Letsos and Vakros (No. 2)

[2013] FamCA 218

FAMILY COURT OF AUSTRALIA

LETSOS & VAKROS (NO. 2) [2013] FamCA 218

FAMILY LAW – CHILDREN – Application to reopen

APPLICANT: Mr Letsos

RESPONDENT: Ms Vakros

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 2710 of 2007

DATE DELIVERED: 21 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 15 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: No Appearance

Orders

IT IS ORDERED

1. That the Application in a Case filed by the father on 13 February 2013 be dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Letsos & Vakros (No. 2) 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:

Mr Letsos

Applicant

And

Ms Vakros

Respondent

REASONS FOR JUDGMENT

1. The substantive proceedings before the Court concern a child, M (“the child”). The parties to the proceedings are her parents, the applicant, Mr Letsos (“the father”) and her mother, Ms Vakros (“the mother”). In the substantive proceedings the father seeks an order that he spend time with the child and the mother seeks that his application be dismissed. The substantive proceedings were heard on 3, 4 and 5 December 2012 and judgment was reserved.

2. At the end of the substantive hearing counsel for the mother and counsel for the independent children’s lawyer made oral submissions. The father told the Court that he preferred to make his submissions in writing. He said that his submissions had been prepared but due to some failure with his computer equipment he had not been able to print them and bring them to Court. He told the Court that he would file the submissions by 9.00 am the next morning.

3. The submissions were not in fact received on 6 December 2012 but on 11 December 2012. The father filed extensive written submissions of 24 pages in length.

4. On 13 February 2013 the father filed an Application in a Case seeking, firstly, to adduce fresh evidence and secondly, to make further submissions. That application was listed for determination on 15 March 2013.

5. When the matter came before the Court there was no appearance by the mother or the Independent Children’s Lawyer (“ICL”). The father tendered a copy of the application which he had forwarded by post to each of them. That document clearly showed the return date and time. I am satisfied that the mother and the ICL had notice of the application. The matter proceeded on the basis only of the evidence of the father.   

6. On that day, after hearing oral submissions from the father, the application was dismissed and I indicated that written reasons would be provided.

7. In relation to the father’s application to adduce fresh evidence, the evidence which he seeks to bring before the Court is a DVD of the father and his two sons who are not the subject of these proceedings. The father in his affidavit indicates that he had the DVD in his possession at the time of the hearing of the substantive application but it was not tendered. Had the father sought to tender the DVD which, he said was relevant because it demonstrated that he had a good relationship with those children, the tender would have been refused.

8. The only cogent evidence before the Court in relation to the father’s relationship with his two sons was the evidence of the person who prepared a Family Report in earlier proceedings relating to those children. His evidence was that the children had a good relationship with their father. In those circumstances the tender of a DVD to prove a fact which was not in issue would have been rejected in the substantive proceedings.

9. The DVD is not relevant to the decision which is before the Court and the application to adduce fresh evidence is refused.

10. In relation to the application to make further submissions it is relevant to recite some of the history of these proceedings. The father first filed an application in the Federal Magistrates Court on 7 April 2007 when the child was three months old. She is now six years old.

11. A detailed history of the proceedings will be included in the reasons for judgment in the substantive matter. It is sufficient to say that the matter has been heard by the Federal Magistrates Court, it was transferred to the Family Court, there was an appeal to the Full Court of the Family Court which was heard and determined, judgment being delivered on 16 March 2012.

12. When the matter came before me in December of 2012 it was the father’s estimate, on the first day of the hearing, that he had been to Court 137 times in the course of the proceedings.

13. It is also relevant to note that at the commencement of the hearing of the substantive proceedings, an application was made on behalf of the mother for an adjournment on the basis that the father had served material late and the mother was not in a position to meet it. That application was substantially refused on the basis of the long history of litigation between the parties and the necessity for the matter to be resolved.

14. The father has had ample time to make such submissions as he deems appropriate and the interests of justice require that these proceedings be brought to an end.

15. The Court has already extended to the father the indulgence of written submissions in circumstances where counsel appearing for the other parties made oral submissions and has extended the time in relation to which the father was able to lodge those submissions.

16. The interests of the administration of the Court and the interests of the child and the other parties to the proceedings require that this matter be determined and the father’s application to make further submissions will be refused.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 March 2013.

Associate:

Date:  21 March 2013