Sipos & Hidalgo (No 2)
[2025] FedCFamC2F 175
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sipos & Hidalgo (No 2) [2025] FedCFamC2F 175
File number(s): MLC 374 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 February 2025 Catchwords: FAMILY LAW – Parenting – Application to stay parenting orders – Where applicant mother seeks to limit spend time with father and require professional supervision – Where respondent father concedes partial stay of parenting orders pending the mother’s appeal – Mother’s application to adjourn hearing of the stay application for a second time dismissed – Consideration of the First XI of principles determining a stay application – Where mother has not complied with final orders – Where children have not spent time with father since just after the final hearing – Paternal grandparents appropriate supervisors – Partial stay granted in terms of orders sought by the father – Stay assumes appellant prosecutes appeal with proper expedition. Legislation: Evidence Act 1995 (Cth) section 140
Family Law Act 1975 (Cth) Part VII
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Cantrell & North & Anor (2019) FLC 93-921; [2019] Fam CAFC 127
Sipos & Hidalgo [2024] FedCFamC2F 1814
Gronow v Gronow (1979) FLC 90-716
Navickas & Fried [2024] FedCFamC1A 248
Sarti and Anor & Sarti (No 2) (2020) FLC 93-993; [2020] FamCAFC 261
Division: Division 2 Family Law Number of paragraphs: 60 Date of hearing: 7 February 2025 Place: Melbourne The Applicant: In person Solicitor for the Respondent: Mr Glass of Leslie Family Law Counsel for the Independent Children's Lawyer: Mr Kiernan Solicitor for the Independent Children's Lawyer: Yarra Family Lawyers ORDERS
MLC 374 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HIDALGO
Applicant
AND: MR SIPOS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Until further order, the following paragraphs of the Final Orders dated 19 December 2024 (“Final Orders”) be stayed:
(a)Paragraphs 6(d) – 6(k); and
(b)Paragraph 6(l)(ii).
2.The commencement date for the time that the children Y born in 2018 and X born in 2020 are to spend with the Father, MR SIPOS (‘the Father’), pursuant to paragraph 6(a) of the Final Orders be varied to be Saturday, 22 February 2025.
3.Until further order, paragraph 6(c) of the Final Orders be amended to read as follows:
“Thereafter, each Saturday from 10am until 5pm at the home of the Paternal Grandparents to be supervised by one or other of the Paternal Grandparents;”
4.Until further order, paragraph 6(l)(i) of the Final Orders be amended to read as follows:
“On Father’s Day from 10.00am until 5pm to be supervised by one or other of the Paternal Grandparents”.
5.The Final Orders otherwise remain in full force and effect.
6.By 4:00pm on the date of these orders, each of the Paternal Grandparents are to sign a written undertaking in relation to their requirement to supervise the time between Y, X and the Father, pursuant to these orders and the Father ensure that undertaking be served by email on the other parties.
7.The Father be and is at liberty to apply to vary or rescind these orders in the event of the appeal not being properly and expeditiously pursued by the appellant, MS HIDALGO.
8.Any application for costs be in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and, if agreed in writing between the parties, be by way of written submission with the respondent filing and serving any response within 28 days of receipt of a submission seeking costs.
9.The Application in a Proceeding filed by the Applicant, MS HIDALGO, on 7 January 2025 be and is otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge O’Shannessy:
INTRODUCTION
On 19 December 2024, I delivered my decision and reasons in the matter of Sipos & Hidalgo. Those reasons and orders are Sipos & Hidalgo [2024] FedCFamC2F 1814. In summary, I ordered that the mother of the children, Y and X, should have sole parental responsibility for long term decisions about the children and ordered that the children would live with her and spend time with their father, Mr Sipos, in a graduated regime where that time was initially supervised by Mr Sipos’s parents (‘the Paternal Grandparents’) then not supervised, but with the Paternal Grandparents in substantial attendance for a number of visits before an eventual move to no supervision or substantial attendance. The time regime was a graduated one, moving from 2 hours to 4 hours, then to 7 hours and, after a considerable time, moving to an overnight visit and limited school holiday time.
