Tsocas & Rilak (No. 2)
[2021] FedCFamC1F 290
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tsocas & Rilak (No. 2) [2021] FedCFamC1F 290
File number(s): SYC 2062 of 2010 Judgment of: ALTOBELLI J Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to file Christmas time application – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 102QE, 102QG
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01A
Cases cited: Rilak &Tsocas (No. 8) [2015] FamCA 1235 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 6 December 2021 Place: Sydney (via videoconference) The Applicant: The Applicant appeared in person The Respondent: The Respondent appeared 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:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 14 October 2021 is dismissed.
2.The matter is stood over to 13 January 2022 at 9.00am.
THE COURT NOTES THAT:
A.The Applicant’s application dated 14 October 2021 seeking spend time arrangements with the child over Christmas is in very similar terms to the substantive application filed 18 December 2020.
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 Tsocas & Rilak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
In this matter, I provide the following ex tempore reasons. This is a very difficult, complex case with a very long history. I would not normally seek to extemporise reasons in this sort of case. However, Ms Rilak (“the mother”), has brought an application in relation to Christmas contact and, unless I deal with it now, it would be defeated simply because of that fact, hence my decision to proceed on an ex tempore basis.
This case is about B (“B”). In early 2022, B will turn 12 years old. This is a tragic and sad case. The parents have been in litigation about B for a long time. The conflict between the parents is palpably high and entrenched, as is their mistrust.
At the moment there are a number of applications before the Court that are yet to be dealt with, including contravention applications currently before me. Perhaps the most significant application that has not been dealt with is the mother’s application filed on 12 February 2021 in which she seeks on a final, as well as interim, basis to vary the final orders made by Loughnan J on 13 November 2015.
The application that comes before the Court today, however, is the following. There is the mother’s Application in a Proceeding that was filed on 14 October 2021 in which she seeks leave under s 102QG(3) of the Family Law Act 1975 (Cth) (“the Act”) to file an Application in a Proceeding. And then there is, if I grant that leave, the Application in a Proceeding, which she has helpfully described as the “Christmas application”, also dated 14 October 2021.
In her Christmas application, the mother seeks the following orders:
1.That this application be listed for hearing on an urgent basis pursuant to Rule 5.01A, with an initial date on the next court date, Friday, 15 October 2021.
2.(a) That prayers 3-7 are heard and determined prior to the Christmas school holiday period 2021, that is, prior to Monday 20 December 2021.
(b) That prayer 8 is heard and determined prior to B’s birthday 2022, that is, prior to Wednesday, … 2022.
3.That prayer 2 of the interim parenting orders sought in the Initiating Application of Ms Rilak executed 18 December 2020 and filed 12 February 2021, which has not yet been heard, be granted:
That until further orders the current orders are varied to provide for the mother to have video calls with the child every Tuesday and Thursday between 5pm and 6pm, as well as between 5pm and 6pm on the child's birthday, the mother's birthday, mother's day, Easter and Christmas Eve, unrestrained by the discretions of the father.
4.That the father shall make B available for video contact (FaceTime or Skype) with her maternal grandmother, Ms VV, on Christmas Eve, Friday, 24 December 2021 at 7pm Sydney time. Ms VV shall initiate the call.
5.That the father shall make B available for video contact (FaceTime or Zoom or Skype) with her maternal Aunt, Ms D, on Christmas Eve, Friday, 24 December 2021 at 7:30pm Sydney time. Ms D shall initiate the call.
6.That the father shall make B available for video contact (FaceTime or Skype) with her maternal grandmother, Ms VV, prior to Christmas Eve and thereafter, each week on Saturday at 7pm Sydney time. Ms VV shall initiate the calls.
7.That the father shall make B available for video contact (FaceTime or Zoom or Skype) with her maternal Aunt, Ms D, prior to Christmas Eve and thereafter, each week on Wednesday at 7pm. Ms D shall initiate the calls.
