FAMILY COURT OF AUSTRALIA
| ELIAS & ELIAS | [2019] FamCAFC 53 |
| FAMILY LAW – APPEAL – PARENTING – Supervised time – Whether there is a substantive difference between “supervised time” and time spent “in the presence of” someone – Whether the primary judge erred by ordering the father’s time with the child be supervised on an indefinite basis – Whether the evidence of the single expert psychiatrist supported the order for indefinite supervised time – No error demonstrated. FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Adequacy of reasons – Whether the primary judge erred in his findings as to family violence – Whether it was open to the primary judge to find that the child would be at an unacceptable risk in the unsupervised care of the father – No error demonstrated – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 60CC |
| Bennett and Bennett (1991) FLC 92-191; [1990 FamCA 148 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Simmons & Kingley (2014) FLC 93-581; [2014] FamCAFC 47 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Elias |
| RESPONDENT: | Ms Elias |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 7597 | of | 2013 |
| APPEAL NUMBER: | EA | 68 | of | 2018 |
| DATE DELIVERED: | 28 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Austin JJ |
| HEARING DATE: | 26 February 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 April 2018 |
| LOWER COURT MNC: | [2018] FamCA 244 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPELLANT: | Willis & Bowring |
| COUNSEL FOR THE RESPONDENT: | Ms Clifford |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The appeal against paragraphs 2, 4, 5, 6, 7, 8 and 9 of the orders made by Johnston J on 20 April 2018 be dismissed.
Any party seeking a costs order is to file and serve written submissions on that issue within 14 days hereof with the other party to file and serve submissions in reply within a further 14 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elias & Elias has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 68 of 2018
Continue reading ELIAS & ELIAS
Sign in free to access the full text
- AGLC
- ELIAS & ELIAS [2019] FamCAFC 53
- Case
- [2019] FamCAFC 53
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether there was a substantive difference between "supervised time" and time spent "in the presence of" someone, and if the primary judge erred in ordering indefinite supervised time. The court also needed to determine whether the evidence of the single expert psychiatrist supported the order for indefinite supervised time, and if the primary judge erred in his findings about family violence and the risk posed by unsupervised care of the father.
The court found no error in the primary judge's decision. It held that there was no substantive difference between "supervised time" and time spent "in the presence of" someone. The evidence of the single expert psychiatrist supported the order for indefinite supervised time, and it was open to the primary judge to find that the child would be at an unacceptable risk in the unsupervised care of the father. The appeal was dismissed as no error was demonstrated.
The court made orders dismissing the appeal against several paragraphs of the primary judge's orders and directed the parties to file and serve written submissions on any costs order within 14 days. The form of the order was subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal against paragraphs 2, 4, 5, 6, 7, 8 and 9 of the orders made by Johnston J on 20 April 2018 be dismissed.
2.
Any party seeking a costs order is to file and serve written submissions on that issue within 14 days hereof with the other party to file and serve submissions in reply within a further 14 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.