This brief is based on the following paper:
Schindeler E (2019). Family Law Court orders for supervised contact in custodial disputes – unanswered questions. Children Australia 44: 194–201. https://doi.org/10.1017/cha.2019.42
What problem is your research designed to address? Why is this significant?
A key aim of the Family Court of Australia in the case of custodial disputes between separated parents is ensuring the best interests of the child. This means protection of children from the risk of psychological or physical abuse, neglect, and violence while providing for the opportunity for a meaningful relationship with both parents. However, the Family Court operates in a highly contentious political, legal and human environment. Determining the nature or extent of any risk in the context of competing claims in custodial disputes is often fraught with a lack of factual evidence and conflicting assessments by expert witnesses (Schindeler, 2019). It is relatively common in such cases for the Court to issue orders requiring access by a non-custodial parent to the child to be subject to supervision (generally by a funded supervision centre) on an interim, transitional or permanent basis. The extent to which such orders are employed, under what circumstances and the potential implications for the best interest of children was the concern for this study.
How did you conduct your research?
Using the AustLII database, all cases involving custodial disputes between separated parents heard by the Family Court, including appeals considered by the Full Court, between January 2016 and April 2019 were reviewed to identify those in which supervised contact formed part of interim or final orders by the Court. This process identified 103 cases in which supervised visitation and changeovers were included in orders. This involved 172 children from as young as 2 to as old as 17 years of age. A thematic analysis was undertaken to identify emerging themes with respect to the conditions, reasoning and application of such orders.
What were your major findings?
Three themes emerged associated with the duration of orders, the reasons for orders, and the critical implications for children and supervised access centre providers. The provision of supervised access orders on a permanent or indeterminant period emerges as an issue. Of all parents subject to supervision orders, 63% of mothers and 52% of fathers were subject to long term supervised access. This differed considerably from that of a decade earlier when supervised contact formed part of interim orders at the twice the rate of final orders (Commerford & Hunter, 2015; Bala, N., Saini, M., & Spitz, S. (2016). This then has major implications for the capacity of supervision providers to meet ongoing demand and for non-custodial parents to access and afford ongoing contact costs. Long delays in accessing a service as a consequence of the level of demand was noted by the Court and the concern for the implications for maintaining any relationship between the child and parent (Saini, M, Newman, J., & Christensen, M. (2017).
Mental health and substance use are main reasons for making orders for supervision for both fathers and mothers. However psychological abuse was more often cited in cases involving mothers while violence toward the other parent (not the child) was more often cited in cases involving fathers. This can present significant challenges for supervisory centre staff who are not trained medical, mental health or therapeutic practitioners. Because the cases heard by the Court rarely heard the voice of the child (despite the presence of an Independent Children’s Lawyer), particularly in appeals seeking changes to supervision orders, it was not possible to determine whether such controlled access was beneficial from the child’s experiential perspective.
What does your research mean for policy and practice?
Given the critical role that supervised visitation and the role of child contact centres have as key tools of the Court, it is timely to focus on the nature of the unanswered questions.
In moving forward, additional attention is needed not only to the resourcing of supervision services to be better able to respond to demand, but equally to consider the viability and effectiveness of service models which are not centre based when long term or indeterminant supervision orders are made. This means there is a priority need to understand the extent to which children subject to such contact restrictions enjoy the benefit of parental relationship and the extent to which parents are able to successfully transition to unsupervised access, whether provided for within orders or as a consequence of rehearing by the Court. While the Court is transparent as to the reasons for making such orders, the Court also needs greater access to evidence as to the outcomes for parents and children given the current trend toward the reliance on supervision in resolving custodial disputes.
Bala, N., Saini, M., & Spitz, S. (2016). Supervised access as a stepping stone rather than a destination: A qualitative review of Ontario services & policies for assisting families transitioning from supervised access. Queen’s Law Research Paper Series 2016-085. Canada: Queen’s University Faculty of Law.
Commerford, J., & Hunter, C. (2015). Children’s Contact Services Key Issues, CFCA Paper No 25 2015. Melbourne: Australian Institute of Family Services. Retrieved from https://aifs.gov.au/cfca/publications/childrens-contactservices
Saini, M, Newman, J., & Christensen, M. (2017). When supervision becomes the only plan: An analysis of long‐term use of supervised access and exchange services after separation. Family Court Review, 55(4), 604–616. doi:10.1111/fcre.12307
Schindeler, E. (2019). Assessing allegations of child sex abuse in custody disputes. Children Australia, 44(1), 5–12