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:

1. 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.

2. 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 5 and 6 pm and that Mr Tsocas (“the father”) be restrained from interrupting the video call. The mother’s application is supported by her affidavit made on 10 January 2022. The father made oral submissions in opposition to the mother’s application. 

3. I have been involved in two previous decisions in this matter on December 2021 and 15 October 2021. Those decisions resulted in written reasons for judgment which were published and provide background to this matter. Whilst this is an application for leave to file an application, for all practical purposes, I am deciding it on the basis of whether it is in the child’s best interests to have the sought communication with the mother on her birthday. It would render granting leave redundant if the Court found the sought communication to not be in the child’s best interests. For this reason, it is ultimately a decision that is about the child’s best interests, irrespective of the present application being one for leave to commence proceedings. 

4. There are two uncontested facts that can be stated.  First, Order 12 of the made by Loughnan J on 13 November 2015 (“the orders”) provides in substance and effect that any electronic communication between the child and the mother needs to be supervised by the father. Order 12 reads:

   The father is at liberty to conclude the telephone call or Skype call, in the event that he is of the opinion it is not in [B’s] best interest for the call to continue.

5. There are a number of contravention applications before the Court arising from concerns about compliance with the orders. The orders for, in effect, supervised communication were made following a lengthy hearing. The Court did so for good reason. The Court was concerned about a number of aspects of the evidence pertaining to the mother: her insight into the needs of her daughter and her willingness to comply with orders of the Court, amongst other things. While the mother’s application does not refer to supervision, it does though seek an injunction that would prevent the father from exercising the discretion granted to him under Order 12 of the orders.  

6. The second uncontested fact is that the child has not spent any time or communicated with the mother for up to five or six years. The reasons for which are complex. The parties have been involved in extensive litigation concerning the child.

7. There are two strong impressions that this Court is able to form from the evidence that has been filed, the submissions that have been made and the history of my involvement in this case. The first impression is that there is a palpable distrust between the parties. This mistrust appears to be derived from the mother’s consistent belief that the father abused the child and has alienated the mother from the child. For example, the mother’s affidavit filed 11 January 2022 at [24] regrettably illustrates the mother’s continuing belief that the father physically abused the child, notwithstanding the fact that the matter has been tested in evidence before the Court, both at trial and on appeal. The mistrust seems derived from, and fermented by, the mother’s belief about the father’s actions and thereafter all events appear to be viewed through that lens.

8. The second impression that is palpable is that the mother has a lack of confidence and perhaps a mistrust in the legal system, and in particular the Court. This is reflected in the mother’s submissions. For example, the mother accused me of lying in the reasons for judgment dated 6 December 2021 at [17]. The mother stated that I was part of the system that has taken her child away and that the Court has been part of what she described as a “legal kidnap,” of the child. She described this Court as a “pseudo Court.”

9. The significance of these two strong impressions relates to the question that I put to the mother: whether the Court could be reassured that the strong feelings that she palpably holds, both towards the father and the Court, would not be expressed in any communication that she has with the child. 

10. The mother attempted to provide that reassurance.  For instance, the mother stated that she is not stupid, and clearly, the mother is not stupid. I have previously described her as an intelligent and articulate woman, and I remain of that view. However, she is also very emotionally invested in these proceedings and this manifests in the strong expressions of her feelings. The mother offered further reassurance that her views would not be expressed or otherwise exposed to the child. I consider the reassurance to be, regrettably, offered in a dismissive way and without an adequate understanding of the experience for the child to be reunited with the mother in this context.

11. The second concern is the potential impact on the child for the communication to occur in an unsupervised context following a significant period of time and in a context where there is a history of deterioration in telephone communication, as acknowledged in the mother’s evidence. Upon asking the mother whether she agreed with the father’s contention that there is a need to repair the relationship between the mother and the child, the mother categorically denied such a need. The mother’s denial, regrettably, manifests a lack of insight and understanding of the child’s experience.   

12. The child has been exposed to litigation for most of her life. The level of conflict between the parties is intractable. Despite the best of efforts, it is inevitable that the child is aware of the litigation and perhaps even the present applications. In such circumstances, it emphasises the need to be very sensitive, cautious and protective of the child when and if, in the fullness of time, the child’s relationship with the mother is resumed in any form. 

13. The totality of these concerns, however, lead the Court regrettably to the view that it is not in the best interest of the child, for the time being, to have this form of communication with the mother. I am not satisfied that the mother adequately understands the complexities involved in what she is asking the Court to do.  I do not think she has an adequate understanding and insight into how the child may experience the communication. It is possible that the mother does not understand the intensity and the strength of her own views, and the difficulty that would be incumbent in seeking to manage and contain those views in a communication context like she proposes.

14. Accordingly, I think her application that she proposes to file would have no benefit to the child, thus would have no merit. I, therefore, decline 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.  

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 13 January 2022.

Associate:

Dated:       13 January 2022