However, although not requiring ongoing or long term supervision or substantial attendance by the Paternal Grandparents, for the reasons set out in the 19 December 2024 decision, I made orders that commanded the involvement of the Paternal Grandparents on each occasion that Mr Sipos would be spending time with the children by requiring the overnight time (when that was eventually reached in the graduated regime) to occur at the home of the Paternal Grandparents, and for one or other of the Paternal Grandparents to be present at the start of Mr Sipos’s time. All changeovers were to be at the Suburb D Police Station, which is nearby to the home of the Paternal Grandparents.
On 7 January 2025, Ms Hidalgo, as a litigant in person,[1] filed an appeal against those orders and filed an application in a case seeking a stay of those orders and, at part F of the notice of appeal, under the heading ‘the orders sought in the appeal’, Ms Hidalgo stated that the orders she was seeking were as follows:
1.Contact occur at a contact centre
2.Or contact occur with a paid professional supervisor
3.A stay on the current order dated 19 December 2024
4.Orders dated 19 December 2024 be discharged
[1] Ms Hidalgo’s previous solicitors, retained pursuant to the section 102NA family violence cross-examination scheme, filed a notice of ceasing to act on 23 January 2025.
For the reasons that follow, I am not satisfied that circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of the appeal beyond the concessions as to a stay on conditions made by Mr Sipos.[2]
[2] See Navickas & Fried [2024] FedCFamC1A 248, Austin J, 18 December 2024 at [17] recited later in these reasons.
At the trial of the matter, Ms Hidalgo had sought orders to the effect that she had sole parental responsibility and that the children, then aged 3 and 5, live with her and that their father, Mr Sipos, not spend any time with them. Late in the trial, Ms Hidalgo changed her position to press for orders that the children would spend time with their father on 4 occasions each year, and professionally supervised. The Independent Children’s Lawyer (‘ICL’) at trial pressed for orders that Mr Sipos spend time with the children on a limited number of occasions but asserted that the Paternal Grandparents were appropriate supervisors.
The parties and the Court had the benefit of a family report, and the family report had made the following recommendations:
…
139.The children live with their mother.
140. The children commence spending 4 hours fortnightly on a weekend day with the father, supervised by [Ms B] and [Mr C] for a period of 6 months. Following this period the time spent could be increased to 7 hours fortnightly on one weekend day thereafter.
141.That when [X] commences school that in addition to the fortnightly visits, [X] and [Y] spend 1 week night per school holiday with their father at their grandparents’ house with their grandparents’ supervision during the 2 to 3 week term breaks. During the December/January summer holidays, the children could spend every second weekend with their father overnight at the grandparents’ house from Saturday morning till Saturday evening if the grandparents are supportive of this arrangement.
The family report writer was cross-examined and in oral evidence said that the Paternal Grandparents were appropriate supervisors, if such supervision was required.
First return of the stay application
On 7 January 2025, Ms Hidalgo filed an application in a case seeking a stay of the orders that I made, pending the hearing of her appeal. On 15 January 2025, I listed the stay application before me to be heard on 24 January 2025.
On 23 January 2025, Mr Sipos filed a response to Ms Hidalgo’s application in a case seeking a stay of the 19 December 2024 orders wherein he pressed, or acquiesced, in a stay of the orders to the effect that until the conclusion of the appeal the graduated spend time regime would not extend past the daytime only time between Mr Sipos and the children and would require the Paternal Grandparents to supervise all of that time, until the conclusion of the appeal.
The matter came before me on 24 January 2025 and Ms Hidalgo appeared in person, Mr Sipos appeared by his solicitor, Mr Glass, and the ICL appeared by counsel, Mr Kiernan, who had appeared for the ICL during the trial. On that day, Ms Hidalgo’s former solicitor, Mr Michaelides, appeared and sought leave to withdraw in the circumstances where the service of the notice of intention to cease acting had not been served on Ms Hidalgo within the required period. There was no objection by Ms Hidalgo, or any other party, to the former solicitors being given leave to withdraw from the proceedings, and I permitted the solicitors to withdraw. Ms Hidalgo sought an adjournment for about two weeks to enable her to continue to obtain legal advice and representation for the stay application. I was satisfied that Ms Hidalgo had been reasonably diligent in seeking legal advice to assist her in the stay application. The adjournment was opposed by Mr Sipos in the circumstances where the extant orders of 19 December 2024 were not being complied with by Ms Hidalgo.
