Tsocas & Rilak (No 4)
[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 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
Ms Rilak is the Applicant mother in this case and will be referred to as the Applicant. Mr Tsocas is the Respondent father, and will be described as the Respondent. The Applicant and the Respondent have been involved in a decade long dispute in relation to their daughter, B, who is now 12 years old.
On 4 February 2020, Gill J made orders under s 102QB of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”) prohibiting the Applicant from instituting further proceedings under the Act. The orders made by his Honour state:
(1)That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother, [Ms Rilak], be and hereby are dismissed.
(2)That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother, [Ms Rilak], born […] 1967, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child [B], born […] 2010.
(3)That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother, [Ms Rilak], be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father, [Mr Tsocas], born […] 1957.
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.
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.
I must be satisfied that the proceedings contemplated are not vexatious proceedings in the sense discussed by the Full Court in Marsden & Winch (2013) FLC 93-560 at [150]–[152].
The definition of vexatious proceedings is found at s 102Q(1) of the Act. As will be seen, it is an inclusive, not exclusive definition. The section provides:
vexatious proceedings includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The law relating to an application for disqualification of a judge on the basis of an apprehension of bias was conveniently, and comprehensively, set out by Rees J in Rilak & Tsocas [2017] FamCA 757 at [11]–[15], which is reproduced below:
[11] Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 said:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ; Watson ; Re Lusink; Ex parte Shaw . Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. [Footnotes omitted]
[12]In the High Court decision of Johnson v Johnson (2000) 201 CLR 488 at 492–493, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [Emphasis added]
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”. [Footnotes omitted]
[13]In Ebner v Official Trustee in [Bankruptcy] (2000) 205 CLR 337 at 345 (“Ebner”), the High Court explained the concept of apprehension of bias in the following terms:
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. [Original emphasis]
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (Emphasis in original)
[14] Also in Ebner the High Court said, at 348:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[15]In Strahan & Strahan(Disqualification) (2009) FLC 93-414 the Full Court said, at 83,690:
It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias.
(Emphasis in original)
In this decision, Rees J dismissed the Applicant’s application that her Honour recuse herself. While the Applicant appealed this decision in Rilak & Tsocas (No. 2) [2018] FamCAFC 78, she subsequently discontinued the appeal.
As will become apparent, the nature of the concerns raised by the Applicant in relation to the recusal application gives rise to the application of s 69ZM and s 69ZR of the Act. In this regard, s 69ZM defines the proceedings to which Division 12A of Part VII of the Act applies in the following terms:
69ZM Proceedings to which this Division applies
(1) This Division applies to proceedings that are wholly under this Part.
(2) This Division also applies to proceedings that are partly under this Part:
(a)to the extent that they are proceedings under this Part; and
(b)if the parties to the proceedings consent—to the extent that they are not proceedings under this Part.
(3)This Division also applies to other proceedings between the parties that involve the court exercising jurisdiction under this Act if:
(a) the proceedings:
(i)arise from the breakdown of the parties’ marital relationship; or
(ii)are a de facto financial cause; and
(b) the parties to the proceedings consent.
(4) Proceedings to which this Division applies are child‑related proceedings.
(5) Consent given for the purposes of paragraph (2)(b) or subsection (3) must be:
(a) free from coercion; and
(b) given in the form prescribed by the applicable Rules of Court.
(6)A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of paragraph (2)(b) or subsection (3).
(Emphasis in original)
The substantive applications before the Court are the Applicant’s contravention applications identified above, which are brought under the provisions of Division 13A of Part VII of the Act. It follows that the provisions of s 69ZR apply. Section 69ZR states:
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)make a finding of fact in relation to the proceedings;
(b)determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
(Emphasis in original)
THE APPLICATION FOR LEAVE TO FILE THE RECUSAL APPLICATION
I granted this application. Whilst I have concerns about the merits of the recusal application, and acknowledge that in the historical context of this litigation the recusal application could be seen as being vexatious because of the number of previous unsuccessful recusal applications, I continue to hold the view I have previously expressed that it would be a denial of natural justice, and indeed not be in the public interest, to not give to the Applicant an opportunity to make her recusal application.
