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…

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 & TSOCAS

Details

AGLC: RILAK & TSOCAS [2018] FamCAFC 70
Case: [2018] FamCAFC 70
Decision Date: 12 April 2018

CaseChat Overview and Summary

In this case, Ms Rilak, the appellant, filed an application in the Full Court of the Family Court of Australia, Sydney, seeking the recusal of Ainslie-Wallace J on the grounds of apprehended bias. Ms Rilak had been involved in several appeals against decisions made by various judges, including Ainslie-Wallace J, in matters related to her proceedings with Mr Tsocas, the respondent. Ms Rilak contended that Ainslie-Wallace J had previously dismissed all her appeals, and she had lost faith in the judge's impartiality. The court was required to decide whether there was any basis for the appellant's claim of apprehended bias that would warrant the recusal of Ainslie-Wallace J from hearing the appeals.

The court examined the precedent set by Johnson v Johnson, which establishes the test for determining whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of a case. The court considered the context of the appeals decided by Ainslie-Wallace J and the Full Court, which mainly involved procedural matters. The court noted that the appellant had not succeeded in any of the appeals, but it was satisfied that a fair-minded observer would not apprehend bias on the part of Ainslie-Wallace J in the current appeals. The court also highlighted that Ainslie-Wallace J was only one member of a bench of three in one of the matters referred to by the appellant.

Based on the reasoning above, Ainslie-Wallace J dismissed the application for recusal, finding no basis for the appellant's apprehension of bias. The court certified that the preceding thirteen paragraphs are a true copy of the reasons for judgment delivered on 12 April 2018.

The orders made on 23 March 2018 were that the application for Ainslie-Wallace J to recuse herself was dismissed.

Orders