Tsocas & Rilak (No 4)

Case [2022] FedCFamC1F 296

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tsocas & Rilak (No 4) [2022] FedCFamC1F 296

File number(s): SYC 2062 of 2010
Judgment of: ALTOBELLI J
Date of judgment: 6 May 2022
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE –Vexatious proceedings – Application to institute proceedings – Where Applicant sought leave to file a recusal application, a contravention application, and an application to set aside orders – Leave granted in respect of recusal application and refused for other applications.

FAMILY LAW – COURTS AND JUDGES – Disqualification – Recusal application on the basis of apprehended bias – Where there is no evidence of apprehended bias – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application of s 102NA of the Family Law Act 1975 (Cth) – Where Applicant makes repeated allegations of family violence against the Respondent – Order made pursuant to discretionary provisions of s 102NA.

Legislation:

Family Law Act 1975 (Cth) ss 69ZM, 69ZN, 69ZP, 69ZQ, 69ZR, 69ZX, 102NA, 102QB, 102QG

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited:

Gardner & Vaughan [2021] FamCA 303

Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177

Nevins & Urwin [2022] FedCFamC1A 57

Reema & Baboor [2021] FedCFamC1A 19

Rilak & Tsocas [2017] FamCA 757

Rilak & Tsocas [2020] FamCA 49

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

Rilak & Tsocas (No. 2) [2021] FamCA 351
Division: Division 1 First Instance
Number of paragraphs: 42
Date of hearing: 15 February 2022
Place: Sydney (via videoconference)
Counsel for the Applicant: Litigant in Person
Counsel for the Respondent: Litigant 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 MAY 2022

THE COURT ORDERS THAT:

1.The Application in a Case filed by the Applicant on 3 March 2021 seeking leave to file an application to set aside the orders made by Gill J on 4 February 2020 is dismissed.

2.The Application in a Proceeding filed by the Applicant on 12 January 2022 seeking leave to file a further Application – Contravention is dismissed.

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

Continue reading Tsocas & Rilak (No 4)

Sign in free to access the full text

Details
AGLC
Tsocas & Rilak (No 4) [2022] FedCFamC1F 296
Case
[2022] FedCFamC1F 296
Decision Date

CaseChat Overview and Summary

The proceedings in Tsocas & Rilak (No 4) involved six applications presented to the Family Court on 15 February 2022. The primary parties were the Applicant, who was seeking various forms of leave to file additional applications, and the Respondent, who was the subject of these applications. The dispute primarily revolved around allegations of non-compliance with court orders, specifically those intended to facilitate the Applicant’s communication and time with her daughter. The central legal issues were whether the Applicant was entitled to leave to file further proceedings, and if these proceedings were vexatious in nature.

The court was tasked with determining the merits of granting leave to the Applicant to file additional contravention applications and other proceedings. The key legal issue was whether the applications were vexatious, as defined under section 102QG of the Family Law Act, which requires the court to ensure that the proceedings are not vexatious before granting leave. The Applicant had a history of multiple applications and appeals, raising concerns about the potential for abuse of the court process.

In its reasoning, the court considered the extensive procedural history of the case, including over 40 previous applications and three appeals. The court highlighted the Applicant’s ongoing allegations of non-compliance with previous orders, which were central to the new applications. The court found that the Applicant’s continuous pattern of filing new applications, despite similar previous efforts, suggested an abuse of the court process. Consequently, the court concluded that the new applications were vexatious and denied the Applicant leave to file them. The court also found that the Respondent had not contravened the orders as alleged by the Applicant.