As requested by Ms Hidalgo, I adjourned the matter for two weeks so that Ms Hidalgo could continue seeking legal advice as she wished to do.
The second application to adjourn
On 7 February 2025, when the matter came before me, the hearing of the matter commenced late in the day due to other matters being heard. Ms Hidalgo again sought an adjournment on the ground that she had been unable to obtain lawyers to act for her. The adjournment application was opposed by the ICL and Mr Sipos. The ICL opposed the adjournment application on the basis that there did not appear to be any reasonable prospect of Ms Hidalgo being represented at any time in the future.
I refused the application for an adjournment and reserved my reasons. These are my reasons. I refused the adjournment application because, although a litigant in person, Ms Hidalgo was able to address me in a reasoned and articulate manner and had herself filed and prepared a notice of appeal that included concise and clear grounds of appeal and had herself filed and prepared an application in a case seeking a stay and an affidavit. In short, I was satisfied Ms Hidalgo was able to adequately advance her case herself, notwithstanding the disadvantage of not being represented. Further, I was satisfied that there was substance in the submission of the ICL, that there did not appear to be any reasonable prospect of Ms Hidalgo being represented at any time in the near future. And, most significantly for the purposes of the adjournment application, the extant orders of 19 December 2024 were not being complied with and it was not disputed that after the trial had concluded, the previously ordered supervised time had only continued for a short time before ceasing in August of 2024 because the professional supervision service was no longer available. In those circumstances, I was satisfied that the interests of justice, as well as taking into account the best interests of the children and the comparative advantages and disadvantages of Ms Hidalgo’s representing herself, meant that on this second occasion of the stay application being listed it needed to be heard and dealt with. I proceeded to hear the application for a stay.
The hearing concluded late on the Friday evening (about 5.30 pm), and I was not satisfied that it was in the interests of justice or fair to the parties that they be delayed whilst I delivered a decision and reasons there and then. I reserved my decision and reasons. These are the reasons for the decision I will make.
APPLICABLE LAW
Ms Hidalgo was provided with a copy of the decision of the Full Court of the Family Court of Australia in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (‘Aldridge & Keaton (Stay Appeal)’) and the decision of Austin J (sitting as the Full Court) in Navickas & Fried [2024] FedCFamC1A 248 (‘Navickas’).
Aldridge & Keaton (Stay Appeal) set out, at [18], 11 dot points of principle applicable to a stay application.[3] Those principles were adopted and applied in another Full Court decision in Cantrell & North & Anor (2019) FLC 93-921; [2019] Fam CAFC 127 (‘Cantrell’). In Cantrell at [33], the Full Court described the First XI as follows (citations omitted):
[3] The eleven dot points have been described as ‘the First XI’ of stay principles.
33. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court of the Family Court of Australia identified a number of matters relevant to the grant of a stay. The full court said:
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known. […] The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
The principles applicable to a stay were described by Austin J, sitting as the Full Court, on 18 December 2024 in Navickas as follows:
16The power of the appeal court to stay the orders the subject of the appeal is found in s 38(1)(b) of the FCFCA Act.
17The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685).
18Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]–[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No 2) [2008] FamCAFC 194 at [38]). In relation to the proposed stay of appealed parenting orders, the welfare of the children is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the children’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
Disposition of the stay application
19The substantive parenting orders which are the subject of the appeal can be stayed. The question is whether they should be.
The Navickas exposition of principles applicable to a stay demonstrates that it is not necessary to separately address every one of the eleven dot points set out in Aldridge & Keaton (Stay Appeal).
APPLYING THE FIRST XI
Ms Hidalgo, in clear and articulate terms, addressed the eleven dot points of Aldridge & Keaton (Stay Appeal) and hence it is convenient to address the eleven dot points of Aldridge & Keaton (Stay Appeal). Ms Hidalgo did not dispute that the onus was on her to establish a proper basis for the stay, that the person who has obtained a judgment is entitled to the benefit of it, and that a person who has obtained a judgment is entitled to presume it is correct. To my understanding, these three dot points are effectively described within the first sentence of [17] of Navickas. Ms Hidalgo did not dispute that the filing of an appeal is insufficient to grant a stay, notwithstanding that it was not disputed that since the 19 December 2024 orders were made, they had not been complied with. Unsurprisingly, Mr Glass, on behalf of Mr Sipos, addressed this issue in detail and asserted that the Court should question the bona fides of Ms Hidalgo in making her application for a stay.
