Ueno & Kocsis - [2024] FedCFamC1A 14

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ueno & Kocsis [2024] FedCFamC1A 14

Appeal from: Ueno & Kocsis [2023] FedCFamC2F 1198

Appeal number: NAA 289 of 2023

File number: BRC 4329 of 2023

Judgment of: TREE J

Date of judgment: 20 February 2024

Catchwords:
FAMILY LAW – APPEAL – Parenting – Summary dismissal – Where the appellant has not complied with procedural orders to file documents required to prosecute his appeal – Where the appellant failed to appear – Where the sole ground of appeal is as currently cast is patently misconceived and doomed to fail.

FAMILY LAW – APPLICATION IN AN APPEAL – Relief from filing Summary of Argument – Where the appeal judicial registrar ordered the appellant file an Amended Notice of Appeal and a Summary of Argument – Where the appellant seeks relief only in respect of the latter document – Where the appeal as cast is hopeless – Where the relief from filing a Summary of Argument in relation to a hopeless appeal would be an exercise in futility – Application dismissed – Appeal dismissed – Costs ordered in a fixed sum.

Legislation:
Federal Circuit and Family Court of AustraliaAct 2021 (Cth) ss 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.31, 13.45, 15.19

Cases cited:
Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 26

Date of hearing: 20 February 2024

Place: Cairns (via video link)

The Appellant: Did not participate

Counsel for the Respondent: Mr O’Meara

Solicitor for the Respondent: Hodgson Lawyers
ORDERS

NAA 289 of 2023
BRC 4329 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR UENO

Appellant

AND:
MS KOCSIS

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

20 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The father’s Application in an Appeal filed 5 February 2024 is dismissed.
2.The Appeal is dismissed.
3.The father is to pay the mother’s costs in the sum of $8,981.60 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 & Kocsis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
TREE J:
INTRODUCTION

By Notice of Appeal filed 13 October 2023, Mr Ueno (“the father”) appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ueno & Kocsis

Details

AGLC: Ueno & Kocsis [2024] FedCFamC1A 14
Case: [2024] FedCFamC1A 14
Decision Date: 20 February 2024

CaseChat Overview and Summary

The case of Ueno & Kocsis involved an appeal against a decision by the Federal Circuit and Family Court of Australia, which dismissed the father's application to reverse parenting orders that placed the child with the mother and prohibited contact with the father. The father's appeal was subsequently dismissed, and he was ordered to pay the mother's costs. The father had filed an application seeking exemption from filing the Summary of Argument due to extenuating circumstances, including residing in another country and facing challenges such as infrastructural issues and mandatory military conscription. However, the court found these circumstances insufficient to warrant an exemption from filing the necessary documents.

The legal issues before the court included whether the appellant had complied with procedural orders and whether his application for exemption was justified. The court examined the grounds of the appeal and determined that they were patently misconceived and doomed to fail. The appellant had failed to appear for the hearing, and his sole ground of appeal was insufficient to warrant further consideration. Additionally, the court assessed the appellant's application for relief from filing the Summary of Argument, noting that granting such relief in the context of a hopeless appeal would be futile.

The court's reasoning focused on the procedural non-compliance and the lack of merit in the appeal. The appellant had not only failed to comply with procedural orders but had also not appeared for the hearing, undermining the legitimacy of his appeal. The court dismissed the application for exemption from filing the Summary of Argument, finding that the appellant's extenuating circumstances did not justify relief in the context of a hopeless appeal. Consequently, the court dismissed both the appeal and the application for exemption, ordering the appellant to pay the respondent's costs in a fixed sum.

In summary, the court found that the appellant's failure to comply with procedural orders and the lack of merit in his appeal justified the dismissal of both the appeal and the application for exemption from filing the Summary of Argument. The court ordered the appellant to pay the respondent's costs, highlighting the importance of procedural compliance and the need for substantive merit in legal proceedings.

Orders

Orders of the court

NAA 289 of 2023

BRC 4329 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR UENO

Appellant

AND:

MS KOCSIS

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

20 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The father’s Application in an Appeal filed 5 February 2024 is dismissed.

2. The Appeal is dismissed.

3. The father is to pay the mother’s costs in the sum of $8,981.60 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).

Background

Background to the litigation

For the reasons which follow, both the Application in an Appeal and the Appeal will be dismissed.BACKGROUND On 15 February 2015, following a four-day trial, final parenting orders were made by the then Federal Circuit Court which provided for the child to live with the mother, and neither spend time nor communicate with the father. Those orders were justified on the basis that the father posed an unacceptable risk of harm to the child, which could not be adequately mitigated by supervision or otherwise. On 6 April 2023, the father commenced fresh proceedings by filing an Initiating Application seeking orders to reverse the child’s care, so that he lives with him, and that any time the child spends with the mother be supervised, together with various injunctions against the mother. At the hearing before her on 11 September 2023, pursuant to the principles enunciated in Rice and Asplund (1979) FLC 90-725, the primary judge found there had not been a sufficient change in circumstances to warrant re-litigating the parenting arrangements for the child. Her Honour therefore dismissed the father’s application, from which order the father now appeals.THE APPLICATION IN AN APPEAL FILED 5 FEBRUARY 2024 The father’s Application in an Appeal reads: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 B]. This situation compelled me to seek refuge in [Country C], where I am currently striving to establish stability and safety. In [Country A], 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)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 289 of 2023 BRC 4329 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR UENO Appellant
AND:	MS KOCSIS Respondent

Appeal from:	Ueno & Kocsis [2023] FedCFamC2F 1198
Appeal number:	NAA 289 of 2023
File number:	BRC 4329 of 2023
Judgment of:	TREE J
Date of judgment:	20 February 2024
Catchwords:	FAMILY LAW – APPEAL – Parenting – Summary dismissal – Where the appellant has not complied with procedural orders to file documents required to prosecute his appeal – Where the appellant failed to appear – Where the sole ground of appeal is as currently cast is patently misconceived and doomed to fail. FAMILY LAW – APPLICATION IN AN APPEAL – Relief from filing Summary of Argument – Where the appeal judicial registrar ordered the appellant file an Amended Notice of Appeal and a Summary of Argument – Where the appellant seeks relief only in respect of the latter document – Where the appeal as cast is hopeless – Where the relief from filing a Summary of Argument in relation to a hopeless appeal would be an exercise in futility – Application dismissed – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:	Federal Circuit and Family Court of AustraliaAct 2021 (Cth) ss 67, 68 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.31, 13.45, 15.19
Cases cited:	Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs:	26
Date of hearing:	20 February 2024
Place:	Cairns (via video link)
The Appellant:	Did not participate
Counsel for the Respondent:	Mr O’Meara
Solicitor for the Respondent:	Hodgson Lawyers

ORDER MADE BY:	TREE J
DATE OF ORDER:	20 FEBRUARY 2024