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 the whole or any part of the relief claimed.
On 15 February 2022 a number of orders were made requiring the applicant mother, Ms Rilak (“the mother”) to do certain things (“the orders”). Order 6 required the mother to file and serve a consolidated amended contravention application and a single consolidated affidavit, and in respect of all applications the mother was limited to six alleged instances of contravention in total.
Order 8 required the mother to complete within seven days of the date of the orders a “Scheme Application Form”, being a reference to the scheme established by Legal Aid New South Wales pursuant to the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”). I dealt with the circumstances of the making of the orders in my reasons for judgment which were published on 6 May 2022 as Tsocas & Rilak (No 4) [2022] FedCFamC1F 296. The mother filed an Application in an Appeal seeking leave pursuant to s 102QE of the Act to appeal the orders to the Full Court.
In the judgment of Aldridge J declining leave to appeal, dated 1 July 2022 and published as Rilak (No 2) [2022] FedCFamC1A 100, his Honour explained the reasons why such leave was declined. Many issues were raised by the mother in the appeal including the very matters in respect of which she now further expresses concern (namely, whether it was appropriate and legal for me to have made Orders 6 and 8). Aldridge J dismissed those complaints in the sense of not granting leave to appeal.
This morning, amongst many other matters that the mother stated to me, she made it very clear that she will not comply with the Court orders, which she described using words to the effect of them being “biased, prejudicial and unjust”, and I think she used the word “oppressive”, to her.
The effect of s 102NA is that if she is not represented the mother will not be able to cross-examine the father. In those circumstances, having regard to the allegations that the mother has made and the concerns that she has expressed many times before me in Court and also in her affidavits, given that she could not cross-examine, those proceedings would be futile. The mother offers no explanation for not complying with the orders other than in effect and in substance a belief that they are wrong and unnecessary. The failure to comply with the orders in this case is magnified by what I would describe as the strength of the conviction that the mother brings to this case about not being willing to comply with the orders.
This is a case that has a long and very sad history. My previous reasons for judgment in Tsocas & Rilak [2021] FedCFamC1F 122 explain some more of the history that ultimately informs my decision to have dismissed the application. There is simply no point in proceeding to a final hearing in the present circumstances where the mother signals to the Court that she will not abide with the orders that have been made. There is considerable irony in the position adopted by the mother today. She has wanted this contravention hearing for so long. The Court has set aside three days of hearing time so that she might have her concerns properly aired before the Court.
Nonetheless, by her own actions she indicates that such a hearing would be futile because of the circumstances that have been previously alluded to. The mother seems to struggle with any decision of this Court that is made against her. The order that was made under s 102NA was based not on concerns that the Court had, but on concerns that the mother raised to the Court and which clearly signalled the application of s 102NA of the Act. It is possible that the mother does not understand that in dismissing her present contravention applications she is not precluded from bringing a further contravention or other application, provided she successfully obtains the leave of the Court, such leave being required because she is a vexatious litigant.
Without in any way pre-empting what would be relevant to the Court in such an application, it may well be that the same issues will arise again—that is, the limitation in terms of the number of allegations that the mother is able to air before the Court, and also the issue of the application of s 102NA of the Act. These are matters for the mother to consider in the fullness of time in any event.
I think it is necessary for the Court to clear up another matter raised by the mother today, and that is that the judgments in this matter have not been published. I can reassure the mother that all of the judgments that I have made in this case which have been reduced to writing have been published. They have just been published in an anonymised form, as is the usual practice and as is required under s 121 of the Act. The mother may well be confused by the fact that when she receives a written judgment from the Court it says “Not for Publication”. That does not mean that the judgment has not been published in an anonymised form. It just means that the mother, indeed any party, cannot publish the reasons for judgment except in accordance with the provisions of s 121 of the Act.
I am very mindful of the impact of these proceedings on the child the subject of the proceedings. Long experience in this Court indicates that lengthy, protracted, intense proceedings such as the present one have an adverse impact on the child. I therefore take into account the best interests of this child in making the orders that I have made.
One final matter that I should address is that the mother said that I should recuse myself if I make these orders. I have made these orders. There are no proceedings on foot before the Court and there are therefore no proceedings in respect of which a recusal should be even contemplated, let alone made. Nonetheless, I observe that the mother articulates no grounds for my recusal and there is no objective basis for my recusal in any event. Having regard to those matters, I make the orders that I have made conscious of the interests of this family as well as the interests of all other litigants in this Court. I vacate the hearing of this matter listed on 5 September 2022.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 19 July 2022. Associate:
Dated: 19 July 2022
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