Lainhart & Ellinson [2023] FedCFamC1A 200

A recent appeals judgment of the Federal Circuit and Family Court of Australia overturned final orders which lifted supervised visits upon the father’s completion of a course of therapy.

In this matter, the father had a history of anger management issues and a propensity for violence. The trial judge made final orders which provided for the father spend supervised time only with the child, aged 6, each weekend. This was to continue until the following conditions were fulfilled:

4.

…

(b) Upon the Father engaging in a course of cognitive behavioural therapy with a qualified clinical psychologist and that Father’s therapist providing to the Mother a report confirming in the therapist’s view that:

(i) The father has understood and accepted that during and after their relationship he had significant anger management problems that led to him perpetrating physical and psychological family violence upon the Mother; and

(ii) The father has gained understanding of the need to manage his anger so as to eliminate any unacceptable risk to [the child] of outbursts of anger by the father while she is in his care for any period of time.

Once these conditions were satisfied, there would be a gradual progression of unsupervised time.

Neither party nor the Independent Children’s Lawyer sought Order 4(b) as set out above. Nor was such a regime recommended by the family report writer. This in itself is not inherently problematic, as the judge is not bound to the party’s proposals nor any recommendations. They were “duty-bound to make orders which promoted the child’s best interests even if they differed from those proposed” although such differences could assist in explaining the legal error.

The Full Court found that such an order was unenforceable and merely aspirational. There could be no yardstick by which one can determine that the Father has “understood and accepted…he had significant anger management problems.” It did not order the Father to do, or restrain him from doing anything. Furthermore, it effectively divested judicial power and unlawfully conferred it onto a third party who is not qualified to make an assessment of risk of harm.

This case is an important reminder that the Court can only act on the evidence before it. Undoubtedly, the primary judge sought to improve the children’s experiences of their Father. However, it is not the Court’s position to act as “therapeutic agencies” and attempt to look into the future by “making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.”

Courts are generally reluctant to make orders for long-term or indefinite supervision. However, this case confirmed that “such orders have never been prohibited” when the only other alternative is no contact at all. But an order for indefinite supervision need not be permanent – here, had the Father changed his behaviour, he would have had the evidence to support an application to reopen proceedings and to revise the parenting orders.