Letsos and Vakros

[2012] FamCA 771

FAMILY COURT OF AUSTRALIA

LETSOS & VAKROS [2012] FamCA 771

FAMILY LAW – CONTEMPT – Application by the father alleging the mother was in contempt of orders – Where orders made the father to spend supervised time with the child – Where the mother was not present when orders made - Whether the orders were served on the mother – Whether the mother had knowledge of the contents and meaning of the orders: LGM & CAM (2006) 35 Fam LR 124 – Where the orders were explained to the mother by a solicitor – Where the mother’s delay in communicating with the contact centre is not tantamount to a flagrant challenge to the authority of the court - Where the father failed to establish contempt beyond reasonable doubt: In the marriage of Tate (2002) 29 Fam LR 195 – Contempt application dismissed.

Family Law Act 1975 (Cth) s 112AP

Basic & Newman (1992) FLC 92-297
Ibbotson & Wincen (1994) FLC 92-496
In the marriage of Tate (2002) 29 Fam LR 195
Kendling & Anor & Kendling (Contempt) (2008) FLC 93-384
LGM & CAM (Contempt) (No 2) (2008) 38 Fam LR 229
Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866,
Vakros & Letsos [2012] FamCAFC 40

APPLICANT: Mr Letsos

RESPONDENT: Mr Vakros

FILE NUMBER: SYC 2710 of 2007

DATE DELIVERED: 7 September 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 16 & 17 August 2012

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Mr Letsos appeared in Person

COUNSEL FOR THE RESPONDENT: Mr Battley

SOLICITOR FOR THE RESPONDENT: Lees & Givney

Orders

1. That the contempt application filed on 11 November 2011 (as subsequently amended on 24 November 2011) by Mr Letsos (“the father”) is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Letsos & Vakros  has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2710 of 2007

Mr Letsos

Applicant

And

Ms Vakros

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Letsos (“the father”) that Ms Vakros (“the mother”) be dealt with for contempt of court pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).

2. The contempt application was filed on 11 November 2011 and subsequently amended by an application filed 24 November 2011.  It is that latter application on which the father relied.  The application is brought in the context of surprisingly lengthy proceedings in which the father has sought to establish a relationship with his daughter, M (“the child”).  The child is five years old and lives with her mother.

3. A preliminary and significant issue was raised by the mother in the substantive proceedings about whether the child’s father is the applicant in these proceedings or her partner. In the Federal Magistrates Court, where until recently these proceedings have been undertaken, an order was made pursuant to s 69W of the Act for DNA parentage testing. With this order the mother failed to comply. This culminated in a declaration (made on 26 September 2011) pursuant to s 69VA that the applicant in these proceedings is the child’s father. That declaration of parentage is conclusive for the purposes of all laws of the Commonwealth.

4. Having obtained leave to appeal out of time against the orders made on 26 September 2011, the mother’s appeal against the declaration of parentage failed. (Vakros & Letsos [2012] FamCAFC 40).

5. On the same day that the Federal Magistrate made the declaration of parentage, he made orders in relation to the father’s application to spend time with the child, which instituted a scheme of supervised time at a contact centre.  It is common ground that when these orders were made the mother had departed the hearing and they were made in her absence.   She also appealed against those orders.  In this regard, it was accepted by the Full Court at [215] and [216] of the judgment mentioned earlier that the only application before the Federal Magistrates Court on 26 September 2011 was the father’s application for a declaration of parentage.  Thus, the appeal was allowed.  As a consequence, on 16 March 2012, Order 7 of the orders made on 26 September 2011 was set aside. 

6. Although that issue was remitted for rehearing, the Federal Magistrates Court transferred all proceedings to this Court.  Thus, this outstanding contempt application was also transferred.

7. Order 7 of the orders made on 26 September 2011 is the subject order in this contempt application.   So that it is clear, in the context of the mother’s appeal, on 23 December 2011, the Federal Magistrate granted a conditional stay of her Order 7 obligations.  There is no dispute that the mother failed to comply with the conditions imposed and thus she was not relieved of her obligations pursuant to Order 7. 

