Tsocas & Rilak (No 3) - [2022] FedCFamC1F 12

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tsocas & Rilak (No 3) [2022] FedCFamC1F 12

File number(s): SYC2062 of 2010

Judgment of: ALTOBELLI J

Date of judgment: 13 January 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious litigant – Where an application is made for leave under s 102QG to file an Application in a Proceeding – Where the applicant seeks communication with the child for a special occasion – Finding that the sought communication is not in the child’s best interest – The application for leave is dismissed.

Legislation: Family Law Act 1975 (Cth) s 102QG

Division: Division 1 First Instance

Number of paragraphs: 14

Date of last submission/s: 13 January 2022

Date of hearing: 13 January 2022

Place: Sydney

The Applicant: Litigant in person

The Respondent: Litigant in person
ORDERS

SYC2062 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:

13 JANUARY 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 11 January 2022 is dismissed.
2.The matter is stood over to 15 February 2022 at 9am.
3.By no later than 4pm on 27 January 2022, the Applicant is to file and serve one further affidavit in support of the Application in a Proceeding filed 3 March 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 Tsocas & Rilak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELI J:

The matter before me is Ms Rilak’s (“the mother”) application filed on 11 January 2022, 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 executed on 10 January 2022 which seeks audio-visual contact with the parties’ daughter, B (“the child”), for her birthday in early 2022. Leave is sought as the mother was declared a vexatious litigant on 4 February 2020.
The application that the mother seeks to file is before the Court. While it is not filed, it is necessary for the Court to know what orders were going to be sought. The sought orders provide for the child to have a video call with the mother on the child’s birthday for 30 minutes between…

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 3)

Details

AGLC: Tsocas & Rilak (No 3) [2022] FedCFamC1F 12
Case: [2022] FedCFamC1F 12
Decision Date

CaseChat Overview and Summary

The case of Tsocas & Rilak (No 3) before the Federal Circuit and Family Court of Australia involved an application made by Ms. Rilak, the mother, seeking leave to file an application for audio-visual contact with her daughter on the child's birthday. The application for leave was necessary as the mother was previously declared a vexatious litigant. The sought orders included a video call with the child for 30 minutes on her birthday and a restraint on the father from interrupting the video call. The father opposed the application and provided oral submissions against it.

The court had to determine whether granting leave to file the application would be in the child's best interests, considering the existing orders for supervised communication between the mother and the child. The court also had to consider the potential impact of the communication on the child, given the significant period of time that had passed without any communication between the mother and the child, and the history of deterioration in their telephone communication. The court needed to assess whether the mother adequately understood the complexities involved in her request and whether she had an adequate insight into how the child may experience the communication.

The court found that it was not in the best interest of the child to have the sought communication with the mother on her birthday, as the mother had not adequately understood the complexities involved in her request. The court also found that the mother's strong feelings towards the father and the court might be expressed to the child during the communication, which could negatively impact the child. The court also found that the mother's lack of insight and understanding of the child's experience was a concern, and that the communication could potentially harm the child.

Accordingly, the court declined to grant leave to the mother to file the application executed on 10 January 2022 seeking audio-visual communication with the child in early 2022. The court found that the application would have no benefit to the child and would have no merit. The court also stood over the matter to 15 February 2022 at 9 am and required the mother to file and serve one further affidavit in support of the application filed on 3 March 2021 by no later than 4 pm on 27 January 2022.

Orders