On perusal of the transcript of the proceedings on 15 February 2022, it has come to the Court’s attention that I stated that the application for leave to file the recusal application was dismissed, with written reasons to follow (Transcript 15 February 2022, p.11 lines 5–7). This was not the Court’s intention. The Court’s intention, as reflected in the orders made on that date and amended on today’s date, was to grant the application seeking leave to file the recusal application, and to dismiss the recusal application with written reasons to follow, as set out below.
THE RECUSAL APPLICATION
After considering the evidence, and hearing the submissions of both the Applicant and the Respondent, I dismissed the application on the basis that I would provide written reasons in the context of my reasons for judgment in relation to the other matters before the Court identified above. These reasons explain why I dismissed the application for recusal.
The Applicant relied on her Affidavit sworn 8 February 2022. I understood that to be the evidence on which the Applicant relied in her recusal application.
The Applicant’s affidavit contains much irrelevant material, but her aide memoire, despite its emotive tones, does attempt to draw together the essence of her reasons for seeking my recusal. The aide memoire is reproduced in full in Schedule B to these reasons.
There seem to be two categories of conduct which the Applicant submits as reasons for me to recuse myself. The first category seems to be apprehended bias arising out of the decisions I have already made in this matter as reflected in my reasons for judgment delivered 6 December 2021 and 13 January 2022. The second category seems to be apprehended bias arising out of how the proceedings have been managed to date.
The claim for apprehended bias under the first category is defeated by s 69ZR of the Act (Reema & Baboor [2021] FedCFamC1A 19).
It is clear, with respect to the Applicant, that the matters in respect of which she raises concerns are exercises of power under s 69ZR(1). Specifically, s 69ZR(1)(b) and arguably s 69ZR(1)(c) apply. No final determination of the substantive applications has been made in this matter. All applications have been of an interlocutory nature. No evidence has been led and tested. No findings of fact have been made. Thus, s 69ZR(1)(a) does not apply. It has of course been necessary to make determinations and orders in relation to the interlocutory matters raised by the Applicant. Moreover, the Applicant had the opportunity to appeal my decisions on the grounds raised in category A of her aide memoire. She did not do so. Section 69ZR(3), therefore, means that I do not need to disqualify myself from further hearing these proceedings. The public policy reasons for such a provision are self-evident in a case where the Applicant is a vexatious litigant who has, on previous appearances before the Court, openly expressed views about who should be hearing her case, and about the fair-minded observer test.
The claim for apprehended bias arising out of how the Applicant’s case has been managed to date is also defeated by s 69ZR(3), as all case management decisions are covered by s 69ZR(3) in the same way as other decisions. In the interests of transparency, it should be noted that the Applicant’s case is but one of 50 complex cases in my docket. The case management of this matter is rendered more difficult, and certainly more time-consuming, by the self-representation of both parties, the persistent emotional (but understandable) undercurrents of the Applicant’s case, and the multiple interlocutory applications that she has filed, all of which need to be determined respectfully, in a timely fashion, and in accordance with the law. Indeed, “the request” by the Court that the Applicant consider not filing further contravention applications until the substantive applications have been determined (raised in point “g” of the aide memoire) was an attempt to reduce the number of applications before the Court so the Court might more expeditiously list and determine the substantive applications.
Even if I am wrong, and s 69ZR has no role to play in this case, the application of the common law results in the same conclusion. None of the matters to which the Applicant refers are either my findings of fact or of law, and even if they were, no fair-minded lay observer would reasonably apprehend that I could not bring an impartial and unprejudiced mind to the adjudication of the forthcoming contravention application hearing or the continued case management of the matter. It must be remembered that the fair minded observer is deemed to be reasonable, that is, to have a measure of objectivity. With the greatest of respect to the Applicant, she cannot substitute her own perceptions of reasonableness with those of the fair-minded lay observer.
I therefore dismissed the application for recusal.
THE APPLICATION FOR LEAVE TO FILE A FURTHER CONTRAVENTION APPLICATION
On 12 January 2022 the Applicant filed an Application in a Proceeding seeking leave to file a further contravention application dated 11 January 2022.