8. It is common ground that although the order has been set aside, she may nonetheless be found in contempt of obligations that continued until the order was set aside. Whether she should be is a different issue.  

9. It is worth noting that the matter came before me for directions on   3 August 2012.  In vain, I was hopeful that this would assist in an orderly hearing.  As the issues were explored the father was put on notice that knowledge and service of the 26 September 2011 orders was in issue.  An agreed list of documents was prepared in relation to which directions were made.  Relevantly it was agreed that the transcript of the hearing before the Federal Magistrate on 26 September 2012 would be read.  In addition, as the background to the contempt hearing was outlined, the solicitor for the mother informed me “there was an order that the mother make the child available within seven days – there’s a few orders relating to – Interrelate – for supervised time.  She didn’t do it.  [The father], in November, filed an application for contempt.” (Exhibit “D”)

10. To my and the father’s surprise, at this hearing counsel for the mother opposed the admission of the transcript.  The Court’s copy having been relied upon in the appeal by the mother (and certified by her solicitor) the transcript was admissible.  Counsel for the mother also sought to withdraw the admission made by the mother’s solicitor.  Although the mother was not present when the admission was made, it was sufficient to establish at a prima facie level that prior to when the father filed his first contempt application   (11 November 2011) the mother had not complied with Order 7.  The admission did not establish that the mother knew she had to. 

Order 7 of 26 September 2011

1. The Federal Magistrate made interim parenting orders providing that the father spend time with the child at a contact centre.  His Honour ordered:

   (7) By consent of the Applicant and the Independent Children’s Lawyer, and pending further order, Orders be made in accordance with the handwritten minute of order document dated 26 September 2011 and signed by the Applicant and the Independent Children’s Lawyer and initialled by me and placed with the papers, as follows:

   (a) The Applicant and Respondent, within 7 days, contact Interrelate Family Centre located at […], telephone […] and do all acts and things required by that service to enable the child [M], also known as […], to spend supervised time with the Applicant at the first available opportunity.

   (b) The child, [M], spend time with the Applicant, on a supervised basis, and subject to availability at Interrelate Family Centre, for no less than 2 hours each week.

   (c) The parties share the cost of the service provided by Interrelate Family Service.

   (d) The Respondent do all acts and things to ensure that [the child] is delivered to the Interrelate Family Centre at the appointed time.

   (e) The time that [the child] spends with the Applicant shall take place at the Centre in the absence of the Respondent and her partner, [Mr Tekosis] [sic].

Approach to s 112AP proceedings

1. Section 112AP is the governing provision and is set out below:

   (1)  Subject to subsection (1A), this section applies to a contempt of a court that:

   (a)  does not constitute a contravention of an order under this Act; or

   (b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

   (1A)  This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

   (2)  In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.

   (3)  The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.

   (4)  Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.

   (5)  Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.

   (6)  The court may make an order for:

   (a)  punishment on terms;

   (b)  suspension of punishment; or

   (c)  the giving of security for good behaviour.

   (7)  Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term.

   (8)  To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person’s liability to make the payment.

   (9)  In this section:

   order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.

2. It falls to the father to establish the elements of contempt beyond reasonable doubt:  In the marriage of Tate (2002) 29 Fam LR 195.

3. Because of the seriousness of the application adherence to procedural rules is generally required:  LGM & CAM (Contempt) (No 2) (2008) 38 Fam LR 229. There, at [123], Finn J explained the approach thus:

   [I] endorse the following remarks by his Honour in his reasons for judgment:

   [8] It is the case, and has been for well over a century, that procedural requirements in contempt proceedings are to be strictly adhered to unless there are strong reasons to do otherwise. As proceedings in which the respondent faces the possibility of imprisonment or other penalty, the applicant and the court must take them very seriously. As a mark of their seriousness the rules are generally strictly applied.

