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My case originally was filed in the Magistrates Family Court of Western Australia and has now been t…
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  •  · Dear Riley, It appears that you would because the only documents you are otherwise permitted to file…
When seeking a Subpoena, does it need to be in relation to an 'open case'? I'm embarking on an 'Appl…
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  •  · Elisabeth HA thank you but custody orders were finalised via consent in 2019. Since then, the situat…
American mother of dual citizen children and with permanent residency in Australia retains the child…
What area of the Family Law Act the court gets its authority to force drug testing?
What is the process to have the courts take action against the other party for perjury? I have put i…
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  •  · I guess the point is the process does not work.   The Court may decide for itself or upon applicatio…
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Hi,I have a question, I have my 3rd directions hearing in early Feb and the OP still will not supply…
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Dear Riley,

It appears that you would because the only documents you are otherwise permitted to file without leave relate specifically to the FVO (if I am to read the thread post correctly).

If you are seeking orders at the next direction's hearing, you can simply ask for leave to be granted.

If you intend to file an Application in a Case, which by the sounds of it you would because you already have proceedings on foot, then you would write in both the section of the document which asks you to list what interim and final orders you seek, an order to the effect that "Leave be granted to the Applicant to file and serve her Application in a Case for Property Orders filed [insert date]"

If you are the Respondent in the main proceedings, then simply substitute the word "Applicant" for "Respondent". 

In the event that you are doing this on the papers as opposed to making an oral request, just prepare a short affidavit that explains why you are filing for property orders.  Outline a brief chronology of the relationship, history of correspondence to the other side which has gone unanswered and a summary of the main assets.

Good luck!

 

Kind Regards,

Gayle Li

 

Dear McQui Lawyers,

Apologies for the delayed response! 

The WA courts have confirmed that property is to be filed in Brisbane as my court proceedings are now in FCC in Brisbane QLD as you had said. So then my question is, would i be breaching my court order number 8, that states:

"Save as for the documents to be filed under Order 9, neither party is permitted to file or serve any further document without first obtaining leave from the court". 

 

Do i need to obtain leave from the court to file and serve my Initiating Application and supporting documents for Property Settlement?

Kindest Regards,

Riley

Dear Riley,

In answer to your first question, the witness statement you provided to the police would not be sufficient.  Although both are treated as written evidence, an affidavit needs to be sworn and witnessed in front of an authorised person i.e. solicitor, JP, Registrar of the Court etc.  In criminal proceedings, a witness's statement is treated as evidence to support an element of an offence and usually only requires the person to sign it.  Where it is to be relied upon in court, the witness is usually "sworn in" first and then their statement is tendered as evidence.  An affidavit is already sworn and essentially sets out the evidence the writer would be prepared to give under oath in court.  Because it is already sworn and witnessed, the court will treat it as evidence.  This is why in interim hearings where matters are determined "on the papers", you do not get the opportunity to cross-examine (that only happens at final hearings).  When writing your affidavit, use dates, times for events and if you refer to any conversations, state the words which were spoken (at least as best you can).  You will annex to your affidavit the FVO that has been made. The affidavit form can be found on the Court's website under forms.

As for what is now happening, it may be that the solicitor has not been provided with instructions to respond.  I'm also a solicitor and it is not uncommon for me to receive correspondence only to have my client tell me "don't do anything".  I'm not sure of the time frames involved but it could also be that if you have not filed for property orders within the requisite time frames, you may need to seek leave of the court to do so. You have 2 years from the date of separation in a de-facto relationship and 12 months after a divorce is granted.  Hence if you are married but not yet divorced, the clock isn't ticking (at least with same urgency).  

With respect to mediation, in this instance I would suggest that you file your proceedings for property.  You can seek interim orders to the effect that:

1. within 48 days of the date of these orders, the parties are to attend a mediation before an appropriately qualified, mutually agreed mediator or Family Dispute Resolution Practitioner.

2. If within seven (7) days of the date of these orders, the parties cannot reach agreement as to identity of the mediator, then the mediator shall be selected by the following process:

a. within seven (7) days of the date of these orders, the Applicant will provide the Respondent with the names of three (3) mediators or family law mediation services; and

b.  within seven (7) days thereafter, the Respondent shall select the mediator or mediation service from that list.

3.  The parties are to equally share the costs of the mediation, including the costs of the mediator or mediation service. 

4.  Each party must attend the mediation in person or by telephone and must make a genuine effort to resolve all of the matters in dispute. 

5.  At least 10 days prior to the mediation, the parties exchange a Balance Sheet, identifying agreed and disputed assets. 

