Okorie & Myska (No 2)
[2024] FedCFamC1A 234
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Okorie & Myska (No 2) [2024] FedCFamC1A 234
Appeal from: Myska & Okorie [2024] FedCFamC2F 488 Appeal number: NAA 122 of 2024 File number: SYC 4836 of 2022 Judgment of: ALDRIDGE J Date of judgment: 9 December 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of an appeal judicial registrar’s decision dismissing an application for reinstatement of an appeal – Where the appeal was deemed abandoned due to the applicant’s failure to file a draft appeal book index – Where the applicant provides no explanation for the delay for filing the application for reinstatement – Where the Notice of Appeal does not identify any ground that has a reasonable prospect of success – Where it would be an injustice to the respondent to permit the appeal to go forward – Application dismissed – Applicant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.14
Cases cited: Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
Number of paragraphs: 25 Date of hearing: 9 December 2024 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Young Solicitor for the Respondent: Mack Lions Lawyers ORDERS
NAA 122 of 2024
SYC 4836 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS OKORIE
Applicant
AND: MR MYSKA
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.…
2.The Application in an Appeal is dismissed.
3.The applicant pay the respondent’s costs fixed in the sum of $7,500 within 28 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Okorie & Myska has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
This is a review of a decision of an appeal judicial registrar dismissing an application for reinstatement of an appeal that was deemed to have been abandoned due to the applicant’s failure to file a draft appeal book index. The application is a hearing de novo and is not itself an appeal from the registrar’s decision. It follows, therefore, that the applicant must persuade me that it is appropriate to reinstate the appeal.
The approach to such applications was set out by McHugh J in the well known case of Gallo v Dawson (1990) 93 ALR 479. The aim is to do justice between the parties. However, it is well established the appellant should not lose the benefit of a regularly commenced appeal because of a procedural default. That said, if the appeal would be futile because it lacks merit, it is not in the interests of justice for it to proceed (Jackamarra v Krakouer (1998) 195 CLR 516).
I would add that since that case was decided, the Federal Circuit and Family Court of Australia Act 2021 (Cth) has been passed which contains a provision that any application, which includes an appeal, may be summarily dismissed if it lacks reasonable prospects of success (see s 46).
It would seem to follow, therefore, that the question to be considered is whether there are reasonable prospects of success on the appeal. The other matter normally taken into account is the delay and any explanation given for it.
BACKGROUND
The appeal is from a declaration made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 April 2024. His Honour declared that, pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) and for the purposes of an order under s 90SM of the Act, the applicant and the respondent were in a de facto which commenced in December 1998 and ended on 29 March 2021.
The parties had previously been married in Country B where they had a son. They were divorced in Country B in mid-1995, as both parties annexed to their affidavits a divorce certificate of that date.
The parties subsequently arrived in Australia and in coming to the view that the parties were in a de facto relationship, the primary judge took into account that they purchased eight properties together, jointly raised their son, maintained a joint bank account from April 2007 to September 2022 and regularly travelled overseas as a family.
A Notice of Appeal was filed on 22 May 2024. The applicant was subsequently advised of her obligations to carry out certain steps in relation to the preparation of the appeal including filing a draft appeal book index within 28 days of filing the Notice of Appeal in accordance with r 13.14(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The applicant did not do so and on 19 June 2024, the appeal was deemed to be abandoned.
It was not until 28 August 2024, a delay of more than two months, that the applicant got around to filing a reinstatement application which she did on 28 October 2024.
CONSIDERATION
The explanation for that delay appears in her affidavit for not filing a draft appeal book index (applicant’s affidavit filed 28 August 2024):
7.There are three main reasons for the misunderstanding: First, at that time, she didn’t complete understand the appeal procedures when she read. Seconde, she had to deal with several important matters are the same time. Third, This distracted her attention and energy, didn’t have enough time and energy to see the lawyers for a help.
(As per original)
That is so broad as not to be any explanation at all. There is no explanation provided as to the two month delay for filing the application for reinstatement.
A decision as to whether parties are in a de facto relationship is an evaluative one that takes into account all of the circumstances, but particularly those set out in the definition of a de facto relationship in s 4AA of the Act (see for example Sinclair & Whittaker (2013) FLC 93-551; Clarence & Crisp (2016) FLC 93-728; Lennon & Sanil (2020) FLC 93-962).
In those circumstances, a successful appellant must demonstrate error on the part of the trial judge. But that is not done simply by persuading an appeals court that they would have come to a different decision. The principles to apply to such a decision are much more akin to those set out in House v The King (1936) 55 CLR 499 in relation to discretionary decisions. Therefore, submissions merely to the effect that the applicant’s case should have been accepted are not persuasive of error.
The Notice of Appeal contains 10 grounds of appeal. Grounds 3 to 10 are, on their face, incompetent and not grounds of appeal at all. Grounds 1 and 2 state:
1.Respect the facts and seek justice.
2.The above of 20 facts are the reasons.
(As per original)
That second ground seems to be a reference to the matters that appear under the heading “Leave to Appeal” in the Notice of Appeal. Leave to appeal is of course not required. There, there are set out a number of asserted errors some of which focus on the divorce certificate asserting that the divorce certificate relied upon by the respondent was false or illegal in some way. Whether that be so or not would not demonstrate error in the evaluation of the relevant considerations to be taken into account when determining the issue to be decided.
Even benevolently read, those 20 grounds are simply a statement that the appellant’s case should have been preferred to that of the respondent. In his reasons given on 18 September 2024, the appeal judicial registrar made similar criticisms of the Notice of Appeal but no effort has been made to address those criticisms and to reformulate it.
I am not persuaded that the Notice of Appeal identifies any ground of appeal that has any prospect of succeeding, let alone any that would have reasonable prospects of success.
Further, it would be an injustice to the respondent to permit the appeal to go forward forcing him to go to the costs and trouble of defending it when the appeal can clearly not succeed.
The application is dismissed.
COSTS
An application has been made that the unsuccessful applicant pay the respondent’s costs of the appeal in the sum of $11,000.
The applicant has been wholly unsuccessful and it is clear from the primary judge’s reasons that there are assets held by both parties.
There is no reason why a costs order ought not be made.
The applicant has not been provided with a Schedule of Costs, nor have I.
Doing the best I can in the circumstances, there will be an order that the applicant pay the respondent’s costs fixed in the sum of $7,500 within 28 days.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 12 December 2024
0