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

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

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

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”).
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.
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…

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 Letsos and Vakros

Details

AGLC: Letsos and Vakros [2012] FamCA 771
Case: [2012] FamCA 771
Decision Date

CaseChat Overview and Summary

This case involved an application by Mr Letsos (the father) against Ms Vakros (the mother) for contempt of court pursuant to section 112AP of the Family Law Act 1975 (Cth). The application concerned alleged non-compliance with an order made on 26 September 2011, which established a scheme for the father to spend supervised time with the child at a contact centre. The mother was not present when these orders were made, and a significant issue arose regarding whether she had been properly served with and had knowledge of the orders. The contempt application was heard in the Family Court of Australia by Ryan J.

The court was required to determine several key legal issues. Firstly, whether the orders made on 26 September 2011 were properly served on the mother. Secondly, whether the mother had knowledge of the contents and meaning of these orders. Thirdly, if service and knowledge were established, whether the mother's conduct constituted a flagrant challenge to the authority of the court, as required by section 112AP(1)(b) of the Act. Finally, if contempt were established, the court needed to consider what action, if any, was appropriate given that the order in question had subsequently been set aside.

The court applied the principle that the applicant bears the burden of establishing the elements of contempt beyond reasonable doubt, as per *In the marriage of Tate*. It was also noted that strict adherence to procedural rules is generally required in contempt proceedings due to their seriousness. The court considered the mother's affidavit, which stated she was unaware of the orders until 21 November 2011 and consulted a solicitor as soon as she became aware. The father's attempts to rely on affidavits of service were unsuccessful as the deponent was unavailable for cross-examination. The court found that the father had failed to establish beyond reasonable doubt that the mother had knowledge of the orders prior to late November 2011, and therefore, her conduct did not amount to a flagrant challenge to the authority of the court.

Consequently, the contempt application filed by the father was dismissed.

Orders