Rilak & Tsocas - [2021] FedCFamC1F 122

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rilak & Tsocas [2021] FedCFamC1F 122

File number(s): SYC 2062 of 2010

Judgment of: ALTOBELLI J

Date of judgment: 15 October 2021

Catchwords:
FAMILY LAW – COURTS AND JUDGES – Disqualification – Recusal application on the basis of apprehended bias – Where there is no evidence of apprehended bias – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Proceedings – Vexatious proceedings – Leave to institute proceedings – Leave granted.

Legislation: Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QG

Cases cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177

Rilak & Tsocas [2017] FamCA 757

Rilak & Tsocas (No. 2) [2018] FamCAFC 78

Webb & Guthrie [2016] FCCA 2285

Division: Division 1 First Instance

Number of paragraphs: 54

Date of last submission/s: 25 August 2021

Date of hearing: 25 August 2021

Place: Sydney (via videoconference)

The Applicant: Litigant in Person

The Respondent: Litigant in Person
ORDERS

SYC 2062 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

BETWEEN:
MS RILAK

Applicant

AND:
MR TSOCAS

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

15 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Applicant is granted leave pursuant to section 102QG of the Family Law Act 1975 (Cth) to proceed with her Application in a Case filed 8 July 2021.
2.The application that the Honourable Justice Altobelli be recused, be dismissed.
3.The Applicant is granted leave pursuant to section 102QG of the Family Law Act 1975 (Cth) to proceed with her Contravention Application dated 31 May 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

Ms R. is the applicant mother in this case and will be referred to as the Applicant. Mr Tsocas is the respondent father, and will be described as the Respondent. The Applicant and the Respondent (together known as the parents) have been involved in a decade long dispute in relation to their daughter, B, who is now 11 years old.
On 4 February 2020, Justice Gill made orders under s 102QB of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”)…

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 [2021] FedCFamC1F 122
Case: [2021] FedCFamC1F 122
Decision Date

CaseChat Overview and Summary

This case involved an application for leave to file a contravention application concerning parenting orders made in 2015. The Applicant, who is the mother, sought leave to file an application alleging that the Respondent, the father, had contravened specific orders regarding communication and time spent with their daughter. The dispute centred on the Respondent's alleged failure to comply with Order 12, which mandated communication between the mother and daughter on specified days and times. The Applicant argued that the Respondent had not fulfilled this order without reasonable excuse, while the Respondent did not dispute the non-compliance but might have a reasonable excuse.

The court had to decide whether the proceedings were vexatious, as defined under s 102Q(1) of the Act, which includes proceedings that are an abuse of the process of a court, instituted to harass or annoy, without reasonable ground, or conducted in a manner to harass or cause delay. The court also needed to determine if the Applicant had established reasonable grounds for the contravention application and if the proceedings were necessary and not being pursued for an improper purpose.

The court found that the application for leave to file the contravention application was not vexatious, considering the history of the case and the importance of ensuring the child's best interests. The court was satisfied that the Applicant had reasonable grounds to believe that the Respondent had contravened the orders and that the proceedings were not being pursued for an improper purpose. Consequently, the court granted the Applicant leave to file the contravention application.

The final orders included granting the Applicant leave to file the contravention application and directing the parties to attend mediation to address the underlying issues in the case. The court emphasized the importance of the child's welfare and the need for the parties to work towards resolving their disputes amicably.

