RILAK & TSOKAS - [2017] FamCAFC 26

FAMILY COURT OF AUSTRALIA

RILAK & TSOKAS

[2017] FamCAFC 26

FAMILY LAW – APPEAL – CHILDREN – Best interests – Unacceptable risk of harm – Credit – Weight – No error established.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether court should have ordered an updated single expert report – Adjournment – Party’s absence from court – Cross-examination of single expert – Disqualification – Procedural fairness – No error established – Appeal dismissed – Appellant mother to pay costs of respondent father.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence on appeal – Application dismissed.

Family Law Act 1975 (Cth) s 93A(2)

CDJ v VAJ (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
GPI Leisure Corp Limited v Herdsman Investments Pty Limited (No 3)
(1990) 20 NSWLR 15
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Lenova & Lenova (Costs)[2011] FamCAFC 141
Metwally v University of Wollongong (1985) 60 ALR 68
Phillips v Phillips [1966] 1 NSWR 49
Rice and Asplund (1979) FLC 90-725
Rilak & Tsocas [2015] FamCAFC 120
Rilak & Tsocas (No 5) [2015] FamCA 848
Rilak & Tsocas (No 6) [2015] FamCA 1020

APPELLANT:

Ms Rilak

RESPONDENT:

Mr Tsokas

INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

FILE NUMBER:

SYC

2062

2010

APPEAL NUMBER:

183

2015

DATE DELIVERED:

27 February 2017

PLACE DELIVERED:

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Aldridge & Cronin JJ

HEARING DATE:

26 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 November 2015

LOWER COURT MNC:

[2015] FamCA 1235

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr de Robillard (direct brief)

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Livingstone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

The appeal be dismissed.
The Application in an Appeal filed 22 September 2016 be dismissed.
The appellant mother is to pay the costs of the respondent father as agreed or, in default of agreement, as assessed.

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 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 183 of 2015
File Number: SYC 2062 of 2010

Ms Rilak

Appellant

And

Mr Tsokas

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Rilak (“the mother”) appeals against parenting orders made by Loughnan J on 13 November…

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.

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Details

AGLC: RILAK & TSOKAS [2017] FamCAFC 26
Case: [2017] FamCAFC 26
Decision Date: 27 February 2017

CaseChat Overview and Summary

The appeal involved a mother and father, referred to as the appellant and respondent, respectively, in relation to their children. The dispute arose from the parents' differing views on matters pertaining to the welfare and upbringing of their children. The case was heard in the Family Court of Australia, with the appeal subsequently being heard in the Federal Circuit and Family Court of Australia. The appellant contested several decisions made by the Family Court, including the weight given to certain evidence, the procedural fairness of the proceedings, and the court's refusal to order an updated single expert report. The respondent argued that the Family Court's decisions were sound and should be upheld.

The primary legal issues in this case centred on whether the Family Court erred in its assessment of the evidence and in its procedural decisions. The appellant argued that the Family Court failed to appropriately consider certain evidence and failed to ensure procedural fairness, particularly regarding the absence of a party from court and the cross-examination of the single expert. The appellant also contended that the Family Court should have ordered an updated single expert report. The respondent maintained that the Family Court's decisions were correct and that no procedural errors were made.

The court found that the Family Court did not err in its assessment of the evidence or in its procedural decisions. The court held that the Family Court appropriately weighed the evidence and exercised its discretion in line with the best interests of the children. Furthermore, the court found that there was no procedural unfairness, as the appellant had not established any errors in the proceedings. The court also determined that the Family Court was not obliged to order an updated single expert report and that the absence of a party from court and the cross-examination of the single expert did not prejudice the appellant. Consequently, the appeal was dismissed.

The court further dismissed the application to adduce further evidence on appeal and ordered that the appellant mother pay the costs of the respondent father as agreed or, in default of agreement, as assessed. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

The Application in an Appeal filed 22 September 2016 be dismissed.

The appellant mother is to pay the costs of the respondent father as agreed or, in default of agreement, as assessed.

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

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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