8.That the balance of interim orders sought in the Initiating Application of Ms Rilak executed 18 December 2020 and filed 12 February 2021, which has not yet been heard, be granted:
3.On the second Saturday after the making of these orders, the father shall deliver the child to the mother at Location HH, KK Street, E Town, at 1pm, and the mother shall deliver the child to the father at the same location at 3pm or proportionally later if the father has delivered the child late, such that the mother spends time with the child for a period of two hours.
4.On each second Saturday between the first maternal contact at Stuart Park and the next school holidays, the father shall deliver the child to the mother at Location HH, KK Street, E Town, at 1pm, and the mother shall deliver the child to the father at the same location at 4pm or proportionally later if the father has delivered the child late, such that the mother spends time with the child for a period of three hours.
5.Until further order, on each school holidays subsequent to the execution of orders 3 and 4, the father shall on the day after the last day of term at 1pm deliver the child to the mother at Location HH, KK Street, E Town, and the mother shall deliver the child to the father at the same location at 4pm or proportionally later if the father has delivered the child late, on the day prior to the child's first day of school in the following term.
6.To the degree that the following dates are not captured within Order 5, the father shall deliver the child to the mother at Location HH, KK Street, E Town, at 1pm, and the mother shall deliver the child to the father at the same location at 4pm the following day or proportionally later if the father has delivered the child late:
(a) Western calendar Easter
(b) Queen's Birthday Public Holiday
(b) Labour Day Public Holiday
(c) Western calendar Christmas
(d) The child's birthday
7.The court notes that when the mother spends time with the child she is entitled to exercise full parental authority.
8.The mother is at liberty to approach the child's school and is entitled to attend all school events that allow for parental attendance and participation.
9.(a) Within 48 hours of the making of these orders, the father shall take all necessary steps to initiate a sleep study for the child.
(b) The father shall ensure that the sleep study is carried out within 6 months of the making of this order or as soon as possible thereafter if no appointments are available within that period.
(c) The father shall provide the mother with a copy of the sleep study report
within 24 hours of its availability.
10.Prior to the child making her first contact with the mother pursuant to these orders, or if there is no contact within 2 weeks of the making of this order, the father shall cause the child to attend upon a GP and discuss with the GP the mother's concern that the child may be exhausted; furthermore the father shall seek of the GP:
(a)a full age-appropriate checkup of the child while the father is not present;
(b)prescription for blood test/s for the child to check for anaemia and related nutritional deficits, lead and other heavy metal exposure, and hormonal or any other potential indicator of exhaustion-related causes;
(c)prescription for the child for any non-invasive medical test (eg. ultrasound) relevant to the discovery of cause of exhaustion as thought necessary by the GP;
(d)referral for age-appropriate psychometric and psychiatric assessments as thought necessary by the GP.
11.(a) Within two weeks of the carrying out of order 10, the father shall carry out all tests prescribed by the GP pursuant to order 10;
(b) The father shall do all acts necessary to obtain into his possession the results of these tests as soon as they are available, and provide copies to the mother within 48 hours of the results coming into his possession.
12.(a) The father shall provide the mother the name of the GP engaged pursuant to order 10;
(b) The mother is entitled and has authority to contact that GP and discuss his consultation/s with the child and father, and the results of all ensuing tests, and obtain the GP's unredacted records pertaining to the child;
(c) The mother is entitled and has authority to contact all providers of tests conducted pursuant to order 11 and obtain their unredacted records concerning the child.
13.(a) Within two weeks of the making of this order, the father is to cause the child to attend upon a dentist for a checkup;
(b) The father is to follow all recommendations of the dentist in relation to the child's dental care;
(c) If the father is recommended to take the child to an orthodontist, the father is to follow all recommendations of the orthodontist including providing braces for the child if necessary;
(d) The father is to keep the mother informed of the names and contact details of the dental practitioners seen by the child;
(e) The mother is entitled and has authority to independently contact the dental practitioners of the child and obtain their unredacted records concerning the child.
