Mother Declared as Vexatious Litigant Applies for Leave
Tsocas & Rilak (No. 2) [2021] FedCFamC1F 290 (6 December 2021)
This is an appeal of a decision to award the Father full parental responsibility and live with the father, a five year old daughter, who had been living with the mother and the orders allso declared her a vexatious litigant.
The mother sought leave to file a Christmas time application for the Children to spend time with her and thier maternal family for Christmas. The Court, in deciding whether or not the leave should be granted, relied upon the decision in Rilak & Tsocas (No. 8) [2015] FamCA 1235.
Facts:
On 12 February 2021, the mother sought on a final, as well as interim, basis to vary the final orders made by Loughnan J on 13 November 2015.
On 14 October 2021, the mother sought leave under s 102QG(3) of the Family Law Act 1975 (Cth) (“the Act”) to file an Application in a proceeding. If granted, there is an Application in a Proceeding, which she has helpfully described as the “Christmas application”, also dated 14 October 2021.
The mother seeks that the application be listed for hearing on an urgent basis pursuant to Rule 5.01A, with an initial date on the next court date, Friday, 15 October 2021.
The mother further seeks that until further orders the current orders be varied to provide for the mother to have scheduled video calls with the child unrestrained by the discretions of the father. This means of communications are sought to be available as well as to the maternal grandmother and maternal aunt.
The application is opposed by Mr Tsocas (“the father”) in his Response to an Application in a Proceeding filed 3 December 2021, accompanied by his affidavit filed on the same date. The relationship that the mother has with her daughter is currently non-existent, and it must be extremely difficult for her in these circumstances. She is representing herself. The mother was declared to be a vexatious litigant.
It is clear from the matters that the mother has put to the Court today (consistent with previous occasions) that she does remain of the view that the father abused B.
Issue:
Whether or not leave should be granted.
Applicable law:
It covered a children's matter on the Best Interests of a five years old child. Where she lives with her mother but the father and ICL sought that the father has sole parental responsibility and that the child live with the father and spend supervised time with the mother once a week.
The mother sought that the parties have equal shared parental responsibility anf that the child live with her and spend each alternate weekend with the father due to allegations that the father sexually abused the child and engaged in family violence.
She conceded that her allegations were not supported by evidence and the court expert opined that the child is living in an emotionally abusive household with the mother.
The child has meaningful relationships with both parents and there is a high level of conflict between the parents. Orders made for the father to have sole parental responsibility, the child to live with the father and spend supervised time once a week with the mother.
Analysis:
In circumstances where none of the material relied on by the mother refers to the material identified in s 102QE(3)(c), the affidavit filed by the mother does not meet the requirements.
The mother made a number of statements today that confirmed to the Court that very little has changed, particularly in terms of her attitude to what occurred historically and in previous proceedings. For example, she foreshadowed that negligence proceedings against the Court and the Commonwealth were contemplated. She expressed the trenchant view and belief that the father is an abuser of B.
On the mother’s own material and the submissions made to the Court, it cannot be discerned that making the orders that she proposes would be in the best interests of B. Whilst the mother is of the view (perhaps understandably so because of the grief that she must, no doubt, be experiencing) that these matters relating to best interests were never investigated, they were, indeed, investigated, and the Court has made the orders that it has made.
Conclusion:
The Court concluded that there is no warrant to grant the leave that she seeks under s 102QG(3). The Application in a Proceeding filed 14 October 2021 is dismissed. The Christmas application, of course, has not been filed and therefore cannot be dismissed.