Rilak & Tsocas (No 2) - [2015] FamCAFC 141

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 2)

[2015] FamCAFC 141

FAMILY LAW – APPEAL – Application for expedition of appeal – Where the mother seeks to expedite an appeal against interim parenting orders – Where the final hearing date is already set down – Where the mother was given the opportunity at a previous expedition application to have this appeal expedited and heard and declined to do so – Where there would be prejudice caused to the respondent if the appeal was expedited – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

FAMILY LAW – APPEAL – Costs – Where the respondent father sought that the mother pay his costs of the application – Where the application was wholly unsuccessful – Where the making of a costs order is warranted – Mother to pay father’s costs of and incidental to the application.

Family Law Act 1975 (Cth) s 94(2D), s 117(2A)(e)

Family Law Rules 2004 (Cth) r 12.10A

Babeu & Aamot [2015] FamCAFC 8

APPLICANT:

Ms Rilak

RESPONDENT:

Mr Tsocas

FILE NUMBER:

SYC

2062

2010

APPEAL NUMBER:

2015

DATE DELIVERED:

24 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

21 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 June 2015

LOWER COURT MNC:

[2015] FamCA 446

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Battisson of Watts McCray Lawyers

Orders

Application for expedition of Appeal EA 97 of 2015 be dismissed.
Applicant mother to pay the Respondent father’s costs of and incidental to the application, such costs to be agreed or assessed.
The Applicant mother pay the costs due pursuant to Order 2 above from her share of property received by her from the property settlement proceedings. In the event that the mother is not entitled to receive an adjustment of property, the amount due pursuant to Order 2 is payable twenty-eight (28) days after final property orders are made between the parties.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 97 of 2015
File Number: SYC 2062 of 2010

Ms Rilak

Applicant

and

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Introduction

On 5 June 2015, Justice Loughnan made interim parenting orders in proceedings between Ms Rilak (“the mother”) and Mr Tsocas (“the father”) in relation to their daughter, B (“the child”), born in 2010. The mother, having filed a Notice of Appeal against Order 6 of the parenting orders on

26 June 2015, by application in an appeal filed on 29 June 2015, seeks expedition of this appeal. The father resists the application for expedition.
The mother appeared on her own behalf on the application. Although on earlier…

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] FamCAFC 141
Case: [2015] FamCAFC 141
Decision Date: 24 July 2015

CaseChat Overview and Summary

Rilak & Tsocas (No 2) involved an appeal against interim parenting orders made by the mother. The mother sought to expedite the appeal, which was opposed by the father. The dispute came before the Family Court of Australia, which had to determine whether the appeal should be expedited and, if so, who should bear the costs of the application.

The primary legal issue was whether the appeal should be expedited despite the final hearing date already being set. The mother had previously declined an opportunity to have the appeal heard sooner. The court also had to consider whether the nature of the appeal warranted priority and whether there would be any prejudice to the father if the appeal were expedited. Additionally, the court had to decide on the costs of the application, given that it was unsuccessful.

The court found that there was no justification for expediting the appeal given the circumstances. The mother had already declined a previous opportunity to expedite the matter and the appeal did not warrant priority. Furthermore, expediting the appeal would cause prejudice to the father. Consequently, the application for expedition was dismissed. Regarding costs, the court held that the mother should pay the father's costs of the application, which were to be agreed or assessed. The mother was also ordered to pay these costs from her share of the property received from the property settlement proceedings, or if she was not entitled to an adjustment of property, then twenty-eight days after final property orders were made.

The court's final orders were that the application for expedition of the appeal be dismissed, that the mother pay the father's costs of and incidental to the application, and that these costs be paid from her share of the property settlement.

Orders

Orders of the court

Application for expedition of Appeal EA 97 of 2015 be dismissed.

Applicant mother to pay the Respondent father’s costs of and incidental to the application, such costs to be agreed or assessed.

The Applicant mother pay the costs due pursuant to Order 2 above from her share of property received by her from the property settlement proceedings. In the event that the mother is not entitled to receive an adjustment of property, the amount due pursuant to Order 2 is payable twenty-eight (28) days after final property orders are made between the parties.

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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