Rilak and Tsocas

[2019] FamCA 34

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS [2019] FamCA 34

FAMILY LAW – INTERIM APPLICATION – s 102QB vexatious litigant application – Rice & Asplund – order in which proceedings are to be conducted.

Family Law Act 1975 (Cth) s 102QB

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 24 January 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. I direct that the s 102QB application and the arguments in respect of the Rice & Asplund principle as posed by the Father be dealt with in advance of a determination of the merits of the Mother’s Amended Application in a Case filed 23 January 2019 and her Application in a Case filed 27 June 2018.

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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The Court, in the context of final orders made by Justice Loughnan on 13 November 2015 regarding the arrangements for the parties’ daughter B, has before it a suite of interim applications filed by the Mother that seek to depart from the provisions set out by Justice Loughnan as being in the child’s best interest. 

2. In response to those applications the Father has filed an application pursuant to s 102QB of the Family Law Act 1975 and supported that application by affidavit on 21 January 2019.  By that application he seeks to end the proceedings on the basis that the Mother is engaging in vexatious litigation and has become a vexatious litigant. 

3. The Father has also indicated that in accordance with well-established authority before the Family Court he seeks to rely upon the principles known as the Rice & Asplund principles which provide for a court to give consideration, in the context of a final hearing having taken place, of whether the further litigation following that final hearing is adequately justified as being in a child's best interests by a sufficient change in circumstances.  I note that this is not a comprehensive description of the principles set out in Rice & Asplund but sets them out in general terms for the purposes of this ruling.

4. By her applications today the Mother seeks to vary significantly the arrangements put in place by Justice Loughnan.  One particular matter that she seeks is a matter which can be conceived of as being of some urgency, being that the Mother would like to spend time with the child on her birthday, which falls this Saturday.  I note that Justice Loughnan’s orders make no provision for special occasions such as birthdays and the extent that the Mother might or might not see the child on her birthday under the operation of those orders would fall to be determined upon whether, in the particular instance of this weekend, her time pursuant to Order 9(b) of those orders might fall on the Saturday or the Sunday. 

5. Accordingly, any delay in the hearing of the Mother's application will necessarily involve there being no order to provide for her to spend time with the child on her birthday this year. 

6. The Father says that the Mother’s applications should be deferred until the s 102QB application and the Rice & Asplund arguments are dealt with. The s 102QB application is protective of a party from vexatious litigation which forms a category of an abuse of process. The principles set out in Rice & Asplund are designed to be protective of the child’s best interest. They are there to ensure that she is not exposed to continuous or unwarranted litigation. The provisions of s 102QB are there to ensure in this instance that the Father, as a parent of the child is not exposed to abusive litigation.

7. In these proceedings there is a live question as to whether or not the applications, including the Initiating Application filed by the Mother, fall into these categories being such as to cause the Court either to have her declared as a vexatious litigant or to determine that it is not in the child’s best interest that the litigation continue due to a lack of sufficient change in circumstances since the determination by Justice Loughnan.  To hear the matters further, without the determination of these issues, deprives the Father of protection that he is entitled to should the Mother be a vexatious litigant and is to deprive the child of part of the protection afforded to her by Rice & Asplund.  Despite the fact that a deferral of the hearing of the applications would mean that the Mother would not have her application to spend time with the child on her birthday this year heard in a timely enough manner to allow her to spend time with the child should it be determined favourably in her case, it is appropriate to deal with the s 102QB and Rice & Asplund questions first.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 January 2019.

Associate:

Date:  31 January 2019