About supervised contact

Supervised contact involves a third person having oversight of, and responsibility for, ensuring the safety of the child when visiting with a parent or during a changeover from one parent to the other. The Family Court of Australia (the Court) may make orders for such supervision in response to a variety of circumstances. Reasons for the making of orders for supervised contact through a children’s contact center, or an approved private arrangement, may be broadly classified as one of child protection or child welfare. With decisions based on the best interest of the child, orders may consider the risk of domestic violence, parental conflict, the risk of child abuse or neglect, parental illness or substance abuse, concern for parenting skills or capacity. Supervised contact has also been used as part of a process to facilitate the reestablishment of relationships between a child and parent who have not been together for some period or when there has been interference in the relationship due to the custodial parent obstructing or denying access to the noncustodial parent (e.g. Jamal & Akbar, 2017; Morton & Macky, 2018). An order may involve establishing a safe transfer of children from one parent to the other where the animosity between parents may present a risk to the child. This is referred to supervised changeovers. Importantly, the reason for making such orders will impact on the nature and extent to which access is ordered and whether the transition to nonsupervised access or private supervision is included in orders.

Interim orders for supervision, which most frequently involved visitation within a children’s contact center, may be made while awaiting an assessment involving allegations of risk behaviour or determining the capacity of a parent to carry out relevant and appropriate parenting responsibilities. When the Court finds that there is an element of risk to the child from unsupervised contact, but there is recognition of the value in enabling a relationship with the noncustodial parent, the Court may provide for interim supervised contact. The nature and frequency of supervised contact is shaped by individual case circumstances. Importantly, as set out in the Family Law Court Guidelines, “Children’s Contact Services aim to minimize a child’s exposure to conflictual or unsafe situations,” providing a neutral and supportive environment that ensures an appropriate level of supervision based upon a risk assessment and information provided by the Court¹ (A Guideline for Family Law Court and Children’s Contact Service, 2007, p. 1).

It should be noted that the location for such supervision may be center-based or within the community, again depending on the individual case. The need for such flexibility was highlighted by Kiely, O’Sullivan, and Tobin (Reference Kiely, O’Sullivan and Tobin2019) who reported that fathers found not being able to do their normal outdoor activities with their children made visits more difficult. In such cases, supervised contact visits moving into the community provide a more satisfactory experience. A further consideration is the extent to which older children, who have a greater awareness of the issues associated with supervised contact, will find the center-based environment more challenging.²

When a referral is made to a contact center, the staff will be informed of any matters which impact on the management of risk as identified by the Court. The orders themselves will generally spell out the frequency of contact, days or times, whether phasing out can occur, and the responsibilities of the parents. Contact centers can refuse or withdraw services in circumstances such as when a parent exhibits aggressive behavior or fails to appear at agreed visitation times. Where supervision is to be carried out by a private supervisor (such as a grandparent or other agreed person), the Court often requires a set of specific undertakings with respect to that role. Finally, the contact service may be asked to provide a report to the Court which sets out when services were provided, a record of any observations and the compliance of parents with an agreement with the service.

About contact centers providing supervision services in Australia

Within Australia, there is a combination of federally funded and nonfunded services. The federally funded services, which are accountable to the Commonwealth Attorney General, must operate in a manner consistent with the Children’s Contact Services Guiding Principles Framework for Good Practice (Attorney General’s Department, 2014). While the guidelines provide that the decision to accept an application into the service remains with the contact center, applicants should not be refused service solely based upon the ability to pay any relevant service fees. As of 2016, there were 37 federally funded centers with 13,000 clients (KPMG, 2016). The Australian Children’s Contact Services Association Inc. (ACCSA, 2009) acts as a membership-based umbrella organization for federally funded services. As members, services are required to comply with ACCSA’s standards and code of ethics. This is a self-regulatory regime.

Of the nonfunded services, some are provided by nongovernment organisations, sometimes in combination with other support services, and the remainder may be privately owned services. Nonfunded services operate on a fee for service basis. It is worth noting that none of the recent studies have identified the actual cost of such services to the individual despite the potential impact on affordability. Neither of these types of contact services are eligible to become members of ACCSA and are unregulated. KPMG (2016) reported that at that time there were 28 such services with approximately 36,000 clients. This suggests that a significant proportion of those accessing supervised contact in some way are more likely to be using nonregistered, unregulated services.

