Eyers and Eyers (Stay Application)
[2009] FamCAFC 141
•3 August 2009
FAMILY COURT OF AUSTRALIA
| EYERS & EYERS (STAY APPLICATION) | [2009] FamCAFC 141 |
| FAMILY LAW - APPLICATION FOR A STAY – Application for a stay of orders allowing Mother to apply for Australian passport and travel to Turkey with the child for a short period of time – Application for a stay of an order pending an application for special leave to appeal to the High Court of Australia – Where the refusal to grant a stay may render the Father’s application for special leave to appeal to the High Court nugatory – Where the country is a signatory to the International Convention on Child Abduction – Where the Mother is entitled to the benefit of the order – Where the Father appeared unrepresented with interpreter – Where there was no indication of the matters the Father wishes to raise for special leave to appeal – Where the welfare and best interests of the child was of paramount consideration – Application dismissed |
| APPELLANT: | MR EYERS |
| RESPONDENT: | MS EYERS |
| FILE NUMBER: | PAC | 1556 | of | 2009 |
| APPEAL NUMBER: | EA | 80 | of | 2009 |
| DATE DELIVERED: | 3 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 3 August 2009 |
| LOWER COURT JURISDICTION: | Full Court of the Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 August 2009 |
| LOWER COURT MNC: | [2009] FamCAFC 140 |
REPRESENTATION
| THE APPELLANT | Father in Person |
| SOLICITOR FOR THE RESPONDENT: | Lamrocks Solicitors |
Orders
Leave be granted to the father to make an oral application for a stay of enforcement of the orders made by Dunkley FM on 14 July 2009.
The application be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Eyers & Eyers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2009
File Number: PAC 1556 of 2009
| MR EYERS |
Appellant
And
| MS EYERS |
Respondent
REASONS FOR JUDGMENT
Before me for hearing is an application by the Father for a stay of an order pending an application by the Father for special leave to appeal to the High Court of Australia.
A short moment ago I made an order dismissing an appeal by the Father against orders made by a Federal Magistrate on 14 July 2009. The effect of what I did is that the Mother, in accordance with the orders made by the Federal Magistrate, is able to leave Australia with the child of the marriage from 5 August 2009 to 16 September 2009.
The Mother had sought, as I have said in written reasons, that she be permitted to take the child to Turkey for a period of approximately three months. However, the Federal Magistrate made an order permitting the Mother to remove the child for a limited the period of time being until 16 September 2009.
At the conclusion of the hearing when I pronounced judgment and indicated that written reasons had been prepared and would be available to be collected from the Appeals Registrar within half an hour, the Father made it very clear to me that he did not agree with what I did. In discussion the Father also made clear that he wanted to appeal.
The Father, both before the Federal Magistrate and also before me, appeared without the benefit of legal representation, and, as well, it was apparent to me that he required assistance with translation of the English language to the Turkish language, and, hence, he had the assistance of a translator.
I granted the Father leave to make an oral application for a stay because, as I have just said, he made it very clear he wants to appeal, and he declined an opportunity to read my reasons before I considered an application for a stay.
I should add that, given the Father did not have legal representation, I attempted to explain to him what he could do by way of seeking to appeal against what I had done. I also explained that it would be necessary for him to seek a stay of the orders, given the imminence of the Mother’s proposed departure from Australia.
The Father - and it is perfectly understandable why - in his brief submissions to me made no reference to the relevant legal principles to be applied by me in dealing with his application. He made reference to matters which he had raised with me during the hearing of the appeal, and again reiterated that he did not want the child of the marriage to leave Australia.
The litigation between the Father and the Mother has gone on for some time, and ultimately the Mother was successful before the Federal Magistrate in being able to travel with the child to Turkey for the purpose of visiting members of the maternal family.
It was apparent to me, from all of the material that I read, that there was an issue about whether or not the Mother would return to Australia with the child at the conclusion of this proposed holiday period. This was dealt with by the Federal Magistrate, and he came to the view, on the evidence that he had, that the Mother will comply with the Australian order and will return the child in September 2009. In the course of his reasons the Federal Magistrate, among other things, referred to the fact that Turkey is a signatory to the International Convention on Child Abduction.
In the circumstances, in my opinion, the significant matter that the Father would rely upon in support of his application for a stay is that the refusal to grant a stay may render his application for special leave to appeal to the High Court nugatory. That is a very important matter to be considered when dealing with applications of this type and in the circumstances of this case it is a matter to which I attach significant weight.
However, it is not the only matter, and I have to take into account, among other matters, that the Mother is entitled to the benefit of the order. I also have to take into account the nature of the proposed application. There is no notice of appeal. I do not have the benefit of an application even in draft form for special leave to appeal to the High Court and thus I do not know what matters the Father would rely upon in support of such an application. What I do know from what he has said is that he does not agree with what I have done and, in support of that, he relies upon matters that were addressed and dealt with by the Federal Magistrate.
These reasons are very brief because, as I indicated in discussion, the oral application is made without the Father having as yet read my reasons and, as well, as I indicated in discussion, I will be unavailable in the sense of being absent from the Sydney Registry as from about midday today and will not be in the Registry for at least another week.
In all the circumstances I am not persuaded, notwithstanding the matter that I have referred to that favours the granting of a stay, that a stay should be granted, and I propose to dismiss the application.
The significant matter I rely upon is the welfare of the child. The Federal Magistrate, as I have said, came to a conclusion that he was satisfied that it was in the best interests of the child that the Mother be permitted to take the child to Turkey for a short period of time. Nothing has been put by the Father that persuades me that in the circumstances a stay should be granted pending his proposed application for special leave to appeal, notwithstanding what the effect of refusal of his application will be. Of course it does not prevent the Father making another application for a stay once my reasons become available but that will be a matter for him.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 6 August 2009
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