Notwithstanding the force of that submission by Mr Glass, I am not satisfied that the evidence demonstrates a lack of bona fides in Ms Hidalgo’s application. Such a circumstance is a possible inference, taking all of the litigation and the history of the matter into account, but I am not satisfied that it is appropriate to draw that inference on this interlocutory and ‘on the papers’ hearing. I take into account that it is undisputed after the conclusion of the trial further professionally supervised visits were facilitated by Ms Hidalgo.
I am not persuaded, on the balance of probabilities, that this application is without bona fides or is mala fides. The overall circumstances, including the findings I made in the 19 December 2024 decision and Ms Hidalgo’s failure to comply with those orders, do not satisfy me that I should regard Ms Hidalgo as bringing the application mala fides. I am proceeding on the basis that Ms Hidalgo’s application has been brought bona fide.
The sixth dot point of Aldridge & Keaton (Stay Appeal), that a stay may be granted on terms that are fair to all parties, was fairly and squarely engaged by the terms of Mr Sipos’s response to an application in a case, where he effectively conceded a limited stay on conditions. The effect of Mr Sipos’s concession meant, as put by counsel for the ICL, that the stay dispute came down to who would be the supervisor and the length, or extent, of the length of time spent between Mr Sipos and the children. Whilst there is substance in that submission, the considerations are wider than that and include the potential impact upon Ms Hidalgo of having to comply with the order for the children’s father to spend time with them on terms other than what she says she accepts. The concessions made by Mr Sipos in the response, although acknowledged by Ms Hidalgo, did not placate Ms Hidalgo and she pressed for the stay on the terms she sought.
As discussed with the parties during the hearing, the response of Mr Sipos and the concessions contained within it are a significant aspect of this stay application.
The seventh dot point, the nugatory consideration, whether addressed as part of the First XI of Aldridge & Keaton (Stay Appeal) or within the second sentence of [17] of Navickas, is a substantial factor on this stay application. The children’s residence was not changed or otherwise interfered with by the 19 December 2024 orders. By those orders, and whether or not this stay is granted, the children will remain living with Ms Hidalgo. In the event of the appeal being successful, Mr Sipos’s time with the children can revert to the more limited and professionally supervised time now sought by Ms Hidalgo in her notice of appeal, and/or ceased altogether, if that were found to be in the best interests of the children. The former position of Ms Hidalgo, at the conclusion of the trial, was that there should be limited time between Mr Sipos and the children, and professionally supervised. If the stay is made on the conditions conceded by Mr Sipos, that option or prospect remains and hence, in that sense the failure to grant the stay on the terms sought by Ms Hidalgo cannot be said or found to potentially render the appeal nugatory.
When deciding a stay application regarding an order for a person to spend time with a 5-year-old child against the wishes of the child’s parents, Ryan J in Sarti and Anor & Sarti (No 2) (2020) FLC 93-993; [2020] FamCAFC 261 (‘Sarti’), observed:
9.The fact that the orders could be set aside and the visits thus cease, demonstrates that a refusal to grant a stay would not render every aspect of the nugatory.
There is one sense in which it could be said that the failure to grant the stay on the terms pressed by Ms Hidalgo would render the appeal nugatory, and that is the potential impact upon Ms Hidalgo of being compelled to comply with orders for time between Mr Sipos and the children on different, and less restrictive, terms than what she seeks. If the appeal is successful, and the stay is on the terms pressed by Mr Sipos, the impact upon Ms Hidalgo of complying with the order over the months between the stay order and the conclusion of the appeal would have been experienced by her in the meantime. I take that consideration into account as part of the balance of all of the factors in this stay application.
I now turn to ‘some preliminary assessment of the strength of the proposed appeal’. Mr Sipos’s solicitor submitted that the grounds of appeal went only went to mere weight, and he relied on and referred to the well-known passages in the decision of Gronow v Gronow (1979) FLC 90-716. That weight grounds are not infrequently asserted and rarely upheld does not mean that a ground of appeal going to matters of weight of aspects of the evidence is doomed to fail.
