FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS (NO. 8) | [2015] FamCA 1235 |
FAMILY LAW – CHILDREN – Best Interests – Where the child is five years of age – Where she lives with her mother – Where the parties’ applications changed throughout the matter – Where the father and ICL sought that the father has sole parental responsibility and that the child live with the father and spend supervised time with the mother once a week – Where the mother sought that the parties have equal shared parental responsibility, that the child live with her and spend each alternate weekend with the father – Where the mother alleged that the father sexually abused the child and engaged in family violence – Where she conceded that her allegations were not supported by evidence – Where the single expert opined that the child is living in an emotionally abusive household with the mother – Where the child has meaningful relationships with both parents – Where there is a high level of conflict between the parents – Orders made for the father to have sole parental responsibility, the child to live with the father and spend supervised time once a week with the mother.
FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the father and mother cohabited for 15 months – Where the parties did not intermingle their assets and liabilities – Where the father seeks that no property orders are made – Where the mother seeks that the father pay her $250,000 – Where the father made a greater financial contribution – Where since separation the mother has had the physical care of the child – Where the mother made a greater parenting contribution – Where overall contributions are found to be 25 percent to the mother and 75 percent to the father – Where no s 75(2) adjustment is appropriate – Where an order is made for the mother to receive 25 percent and the father to receive 75 percent of the available property and superannuation.
| Evidence Act 1995 (Cth) s 140 Benson and Hughes (1994) FLC 92-483 |
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- AGLC
- Rilak & Tsocas (No 8) [2015] FamCA 1235
- Case
- [2015] FamCA 1235
- Decision Date
CaseChat Overview and Summary
The court was required to determine a range of legal issues, including the appropriate name for the child, the allocation of sole parental responsibility for long-term decisions, the child's primary residence, and the terms of the mother's contact with the child. Furthermore, the court had to address the validity of an interim apprehended domestic violence order, the father's liberty to travel overseas with the child, and the division of the parties' property, including a specific property and financial settlements. The court also considered orders restraining the mother's proximity to the child and their respective residences, and provisions for the child's communication with the mother.
Loughnan J applied principles of family law, particularly concerning the best interests of the child, to resolve the parenting disputes. The court discharged previous parenting orders and authorised the father to amend the child's registered name to "B Rilak-Tsocas," granting him sole parental responsibility for long-term decisions and ordering that the child live with him. Contact between the child and the mother was to be supervised by Interrelate, commencing after a specified period and subject to certain conditions. The court also declared an interim apprehended domestic violence order invalid, finding it inconsistent with the current parenting orders. In relation to property, the father was ordered to pay the mother a sum of $146,950.67 within two months, with provisions for the sale of a property if payment was not made. The court also made orders for the parties to indemnify each other against their respective liabilities and for a Registrar to execute documents if a party defaulted.
Orders
Orders of the court
PARENTING
1.
All previous orders with respect to B XXX (aka B Tsocas or B Rilak or B Tsocas-Rilak) (“the child”) born … 2010 are hereby discharged.
2.
Without requiring the permission and/or consent and/or signature of the mother, Mr Tsocas (“the father”) is authorised to apply to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “B XXX” be registered as “B Rilak-Tsocas” (“B”).
3.
Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the NSW Registrar of Births Deaths and Marriages shall register the child’s name as “B Rilak-Tsocas”.
4.
The father shall forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages.
5.
The father shall have sole parental responsibility for long-term decisions about the child.
6.
The child shall live with the father.
7.
Pursuant to s 68Q of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that:
(a) These Orders are inconsistent with the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at Town I on 18 April 2015; and
(b) The whole of the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at Town I on 18 April 2015 is invalid.
8.
Unless the parents otherwise agree in writing, subject to Order (9) herein, the child shall spend time with Ms Rilak (“the mother”) at such times and on such dates as may be arranged with and supervised by Interrelate, Suburb J.
9.
