VARDAKAS & KANAVAS
[2021] FamCA 385
FAMILY COURT OF AUSTRALIA
| VARDAKAS & KANAVAS | [2021] FamCA 385 |
| FAMILY LAW – PARENTING – application by mother for contact with daughter – final orders made by Dessau J on 22 December 2011 – leave required for any further parenting application by the mother – failure to comply with evidentiary requirements for seeking leave to apply for further parenting orders pursuant to Dessau J’s orders – application dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 65AA |
| APPLICANT: | Ms Vardakas |
| RESPONDENT: | Mr Kanavas |
| FILE NUMBER: | MLC | 5221 | of | 2008 |
| DATE DELIVERED: | 7 June 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 7 June 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Mr G. Glezakos |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
I dismiss the mother’s application in a case filed on 27 April 2021.
On or before 4pm today the respondent must file and serve submissions detailing the quantum of his costs on –
(a) a party/party basis; and
(b) an indemnity basis.
On or before 4pm on 11 June 2021 the applicant must file and serve written submissions on costs.
On or before 4pm on 16 June 2021 the respondent must file and serve written submissions in reply.
Following the time stipulated in paragraph 4 herein, judgment will thereafter be determined on the papers.
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 Vardakas & Kanavas 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 MELBOURNE |
FILE NUMBER: MLC 5221 of 2008
| Ms Vardakas |
Applicant
And
| Mr Kanavas |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Following a five day trial of this proceeding in 2011, on 22 December 2011 Dessau J (as Her Excellency then was) made orders conferring sole parental responsibility for the child upon the father. Her Honour also made orders for the child to live with the father and for the mother to not spend time with the child or communicate with the child otherwise than by way of cards, letters, gifts and otherwise as agreed between the parties.
Pursuant to paragraph 10 of her Honour’s orders made on 22 December 2011, the mother was restrained from commencing any further parenting application without first obtaining leave of a judge of this court. In order to seek that leave, the mother was first required to file affidavit material setting out –
a)the name, contact details and attendances upon her treating psychiatrist along with particulars of her diagnosis and treatment;
b)details of all medication prescribed by her treating psychiatrist along with details of the mother’s management and compliance;
c)information about any other referrals by the mother’s treating psychiatrist or other mental health professionals; and
d)an assessment of the mother’s progress including the level of insight into the child’s needs to have a meaningful relationship with both parents.
By application in a case filed 27 April 2021 the mother applied for orders for her to have contact with her daughter.
The mother, in bringing this application, did not comply with paragraph 10 of the orders of Dessau J. The mother did not file affidavit material that detailed the matters set out in paragraphs 10.1 to 10.7 of her Honour’s orders. The mother told me she had not and had no intention of seeking psychiatric assistance.
The mother contended in written and verbal submissions before me that the best interests of the child was served by the mother having time with the child.
Synopsis
For the reasons that follow I dismiss the mother’s application in a case filed 27 April 2021.
Evidence in support of her application
The mother swore an affidavit on 26 April 2021. She was not legally represented when she prepared her affidavit or when she appeared on the return of her application. Relevantly paraphrased, in her affidavit she deposed to the following –
a)she said the orders made in 2011 were no longer appropriate to the current circumstances between the mother and the child;
b)she said the mother and the child had not had a meaningful relationship for 13 years;
c)the father was preventing the child from having a meaningful relationship with the mother;
d)the father is a paranoid schizophrenic;
e)the mother has established contact with the child on 3 March and 26 March 2021;
f)the child will turn 16 years of age in 2021;
g)on 26 March 2021 when the mother met the child the child was relaxed;
h)the mother said she was not seeing a psychiatrist, she was not on medication and she had not obtained any psychiatric diagnosis or prognosis; and
i)the mother had not been in contact with the father, with whom the child is living, since 18 July 2005.
No affidavit evidence of any description (whether medical or evidence of a family consultant) was adduced beyond the mother’s affidavit described above.
The mother’s written submissions were dated 2 June 2021 and were addressed to McEvoy J. In those submissions the mother asserted that she sought a “reassessment” (her word) of the orders made in December 2011 because it is in the best interests of the child for the mother to have time with the child. In those submissions the mother recorded reference to s 60CC, s 65AA, s 60CC(2)(b) and ss 60CC(3)(a) to 60CC(3)(g) of the Family Law Act. She did not develop any submissions directed to any of those sections or subsections. The mother did not explain why she failed to comply with the terms of paragraph 10 of the orders made by Dessau J on 22 December 2011.
The father’s position on this application
The father, represented by Mr Glezakos of counsel, opposed the mother’s application for leave on the basis that the mother had not complied with paragraph 10 of the orders of Dessau J. Mr Glezakos submitted that paragraph 10 was in mandatory terms. He submitted that the regime in paragraph 10 was premised on evidence accepted by the learned trial judge that the mother had psychiatric issues as diagnosed by Dr D. Mr Glezakos took me to the mother’s statement in her affidavit that the mother last saw Dr D in November 2010 and Mr Glezakos argued that no other evidence existed in this application that the mother had consulted any other psychiatrist. Mr Glezakos submitted that if the mother proceeded in conformity with the regime set out in paragraph 10 of the orders of Dessau J, his client would probably favourably entertain any such application for the mother to have time with the child.
The mother told me she had no intention of seeing a psychiatrist and there was no need for her to do so.
The only “evidence” of the child’s wishes in this case to see her mother emanated from the mother.
Consideration
The mother failed to comply with paragraph 10 of the orders of Dessau J. She conceded as much. However, she asserted that those orders were inappropriate.
I disagree. Those orders bound the mother. Her psychiatric state was a matter that exercised the mind of the learned trial judge. It was not for the mother to elect to disregard those orders when seeking leave.
Accordingly, on this application there was no evidence of compliance with paragraph 10 of the orders made by Dessau J.
So far as the wishes of the child were concerned, and for that matter the issues raised as primary considerations as well as the issues raised as additional considerations for the purposes of s 60CC, no evidence was before me. The mother’s statement that she took the view that it was in the child’s best interests for the mother to have time with the child was little more than mere assertion.
For those reasons I dismiss the mother’s application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 7 June 2021.
Associate:
Date: 9 June 2021
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