Jacobs & Kirby and Anor 2014 FamCA 231

The case involved a father who had a history of erratic supervised visits (contact limited involvement).  The child had been referred to the child protection Department.  The ICL submitted that it was difficult to conclude that the child would benefit from being reintroduced to her father during the next 12 months.  The mother applied for sole parental responsibility.

The child protection Department proposed that the Court make an order that the father’s parenting of the child be subject to supervision of compliance by the Department for 12 months, including specifics of how supervision is to occur such as by home visits, monitoring of medical appointments, parenting courses and the like and to include a broad proposal that each parent “otherwise comply with all reasonable directions” of the Department’s representative in relation to the care of the child.  The Department’s proposal did not make clear what time the child would spend with her father either during or at the expiration of 12 months.  The order was opposed by the Independent Children’s Lawyer but agreed to by the mother.   The Independent Children’s Lawyer submitted that there could be tension between the supervision order proposed by the Department and an order granting sole parental responsibility to the mother.

The judge quoted from the Full Court, “A parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child’s interest that the parent so do. … It would not be, in our view, a proper exercise of the “welfare” power for a court to place limits on a parent’s conduct unless it could be demonstrated that those limits are necessary for the welfare of the child.”

The judge rejected the proposal that the “supervision orders” sought ought to be made either as a parenting order or as an order relating to the welfare of the child, as the judge was satisfied that the mother would seek support services if she needed them and would cooperate with such services.

The judge granted sole parental responsibility to the mother.