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Order for supervision of fathers time set aside due to inconsistencies

Children – Order for supervision of father’s time with child set aside – Trial judge erred in making order without assessing risk and what would be required from a supervisor – Further error by failure to explain why a supervisor was found suitable for one location but not others

In Garraghan & Westerfield (No. 2) [2014] FamCAFC 96 (6 June 2014) the father appealed against interim orders made by Judge Monahan for him to spend supervised time with his child. The appeal came before Ryan J exercising appellate jurisdiction. After living together for five years the parties separated in 2011 after the father assaulted the mother. The child was an infant. For two years the child lived with the mother and spent time with the father, supervised by the maternal grandparents. The father filed an initiating application in June 2013 after the mother stopped contact. An ICL was appointed.

Ryan J said at paras 12-14:

“The orders provide for the father to spend time with the child for four hours on Saturdays and Wednesdays. Each alternate Saturday, the father is to spend time with the child … at a contact service. The remaining Saturdays, the father’s time was ordered to be with a professionally accredited supervisor retained and paid for by the father, or failing that, supervised by the paternal grandmother at a suitable play centre (failing that the mother or her nominee). As to time on Wednesdays, the father was ordered to spend time with the child supervised by an agreed person, or failing agreement, by either of the respondent mother, the maternal grandmother or the maternal grandfather at the home of the maternal grandparents or an agreed location.

The father did not retain an accredited supervisor. Instead, the father nominated the paternal grandmother to be the Wednesday supervisor. The mother has withheld her consent to the paternal grandmother being able to supervise on Wednesdays. The father is unwilling to spend time with the child at the maternal grandmother’s home. The consequence has been that the father has declined to see the child on Wednesdays since the orders were made.

The father does not seek a change to the effect of the 21 October 2013 orders. By his appeal, the father is seeking that supervision on the alternate Saturdays (which is supervised by the paternal grandmother) be allowed to occur at a place other than a defined public place (being a public play centre). The father wishes to be supervised with the child at home. In relation to Wednesdays, the father is seeking time with the child to be supervised as agreed, or failing agreement, by the paternal grandmother.”

Judge Monahan (para 18) applied the legislative pathway to be followed in interim parenting proceedings set out in Goode [2006] FamCA 1346, referring (para 20) to “issues in this case warranting investigation”, the need to “tread cautiously in the interim arrangements” and the requirement under s 60CC(2A) to give greater weight to s 60CC(2)(b) (need to protect child from abuse, neglect or family violence, the mother alleging “angry outbursts” by the father (para 30)) than s 60CC(2)(a) (benefit to child of a meaningful relationship with both parents). There was evidence that in 2011 the father had pleaded guilty to an assault upon the mother, although no AVO was in place and the mother’s concern for her own safety was such that she offered to supervise the child’s time with the father at her parents’ home.

The mother disputed that the paternal grandmother was a suitable supervisor, asserting that the paternal grandmother had a strained relationship with both the mother and the father (para 21), would accuse the mother of “starving the child”, was abusive and had spent little time with the child (para 38). The interim order was for a mix of supervision arrangements as set out above.

The father’s first ground of appeal was that his Honour’s miscarried by ordering supervision by the mother or maternal grandparents at their home where the need for supervision was questionable, the paternal grandmother was found to be a suitable supervisor and was available, and there was a history of conflict between the father and the mother and her parents. Ryan J said (paras 40-43):

“ … there was a significant issue between the parties in relation to the gravity of risk the father posed to the child and as a consequence the skills required by the supervisor.

The central challenge raised by ground 1 is, how could the primary judge determine the nature of supervision without considering the nature of the risk and other matters referred to in the ground? It is common ground that his Honour did not evaluate the evidence concerning risk or determine what would be required from a supervisor.

In an attempt to resist the joint challenge made on the father’s behalf and by the ICL that this omission meant that his Honour’s discretion miscarried and the appeal must be allowed, the mother’s solicitor argued that if the primary judge was satisfied that each of the possible supervisors would be appropriate, it was an error without consequence. Had his Honour so decided, this submission may well have found favour. However, the effect of his Honour’s orders is that the paternal grandmother may supervise in some settings but not others. In relation to the mother and maternal grandparents, the same outcome is achieved.

It is accepted that by failing to evaluate the asserted risk, his Honour failed to have regard to a pivotal consideration.”

The father’s second ground of appeal was that His Honour’s discretion miscarried by ordering that the father’s time take place in a defined public space or at the home of the maternal grandparents, as to which Ryan J said at paras 45-46:

“By this challenge, it is submitted that the primary judge gave no reasons why, if the paternal grandmother is an appropriate supervisor at a play centre, she was unsuitable to supervise elsewhere.

On the mother’s behalf, a submission was made that it was open to the primary judge to determine that the paternal grandmother was an appropriate supervisor for time that took place in a public location but not elsewhere. Again, while this is undoubtedly correct, the primary judge did not explain why the paternal grandmother could supervise in one setting but not another. The importance of this issue in the proceedings required that the primary judge expose his reasons for what would otherwise appear to be inconsistent orders.”

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