Rilak & Tsocas (No. 2) - [2021] FamCA 351

FAMILY COURT OF AUSTRALIA
Rilak & Tsocas (No. 2) [2021] FamCA 351

File number(s): SYC 2062 of 2010

Judgment of: HENDERSON J

Date of judgment: 20 May 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification on the basis of actual bias – Importance of maintaining confidence in the administration of justice – Application for disqualification granted.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Anae v R [2018] NSWCCA 73
Hartnett v Sampson [2008] FamCA 75
R v Watson (1976) 136 CLR 248

Number of paragraphs: 13

Date of hearing: 20 May 2021

Place: Sydney

The Applicant: Litigant in person

The Respondent: Litigant in person
ORDERS

SYC 2062 of 2010

BETWEEN:
MS RILAK
Applicant

AND:
MR TSOCAS
Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

20 MAY 2021

THE COURT ORDERS THAT:
1.That Justice Henderson be disqualified from further hearing this matter in any capacity.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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).
EX TEMPORE REASONS FOR JUDGMENT

In this matter, the mother has made an application that I disqualify myself from further hearing this matter, which is two contravention applications she has brought in respect of what she says are orders contravened by the father and made by Loughnan J on 13 November 2015.
I am part way through hearing this matter in that I am yet to deliver a judgment in relation to whether there is a prima facie case regarding the father's agreed failure to provide telephone time between the mother and the child pursuant to his Honour's orders, namely order 12. I am yet to hear and determine the second application which is the father's failure to advise the mother prior to changing the child's address and school, which matter I have listed for a hearing on 18 August 2015.
I found there was a prima facie case against the father in respect of that contravention and I stood over for hearing his reasonable excuse. I am still to deliver the judgment as to whether I accept the father's position that there is no prima facie case in respect of the alleged contraventions of telephone time. The applications for contravention were listed before me pursuant to leave I granted to the mother to file these applications given that Gill J had declared her, for want of a better word, a vexatious litigant under the Family Law Act 1975 (Cth) and leave was required before she could commence any fresh applications. The mother now…

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 (No. 2)

Details

AGLC: Rilak & Tsocas (No. 2) [2021] FamCA 351
Case: [2021] FamCA 351
Decision Date: 20 May 2021

CaseChat Overview and Summary

In *Rilak & Tsocas (No. 2)*, Justice Henderson of the Family Court of Australia considered an application by Ms Rilak for the disqualification of the presiding judge, Justice Henderson himself, from further hearing the matter on the grounds of actual bias. The core of the dispute concerned allegations of bias that, if proven, would undermine public confidence in the administration of justice.

The central legal issue before the Court was whether the conduct and statements of the judge demonstrated actual bias, thereby necessitating disqualification from the proceedings. This required an assessment of whether a reasonable, informed observer, aware of all the relevant circumstances, would apprehend that the judge might not bring an impartial mind to the issues before them.

Justice Henderson reasoned that the appearance of bias, even if unintended, is as critical as actual bias in maintaining public confidence in the judiciary. The judge acknowledged that certain remarks made during the proceedings, when viewed objectively and in context, could lead a reasonable observer to apprehend that the judge might have formed a premature or fixed view on aspects of the case. Consequently, to uphold the integrity of the judicial process and ensure fairness, Justice Henderson concluded that disqualification was appropriate.

Accordingly, the Court ordered that Justice Henderson be disqualified from further hearing the matter in any capacity.

Orders

Orders of the court

SYC 2062 of 2010

BETWEEN:

MS RILAK

Applicant

AND:

MR TSOCAS

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

20 MAY 2021

THE COURT ORDERS THAT:

1. That Justice Henderson be disqualified from further hearing this matter in any capacity.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2062 of 2010
Judgment of:	HENDERSON J
Date of judgment:	20 May 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification on the basis of actual bias – Importance of maintaining confidence in the administration of justice – Application for disqualification granted.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Anae v R [2018] NSWCCA 73 Hartnett v Sampson [2008] FamCA 75 R v Watson (1976) 136 CLR 248
Number of paragraphs:	13
Date of hearing:	20 May 2021
Place:	Sydney
The Applicant:	Litigant in person
The Respondent:	Litigant in person

SYC 2062 of 2010
BETWEEN:	MS RILAK Applicant
AND:	MR TSOCAS Respondent

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	20 MAY 2021