14.(a) Within two weeks of the making of this order, the father is to cause the child to attend upon a physiotherapist for a checkup;
(b) The father is to follow all recommendations of the physiotherapist in relation to the child's posture, skeletal development, muscular development, footware, footcare and any other aspect of the child's physiological development within the physiotherapist's professional scope, including attending upon any other medical professionals if referred (eg. podiatrist);
(c) If the father is recommended to take the child to another medical professional (eg. podiatrist), the father is to follow all recommendations of that person including providing the child with anything necessary for her treatment (eg. orthotic shoes);
(d) The father is to keep the mother informed of the names and contact details of the practitioners seen by the child pursuant to this section;
(e) The mother is entitled and has authority to independently contact the practitioners seen by the child pursuant to this section and obtain their unredacted records concerning the child.
15. The father shall bear the cost of carrying out orders 9-14.
16.(a) The father shall within 7 days of the making of this order provide to the mother all photos and videos of the child (2015 - present);
(b) As new photos and videos of the child are made available to the father, he shall provide them to the mother within 48 hours of such availability;
(c) The father shall bear the cost of orders 16a and 16b.
17.The father is injuncted to obtain, and shall be solely financially responsible for, weekly tuition for B in the subject of Country A language (oral and written, with online tuition being acceptable). Whichever parent is in the company of the child at the time of any particular tuition appointment shall do all acts reasonably necessary to cause B to participate in that tuition
18.The father pays the cost of this application and all cost associated with these proceedings.
(Emphasis in original)(As per the original)
I note that the mother confirmed that she sought these orders on an interim basis.
The evidence relied on has been identified. The application is opposed by Mr Tsocas (“the father”) in his Response to an Application in a Proceeding filed 3 December 2021, accompanied by his affidavit filed on the same date.
This Court deeply empathises with the mother. The relationship that she had with her daughter is currently non-existent, and it must be extremely difficult for her in these circumstances. She is representing herself. She presents as a very intelligent and articulate woman. Her submissions have been of assistance to the Court.
RELEVANT STATUTORY PROVISIONS
The application arises out of the fact that the mother was declared to be a vexatious litigant. Accordingly, leave needs to be sought to commence any proceedings. Section 102QG(3) of the Act says that in such an application, the Court may make an order granting the application, but that the order may be subject to conditions that the Court considers appropriate. Historically, the mother has had a measure of success with being granted leave to proceed. I have granted one of those orders in relation to her contravention applications. Justice Gill has, to a certain extent, also done so.
Section 102QE specifies what needs to be filed in support of the application. Specifically, s 102QE(3) requires an affidavit and sets out what its contents must be. I am satisfied that both s 102QE(3)(a) and s 102QE(3)(b) have been met. However, s 102QE(3)(c) has not been met. Section 102QE(3)(c) says:
(3) The applicant must file an affidavit with the application that:
…
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
This subsection is in mandatory terms, and in circumstances where none of the material relied on by the mother refers to the material identified in s 102QE(3)(c), the affidavit filed by the mother does not meet the requirements. In other words, the mother’s application does not have the requisite evidence in support. I am uncomfortable with this, but nonetheless note that s 102QE(3) is expressed in mandatory terms. Nonetheless, I have substantial knowledge myself about this case, having case managed it over the last year. In the event that I am wrong in my interpretation of this section, I am going to proceed to deal with the application as if there was no issue raised by s 102QE(3).
In order for a decision to be made about whether leave should be granted, of course the Court must have regard to the orders that are sought in the application. Whilst the application is described as a Christmas application—and it certainly would fall within the parameters of r 5.01A of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)—the Christmas application goes much further. In effect, it invites the Court to reconsider or revisit the orders that were made by Loughnan J in 2015.
