Is a Child at Risk of Harm by Coming Into Contact With a Person Who Has a History of Serious Criminal Conduct?
March 27, 2017
Divorce House Ownership
Divorce House Ownership: Maintaining Separate Finances Could Mean That You Keep Your Home
July 3, 2017

Supervised Visitation: When Might It Be Implemented on a Long Term Basis?

Supervised Visitation

Supervised Visitation: A Long-Term Solution?

Betros & Betros [2017] FamCAFC 90 is recent decision of the Full Court wherein the appellant father appealed from the trial judge’s order for supervised contact. The relevant order provided that the father would have supervised contact with the parties’ three children every second month.

The parties to the dispute had three children, who were between seven and ten years of age at the time initial orders were made. Those orders provided that the father would have 4 nights each fortnight with the children. The father brought an application for new orders in December 2013. That application was finally determined in April 2016. Because of high degree of conflict between the mother and father, the father’s time with the children was substantially restricted.

Supervised Visitation: A Tool for Managing High Conflict Disputes

In essence, the father appealed the decision on the following grounds:

  1. The trial judge erred in relation to findings about the controlling and coercive conduct the father manifested in relation to the children;
  2. The orders unfairly affected the children’s loving relationship with the father; and
  3. The trial judge’s judgment did not adequately justify the orders or explain the findings up which those orders were based.

The first ground could not be sustained for two reasons. First, the father’s submission in support of this ground was incoherent. It contained reference to his affidavit which alleged instances of family violence that occurred prior to the 2013 consent orders. But it also criticised the trial judge for making factual findings on the basis of evidence alleging conduct that pre-dated the 2013 orders. Accordingly, it was determined that the father’s submission contained internal consistencies, and thus could not establish a proper ground for appeal.

Nor did the second ground hold up to the Full Court’s scrutiny. The trial judge acknowledged that the orders substantially limited the father’s time with the children, thus adversely affecting his father with the children. Nonetheless, while the orders might cause distress to the children in the short term, their long term interests were best served by limiting the father’s time. This was determined on the basis that supervised visitation would mitigate the negative effect the parties’ conflict had upon the children. The negative effects contemplated partly refer to the father’s tendency to get the children involved in the parties’ dispute. This consisted in potentially coercing the children into adopting the father’s negative view of the mother.

With respect to the third ground: the Full Court determined that the trial judge had adequately explained the orders and supporting factual findings. The trial judge made uncontested findings about the father’s lack of insight into children’s best interests. These findings included:

  • criticisms the children made about their mother;
  • his inability to consider the possibility that the criticisms might be false;
  • the father’s explanation of this phenomenon as a consequence of the mother’s poor parenting; and
  • his lack of insight into his conduct causing the children to form a negative view of their mother.

Moreover, the trial judge left open the possibility of supervision being reconsidered, subject to undergoing the relevant therapeutic interventions.

For these reasons, the father’s appeal was dismissed.

Supervised Visitation: When Might It Be Implemented for the Longer Term?

It is well-established that supervised visitation is generally undesirable, especially in the long term. What seems to make this case exceptional, then, is:

  • the father’s lack of insight into his tendency to involve the children in the parties’ conflict;
  • the fact that this may have caused them to adopt a harsh, unjustified view of their mother.

Accordingly, feuding parents would be well advised to take all steps necessary to limit their children’s involvement in parental disputes. The risks of failing to do so include adverse factual findings and the prospect of substantially less contact.