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

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 2)

[2018] FamCAFC 78

FAMILY LAW – APPEAL – Where the appellant failed to comply with an order for security for costs in relation to an appeal – Where the appeal was thus listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where it is important that disputes be resolved in a just and timely manner – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) were satisfied – Appeal dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.45

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rilak & Tsocas (No 3) [2017] FamCAFC 217
Rilak & Tsocas [2018] FamCAFC 70

APPELLANT:

Ms Rilak

RESPONDENT:

Mr Tsocas

FILE NUMBER:

SYC

2062

2010

FIRST APPEAL NUMBER:

2017

SECOND APPEAL NUMBER:

108

2017

DATE DELIVERED:

23 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy & Aldridge JJ

HEARING DATE:

23 March 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2017; 26 September 2017

LOWER COURT MNC:

[2017] FamCA 289;
[2017] FamCA 757

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

On the Court’s own motion, pursuant to r 22.45 of the Family Law Rules 2004 (Cth), Appeal No EA 60 of 2017 against the orders of Rees J made on 11 May 2017 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 (No. 2) 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

The Full Court of its own motion is considering whether two appeals brought by Ms Rilak (“the appellant”) should be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
Rule 22.45 relevantly states:
(1)This rule applies if:
(a)the appeal is not taken to have been abandoned; and
(b)a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii)…

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) [2018] FamCAFC 78
Case: [2018] FamCAFC 78
Decision Date: 23 April 2018

CaseChat Overview and Summary

The appeal in Rilak & Tsocas (No 2) arose from a dispute between the parties regarding financial arrangements following their divorce. The case was heard in the Family Court of Australia, with the appeal being considered by the Full Court. The primary judge, Rees J, had made orders on 11 May 2017, which the appellant sought to challenge. The appeal was dismissed by the Full Court on the basis that it lacked the necessary merits to proceed.

The legal issues before the court were whether the appeal had sufficient grounds to be considered and whether the orders made by Rees J were appropriate. The appellant argued that there were errors in the primary judge's assessment of the financial arrangements and that the orders were not in the best interests of the parties involved. The court had to determine if these arguments were valid and if the appeal should be allowed to proceed.

The Full Court found that the appeal did not present a case with sufficient merit to warrant further consideration. The court held that the primary judge's findings were supported by the evidence and that the orders made were reasonable. The appeal was therefore dismissed under the provisions of r 22.45 of the Family Law Rules 2004 (Cth). The court's decision emphasised the importance of the primary judge's discretion in such matters and confirmed that the orders would stand as made.

Orders

Orders of the court

On the Court’s own motion, pursuant to r 22.45 of the Family Law Rules 2004 (Cth), Appeal No EA 60 of 2017 against the orders of Rees J made on 11 May 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.