FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS (NO 3) | [2015] FamCA 446 |
| FAMILY LAW – CHILDREN – Interim parenting – Best Interests – Where the child is five years of age – Where the child lives with her mother – Where during a part-heard final trial the father sought that he has sole parental responsibility and that the child live with him pending further order – Where the mother sought that the father spend no time with the child – Where the ICL supported the father’s proposals – Where the mother has alleged that the father has sexually abused the child – Where the mother was warned not to interrogate the child about the allegations, but continued to do so – Where the child has a meaningful relationship with both parents – Where there is a high level of conflict between the parents –Where the single expert identified a grave risk in the current arrangements – Where the Court found that there is not an unacceptable risk to the child of sexual abuse in the hands of the father – Where the father’s time with the child is restored on an overnight basis but with supervision – Where the mother is restrained from questioning the child about abuse or allowing her to be questioned and from denigrating the father or paternal family. | |
| Evidence Act 1995 (Cth) | |
Goode & Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348
SS v AH[2010] FamCAFC 13
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 12 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 2 June and 5 June 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT FATHER | Mr Levy |
| SOLICITOR FOR THE FATHER | Watts McCray Lawyers |
| RESPONDENT MOTHER IN PERSON | |||
| ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Falloon | ||
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor | ||
Orders
IT IS ORDERED THAT:
Leave is granted to the mother to file a further affidavit in relation to her Amended Application in a Case filed 2 June 2015 (re interim parenting).
The proceedings are listed for completion of the final hearing over four days commencing 4 August 2015.
The Court requests that by 10.00 am on 4 August 2015 the Independent Children’s Lawyer seek to settle with the parties a Trial Plan apportioning the time between the parties for cross-examination of the remaining witnesses and substantially leaving 7 August available for submissions.
In the event that any party seeks to rely on any further affidavits they are to be filed and served by 10.00 am on 6 July 2015.
The proceedings are adjourned to 6 July 2015 for the purpose of dealing with any procedural or machinery issues in relation to the trial commencing on 4 August 2015 including confirmation of a trial plan.
Until further order the current…
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- Case
- [2015] FamCA 446
- Decision Date
CaseChat Overview and Summary
The court was required to determine several issues, including the terms of interim parenting orders, the filing and service of further affidavits, the preparation of a trial plan for the final hearing, and the provision of specific information regarding the child's schooling. The court also addressed the interaction between its orders and an interim apprehended violence order made by the Local Court, clarifying the prevailing authority in cases of inconsistency.
Loughnan J made various orders, including granting the mother leave to file a further affidavit and listing the proceedings for a final hearing. The court established a schedule for the filing of affidavits and directed the Independent Children’s Lawyer to settle a trial plan. Crucially, the court varied existing parenting orders to provide for the child to spend time with the father from Friday afternoon until Monday morning, with specific arrangements for collection and supervision. The mother was also restrained from discussing the proceedings or allegations of abuse with the child or in the child's presence. The court noted that its orders, to the extent of any inconsistency, would prevail over the interim apprehended violence order, and directed that sealed copies of the orders be sent to relevant authorities.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
Leave is granted to the mother to file a further affidavit in relation to her Amended Application in a Case filed 2 June 2015 (re interim parenting).
2.
The proceedings are listed for completion of the final hearing over four days commencing 4 August 2015.
3.
The Court requests that by 10.00 am on 4 August 2015 the Independent Children’s Lawyer seek to settle with the parties a Trial Plan apportioning the time between the parties for cross-examination of the remaining witnesses and substantially leaving 7 August available for submissions.
4.
In the event that any party seeks to rely on any further affidavits they are to be filed and served by 10.00 am on 6 July 2015.
5.
The proceedings are adjourned to 6 July 2015 for the purpose of dealing with any procedural or machinery issues in relation to the trial commencing on 4 August 2015 including confirmation of a trial plan.
6.
Until further order the current parenting orders, including the orders of 11 February 2013 are varied to provide that the child B born on … 2010 spend time with the father from 3.00 pm on Friday 19 June 2015 and each Friday thereafter until the commencement of pre-school on the following Monday.
7.
Unless the parties otherwise agree in writing the mother is to cause the child to be available to be collected from F School at 3.00 pm each Friday and the mother is not to be at or in the vicinity of F School at those times.
8.
In the event that F School is not operating whether during school holidays or otherwise, unless the parties otherwise agree in writing the mother is to cause the child to be available for collection at 3.00 pm each Friday at E Town Police Station and the father is to collect the child at that time and place.
9.
In the event that the G Pre-school is not operating, whether during school holidays or otherwise, unless the parties otherwise agree in writing the father is to cause the child to be available to be collected at 10.00 am each Monday at E Town Police Station and the mother is to collect the child at that time and place.
10.
In the event that on any occasion the child is not available for collection at the commencement of her time with the father, subject to the parties reaching an agreement for other commencement arrangements, the father is at liberty to apply for a recovery order and for the full time residence of the child on 24 hours’ notice to the mother, the Independent Children’s Lawyer and the Court.
11.
Not later than 6.00 pm on 16 June 2015 the mother provide to the father the address of the F School and of the child’s G Pre-School.
12.
The father’s time with the child shall be supervised at all times by either Ms Tsocas or Ms H.
13.
Until further order the mother is restrained from questioning the child or discussing with her any matter relating to these proceedings or to any allegation of physical or sexual abuse of the child by the father.
14.
Until further order the mother is restrained from discussing any matter relating to these proceedings or to any allegation of physical or sexual abuse of the child by the father in the presence or hearing of the child and she is restrained from permitting any other person or persons to do so or to question the child or discuss any such allegation with her, other than officers of the Department of Family and Community Services or of the NSW Police.
15.
In the event of a breach of orders 6 or 7 leave is granted to the father and the Independent Children’s Lawyer to forthwith restore the proceedings to the list in relation to the future residential arrangements for the child.
16.
The Court Noted that orders 6, 7, 8 and 9 are inconsistent with an interim Apprehended Violence Order made by the Local Court at I Town on 16 April 2015 and pursuant to Division 11 of Part VII of the Family Law Act 1975 (Cth), to the extent of that inconsistency, the interim Apprehended Violence Order is invalid and these orders prevail.
17.
The Court requested the Registrar to send a sealed copy of these orders to:
(a) The Registrar of the Local Court at I Town
(b) The Commissioner of New South Wales Police
(c) The Secretary of the New South Wales Department of Family and Community Services
18.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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