RILAK & TSOCAS - [2015] FamCA 425

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS

[2015] FamCA 425

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks recusal of the trial judge – Where the father and Independent Children’s Lawyer (“ICL”) oppose the application – Where proceedings are part heard – Where the trial judge’s legal associate had obtained a position with the firm of solicitors acting for the father –Where the firm had advised that the legal associate’s employment would not commence until after final judgment had been given in the proceedings – Where the mother submitted that there might have been improper communication between the trial judge’s chambers and the lawyers for the father – Where the Court found that the fictional observer, properly advised could not reasonably apprehend a basis for recusal on the presenting facts – Where the mother’s application for recusal is refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks an injunction restraining the father’s lawyers and counsel from acting – Where the father and ICL oppose the application – Where the mother relied on the same submissions as for her recusal application – Where there is no foundation for the mother’s application – Where there is no basis for removing the father’s solicitors or counsel – Where the mother’s application is refused.

Crimes Act 1914 (Cth) s 40
Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Griffis& Griffis (1991) FLC 92-233;
Johnson & Johnson (2000) 201 CLR 488;
McMillan & McMillan (2000) FLC 93-048;
Thevenaz & Thevenaz (1986) FLC 91-748; and
Webb v The Queen (1994) 181 CLR 41.

APPLICANT:	Ms Rilak
RESPONDENT:	Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

FILE NUMBER:	SYC		SYC 2062 of 2010
DATE DELIVERED:		5 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

2 June 2015

REPRESENTATION

SOLICITOR FOR

APPLICANT MOTHER:

Jodhi Coady Law

COUNSEL FOR THE RESPONDENT FATHER

Mr Levy

SOLICITOR FOR THE RESPONDENT FATHER

Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

The mother’s Amended Application in a Case filed in Court on 2 June 2015 in respect of recusal and disqualification is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are interlocutory applications. The mother seeks orders in the nature of orders for the abandonment of a part-heard hearing for parenting and financial relief, the recusal of the trial judge and an injunction to restrain solicitors and counsel from acting. She has also filed an application for interim costs and for orders to suspend or vary existing…

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.

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Details

AGLC: RILAK & TSOCAS [2015] FamCA 425
Case: [2015] FamCA 425
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the Family Court of Australia, the mother sought the recusal of the trial judge and an injunction restraining the father's solicitors and counsel from acting in the proceedings. The father and the Independent Children's Lawyer opposed both applications. The mother's concerns arose from the fact that the trial judge's legal associate had secured a position with the firm of solicitors representing the father, although the firm had advised that the associate's employment would commence only after the final judgment was delivered. The mother submitted that this situation might have led to improper communication between the judge's chambers and the father's legal team.

The court was required to determine whether there was a reasonable apprehension of bias justifying the recusal of the trial judge and the disqualification of the father's legal representatives. Specifically, the court had to consider if the circumstances, including the impending employment of the judge's associate with the father's solicitors, could lead a fair-minded and informed observer, properly advised of the facts, to conclude that the judge might not bring an impartial mind to the proceedings or that the father's legal team was compromised.

The court reasoned that the hypothetical observer, fully informed of the facts, would not reasonably apprehend a basis for recusal. The court found that the legal associate's future employment, commencing after judgment, did not create a situation where improper communication was likely or had occurred. Consequently, there was no foundation for the mother's application for recusal or for restraining the father's solicitors and counsel from acting.

Accordingly, the mother’s amended application in a case filed on 2 June 2015, seeking recusal and disqualification, was dismissed.

Orders

Orders of the court

The mother’s Amended Application in a Case filed in Court on 2 June 2015 in respect of recusal and disqualification is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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