VAKROS & LETSOS

[2012] FamCAFC 40

FAMILY COURT OF AUSTRALIA

VAKROS & LETSOS [2012] FamCAFC 40

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate erred in finding contrary to the evidence that the presumption of paternity under s 69Q of the Family Law Act applied – Where the date of termination of cohabitation between the mother and the respondent was not in dispute – Where the Federal Magistrate, in finding that the presumption under s 69Q applied, seemed to have relied on the respondent’s evidence that he and the mother had unprotected sexual intercourse post cohabitation and during the period in which the child was conceived – Error established.

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate erred in finding contrary to the evidence that the presumption of parentage under s 69R of the Family Law Act was rebutted – Where the Federal Magistrate found that the birth certificate registered for the child prior to its amendment gave not details as to the identity of the father of the child and therefore found that no presumption under s 69R applied – No appealable error established.

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate erred in drawing an inference under s 69Y of the Family Law Act without determining first that a contravention had occurred and second that such an inference appeared just in the circumstances – Where no challenge was made to the findings upon which the Federal Magistrate based his conclusion that the inference could and should be drawn, but rather the reasoning process by which the Federal Magistrate came to such conclusion – No appealable error established.

FAMILY LAW – APPEAL – CHILDREN – DECLARATION OF PARENTAGE – Whether the Federal Magistrate denied the mother procedural fairness in advising what paragraphs of the mother’s affidavits should be read, or in issuing, ultra vires, a warrant for the mother’s arrest if she failed to attend on the next return date – Where the mother absented herself from the proceedings – No appealable error established.

FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – Whether the Federal Magistrate denied the mother procedural fairness in making interim parenting orders when such issues were not before the court – Error established.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the mother filed two applications in an appeal to adduce further evidence – Where such evidence was available during the proceedings before the Federal Magistrate – Applications dismissed.

Family Law Act 1975 (Cth) ss 69Q, 69R, 69Y
Federal Magistrates Court Rules 2001 (Cth) r 25B.03

Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
Coulton v Holcombe (1986) 162 CLR 1
Finlayson vFinlayson & Gillam (2002) FLC 93-121
G v H (1994) 181 CLR 387
Tryon & Clutterbuck (No. 2) (2009) FLC 93-412

APPELLANT: Ms Vakros

RESPONDENT: Mr Letsos

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

FILE NUMBER: SYC