RILAK & TSOCAS

Case [2015] FamCAFC 120

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS [2015] FamCAFC 120

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the primary judge disclosed that his legal associate had secured a contract of employment with a firm of solicitors representing a party – Where the trial proceedings were part heard – Where application that the primary judge disqualify himself on the ground of apprehended bias – Where the primary judge refused to disqualify himself – Where the mother sought the assistance of an interpreter part way through the trial proceedings – Alleged procedural unfairness by the mother – Where error not established – Appeal dismissed.

FAMILY LAW – COSTS – Where the mother failed to establish appellate error – Costs ordered.
Family Law Act 1975 (Cth)
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Smits v Roach (2006) 227 CLR 423
APPELLANT: Ms Rilak
RESPONDENT: Mr Tsocas
FILE NUMBER: SYC 2062 of 2010
APPEAL NUMBER: EA 77 of 2015
DATE DELIVERED:

 24 June 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Ryan & Le Poer Trench JJ
HEARING DATE: 22 June 2015
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 5 June 2015
LOWER COURT MNC: [2015] FamCA 425

REPRESENTATION

FOR THE APPELLANT: Ms Rilak in Person with the assistance of a Slovakian interpreter
COUNSEL FOR THE RESPONDENT: Ms Lawson
SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

  1. The appeal be dismissed.

  2. The mother pay the father’s costs of and incidental to the appeal as agreed or assessed.

  3. The mother shall pay the costs due pursuant to Order 2 above from her share of property received from the property settlement proceedings.  In the event the mother is not entitled to receive an adjustment of property, the amount due pursuant to Order 2 is payable twenty eight (28) days after final property orders are made between the parties.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 77 of 2015
File Number: SYC 2062 of 2010

Ms Rilak

Appellant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Introduction

  1. By Notice of Appeal filed on 4 June 2015, Ms Rilak (“the mother”) appeals against Order 1 of the orders made by Loughnan J on 2 June 2015.  By that order the mother’s application that his Honour recuse himself was dismissed, as was her application to restrain the father’s solicitors from continuing to represent him.  At the appeal the mother withdrew her appeal in relation to the solicitors.

  2. The respondent is Mr Tsocas (“the father”).  He and the mother are the parents of the child B, who was born in 2010 (“the child”).

  3. Proceedings about the child and other family law issues commenced in this court on 6 December 2011.  The final hearing…

Continue reading RILAK & TSOCAS

Sign in free to access the full text

Details
AGLC
RILAK & TSOCAS [2015] FamCAFC 120
Case
[2015] FamCAFC 120
Decision Date

CaseChat Overview and Summary

The case of RILAK & TSOCAS involved a mother who sought the assistance of an interpreter part way through the trial proceedings in a family law matter. The mother challenged the decision of the primary judge, who had refused to disqualify himself on the ground of apprehended bias due to the fact that his legal associate had secured a contract of employment with a firm of solicitors representing the father. The mother also argued that there was procedural unfairness by her, and that the primary judge should have disclosed the facts sooner than he did. The mother further argued that the primary judge's refusal to stay the proceedings pending determination of her appeal was also erroneous.

The court had to decide whether the primary judge's failure to disclose the conflict of interest in a timely manner constituted grounds for recusal and whether there was any procedural unfairness by the mother. The court also had to determine if the primary judge's decision to continue the proceedings even though the mother walked out was erroneous.

The court held that the primary judge's disclosure was sufficiently timely and did not establish grounds for recusal. The court also held that the mother's allegation of procedural unfairness was not established. The court further held that the primary judge's decision to continue the proceedings was not erroneous as he had given the mother an opportunity to finish cross-examining the expert witness and had warned her of the risks of withdrawing from the case. The mother's failure to establish appellate error resulted in the court ordering her to pay the father's costs of and incidental to the appeal.

In conclusion, the appeal was dismissed and the mother was ordered to pay the father's costs of and incidental to the appeal as agreed or assessed. The mother was also ordered to pay the costs due from her share of property received from the property settlement proceedings.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The mother pay the father’s costs of and incidental to the appeal as agreed or assessed.