The absence of a uniform regulatory regime for agencies providing such services has been a matter of some concern. ACCSA has consistently lobbied for the introduction of national regulatory arrangements which set out minimum standards for services and those who work within them, irrespective of whether they are government-funded. The recent review of the Family Law Act by the Australian Law Reform Commission (ALRC, 2018) gave some acknowledgement of the supervised contact service regime as part of the Court’s and complementary service systems. In its submission to the ALRC, ACCSA (2018) highlighted that parents and children often have complex issues and, as a consequence, contact services operate in an environment in which there are substantial risks for both users and workers. It is for this reason that ACCSA argued that any organisation or agency purporting to offer contact services should be subject to an accreditation system supported by funding that enables the employment of suitably qualified staff.

In operational terms, the contact center is focused on processes that are designed to minimise the risk of conflict and maximise the safety of the child and parents. Subject to Court orders, this is likely to include specifying processes for dropping off and picking up children, as well as immediate oversight of the visit. While contact centers are not intended to provide therapeutic services, they may provide some guidance on parenting practices in a relevant situation. For example, it is expected that staff are trained to detect any potential risk to the child, actions that should be taken in such circumstances and the preparation of observational records.

A selection of issues identified in the relevant literature

The Court operates in a highly contentious political, legal and human environment. While the best interest of children remains the core and over-riding consideration for the Court, this does not mean that it is an easy task to determine. Cases often involve competing claims, lacking in what might be considered traditional factual evidence, and moving goalposts. At the same time, some of the issues which have been identified in relatively recent reviews (KPMG, 2016; Schindeler, Reference Schindeler2019) are beyond the control of the Court itself.

A critical element in the making of orders for supervised contact is the way in which risk is determined. Depending on the allegations, the Court is informed by the views of family report writers and expert witnesses appointed by the Court, by child protection workers, by police, and practitioners previously involved with either of the parents. Analysis of cases found that the number of individuals and agencies involved in advising the Court on potential risk may be itself problematic. It is not unusual for there to be a lack of consensus between those involved due to different disciplinary approaches and methods of risk assessment. The Court is faced with weighing up competing judgments in the absence of any consistent or universally accepted approach to determining risk, particularly in the case of allegations of child sex abuse (Schindeler, Reference Schindeler2019; Schultz, Reference Schultz2014). For example, in the recent case of Morton and Macky (2018), the single expert challenged the methods and findings of the Joint Investigation and Response Team interview process, and in the case of Mayer and Myer (2018), the judge expressed “grave concerns” about the processes adopted by those representing Child Protection services and, particularly, the lack of transparency in decision-making. This has significant implications for the judicial assessment of risk and those who then may be subject to supervision orders.

Problems that have been identified include long delays in accessing contact center services, costliness and noncompliance with orders by the custodial parent (Commerford & Hunter, Reference Commerford and Hunter2015; KPMG, 2016). For those living in rural areas, access to supervision services may involve having to drive considerable distances, as well as long wait times to access a service and lack of access to an ACCSA regulated service. The Allen Consulting Report (2013) found that approximately 13% of clients waited over 19 weeks for a supervised changeover session. Some 3 years later, the KPMG (2016) report to the Attorney General’s Department highlighted that the excessive wait times for children’s contact services has the potential to have a negative impact on the ability to “develop and maintain beneficial relationships with both parents” (p. 10) and significantly push parents into unregulated for-profit services. Supporting this statement, the report notes that wait times to access a contact service is in some cases up to 6–9 months.

Supervised access in the context of interim orders is intended to be for a limited period to enable the risk factors to be resolved, to enable final orders to be determined, and to move to unsupervised contact between children and the noncustodial parent when there is no significant risk to the child. As noted by the Full Family Law Court in the case of Atkinson & Atkinson (2017):

However, as observed by Commerford and Hunter (Reference Commerford and Hunter2015), there have been gaps in previous studies with respect to the appropriateness of supervised contact arrangements. For example, there is often a lack of acknowledgement of the impact of custodial parents on the behaviour of children having such contact. They suggest that when a service presumes a matter or element of guilt of a noncustodial parent, there may be a failure to consider the custodial parent’s influence which is expressed as a negative reaction by children (e.g., Goldman & Goldman (No 2) [2017] FamCA531; Mayer & Mayer (no.2) [2018] FamCA910). This is consistent with the observations of Bowen and Fry (Reference Bowen and Fry1995, p. 13) some decades earlier when they noted that:

A similar view was expressed by the Lone Fathers’ Association of Australia (2018) in responding to the ALRC review of the Family Law system. This can be made worse by long delays in accessing services and delays in returning to Court for final orders.

