Rilak & Tsocas (No 2) - [2015] FamCA 439

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 2)

[2015] FamCA 439

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the mother sought a stay of the proceedings pending determination of an appeal in relation to the dismissal of her interlocutory applications which sought a recusal of the trial judge and a restraint on the legal representatives of the father – Where counsel for the father submitted that the appeal has no substance and will only serve to delay the proceedings – Where the best interests of the child require the hearing is completed urgently – Where a refusal of the stay would not render the appeal nugatory – Where the application for a stay of the proceedings is refused.

Aldridge & Keaton[2009] FamCAFC 106
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Strahan & Strahan (2009) FLC 93-414

Family Law Act 1975 (Cth)

APPLICANT:

Ms Rilak

RESPONDENT:

Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER:

Peter Baker

FILE NUMBER:

SYC

2062

2010

DATE DELIVERED:

2 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

2 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Rilak

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

The mother’s Amended Application in a Case filed in Court on 2 June 2015 in respect of recusal and disqualification is dismissed.

The mother file any Notice of Appeal in relation to the dismissal of her Applications for recusal and disqualification by the close of business on Friday 5 June 2015.

The mother’s oral Application for a stay of proceedings is refused.

The father’s Application for interim change of residence is adjourned to 10.00 am on 5 June 2015.

The mother is restrained, until further order, from questioning the child in relation to any disclosure or allegation of physical abuse or sexual abuse and from allowing the child to be questioned by any other person in relation to those matters.

The mother is restrained, until further order, from denigrating the father, his mother or his son or allowing anybody else to do that in the child’s presence or hearing.

On the basis of those orders the mother is permitted to remove the child from Child Minding Centre today.

The mother return the child to the Child Minding Centre on Friday 5 June 2015 at 9.45 am and that the child not be removed from the Child Minding Centre without further order of the Court.

The mother produce to the Court at 10.00 am on Friday 2 June 2015 the USB stick containing the interview/discussion with the child leading to the most recent notification of child abuse.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak and Tsocas (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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rilak & Tsocas (No 2)

Details

AGLC: Rilak & Tsocas (No 2) [2015] FamCA 439
Case: [2015] FamCA 439
Decision Date: 2 June 2015

CaseChat Overview and Summary

In *Rilak & Tsocas (No 2)*, the mother sought a stay of proceedings pending the determination of an appeal concerning the dismissal of her interlocutory applications for the recusal of the trial judge and a restraint on the father's legal representatives. The father's counsel argued that the appeal lacked substance and would only serve to delay the proceedings, which required urgent completion in the best interests of the child.

The primary legal issue before the court was whether to grant the mother's application for a stay of proceedings. This involved considering the potential for the appeal to be rendered nugatory by a refusal of the stay, and balancing this against the paramount consideration of the child's best interests, which necessitated an urgent hearing.

The court reasoned that a refusal of the stay would not render the appeal nugatory, and that the best interests of the child required the hearing to proceed urgently. Consequently, the mother's oral application for a stay of proceedings was refused. The court also dismissed the mother's amended application for recusal and disqualification, and made various orders concerning the filing of an appeal, the father's application for interim change of residence, and specific restraints on the mother regarding questioning the child and denigrating the father.

Orders

Orders of the court

The mother’s Amended Application in a Case filed in Court on 2 June 2015 in respect of recusal and disqualification is dismissed.

The mother file any Notice of Appeal in relation to the dismissal of her Applications for recusal and disqualification by the close of business on Friday 5 June 2015.

The mother’s oral Application for a stay of proceedings is refused.

The father’s Application for interim change of residence is adjourned to 10.00 am on 5 June 2015.

The mother is restrained, until further order, from questioning the child in relation to any disclosure or allegation of physical abuse or sexual abuse and from allowing the child to be questioned by any other person in relation to those matters.

The mother is restrained, until further order, from denigrating the father, his mother or his son or allowing anybody else to do that in the child’s presence or hearing.

On the basis of those orders the mother is permitted to remove the child from Child Minding Centre today.

The mother return the child to the Child Minding Centre on Friday 5 June 2015 at 9.45 am and that the child not be removed from the Child Minding Centre without further order of the Court.

The mother produce to the Court at 10.00 am on Friday 2 June 2015 the USB stick containing the interview/discussion with the child leading to the most recent notification of child abuse.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.