Director General, Department of Human Services and Tran & Anor

[2009] FamCA 1070

FAMILY COURT OF AUSTRALIA

DIRECTOR GENERAL, DEPARTMENT OF HUMAN SERVICES & TRAN AND ANOR [2009] FamCA 1070

FAMILY LAW – CHILDREN – application for stay of proceedings pending appeal – whether appeal raises any substantial issue – whether a stay of proceedings be granted on terms and conditions – the weight to be given to the best interests of the child amongst other matters

Family Law Act 1975 (Cth) s 60CC
Family Law Rules 2004 r.22.11

Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630

APPLICANT: Director General, Department of Human Services NSW

RESPONDENT: Ms Tran

RESPONDENT: Mr Ferguson

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring Solicitors

FILE NUMBER: SYC 643 of 2008

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 6 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: V. Hartstein

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office NSW

COUNSEL FOR THE RESPONDENT: A. Jamieson

SOLICITOR FOR THE RESPONDENT: Di Lizio & Associates Solicitors

FOR THE SECOND RESPONDENT: Mr Ferguson in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring

Orders

1. That there be stay of proceedings of the parenting orders made 30 October 2009 pending the determination of the Intervenor’s appeal.

2. That the parenting orders made in the Federal Magistrates Court of Australia on

   
   

   1 August 2008 continue until determination of the appeal.

3. That the following terms and conditions apply in relation to the stay of proceedings namely, that the Intervenor:-

   (a)       Forthwith make application for expedition of the appeal;

   (b)       Do all things necessary to urgently prosecute the appeal; and

   (c)Seek the earliest date for hearing of the appeal irrespective of the convenience of counsel.

4. That the Intervenor do all things necessary to ensure that the father has a further supervised period of time with the child for a period of three hours on

   
   

   23 December 2009 and that as soon as possible the Intervenor provide him with written information of the place at which such period will occur; the name of the case worker and the range of activities that the father may engage in with the child in that period under such supervision.

5. That the mother has a further period of supervised time with the child for three hours on 24 December 2009 and that in relation to the mother the Intervenor comply with the same conditions set forth in Order 4.

6. That the mother and father each cause a letter to be sent to the Intervenor addressed to the case worker or supervisor with whom each normally communicates setting out their proposed activities with the child on the further days identified in Orders 4 and 5 so that if possible appropriate arrangements can be made to enable those activities to take place.

IT IS NOTED that publication of this judgment under the pseudonym Director General, Department of Human Services and Tran & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYG 643 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES NSW

Applicant

And

MS TRAN

Respondent

And

MR FERGUSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 30 October 2009 I made final parenting Orders in relation to the child of the applicant mother and respondent father who I shall refer to for convenience as “the mother” and “the father” in these proceedings, and otherwise referred to as “the final Orders” in which the Director-General of the Department of Human Services New South Wales was the Intervenor.

2. Reasons for Judgment were delivered on that day.  The child, the subject of the proceedings, is a daughter born in October 2004 (“the child”).  The child had lived with the mother and father either in their joint care or in the individual care of each of them for varying periods until 2 July 2008 when the Intervenor assumed the care of the child.

3. On that day, the child was placed in foster care where she has remained pending compliance with the final Orders.  On 1 August 2008 interim parenting orders were made in the Federal Magistrates Court, which in substance provided for the Intervenor to have parental responsibility for the child, the child to live as directed by the Intervenor and the child to spend supervised periods of time of two hours per week with each of the mother and father.  Those orders have been complied with.

4. On 4 November 2009 the Intervenor filed the application which is now before me.  The Intervenor sought in substance a stay of the final orders and that in the event of the stay being granted, which I have assumed to be a stay of proceedings as opposed to a stay of execution, a further order was sought that the Interim Orders made on 1 June 2009 continue until determination of the appeal.

5. Counsel for the Intervenor correctly, in my view, identified the appropriate Interim Orders to be made as those that reflect Orders numbered 1, 2 and 3 made in the Federal Magistrates Court on 1 August 2008.  The Application of the Intervenor is opposed by both the mother and the father.  The Independent Children’s Lawyer made a brief submission that, in the event of a stay of proceedings being ordered, the terms and conditions raised as possibilities with counsel for the Intervenor should be made.

6. Those terms and conditions are that the Intervenor:

   a)forthwith make an Application for expedition of the appeal;

   b)do all things necessary to ensure that the appeal is urgently prosecuted; and

   c)seek the earliest available date for hearing of the appeal irrespective of the convenience of counsel.

7. Counsel for the Intervenor did not oppose such terms and conditions applying in the event that a stay of proceedings was ordered. 

Legal Principles

1. The principles that apply in relation to a stay of proceedings are well established.  An appeal from Orders made by a single Judge does not automatically result in a stay.  Consequently in a given case, the principles that fall for consideration include whether or not the absence of a stay would render an appeal nugatory, whether there is a substantial issue raised in the grounds of appeal and questions of prejudice and hardship in relation to all parties.

2. The question of the stay has added focus where an appeal has been lodged in relation to parenting Orders because of the potential disruption to stability and routine for a child.  In the event that should a stay not be granted and ultimately an appeal is successful, then the child may be adversely affected by having to change accommodation on more than one occasion, interruption to schooling and last but far from least, disruption to those who are caring for the child.

