Parenting Orders – Domestic Violence – Family Separation

Parenting Orders – Domestic Violence – Family Separation

Parenting Orders – Domestic Violence – Family Separation Law Firm

Johnathon and Sue were in a de facto relationship, and had a young child, Alexandra aged 4. To the outside world they seemed a happy and successful couple with a very comfortable lifestyle.

Sue came to see us shortly after she separated from Johnathon following a domestic violence incident. She had left the home and taken Alexandra with her. She had been a ‘stay at home’ mother, and had always provided the primary care for Alexandra. Alexandra attended preschool 3 days a week, and was due to start school the following year.

Following her departure from the home, Johnathon had sent Sue about 20 messages threatening that he would take Alexandra from her. Sue provided us with a detailed history of the domestic violence, much of which had occurred in Alexandra’s presence although he had never been violent directly to Alexandra. She further indicated that Johnathon drank alcohol in excess, and the violence was at its worst when he was drunk. During the relationship Sue had been too fearful to contact the police to report Johnathon’s behaviour. She had received treatment for some of her injuries but had never disclosed the true cause of the injuries to anyone treating her.

When she consulted us, we first assisted Sue with ensuring her and Alexandra’s safety in their immediate circumstances. She was in fear of Johnathon, and what he could do to her and/or Alexandra. She had already obtained an Apprehended Violence Order with the assistance of the police immediately upon separation. One of the main considerations was what procedures, if any, she could put in place to ensure Johnathon could not remove Alexandra from her preschool. Sue was in a much better position than many people leaving domestic violence situations as she had access to significant finances to allow her to support herself and Alexandra. She decided to move well away from the immediate area, and enrolled Alexandra in a new preschool. However she remained highly concerned about their safety as she believed Johnathon had the resources and determination to locate her. We advised her about the risks that separation poses, as violence often escalates significantly on separation. Johnathon had continued to make veiled threats by text message to her, and had been harassing members of her family.

Given the circumstances, Sue could obtain an exemption from the standard requirement to engage in mediation prior to Court proceedings. After considering our advice, Sue decided that she needed to obtain orders giving her sole parental responsibility and that Alexandra lived with her. Her difficulty was what, if any, time Alexandra should spend with Johnathon. We explained that the two primary considerations for the Court in determining a child’s best interest are firstly, the benefit to the child of having a meaningful relationship with both parents, and secondly, protecting the child from harm or being subjected to, or exposed to, family violence. Of those two considerations, the latter takes priority if there is conflict between the two considerations. Sue was unsure what Johnathon could offer Alexandra in his current state, but she understood that it is very rare for the Court to order one parent spends no time whatsoever with a child. She decided to propose that Johnathon should spend supervised time with Alexandra at a formal supervision centre as this provided her and Alexandra with safety but still allowed Alexandra to see her father, as Sue knew she loved her father.

In his Response, Johnathon sought that Alexandra spend time with both parents on an equal shared care basis.

At the interim hearing the Judge was satisfied that Johnathon presented a risk to Alexandra, and made Orders on an interim basis as sought by Sue at a contact centre. After realising he would only be able to see Alexandra in a supervised setting, Johnathon proposed a number of people as potential supervisors, including his mother, his sister and his friend. He had provided the Court with evidence, in the form of an affidavit, from his mother. She said she did not believe he had ever perpetrated violence against Sue, and that he had no limitations as a parent. The Judge did not consider she was an appropriate supervisor in those circumstances. Johnathon did not give evidence from his sister or his friend. We had anticipated this approach from Jonathon and so in her affidavit Sue detailed the serious problems she had with these people. The Judge therefore did not consider that either of these people were appropriate supervisors.

Child contact centres are located throughout the country and accommodate children spending time with a parent, although only usually for very limited periods.  The contact centres have trained supervisors who are present throughout the visits and provide minimal interference. The centres have play areas, equipment and toys which a parent can use to interact with their children. At the end of the visit the centres write a report detailing the interactions between the parent and the child. Contact centres dictate the time that each parent arrive so as to minimise any interaction between the parents. Parents who wish to use the centres must both complete an intake. The centre can then exercise discretion in accepting parents for placement after the intake process.  The cost of attending at the contact centre  is reasonable with both parents usually sharing the associated costs. Discounts are given to those receiving Centrelink benefits. Unfortunately there are some significant delays in obtaining placement at these centres. Where people have the financial means, there are private supervision agencies available. Here, Sue thought a structured contact centre would be the best option to start with.

The visits proceeded well and all reports from the contact centre made positive comments about Johnathon’s interactions with Alexandra. Johnathon also completed a number of parenting and anger management courses, and also started seeing a psychologist on a regular basis. However, Sue suspected this was all ‘for show’ and had been prompted by his lawyer. She had yet to be convinced he had changed sufficiently to warrant any unsupervised time with Alexandra.

The difficulty for Sue was what she would propose on a final basis as we had advised her that supervised orders generally are only made for a limited period. Supervision is typically treated as a stop gap measure, put in place until the  Court and/or the other parent is satisfied that the risks are mitigated. As part of the proceedings, Sue and Johnathon obtained an expert report from an independent clinical psychologist. Sue decided she would take direction from the advice of a professional, which she then did to propose a final arrangement which graduated slowly to unsupervised time. After some negotiations, and lawyer assisted mediation, Sue and Johnathon reached an agreement along the lines of what she had proposed. Importantly for Sue, she retained sole parental responsibility which meant she did not need to consult Johnathon about major decisions as any direct communication with him caused her significant fear. She agreed to notify him of her intended decisions and consider any response he had before making a final decision. All changeovers were done in a public place where Sue felt safe, and some of them involved third parties doing the changeover for them.

It is important to highlight that the need for supervision is not always premised upon a risk issue. There are some cases where a child has not spent time with a parent for a significant period of time or has not been introduced to a parent at all. In these cases supervision is perhaps appropriate so as to allow a child to feel more comfortable in the presence of their parent. Supervision may also be appropriate where the parent being supervised has had numerous allegations made against him/her which are denied. In those circumstances, supervision can potentially protect that parent from further allegations being made against them.

If you have concerns about your child’s safety and well being it is  important to act in a protective manner, and it is important to obtain legal advice. Sarah Bevan Family Lawyers will help you address the issue and will advise whether supervised time might be appropriate for your family, and if so which type.

For further information or assistance please contact Sarah Bevan Family Lawyers.

All names and identifying features have been changed for privacy reasons in our case studies. These case studies only have basic detail in them, and you should always bear in mind that every case is unique. These case studies are examples only, and cannot be applied to your circumstances without consideration of all relevant facts.