4. In Ibbotson & Wincen (1994) FLC 92-496 the Full Court per Fogarty, Baker and McGovern JJ, at [67] and [68], explained:

   Part XIIIA was introduced in 1989 following the report of the Australian Law Reform Commission — “Contempt” — to move away from the habitual use of the contempt powers of the Court for breaches of custody and access orders. It did so by setting up the detailed structure contained in that Part, a particular procedure, wider sentencing options, and the specific offence contained in s. 112AD: see Schwarzkopff, supra, at 79,287-8. Nevertheless, the powers of the Court to punish for contempt of Court arising from the breach of an order remain and are to be found in s. 112AP(1) (together with s. 35). It is clear that paragraph (b) of that sub-section contemplates that in some circumstances the contravention of an order will constitute a contempt of Court. It defines that circumstance as being where the contravention involves a “flagrant challenge to the authority of the Court”. Repeated breaches are not a prerequisite, although that may more readily attract this provision. The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD.

   In the ultimate, it is a question of fact and degree whether the stringent terms of the section are satisfied, bearing in mind, as was pointed in Basic and Newman (1992) FLC 92-297 that it is usually more appropriate to use s. 112AD.

5. In Basic v Newman Mullane J dismissed 12 counts of contempt against a parent for failure to comply with an order that a child spend time with a parent.  Mullane J found that an application under s 112AD (which is where contravention of parenting orders were then contained) would have been the appropriate means of addressing non-compliance.  The point which flows from Basic v Newman, relevantly, is that contempt procedures are difficult and used sparingly. 

6. In Kendling & Anor & Kendling (Contempt) (2008) FLC 93-384 the Full Court referred, with apparent approval to Ibbotson & Wincen, at [185]:

   …where the contravention involves a “flagrant challenge to the authority of the Court”. Repeated breaches are not a prerequisite, although that may more readily attract this provision. The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD.

   In the ultimate, it is a question of fact and degree whether the stringent terms of the section are satisfied, bearing in mind … that it is usually more appropriate to use s 112AD.

7. In Kendling reference was made to Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866, at [188], “… For a breach to come within the section it must be “a flagrant challenge to the authority of the Court”.  Having referred to the Oxford Dictionary meaning of “flagrant” as “conspicuously or obviously offensive” and the Macquarie Dictionary definition as “glaring, notorious or scandalous”, their Honours explained, at [193]:

   The fact that the breaches of the Court’s orders in this case do not represent the most extreme or flagrant challenges to the authority of the Court is not the test. What was required was that the trial Judge be satisfied that these breaches were exceptional or striking…

The key issues

1. Although this hearing was bedevilled by many distractions, the key issues on which the father bears the burden of proof beyond reasonable doubt are:

   a)Were the orders served on the mother, and if so when?

   b)Did the mother understand the meaning of the orders?  (LGM & CAM (2006) 35 Fam LR 124)

   c)If service of the orders and knowledge prior to late November 2011 is established, does the mother’s conduct constitute a flagrant challenge to the authority of the Court? 

   d)If contempt is established, because the orders have been set aside, what action, if any, is appropriate?  It was agreed that this issue will be addressed after delivery of these reasons.

Service on the mother

1. As will be apparent Order 7 imposed continuing obligations on the mother.  Because the mother was not present when Order 7 was made, service and knowledge of the order is a pivotal issue.    

2. The father sought to rely on two (unsworn) affidavits of service by Mr N.  Mr N was required for cross-examination but when called, was not available.  Attempts to contact him to give evidence by telephone were unsuccessful.  Permission for the father to nonetheless rely on Mr N’s affidavits was refused and those affidavits do not form part of the evidence.  The father correctly anticipated that he may have difficulty establishing service and proper knowledge to the requisite standard.  Thus he was given permission to rely on paragraph 22 of the mother’s affidavit filed in the Federal Magistrates Court on 19 December 2011.  The effect of his doing so is that while this enabled him to establish that by the end of November 2011 the mother had the orders, absent an admission by her, it made it very difficult for him to establish that she had them earlier.   

3. At paragraph 22 of the mother’s affidavit filed 19 December 2011, she said:

   I crave leave to refer to the Affidavits of [the father] sworn 1 November 2011 and 5 November 2011 in these proceedings which I saw for the first time on 11 December 2011.  Adopting the equivalently numbered paragraphs in Annexure “TL1” I say:

   (3)I was not aware that I had breach any Orders.  The first time I was aware there were any Orders made on 26 September 2011 was at the end of November as previously deposed.