Orders

Orders of the court

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Background

Background to the litigation

Three applications came before me on 25 August 2021. The first was an Application in a Case seeking leave under s 102QG(3) of the Act to file an Application in a Case seeking my recusal. The second was an Application in a Case seeking my recusal. The third, which will be described as the substantive application, was an Application in a Case seeking leave under s 102QG(3) of the Act to file an Application – Contravention signed 31 May 2021.BACKGROUND The unfortunate litigation history of this matter is comprehensively referred to in the reasons for judgment of his Honour Justice Gill delivered on 4 February 2020. The present focus will be on applications made since then. The procedural history of these proceedings is set out in Schedule A to these reasons for judgment. This litigation has involved 40 applications and three appeals. The Applicant is neither communicating with, nor spending time with, her daughter. It would appear that there are currently three contravention applications either on foot or contemplated, subject to leave being granted. The common theme of these applications is that the Applicant alleges that contrary to the orders made by his Honour Justice Loughnan on 13 November 2015, and without reasonable excuse, the Respondent has contravened orders which would allow the Applicant to spend time with and communicate with her daughter. The relevant order for the purposes of the application before me appears to be Order 12 which states:(12) B shall communicate with the mother by electronic means each Tuesday and Thursday for a period of half an hour between 5.00 pm to 6.00 pm, with the father to initiate the call. The communication may occur by telephone or by Skype as the parties may agree and in default, by telephone. The father is at liberty to conclude the telephone call or Skype call in the event that he is of the opinion it is not in B’s best interests for the call to continue. The Respondent seems to contend that Orders 25 and 27 are also relevant to the contravention application. These orders state:(25)The parents shall forthwith make appointments to attend upon Ms RR, psychologist, telephone number …, or any other family therapist agreed to by the parties.(27)The parents shall attend such appointments as the therapist makes and follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either or both of the parents and for B. This Court will find that compliance with Order 12 is independent of compliance with Orders 25 and 27. The latter may be directly or indirectly relevant to the issue of whether the Respondent has a reasonable excuse, but as the orders are drafted Order 12 stands alone. The Respondent did not dispute that B was not communicating with her mother in accordance with this order.THE EVIDENCE BEFORE THE COURT In support of her case, the Applicant relied on the following documents:(a)Her Application in a Case filed 8 July 2021;(b)Her Affidavit filed 8 July 2021;(c)Her Application in a Case filed 8 July 2021;(d)Her Affidavit filed 8 July 2020;(e)Her Minutes of Order dated 27 July 2021;(f)A document tendered as exhibit “A1”;(g)Her Application in a Case filed 16 June 2021;(h)Her Contravention Application signed 31 May 2021;(i)Her Affidavit filed 16 June 2021; and (j)Her Affidavit signed 31 May 2021.

Evidence

Evidence Before The Court

This Court will find that compliance with Order 12 is independent of compliance with Orders 25 and 27. The latter may be directly or indirectly relevant to the issue of whether the Respondent has a reasonable excuse, but as the orders are drafted Order 12 stands alone. The Respondent did not dispute that B was not communicating with her mother in accordance with this order.THE EVIDENCE BEFORE THE COURT In support of her case, the Applicant relied on the following documents:(a)Her Application in a Case filed 8 July 2021;(b)Her Affidavit filed 8 July 2021;(c)Her Application in a Case filed 8 July 2021;(d)Her Affidavit filed 8 July 2020;(e)Her Minutes of Order dated 27 July 2021;(f)A document tendered as exhibit “A1”;(g)Her Application in a Case filed 16 June 2021;(h)Her Contravention Application signed 31 May 2021;(i)Her Affidavit filed 16 June 2021; and (j)Her Affidavit signed 31 May 2021. In support of his case, the Respondent relied on the following documents:(a)His Response to Application in a Case filed 9 August 2021; and(b)His Affidavit filed 9 August 2021.THE APPLICABLE LAW The application for leave to commence proceedings is brought pursuant to s 102QG of the Act which states as follows:Granting application for leave(1)Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:(a) order that the applicant serve:(i)the person against whom the applicant proposes to institute the proceedings; and(ii) any other person specified in the order;with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and(b)give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.(2)At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.(3)The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate.(4)The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings. I must be satisfied that the proceedings contemplated are not vexatious proceedings in the sense discussed by the Full Court in Marsden & Winch (2013) FLC 93-560 at [150]–[152]. The definition of vexatious proceedings is found at s 102Q(1) of the Act. As will be seen, it is an inclusive, not exclusive definition. The section provides:vexatious proceedings includes:(a)proceedings that are an abuse of the process of a court or tribunal; and(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2062 of 2010
Judgment of:	ALTOBELLI J
Date of judgment:	15 October 2021
Catchwords:	FAMILY LAW – COURTS AND JUDGES – Disqualification – Recusal application on the basis of apprehended bias – Where there is no evidence of apprehended bias – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Proceedings – Vexatious proceedings – Leave to institute proceedings – Leave granted.
Legislation:	Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QG
Cases cited:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177 Rilak & Tsocas [2017] FamCA 757 Rilak & Tsocas (No. 2) [2018] FamCAFC 78 Webb & Guthrie [2016] FCCA 2285
Division:	Division 1 First Instance
Number of paragraphs:	54
Date of last submission/s:	25 August 2021
Date of hearing:	25 August 2021
Place:	Sydney (via videoconference)
The Applicant:	Litigant in Person
The Respondent:	Litigant in Person

SYC 2062 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS RILAK Applicant
AND:	MR TSOCAS Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	15 OCTOBER 2021