There are other orders you can add to this but the above wording is pretty standard.  Although the court may not be willing to make the orders for a while to come, it at least demonstrates your willingness to try and resolve the dispute as quickly as possible.  Brownie points to you!

Finally, well done on trying to seek alternative ways to resolve the matter.  Sometimes though, a person has no choice.  Unfortunately costs is not something you will be able to avoid.  You can however share the load by partly self-representing and partly engaging legal representation for specific events.  If you were to do this, I would recommend if possible still using the same solicitor because that way all you will need to do along the way is update them on what has happened since the last time you spoke.  For example, you can draft your affidavit and have them look at before filing.  

As for where the proceedings are to be filed, I'm not sure why it must be in WA.  If it is to do where the property is located, you can still file in Qld.  If the court deems it should be filed in WA, they can make orders to that effect.  

Hey Danny,

Order 9 states: "In the event that there is any Family Violence Order (whether interim or final) applying to either party then, if not already provided, that party is to file and serve an affidavit attaching a copy of that order or application."

I have a 2 year FVO against my ex, It was a police application so id done a witness statement and gave them all my text messages and photo evidence to support my allegations. Is the witness statement on par with an affidavit?

Ive mentioned starting property proceedings and invited my ex and his solicitor to negotiate 3 times but all three times they've been disregarded. I am exempt from ADR or mediation due to the Family Violence. I would love to try mediation but for one I cannot afford a private mediator and due to it having to be filed in WA, no QLD services can help me. And two, i know for a fact that my ex doesnt want to hand over a single cent, severe financial abuse in our relationship with text messages from him to support that. For example, 2 days before our daughters first birthday he sent me "you've been living off me the past year slut, if you're there when i get home i'm gonna cave your head in". All i asked was that he pitch in $50 to buy our daughter a present. The only money i had at the time was $50 that my sister had sent me.

 

Thanks in advance!

Hi Riley,

What does Order 9 state? 

Is the question of property part of any of the current proceedings?

The first step in my view would be to initiate a mediation process on property.   Have you tried mediation yet?

Added a Digest 

Fairfax & Fairfax [2021] FCCA 636 (30 March 2021)

This is an application for stay of parenting orders filed by the mother so that she could spend supervised time with her children.

Facts:

The court made orders on 27 January 2021 for a recovery order, confirmed the order for the children to live with their father, and suspended the order for the children to spend time with their mother. The order for the children to communicate with the mother remained in place.

The mother sought to stay the orders made on 27 January 2021. She alleged that the father had left the children unsupervised. That matter had been raised by the mother in previous interim proceedings where she argued that the children should live primarily with her given the father’s failure to adequately supervise the children. The circumstances surrounding that issue were that the father was a farmer and the children lived on the former matrimonial home which was situated on the farming property. Due to the mother’s conduct, the father had obtained a Protection Order in August 2020 and the children were placed on that order. The mother had been required to find alternate accommodation other than the farming property.

The mother maintained that the parenting orders were a breach of her human rights and could not be justified in the best interests of the children. She maintained she had been the primary carer for 13 years and was well qualified to care for the children.

The father opposed the stay of the orders of 27 January 2021 the result of which would be that the children would spend time with their mother unsupervised. He submitted that there had been a flagrant breach of Court orders. He relied on the fact that he had written to the mother on numerous occasions through his lawyers and made allegations that she was in breach of Court orders requesting changeover of the children during the time they were being withheld by her however she refused to comply with that request.

He raised a concern that he invited the mother to return the children to him prior to the police executing the recovery order in January 2021 to avoid any distress for the children in police attending their home and removing the children from their mother’s care. The father said the mother refused his request. The mother denied she refused any request.

The father said on 18 December 2020 the Magistrates Court delivered judgment and made a Protection Order for a period of 5 years with the father as the aggrieved person. He deposed that he made numerous attempts to request the mother to comply with the orders made on 17 September 2020 during the time she withheld the children and she refused.

Issue: Should the court grant grant the application by the mother to stay the orders made by the court pending the appeal?

Law:

  • Pursuant to Rule 22.11(1) of the Family Court Rules 2004, the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision.
  • Sub rule 22.11 (2) of the FC Rules provides that if an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
  • Rule 44.10 of the  Federal Circuit Court Rules  2001  provides that “the Court may, at any time, grant, discharge or vary a stay of the proceedings to which an application for an order to show cause relates”.