   (5)I deny that I have sent [the father] any threatening, intimidating, defamatory and insulting letters as he deposes.

   (6)-(16)I deny that I have sent or cause to be sent the letters and envelopes referred to in the said Affidavit of [the father] and being part of his Annexures “A”-“I”.  It is not my usual practice to swear or use the word “fuck”.  As soon as I became aware of the Orders made on 26 September 2011 I consulted a solicitor and complied with the Orders, as best that I could.

   (17)-(19)I have not received a letter dated 26 September 2011 or any other letter from Interrelate Family Care Centre, other than the letter that I received in response to a letter I sent them which I have annexed as Annexure “H” in this Affidavit.

   (23)There was no Annexure “J” annexed to the Affidavit of [the father].

   (24)There was no Annexure “K” annexed to the Affidavit of [the father].

   (28)The first time I was made aware of the Orders of 26 September 2011 was when I received an email from the Associate for His Honour Federal Magistrate Kemp on 21 November 2011.

4. As counsel for the mother correctly said, the effect of the father’s reliance on paragraph 22 is that he adduced in his case evidence that:

   ·     the mother was unaware of Order 7 until 21 November 2011;

   ·     as soon as she became aware of the order she consulted a solicitor and complied with the orders as best she could;

   ·     that the mother says she is not the author of correspondence received by the father.

5. The corollary of this is that the father established that from 21 November 2011 until Order 7 was set aside, the mother had the orders and knew the obligations Order 7 imposed on her.  In this regard the orders are clearly expressed and could readily be understood by a lay person.  Because the mother consulted a solicitor in relation to the orders it is inferred that they were explained to her. 

6. Notwithstanding the evidentiary difficulties which the father faced in relation to service and knowledge prior to 21 November 2011, it is appropriate that this evidence is analysed.

7. On 7 September 2011, the mother’s former solicitor filed a Notice of Withdrawal as Lawyer and thus did not appear on 26 September 2011.  As was mentioned earlier, the mother appeared before the Federal Magistrate but left before the declaration of parentage or, indeed Order 7 was made.  Before the mother left, the Federal Magistrate outlined the applications before him.  His Honour said:

   ...  But at this point in time as far as the court is concerned it’s dealing with an application for a declaration of parentage by [the father] in respect of a child, [M], born […] January 2007.  That’s clearly spelled out in the amending initiating application filed 20 October 2010.  It’s clearly spelt out in my orders for that testing on 25 August 2009… (Exhibit “C”)  (A/B 5:1374)

8. The mother did not file a Notice of Address for Service after her former solicitor withdrew. In that Notice of Withdrawal, her former solicitor informed the Court the notice had been sent by email to two identified email addresses. The mother’s last known telephone number was also provided. Relevantly, the Notice of Withdrawal informed the mother that if she failed to file a Notice of Address for Service her last known address which was identified as Property M, NSW would, by virtue of the Federal Magistrates Court Rules, become her address for service. The mother’s parents live at this address.

1. By Order 9 dated 26 September 2011 the Independent Children’s Lawyer (“ICL”) was directed to “serve a copy of these orders, by post, on the respondent mother”.  The ICL is not a party to these proceedings and was, accordingly, excused.  In relation to compliance with Order 9 the father tendered a letter from the ICL to the mother dated 30 September 2011 (Exhibit “F”).  The letter was sent to Property M.  Having correctly identified the child, proceedings, name and number, the ICL wrote:

   We refer to the above matter and the orders that were recently made by the Federal Magistrate. 

   We advise that there is an error in the telephone number for Interrelate and the correct telephone number is:

   …

   This is the telephone number you need to call to make arrangements for [the child] to spend supervised time with her father. 

2. I agree with the father that there is an inference available to the effect that the ICL had already written to the mother about the orders made on 26 September 2011.  However, whether the ICL provided a copy of the orders or a précis, indeed an accurate précis, is not known and cannot be inferred.  Because of this uncertainty, at the father’s request, at the end of the first day an order was made that the ICL produce her records about compliance with Order 9.  Although that order was complied with there is no evidence of an earlier letter sent to the mother.  It follows, that Exhibit “F” does not advance the father’s proposition about service or proper knowledge of the orders.  In short Exhibit “F” does no more than establish that some information about the orders made on 26 September 2011 was probably provided to the mother. 

