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Key decisions

  • Elias [2019] FamCAFC 53
  • Adair [2019] FamCAFC 70
  • Isaacson [2019] FCCA 522
  • Ely & Ely & Anor [2019] FCCA 503


Expressions ‘supervised time’ and time spent ‘in the presence of’ may be used interchangeably

In Elias [2019] FamCAFC 53 (28 March 2019) the Full Court (Ainslie-Wallace, Aldridge & Austin JJ) dismissed the father’s appeal against a parenting order where it was found that he posed an unacceptable risk of harm for a child. It was ordered that the child live with the mother, that she have sole parental responsibility and that the father’s time be supervised at a contact centre, or by the father’s sister, or a combination of both. He appealed, arguing inconsistency between the Court referring to ‘supervised time’ and time ‘in the presence of’ another person.

The Full Court said (from [30]):

‘[W]e … do not regard the word “supervision” or the phrase “in the presence of” as terms of art that have different meanings. The ordinary meaning of both suggests that constant presence is required of a person overseeing the child or children spending time with the parent subject to the supervision order. More particularly, it is our view that in the ordinary course the phrase “in the presence of” does not entail a lesser form of supervision which would permit, in the context of this case for example, the child to be left alone with the father, especially for significant periods of time.

[40] [Johnston J’s reasons] strongly suggest that his Honour was using the word “supervisors” and the phrase “in the presence of” interchangeably. As they are not terms of art – or, for that matter, defined by the Act – this does not, contrary to the father’s submission, demonstrate loose thinking on the part of the primary judge or that his Honour conflated two distinct concepts.

[43] We consider that the phrase “in the company of” is no different to “in the presence of” – both connote constant presence. The primary judge clearly understood this to be so and used the words interchangeably as meaning the same thing. It is an arid exercise in semantics to seek to find a difference of substance in the primary judge’s choice of words, let alone one which demonstrates appealable error.’

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