Tsocas & Rilak (No 5) - [2022] FedCFamC1F 537

Federal Circuit and Family Court of Australia
(DIVISION 1)
Tsocas & Rilak (No 5) [2022] FedCFamC1F 537

File number(s): SYC 2062 of 2010

Judgment of: ALTOBELLI J

Date of judgment: 19 July 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Where applicant has not complied with orders and indicates she has no intention to comply – Where applicant is found to be in default – Dismissal of proceeding.

Legislation:
Family Law Act 1975 (Cth) ss 102NA, 102QE, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.26, 10.27

Cases cited:
Rilak (No 2) [2022] FedCFamC1A 100

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

Tsocas & Rilak [2021] FedCFamC1F 122

Division: Division 1 First Instance

Number of paragraphs: 12

Date of hearing: 19 July 2022

Place: Sydney (via videoconference)

The Applicant: Litigant in Person

Solicitor for the Respondent: Ms Seidel, Friedlieb Fox McLeod
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:

19 JULY 2022

THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), compliance with any rule that would prevent the Court dealing with the present applications is dispensed with.
2.Pursuant to r 10.27(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), all proceedings currently before the Court initiated by the Applicant are dismissed and the matter removed from the list of matters awaiting finalisation.
3.The contravention hearing listed on 5 September 2022 is vacated.

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:

I provide the following reasons for judgment. Rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out when a default is said to have occurred in a case, and r 10.26(1)(a) specifically refers to a default in circumstances where the applicant fails to comply with an order of the court in the proceeding. Rule 10.27(1)(a) says that if an applicant is in default the court may order that the proceeding be stayed or dismissed as to…

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 5)

Details

AGLC: Tsocas & Rilak (No 5) [2022] FedCFamC1F 537
Case: [2022] FedCFamC1F 537
Decision Date

CaseChat Overview and Summary

In Tsocas & Rilak (No 5), the Federal Circuit and Family Court of Australia (Division 1) dealt with an application filed by Ms Rilak, the mother, in proceedings concerning her relationship with Mr Tsocas, the father. The case involved a complex history of litigation and non-compliance with court orders, culminating in a decision by Justice Altobelli to dismiss the proceedings. The primary legal issue before the court was whether the proceedings should be dismissed due to the mother's failure to comply with specific court orders, and her expressed intention to continue non-compliance.

The court considered whether the mother's non-compliance and her stated intention to not follow the orders constituted a default under Rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Given that the mother had previously been found to be in default and had been granted leave to appeal but was unsuccessful, the court found that her continued non-compliance and refusal to abide by the court's orders justified dismissal of the proceedings. The court reasoned that proceeding with the contravention hearing would be futile as the mother, who is not legally represented, would not be able to cross-examine the father, rendering the proceedings ineffective. Additionally, the court highlighted the significant impact that the protracted proceedings had on the child, underscoring the importance of considering the child's best interests in its decision-making.

Justice Altobelli concluded that dismissing the proceedings was the appropriate course of action, as the mother had shown no intention of complying with the court's orders and had previously been found to be in default. The court also dismissed all other applications initiated by the mother and removed the matter from the list of matters awaiting finalisation. The court vacated a contravention hearing that had been scheduled for 5 September 2022. The orders made by the court ensured that the proceedings were dismissed, and the matter was effectively concluded.

Orders