3. However, attached to the father’s affidavit filed 24 November 2011 are copies of letters which he says he faxed and emailed to the mother on 29 September 2011.  Essentially, the facsimile and email say that copies of the orders made on 26 September 2011 are attached and in the covering letter he expressed the pious hope that “[w]e can work this out and for you to allow me to see my daughter”.  The facsimile number is a number which the father believed to be the mother’s work number and the email address is the address provided on her former solicitor’s Notice of Withdrawal.  Because the father said he relied upon documents he saw in a District Court file (which concerns different litigation between the parties) to establish the mother’s facsimile number, during the hearing I requested the District Court to forward its file.  Like this Court’s file, the District Court file is large and only a potion was able to be transmitted.  Having inspected the District Court file the father explained that the document he remembered was not there.  The effect of this is that there is insufficient evidence to establish that that facsimile number (or indeed another he later used) is the mother’s number.  

4. In relation to the email (Annexure “D”), the read report shows that it was read at 8:48 am on 29 September 2011.  According to the father this establishes that the mother received a copy of the orders by email on 29 September 2011.  However, what is missing is any evidence that sealed copies of the orders made on 26 September 2011 had been issued and received by 29 September 2011. The gravamen of the father’s submissions is that he and the ICL provided the Federal Magistrate with handwritten consent orders (to which the mother is not a party). Unfortunately for the father, the effect of the material he presented is that I am not satisfied to the requisite standard that the document attached his email is a sealed copy of the orders.    

5. Attached to the father’s affidavit filed 11 November 2011 are letters and envelopes which he believes the mother sent.  On 1 October 2011, a letter was sent to him which said:

   What the fuck are you doing asking about my childs birth certificate if you cause any problems for us or do something that will piss me off or upset my family you will suffer the consequences (father’s affidavit filed 11 November 2011, Annexure “A”) (as per original)

6. The envelope is dated 1 October 2011.  The contents of the letter resonate with the facts of the parties’ dispute and, in circumstances where the father is not in dispute with any other person in relation to a child’s birth certificate, it is more likely than not that the mother wrote the letter.  Exhibit “G” is a printout from the father’s electronic diary in which he recorded having received the 1 October 2011 letter.  Exhibit “G” records the letter being received on 1 October 2011.  As the envelope in which the letter was posted is dated 1 October 2011 it is not possible that Exhibit “G” is reliable.  This means no more than the father mistakenly recorded the date upon which he received the letter.  It does not detract from the provenance of the letter or the date upon which it was sent.

7. Further correspondence of similar ilk was received by the father on or about 14 October 2011 which contained the following letter:

   Listen here you fucken pedifile leave us the fuck alone you will never see my daughter and I dont give a fuck what fucken judge says you made your decision when you went with that little slut now go back to her and leave us the fuck alone leave us alone or else and I am not fucken joking (father’s affidavit filed 11 November 2011, Annexure “D”) (spelling as per original)

8. Exhibit “I” is a photocopy picture of the father and a subsequent (to the mother) girlfriend on which the word “slut” is written across the woman’s face and the word “cunt” is written across the father’s face.  This was received with the 14 October 2011 letter. 

9. The father’s evidence is that he has previously received text messages from the mother in which she accused him of being a paedophile.  The point being the word “paedophile” is misspelt in the same way as it is in Annexure “D”. The text messages are not in evidence.  Nonetheless the contents and timing of this correspondence, prima facie, indicates that the mother received at least the father’s email of 29 September 2011 and possibly a copy of handwritten consent orders plus information gleaned from the ICL about what had occurred.

