Rilak and Tsocas (No 7)

[2015] FamCA 1154

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 7) [2015] FamCA 1154

FAMILY LAW – CHILDREN – Parenting – Where final judgment has been handed down – Where a stay has been granted of aspects of the final parenting orders on conditions – Where the orders have proved unworkable – Where the court made machinery Orders in relation to the stay Order. 

Family Law Act 1975 (Cth)
APPLICANT:	Ms Rilak

RESPONDENT: Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER: Mr Baker

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 4 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 4 December 2015

REPRESENTATION

APPLICANT IN PERSON: Ms Rilak

RESPONDENT IN PERSON: Mr Tsocas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Baker

Orders

1. Order 4 made on 20 November 2015 being a conditional stay of orders made on 13 November 2015, is varied in the following ways:

a)Unless the parties otherwise agree in writing, the supervised occasions where practicable shall be for three hours, once a week;

b)Prior to the commencement of the 2016 school year, they shall occur on a weekday agreed between the parents and available to the supervising agency but not on a Wednesday or a Friday;

c)From the commencement of the 2016 school year the date is to be on a Saturday or Sunday as agreed between the parents and in default of agreement, on a Sunday;

d)Otherwise the times are to be exercised in accordance with Order 4 made on 20 November 2015 save that the costs of supervision shall be equally shared between the parents and the parties are at liberty to change by agreement the supervising agency to SUCO or another suitable agency;

e)The Court notes that the father has no objection to the mother conversing with the child during supervised occasions in a language other than English;

f)The Court notes that the father does not object to the attendance on supervised occasions of the maternal grandmother;

g)The food and drink to be ingested by the child on supervised occasions shall be the food and drink provided by the mother and it is a condition of these orders that any dairy products to be provided to the child are maintained in a chilled condition.

1. The Court notes that neither of the parents seeks orders in relation to the costs of the substantive proceedings concluded by orders made on 13 November 2015.

1. The listing on 8 December 2015 in relation to those costs is vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas (No 7) 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:  SYC2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

1. I made orders on 20 November 2015 granting a stay on conditions of aspects of final orders for parenting made on 13 November 2015.  For reasons that I do not need to go into, the orders have proved unworkable.  I have listed the matter today to try and resolve that problem.  I have explained to the parties that I do not have any jurisdiction in the matter beyond the making of machinery orders in aid of the stay order.  In the event that the stay order is unworkable, I do not have any other jurisdiction to deal with the matter.  That would mean there would be no stay pf the orders made on 13 November 2015.

2. The parents have both attended today in person.  Although I understand that his funding has been terminated, the Independent Children’s Lawyer (“ICL”), has kindly attended today to assist with the issues.

3. The main problem arises because, for reasons that I explained in the judgment given on 20 November 2015, it was a condition of the stay that all of the costs of supervision fell to the mother despite the substantive orders providing for costs of supervision to be shared.  Now that the parties have had an opportunity to make submissions about that, and I appreciate there is significant financial hardship on both sides, it seems to me that it is unquestionably in the child’s best interests that under the stay, the costs of supervision be shared.  The costs with the existing supervisor is something like $280 for a three-hour visit.  If equally shared, that would be $140 per parent.  Under an arrangement with another agency proposed by the mother the cost for each of the parents for three hours would be of the order of $105.  The father has indicated that once he has made some enquiries about the proposed supervisor, he may agree to a change of supervisor.

4. The parties have had other disputes in respect of the mother’s time with the child and they exemplify the problems that they have had throughout their relationship and since separation.  They have had problems with the food provided for the child.  They have had problems with her clothing.  They have had problems, they say, in relation to communication in a language other than English.  And there was said to be an issue about the maternal grandmother attending at the time of the mother’s visits. 

5. Talking to the parties, they tell me that most of those issues are not genuinely in dispute.  I have indicated to the parties that the controversy about the food will be resolved in that the mother will provide the food for her visits with the child.  The father has requested that the mother ensure that any dairy products be chilled, the mother says she does that and so I will make that order. 

6. As to the presence of the maternal grandmother, the father says he does not have a problem with it.  If it becomes a problem and that is referred to in a report from the supervisor, then he might take a different approach.  Therefore nothing needs to be done at this stage about that issue. 

7. The mother says that the father has insisted that the mother and child converse in English and the father says that is not the case.

8. The mother is complaining that the child is inappropriately dressed.  That is a reciprocal complaint to a complaint made on many occasions by the father in relation to the mother placing the child in layers of clothes, causing the child to be overheated and uncomfortable.  The father assures me that on the date in question the child was in a sleeveless outfit, and was not too hot.  Where the child has layers of clothes, obviously the mother would be able to take a layer off if the child is uncomfortable.  I will make no order about that.

9. This highlights the impossibility of family law.  At general law you cannot have specific performance of a personal contract because you cannot make two people cooperate with each other, in detail, week in week out.  It is embarrassing that a court would be put to making orders about this sort of minutiae.  If the parties cannot make this work, then there could be a disastrous consequence for the child.  Therefore the parents are obliged to redouble their efforts to ensure that these occasions are not embarrassing for the child, to compromise, not to be suspicious about each other and to try and allow this girl to get on with being a young girl and not have to carry around on her back the incidents of her parents’ awful relationship.  If a child behaved this way in relation to these small issues, parents would be critical of the child.  And, as I say, at the end of the day, courts can only do so much.

10. I note that neither of the parents seeks orders in relation to the costs of the substantive proceedings and so I vacate 8 December 2015 which was fixed for dealing with any application for costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 4 December 2015.

Associate: 

Date:  18 December 2015