Rilak & Tsocas

Case [2020] FamCA 49

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS [2020] FamCA 49

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the Father for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the Mother has frequently instituted or conducted vexatious proceedings – Final order made prohibiting the Mother from commencing proceedings under the Act against the Father without first obtaining leave of the Court.

FAMILY LAW – CHILDREN – Mother’s application to vary existing final parenting orders – Rice v Asplund – threshold issue – whether there has been material change in circumstances or material new factor – finding that there is no material change in circumstances or material new factor.
Family Law Act 1975 (Cth) ss 102Q, 102QB
Cannon & Acres [2014] FamCA 104
Marsden v Winch (2009) 42 Fam LR 1
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle[2017] FamCAFC 210
Rice v Asplund (1979) FLC 90-725
APPLICANT: Ms Rilak
RESPONDENT: Mr Tsocas
FILE NUMBER: SYC 2062 of 2010
DATE DELIVERED: 4 February 2020
PLACE DELIVERED: Canberra
PLACE HEARD: Canberra
JUDGMENT OF: Gill J
HEARING DATE: 24 January 2019; 21 May 2019; 11 July 2019; 21 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented
COUNSEL FOR THE RESPONDENT: Mr Levy
SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

  1. That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother, Ms Rilak, be and hereby are dismissed.

  2. That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, born … 1967, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child B, born … 2010.

  3. That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father, Mr Tsocas, born … 1957.

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

REASONS FOR JUDGMENT

Introduction

  1. This matter involves proceedings regarding the parties’ child, B, being proceedings conducted in the shadow of Final Orders made by the Honourable Justice Loughnan on 20 November 2015 (‘the Final Orders’).  Those Orders provided, in general terms, for B to live with…

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AGLC
Rilak & Tsocas [2020] FamCA 49
Case
[2020] FamCA 49
Decision Date

CaseChat Overview and Summary

In this matter before Gill J, the Father sought an order pursuant to section 102QB of the *Family Law Act 1975* (Cth) that the Mother's proceedings be declared vexatious. The Mother had applied to vary existing final parenting orders, but the Court was also required to consider the Father's application for a vexatious proceedings order, alleging a pattern of vexatious conduct by the Mother.

The primary legal issues before the Court were whether the Mother's applications constituted vexatious proceedings, and if so, what orders should be made under section 102QB of the *Family Law Act 1975*. Additionally, the Court had to determine the threshold issue under the principles established in *Rice v Asplund*, namely whether there had been a material change in circumstances or a material new factor that would justify varying the existing final parenting orders.

The Court reasoned that a subjective intention to harass or annoy was not always necessary for proceedings to be considered vexatious; the manner of conduct, causing harassment, annoyance, delay, detriment, or a wrongful purpose, could be sufficient. The Court also noted that a refusal to accept the finality of proceedings could lead to vexatious conduct, even if motivated by a perceived concern for a child's welfare. Applying the principles from *Rice v Asplund*, the Court found that the Mother had not demonstrated a material change in circumstances or a material new factor to warrant varying the existing parenting orders. The Court emphasised that the purpose of the *Rice v Asplund* rule is to discourage endless litigation and that allowing applications without a sufficient change in circumstances would inflict psychological harm on the parties and the child.

Consequently, the Court made orders pursuant to section 102QB of the *Family Law Act 1975*, dismissing all extant applications filed by the Mother and prohibiting her from instituting further proceedings under the Act in relation to the child or the Father without first obtaining leave of the Court.

Orders

Orders of the court

1.

That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother, Ms Rilak, be and hereby are dismissed.

2.

That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, born … 1967, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child B, born … 2010.

3.

That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father, Mr Tsocas, born … 1957.

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

Background

Background to the litigation

The Mother asserted that the “Notices to Admit Facts and Produce in present matter - a genuine attempt to reduce the burden of cross-examination. It ought not count.”[25][25] Mother’s written submissions filed 12 September 2019, [17]. The Father was excused from compliance with each by the Court. Each was oppressive in the context of the current proceedings, the Notice to Admit Facts being argumentative and comprising 423 contentions advanced by the Mother. Each falls within the description of being conducted in a way so as to harass or annoy, cause delay or detriment” and should be regarded as vexatious. Before turning to the consideration of the principles and circumstances as set out above, it is important to pay heed to matters the Mother addressed directly in her written submissions. A number of those submissions, as they relate to specific instances of litigation have already been extracted. The Mother also emphasised a number of other points. Firstly she raised a lack of attack upon her bona fides by the Father:“The father agreed that the mother loves her child. He has not submitted that the mother’s motivation for litigation is done to harass, annoy or vex in any other way. Thus, in the end, the only things that could possibly count are those things where the mother has misconceived the legal framework sought to be applied. These ought not be counted because, taking into account the mother’s lack of legal support and training, and language and cost barriers, it would be unfair and prejudicial to do so.”[26][26] Mother’s written submissions filed 12 September 2019, section 1 Was anything vexatious? As noted previously, a subjective intention (or motivation) is not a necessary ingredient for litigation to be vexatious, save for (b) of the definition at s 102Q. The manner of conduct of proceedings, which is productive of harassment, annoyance, delay, detriment or wrongful purpose may be sufficient (see (c) of the definition). Further, an abuse of process does not require an underlying intention that the processes be abused (see (a) of the definition). Further, it may be observed that a refusal to accept the finality of the proceedings may produce conduct that is vexatious, even where that refusal is linked to subjectively noble intentions (such as perceptions as to the welfare of a child). The Mother also raised the nature of the subject matter of the litigation as pertinent to a consideration of whether conduct is vexatious, and of the requirement for frequency. To this end she observed that:“Complex, high-stakes cases like this one demand greater leniency for procedural or legal errors made by litigants”.[27][27] Mother’s written submissions filed 12 September 2019, section 2 Frequency. Further, the Mother submitted that:“as long as there is a real question of the child’s best interests on foot, the ‘frequency’ threshold cannot be met. The question of the child’s best interests arises here from the unforeseen and unjustified maternal severance, lack of appropriate therapeutic support, and filing of Notices that raise new evidence of abuse and risk of abuse.”[28][28] Mother’s written submissions filed 12 September 2019, section 2 Frequency.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The principles in Rice v Asplund are explored at length in Marsden & Winch.[31] Without reciting the entirety of what is said there, the following extract sets out the most salient aspects to the current matter:[31](2009) 42 Fam LR 1.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination. As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.Warnick J opined in SPS & PLS (supra) that:58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.Warnick J had earlier said at [48]:In my view, reflection on the rule shows that: (i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.(vi) "Shorthand" statements of the rule may contribute to its misapplication.(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

Ratio Decidendi

Legal Principle Established

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