10. As required by the orders, the father contacted Interrelate within seven days.  He confirmed this by email to the mother on 6 October 2011 and reminded her that he could not “move forward without your cooperation”.  Exhibit “B” is a letter dated 24 October 2011 from Interrelate to the ICL.  Interrelate states that they wrote to the mother on 28 September 2011 inviting her “into the process, however I wish to advise you that to date we have had no contact from the Mother.”  The father misinterpreted this letter and suggested it was proof that Interrelate sent a copy of the orders to the mother.  Not only does the letter not say this but the letter sent to the mother is not in evidence.  Exhibit “B” does not advance the father’s case that prior to 21 November 2011 the mother had a sealed copy and proper knowledge of the orders.

11. The father was also in contact with the Registry of Births, Deaths & Marriages to have the child’s birth registration amended by his inclusion as the biological father.  Exhibit “E” is a letter dated 11 November 2011 from that agency to the father.  The letter confirms that a letter, it is inferred sent that day, was provided to the mother “for her response to paternity of her child as per our procedure”. The letter does not say that the Registry of Births, Deaths & Marriages sent the mother a sealed copy of the orders.  But even if it did, this would be insufficient to establish proof of service beyond reasonable doubt. 

12. However, depending upon which version of the mother’s evidence is accepted this is could be how she learned about the orders.  So that it is clear, in the following affidavit evidence, she makes it plain that a copy of the orders was obtained from the Federal Magistrate’s Court and not the Registry of Births, Deaths & Marriages.

13. According to the mother’s affidavit filed 8 December 2011:

    On or about 21 November 2011 I received correspondence from Births Deaths and Marriages which referred to Orders having been made.  I immediately contacted the Federal Magistrates [sic] Associate and was emailed a copy of the Orders made on 26 September 2011 and 18 November 2011.  That was the first time I received the Orders.  In respect of the Orders dated 26 September 2011, there is an address for me at [Suburb L].  I stopped living in [Suburb L] about three years ago.  I have not received, by post or otherwise, a copy of the Orders made 26 September 2011, until I received an email version from the Court on 21 November 2011.  (par 12)

14. This is consistent with paragraph 22 of the affidavit relied upon by the father.

15. However, in her oral evidence the mother said:

    [The father]:   I apologise, your Honour.  I’m sorry.  Ms [Vakros], you were aware that I had orders to spend time with my daughter; is that correct?‑‑‑No.  I was not aware.

    And when were you first made aware?‑‑‑Well, are you talking about when [Ms J] called me?

    I asked you a simple question?‑‑‑Well, I just want to know what you’re talking about, because I don’t.

    HER HONOUR:   When were you first aware?  That’s quite clear?‑‑‑I was first aware of [Ms J] calling me, I think it was around 20, 21 November.

    [The father]:   That’s not true and correct.  The email - - -?‑‑‑But that’s when I got the email from her.

    That’s not true, [Ms Vakros].  The email was received – did you recall sending me an email not to contact you and you have a lawyer?‑‑‑I don’t know.  I don’t recall.

    Right.  Do you recall me sending you an email back saying that you don’t have a lawyer because your lawyer filed a notice of ceasing to act?‑‑‑I don’t recall.

    Do you recall when your lawyer filed a notice of ceasing to act?‑‑‑Sometime in September.

    Would you agree with me that it was 6 September 2011?‑‑‑I can’t agree until I see the document.

    I will show you a document.  Thank you very much, ma’am.

    HER HONOUR:   The document that was provided yesterday says that it’s dated 6 September, and it was filed in the Federal Magistrates Court on 7 September.

    [The father]:   I’m sorry, your Honour, if I have misled the court.  I apologise.  Is that date 6 September?  The letter?‑‑‑Yes.

    Is that the previous lawyers?‑‑‑Yes.

    Right.  On the second page, there’s two email addresses there; is that correct?  For service?  Are they – could you read them out for the record, please?‑‑‑Let me just find them.

    Second page, it is?‑‑‑Yes.  There’s two emails on there. 

    Yes.  Could you read them out, please?‑‑‑[…]@[…]com.au and […]@live.com.

    Were they your emails at the time?‑‑‑Yes.

    Are they still your current emails?‑‑‑Well, I’m not at [Business C]  at the moment, and yes, the other one is. 

    Right.  Thank you.  That document, I think, is in tender, your Honour; is that correct?

    HER HONOUR:   That’s right.