Unless the parties otherwise agree in writing, the mother’s time with the child pursuant to Order (8) herein shall:
(a) commence not before 14 days after the child commences living with the father;
(b) occur on a Saturday or Sunday, not more than once per week;
(c) occur at the equally shared expense of the parents; and
(d) be suspended in the event the father elects to take the child outside the Commonwealth of Australia pursuant to Order (21).
10.
For the purpose of Order (8) above, each party shall:
(a) contact Interrelate within seven days of the date of these Orders and arrange an appointment for an intake assessment;
(b) attend the assessment;
(c) comply with all reasonable rules of Interrelate; and
(d) comply with all reasonable requests or directions of the staff of Interrelate.
11.
In the event that the child’s time with the mother does not occur because of the child’s illness or because of some circumstance other than the unavailability of the mother, then the father is to:
(a) provide a medical certificate where applicable; and
(b) arrange makeup time for the child with the mother as close to the scheduled period as is practicable.
12.
The child shall communicate with the mother by electronic means each Tuesday and Thursday for a period of half an hour between 5.00 pm to 6.00 pm, with the father to initiate the call. The communication may occur by telephone or by Skype as the parties may agree and in default, by telephone. The father is at liberty to conclude the telephone call or Skype call in the event that he is of the opinion it is not in the child’s best interests for the call to continue.
13.
The father shall be at liberty to arrange for the child to be vaccinated at X Hospital in accordance with the recommendations of Dr Y.
14.
The father shall advise the mother in a timely manner about any long term parenting decisions, invite the mother’s views about all decisions, consider such views as the mother may express, and advise the mother of the decisions he ultimately makes.
15.
Unless the parents otherwise agree in writing, the mother be restrained from approaching:
(a) the child, except in accordance with these Orders;
(b) the residence of the child or the premises in which she is staying from time to time, except in accordance with these orders; or
(c) any pre-school or school that the child might attend from time to time, or any place where the child participates in extra curricular activities.
16.
Each parent is restrained from denigrating the other parent or any member of the other parent’s family and/or discussing these Court proceedings in the presence or hearing of the child, and each parent is restrained from causing, allowing or permitting any other person to do so in the presence and/or hearing of the child.
17.
The mother is restrained from removing and/or causing or allowing the child to be removed from the Commonwealth of Australia.
18.
The Court requests that the Australian Federal Police place the name of B (Female) on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain B on the Watch List until … 2028, save that the Court noted that the father is at liberty to remove the child from the Commonwealth of Australia in accordance with Order (21) hereof.
19.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders.
20.
The father is at liberty to apply for a passport and or renewal of a passport for the child without first obtaining the consent of the mother.
21.
Pursuant to section 65Y(2)(b) of the Act, the father is at liberty to travel overseas with the child.
22.
In the event that the father intends to travel overseas with the child, he shall provide written notification to the mother of this intention to travel 28 days prior to the proposed date of departure and provide details of the itinerary for each overseas trip.
23.
If the child would have otherwise spent time with the mother during the period when the child is overseas with the father, upon the child’s return to Australia the father will nominate a day or days on which the missed time with the mother will be made up. The father will appoint a day or days for such make-up time not later than three months after the child’s return to Australia, unless the parents otherwise agree.
24.
At the times when the father elects to travel with the child outside the Commonwealth of Australia pursuant to Order (21) herein, the child’s name is to be removed from the Airport Watchlist for the period of that travel and placed back on the Airport Watchlist upon his return with the child.
25.
The parents shall forthwith make appointments to attend upon Ms RR, psychologist, telephone number (02) …, or any other family therapist agreed to by the parties.
26.
The father shall provide to the therapist a copy of the Orders of the Court, the Reasons for Judgment, together with a copy of the report of Dr C dated 28 May 2014.
27.
The parents shall attend such appointments as the therapist makes and follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either or both of the parents and for the child.
28.
