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:

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.
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.
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…

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.

Continue reading Rilak

Details

AGLC: Rilak [2021] FedCFamC1A 68
Case: [2021] FedCFamC1A 68
Decision Date

CaseChat Overview and Summary

This appeal concerns the refusal of a judge of the Federal Circuit and Family Court of Australia (Division 1) to disqualify himself from a case, at the request of Ms Rilak. Ms Rilak, who is self-represented, seeks leave to appeal the decision dismissing her application for the primary judge's recusal. The application is made under s 102QG(3) of the Family Law Act 1975 (Cth) because Ms Rilak had previously been found to be a vexatious litigant under s 102QB of the Act. The appeal raises the issues of whether the primary judge was required to recuse himself and whether there is a reasonable prospect of success if the appeal were to be heard. The court had to determine whether there were reasonable grounds for Ms Rilak to appeal the decision and if the appeal had a reasonable prospect of success. The court considered the arguments presented by Ms Rilak and assessed whether there were any grounds to justify the primary judge's recusal. It was found that there was no reasonable apprehension that the primary judge would not impartially determine the case.

The court dismissed the application for leave to appeal. The reasoning was that Ms Rilak had failed to establish any reasonable grounds for the appeal, and the appeal had no prospect of success. The court found that the test for recusal was an objective one, and the primary judge's past employment at a law firm that had acted for the respondent did not give rise to a reasonable apprehension of prejudgment. Additionally, the law regarding relationships between judges and lawyers had been recently clarified by the High Court of Australia, which further supported the dismissal of the appeal. The court noted that Ms Rilak's assertions were based on subjective opinions and referred to decisions of earlier judges, which was not a desirable course. Therefore, the application for leave to appeal was dismissed. The court certified that the preceding twelve numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Orders