Yargis and Hope

[2007] FamCA 1379

FAMILY COURT OF AUSTRALIA

YARGIS & HOPE [2007] FamCA 1379

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of parenting order – Introduction of unsupervised visits pending appeal 

Family Law Act 1975 (Cth)

APPLICANT: Mr Yargis

RESPONDENT: Ms Hope

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyer

FILE NUMBER: SYF 3143 of 2003

DATE DELIVERED: 22 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 22 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: Appeared on her own behalf by telephone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cumming

Orders

1.Subject to the variation of order 3(a) set out in order 2 hereof, pending the hearing of the father’s appeal the operation of orders 3(b) – (f) inclusive of the orders made 22 August 2007 is stayed. 

2.Order 3(a) of the orders made 22 August 2007 is varied to now read:

“3.The children are to spend time with their mother as follows subject to these orders:

(a) pending the hearing of the father’s appeal:

(i)       each Saturday for four (4) hours at times to be agreed;

(ii)to be supervised at the [C] Contact Service at […];

(iii)costs related to the supervision in (ii) to be paid by the mother.”

3.The application for a stay of orders 1 and 2 and 4 to 15 inclusive made on 22 August 2007 is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Yargis & Hope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3143 of 2003

MR YARGIS

Applicant

And

MS HOPE

Respondent

REASONS FOR JUDGMENT

1. On 22 August 2007 I made parenting orders about the arrangements for two children aged almost 8 years and 6 ½ years.  The proceedings were conducted under the Children’s Cases Program. In the course of proceedings an independent children’s lawyer was appointed.  When the matter was listed to conclude the mother represented herself and the father was represented by counsel and instructing solicitor.  Ultimately, discussion in and out of court led to the making of detailed orders by consensus; hence, no reasons for judgment were given. I saw merit in permitting the process the parties adopted to continue, bearing in mind the evidence given to that point including the assessment of the children’s position according to the Family Reports, and would not have permitted those discussions to continue and take a direction which I considered did not align with the best interests of the children. 

2. The orders are quite lengthy and need not be set out here.  They are expressed to be pending further order and I am to review the arrangements in May next year.  Amongst other arrangements put in place, I continued the appointment of the independent children’s lawyer for 12 months.  I also made a supervision order pursuant to s 65L of the Act and with his permission appointed Mr G, Family Consultant who assisted in the progress of the case, to act in that role.  Other orders were directed to a raft of procedures related to the mother’s submission to random testing to confirm abstinence from prohibited drugs.  The children’s time with their mother was staged to move from a supervised setting [in place for many months beforehand] to unsupervised time and eventually to overnight and block periods. More particularly, order 3(b) provides for the supervision at a designated Contact Service to conclude this coming weekend and when day only unsupervised time with their mother would be introduced for a period of six months concluding 24 May 2008 when the matter would be reviewed. 

3. On 31 August the father filed a Notice of Appeal. Clearly there is no bar to lodging an appeal where orders were made in effect by consent and nor does the absence of reasons present an obstacle; appeals are lodged from orders, not reasons.  In any event, the orders the father seeks in substitution for those of 22 August are for the mother’s time with the children to be supervised at a Contact Centre or similar facility for 6 months for 4 hours a week, for the next 6 months the time to be from 10am to 5pm one day per week at the weekend and supervised by a responsible person, and at the end of 12 months the matter be re-listed to ‘visit the issues of unsupervised and overnight contact’. He also seeks different orders to those pertaining to testing for prohibited drugs; namely, the mother to provide to him in the first 3 months 3 urine analysis tests per week to be undertaken with strict chain of custody procedures; for the next 3 months 2 urine analysis tests per week; and for 6 months thereafter once per week. The children’s time with their mother would continue so long as the tests do not result in a positive return. 

4. On 4 September 2007 he filed an application for a stay of the orders pending appeal.  Yesterday Boland J made procedural orders directed to the preparation of the appeal. Mr Cumming advised that in making the procedural orders Boland J intimated, assuming compliance with directions, that the appeal would be heard in the sittings commencing 5 February.  Made aware yesterday of the stage the appeal had reached, I permitted the stay application to be listed before me on short notice this morning. 

5. By that application the father confirmed that he seeks to impose now the orders sought in the appeal, both as to supervision of the mother’s time with the children and her submission to urine analysis. 

6. The mother’s position is that as the hearing of the appeal is so close she would not argue about the continuation of the supervision at the Centre subject to it occurring every Saturday rather than each week alternating between Saturday one week and Sunday the next [see order 3(a)(i)].  As she explained, for the past 7 weeks she has been in full time employment from Sunday to Friday and over that time visits have only been occurring every second Saturday because her work commitments have meant she is unavailable on Sundays. 

