April 2019 Family Law Case Watch

By Prue Hawkes & Stephanie Ordanoska

In relation to spending time with your child:

  1. Has an order been made for you to spend supervised time with your child?
  2. Are you seeking that an order be made for the other parent to spend supervised time with your child?
  3. What does an order for supervised time mean?
  4. In what circumstances will an order for supervised time be made?

Is a Court order for a child to spend time with a parent “in the presence of” for example, a sibling, grandparent, aunty, uncle or trusted friend, the same as an order for “supervised time” by a professional contact supervision centre, or materially different?

What an order for a child to spend supervised time with a parent means was recently considered in the case of Elias & Elias [2019] FamCAFC (“Elias & Elias”). Ultimately, it was found that an order for time “in the presence of” a third party is one and the same as an order for a child to spend “supervised time” with a parent. Understanding the background facts to this case assists considerably in understanding why this is.

Background

Final Parenting Orders were made in Elias & Elias on 20 April 2019 by a Judge of the Family Court of Australia that the child of the marriage was to live with the mother who was to have sole parental responsibility for him.

For a period of three (3) months after the Orders were made, the child was to spend supervised time with the father at a professional contact centre for six (6) hours each alternate Sunday. Thereafter, the child was to spend time with the father on alternate Sundays and on other specified days with “all time to be supervised by a professional contact supervision service or the father’s sister, or a combination of both”.

These Orders were made based on the Independent Children’s Lawyer’s (“ICL”) proposed orders which were supported by the mother’s submissions. The key issues raised by the mother in her submissions included family violence, the father’s mental state and the mother’s extreme anxiety. Albeit not all of the contentions made by the mother were accepted by the primary Judge.

The father appealed against the Orders on the basis that the primary judge erred having made Orders that failed to give effect to his findings that the father’s time after three (3) months’ supervisions should occur “in the company of” the father’s sister or the professional contact supervision service. The Orders provided that such time should be “supervised”.

“Supervised time” and time “in the presence of”

The father argued that “supervised time” and time “in the presence of” mean different things in the context of parenting orders in Family Law proceedings and that the primary Judge erred in not recognising and acting on that distinction. The father contended that the Orders wrongly imposed a requirement of constant supervision as opposed to a less stringent requirement of having somebody present and permitting the father to be alone with the child for periods of time.

Senior Counsel for the father highlighted the orders proposed by the ICL which included a proposal that the father’s time be “supervised” by a professional contact centre for a period before allowing the father to spend time with the child “in the company of” the father’s sister. It was argued that there must be a difference between the two phrases due to the difference in wording adopted by the ICL.

Further, the father submitted that the single expert psychiatrist’s evidence was not considered by the primary Judge which suggested that “time in the presence of” meant something less than supervision, meaning constant monitoring including being within sight or earshot. The expert said that the father’s time with the child need not be “strictly supervised” in that they do not need to be “within sight or earshot the whole time”. She suggested it would be better for contact to be as much as possible involving the father’s family or his partner. The expert further stated:

I don’t know that I would say… that he can never be alone with the child – not that level of supervision… It would need to be a slowly graded time spending with [the child] and as much as possible in a family setting or with his partner present.”

On Appeal

The Full Court of the Family Court of Australia found that there is no difference, in the context of parenting orders in Family Law, between the word “supervised” and the phrase “in the presence of”. Therefore, the phrase “in the presence of” does not mean a lesser form of supervision which would allow, as submitted by the father, the child to be left alone with the father particularly for long periods of time.

It was found that “supervised time”, time “in the presence of” and time “in the company of”, all connote constant presence. The primary judge clearly understood this to be the case and used the words interchangeably. This, contrary to the father’s submissions, does not indicate an error or “loose thinking” on the part of the primary Judge. The Full Court of the Family Court said, “it is an arid exercise of semantics to seek to find a difference of substance in the primary Judge’s choice of words, let alone one which demonstrates appealable error.”

The Full Court of the Family Court accepted the submissions of the mother and the ICL that “supervise” is a word commonly applied to professional supervision bodies because that is effectively what they do and the phrase “in the presence of” more suitably applies to individuals, such as family members. In any event, the Full Court accepted that there is no difference in substance.

In respect of the expert’s evidence, it was accepted that family supervision would be preferred as a long-term solution as opposed to commercial supervision however the Full Court did not accept that the expert was suggesting that a family member need not be continually present, at least in the immediate term. The Full Court focused on the expert’s evidence that progression of supervised contact in this case should be slow and it would be preferable for the father’s time with the child to be in a family setting or with his partner present.

Conclusion

We hope our April 2019 Case Watch has clarified this issue about the meaning of “supervised time”. Supervised time is a common order made by the Family Court in parenting matters where there is a risk of harm and a need to protect the child. The way in which supervised time will be implemented depends on the particular circumstances of a case however, as a result of Elias & Elias, supervised time will be defined on a case by case basis, and not by the particular phrase adopted by the Court.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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I’m Lisa from Doolan Wagner Family Lawyers.

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