The parents shall share equally the fees of any professionals engaged to assist them and the child pursuant to these Orders.
29.
The father shall keep the mother informed as to any school enrolment he makes for the child and shall do nothing to prevent the mother from obtaining information about the child’s progress directly from the child’s school.
30.
The father shall advise the mother immediately if the child suffers illness or injury requiring hospital admission.
31.
Not less than once each week the father shall send to the mother an email about the child’s health, general welfare and activities.
32.
The parents shall maintain courtesy and civility in all communications with each other and shall not make comments of an insulting or derogatory nature about each other in the child’s presence or hearing.
33.
Each parent shall pay to Legal Aid NSW, one half of the costs of independent representation for the child in accordance with the relevant legal aid scale, such payments to be made within six months of receipt of a memorandum of fees from the Independent Children’s Lawyer, or otherwise by agreement with Legal Aid NSW.
34.
Pursuant to s 62B and s 65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
35.
Within two months from the date of these Orders the father shall pay to the mother the sum of $146,950.67 minus any amount owing by the mother to the father under an unpaid award for costs where the quantum of the award has been fixed by the Court, by assessment or by agreement (“the property settlement payment”). The Court noted that allowance for a costs award of $17,000 pursuant to an order of 20 June 2015 is included in the amount of $146,950.67.
36.
In the event that the property settlement payment is not made within two months of the date of these Orders, the father shall forthwith list the property at EE Street, Surburb K in the State of NSW (“the EE Street property”) for sale and sell the property as soon as practicable.
37.
In the event that the EE Street property is listed for sale pursuant to Order (36) herein, the father shall do all things and sign all documents necessary to sell the property by public auction at the earliest practicable date for the best price reasonably obtainable and after adjustments and costs of sale to disburse the proceeds of sale as follows:
(a) to discharge the mortgage registered on the title of the property;
(b) to the mother as she may direct the property settlement payment; and
(c) the balance to the father.
38.
In the event that the EE Street property is not sold within 12 months after the date of these Orders, the father shall forthwith on the expiration of that period, pay $10,000 to the mother.
39.
In the event that the EE Street property is sold within 12 months after the date of these Orders and 25 percent of the income tax assessed against the father in respect of the capital gain on the sale of the EE Street property is less than $10,000, forthwith upon receipt of the assessment, the father shall pay to the mother, an amount equating to that shortfall.
40.
Unless otherwise provided above, the mother be otherwise solely, legally and beneficially entitled to the exclusion of the father, to all other property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these Orders, including but not limited to:
(a) money deposited in any financial institutions in her name;
(b) shareholdings;
(c) insurance policies;
(d) motor vehicles;
(e) all household furniture and personal effects; and
(f) all superannuation interests held in her name.
41.
Unless otherwise provided herein the father be otherwise solely, legally and beneficially entitled to the exclusion of the mother, to all other property of whatsoever nature and kind in his ownership, possession and/or control as at the date of these Orders, including but not limited to:
(a) money deposited in any financial institutions in his name;
(b) shareholdings;
(c) insurance policies;
(d) motor vehicles;
(e) all household furniture and personal effects; and
(f) all superannuation interests held in his name.
42.
The father shall do all acts and things necessary to indemnify the mother and keep her indemnified from and against any and all of the father’s liabilities, whether past, present or future.
43.
The mother shall do all acts and things necessary to indemnify the father and keep him indemnified from and against any and all of the mother’s liabilities, whether past, present or future.
44.
In the event of default of either or both of the parties doing all such things and executing all such documents as may be required to comply with these Orders, a Registrar of the Family Court of Australia Sydney Registry is authorised pursuant to s 106A of the Act to do all such acts and things and execute all such documents on behalf of either or both of the parties, in order to procure compliance with these orders.
45.
Leave is granted to the parties to apply within 14 days, on giving at least 24 hours notice to the Court and each other in relation to the wording of these Orders.
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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