Bukari & Bukari (No 2)
[2022] FedCFamC1A 50
•8 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bukari & Bukari (No 2) [2022] FedCFamC1A 50
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: 8 April 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for summary dismissal and in the alternative for security for costs – Where the father appeals from interim parenting and property orders – Where the grounds of appeal do not identify any error on the part of the primary judge – Where the appeal has no reasonable prospects of success – Application for summary dismissal granted – Application otherwise dismissed – Appeal dismissed – Father to pay the mother’s costs in a fixed sum. Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss 60CC(3)(k), 66E, 68P
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09(1)(d)
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Lindon v Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs: 52 Date of hearing: 2 March 2022 Place: Sydney (via video link) Counsel for the Appellant: Ms Yu Solicitor for the Appellant: AS Family Lawyers The Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: No appearance ORDERS
NAA 100 of 2021
PAC 3346 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BUKARI
Appellant
AND: MS BUKARI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Application in an Appeal filed on 8 February 2022 is otherwise dismissed.
3.The father is to pay the mother’s costs fixed in the sum of $13,952.
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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an application for summary dismissal of an appeal against a suite of interim parenting and property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 2 December 2021. Further and in the alternative, the application sought an order for security for costs. A final hearing was fixed for 17–19 October 2022.
Mr Bukari (“the father”) filed a Notice of Appeal on 23 December 2021. The present application was filed by Ms Bukari (“the mother”) on 8 February 2022. The Independent Children’s Lawyer filed a Submitting Notice on 28 January 2022.
The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party in a proceeding if it is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings (s 46(2) Federal Circuit and Family Court of Australia Act 2021 (Cth) (“Federal Circuit and Family Court of Australia Act”)). In doing so, the Court need not be satisfied that the proceeding is hopeless or bound to fail (s 46(3) of Federal Circuit and Family Court of Australia Act). A proceeding includes an appeal (see the definition in s 7 of the Federal Circuit and Family Court of Australia Act).
Rule 10.09(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) were relied on by the wife, but there is some doubt as to its application to appeals as the rule refers specifically to applications and responses which are trial documents.
The test to be applied under s 46 of the Federal Circuit and Family Court of Australia Act is less onerous then that described in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
The Full Court summarised the recent authorities in Ebner & Pappas (2014) FLC 93-619 as follows:
61.In Spencer v Commonwealth of Australia (2010) 241 CLR 118, referring to a Federal Court Rule in similar terms to Rule 10.12, Hayne, Crennan, Kiefel and Bell JJ said at [56]:
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
62.The applicable test was considered by another intermediate court of appeal, the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158. At that time the relevant legislative test in Victoria was “no real prospect of success”. There at [27] Warren CJ and Nettle JA said:
… whatever might be the practical effect of the new test, it is difficult to disagree with McMurdo J in Gray v Morris and McMurdo P in the Commissioner of Taxation v Salcedo that it should be applied by reference to its own language, without paraphrase or comparison with the previous rule, always bearing in mind the principle that the power to award summary judgment is only to be exercised with caution and, therefore, not unless it is clear that there is no real question to be tried.
(Footnotes omitted)
63. Their Honours continued at [35]:
Upon the present state of authority:
(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
Nonetheless, in hearing such an application the Court should bear in mind the principles set out in Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 255–256. The Court often does not have the benefit of the material before the primary judge or of considered submissions based on that material. It should proceed cautiously.
The father has acted for himself in drafting the appeal and defending the application, although he had the benefit of a ‘McKenzie friend’ at the hearing.
It is convenient to deal with the parenting and property orders separately.
THE PARENTING ORDERS
The parties’ two children, were born in 2004 and 2011. The orders made, pending further orders, were that the younger child (“the child”) live with the father and spend time with his mother each Saturday from 11.00 am to 3.00 pm. For that purpose, the father was to deliver the child to the mother’s home and she was to return him to the father’s home.
The ground of appeal challenging these orders is:
1.The learned judge erred and ignored the safety and wellbeing of the children and applied an incorrect principle of law. His honour decision was inconsistent with incontrovertible established facts. The learned trial judge erred on the facts. Although learned judge acknowledged during the hearing that there was a reasonable excuse considering [the child’s] age.
Neither the written submissions filed by the father nor his affidavit provided any elaboration of the grounds.
