Rilak & Tsocas (No 2)
[2015] FamCAFC 141
•24 July 2015
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 | of | 2010 |
| APPEAL NUMBER: | EA | 97 | of | 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 occasions before the Full Court, the mother had sought the assistance of an interpreter in the Slovakian language, one was unable to be found who was available to assist her on the hearing date, 21 July 2015. To that end, it was suggested to the mother that the hearing of her application be adjourned to a date when an interpreter would be available. She declined an adjournment, insisted on the matter proceeding and conducted the application, apparently without difficulty in English.
Given the history of this matter, it is useful to set out some brief background to provide context to this application.
Proceedings in this matter commenced on 6 December 2011. The final hearing started on 27 January 2015 and was adjourned part heard until 4 August 2015. During the hearing, his Honour disclosed to the parties and their representatives that his legal associate was shortly to commence employment with the father’s solicitors. Though the solicitors amended the offer of employment so that the legal associate would not commence working for them until judgment in the matter had been delivered, this disclosure caused the mother to make an application that his Honour recuse himself and restrain the solicitors from further representing the father.
His Honour made orders dismissing this application on 2 June 2015 and the mother appealed from that decision. She also sought an expedition of that appeal, which was granted.
At the hearing of the application for expedition on 9 June 2015, Justice Ryan asked the mother whether she intended to include her appeal against the interim parenting orders in the application for expedition and whether she proposed to have both appeals heard together. The mother declined to have the parenting appeal heard at the same time as the recusal appeal. Thus, her Honour
Justice Ryan noted in the orders:
11. That the Appellant is not proceeding with an appeal at this time in respect of the orders made by Loughnan J on 5 June 2015 and the Court has indicated to the Appellant that if she subsequently chooses to do so, that the Court may not be able to deal with it as expeditiously as had she proceeded today.
The mother’s appeal against his Honour’s refusal to disqualify himself was heard and dismissed by the Full Court on 22 June 2015.
Thus it is that on 29 June 2015 the mother, by Application in an Appeal sought an order that the hearing of the appeal against his Honour’s parenting orders be expedited.
The Application in an Appeal
The order that is the subject of appeal and this application for expedition is:
6.Until further order the current parenting orders, including the orders of 11 February 2013 are varied to provide that [B] born … 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.
The mother’s application in an appeal seeks the following orders:
1.That leave be granted for URGENT hearing.
2.That leave be granted for a short service of this application.
3.That the hearing is heard ex parte if necessary.
4.That the Order 6 of the Orders made on 5 June 2015 is stayed until:
a. The investigation of the Father by the Joint Investigation Response Team (“JIRT”) in the alleged sexual abuse is legally finalised;
AND
b. The final decision of the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at [I Town] is legally determined;
AND
c. The Court determine the Best interests of the Child ([B], DOB … 2010) by:
i. Complying with the ‘Convention on the Rights of the Child’, Australian Treaty Series 1991 No 4 Specifically with Article 19, 30 and 34;
ii.Complying with the ‘Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography’, Australia Treaty series [2007] ATS 6, Article 8;
iii.Complying with the S 60CC (2) (b) of the Family Law Act 1975.
If the ORDER 4 IS NOT GRANTED;
5. That the Father has supervised contact with the child, in the Catholic Care, [U Road] in [Suburb V] NSW …, each Saturday from 9:30am to 11:30am, until the matter into the father’s alleged sexual abuse is legally finalised and determined.
In support of this application the mother relies on an affidavit filed on
29 June 2015. A great deal of the material contained in the affidavit is irrelevant to the current application as it is a repetition of complaints previously made about his Honour’s reasons for judgment. In summary the mother says that she has “grave fears” for the child’s safety due to the alleged disclosure of sexual abuse by the father, that evidence of the father’s history of violence and abuse has not been tested before the court and that the court is dismissive of the current JIRT investigation.
Whilst s 94(2D) of the Family Law Act 1975 (Cth) provides for an order to be made expediting an appeal, it does not provide the criteria by which this decision is made. In Babeu & Aamot [2015] FamCAFC 8, Ryan J applied the criteria provided by Rule 12.10A of the Family Law Rules 2004 relevant to the expedition of trials as being appropriate to a consideration of whether an appeal should be expedited. The rule requires consideration of whether the applicant has acted reasonably and without delay in bringing the application for expedition; prejudice to the respondent and whether there is a “relevant circumstance in which the case should be given priority to the possible detriment of other cases”.
With respect to the first matter, it was within the mother’s power to have both appeals heard together when the matter came before Ryan J on 9 June 2015 and she granted expedition of the other appeal. The mother said that the decision not to bring both appeals on was made because of the time, costs and difficulties associated with preparing the appeal. There can be no doubt that the prospect of preparing an appeal for a self-represented litigant is somewhat daunting, however, given the urgency and the gravity of the risk asserted by the mother in relation to the parenting orders, it is somewhat curious that she did not seek to bring this appeal on urgently. Further, the mother argued that had her appeal against his Honour’s refusal to disqualify himself been successful, his interim parenting orders would have been stayed and thus there was a reason for having that appeal determined first.
Without commenting on the correctness of the underlying assumptions, the mother took a calculated course in this regard. As it turned out, her appeal was unsuccessful and his Honour’s parenting orders remain. In my view her claim to gravity and urgency has to be considered in the light of her considered action in not having both appeals heard together.
As to the second consideration, whether prejudice would be caused to the respondent, the father indicates in his affidavit of 17 July 2015 that he has already spent upwards of $312,000 on legal fees in these proceedings, that he has been required to draw on the equity in his home to meet the ongoing costs and that he anticipates the expenditure of further fees. He stated that he has “very limited funds available” and that he cannot afford to continue meeting the costs of defending applications that he sees as lacking merit. In the context of this matter, and in light of the proximity of the final hearing date, this submission has some force.
Turning to the final consideration, given that the date of the final hearing is in approximately a fortnight, there is no circumstance that would cause this case to be given priority to the possible detriment of other cases. The orders appealed from are interim and the mother will have an opportunity to agitate a change to those orders at the final hearing.
The application will be dismissed.
Costs
The father’s solicitor sought costs of the application. The mother opposed the making of a costs order, arguing that the application needed to be made because of the urgency and gravity of the circumstances. The consideration of the costs is made within the framework of s 117 of the Act and, in particular
s 117(2A)(e), that the mother’s application has been wholly unsuccessful.
The mother further indicated that she did not have the funds to pay the father’s costs of the application. Lack of funds, even indigence, is no barrier to the making of a costs order if one is warranted, which it is in this case.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
24 July 2015.
Associate:
Date: 24 July 2015