Rilak and Tsocas (No. 2)

[2017] FamCA 1138

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 2) [2017] FamCA 1138

FAMILY LAW – PRACTICE & PROCEDURE – Application for urgent hearing of the interlocutory parenting proceeding

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 21 December

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 21 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The applications in a case filed 7 December 2017 and application in a case filed
   18 December 2017 are dismissed.

2. The return date of the earlier application for 12 February 2018 before a Registrar is vacated.

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 (No. 2) 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

REASONS FOR JUDGMENT

1. Ms Rilak (‘the mother’) and Mr Tsocas (‘the father’) have been engaged in long running proceedings regarding their child B (‘the child’).

2. On 7 December 2017 the mother filed an application for the child to spend time with her maternal aunt who was in Australia, from 13 December 2017 until 31 December 2017.

3. A Registrar considered that application and declined to list the matter urgently and in turn listed it on 12 February 2018 at 9.30am.  This communication was dated 14 December 2017.

4. By application in a case made Monday 18 December 2017 the mother sought a series of orders including that the decision of the Registrar to not list the proceedings prior to the departure of the maternal aunt be reviewed on an urgent basis and in the event that that decision was overturned that the substantive interim application be dealt with on an urgent basis.

5. That application came before me in chambers on Thursday 21 December 2017.

6. This court closes on Friday 22 December 2017 and there is limited availability of a judicial officer to hear the review in court in that period of time.

7. Given the powers to deal with matters in child focused ways under Division 12A of the Act it was referred to me to determine the matter on the papers provided by the mother in terms of her application in a case filed 7 December 2017, the application in a case filed 18 December 2017 and the relevant supporting affidavits.

8. What is clear is that the maternal aunt is leaving Australia on 31 December 2017. 

9. I have considered the material contained in the affidavit including the assertion by the mother that the child had, at least in the past, been speaking to the maternal aunt by Facetime at least up until 29 December 2015 (about two years ago).

10. A decision such as this would need the involvement of the father and a significant knowledge of the history of this matter.  I cannot be done within the time available.  Justice could not be done in terms of the father having the opportunity to be heard and consideration of the judgments (which were eluded to in the affidavits of the mother) being considered.

11. In those circumstances I see no reason why the determination of the Registrar ought to be disturbed.  Having re-determined the matter as a hearing de novo I dismiss the application for urgent hearing of the interlocutory parenting proceeding.

12. Given that the maternal aunt is departing Australia on 31 December 2017 and that the matter is otherwise listed before the court on 12 February 2018, the whole process becomes moot.  As such I will dismiss the application in a case filed 7 December 2017 as well as the application in a case filed 18 December 2017.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 December 2017.

Associate:     

Date:              16 January 2018