When asked to identify the relevant incorrect principle, incontrovertible facts or errors referred to in the ground, the father variously asserted:
(1)The order is in breach of an Apprehended Violence Order (“AVO”);
(2)The orders compromise the safety of the child (as the father said the mother slaps him);
(3)The child does not want to see the mother and would suffer mental trauma if he did; and
(4)The father does not know the mother’s address.
The last point is nonsense because when it comes to the property orders, the father complains that the mother is living in the former matrimonial home and not paying any rent.
The primary judge was aware that each party had accused the other of family violence, that AVOs were the subject of proceedings and that there were criminal charges pending (at [17]–[18]). His Honour did not, and indeed could not, resolve this dispute at an interim hearing (Marvel v Marvel (2010) 43 Fam LR 348 at [120]; Eaby & Speelman (2015) FLC 93-654 at [18]–[19]).
However, it is plain that the primary judge considered that the nature of the allegations was not sufficiently grave to prevent the child spending a limited time with the mother each week. His Honour was also aware that orders had been made in August 2020 and on 27 October 2020 for the child to spend time with his mother, which apparently, had not occurred.
The critical point is that the primary judge was aware of the issues between the parties involving violence. The father’s assertions that the mother slapped the child in the face were disputed by the mother and therefore cannot be regarded as incontrovertible facts. The matters raised by the father therefore cannot be said to have been ignored. They simply were not given the weight which he thought they should have carried.
During the course of his oral submissions the father said that he was not really opposed to the order that the child should spend time with his mother, although he gave every indication that it would not be complied with for various reasons. Rather, he said that his real complaint was for the order for delivery of the child to the mother and the return, which he said would expose him to criminal action for a breach of the AVO.
It is not clear what AVO was in force and what its terms were. The father’s evidence was that he was restrained from approaching within 500 metres of the mother’s home or workplace. Whatever the nature of the order, the primary judge appears to have been aware of it.
The existence of an AVO does not prevent orders being made for a child to spend time with a parent, although the existence of such orders is a relevant consideration (s 60CC(3)(k) of the Family Law Act 1975 (Cth) (“the Act”)).
I have difficulty in seeing how complying with a court order to simply deliver the child to the mother at her house would expose the father to criminal prosecution, if that is all that he did.
Further, the father could make arrangements for someone else to deliver the child or to agree with the mother about a neutral means of changeover. Reference must also be made to s 68P of the Act which explicitly permits spend time orders to be made contrary to the terms of a family violence order, which would include an AVO. Here the orders set out the mode of contact (s 68P(2)(d)(iii) of the Act).
In any event, the point is that the primary judge was aware of the AVO and took it into account. Thus, the ground as framed, cannot be made out.
His Honour determined to give little weight to the child’s views that he did not wish to see his mother given the circumstances in which that view had been formed (at [36]–[41]).
It follows that the primary judge was aware of the child’s views but gave little weight to them. Thus, no error of law as asserted by Ground 1 can be made out in relation to this issue. As to the trauma that could be suffered by the child, there was only the father’s assertions to that effect.
In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court of Australia said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
The parenting orders made by the primary judge were quite unremarkable and cautiously provided for the child to recommence spending time with his mother pending the final hearing. I am quite unable to ascertain any error in them.
THE PROPERTY ORDERS
The property orders were:
7.
(a) The [mother] and the [father], shall each on or before 7 days from the date hereof, do all things and sign all documents to cause the monies held on their behalf by [the real estate agents] to be paid into a controlled monies account opened by the [mother’s] solicitors in the joint name of the [mother] and the [father].
(b) Once the controlled monies account is opened those funds shall be used:
(i)To pay the fees of [Dr X] incurred in preparing her report.
(ii)To pay any valuation fees incurred pursuant to orders 16 and 17 hereof.
(iii) In payment pursuant to any further order of the court.
8. In the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then a Judicial Registrar of this Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
On 25 February 2021, a senior registrar noted that $14,490 was being held in trust for the parties by a firm of real estate agents (at [5]).
The primary judge then found that a report from Dr X would be desirable because she is “a highly experienced expert in dealing with families in high conflict” (at [50]) and that her fees would be paid from the funds in the account so that “necessary evidence [would be] available by the final hearing” (at [56]). It was plain enough that the father would not voluntarily pay for either report, so that having resort to the funds in the account was the only means of ensuring that the reports would be available.