The Court is very careful about exposing children to further litigation. An issue in this case is that litigation has been present in the life of B for such a long time, and it has been very intense litigation. When I invited the mother to point out to the Court the evidence that suggests that the circumstances have changed so as to justify revisiting the orders made in 2015, it was difficult to discern what had changed. Of course, in considering this issue of changed circumstances, the Court is able to make a decision that is in the best interests of a child. In other words, the Court does have the power, clearly, to revisit orders already made, even if there are no changed circumstances, if it considers that it is in the best interests of this child.
The decision of whether it is in the best interests of B cannot be made in isolation. One must have regard to the long history of this matter. I think the starting point must be the extensive reasons that were published by Loughnan J on 13 November 2015 in Rilak & Tsocas (No. 8) [2015] FamCA 1235 as they provide a detailed explanation for why the present orders were, in fact, made.
Before identifying some of the relevant paragraphs that I think provide that context of whether it is in the best interest to revisit this arrangement, it is important to, in effect, zoom out, and just look at what happened after his Honour made these orders. There was an appeal that was dismissed. There are contravention proceedings that are ongoing. An order was made declaring the mother a vexatious litigant, and then leave was granted for her to bring a certain category of application, specifically the contravention applications.
But when one looks at the reasons for judgment of Loughnan J, in the context of the issues that are raised by the mother, almost everything that she raises has already been covered. Some of the relevant paragraphs include paragraphs: 106–108, 157, 175–181, 190, 197, 199, 205–207, 224, 235–236, 238, 246, 252–254, 260–262, 264–265, 268–269, 271–272, 324, 329–331, 365–366, 375–379, and so forth.
These matters were thoroughly investigated by the Court, by the Full Court, and by Gill J. So whilst the mother is of the view (perhaps understandably so because of the grief that she must, no doubt, be experiencing) that these matters were never investigated, they were, indeed, investigated, and the Court has made the orders that it has made.
This is relevant to the present issue before the Court, because it is clear from the matters that the mother has put to the Court today (consistent with previous occasions) that she does remain of the view that the father abused B. In those circumstances, there must be a risk of harm to B of spending unsupervised time with her mother.
The mother made a number of statements today that confirmed to the Court that very little has changed, particularly in terms of her attitude to what occurred historically and in previous proceedings. For example, she foreshadowed that negligence proceedings against the Court and the Commonwealth were contemplated. She expressed the trenchant view and belief that the father is an abuser of B. She is of the view that everything that happened has been swept under the carpet. She referred to a cartel or a cartel-like arrangement that has precluded her, in effect, from spending time with her daughter. There are so many things which, as I say, are understandable from the perspective of the grief that she must be suffering, but which point to the risks that are involved in allowing unsupervised contact or communication to take place between B and her mother. The risk of the mother’s beliefs (which the Court has found to have no reasonable basis) being communicated to B is significant in this case, and that would indicate that her substantive application would have little chance of success.
Interestingly, the mother made a comment this morning indicating that any form of contact, let alone unsupervised contact with her daughter, would create problems in circumstances where she has not seen her for so many years. It would be very difficult indeed, and the comments suggested an understanding that the very orders that she seeks might be difficult to implement.
This is a situation where it is not apparent what the changed circumstances are. This is also a situation where, on the mother’s own material and the submissions made to the Court, it cannot be discerned that making the orders that she proposes would be in the best interests of B.
In these circumstances, there is simply no warrant to grant the leave that she seeks under s 102QG(3). Accordingly, the Application in a Proceeding filed 14 October 2021 seeking leave to file the Christmas application is dismissed.
The Christmas application, of course, has not been filed and therefore cannot be dismissed.
I note that it is in very similar terms to her substantive application that was filed 12 February 2021. It is not appropriate for me, however, to summarily dismiss what I have described as the substantive application because that matter was not listed before the Court this morning. Nonetheless, I would urge the mother to consider the potential implications of the order made today upon that substantive application.
This matter is next before me on 13 January at 9 am to consider how to progress the contravention applications that have been filed in this case. I stand the matter over to that date.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 December 2021
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