The final orders of the court were to deny the Applicant leave to file the new applications and to dismiss the applications as vexatious. This decision aimed to prevent further abuse of the court process and to uphold the integrity of the legal proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Six applications came before me on 15 February 2022. The first was an Application in a Proceeding filed 10 February 2022 seeking leave under s 102QG(3) of the Act to file an Application in a Proceeding seeking my recusal. If that was granted, then I would consider the Application in a Proceeding seeking my recusal. The third was an Application in a Proceeding filed 12 January 2022 seeking leave to file a further contravention application dated 11 January 2022. The fourth was the Applicant’s Application in a Case filed 3 March 2021 for leave to file an Application in a Case which she signed 2 March 2021 seeking to set aside, on the grounds of fraud, and pursuant to the Court’s inherent jurisdiction, the orders made by Gill J on 4 February 2020 (“the vexatious litigant orders”). Lastly, there were two Applications – Contravention filed 12 February 2021 (“the substantive applications”), returned before me for case management.BACKGROUND The unfortunate litigation history of this matter is comprehensively referred to in the reasons for judgment of Gill J delivered on 4 February 2020, published as Rilak & Tsocas [2020] FamCA 49. The present focus will be on applications made since then. The procedural history of these proceedings is set out in Schedule A to these reasons for judgment. This litigation has involved over 40 applications and three appeals. The Applicant is neither communicating with, nor spending time with, her daughter. There are multiple contravention applications either on foot or contemplated, subject to leave being granted and the Applicant files fresh applications for leave to file a further contravention application on a regular basis because of the alleged non-compliance with orders. The common theme of these applications is that the Applicant alleges that contrary to the orders made by Loughnan J on 13 November 2015, and without reasonable excuse, the Respondent has contravened orders which would allow the Applicant to spend time with and communicate with her daughter.THE EVIDENCE BEFORE THE COURT In support of her case, the Applicant relied on the following documents:(a)Two Applications – Contravention filed 12 February 2021;(b)Application in a Case filed 3 March 2021, being an application seeking leave to file an Application in a Case to set aside the vexatious litigant orders;(c)Her Affidavit filed 3 March 2021, with corresponding exhibits marked as A1;(d)Her written submissions in support of her Application in a Proceeding filed 3 March 2021, provided to chambers on 27 January 2022 and marked as A2;(e)Application in a Proceeding filed 12 January 2022, being an application seeking leave to file an Application – Contravention;(f)Her Affidavit filed 12 January 2022;(g)Application – Contravention dated 11 January 2022 (unsealed);(h)Her Affidavit dated 11 January 2022 (unsealed);(i)Application in a Proceeding filed 10 February 2022, being an application seeking leave to file a recusal application;(j)Her Affidavit filed 10 February 2022;(k)Application in a Proceeding dated 8 February 2022, being a recusal application;(l)Her Affidavit dated 8 February 2022; and(m)Her aide-memoire provided to chambers on 15 February 2022.

Evidence

Evidence Before The Court

The Applicant is neither communicating with, nor spending time with, her daughter. There are multiple contravention applications either on foot or contemplated, subject to leave being granted and the Applicant files fresh applications for leave to file a further contravention application on a regular basis because of the alleged non-compliance with orders. The common theme of these applications is that the Applicant alleges that contrary to the orders made by Loughnan J on 13 November 2015, and without reasonable excuse, the Respondent has contravened orders which would allow the Applicant to spend time with and communicate with her daughter.THE EVIDENCE BEFORE THE COURT In support of her case, the Applicant relied on the following documents:(a)Two Applications – Contravention filed 12 February 2021;(b)Application in a Case filed 3 March 2021, being an application seeking leave to file an Application in a Case to set aside the vexatious litigant orders;(c)Her Affidavit filed 3 March 2021, with corresponding exhibits marked as A1;(d)Her written submissions in support of her Application in a Proceeding filed 3 March 2021, provided to chambers on 27 January 2022 and marked as A2;(e)Application in a Proceeding filed 12 January 2022, being an application seeking leave to file an Application – Contravention;(f)Her Affidavit filed 12 January 2022;(g)Application – Contravention dated 11 January 2022 (unsealed);(h)Her Affidavit dated 11 January 2022 (unsealed);(i)Application in a Proceeding filed 10 February 2022, being an application seeking leave to file a recusal application;(j)Her Affidavit filed 10 February 2022;(k)Application in a Proceeding dated 8 February 2022, being a recusal application;(l)Her Affidavit dated 8 February 2022; and(m)Her aide-memoire provided to chambers on 15 February 2022. The Respondent made oral submissions during the interim hearing. He did not otherwise rely on any written documents.THE APPLICABLE LAW The application for leave to commence proceedings is brought pursuant to s 102QG of the Act which states as follows:Granting application for leave(1)Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:(a) order that the applicant serve:(i)the person against whom the applicant proposes to institute the proceedings; and(ii) any other person specified in the order;with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and(b)give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.(2)At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.(3)The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate.(4)The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.