As these are interim property orders, leave to appeal is required. Ordinarily the test to be applied is whether the orders in question are attended by sufficient doubt as to warrant consideration and whether a substantial injustice would flow if leave was not granted, supposing the orders have been erroneously made (Medlow & Medlow (2016) FLC 93-692).
Ground 2 is in these terms:
2.The learned judge erred and made a finding of fact or facts on an important issue of financial money and sources of money to be used and ignored more pressing ongoing and current demands. The learned trial judge acted upon a wrong principle, decision was plainly unreasonable or unjust and failed to afford a party procedural fairness and take into account a material consideration. This court have no power to become financial advisor and the learned judge orders are serious injustice to under the current circumstance with attached default letter from the bank’s solicitor.
(As per the original)
The father, in his oral submissions, identified the relevant wrong principle, want of procedural fairness and omitted material facts as:
(1)The mother had lied;
(2)The mother was not paying rent whilst living in the matrimonial home;
(3)The primary judge failed to make an order for the payment of rent by the mother;
(4)The primary judge failed to consider the facts (this applied to both the asserted wrong principle and the procedural unfairness, but the facts were not identified);
(5)The primary judge ignoring the father’s submissions about the gold; and
(6)The fact that the primary judge did not refer the parties to mediation.
In his affidavit filed in opposition to the application on 24 February 2022, the father said that the mortgagee had written advising that if repayments were not paid, they may commence proceedings for possession of the property after 8 January 2022. The letter is dated 1 December 2021, which is after the date of the orders.
The parties appear to own two properties, one of which is an investment property. As I have said, the mother lives in the other property. It is not clear which mortgage is in default or whether the one loan is secured against both properties. The father’s evidence does not explain why the loan or loans have fallen into default and what has been done with the rent received from the investment property. I note in that regard, that the amount held by the real estate agents is less than is required to discharge the arrears.
Essentially however, the father’s complaint is that the funds held by the real estate agents should be paid to the mortgagee and not be used to pay for the expert reports. Thus, the point of the evidence, which was not before the primary judge, is to show error.
The question, therefore, is whether in any appeal, would leave be granted to adduce this evidence to show error in the orders?
The evidence is likely to be controversial, in the sense that it is incomplete and there is likely to be a dispute as to why the mortgage has not been paid and whether, in any event given the pending final property hearing, one or both properties should be sold. Evidence may then be given as to the need for the single expert reports.
The evidence is unlikely, therefore, to be received on appeal but, if indeed there has been a relevant change in circumstances, an application could be made to vary the orders, as they are clearly interlocutory.
This possibility greatly reduces prospect of leave to appeal because no substantial injustice can arise when there is an available remedy of being able to apply to vary the orders.
The asserted errors raised in oral submissions can be dealt with briefly.
The mother is one of the owners of the matrimonial home and therefore is entitled to live there. There is no obligation for her to pay rent, although her use of the home and the payment of its upkeep, if any, are matters that may be taken into account at the final hearing.
The primary judge made orders for the contents of a security box, which is said to include gold, to be valued. Otherwise the possession of gold by the wife appears to be in dispute and is therefore a matter for the final hearing.
The possibility of mediation bears no relation to the orders that were made.
No arguable ground of appeal emerges from Ground 2.
Ground 3 asserts that the primary judge erred by failing to make an order that the mother be responsible for paying “her share 50% of the children’s maintenance of life with arrears”. A child maintenance order cannot be made if an application could be made under the Child Support (Assessment) Act 1989 (Cth) (“Child Support Assessment Act”) (see s 66E of the Act). There is no suggestion that an application under the Child Support Assessment Act could not be made, as was noted by his Honour at [47].
Ground 4 again refers to the mother being required to pay rent.
None of the three grounds has any reasonable prospect of success, even if looked at as favourably as possible. There is no likelihood of leave to appeal being granted.
CONCLUSION AND COSTS
It follows that the appeal has no reasonable prospects of success. It would not be just to require the wife to defend a meritless appeal.
The appeal will be summarily dismissed. It is therefore not necessary to deal with the mother’s assertions of abuse of process or her application for security for costs.
The application has been entirely unsuccessful. There is no reason why an order for costs should not be made against the father who, although apparently unemployed, has interests in two properties. No challenge was made to the mother’s schedule of costs filed on 1 March 2022.
The father will pay the mother’s costs fixed in the sum of $13,952.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 April 2022
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