RILAK & TSOCAS - [2018] FamCAFC 70

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS

[2018] FamCAFC 70

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought that the presiding judge recuse herself – Where the appellant argued apprehension of bias – Application dismissed.

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Rilak & Tsocas [2015] FamCAFC 120
Rilak & Tsocas (No. 2) [2015] FamCAFC 141
Rilak & Tsocas (No. 2) [2017] FamCAFC 126
Rilak & Tsocas (No. 3) [2017] FamCAFC 217

APPELLANT:

Ms Rilak

RESPONDENT:

Mr Tsocas

FILE NUMBER:

SYC

2062

2010

FIRST APPEAL NUMBER:

2017

SECOND APPEAL NUMBER:

108

2017

DATE DELIVERED:

12 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

23 March 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2017 and 26 September 2017

LOWER COURT MNC:

[2017] FamCA 289
[2017] FamCA 289

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders made on 23 March 2018

The application that Ainslie-Wallace J recuse herself is dismissed.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 60 of 2017; EA 108 of 2017
File Number: SYC 2062 of 2010

Ms Rilak

Appellant

and

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

On 23 March 2018, on the Court’s own motion, two appeals instituted by Ms Rilak (“the appellant”) were listed before the Full Court to determine whether they should be dismissed.
On the day before the hearing of that motion, the appellant, by Application in an Appeal sought that I recuse myself from hearing the matter.
In the affidavit in support of the application, the appellant contended that I had been involved in six appeals instituted by her and that I had “rejected all of her applications” (Affidavit filed 22 March 2018, paragraph 12). In oral submissions, the appellant said that she does not have faith in me and that she feels I am impermissibly prejudiced against her and will not afford her justice in the hearing of her matters.
Although the appellant contended that I had been involved in six appeals, I am not altogether sure that that is the case. However, it is correct that on at least four occasions I have dismissed her applications in an appeal. I note however that on one occasion, I was a member of a bench of three that unanimously dismissed her application.
In relation to the last mentioned appeal, the appellant appealed against a trial judge’s refusal to recuse himself in the midst of the hearing of the final parenting proceedings between the appellant and Mr Tsocas (“the respondent”). In that matter, the Full Court found no error in the trial judge’s approach and the appeal was dismissed with costs. (see Rilak & Tsocas [2015] FamCAFC 120 (“the recusal appeal”).
In July 2015 the appellant sought expedition of an appeal instituted by her against interim parenting orders made on 5 June 2015 during the final parenting proceedings (“the interim parenting orders appeal”).
The appellant had earlier sought and been granted expedition of the recusal appeal.
At the time of hearing of the application for expedition of the recusal appeal, the appellant had filed the appeal against the interim parenting orders, she however declined to have both appeals heard at the same time which would have had the result that both appeals would be brought on expeditiously. The appellant subsequently made a separate application for expedition of the interim parenting orders appeal which was dismissed, I finding that the appellant had not established the circumstances necessary for a grant of expedition. (see Rilak & Tsocas (No. 2) [2015] FamCAFC 141)
On 12 July 2017 I dismissed the appellant’s application for extension of time in which to bring appeals from an order of Justice Stevenson made on 7 July 2016 and an order of Justice Rees made on 22 July 2016. In both cases the time for filing an appeal had long passed by nearly 12 months in each. In neither case did the appellant’s affidavit in support of the application address the delay or provide any reasons for it. The application was dismissed not only by reason of the delay and the lack of explanation for it but because the proposed appeals lacked merit. (see Rilak & Tsocas (No. 2) [2017] FamCAFC 126)
Finally on 13 October 2017, on the application of the respondent, I ordered the appellant to provide security for costs in relation to an appeal instituted by her against a costs order made by Rees J resulting from the appellant’s unsuccessful application that the respondent be dealt with for contravention of the parenting orders. (see Rilak & Tsocas (No. 3) [2017] FamCAFC 217)
The law in relation to disqualification on account of apprehended bias is well settled. In Johnson v Johnson (2000) 201 CLR 488, the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held at 492-493:
11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. …
Judges are called on every day to hear and determine applications, often in the same suit. That is the case here. The subject matters of the applications have mainly been procedural. I observe that in one of the matters which the appellant said had given rise to her concern, I was but one member of a bench of three who came to a unanimous decision on the application. (see Rilak & Tsocas [2015] FamCAFC 120) While none of the applications to which the appellant referred as foundation for the application was successful, I am comfortably satisfied that the fair minded reasonable observer understanding the context of the applications decided by me and the Full Court would not apprehend that I would fail to bring an impartial mind to the issue to be determined in the present appeal.
Thus I refused the application that I disqualify myself from further hearing the appeal.

I certify that the preceding twelve (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 12 April 2018.

Associate:

Date: 12 April 2018