I will deal with some preliminary assessment of each ground of appeal in order.
Ground 1: Appropriate weight was not given to the expert witness evidence given by Ms F about the appellant mother’s capacity to parent, as a result of experiencing severe emotional and physical family violence by the respondent father.
I dealt with Ms F’s opinion about the impact upon Ms Hidalgo’s capacity to parent in the 19 December 2024 reasons at [144] and [221] – [223]. I am not bound by Ms F’s conclusions, but I am satisfied that I did consider her evidence carefully and in the overall context of all considerations. Doing the best I can, on a preliminary assessment, this ground appears to be merely arguable, but no more than that.
Ground 2: Failed to give appropriate consideration to the effect of contact between the children and the respondent father; on the mother's mental health and the effects on the children.
This ground appears in substance to be related to, and another aspect of, Ground 1. The effect on Ms Hidalgo’s mental health was dealt with by her treating psychologist and Ms F. I preferred Ms F’s opinion as she had a greater understanding of the depth of the past experiences of Ms Hidalgo, including her childhood, teenage years, and early adulthood, than the treating therapist. I am satisfied I considered the evidence of Ms Hidalgo’s own opinion of her mental health, Ms F’s opinion, and the treating therapist’s opinion, in all of the circumstances and weighing the best interests of the children. That I ultimately did not accept Ms Hidalgo’s case that the effect on her mental health and parenting capacity of Mr Sipos having time with the children other than as she pressed, does not mean that I did not consider, or give appropriate consideration to that evidence and those circumstances, submissions and arguments. Again, doing the best I can on a preliminary assessment, this ground appears to be merely arguable, but no more than that.
Ground 3: The Judge gave insufficient weight to the serious difficulties the children were having before, during and after supervised time with the respondent father at the contact centre.
This ground of appeal addresses the circumstances that the difficult behaviour of the children during the supervised time, which included one child taking off her clothes, was given insufficient weight. Although the observations of the supervising centre were in evidence and relied upon, the concept that it was the time with Mr Sipos that caused that behaviour was not pressed or agitated in submissions or cross-examination of Mr Sipos. The evidence of the supervised time included that (at page 24 of 29 of the affidavit of Ms L filed 20 February 2024, also being page 20 of 25 of the G Contact Centre report) the supervising worker had expressed the opinion that, ‘it may be that 2 hours in a room is too long for [Y] and it is common that visits deteriorate towards the end. The worker said that we would keep the last visit at 2 hours but if further visits were required, we would reduce the visit time to 1.5 hours.’
It was not disputed that the supervision facility determined to reduce Mr Sipos’s time from 2 hours to 1.5 hours on subsequent visits. The other evidence that went to the difficult (my word) or unusual (again, my word) and dysregulated behaviour of the children included the family report writer’s observations of the children’s behaviour during her meeting with the children and Ms Hidalgo. The family report writer, at [131], was troubled by the children’s behaviour in Ms Hidalgo’s presence and opined that this related to the less-than-ideal permissive parenting style of Ms Hidalgo. The family report writer found Mr Sipos’s parenting style, at [130], to be different to Ms Hidalgo’s, and appropriate. I did not make a finding, nor was I satisfied, that Ms Hidalgo’s parenting style was deficient or that Mr Sipos’s was preferable, notwithstanding that that was a possible inference available. However, I did not dismiss the opinions and observations of the family report writer in this regard. However, taking all of the evidence together, including those parts referred to above, and the circumstance that it was not pressed by competent counsel that I should find that the children’s behaviour observed in the supervised visits was actually due to the children’s exposure to, or time with, Mr Sipos, I did not make such a finding. Another possible inference is that the behaviour observed in the supervised visits related to the confinement of the active children in ‘a room’ for such a period and/or the parenting style of Ms Hidalgo. Another possible inference is that the behaviour observed in the supervised visits related to Ms Hidalgo’s stress and/or unhappiness in facilitating the supervised visits. Another possible inference is that some combination of all of those circumstances caused or contributed to the behaviour of the children. On the evidence these possibilities were but faint. But to so find that any of those mere possibilities was a causal factor would have been mere speculation. I did not make such finding, nor was it pressed that I should. But the point is that the evidence and the conduct of the case is far away from a weighty contention that the children’s behaviour at the supervised community facility was due to Mr Sipos and/or the concept of whether he should have time with them at all. There is some irony that Ms Hidalgo now presses for orders that would have the children go back to that same, or similar, facility for limited time with their father.
