Hurle & Greves

[2021] FamCA 653

FAMILY COURT OF AUSTRALIA

Hurle & Greves [2021] FamCA 653

File number(s):	SYC 8458 of 2020
Judgment of:	HENDERSON J
Date of judgment:	28 May 2021
Catchwords:	FAMILY LAW– PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – Where the applicant mother filed an application for review of a decision for child to commence unsupervised with the father and sought a stay –stay granted on terms
Legislation:	Family Court of Australia Rules 2004 (Cth) r 14.06
Cases cited:	Aldridge & Keaton [2009] FamCAFC 106
Division:	First Instance
Number of paragraphs:	28
Date of hearing:	28 May 2021
Place:	Sydney
Counsel for the Applicant:	Mr O’Reilly
Solicitor for the Respondent:	Ms Kennedy

ORDERS

SYC 8458 of 2020

)

BETWEEN:

MS HURLE

Applicant

AND:

MR GREVES

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	28 MAY 2021

THE COURT ORDERS THAT:

1.The application for Stay be granted on the following terms:

(a)Order 6 of the Orders made 7 May 2021 by Senior Registrar Hayward be amended to read as follows:

6. Orders made by the Court on 10 February 2021 are to continue until 19 June 2021.

a. From 19 June 2021, the father will spend time with X for a period of six (6) hours at times as agreed or in default from 9am to 3pm on Saturday each week with such time to be supervised by Contact Service or such other supervising agency as is agreed and the parents will share equally the cost of such supervision.

2.The matter be transferred to the docket of Justice Altobelli for the allocation of a hearing date for the Application for Review of a Registrars Decision.

THE COURT NOTES THAT:

(a)The parties agree that for this weekend only the child’s paternal aunt will supervise her time at her father’s home for a birthday party in lieu of Contact Service on the basis an undertaking is provided to the mother’s lawyers.

Note:   The form of the order is subject to the entry in the Court’s records.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonyms Hurle & Greves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Hurle & Greves was an application by a mother for an urgent stay of interim parenting orders made by Senior Registrar Hayward on 7 May 2021, pending hearing of a review.

2. Mr O’Reilly, of counsel, appeared for the mother; Ms Kennedy for the father.

3. The material I read were the documents that were before the senior registrar together with the mother’s documents filed in relation to a review to be heard at a later date and the stay application I am hearing today.

4. The orders made by the senior registrar that are relevant for the stay today, are orders 6(a) and (b) which effectively is that from 29 May 2021 the father’s time with the parties’ daughter X, who is just age 2, will proceed to unsupervised time for a period of three hours, until 10 July when the period will extend to six hours.  The mother does not make complaint about the hours, but makes complaint about the fact of the time being unsupervised.  That is the basis of her review and her urgent stay.

5. X was born in 2019.  X had been spending time with her father, from separation in about 2019 until November 2020, supervised by her mother.  That sort of an arrangement cannot continue, as the parties would well be aware of.  Interim orders were made by Senior Registrar Hayward on 10 February 2021 regularising her time and initially providing that she was to have supervised time with her father three hours a week supervised by Contact Service or such other agency as agreed.  The father has had seven periods of supervised time and this time has been enjoyed by him and his daughter. As at the interim hearing on 7 May 2021, and from all accounts, time had progressed well and without incident.  The father was breathalysed at the commencement of his time, and he carried out regular CDT testing.  The child is progressing very well and this is clear from the reports prepared by those supervising his time.

6. The mother is alarmed at the prospect of unsupervised time commencing effectively this weekend, tomorrow, and her alarm is based on the following.  The father engages in, has, does – I am not making any findings here – nappy wearing called paraphilia infantilism. 

7. The mother asserts although she was aware of this during the relationship, this behaviour had ceased before separation and he has re-engaged in this behaviour post-separation.  That he accesses sites that engage in fantasy roleplaying such as daddy-daughter role-play, daddy-girl role-play and bare bottom spanking.  That he had taken photos of himself, in a nappy, in the child’s bedroom prior to her birth and post her birth, but at a time that the mother had left the former matrimonial home, physically and posted these photos on these sites. That this engagement poses a risk to the child of some indeterminate sexualised or concerning exposure to adult behaviour.

8. That he drinks alcohol to excess. That he suffers mental health issues – anxiety was the only mental health issue I could see on the material.

9. That the child is simply not safe with her father. That he was not a particularly engaged father and, given her young age, supervision should continue to ensure her safety.

