Bukari & Bukari

[2022] FedCFamC1A 26

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bukari & Bukari [2022] FedCFamC1A 26

Appeal from:	Bukari & Bukari [2021] FedCFamC2F 528
Appeal number(s):	NAA 100 of 2021
File number(s):	PAC 3346 of 2020
Judgment of:	ALDRIDGE J
Date of judgment:	24 February 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to vacate the hearing of an application for summary dismissal – Where the applicant is involved in other proceedings on the same day – Application for summary dismissal adjourned – Application dismissed – Costs reserved to the hearing of the summary dismissal application.
Number of paragraphs:	15
Date of hearing:	24 February 2022
Place:	Sydney (via video link)
The Applicant:	Self-represented litigant
Solicitor for the Respondent:	AS Family Lawyers
Independent Children’s Lawyer:	No appearance

ORDERS

NAA 100 of 2021 PAC 3346 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR BUKARI Applicant
AND:	MS BUKARI Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	24 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 21 February 2022 is dismissed.

2.The respondent’s costs are reserved to the hearing of the Application in an Appeal filed on 8 February 2022.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bukari & Bukari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an application to vacate the hearing of an application for summary dismissal which is presently listed at 10 am on 2 March 2022.

2. The application for summary dismissal concerns an appeal taken by Mr Bukari against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 9 December 2021.

3. Those were interim orders which provided for a child of Mr Bukari and Ms Bukari to spend time with Ms Bukari each Saturday from 11 am to 3 pm and further made orders that funds standing to the account of a firm of real estate agents be used firstly to pay the fees of a single expert in preparing a Family Report and to pay any valuation fees in relation to property proceedings. Both the parenting and property proceedings are listed before a judge of Federal Circuit and Family Court of Australia (Division 2) on 17–19 October 2022.

4. Mr Bukari has appealed against those orders by right in relation to the parenting order and subject to leave in relation to the other orders filed on 23 December 2021.

5. On the 9 February 2022, the appeal registrar made directions fixing the application for summary dismissal of the appeal for hearing on 2 March 2022 and amongst other orders directed Mr Bukari to file and serve an affidavit setting out any evidence on which he wished to rely on the application and any written submissions on or before 25 February 2022.

6. That order has not been complied with and Mr Bukari says that is because he has sent an email to the registrar asking for pro bono assistance. The Court does not provide or prepare submissions or affidavits on behalf of the parties, and I do not consider that to be a reasonable explanation for non-compliance with the direction.

7. Mr Bukari wrote to the appeal registrar on 10 February 2022 advising he was not available on 2 March 2022 due to a previous engagement for another hearing. On the same day the appeal registrar advised him that he would need to file an Application in an Appeal, which he did not do until 21 February 2022.

8. The affidavit evidence does not disclose the nature of the proceedings that Mr Bukari says he is involved in on 2 March 2022, but after some reluctance he informed me that the proceedings were before the NSW Civil and Administrative Tribunal (“NCAT”) and involved a rental bond.

9. Without knowing anything more about the proceedings, it seems difficult to me to conclude that they would take up the whole day, but if I am wrong about that, that was for Mr Bukari to establish and he has not done so.

10. One would have thought Mr Bukari might have adduced evidence of the nature of the hearing to take place on 2 March 2022, but it does not.

11. I take into account that the respondent has incurred counsel’s fees for 2 March 2022 and if the matter is to be adjourned there is no realistic prospect of Mr Bukari paying the costs thrown away by reason of any adjournment at any time short of the final property proceedings. That is because he has made it plain he cannot afford to do so.

12. Whilst it may not be Mr Bukari’s fault that he is in effect double booked on 2 March 2022, certainly the respondent has not contributed in any way to the need for an adjournment and an adjournment is for the convenience of Mr Bukari and not for her.

13. However, I accept that it would cause Mr Bukari some difficulties to be in two places at once at 10 am on 2 March 2022. The application before this Court is relevantly straightforward and there is no reason why it cannot be concluded fairly quickly on 2 March 2022. It seems to me that the interests of justice are best served by dismissing the application for the vacation of the hearing date on 2 March 2022 but indicate to the parties that it will be listed at 2.15 pm on 2 March 2022 which will enable Mr Bukari to deal with his matter before NCAT.

14. The only formal order is that the Application in an Appeal filed on 22 February 2022 is dismissed.

    
    
    
    
    
    
    
    
    

15. I will reserve Ms Bukari’s costs of this application to the hearing of the application for summary dismissal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       25 February 2022