In its 2016 study, KPMG found that contact center services expressed concern that clients, including children, experience considerable stress when there are long wait times despite a court order providing for supervised access. This can involve wait times in excess of 4 weeks. To cope with the challenge of long delays due to the level of demand, Western Australian and Family Law Court judges and magistrates collaborated to implement a framework that limits access to supervised contact centre services. In this arrangement, clients are entitled to 2 hours per week for no more than 10 weeks, after which access is limited to once a month or every 3 months. The reduction has been justified and based solely on the principle that contact supervision should be temporary in nature and used only in the absence of an ability to self-manage (KPMG, 2016). A criticism can be made of this policy as it fails to consider exacerbating circumstances, such as the time it may take to get a follow-up court date, or the time it may take to have relevant assessments conducted, or the time it may take for parent and child to develop a relationship which has previously been estranged (e.g., Merritt & Merritt [2018] FamCA 1107; Newport & Newport [2018] FamCA 472). In any of these circumstances, a child and parent may be denied regular contact due to systemic issues outside of their control, which can, in turn, further undermine the relationship. This can be particularly concerning if the parent presents no demonstrable risk.

The duration of supervised access is a contentious issue, with some lack of clarity as to whether it is intended to be an ongoing and permanent or long-term arrangement (Birnbaum & Alaggia, Reference Birnbaum and Alaggia2006). Commerford and Hunter (Reference Commerford and Hunter2015) observed that there is limited research with respect to the impact of supervised contact for children, and the extent to which parents are able to transition to self-management or resolve matters of risk associated with parental conflict. While there are differences between international and Australian systems, neither require any form of systematic review once final orders are made, particularly when supervised access has been ordered for an indeterminate period. This may not only impact on the incidence of multiple hearings challenging initial final orders, but also compromise the potential to resolve any issues in a timely manner. As concluded by Commerford and Hunter (Reference Commerford and Hunter2015), the lack of evidence of the nature and quality of outcomes after the cessation of supervised time remains problematic. This applies equally for both interim and long-term or indefinite supervision orders.

The extent to which the child contact centers have a role or responsibility for assisting parents to move to self-management needs to be understood. To illustrate the problem, when parental conflict presents a risk of emotional and psychological harm to a child, the order for supervised visitation may be a consequence of such conflict rather than abuse directed at the child. In this context, contact supervisors have, as their primary responsibility, ensuring the safety of the child rather than managing any reconciliation between parents. Accordingly, the nature of orders, themselves, may be designed to limit the child’s exposure to parental conflict and reflect a preference by parents not to have contact with one another as a separate issue from any demonstrated risk of violence directed toward the child. Consequently, the extent to which self-management is achievable is not a useful indicator of the effectiveness of the contact center or supervised access role. Importantly, the primary responsibility of the contact center is to protect the well-being of the child. For this reason, it is critical that no actions be taken that could be perceived as compromising the corollary responsibility for maintaining supervisory neutrality.

A complementary narrative to acknowledge is that associated with gender. The Family Law Act and the Guidelines underpinning it do not take a position about gender preference. In a post separation environment in which child custody is the issue in contention, the Court must prioritize the best interest of the child. At the same time, embedded in the Act is a recognition that noncustodial parents should have a role in their child’s life. The nature and extent to which this plays out is then determined by the Court based upon individual situations. However, this does not mean that different narratives in the public sphere do not influence decision-making or the perceptions of those presenting to the Court. An expression of such a narrative is what Tinder (Reference Tinder and Maclean2007) described as “the Dangerous Dad and the Malicious Mother” or Easteal, Prest and Thornton (Reference Easteal, Prest and Thornton2019) described as the “good mother.” Each of these positions has been promoted by opposing interest groups. However, the examination of the cases heard by the Court and the reasons for parenting orders challenge the divisive rhetoric that may appeal to different stakeholders.

Review of referrals by Family Law Court 2016–2019

Over the 28-month period, orders for supervised contact were applied to fathers in 70 (68%) of cases and 33 (32%) applied to mothers. Of those orders involving fathers, 33 were incorporated in interim orders and 37 (52%) were part of final orders. Among orders involving mothers, 21 (63%) involved final orders compared with 12 (35%) involving interim orders. This pattern is considerably different from that indicated by figures cited a decade earlier in which supervised contact formed part of interim orders at twice the rate as final orders (Commerford & Hunter, Reference Commerford and Hunter2015, p. 7).