10. Dr J has been engaged by the parties to prepare a report which may be released by September 2021 or October 2021.

11. The husband asserts the wife was aware of his fetish during the marriage, and that they were together for some nine years. That he poses no risk at all to his child as he does not engage in this activity when she is with him. The father tendered a report of a Dr K – a forensic psychologist – who was of the view that this behaviour did not pose a risk to the child. This report was dated 10 February 2021.  That he does not drink alcohol to excess, as his CDT testing would confirm. That he presents no danger to his child from unsupervised time, given the mother had left the child with him during the marriage and he took parental leave to care for her after her birth. 

12. The mother also asserts there as an incident where the police formed the view, post-separation, that the father had been drinking alcohol when the child was due to come into his care and as such she asserts that despite his CDT testing, this is an issue for her and her daughter.

13. The cost of the father spending time with his daughter is some $675 weekly and will increase to about $1000 for six hours when that time kicks in.  If I grant the stay the father says the mother should pay the costs of all supervised time.  The mother agrees to contribute $100 to each visit.

14. The mother filed her review and initially it was believed that this review could not be heard until about September 2021, however, I have been informed that it can be heard by a judge in this registry in two months’ time, much earlier than September 2021.

15. The law relating to stay is well settled and well defined.  A seminal decision in this area is the Full Court’s decision of Aldridge & Keaton [2009] FamCAFC 106 (Aldridge & Keaton).  The principles distilled in that case are as follows:

    ·The onus to establish the stay is upon the person seeking the stay, it is not necessary for the applicant to demonstrate any special or exceptional circumstances.

    ·A person who obtained a judgment is entitled to the benefit of the judgment.

    ·A person who obtained a judgment is entitled to presume it’s correct.

    ·The mere filing of an appeal is insufficient to grant a stay.

    ·The bona fides of the applicant.

    ·In filing an appeal a stay may be granted on terms.

    ·Weighing up of the risk that the appeal may be rendered nugatory if the stay is not granted.

    ·A preliminary assessment of the strength of the proposed appeal.

    ·Desirability of limiting frequency of any change in a child’s living arrangements.

    ·The best interests of the child the subject of the proceedings are a significant consideration.

    ·The period of time in which the appeal could be heard.

16. The law is clear the child’s best interest are not paramount in a stay application as these applications are not parenting proceedings. 

17. Although Aldridge & Keaton related to a stay of an appeal decision, the same principles apply to a review.

18. I accept the mother is bona fide in that she is genuinely concerned for her daughter in the father’s care.  The question of whether her concerns are reasonably based, or if there be some other ulterior purpose – referred to me by the father’s lawyer as “mudslinging” – are for another place and time.

19. The review has been brought quickly, and I am now informed can be heard in a matter of two months.  X’s best interests, although not paramount as this is not a parenting application per say, have weighed heavily on my mind in this matter.

20. Not granting a stay would render the mother’s review nugatory and X would continue to see her father whether the stay is granted or not.

21. Going to unsupervised time, although a change for X, may not be that different to the supervised time X now has with her father in the former matrimonial home.  It will however, be a significant change for her mother.

22. A stay on terms is sought as to the sharing of costs in some fashion of this very expensive process.

23. Granting or not the stay will not impact upon X’s usual care arrangements as she always has and will continue to live with her mother.

24. I cannot say that this review is without merit given the following; that there will only be some two months before there is a hearing de novo on these issues and not, as initially anticipated, some four months; that the child is, but a baby, having just turned two; that the father has just commenced spending time with his daughter in the absence of the mother, albeit it supervised, and would now be the main player and instigator of play sessions, sleep time, meals and the like with his daughter, and he had only had seven periods of this extended time at the date of hearing of the registrar’s decision on 7 May 2021; that the mother is anxious about unsupervised time commencing, despite supervised time progressing well and, that there have been only limited periods of time the father has had alone with his daughter in the absence of the mother, a stay of the orders has merit.

25. Secondly, there are issues raised by the mother of whether the adult choices of the father pose a risk to their child which may require further evidence and some limited testing, some further CDT testing, testing perhaps of Dr K’s position and I am not in any position to do that today. 

26. For those reasons, I have formed the view that I will grant the stay on the following terms.

27. I will amend the Order 6 made by Registrar Hayward on 7 May 2021 to read as follows:

    Orders made by the court on 10 February 2021 are to continue to 19 June 2021.  From 19 June 2021 the father will spend time with X for six hours, as agreed or in default from 9 to 3 on a Saturday each week.  Such time to be supervised by Contact Service, or such other supervising agency as is agreed, and the parents will share equally the cost of such supervision.

28. I now transfer the matter to the docket of Altobelli J to allocate the earliest possible hearing of the mother’s review.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.

Associate:

Dated:       28 May 2021