    [The father]:   Thank you very much, your Honour.  Now, Ms [Vakros], I sent you an email on 29 September which went – thank you very much, ma’am – that went to Ms [J]; is that correct?  And [Ms J] contacted you on or about that day and spoke to you regarding the orders that were sent; do you recall that?‑‑‑Well, I don’t know the date.

    You don’t know the date?‑‑‑Well, I think it was around November.

    Okay.  Ms [Vakros], did you get a letter from Ms Weate?‑‑‑No.

    So Ms Weate has stated that she has sent you a letter.  If that’s correct, that means she would be not telling the truth; is that correct?‑‑‑I don’t know.  Well, what letter?

    Attaching the orders of the court of 26 September 2011?‑‑‑Sorry.  What was that?

    If Ms Weate stated that she sent you a letter in September with the court’s orders, would that statement be true or false?‑‑‑Which orders?

    26 September 2011?‑‑‑I already said I never received any orders.

    So would the statement that Ms Weate would have made, would that be true or false?‑‑‑I don’t know.

    Did you - - -?‑‑‑I just said I haven’t received any orders, so whatever Ms Weate says I can’t control that.

    Were you notified by Births, Deaths & Marriages?‑‑‑Not that I recall.  I haven’t received anything from them.

    You sure about that?‑‑‑No, I didn’t.

    Did you instruct your lawyers to contact Births, Deaths & Marriages and threaten them with legal action if they changed the birth certificate?‑‑‑Hold on, because - - -

    Can you please answer the question, Ms [Vakros]?  Did you instruct your lawyers to contact Births, Deaths & Marriages and threaten Births, Deaths & Marriages if they changed the birth certificate that they will take legal action?‑‑‑I don’t know what the letter would have stated, if they sent a letter.  I can’t remember.

    Ms [Vakros], did you give instructions to Ms Lees to contact Births, Deaths & Marriages and threaten them that if they changed the birth certificate of [the child] that they would take legal action?  Did you make those instructions?‑‑‑I don’t agree with what you’re saying.

    …

    [The father]:   Ms [Vakros], I put it to you that Births, Deaths & Marriages sent you a letter on 29 September, attaching the court’s orders, advising you that you have 14 days to contact them otherwise they would be changing the birth certificate to put myself as the biological father, and that is when you instructed your solicitor to contact Births, Deaths & Marriages and threaten them that if they do that, that they will take legal action; do you recall that?‑‑‑So, where’s the evidence that you’re the biological father of my child?

    HER HONOUR:   Yes.  Well, you can answer the rest of the question.

    [The father]:   Can you answer my question, please?‑‑‑I don’t know what letter has been sent, okay?  I don’t know.  Maybe we did respond to it.

    Did you?‑‑‑Maybe.

    So do you recall the orders that were sent by Births, Deaths & Marriages?‑‑‑I don’t recall seeing any orders.

    Right.  Do you recall – so you’re saying that Ms Weate is not telling the truth?‑‑‑I’m not saying - - -

    MR BATTLEY:   I object to that.

    [The father]:   Okay.  So you’re saying you received no orders from Ms Weate; is that correct?‑‑‑I’m saying I didn’t receive orders, whoever says they sent them.

    Can you just please try and answer the question.  So you’re saying that no orders were received by Ms Weate; is that correct?‑‑‑That’s right.

    So you’re saying that no orders were received by Births, Deaths & Marriages; is that correct?‑‑‑I don’t recall seeing any orders from anyone.

    Right.  And did you have any contact with […] Interrelate Centre?‑‑‑I did contact them.  Yes.

    Right.  Do you know when you contacted them?---Yes.

    When?---The beginning of March this year.

    The beginning of March this year?---Actually, no.  That was the phone call and an interview.  But, prior to that in December when I found out about the orders in November, we - Ms Lee sent them a letter in December sometime.

    Right.  So, were you aware that Interrelate sent you a letter attaching the court’s orders in September?---No.