One critical feature of the orders which has not been well documented in previous studies is the extent to which such orders include provision for moving to unsupervised contact. The inclusion of such provisions is significant in terms of reflecting the view of the Court that ultimately the need for supervision will be removed, suggesting that the nature of risk or reasoning underpinning the need for supervision can be addressed. This is particularly relevant from the perspective of the reasons given for the initial supervision requirement. A pattern analysis of orders based on gender reveals a difference in the nature of risks presented by mothers and fathers. Similarly, differences emerge when considering the issues and outcomes associated with orders made on an interim or final basis.

Theme 1: Conditions of supervised access involving fathers

Of 33 fathers subject to interim orders, 24 (72%) were required to have supervised visitation provided by a children’s contact center. In eight cases, provision was made for private supervision arrangements of which four were able to transition from the contact center to private supervision. Of those with a potential for such transitions, two were subject to conditions and two provided for supervision by either a paternal grandmother or an agreed private supervisor. In one case, orders provided for transitioning directly to unsupervised access.

Of the 37 cases involving final orders, orders provided for 15 (40%) to transition to unsupervised access. Of these, four were subject to conditions associated with participation in therapy and/or evidence of clear drug tests. In three cases, the choice of unsupervised access was left to the child on reaching an age of 10 and older. Some 10 cases allowed for solely private supervision and an additional 4 provided for initial supervision in a contact center before transitioning to a private arrangement for supervision. Significantly, four cases employed child contact center supervision as part of a reunification process between the father and child when there had been a long period of no contact. Broadly, it can be inferred that unless orders specified to the contrary, that supervision is for an indeterminant period. Of those on final orders, this was some 21 of the 37 cases. This then has significant ramifications for the capacity of contact centers to meet what will ultimately be a cumulative demand.

In eight cases involving final or interim orders, the Court provided for a reapplication process and two were subject to review by a suitable expert. A second search was made to identify whether there was evidence of any follow-up or changes in the orders over the study period. It was found that there had been four attempts at having changes made to the orders, all of which were unsuccessful, with no evidence of new or additional final orders in these cases. In three cases in which subsequent hearings provided for the possibility of moving to the unsupervised visits subject to evidence that specified conditions had been met (e.g., mental health, parenting courses, drug and alcohol test), there was no evidence of follow-up hearings taking place.

Dependent upon the reason underpinning the need for supervision, the frequency of such contact was quite variable from just four times a year to several times a week or alternative weekends. The pattern of reasons discussed below provides a basis for understanding the intensity or limitation on access, even when supervised. While the Court provides an extensive explanation of the reasons for the orders being made, the common denominator across most cases is the complexity of claims, counter claims and the nature and reliability of evidence presented.

In summary, supervised access was primarily prescribed as being at a contact center whether in final or interim orders. The duration of such orders was more difficult to determine with certainty. This is, in some part, due to the fact that in one-quarter of the cases involving interim orders the Court clearly stated that unproven allegations required testing in a trial or the need for a review by a relevant expert. Focusing solely on those cases in which there is no specific timing for future unsupervised access included in the orders, it was clear in that there was an intention that such contact would continue unless conditions changed significantly. This is inclusive of those cases in which contact was limited to between two and six access visits per annum.³

Reasons for supervised access involving fathers

In considering the role of the contact center supervision, it is important to appreciate the reason for applying such orders. It is not feasible to describe the reasons for decisions in some numeric or quantitative way given the complexity of circumstances that exist. For example, issues of drug and alcohol are variously identified as a single issue, in conjunction with mental health issues and in conjunction with family violence. While the broad types of risk were found in both final and interim orders, the frequency with which such risks were cited by the Court was dissimilar in many respects. Among the final orders involving supervised contact, family violence and the risk of emotional or psychological harm to children were the underpinning reasons more frequently than for those on interim orders for which mental health and unproven allegations were more prevalent reasons.