A preliminary assessment of this ground does not satisfy me that this ground has any prospect of success or is arguable.
Ground 4: The Judge failed to give sufficient weight and consideration to the safety and risk posed by the paternal uncle Mr QQ, who lives at the paternal grandparents’ house. Including potential sexual assault against Y, by Mr QQ.
The evidence said to demonstrate a risk of exposure by the children to their paternal uncle, Mr QQ (‘the Paternal Uncle’), was at [160] and [161] of Ms Hidalgo’s trial affidavit. It was not pressed in submissions that there was any actual risk to the children of being exposed to the Paternal Uncle. Whether or not that was pressed or part of Ms Hidalgo’s case, the evidence did not amount to a proper basis to find that there was a risk to the welfare of the children from the Paternal Uncle.
Again, a preliminary assessment of this ground does not satisfy me that this ground is likely to succeed or is arguable.
Ground 5: The judge failed to give sufficient weight and consideration to the size of the paternal grandparents’ house and how it can accommodate sleepovers, with four adult men and the maternal grandmother sleeping and/or living in the house.
The physical circumstances of the Paternal Grandparents’ accommodation were not in question during the trial and I do not recollect any submissions about this circumstance. There is no evidence or basis by which I could have inferred that overnight accommodation at the Paternal Grandparents’ home would necessarily and inevitably be inadequate. It was my assessment that the Paternal Grandparents were caring grandparents and, implicit in that finding, is the obvious consideration that they would ensure appropriate accommodation for the children at times of overnight time when the regime gets to that.
My preliminary assessment of this ground, taking into account the evidence and the submissions of the parties, does not satisfy me that this ground has any, even small, prospect of success or is arguable.
Ground 6: The Judge failed to give sufficient weight and consideration to the uncontested evidence given by Ms N - who is referred to as ‘Ms N’ in the judgment and reasoning.
Ms N had sworn an affidavit, and this was relied upon, but Ms N was not required for cross-examination. I dealt with Ms N’s evidence at [75] of my reasons. The substance of Ms N’s evidence was that she had been told by another intimate partner of Mr Sipos’s of matters that if reliable and even substantially correct went to the issue of risk of the children being exposed to future events. Notwithstanding that I was unable to find that what Ms N said Ms F said had occurred, I took into account, against the submissions of Mr Sipos’s counsel, that it was possible that such events had occurred, and that possibility partly informed the assessment of future risk. The end result of that was that I imposed the significant restriction on Mr Sipos, and burden upon the Paternal Grandparents, of the Paternal Grandparents being involved with all time for the children and Mr Sipos by overnight time always being at their home and one of them being present at the police station changeover at the start of time.
On a preliminary assessment of the strength of this ground, while not satisfied that there is any significant prospect of success on this ground, I am satisfied that this ground is arguable.
Ground 7: The judge made a decision that was plainly wrong and an error of fact, that the paternal grandparents were not aware of the abuse and family violence.
Ground 7 engages that part of Ms Hidalgo’s case that the Paternal Grandparents should be regarded as ‘enablers’ of Mr Sipos’s violence to her. I dealt with that issue at [215] - [220] inclusive of my reasons. I accepted the evidence of each of the Paternal Grandparents on this point.
On a preliminary assessment of the strength of this ground, and doing the best I can, it is difficult to see how this ground is arguable, but I will proceed on the basis that it is possible that this ground is arguable.
Ground 8: The judge made a decision that was plainly wrong and an error of fact, that there was not an unacceptable risk by the father.
This ground engages the concept of a finding of ‘unacceptable risk’. I proceeded on the basis that reference is, at this time, a ‘shorthand’ expression of the multitude of matters to be taken into account in determining the best interests of the children and arrangements that ensure the safety of the children and caregivers in Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
It appears that, at its highest, this ground is arguable.
Ground 8: (where second appearing)[4] The judge failed to give sufficient weight and consideration to the father's diagnosis and the risk it poses on the children - including the likely trait of lying and manipulation.
