In the case of Garraghan & Westerfield (No 2) FamCAFC 96 ( 6 June 2014). Ryan J, exercising appellate jurisdiction allowed the father’s appeal against an interim order for supervision of his time with his young child.

The parties had never married.  They commenced cohabitation in 2006 and separated in May 2011.  The child was an infant when they separated.  The parties separated after the father assaulted the mother. The child had lived with the mother ever since.  Since the separation until June 2013, by agreement the child spent time with the father, supervised by the maternal grandparents where the child and mother lived. When the father applied for parenting orders the mother stopped contact.  In 2011 the father pleaded guilty to an assault on the mother.  The mother disputed that the paternal grandmother was a suitable supervisor, asserting at [21] that she had a poor relationship with the father’s parents.

The interim hearing had been heard by Judge Monahan he had ordered that the father spend four hours with the child on Saturdays supervised by a contact service one week and an accredited supervisor retained by the father or by the paternal grandmother or mother or her nominee on the other week and Wednesdays supervised by an agreed person or the mother or her parents. The father did not retain an accredited supervisor.  Instead, the father nominated the paternal grandmother to be the Wednesday supervisor.  Ryan J said at [14]

“…the father is seeking that supervision on the alternate Saturdays (which is supervised by the paternal grandmother) be allowed to occur at a place other than a defined public place (being a public play centre). The father wishes to be supervised with the child at home. In relation to Wednesdays, the father is seeking time with the child to be supervised as agreed, or failing agreement, by the paternal grandmother.

Ryan J stated at [41]-[44]

“…The central challenge raised by ground 1 of the appeal is how could the  primary judge determine the nature of supervision without considering the nature of the risk and other matters referred to in the ground [of appeal]?  It is common ground that his Honour did not evaluate the evidence concerning risk or determine what would be required from a supervisor…

“…the effect of his Honour’s orders is that the paternal grandmother may supervise in some settings but not others.

“ It is accepted by failing to evaluate the asserted risk, his Honour failed to have regard to a pivotal consideration.

“It follows that ground 1 is established.”

At [46] Ryan J said

“On the mother’s behalf, a submission was made that it was open to the primary judge to determine that the paternal grandmother was an appropriate supervisor for time that took place in a public location but not elsewhere. Again, while this is undoubtedly correct, the primary judge did not explain why the paternal grandmother could supervise in one setting but not another. The importance of this issue in the proceedings required that the primary judge expose his reasons for what would otherwise appear to be inconsistent orders.”

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