    Ms [Vakros], are you saying that you’ve received no letters, no emails from me as to contact with the child?---I said I have not received orders.  You probably have sent a lot of nonsense emails which I’ve just ignored and deleted.  But I have not received any orders.  (Transcript, 17 August 2012, pp 25-27, 31-32)

16. There is an obvious discrepancy between the mother’s affidavit evidence and her oral testimony.  It would not overstate matters to describe the mother as a poor witness who, as far as possible, attempted to avoid answering the father’s questions.  She was argumentative and avoidant.  Phrases such as “I can’t recall” were a constant refrain and too often questions were answered with questions.

17. Probably the evidence which most reveals how unsatisfactory her approach to giving evidence was is in relation to events which occurred on 26 September 2011.  During a piece of cross-examination about her appearance at court that day, the mother was questioned about her stance before the Federal Magistrate that the proceedings related to a child other than M.  Correspondence had issued by the ICL which misstated the child’s year of birth by a decade.  Notwithstanding that the applications, orders and the like had for years correctly identified the child, the mother told the Federal Magistrate he had no power in relation to M because based on the letter from the ICL, he was asked to deal with a child named M who was 14.  Before me, the following exchange took place:

    [The father]: Do you recall the words “You go find your 14 year old, right.  You stay away from my family”?  He said that to his Honour.  Do you recall that?‑‑‑I believe he said that to you.

    He said that to me?‑‑‑Mm.

    But he was addressing his Honour.  His Honour was asking him to – “Mr [Tekosis], please take a seat behind Ms [Vakros]”.  And the response was, “You go find the 14 year old, right.  You stay away from my family.  Everyone stay away.  Let’s go”.  Do you recall that?‑‑‑That was ‑ ‑ ‑ 

    That’s found at page 7?‑‑‑I think that was when we were walking out, when I walked out with him.

    Right?‑‑‑He was saying it to you.

    Right.  And you said to his Honour, “I’m sorry, we’re not staying”.  Do you recall that?‑‑‑Yes.

    Do you recall his Honour calling security to have Mr [Tekosis] removed from the court?‑‑‑I don’t recall.

    He says, “Sir” – his Honour, “Sir, security, please.  Remove this man”.  Ms [Vakros], you said that – why did you – what reason was it that you wanted to leave?‑‑‑Because I did believe at the time when I looked through documentation that this was about a child that was born in 1997.  And it is possible.  Can I explain why it is possible?  Because my name is [Ms Vakros], I also have a cousin who is [Ms Vakros], no middle names, and we are five years apart.  So I can give you an example where a St George Bank got us mixed up because they thought we were just one person.  And we had to go both of us in together and explain to them that we are two separate people.  So that’s why I believed that there could have been an [M Vakros] born in 1997, just like with me and my cousin born five years apart.  (Transcript, 17 August 2012, pp 41-42)

18. It is appropriate, to approach the mother’s evidence with caution.  But in circumstances where the legal and evidentiary onus lies with the father, that the mother is an unreliable witness may be of little import to this contempt application.

19. By letter dated 12 December 2011 Interrelate wrote to the mother’s solicitors and confirmed firstly, that on the mother’s behalf her solicitors had made contact with Interrelate.  Secondly, that M was now on a waiting list to spend supervised time with the father.  The waiting list was about three to six months and thus nothing further was likely to happen until the first quarter of 2012.  This letter corroborates the mother’s evidence that she contacted Interrelate in early December 2011 (through her solicitor) and renders reliable her evidence that she was called in for a meeting with them in early March 2012.

20. There is voluminous evidence relied on in the father’s case about his contact with the mother’s employer in late November 2011 and that through them the mother received a sealed copy of the orders.  As it is clear that the mother had the orders by 21 November 2011 this tranche of evidence is irrelevant. 

21. At paragraph 19 of these reasons I set out the key issues to be determined.  Although the father was able to present sufficient evidence to establish a prima facie case, he has not established beyond reasonable doubt that she received a sealed copy of Order 7 prior to 21 November 2011.  Having received the orders on 21 November 2011, the Interrelate letter demonstrates that although the mother may have been a few days late in making contact with them, her delay is not tantamount to a flagrant challenge to the authority of the court.  

22. The father’s application will thus be dismissed.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 September 2012.

Associate: 

Date:              7 September 2012