ELIAS & ELIAS - [2019] FamCAFC 53

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

2013

APPEAL NUMBER:

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ELIAS & ELIAS

Details

AGLC: ELIAS & ELIAS [2019] FamCAFC 53
Case: [2019] FamCAFC 53
Decision Date: 28 March 2019

CaseChat Overview and Summary

Elias and Elias involved a parenting dispute concerning the allocation of time with their child. The father appealed against several orders made by Johnston J, including the indefinite supervision of his time with the child and findings regarding family violence. The appeal was dismissed by the court.

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

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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