I dismiss that application. On 15 February 2022 I set down for hearing the substantive applications and made trial directions that enable the Applicant to file an amended contravention application in accordance with the order that I made. Her present application is based on the same substrate of facts. The issues before the Court in the substantive applications and in the Applicant’s subsequent contravention applications (including applications in respect of which leave has not yet been granted to be filed) appear to be whether the Respondent has failed, without reasonable excuse, to comply with orders. There is no need to expand the pool of alleged contraventions beyond that which has already been allowed. To do so would be to encourage vexatious litigation.
THE APPLICATION FOR LEAVE TO FILE AN APPLICATION TO SET ASIDE THE VEXATIOUS LITIGANT ORDERS
On 3 March 2021 the Applicant filed an Application in a Case seeking leave to file an Application in a Case in which she sought to set aside the vexatious litigant orders, on the basis of fraud.
It is clear from the Court record that leave has not already been granted to file the said application, and that is why the matter was listed before me. The Applicant appeared under the impression that the mere appearance on the said documents of the Court’s seal meant that the leave had already been granted. That is not correct. There is no order granting leave.
The Applicant’s case is conveniently set out in a document entitled “Written Submissions of the Applicant Mother for Application in a Proceeding (Set Aside) Filed 3 March 2021”. She contends, and this Court is prepared to accept for present purposes, that it does have jurisdiction, inherent or otherwise, to set aside a previous order that was made as a result of fraud.
The Applicant’s case is that the fraud on the Court was perpetrated by the Respondent in the following manner. Firstly, the Respondent misrepresented his financial circumstances and their origins in the litigation history. Secondly, the Respondent misrepresented the potential living arrangements of the child and his intention to move the child’s residence to a more isolated or country location. As a result of this, the Applicant contends, the Respondent’s “impropriety tainted the proceedings with the spectre of deception, dishonesty, lack of integrity, malady [sic] of injustice etc” which, in effect, vitiates the entire decision.
During submissions, the Applicant confirmed a number of matters. She was aware of her right to appeal the vexatious litigant orders, apparently contacted the Appeals registry, and formed the belief that: “I’m disallowed to go back.” She subsequently discovered that that was not the case. She accepted that she was the Applicant before Gill J, and it was only in what she described as the Respondent’s cross-application that the vexatious litigant orders were sought. She agreed that at the hearing there was both cross-examination and submissions. The Respondent was represented, but she was representing herself. The Applicant was under the impression that she could still file an application to appeal out of time, subject to leave being granted but, “rather than going and taking up the time of the Appeal Court and Full Court, the lower court can deal with the application of the fraud because the fraud nullifies the further applications and judgment that was provided by Gill J.”
The Respondent submitted that there was no evidence to support the Applicant’s claim, and that there was no fraud. He further submitted that the Applicant had an opportunity to appeal which she did not take up, and that Gill J had made multiple findings of vexatious conduct.
The application is dismissed. None of the material proffered by the Applicant indicates that there was fraud. Even if there was fraud, there is nothing in the material proffered, or in the reasons for judgment of Gill J to suggest that any of his Honour’s orders, let alone the vexatious litigant orders, were tainted by fraud and should be set aside. The application is clearly vexatious and an abuse of process. It is an attempt to re-litigate unsuccessful litigation when there was at that time another avenue of relief.
CASE MANAGEMENT OF THE SUBSTANTIVE APPLICATIONS
The substantive applications filed by the Applicant on 12 February 2021 and the later contravention application filed 15 October 2021 have been listed for hearing for up to three days commencing on 5 September 2022.
In order to enhance the effectiveness and efficiency of the hearing, I directed the Applicant to file an amended contravention application limited to the substantive applications and the further contravention application before the Court filed 15 October 2021. I directed the Applicant to file a single consolidated affidavit. I limited her to six alleged instances of contraventions. The Applicant took exception to my directions and questioned my power to do so. In making these directions I rely on s 69ZX of the Act, and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). In Gardner & Vaughan [2021] FamCA 303 Austin J at [4] also relied on ss 69ZN(4), 69ZN(6), 69ZP(a), 69ZQ(1)(a).