3. Counsel for the mother has cogently submitted that the Notice of Appeal does not raise any issue of substance for determination by the Full Court.  I consider that there is much force in the submissions made by counsel.  In that regard, I propose to make some brief observations.

Conclusion

1. Ground 1 reflects a written submission that was made on behalf of the Intervenor.  Reference was made by counsel at the trial to the Full Court’s decision in Faulkner and McPherson v Rugendyke; Department of Community Services (Intervener) (1995) FLC 92-630. However, that Full Court decision was in the context of substantially different provisions of the Family Law Act compared to those that now apply.

2. At the time of that judgment the old provisions in Pt.VII of the Family Law Act 1975 applied including the reference to and consideration of the terminology of “custody” and the legal implications of such an order being made.  For almost three and a half years now, the current Pt.VII of the Act has been in force, having come into operation on 1 July 2006.  Consequently, the question of interpretation referred to in ground 1 arguably does not apply to the provisions of the current Pt.VII.

3. Indeed so much seemed to be recognised by the Intervenor as is apparent from Exhibit 14, being a copy of the minute of order sought by the Intervenor at the trial.  In paragraphs 2 and 3 of Exhibit 14, the Intervenor sought an order for parental responsibility and that the Intervenor make all arrangements “necessary to place [the child] in long term out of care until [the child] attains the age of 18 years”.  In addition, in paragraph 4 of Exhibit 14 the Intervenor sought an order “that [the child] live as directed by the Director-General of the Department of Community Services”.  Ancillary orders were also sought.

4. It follows that, should the matters raised by the Intervenor in ground 1 be matters which the Intervenor was indeed advocating pursuant to the Full Court decision in Faulkner v Rugendyke, parental responsibility granted to the Intervenor meant that it could also decide matters of accommodation.  Consequently, it was pointless for the Intervenor to seek the Orders to which I have referred.

5. So far as the other grounds of appeal are concerned, apart from what are purported to be errors of law, it is interesting that not one ground of appeal challenges any findings of fact.  However, these are matters upon which the Full Court will no doubt deliberate and it is not for me to make any determination on the merits of the appeal.  It is merely a question of whether or not the appeal raises any substantial issue.

6. It may be that ground 1 does raise some issue of law of substance for consideration by the Full Court.  Consequently I have concluded, despite the urging of counsel for the mother, that this basis for opposition to a stay does not succeed. 

7. So far as the questions of prejudice and hardship are concerned, as I have already referred the Intervenor through counsel does accept that it is proper to make the terms and conditions that I have previously summarised to apply in the event that a stay of proceedings is granted.

8. The effect of that is that on inquiries made in my chambers there is a distinct possibility that the appeal could be listed for hearing early in February 2010, provided that expedition is sought and the Intervenor, who is the appellant, urgently attend to all necessary procedural matters to ensure that the appeal is ready to proceed.

9. I have no doubt that a government department with the resources at its command should be more than capable of prosecuting the appeal in that fashion.  Both the mother through counsel, as well as the father, are naturally agitated and are very disappointed that there is a prospect that the parenting Orders which enabled them to care for the child on an unsupervised basis may now be stayed leaving them in the position of continuing to have the child in their care on a supervised basis in accordance with the orders made on

   
   

   1 August 2008.

10. In considering those submissions, I have also taken into account that in the event of an appeal being successful the potential effect on the child of perhaps emotional instability by moving from supervised care to unsupervised care and then back again to supervised care could not possibly be in the child’s best interests.  I emphasise that I do not have expert evidence currently before me as to the child’s emotional state. 

11. However, given that the child has been accustomed to live with the temporary carers pursuant to the orders made on 2 July 2008 for a considerable period of time and a routine has been established for supervised periods, my concern is that routine should be maintained without unnecessary upheaval, despite the anguish that that undoubtedly would cause to each of the mother and father.

12. Whilst this Application for a stay is not a parenting order, nonetheless the best interests of the child is a factor which I take into account.

13. The Intervenor through counsel has informed me that on her instructions additional supervised “contact” can be organised for a period of three hours for each of the parents, implicitly separately, in the week immediately prior to Christmas.  Apparently the Department’s organisation of its resources and being able to retain outside agencies do not allow it to make any arrangements for Christmas Day itself.

14. I have raised these matters with the father in particular and he is willing to have that period of time with the child on 23 December 2009.  Counsel for the mother made further submissions that the time of care with his client should be on Christmas Day. However, I have to consider the logistics and the practicalities of making an arrangement, notwithstanding that it seems strange that a government department could not make appropriate arrangements for Christmas Day.

15. Consequently I will make an order on the same terms that apply for the father for the period of time that the child spends in the mother’s care supervised on Christmas Eve, namely 24 December 2009.  I informed the father, being an unrepresented person, that it is in his interests to make an urgent application for legal aid so that he may be legally represented on the appeal and in the event that such an Application is unsuccessful, he should be aware of his rights to make an Application for an order for interim costs against the Intervenor to ensure that he has appropriate legal representation on the appeal.  I emphasised to him that because such an application is made, does not necessarily mean that it will be successful.  The Judicial Officer who determines that application will no doubt do so on the merits of the application put before him or her and the material relied upon in support of it.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:     

Date:              12 November 2009