01 Oct Case Note: Elias & Elias [2019] FamCAFC 53 – 28 March 2019
Whether there is a substantive difference between “supervised time” and time spent “in the presence of” someone.
Summary of Facts
Heard in the Full Court (Ainslie-Wallace, Aldridge & Austin JJ) on appeal by the father.
The primary judge (Johnston J) found the father:
•had engaged in controlling behaviour by secretly recording the mother’s conversations;
•had acted violently by punching a family photo and breaking his hand; and
•on the submissions from expert psychiatrist, Dr DD, was at risk of another psychotic episode.
The father had involuntarily spent a month in hospital in 2011, and upon release did not continue the recommended treatment.
The judge also found that the mother had extreme anxiety when the child was left alone with the father, and that it affected her capacity to provide for the needs of the child.
The primary judge ordered for the 7-year-old child to live with the mother, who was to have sole parental responsibility. For a period of 3 months after the orders were made, the child was to spend time with the father at a contact centre for six hours each alternate Sunday.
Thereafter, the child’s time with the father was to increase to also include designated special days, and with all supervision to now occur either at a contact centre, or with the father’s sister (or a combination of both).
Issues on Appeal
1.the distinction asserted to exist between “supervised” time and time “in the presence of” someone;
2.whether the evidence of the single expert psychiatrist, properly understood, proposed supervised time; and
3.whether it was correct to make an order for indefinite supervision.
The distinction between “supervised” time and time “in the presence of” someone
The challenge arose from the primary judge’s use of those two phrases and the evidence of the expert witness, Dr DD, where both phrases were used. The father contended that the two phrases had different meanings in the context of the evidence in the proceedings, and that the primary judge erred by failing to act upon that distinction by ordering supervision by the father’s sister after the 6-month period.
The father referenced the ICL and the mother’s proposed orders, that the father have supervised time with a contact centre for a period of 6 months, and thereafter have time in the presence of the father’s sister.
The submission of the father also relied on a passage from the primary judge:
“Accordingly, I propose that the arrangement which will best serve [the child]’s interests in terms of providing opportunity for him to continue his relationship with his father will involve regular alternate weekend time in the company, either of Ms D Elias or C Group following a few months of+ +supervision by C Group (or similar commercial supervision agency).”
The father submitted that there was a disconnect between the finding that the initial time should be supervised and thereafter ‘in the company of’, whereas the order that was in fact made only referred to supervision.
The father contended that ‘ in the presence of’ would have allowed the him to be alone with the child for periods of time, and that it wouldn’t involve constant supervision.
Findings
On appeal, the Court found that the ordinary meaning of both phrases would indicate that there needs to be a constant presence required of a person overseeing the child spend time with the parent. They found ‘in the presence of’ did not entail a lesser form of supervision. They also agreed the phrase ‘in the company of’ is no different to ‘in the presence of’.
When considering the primary judge’s reasoning, they found he used the terms interchangeably throughout the judgement, and clearly meant for the two phrases to have the same meaning.
They noted that_
_supervision is a word that naturally applies to contact centres, as that is essentially their purpose, whereas ‘in the presence of’ more appropriately describes when an individual is supervising the contact time.
The father’s appeal was dismissed.