Rilak

[2021] FedCFamC1A 68

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Rilak [2021] FedCFamC1A 68

Appeal from:

Tsocas & Rilak [2021] FedCFamC1F 122

Appeal number(s):

NAA 42 of 2021

File number(s):

SYC 2062 of 2010

Judgment of:

ALDRIDGE J

Date of judgment:

19 November 2021

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where applicant seeks to appeal against the dismissal of a recusal application – No reasonable grounds established – Appeal has no prospect of success – Application for leave to appeal dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 102QB, 102 QG

Cases cited:

Charisteas v Charisteas (2021) 95 ALJR 824; [2021] HCA 29

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Number of paragraphs:

12

Date of last submission:

26 October 2021

Date of hearing:

Heard by way of written submissions

Place:

In Chambers

The Appellant:

Self-represented litigant

ORDERS

NAA 42 of 2021
SYC 2062 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

MS RILAK

Appellant

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 21 October 2021 is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

1. By an Application in an Appeal filed on 21 October 2021, Ms Rilak (“the applicant”) seeks an order under s 102QG(3) of the Family Law Act 1975 (Cth) (“the Act”) giving her leave to file a Notice of Appeal. She seeks to appeal against the decision of a judge of the Federal Circuit and Family Court of Australia (Division 1) who refused to disqualify himself at the request of the applicant.

2. Leave is necessary because on 4 February 2020, an order was made against the applicant under s 102QB of the Act because she had frequently instituted or conducted vexatious proceedings.

3. The applicant has been given leave to commence contravention proceedings against Mr Tsocas (“the respondent”) which then came before the primary judge. The applicant sought the primary judge’s recusal because:

   ·Prior to his appointment in 2006 the primary judge had been special counsel with a firm of solicitors which had acted for the respondent for many years (but were not presently acting for him);

   ·The judge was the subject of congratulatory messages on the law firm’s Facebook page on his recent appointment to the Family Court of Australia (as it was then known) and

   ·The primary judge had a history of placing children with abusers.

4. The applicant was afforded the opportunity to file written submissions in support of her application but she declined, saying that she was content to rely on the material already lodged.

5. In her proposed Notice of Appeal, the applicant relied on the following in support of leave:

   (1)In two recusal applications made by the applicant this year, two different tests have been applied by different judges;

   (2)The line around relationships between judges and lawyers requires appellate clarification and

   (3)The primary judges “unexplained write-off of the mother’s evidence of a systematic pattern of prejudice connected with judge’s relationships with [the firm] in the history of the case could be seen as an attempt to minimise the problematisation of collegial relationships between lawyers and judges in the Family Court, so as to minimise the objective significance of his own connection to [the firm] in the instant matter”.

6. As to the first point, there is no doubt as to the test to be applied which is whether a reasonable bystander might apprehend that the case might not be impartially determined (i.e. an objective test). See, for example, Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas & Charisteas (2021) 95 ALJR 824 (“Charisteas”).

7. As to the second, the law as to such relationships was recently clarified by the High Court of Australia in Charisteas.

8. As to the third point, the allegation of a “systematic pattern of prejudice” makes it plain that the applicant wishes to pursue her subjective opinions by referring to decisions of earlier judges. That is not a desirable course.

9. None of these matters justify a grant of leave.

10. As to the appeal itself, the applicant’s assertion is that the employment of the primary judge over 15 years ago at a law firm that has in the past acted for the respondent, but does not presently do so, means there is an “ongoing ostensible connection” between the judge and the law firm, which justifies a recusal (Proposed Ground 2). It is difficult to see how that could give rise to a reasonable apprehension of prejudgment.

11. The prospects of success on the grounds set out in the proposed Notice of Appeal is such that there is no reasonable prospect of success.

12. Taking those matters into account, the application will be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       19 November 2021