3.

The mother shall pay the costs due pursuant to Order 2 above from her share of property received from the property settlement proceedings. In the event the mother is not entitled to receive an adjustment of property, the amount due pursuant to Order 2 is payable twenty eight (28) days after final property orders are made between the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The mother’s submissions in support of her challenge raised by ground 13 are tidily summarised in her summary of argument:8. The judicial errors in regard to the disclosure:a.Justice did not disclose as soon as he find out that his legal associate was in the contact with [the father’s solicitors] outside the Court. Reasons for Judgment dated 5 June 2015 Page 14, Paragraph 49.b.It appears that Justice knew this fact sometimes ago, but only just disclosed it to the parties, when “occurred to him” – one week prior her employment Transcript P-12 Paragraph 40 and P-14 Paragraph 5.c.Justice failed to disclose conflict of interest clearly:i.When the contact was established (see [the father’s solicitor’s] Affidavit sworn 29.5.2015 Paragraph 3 – by initial actual contact on 11 March 2015);ii.Since when did his legal associate worked on the draft documents;iii.The exact day of legal associate’s commencement of her employment. Justice was not sure – “She starts that job, I think, in a week or two.”Transcript from 21 May 2015 P-12 Paragraph 40;Transcript from 22 May 2015 P-70 Paragraph 30d.Justice determines which concern is actual Reasons for Judgment dated 5 June 2015 Page 12, Paragraph 40.e.Justice determines whether there is a qualified reason for his recusal Reasons for Judgment dated 5 June 2015 Page 12, Paragraph 40. (As per original and original emphasis) The primary challenge made by this ground is that his Honour ought to have disclosed the facts sooner than he did. There can be no doubt on a fair reading of the transcript that his Honour disclosed the facts as soon as it occurred to him that prudence suggested he ought. We have already explained why the facts do not establish grounds for recusal. When considered in that light, it can be easily understood why the primary judge may have needed a little time to appreciate that facts which would not require recusal should, in the interests of prudence, nonetheless be disclosed. We do not know when his Honour was told the legal associate would join the father’s solicitors. However, evidence presented by the firm establishes that the offer of employment was made on 1 May 2015. The hearing resumed on 20 May 2015 and the disclosure was made at 10.39 am the following day. In our view, his Honour’s disclosure was sufficiently timely. Nor do the other matters raised by the mother concerning timing and it might be said, the nature of the disclosure, establish a basis for us to intervene. Before we consider the challenges raised by grounds 10 and 9(c), we should mention that in her notice of appeal, the mother appealed Order 4 of 2 June 2015. By this order, his Honour refused the mother’s application to stay the proceedings pending determination of her appeal. However, the mother also abandoned that challenge and thus, she is not entitled to now assert error in that regard. In any event, we turn then to his Honour’s decision to continue the proceedings even though the mother walked out. Before the mother departed, the following exchanges took place:HIS HONOUR: …You have an opportunity to finish – if you wanted to – you mightn’t have had any more questions. I think you indicated you did. You have an opportunity to cross-examine [the single expert]. If you choose not to take that up it might be that that’s to your disadvantage in the final hearing – in the final outcome. So I can’t stop you leaving the building or withdrawing from the case but the risk you run is that orders – including interlocutory orders – in relation to your daughter might be made in your absence. So it’s a very serious matter. Do you understand that?[The Mother]: I understand. Yes.HIS HONOUR: All right, then. Thank you. Do you have any further questions for [the single expert]?[The Mother]: I would but I not feel comfortable proceed.HIS HONOUR: Okay, ma’am. I mean, what you could do, if you wanted – [counsel for the father] is going to have some questions for her now. If, when he’s finished, you do feel as though you’re able to do it ‑ ‑ ‑ [The Mother]: I – no. I object. So I don’t want to do ‑ ‑ ‑ (Transcript, 22 May 2015, pp 78-79, lines 31-46 & 1-5)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.