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Order for indefinite supervised time not substantiated by adequate reasons

In Slater & Light [2013] FamCAFC 4 (5 February 2013) the father appealed to the Full Court against Federal Magistrate Coates order for indefinite supervision of his time with the parties’ three children. The father, who was being treated for Asperger’s Syndrome, was alleged by the mother to pose an unacceptable risk of emotional harm to the children. The Federal Magistrate had heard evidence from a court appointed psychiatrist and the father’s treating psychologist, those experts expressing differing opinions as to the issue of risk.
In the Court Report paragraphs 68-72 the Full Court concluded:

“We consider no error has been demonstrated in the Federal Magistrate’s application of the legal principles and exercise of discretion in finding that the father posed an unacceptable risk of emotional harm to the children. Such a finding was open to his Honour based on the expert evidence, the recent evidence of the father’s behaviour in complaining to the Department of Communities, and the mother’s concerns….

Flowing from this finding, his Honour was correct to find that an order for supervised time should be made. We do consider appealable error has been made out however in ground 3 [claimed error in making a long term indefinite supervision order], as an indefinite supervision order was not justified in the circumstances and in any event was not substantiated by sufficient reasons. It is also relevant to the success of this ground that the orders did not at least provide an opportunity for the father to apply to vary the supervision arrangements at a later time. That the father could bring such an application is no solution given that on the basis of Rice & Asplund he would need to establish significant changed circumstances before being permitted to have his case heard on the merits.

It could not be said from the Federal Magistrate’s reasons that the real intention was for the supervised time orders to be final in the sense that the father was never again to spend unsupervised time with the children. Thus some provision reflecting this ought to have been made in the orders.

In determining the proper order this Court should make, we regard the time which has elapsed since the hearing of this matter, together with the age of the children and the expert reports, as being of some significance. A rehearing, with further updated expert evidence about the time and the circumstances in which the father should spend time with the children is necessary.

It is expected that within a relatively short time frame interim orders will be made about the father’s time with the children. The existing orders will then be set aside.”

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