I also made an order under s 102NA(2) of the Act. I was satisfied based on the Applicant’s repeated protestations about the family violence perpetrated on her and her daughter by the Respondent that it was not in her own interests to be cross-examined by the Respondent, nor to expose herself to the potential trauma of cross-examining him personally.
Another issue arose in relation to the contravention hearing. On 18 February 2021, Henderson J granted leave to the Applicant pursuant to s 102QG of the Act to proceed with her substantive applications. The matter came before her Honour for hearing.
In relation to the first contravention application, her Honour found there was a prima facie case in relation to the alleged contravention of Orders 14 and 29 made on 13 November 2015 (Rilak & Tsocas (No. 2) [2021] FamCA 351 at [3]). The matter was adjourned to 19 August 2021. However, on 20 May 2021, her Honour disqualified herself from further hearing this matter in any capacity.
I indicated to the parties that, in my opinion, the proceedings will need to start afresh despite being part-heard before Henderson J. I do not believe that any findings made by her Honour create an estoppel, or otherwise binds a subsequent Court, in circumstances where the hearing was not concluded and there are multiple alleged contraventions. One of the consequences of successful recusal applications includes the duplication of proceedings.
Following the orders and reasons of the Full Court in Nevins & Urwin [2022] FedCFamC1A 57, I am satisfied that the Court has jurisdiction to hear and determine this matter.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 May 2022
SCHEDULE A
Application for Final Orders filed on 6 December 2011 On 13 November 2015, final parenting orders are made (“the operative parenting orders”) Application in a Case filed 17 November 2015 On 20 November 2015, Orders 2, 4 and 30 of the operative parenting orders are varied by consent and remaining orders stayed pending outcome of appeal. Notice of Appeal filed 17 November 2015 On 26 September 2016, Applicant’s appeal to the operative parenting orders was dismissed. Contravention Application filed 17 March 2016 On 22 July 2016, the application was dismissed. Application in a Case filed 15 June 2016 On 28 June 2016, the application was dismissed. Application in a Case filed 4 July 2016 On 7 July 2016, the application was dismissed. Application in a Case filed 11 November 2016 On 18 January 2017, the proceedings were discontinued. Notice of Appeal filed 5 June 2017 On 23 April 2018, the appeal was dismissed due to the Applicant’s non-compliance or delay. Application for an Extension of Time in an Appeal filed 21 June 2017 On 12 July 2017, the application for an extension of time to appeal from the orders made from Stevenson J on 7 July 2016 was dismissed. Application for an Extension of Time in an Appeal filed 21 June 2017 On 12 July 2017, the application for an extension of time to appeal from the order made by Rees J on 22 July 2016 was dismissed. Application in a Case filed 29 August 2017 On 26 September 2017, the Applicant’s application for the disqualification of the Rees J was dismissed. Notice of Appeal filed 23 October 2017 On 23 April 2018, the Applicant’s Notice of Appeal against the orders of Rees J made on 11 May 2017 was dismissed due to the Applicant’s non-compliance or delay. The Applicant discontinued her appeal against the orders of Rees J made on 26 September 2017. Application in a Case filed 24 October 2017 On 27 October 2017, the application was rejected and consequently struck from the court record for reason of being found to be an abuse of process. Application for Final Orders filed 15 November 2017 On 4 February 2020, the Applicant was declared a vexatious litigant and all extant applications were dismissed (“vexatious declaration”). Contravention Application filed 15 November 2017 On 4 February 2020, the application was dismissed consequent of vexatious declaration. Application in a Case filed 15 November 2017 On 4 February 2020, the application was dismissed consequent of vexatious declaration. Application in a Case filed 22 November 2017 On 23 November 2017, the Application in a Case is dismissed. Application in a Case filed 27 November 2017 On 19 January 2018, the application is discontinued. Application in a Case filed 7 December 2017 On 21 December 2017, the application was dismissed. Application in a Case filed 18 December 2017 On 21 December 2017, the application was dismissed. Application in a Case filed 1 June 2018 On 21 May 2019, the application was dismissed. Application in a Case filed 27 June 2018 