Rilak and Tsocas
[2016] FamCA 546
•7 July 2016
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS | [2016] FamCA 546 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – Where the Registrar rejected for filing the mother’s Application in a Case seeking interim parenting orders and a directions hearing for her Contravention Application – Where there are no extant applications for final orders and therefore the mother is unable to file her application, pursuant to r 5.01(1) of the Family Law Rules 2004 (Cth) – Where the mother’s Contravention Application is already listed for hearing – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 5.01(1) |
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 7 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Stevenson |
| HEARING DATE: | Not applicable - dealt with in Chambers |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr de Robillard by written submissions |
| THE RESPONDENT: | No appearance |
| INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The mother’s Application in a Case filed on 4 July 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2062 of 2010
| Ms Rilak |
Applicant
And
| Mr Tsocas |
Respondent
And
| Independent Children’s Lawyer |
Peter Baker Solicitor
REASONS FOR JUDGMENT
The proceedings
On 15 June 2016 the mother, Ms Rilak, attempted to file an Application in a Case by which she sought the following orders:
1.That the Registrar of this Honourable Court be and is hereby directed to list for a Directions Hearing on an Urgent basis the Contravention Application filed in these proceedings on 17 March 2016;
2.That such Order be made on an ‘ex parte’ basis pursuant to the provisions of Rule 5.12;
3.That Notice of this Application and the Supporting Affidavit may be served upon the Father at his email address: … on or before 4 pm on 15 June 2016.
4.That non-compliance with any Rules not already complied with be and is hereby waived pursuant to the provisions of R.1.12(2).
5.That, until further Order, the Father do all necessary to [sic] to ensure that the child [B] be made available to the Mother for supervised contact between 10am and 1pm each Saturday or otherwise determined by the Mother through the services of ‘SUCO’; the first such contact to be provided on or before 72 hours from the date of these Orders.
6.That the Father do all necessary [sic] to arrange for the child [B] to attend [Ms PJ] psychologist, telephone number …, within 7 days of these orders;
7.That the Father do all necessary [sic] to arrange for the child [B] to undertake speech therapy lessons with a child speech pathologist within 7 days of these orders;
8.That the Order 15 c) made on 13 November 2015 be and is varied to now read “The mother is at liberty to approach school that the child might attend and is entitled to attend all extra-curricular activities and school events, that allow for parental attendance and participation.”
9.Such other Order as this Honourable Court may deem fit.
This Application in a Case was accompanied by an affidavit sworn by the mother on 14 June 2016.
A Registrar rejected these documents for filing and made the following orders and directions:
1.That pursuant to Rules 5.01(1) and (2), the Rules 24.10(1)(c) and (e) Family Law Rules 2004 the Mother’s Application in a Case dated 14 June 2016 and the Mother’s affidavit sworn on the same date are rejected for filing.
2.I request that the Case Co-ordinator forthwith take all steps necessary to void in the court’s records any filing of the documents referred to in order 1 hereof, strike through any court stamp placed on such documents, and subject to order 3 return those documents and any copies thereof submitted for filing to the Mother.
3.It is further requested that the Case Co-ordinator retain one copy of each rejected document referred to in order 1 hereof and annex the same to the copy of these orders placed on the court’s physical file.
4.It is also requested that the Case Co-ordinator forthwith forward a copy of these orders to each party and to the Independent Children’s Lawyer by pre-paid post.
The Registrar published reasons for his decision dated 28 June 2016.
On 4 July 2016 the mother filed an Application in a Case by which she sought the following orders:
1.That the orders apparently made on 28 June, 2016 (but prepared in the Registry on 2 July, 2016) of Registrar Campbell be reviewed.
2.That the review be made returnable “instanter”.
3.That the Application be heard in court on an “ex parte” basis.
4.That the Order 15 c) made on 13 November 2015 be and is varied to now read:
“The mother is at liberty attend all extra-curricular activities and school events, that allow for parental attendance and participation.”
5.Subject to the review application being successful, the following further orders be made:
a.That the Application for Contravention set for hearing on 19 July, 2016 be and is hereby adjourned to a suitable date immediately following 8 August, 2016;
b.That the Father be and is hereby ordered to do all necessary [sic] to allow the child [B] born on … 2010 to have physical contact with the Mother for a period of 2 hours per day commencing on 5 July, 2016 and continuing until 17 July 2016 being the end of the school holidays.
c.The Father to bear all costs associated with such contact should the Father require the contact to be supervised in a contact Centre.
d.The contact to be through SUCO but if SUCO has no availability then through such other Centre as nominated by the Mother.
e.That until further order, the Father comply with the orders made in relation to access of the child [B] to her Mother as per the orders made on 13 November, 2015 and amended on 20 November 2015 and 4 December 2015.
f.That the Father pay the costs of the Mother’s application filed today.
This Application in a Case was accompanied by an affidavit sworn by the mother on 4 July 2016 and written submissions prepared by her counsel.
On 17 March 2016 the mother filed an Application for Contravention, which has been listed for hearing on 19 July 2016. In relation to the mother’s application that this aspect of the proceedings be listed for a directions hearing, the Registrar correctly observed that it was “difficult to see what utility there is” in that proposed event. The Registrar correctly observed further that the mother failed to articulate what procedural orders she would seek at a directions hearing.
The mother’s affidavit of 4 July 2016 and the written submissions of her counsel do not address these observations of the Registrar. I see no purpose in a directions hearing in relation to the mother’s Application for Contravention. The mother is mistaken if she considers that she could seek an order or direction that the father file material in response to her Application for Contravention and/or affidavit in support thereof. The father is required to file no material unless and until she establishes a prima facie case.
The mother’s Application in a Case filed on 4 July 2016 also sought parenting orders in relation to the parties’ child B born in 2010. Final parenting orders were made on 13 November 2015 after a lengthy defended hearing. The mother has filed an appeal against these orders and has been advised by the Appeals Registrar that no hearing is likely before 2017.
In relation to the parenting orders sought by the mother in her Application in a Case, the Registrar correctly observed that there is no extant application for final orders. The Registrar referred to Rule 5.01(1), which provides as follows:
Restrictions in relation to applications
(1) A party may apply for an interim, procedural, ancillary or other incidental order in relation to a cause of action only if:
(a) the party has made an application for final orders in that cause of action; and
(b) final orders have not been made on that application.
No Initiating Application for parenting orders has been filed by the mother. In my view, she is thus unable properly to file an Application in a Case by which she seeks interim parenting orders.
For these reasons I confirm the decision of the Registrar to reject for filing the mother’s Application in a Case and supporting material. I will dismiss the mother’s Application in a Case filed on 4 July 2016.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 July 2016.
Associate:
Date: 7 July 2016
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