Ueno & Gerlof
[2024] FedCFamC1A 24
•7 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ueno & Gerlof [2024] FedCFamC1A 24
Appeal from: Ueno & Gerlof [2023] FedCFamC2F 1201 Appeal number: NAA 288 of 2023 File number: BRC 4335 of 2023 Judgment of: ALDRIDGE J Date of judgment: 7 March 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where an appeal judicial registrar ordered the appellant file an Amended Notice of Appeal and a Summary of Argument – Appellant seeks relief from filing Summary of Argument – Appellant failed to appear at hearing – Appeal as framed raises no competent grounds – Exemption from filing would therefore be pointless – Application dismissed.
FAMILY LAW – APPEAL – Summary dismissal – Where the appellant has not complied with procedural orders to file documents required to prosecute the appeal – Appellant failed to appear at hearing – No valid grounds of appeal raised – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.31, 13.45, 15.19, Sch 3
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 22 Date of hearing: 7 March 2024 Place: Sydney (via video link) The Appellant: Did not participate Counsel for the Respondent: Mr Ehlers Solicitor for the Respondent: Country to Coast Lawyers ORDERS
NAA 288 of 2023
BRC 4335 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR UENO
Appellant
AND: MS GERLOF
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 5 February 2024 is dismissed.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs fixed in the sum of $5,853 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ueno & Gerlof has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
THE APPEAL AND THE APPLICATION IN AN APPEAL
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 15 September 2023.
The parties have two children who were born in 2013 and 2015. On 4 June 2020 Judge Cassidy ordered that the children live with Ms Gerlof (“the mother”) who was to have sole parental responsibility for them. The father, Mr Ueno, was to spend time with them as agreed between the parties.
On 15 September 2023, the primary judge dismissed the father’s application for different parenting orders because there was “no evidentiary basis to conclude the parenting dispute over the children should be re-opened” (at [62]), applying the well-known principles set out in Rice and Asplund (1979) FLC 90-725.
The father filed a Notice of Appeal on 13 October 2023 which contained only the following ground of appeal:
My evidence & affidavits were not read or considered by the Judge. It was ‘buck-passed’ from [one judge to another]. My children and I are suffering [illegible]. It’s been so long and I just want to be a father to them. I want access to my 3 sons…, they need their father. [Ms Gerlof] on the 10th October has extended the DVO by another 5 years, further alienating me from my sons. Please help.
Only the first clause raises a valid matter for appellate review, but this could not be sustained as the primary judge specifically referred to the father’s affidavits at [8], [12] and [14] and summarised his submissions based on that evidence in some detail at [17] and [18].
Not surprisingly, on 20 November 2023 an appeals judicial registrar ordered the father to file an Amended Notice of Appeal by 15 December 2023 which was to include “details at Part E in succinct numbered grounds of appeal the error/s of law or principle asserted”.
The father has not complied with that order. He has not complied with the further order of the appeals registrar to file and serve a Summary of Argument and List of Authorities by 19 January 2024.
On 5 February 2024, the father filed an Application in an Appeal which sought the following order:
Subject: Request for Exemption from Filing Due to Extenuating Circumstances
Dear [Judge Aldridge and Court Staff],
I am writing to respectfully request an exemption from the obligation to file the Summary of Argument and List of Authorities by the set deadline of January 19, 2024, due to extraordinary circumstances that I am currently facing. I am presently residing in [Country C], having fled from Australia due to severe personal safety concerns. These concerns stem from what I perceive as acts of terrorism against me, primarily perpetrated by an individual named [Ms Gerlof]. This situation compelled me to seek refuge in [Country C], where I am currently striving to establish stability and safety. In [Country C], I am confronted with several challenges that impede my ability to comply with the court’s requirements. The country is grappling with significant infrastructural issues, including frequent electricity outages and unstable internet access, making it nearly impossible to prepare and submit the necessary legal documents. Additionally, the political and social environment, compounded by mandatory military conscription, further restricts my ability to focus on and address legal matters. Given these extreme and unusual circumstances, I am seeking an exemption from filing the required documents rather than an extension. I hope the court will understand the gravity of my situation and the impracticality, if not impossibility, of fulfilling this obligation under current conditions. I assure you of my respect for the court’s procedures and the importance of this matter. My request for exemption is made out of dire necessity and is in no way an attempt to evade my legal responsibilities. Enclosed are supporting documents that provide insight into the current situation in [Country C] and the challenges I am facing [List of Supporting Documents e.g., photographs, official notices, personal safety reports]. I understand the significance of this request and am prepared to provide any additional information or clarification needed. I am deeply grateful for your consideration of my situation and for any accommodations that can be made under these extraordinary circumstances.
Thank you for your time and understanding. Sincerely, [Mr Ueno]
(As per the original)
That was accompanied by a supporting affidavit that merely repeated the above statement and said no more. No documents were attached.
That application was listed to be heard prior to the appeal today.
The father has not appeared and did not make any application to appear electronically. However, as this appeal is being heard electronically in accordance with the court’s ordinary practice, he has been informed of that and provided with the electronic link to join the hearing. He has not done so. His failure to appear, of itself, would be a sufficient basis to dismiss the Application in an Appeal and the appeal itself (r 13.31 and r 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)).
Nonetheless, I propose to address the merits of the proceedings.
If the application were granted, the Court would be left only with the Notice of Appeal as the support for the appeal as the father’s absence today means that he cannot supplement that document with oral submissions.
As I have already found, the Notice of Appeal largely raises matters that are not competent grounds of appeal. The one matter that could be seen as a valid ground is misconceived as the primary judge clearly had regard to the father’s evidence and therefore it must fail.
That being so, the application for an exemption is pointless and must be dismissed.
Whilst the Court is reluctant to dismiss properly constituted appeals for defaults in complying with procedural orders, it will do so if it is clear that the appeal would fail (Jackamarra v Krakouer (1998) 195 CLR 516).
It is not for the court to look to identify error on the part of the primary judge unless such error is reasonably apparent (Bahonko v Sterjov (2008) 166 FCR 415). Here there is no reason to look more closely at the reasons and the appeal as framed must fail.
Whilst the appeal could be dismissed under r 13.45 of the Rules for failure to comply with the orders of the Registrar, it could also be dismissed under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) because it has no prospects of success.
Accordingly, the Application in an Appeal and the appeal are each dismissed.
COSTS
Although the mother has not filed a schedule of costs in accordance with the registrar, nonetheless an application has been made for costs.
Compliance with court directions is not optional and can indeed have severe consequences. Here however, I have heard the explanation proffered by counsel that initially the mother was of the view she did not wish to antagonise the father further, particularly given there are current domestic violence orders extant that have recently been renewed. However, the mother is on a grant of legal aid and there is no reason why the costs of her appearance at this appeal should be borne by the general public of Australia in the event that the costs are able to be recovered. The amount sought accords with the directions of the registrar in that it is calculated by reference to Schedule 3 of the Rules, however at some stage in appeals of this kind the court may well look more favourably on applications for indemnity costs.
The amount sought is appropriate in all of the circumstances. Therefore, the appellant is ordered to pay the respondent’s costs fixed in the sum of $5,853 within 28 days.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 March 2024
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