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,…

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 Tsocas & Rilak (No. 2)

Details

AGLC: Tsocas & Rilak (No. 2) [2021] FedCFamC1F 290
Case: [2021] FedCFamC1F 290
Decision Date

CaseChat Overview and Summary

In the matter of Tsocas and Rilak, the applicant, Ms Rilak, sought leave to file an application for interim parenting orders concerning Christmas time arrangements for her daughter, B. The respondent, Mr Tsocas, opposed the application. The case was heard by His Honour Justice Altobelli, who dismissed the application seeking leave to file the Christmas application. The court noted that the application was very similar to a substantive application that had been previously filed and not yet heard. Justice Altobelli held that the application did not meet the mandatory requirements of section 102QE(3)(c) of the Family Law Act 1975, as the affidavit did not disclose all relevant facts about the application, whether supporting or adverse to it. Furthermore, the court found that there were no changed circumstances that warranted revisiting the orders made in 2015. The court also highlighted the entrenched conflict between the parents and the risk of harm to B if unsupervised contact with her mother were to be allowed. The matter was stood over to 13 January 2022 to consider the contravention applications filed in the case. The court urged the applicant to consider the potential implications of the order made on her substantive application.

Orders