[4] There are two grounds consecutively numbered ‘8’.
This ground engages Ms F’s opinion that Mr Sipos suffered the condition described as ‘[a mental health condition]’. I was not satisfied that Mr Sipos did suffer that condition on all of the evidence. I dealt with that analysis at [151] – [156] of the reasons. Nonetheless, I took into account that Ms F had so assessed Mr Sipos and attempted to take that circumstance into account in assessing orders that took into account the welfare of the children, including their safety and the safety of Ms Hidalgo.
On a preliminary assessment, I proceed on the basis that this ground is arguable.
Ground 9: The judge failed to sufficiently apply the Family Law Amendment Act 2023 - enacted on 6 May 2024 .
This broad ground alleges that what can be described as the ‘new’ provisions of the amending act, coming into effect on 6 May 2024, were not sufficiently applied. On a preliminary assessment, this ground appears to be only faintly arguable.
Assessment of the prospect of success on appeal overall
I am again guided by Ryan J in Sarti as assessment of prospect of success on appeal. At [10] Ryan J observed:
10.Otherwise, it is one thing to establish that an appeal raises interesting legal questions, and another to demonstrate its prospects of success. Some caution is appropriate in the assessment of the merits of the appeal, and at this stage, all that needs to be said is that there is a presumption in favour of the correctness of the decisions under appeal, the fate of the appeals is uncertain and the parents have not established that the orders will almost certainly be set aside.
Taking all of the grounds of appeal together and the further submissions of Ms Hidalgo to me, as a preliminary assessment, or a limited preliminary assessment as necessary in a stay application, I am satisfied and proceed on the basis that the appeal should be regarded as only arguable and with a faint, but not nil, prospect of success.
The ninth dot point of Aldridge & Keaton (Stay Appeal), as argued in the authorities over many years, usually relates to chopping and changing the children’s residence, or the prospect of chopping and changing their residence as being unsatisfactory. Such a circumstance is self-evidently deleterious to the welfare of the children. In this case, the residence of the children will remain with Ms Hidalgo. I do take into account that if the appeal is successful, the more limited spend time orders and professional supervision as pressed by Ms Hidalgo would be different to what I have ordered, and it cannot be said that such a change would have no impact at all upon the children. I take the potential impact on the children of such change of spend time arrangements into account on this stay application and regard it as a matter that contends in favour of the stay application as pressed by Ms Hidalgo.
This tenth dot point of the Aldridge & Keaton (Stay Appeal) considerations deals with how long it will be before the appeal is heard and determined. The reality (that I am satisfied I can take account of pursuant to section 140 of the Evidence Act 1995 (Cth) is that the current arrangements for the hearing of appeals in the Full Court of the Family Court of Australia mean that there is only a very modest delay from the filing of an appeal to the hearing of the appeal where the appellant has complied with the Rules and the directions of the Court relating to the appeal. I proceed on the basis that Ms Hidalgo will promptly and expeditiously comply with all requirements to ensure that the appeal is dealt with as promptly and properly as practical.
The circumstance of Mr Sipos’s response and the conditions that he seeks in regard to the stay, in my view, sensibly accommodate the appeal being heard and determined in the not-too-distant future. The likely period of time between the filing of the appeal and its determination neither contends for or against the conditions of the stay as pressed by Ms Hidalgo or as pressed by Mr Sipos.
The last, or eleventh, dot point of Aldridge & Keaton (Stay Appeal) urges that the best interests of the children be taken into account as a significant consideration. But, on a stay application following a final hearing, the best interests of the children, although significant, are one of a number of considerations and not the paramount consideration as they were during the trial and my decision and reasons.
For reasons outside the control of the parties, the G Contact Centre facility that was available for these children during the trial and in the lead up to it ceased shortly after the trial, in August of 2024. In this case it is now common ground that the children should spend some time with their father but Ms Hidalgo presses that this should be limited and professionally supervised.