Analysis:

The applicant failed to establish a proper basis for granting a stay of the orders of 27 January 2021. The court is unable to stay the recovery order as that order has been executed and is now spent. The court remains concerned about the mother’s conduct in failing to arrange a hand over of the children with the father prior to police executing the recovery order. There was ample opportunity to do so. The mother acted contrary to the children’s best interests. She said herself her daughter was distressed and terrified.

Regarding the order the court made to suspend the mother’s time, in giving effect to an order for a stay of the orders made in January 2021  that would enliven Order 3 (k) of the orders of 17 September 2020 and the children would be required to spend unsupervised time with their mother. The court formed the view that it was not in the children’s best interests to be placed in those circumstances as it was likely that the mother would not comply with any order for the children to live with their father and the court remains concerned that the mother would not return the children to their father (yet again). In addition, the court remains concerned whether the children would be permitted to attend school whilst in their mother’s care.

Conclusion: The application to stay the order is hereby refused.

 
This was a bit surprising as there is an exemption for a s60i if both parties agree. Also the court has wide discretion to apply or dispense with court rules.
It makes no sense that the mother’s lawyer would object to parenting as likely to delay financial proceedings as ultimately parenting will be introduced into proceedings.
(There are always alarms bells when a parent only cares about financial and leaves parenting unresolved)
I suspect the judge didn’t want to hear the matter where parties and their representation don’t know what they are doing.
 
Is the court saying that evidence of the expert who ascertained the views of the children is unchallengeable and the foundation of those views and any conclusions cannot be tested?
This appears to be an issue of procedural fairness.
How does the court know that the views are genuinely held and not subject to parental influence or dictation.
The court perhaps should have afforded natural justice advising the applicant that if the application is held to be without merit that costs under s117 would likely be ordered.

As in you made a false report, or someone else did?

 
If the son has POA and the father has no capacity. The POA would cease to function since only an EPOA or Enduring Guardianship can then function. And both are entirely different beasts
GP's short statement was correctly dismissed however I suggest the case should have been put off until a more qualified evidence was submitted (psychologist or psychiatrist) and order such a report.
The FACT is that this was very disappointing in that the % of long duration and expensive cases are believed to be driven by some by people that have cluster B personality disorders and therefore incapable of rational compromise is well known but not researched. The reason is not known however denial of a person access to the legal system due to a disability may be one reason or perhaps the legal system does not want that exposed and the money pit dry up! The use of litigation rather than therapy results in too much damage to the children and society (except for the law societies).
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Former judges and legal support services have expressed their dismay at the "devastating" passage of legislation that will see the Family Court combined with the Federal Circuit Court, with claims survivors of domestic violence could end up "falling through the cracks".

Added a Digest 

Lancefield & Lancefield (No 2) [2020] FamCAC 312 (22 December 2020).  This case concerned an appeal by the father after the court at first instance made orders for the children to live with the mother.  Prior to this, the father had been the primary carer of the parties 2 children since separation in 2017.  At the time of trial, the children were aged 11 and 9. At first instance, the Court found that the father was coercive and controlling which justified a change in residence. The Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) upheld the father’s appeal in part and remitted the matter to be reheard by a different judge.

The facts of this matter revolve around an incident that occurred on 19 February 2018 when the family iPad was activated and via family sharing, the father was able to access the mother’s internet search history which included “how to tie a hangman’s noose”; “how to disappear without a trace”; “how to completely change your appearance”; and “how to disappear from your husband” ([31]). Upon seeing the mother’s search history, the father contacted the mother’s brother on the same day to raise his concerns and a welfare check by police took place.

The mother had been previously hospitalised in respect of her mental health issues but had “capacity to provide for the children’s physical, educational and general emotional needs”([5]).  In April 2018, the parties entered into a parenting plan which provided for the children to live with the father and spend time with the mother, one weekend per month under supervision. The parties were unable to reach agreement about the children’s long-term arrangements and in June 2018 the mother initiated proceedings in the Federal Circuit Court. Interim orders were made by consent providing that the children live with the father, the parents have equal shared parental responsibility and during school term the children would spend 2 weekends with their mother unsupervised.  Time was also made for the children to stay with their mother during the school holiday periods.

The family iPad was linked to the mother’s iTunes account which she failed to disconnect. “Whatever might have been the situation before separation, the issue in the case was whether, post-separation, the father used the iPad to stalk and monitor the mother. And, if he did, what this said about his attitude towards the mother and his behaviour as a role model to the children” ([52]).

On the facts, the Full Court found that it was not open to the primary judge to conclude that the father had stalked the mother.  “The primary judge should have found that the father retained copies of the material that popped up on 19 February 2018 and that after the mother changed her iTunes account, password and email address in February 2018, there was no evidence that any new information of the mother’s appeared on the iPad.”([65]).