The Court identified parental conflict as a recurring consideration in both interim and final orders, but how such conflict played out and the implications for parent/child relationships were not adequately described. For example, in some cases, the expression of such conflict played out in the custodial parent blocking visits, even in the face of interim orders requiring it. The Court suggested that in some cases this was justified by the mother as being protective or anxious, despite the absence of any specific demonstrable risks. The consequence was the estrangement of the child(ren) from the father and the need for supervised reunification. In other cases, the parental conflict was expressed through exposing children to the arguments and demonstrable conflict between parents, creating a potential for emotional and psychological harm. Despite the frequency with which family violence was cited, this was not often targeted at children but rather between partners. Thus, while identified as family violence, it is not unconnected with the parental conflict context.

Finally, unless there was an evidenced-based reason for an alternative conclusion, the Court was willing to entertain the revisiting of a case in which there were risks involving mental health, drug and alcohol or parental capacity and there was expert evidence that such risk had been reduced. It was only in those cases in which there appeared to be little likelihood that such an outcome could be achieved that the Court did not explicitly recognise an opportunity for reconsideration.

Theme 2: Conditions of supervised access involving mothers

Of the total cases identified in which one parent was limited to supervised visitation with their child/ren, just under one-third (32%) were mothers. This appears counter-intuitive to the general narrative of risky fathers. Of the 12 mothers with interim orders stipulating supervised visitations, all but 2 required supervision by a contact center. The remaining two cases provided for either no contact or private supervision subject to conditions.

The interim orders for approximately one-third of mothers did not specify a specific time/day or frequency of supervised contact, but rather made this subject to a combination of recommendations of qualified mental health professionals or drug tests and the availability of the contact center. A further two provided for no contact until the trial was progressed. Given the relatively small sample, it is not reliable to draw any significant conclusions, but it was observed that only one case provided for transitioning to unsupervised visitation, albeit day time only.

For the 21 mothers with final orders requiring supervised access, the orders in many cases provided visits under supervision (whether in a center or by private agreement) once per fortnight or once a month. Five of these cases provided for the potential to transition to unsupervised access with evidence of having successfully completed relevant therapy or treatment as verified by a qualified practitioner. The orders in three cases provided for a transition to private supervision following a period of supervision by a child contact center, or in one case the Child Dispute Services. The applicable conditions were similar to those applied to fathers and related to demonstration of reduced risk associated with drug and alcohol issues or the child reaching early teen years and able to make his/her own decisions.

Because the search found 33 cases (nearly one-third of all cases) involving mothers requiring supervised access, it is important not to overstate the ability to generalize more broadly. Nonetheless, it is possible, without exaggeration, to recognise that the role of the contact centers in supervising access is made challenging by the conditions and the circumstances that individuals bring to the visits, as acknowledged by the Court.

Reasons for supervised access involving mothers

An analysis of the judges’ stated reasons for such orders found that there were some consistencies across the cases. Of those mothers on final orders requiring supervised access all, but two, involved some reference to mental health issues, emotional abuse or psychological abuse of the child. Three would have an opportunity to transition to unsupervised access conditional on treatment with confirmation from a suitable specialist professional. Of the remaining, two had previously disengaged with the child. Of those on interim orders, emotional abuse, mental health and, in one case, assault were the reasons for requiring supervision. Drug and alcohol abuse were also cited in four cases overall, and each of these cases were in concert with mental health issues.

While family violence and conflict were not identified as was the case with fathers, the presence of disengagement from the child, as well as uncontested outcomes, were not found among the fathers. Generally, mental health and substance abuse which were common across genders were the most prevalent reason for requiring supervised contact. This, then, carried the implication that the Court would review decisions once there was appropriate evidence that these issues had been resolved.

Theme 3: Transitioning to from children’s contact center supervision

The extent to which supervised visits are intended as a short-term, bridging or long-term arrangement has significant implications both for the parents and children as well as for the contact centers themselves, particularly with regard to demand management and issues of timely access for parents. Orders, as discussed above, provided a range of options including transition to private supervision (often by a grandparent and, in some cases, a new partner). In such cases, there was also the potential to transition to unsupervised access.

When considering the consequences for contact centers, a primary difference between the cases for fathers and mothers was the extent to which it was anticipated that a transition could be made to private supervision or unsupervised contact. Orders for mothers, whether as interim or final orders, were far less likely to provide for such transitions. Thus, while numerically less mothers than fathers were subject to supervised orders, they were also less likely to be provided with a planned transition to unsupervised access with their child. There is little data from previous studies which provide evidence of the implications for long-term supervision or service provision.