I take into account on this stay application that the family report writer regarded the Paternal Grandparents as at least adequate, or suitable, supervisors and that their evidence was subject to cross-examination. To the extent that I regarded supervision as necessary to mitigate risk of harm to the children, I found the Paternal Grandparents to be suitable supervisors. I was also satisfied that the children had much to gain from experiencing the family environment of the Paternal Grandparents’ home and family, including Mr Sipos. I am satisfied that the best interests of the children contend strongly to the stay conditions pressed by Mr Sipos save as to the limitation of the period of the stay discussed later.
CONCLUSION AS TO THE STAY
Balancing all of the submissions and considerations of the competing conditions of a stay, including the limited prospects of success of the appeal, I am satisfied that the balance of convenience lies with the conditions of the stay as pressed by Mr Sipos. The significant limitation and imposition upon Mr Sipos’s time with the children that supervision imposes, as sought by Mr Sipos, is an appropriate balancing of the multitude of factors to be taken into account on this stay application, including the balance of convenience and the best interests of the children.
There is one significant difference between the stay on conditions that I will order and those of the response to an application in a case pressed by Mr Sipos. As drafted, the stay on conditions conceded by Mr Sipos had the stage of order 6 (c), but supervised, for six visits only, not until the conclusion of the appeal. But the next stage of the orders, 6 (d), was proposed to be stayed until further order. At [35(c)] of his affidavit filed in support of his response Mr Sipos asserted that the stage of 6(c), but supervised, would continue until the completion of the appeal. Hence it is likely that the drafting of the “new” 6 (c) merely, by oversight, failed to delete the reference to six weeks.
Another inference available is that the reasoning behind this was that the appeal would likely be concluded by the end of those six visits.[5] That maybe so. But if the stay was limited in duration, the relatively small degree of uncertainty that comes from the manner in which an appellant prosecutes an appeal, the listing of the appeal, whether the decision is reserved and if so for how long, all combine to potentially cause trouble and disputation between the parents at the conclusion of the six visits of that stage of the graduated regime. It is more likely that the proposed condition of six visits at the proposed 6(c) was an oversight. I was not addressed on this point. As drafted, on one view, the regime would cease until the end of the appeal. If so, this would potentially create a lacuna in the orders of the stay and, if so, potentially cause trouble and disputation between the parents at the conclusion of the six visits of that stage of the graduated regime. For those reasons, I am satisfied if there is to be a stay it should be to the conclusion of the appeal, provided the appeal is prosecuted expeditiously and in accordance with the applicable rules. This accords with Mr Sipos’s statement at [35(c)].
[5] The stage of order 6(a) being supervised over 4 consecutive Saturdays, Stage 6(b) being supervised over six consecutive Saturdays and stage 6(c) being over 6 consecutive Saturdays (as ordered to be with the Paternal Grandparents in substantial attendance but conceded to be supervised for 6 occasions): a total of about 16 weeks or not quite 4 months.
I take into account the inevitable burden on the Paternal Grandparents of a potentially longer period of supervision and the inherent artificiality and restriction of supervision for the children, but I am satisfied the Paternal Grandparents will shoulder this further burden. They attended the courtroom supporting Mr Sipos on both days of the stay application and Mr Sipos’s affidavit at [35(c)] refers to supervision remaining until the “appeal is heard”. From those circumstances I infer their continued preparedness to supervise their son’s time with their grandchildren. Instead of the limited duration that assumed completion of the appeal within a certain time frame, or a lacuna, on balance I am satisfied the implicit liberty to apply to lift or vary the stay in the event of a failure to prosecute the appeal should be made explicit.
Although opposed by the solicitor for Mr Sipos, as discussed in my reasons at [279] and discussed on this stay application with the parties, I am satisfied that the balance of convenience and the circumstances of the children and Ms Hidalgo, consistent with my finding that Ms Hidalgo should have a week to prepare herself to comply with these orders, are such that this stay should come into effect seven (7) days after these reasons and orders, and I will so order.
Otherwise, I will make orders in terms pressed by Mr Sipos in his response to an application in a case, but as discussed with the parties at hearing, the additional provision that there be express liberty to apply in the event of the appeal not being properly and expeditiously pursued by the appellant, Ms Hidalgo. I assume such liberty to apply would exist regardless of such an order, but such a liberty to apply in those circumstances is a significant matter that I take into account in making the stay upon the conditions pressed by Mr Sipos and such liberty should be clear and expressly stated rather than the subject for potential argument.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 February 2025
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