Rilak & Tsocas (No 3)

[2018] FamCA 658

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 3) [2018] FamCA 658

FAMILY LAW – ORDERS – Contravention – where applicant wholly unsuccessful – where first three contraventions fail at a prima facie level – where final contravention fails for lack of evidence – alleged contraventions dismissed.

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 27 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 27 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

It is Ordered that

1. In relation to the mother’s Application for Contravention, filed 15 November 2017, I dismiss her alleged contraventions of order 1(a), (c) and (d) made on 4 December 2015 as they were alleged to relate to 10 April 2016, 29 May 2016 and 7 August 2016.

2. I dismiss the alleged contravention of order 3 of the orders of 20 November 2015 as set out in the Application for Contravention filed 15 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The mother alleges that the father has contravened orders 1(a), (c) and (d) of the orders made on 4 December 2015, setting out those contraventions in her Application for Contravention filed 15 November 2017.  The particular breaches set out in that Application for Contravention have been identified by exhibit M1 in the proceedings, which the mother provided to the father in accordance with the directions I had previously given permitting her to identify five of the contraventions set out in the Application for Contravention filed 15 November 2017 for those contraventions to be heard today.

2. The three particular contraventions being dealt with at the moment are the alleged contraventions of order 1 of 4 December 2015, relating to 10 April 2016, 29 May 2016 and 7 August 2016.  Those orders provide, amongst other things, that time would take place between B and her mother, subject to supervision as set out pursuant to order 4 of orders earlier made on 20 November 2015.  Those orders then provided that the mother would spend time with B, subject to supervision by FE Group.  The subsequent orders of 4 December 2015 allowed a departure from that regime, that is, a departure from FE Group acting as the supervisor, and the mechanism to allow departure from that regime was for the parties to agree on an alternate supervisor. 

3. In support of the Application for Contravention the mother relied upon [30]-[32] and [34] (or parts of 34) of her affidavit of 15 November 2017.  In general terms those paragraphs deal with the following matters. 

4. Paragraph 30 is a recital of the order.  Paragraph 31 asserts that no contact has occurred as the father has not facilitated the time on relevant days as provided for in the orders.  Paragraph 32 sets out amendments to the orders as I have identified above. 

5. Paragraphs 34(ix) through 34(xv), which were relied upon by the mother, indicate that the mother sought to engage a supervisor, MN Contact Services, on 1 January 2016.  The paragraph sets out that the mother emailed MN Contact Services’ details to the father.  The father refused to consent to MN Contact Services being the supervisor.  The father has since that time continued to refuse to consent to MN Contact Services being the supervisor.  The father has raised some complaints about the supervision regime, including his ability to afford supervision (which the mother dealt with by offering to pay for the supervision herself rather than share the costs), and the father has raised other matters.  It is clear, however, that there has in the mother's material been an ongoing indication of a lack of agreement on the part of the father.

6. That there was a lack of agreement was accepted by the mother before the Full Court in proceedings on 16 September 2016, being a date after each of the above alleged contraventions.  The mother outlined to the Full Court that there was a lack of agreement between the parties as to who the new supervisor would be which the Full Court noted had resulted in B spending no time with her mother. 

7. The mother explains today that lack of agreement was because the father refused to agree. 

8. The operation of the obligation to provide B to the mother is, on the terms of the order, contingent on there being an agreement to an alternative supervisor to FE Group.  The mother complains that the orders were poorly drafted, but in her submission accepts that the father has been compliant with what were poorly drafted orders.  In this case there has never been an agreement which would provide the obligation for B to be provided otherwise than via FE Group.  Absent the agreement there cannot be a breach of an obligation related to the mother spending time with B. 

9. Accordingly, the mother’s application to have the father dealt with for those three contraventions fails at a prima facie level because the mother has adduced no evidence capable of establishing that such an agreement was in place.  Absent such evidence, a fundamental aspect of the imposition of an obligation upon the father has not been established and cannot be established. 

10. Ms Rilak, by her Application for Contravention filed 15 November 2017, alleges that Mr Tsocas has breached order 3 of the orders made on 20 November 2015.  Order 3 provided, by consent, that the father shall notify the mother in writing no later than 14 days after forming an intention to move from his residential address and provide the mother the address of the child's new residence, including details of the school and any medical practitioner.

11. In support of that allegation the mother relies upon [78]-[82] of her affidavit of 15 November 2017 and the annexures referred to therein.  Annexure AB is a notice dated 13 January 2016 sent by Mr Tsocas to Ms Rilak which purports to notify her in accordance with the orders of 20 November 2015, and in particular order 3 that he had formed the intention to move B's residence to a new address being AB Street, Suburb BC.  He advises that there is no firm date set for that change of residence. 

12. Ms Rilak points to annexure AC which is an affidavit of Mr Tsocas prepared for proceedings in the Federal Court of Australia relating to his bankruptcy.  That includes a recital of the court orders that provided for the disposal of the home that he and B were then living in.  Those orders, in general terms, provided that within a period of two months from the date of the orders the father was to pay to the mother a particular sum.  Failure to do so then brought into effect further orders that caused the listing of the home in which the father and B were living in, EE Street, Suburb K to be placed on the market for sale.  That date was to be 13 January 2016, which is the date of the notice sent to Ms Rilak advising of the formation of the intention to move.

13. Ms Rilak reasonably points to the notion that an intention to move may well have been formed before the date upon which it was communicated.  She also points to the fact that the father commenced the move two days after sending the notice, that is, 15 January 2016. 

14. By virtue of annexure AC it can be seen that the father was moving into his mother's home with B.  He moved his possessions from 15 through to 18 January 2016 into his mother's home, and at some point EE Street was listed for sale. 

15. The obligation contained in the orders is that within 14 days of forming the intention to move the father is to notify the mother.  While it might be expected that the intention was formed at some point prior to the communication of that intention on 13 January 2016, there is no sufficient basis on which I can infer that intention was formed more than 14 days before that particular date.  Absent some evidence from which it may be inferred that it was, as a matter of fact, formed before that 14 day period, the evidence is insufficient to persuade me that there has been a breach of that order according to the appropriate standard, being on the balance of probabilities.

16. A further aspect is pointed to by the mother, which relates to the obligation attached to that order to advise of new medical practitioners.  That obligation is expressed to be an advice as to the identity of the medical practitioners as it is attached to the movement of residence.  Absent some evidence that there has been a change in medical practitioners, or in fact that there is a medical practitioner, then, again, there is insufficient basis to infer to the requisite standard, being the balance of probabilities, that there has been a breach of the obligation contained in that order to advise as to the identity of the medical practitioners. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 August 2018.

Associate: 

Date:  29 August 2018