([65]) the effect of the mistaken findings as to Ms H’s evidence is that not only was the primary judge satisfied that the father engaged in coercive and controlling behaviour but his Honour also recognised a pattern of behaviour in the father accessing the mother’s private emails which enabled a finding that the father accessed the mother’s emails and electronic searches during their relationship without permission ([66]).

During interviews, the eldest child stated that he wanted to stay living with his father.  The family report writer “scored both parents equally” however statements from the youngest child to the family report writer “I miss mum” and “we [rarely] see mum” left the family consultant with the ‘impression’ that the child preferred to live with his mother ([82]).

Although the Full Court felt it was open to the primary judge to accept the Family Consultant’s opinion, the Full Court held that after the primary judge decided that the father engaged in coercive and controlling behaviour (also that the father had not promoted the children’s relationship with their mother) he failed to properly consider the weight to be given to the Family Consultants “impression” of the younger child’s views and to treat both children’s views equally

 

Read the horrific text a bikie sent to his girlfriend that cops DISMISSED because it's 'common for women to make false allegations' - just five days before he bashed the mother to death with a metal fire hydrant

$6 million in legal fees: The high price of getting a divorce in Sydney

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A parenting order is a set of orders made by a court under Part VII of the Family Law Act 1975 (FLA) about parenting arrangements for a child. When there is an agreement between the parties, usually the mother and the father, a court can make a parenting order based on that agreement. This is known as a consent order. If the parties cannot reach an agreement, the court can make a parenting order following a court hearing or trial.

A parenting order can cover a couple of topics or an extensive list - there is no requirement to deal with any particular matters. A parenting order may deal with the following:

  • who the child will live with;
  • how much time the child will spend with each parent;
  • the allocation of parental responsibility;
  • how the child will communicate with a parent they do not live with or other people; and
  • any other aspect of the care, welfare or development of the child.

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This document creates a Binding Financial Agreement (aka Pre-nup) for couples contemplating entering marriage. It is used to quarantine all or some of the property or financial resources of either or both of the parties to the marriage. This agreement only deals with the property and liabilities of the parties and not with spousal maintenance or child support.

** Please note that this agreement cannot be entered into if, at the time of making the agreement either party is already a party to any other financial agreement.

***To be binding, both parties must have independent legal advice from their own respective legal practitioner before signing the Agreement.

Added a Digest 

Mora & Worley (No.2) [20!9] FCCA 3938 (30 September 2019)

This case involves the father seeking to change the name of his child which is said to be in the child’s best interest.

Facts:

The parties to the proceedings are X’s father, Mr Mora, the applicant, and X’s mother, Ms Worley, the respondent.

A number of Interim Orders were then made on 6 August 2018. Those Orders provided for X’s mother, Ms Worley, to spend time with him on a supervised basis, with supervision provided by the Father or a person agreed by Mr Mora.

On 23 August 2018, Ms Worley resorted to what might be described as “self-help”, removing this young lad from his school without the Father’s knowledge and in circumstances that could only be described as unilateral.

That removal of X from his school led, particularly as a consequence of past involvement of the Territory Child Welfare Agency and the Mother being well-known to police, to the issue of what is referred to in Territory legislation as “an amber alert”, seeking the assistance of the general populace in locating young X because of concerns for his safety.

What flowed as a consequence of the amber alert and the Mother’s retention of the child until removed by police was the initiation of significant criminal action against the Mother.  Shortly prior to Ms Worley removing the child into her care, an Apprehended Family Violence Order had been sought for the protection of young X. The Interim Order that was made, in not dissimilar terms to the Final Order ultimately made on 4 October 2018, provided that Ms Worley was prohibited from being at named premises, at the child’s school, from being within 100 metres of certain locations particularly relevant to the child, as well as, importantly, being precluded from contacting young X except through a legal practitioner or as the consequence of any Order as might be made by a Court, (subject to certain exceptions).

Mr Mora deposes to the impact of these and past proceedings upon X, the child’s presentation and statements to him and the general circumstances that preceded his retaining the child.  All suggest trauma experienced by X.

Mr Mora seeks that both he and young X will change their surname from Mora to B.

Issue: Should the court grant the order sought by the father?

