orders were aspirational and unenforceable, rather than prescriptive and enforceable. In other words, they set a goal for the father/psychologist and this was not enforceable rather than producing orders that were highly specific and detailed outlining the precise measures to be taken by the father (and the psychologist in some ways) and being enforceable.

The Court also criticised the vague nature of the trial judge’s order, citing the following issues:

  1. The therapist in question was not named, leaving it open to the father to choose who he saw, and for the mother to question that therapist’s reliability;
  2. Despite the therapist not being specified, the effect was that it would be a vague and an unnamed therapist who would eventually decide how the child’s time with the father was to progress; and
  3. Based on the above two reasons, the mother could reasonably refuse to allow the child to spend more time with the father on the grounds that she could not verify the psychologist’s opinion that the father no longer posed a risk to the child .

The appeal court also maintained that it is not a court’s duty to act in a therapeutic and advisory role for the parties, or to try and improve their parenting capacity. If the trial judge did not have the necessary evidence to make orders regarding the definitive parenting arrangements for the child, then essentially passing that decision onto a third party was not an option.

A legitimate alternative would have been for the father to be left to make his own decisions to improve his parenting capacity and return to the Court at a later time seeking a change in the parenting arrangements.

At paragraph 31 of their appeal judgment, the Court held as follows:

…the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties”.

What Does This Mean for Parenting Applications?

It is clear from this judgment, that a Court is not able to pass on its power to determine parenting arrangements to third parties such as therapists and other experts.

Whilst the court can make orders which require a person to attend on a third party, such orders must be certain and enforceable, and that attendance should itself be the condition upon which time progresses, not what a third party expert considers to be appropriate.

Parties and their legal representatives in parenting disputes should be aware of this decision when considering and formulating what orders to seek from the Court, and also when reviewing the orders that may be eventually made.

If you require legal advice or representation with respect to the above situation or for your Family Law matters in general, please contact our highly experienced Family Law Team at MST Lawyers on (03) 8540-0200 or at familylaw@mst.com.au