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

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

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.
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…

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 Yargis and Hope

Details

AGLC: Yargis and Hope [2007] FamCA 1379
Case: [2007] FamCA 1379
Decision Date: 22 November 2007

CaseChat Overview and Summary

This matter concerned an application for a stay of certain orders made on 22 August 2007, pending the hearing of the father's appeal. The parties involved were the father and the mother, and the application was heard by Moore J.

The primary legal issue before the court was whether to grant a stay of specific orders concerning the children's time with their mother, pending the father's appeal. The court was also required to consider an application to dismiss a stay of other orders.

Moore J ordered a stay of orders 3(b) to (f) made on 22 August 2007, pending the father's appeal. However, order 3(a) was varied to specify that pending the appeal, the children would spend time with their mother each Saturday for four hours at agreed times, to be supervised at a contact service, with the costs of supervision to be borne by the mother. The application to dismiss a stay of orders 1 and 2 and 4 to 15 inclusive made on 22 August 2007 was dismissed.

Orders

Orders of the court

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.

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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