7. Mr Cumming said that in light of the mother’s concession he would not make any submission contrary to that outcome.

8. In addressing her suggested change, the father said he would agree to the change from alternating Saturdays and Sundays to every Saturday.  He went on to relate difficulty in accommodating the 9.30am start time allocated by the Centre on Saturdays, preferring an 11.30am start, he said he wants the independent children’s lawyer to instigate the random urine analysis via text message, and he expressed views about the mother’s priorities between working and seeing the children.  None of that needs discussion here but probably some short comments should be made in passing.  Nothing arose from the difficulty the father said he has with the times allocated by the Centre on Saturdays and it is taken he will comply with the times available.  Next, the order he seeks about urine analysis in his appeal proposes no mechanism to instigate timing and nor does it identify who would instigate it.  The 22 August orders do have a mechanism and include the father instigating random testing via SMS.  The mother says he has not once sent a request. The father did not identify the ‘difficulty’ he sees with the arrangement, but in any event Mr Cumming does not agree to his proposal that the independent children’s lawyer take over responsibility for it.  I regard Mr Cumming’s position as entirely reasonable. Finally, it should be said that the mother briefly replied to the father’s comments about her priorities by saying work is important not only to her long term recovery but also for the children. 

9. Time and continued supervision aside, it remains to consider introducing now the orders he seeks about urine testing in his appeal. Mr Cumming does not support any change to the suite of orders on the topic.  For my part, given the supervision is to continue at the Contact Centre pending the appeal, I am satisfied that no change to those orders is necessary. 

10. Accordingly, the orders are:

    1.Subject to the variation of order 3(a) set out in order 2 hereof, pending the hearing of the father’s appeal the operation of orders 3(b) – (f) inclusive of the orders made 22 August 2007 is stayed. 

    2.Order 3(a) of the orders made 22 August 2007 is varied to now read:

    “3.The children are to spend time with their mother as follows subject to these orders:

    (a) pending the hearing of the father’s appeal:

    (i)       each Saturday for four (4) hours at times to be agreed;

    (ii)to be supervised at the [C] Contact Service at […];

    (iv)costs related to the supervision in (ii) to be paid by the mother.”

    3.The application for a stay of orders 1, 2 and 4 to 15 inclusive is dismissed. 

11. Before concluding perhaps something should be said of the principles related to the grant or refusal of a stay pending appeal, though they are of no real significance given the mother’s concession about continued supervision pending the appeal.  There are no provisions about it in the Act but authorities suggest a range of factors for consideration in the exercise of discretion:

    ·   whether refusing a stay will render a successful appeal nugatory or will make it impossible or impracticable to restore the position;

    ·   the merits of the appeal;

    ·   whether there has been delay in applying for the stay;

    ·   the bona fides of the applicant;

    ·   the time it is expected for the appeal to be heard;

    ·   any hardship that would be suffered by the parties as a result of granting or refusing the stay.

    [eg. See Jennings Constructions Ltd & The Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681 at 684 and Grassby & The Queen (1989) 63 ALJR 348]. Whether or not the relief is granted will depend on the circumstances of the case.

12. Principles have been developed for addressing more specifically the position of children under parenting orders and it is accepted in this Court that in those circumstances the Full Court decision in Clemett (1981) FLC 91-013 applies. Their Honours approved the statement by Watson SJ in the earlier case of Carlin (1977) FLC 90-320 as follows:

    ‘Without in any way fettering discretion it seems to me that I should in this case consider (a) the rights of the children (see section 43); (b) the delays as to appeal; (c) whether refusal of a stay renders a successful appeal nugatory; (d) the hardship to the successful respondent in comparison to the hardship of the appellant; (e) the grounds of appeal.’

13. The decision stresses the importance of the rights of the children, noting the desirable of avoiding frequent changes in custodial arrangements: 

    ‘....if the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.’

14. [See also Hock Hing & Foster (No 1) 13 Fam LR 79 per Kirby P [as he then was]]

15. In coming to the decision already indicated, the merits of the appeal are of no real significance by reason of the approach taken by the mother. As she will submit to continued supervision for the relatively short period between now and the appeal I see no need to change the random testing or other orders because it could not be said the ‘present circumstances of the child’ are not satisfactory.  The merits of the father’s arguments will be for the Full Court to hear and consider, suffice to say I remain of the view that the structure those orders put around the children’s time with their mother is consistent with their best interests.  Nor are the other usual considerations of any real significance.  It is accepted that the father has not delayed in lodging his appeal or in applying for a stay and his bona fides do not fall for discussion.  The timing of the appeal is foreshadowed for early February and as that is reasonable soon the mother’s concession about continued supervision, subject to the change she requested, is an acceptable one. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate

Date:  22 November 2007