On 4 February 2020, the application was dismissed consequent of vexatious declaration. Application in a Case filed 14 August 2018 On 23 November 2018, the parties were granted leave to inspect subpoena material. Application in a Case filed 31 October 2018 On 21 May 2019, the application was dismissed. Application in a Case filed 30 May 2019 On 11 July 2019, the application was dismissed. Application in a Case filed 8 December 2020 On 8 December 2020, the proceedings were stayed in light of the vexatious declaration. Contravention Application filed 8 December 2020 On 11 December 2020, the proceedings were stayed in light of the vexatious declaration. Application for Final Orders filed 12 February 2021 On 18 February 2021, the Court noted it would consider the issue of granting leave to proceed with this application upon the finalisation of the contravention applications. Application in a Case filed 12 February 2021 On 18 February 2021, the application seeking to set aside the vexatious declaration orders made on 4 February 2020 was dismissed. Application in a Case filed 12 February 2021 On 18 February 2021, the application seeking leave to proceed with the two Contravention Applications filed 12 February 2021 is granted. Application in a Case filed 12 February 2021 On 18 February 2021, the application seeking leave to proceed with the two contravention applications filed 12 February 2021 is granted. Contravention Application filed 12 February 2021 Contravention application is on foot Contravention Application filed 12 February 2021 Contravention application is on foot Application in a Case filed 12 February 2021 On 18 February 2021, the application was dismissed. Application in a Case filed 3 March 2021 Application seeking leave to file an Application in a Case is on foot. Application in a Case filed 3 March 2021 Application seeking that the vexatious declaration orders made 4 February 2020 be set aside is on foot. Application in a Case filed 16 June 2021 Application seeking leave to proceed with a contravention application was granted. Application in a Case filed 8 July 2021 Application seeking leave to proceed with application that Altobelli J be recused was granted. Application in a Case filed 8 July 2021 Application seeking that Altobelli J be recused was dismissed. Application in a Proceeding filed 9 September 2021 Application seeking leave to file a contravention application is on foot. Application in a Proceeding filed 14 October 2021 Application seeking leave to file Application in a Proceeding to spend time with child during Christmas school holiday period was dismissed. Application in a Proceeding filed 14 October 2021 Application seeking leave to file a further contravention application is on foot. Contravention Application filed 15 October 2021 Contravention application is on foot. Application in a Proceeding filed 11 January 2022 Application seeking leave to file Application in a Proceeding regarding time spend with arrangements on child’s birthday is finalised in this judgment. Application in a Proceeding filed 12 January 2022 Application seeking leave to file a further contravention application is finalised in this judgment. Application in a Proceeding filed 10 February 2022 Application seeking leave to file an Application in a Proceeding seeking the recusal of Altobelli J was granted. Application in a Proceeding filed 15 February 2022 Application seeking the recusal of Altobelli J was refused, with reasons provided in this judgment. SCHEDULE B
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
SYC 2062/2010
AT SYDNEY
[MS RILAK]
Applicant Mother
[MR TSOCAS]
Respondent Father
AIDE MEMOIRE
of
REASONS FOR ALTOBELLI J TO RECUSE
(Mother’s Application executed on 8 February 2022)
A: Conduct connected with the mother’s recent parenting applications (those executed 14 October 2021 and 11 January 2022).
a. Publication of a lie in his December reasons (‘the lie’);
b. Repeating and/or softening of the lie in his January reasons;
c. Speculation (‘the speculation’);
d. ‘Improperly theorised assertions’ in his January reasons;
e. ‘Misleading assertions’ in his January reasons;
f. ‘Ignored evidence’ and ‘ignored submissions’ in his January reasons.
B: Conduct connected with the mother’s contravention applications
g. Unacceptable delay (‘the protractions’);
h. Making a request of the mother that she halt filing contravention applications until the current contravention applications are dealt with (‘the request’), while refusing to commit to when said applications will be dealt with.
Terminology in bold corresponds with the mother’s Affidavit executed on 8 February 2022.
3
10
0