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Parenting Orders: Do “Supervised Time” or “Time in the Presence of” Have a Different Meaning for Child Contact?

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Background

In parenting matters, supervised time with a parent is a common order made by the Family Court where it is considered there is a risk of harm and a need to protect a child. The recent case of Elias & Elias (2019) FamCAFC 53 required the Full Family Court, on appeal, to consider the issue of supervised contact and the grounds for it.

Key issues

The paramount consideration in the determination of parenting orders is what is in the best interests of the child. There are two primary considerations that the court has to pay regard to in considering the matter:

  1. Firstly, the child's right to a meaningful relationship with both parents; and
  2. Secondly, the child's right to be protected from harm, abuse, neglect or possible violence.

Understandably, the second consideration is given greater weight.

Where a court considers that a parent could pose an "unacceptable risk" of harm to the child, it may make an order that there that child is to spend no time with that parent. Where the court has concerns about a parent's lifestyle, they may make an order that time with that parent must only take place under certain conditions such as being supervised by a designated third party (agreed to by the parties) or a court-approved agency.

Supervised time will be needed where separated parents are in conflict or violence is a concern. It is the responsibility of the supervisor to ensure that the child’s best interests are protected while the child is on a visit with the parent or other person. 

Key facts

1). The Orders

In April 2019, Final Parenting Orders were made in the Family Court that the child of the Elias’ marriage was to live with the mother, and she was to have sole parental responsibility of the boy.

The mother, in her submissions, had included incidences of family violence and her husband’s mental state resulting in her suffering from anxiety. An Independent Children Lawyer (ICL) proposed orders in support of these submissions.

The orders said that for three months the child was to spend time with his father under supervision at a professional contact centre for up to six hours every other Sunday. After this initial period, the child was to spend supervised time on alternate Sundays and other specified days. These visits were to be supervised by a professional supervision service, the sister of the father or both together.

2). The father’s objections

The father objected to these orders contending that the wording of the orders wrongly imposed a requirement for constant supervision instead of a lesser requirement of there being someone present allowing the father to be alone with the child for certain periods of time.

It was pointed out that the orders proposed by the ICL included a proposal that the father’s time with the child was to be “supervised” by a professional contact centre for a period. After this time the orders were to allow the father to spend time with the child “in the company of” the father’s sister. This suggested that there must be a difference of meaning between the phrases.

The father also submitted that the primary judge did not consider the expert evidence of a psychiatrist. This suggested that time "in the presence of" was something less than constant monitoring or supervision and that the child need not be strictly supervised in the sense that they needed to be "within sight or earshot the whole of the time". It was also suggested it would be better for the contact to involve the father's family as much as possible.

 

 

3). The appeal

The matter was appealed to the Full Court of the Family Court. The Full Court accepted the submissions of the mother and the ICL and that there was no difference in substance between the words “supervise”, “in the company of” or “in the presence of” all which have the meaning of a constant presence in each case. The Full Court advised:

"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."  

"Further, we consider there is force in the submission of the mother and ICL that supervision is a word that naturally applies to professional supervision agencies because that is what they do, whereas 'in the presence of' is more apt to apply to individuals, such as family members. Be that as it may, we accept that there is no difference of substance."

 

As regards the expert evidence, the Full Court accepted that family supervision would be preferable in the longer term rather than commercial supervision but did not accept that the expert was suggesting that a member of the family did not need to be present, at least in the short or medium term.

What does it mean?

In Elias & Elias, the father's appeal against parenting orders was dismissed.

 

The contentious point arose from the primary judge’s use of the phrases “supervised time”, “time in the presence of” and “time in the company of”. The father contended that the phrases referred to different things. The Full Family Court, however, did not regard the phrases as having different meanings saying that the ordinary meaning in each case required the presence of a person to oversee the child spending time with the parent subject to the supervision order. The phrase “in the presence of” was not to be taken as entailing a “lesser” form of supervision which would mean “that in the context of this case, for example, the child to be left alone with the father, especially for significant periods of time.”

 

 

 

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