Ueno & Kocsis
[2024] FedCFamC1A 14
•20 February 2024
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 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 2) dismissing his Initiating Application which sought parenting orders relating to the parties’ 12 year old son (“the child”).
Ms Kocsis (“the mother”) opposes the father’s appeal.
On 20 November 2023, the appeal proceedings came before an appeal judicial registrar for procedural directions. Under the ensuing orders, the father was required to file an Amended Notice of Appeal by no later than 15 December 2023, and a Summary of Argument by no later than 12 January 2024. The father has done neither.
On 16 January 2024, the appeal judicial registrar advised the father by letter of his non-compliance with the orders, and further advised him that the Court would consider whether to dismiss the appeal at the hearing of the appeal listed for 20 February 2024.
On 5 February 2024 the father filed an Application in an Appeal seeking, in substance, that he be excused from compliance with the requirement imposed by the 20 November 2023 orders to file a Summary of Argument. The mother opposes that application.
The father failed to appear at the hearing before me on 20 February 2024. Although under r 15.19 or 13.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) I could dismiss the Application in an Appeal and the Appeal for want of appearance, it is nonetheless convenient to deal with both on their merits.
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)
In fact, no supporting documents were attached. In her affidavit filed in opposition to the father’s Application in an Appeal sworn 13 February 2024, the mother doubts that the father is actually in Country C, or if he is, that he is subject to military conscription, or experiences poor internet, justifying the latter contention by reference to the father’s ongoing denigration of her on social media.
However, it is unnecessary to determine these disputes as in its terms, the father’s Application in an Appeal only extends to seeking relief from filing the Summary of Argument, not the Amended Notice of Appeal which was due by 15 December 2023. Particularly Order 2 of the orders of the appeal judicial registrar made on 20 November 2023 provided:
2.The Appellant file and serve an amended Notice of Appeal by 4.00pm on Friday 15 December 2023 in typed or legible handwriting which:
a.at Part C, amends item 5 to respond ‘no’ and deletes the response to item 6,
b.at Part B, clarifies that the primary judge appealed is [the primary judge], and
c.details at Part E in succinct numbered grounds of appeal the error/s of law or principle asserted.
No document has been filed by the father in even purported compliance with that order.
The father’s extant Notice of Appeal contains one handwritten ground as follows:
1.My evidence & affidavit were NOT read or considered by the Melbourn (sic), Judge. It was buck-passed from [Judge] Vasta to [the primary judge]. My children, and I am suffering enormously without each other. Its been so long and I just want to be a father to them. I request access to my 3 sons, [...], as they need their father. [Ms Kocsis’] lawyer [...] & police have colluded with [Ms B]. See courtroom video of parties colluding.
From the face of the primary judge’s reasons themselves, it is clear that, to the extent it is a valid ground at all, the sole current ground is patently misconceived, as at [8] and [12]–[14] her Honour said:
8. The Father relied upon the following documents:
(a) Application for final orders filed 6 April 2023;
(b) His affidavits filed:
(i) 6 April 2023;
(ii) Three (3) affidavits filed 15 May 2023;
(iii) 1 June 2023;
(iv) 2 June 2023; and
(v) 14 August 2023.
…
12.The Father has filed very lengthy and often repetitive affidavit material in support of his application. I have read all of the material filed by the Father. I also had the benefit of hearing submissions from the Father in person.
13.In these proceedings there have been numerous matters referred to by the Father. It is not possible to refer to every fact and/or matter in these proceedings nor is it necessary to do so. These reasons are not intended to be a total account of the issues sought to be ventilated by the parents at trial.
14.I have had regard to the totality of the material in these proceedings. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it.
Plainly therefore the sole current ground of appeal is doomed to fail, which no doubt informed the order made 20 November 2023 that the father file an Amended Notice of Appeal, detailing “the error/s of law or principle asserted.”
To now excuse the father from filing a Summary of Argument in relation to a hopeless appeal would be an exercise in futility.
The father’s Application in an Appeal filed 5 February 2024 is dismissed.
SUMMARY DISMISSAL OF APPEAL
The relevant rule pertaining to the dismissal of appeals is r 13.45 of the Rules, which provides:
(1) This rule applies if:
(a) an appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Family Law Regulations; or
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i)dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
…
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order.
…
The principles pertaining to the relevant predecessor of that rule were discussed by the Full Court in Bethke & Bethke (2019) FLC 93-906, in the course of which the court said:
25.In Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”) at 528, Gummow & Hayne JJ said:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. …
(Emphasis added)
Rule 13.45 is a family law practice and procedure provision as that term is defined in s 67(4) of the Federal Circuit and Family Court of AustraliaAct 2021 (Cth) (“the Act”). It follows that ss 67(1)–(3) of the Act are engaged here. They provide:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
Further, s 68(1) of the Act provides:
68 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
I have already observed that the appeal as currently cast is hopeless. In accordance with Jackamarra, it is clear that the appeal would fail, and hence dismissal under r 13.45 for failure to comply with procedural directions amply warranted; to do otherwise would not be acting consistently with the overarching purpose.
The appeal is dismissed.
COSTS
In the event the appeal were dismissed, the mother sought her costs in the sum of $8,981.60. The appeal was wholly misconceived and without merit. The father should pay the mother’s costs as claimed within 28 days.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 21 February 2024
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