Analysis:

Whilst the evidence lead by Mr Mora is frugal, the court is satisfied that it is sufficient. The Order that is sought is protective of X.  His name and photograph are in the public domain.  It will enable some degree of anonymity, as is suggested by Mr Mora.  It is a name that has a connection for Mr Mora and thus for X.  It is a change of name that the court is satisfied that is in the child’s best interests.  In any event, the court is satisfied that the above evidence fundamentally supports an Order for sole parental responsibility in favour of Mr Mora, it would be his decision, in any event.  All the Court is really doing is giving its imprimatur, to some extent.  As is submitted by counsel for Mr Mora, the Order is unnecessary, but to the extent that it is sought, the court is satisfied that it is appropriate and in the in child’s best interests.

Conclusion: Order sought by the father is hereby granted.

Appeal of a 18 year Family Violence Intervention Order.

  • Cameron McKenzie Whilst appeals focus on errors of law and act in a supervisory capacity, clearly the discretion of the judge is wide.
    Fundamentally, there does appear to be the obvious problem with taking an order without admission where the evidence remains untested and no finding on the evidence is ever made. Concerns exist that in absence of any tested evidentiary foundation, on what basis can the appeal court increase the sanction? The appeal court appeared to make findings and the drawing of inferences in the absence of evidence, which is an error of law: Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321, citing Sinclair v. Maryborough Mining Warden (1975) 132 CLR 473.
    So the point remains, when does taking without admission, suddenly result in all allegations being proved? If the evidence was that strong the prosecution could have sought the mater to be tried thus affording the defendant to test the evidence. Clearly the appellant angered the court and was punished.
    0 0 0 0 0 0
    • Mishka Hudson Wow this is pretty outrageous especially considering that there was a concession that an error was made. Disappointing. Ms Mishka Hudson 

      0 0 0 0 0 0
      This is a subscribed member area, you can't 'Comments Post' until you join FLAST.
      Added a Digest 

      Canfeld & Falkins [2020] FCCA 2570 (9 September 2020)

      This is a parenting case where the primary issue at interim hearing was the choice of supervisor for the mother's time with the children in circumstances where the continued cost of professional supervision was not sustainable. 

      Facts:

      The three children of the relationship (aged 16, 11 and 8) live with their father and spend time with their mother on a supervised basis.  The arrangement however was not working due to, inter alia, a lack of commitment by the parents and the cost of the supervision.  The mother sought for her time with the children to be supervised by "Mr L" instead, beginning with Sundays from 9am to 5pm and then progressing to a fortnightly basis from 9am Saturday to 5pm Sunday.  The independent children's lawyer (ICL) supported this position.

      The father proposed that the mother be granted no time but if time was to be given, then it is to be supervised by way of a professional supervisor. 

      Being an interim application, the Court was required to review authorities on the assessment of risk to children when dealing with interim matters. Unlike final hearings where the evidence can be tested, this is not possible when dealing with interim applications due to less time available.  The Court referred to some of the leading authorities about decision making in interim cases. 

      Issue's:

      • Can the mother's time be supervised by a non-professional person when the continued cost of professional supervision is not maintainable?
      • What is the appropriate way to deal with risk assessment at an interim hearing?

      Law:

      Findings:

      The Court made orders for the mother to spend time with the children to be supervised by Mr L.  In coming to this decision, Judge Altobelli included a number of paragraphs from his own decision in a matter called Insley & Insley [2018] FCCA 438, where he had previously discussed some of the authorities about decision making in interim cases:

      In Goode & Goode [2006], the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.  [64]... [T]here have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13... noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Nonetheless, the Full Court warned, findings must be couched with circumspection.

      [65] The Full Court in Marvel & Marvel (No.2), in referring to its earlier decision in SS&AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child. [66] In Reece & Reece, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination...

      [67] In Deiter & Deiter, the Full Court suggested that s60K (now s67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  

      [70] The Full Court in Enmore & Smoothe explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.  [71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts...

      After analysis of the relevant authorities His Honour proceeded on the basis by ascertaining whether the risk of harm to the children could be addressed by supervision by Mr L or only by a professional supervised contact service.  With respect to the terms of supervised time, it was more a practical question.  The Court accepted the mother's case that continuing to pay for private professional supervision was not feasible.  Although it appreciated that private non-profession supervision as that to be offered by Mr L would mean that there would be no written report, the Court felt nonetheless that appropriate supervision could be carried out by Mr L.  

      This case demonstrates that although the Court cannot test the evidence at an interim hearing stage, it does not automatically mean that it cannot make a finding of fact.  It will however ultimately side on caution especially where there are competing versions that go to the question of risk to children.  The Court will then assess whether the risk of harm can be addressed by some other means.  In this case the Court deemed that the risk of harm could be addressed via the supervision by Mr L and it was not confined to making orders for supervision only by a professional supervisor. 

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