Golub & Director-General, Department of Children, Youth Justice and Multicultural Affairs
[2021] FamCAFC 106
•16 June 2021
FAMILY COURT OF AUSTRALIA
Golub & Director-General, Department of Children, Youth Justice and Multicultural Affairs [2021] FamCAFC 106
Appeal from: NA - Consent Order Appeal number(s): NOA 30 of 2021 File number(s): BRC 16958 of 2020 Judgment of: STRICKLAND J Date of judgment: 16 June 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant’s proposed Notice of Appeal does not set out grounds of appeal – Where even the supporting documentation does not allege error by the primary judge but sets out incidents which have arisen since the making of the consent orders – Where if an extension of time were allowed the appeal would be dismissed and thus to grant the application would lack utility – Where the application is misconceived in any event – Where the applicant should have made an application pursuant to reg 19A of the Family Law (Child Abduction Convention) Regulations 1986 – Application dismissed.
FAMILY LAW – APPLICATION IN A CASE – STAY – Where a stay can only be sought pending the hearing of an appeal – Where there is no appeal on foot and no extension of time will be granted to file a Notice of Appeal – Application dismissed.
Legislation: Family Law (Child Abduction Convention) Regulations 1986 reg 19A Division: Appeal Division Number of paragraphs: 21 Date of hearing: 16 June 2021 Place: Adelaide by telephone link to Brisbane The Applicant: In person Solicitor-Advocate for the First Respondent: Ms Fitzgibbon The Second Respondent: No Appearance ORDERS
NOA 30 of 2021
BRC 16958 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR GOLUB
Applicant
AND: DIRECTOR-GENERAL, DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS
First Respondent
MS BUDIMIR
Second Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
16 JUNE 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 15 June 2021 be dismissed.
2.The Application in a Case filed on 8 April 2021 be dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Golub has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Application in an Appeal filed by Mr Golub (“the applicant father”) on 15 June 2021, seeking in effect an extension of time to file a Notice of Appeal from an order made by a judge of the Family Court of Australia on 11 March 2021.
In that Application in an Appeal, the applicant father also seeks that the hearing of the application be expedited. Pausing there, that is indeed what has happened; this hearing is taking place the day following the filing of the application.
The third order sought is a little difficult to understand, but I treat it as being an application that the appeal be heard sooner rather than later, if time is extended.
The application is supported by two affidavits.
The application is opposed by the Director-General, Department of Children, Youth Justice and Multicultural Affairs (“the first respondent”).
There is no appearance by or on behalf of Ms Budimir (“the second respondent”), and that is because, as I understand it, she is currently completing a 14 day quarantine period, given that she has flown from Serbia to Australia with a view to taking the subject children back to Serbia, and she would also need an interpreter to be able to follow these proceedings. I am assured by the solicitor-advocate for the first respondent that the application and the affidavit material has been passed onto the second respondent. It has not been possible for the applicant father to forward those documents to the second respondent because her email address is not to be disclosed. Thus, the most convenient way for her to receive such documents is of course for the first respondent to pass them on. The second respondent also opposes the application.
The first respondent presented some helpful written submissions today, to which were attached email correspondence. There is no affidavit annexing those emails, but leave was sought to tender the emails, and there was no objection to that course by the applicant father.
The order the subject of the proposed appeal is an order made by consent, providing for the children of the parties to be returned to Serbia. On 8 April 2021, the applicant father sought to file through the Commonwealth Courts portal, an Application in an Appeal seeking a number of orders, and I will mention only two. First, that the court orders made on 11 March 2021 be set aside, and secondly, that until a final order is made, those court orders be stayed. The other orders sought are not of any relevance to the issue as it has now developed.
As is obvious, that was a misconceived application. In order to have the orders set aside, there were only two options for the applicant father; to file an appeal or to file an application pursuant to reg 19A of the Family Law (Child Abduction Convention) Regulations 1986 (“the Convention”). However, he did neither. He was unaware, he tells me today, of the option of filing an application under reg 19A, and what he was looking to do, and this is confirmed in his documents, was to appeal against the consent order made on 11 March 2021 providing for the return of the children.
In any event, that application was not immediately listed for hearing, and that only came to light in the last week or so, and as a result, the applicant father filed the application that is before the court today.
Returning to the application of 8 April 2021, obviously the first order that the applicant father sought could not be achieved by that application, but that application has been treated, and can be treated, as an application seeking a stay of the order pending the hearing of an appeal. Of course, that application has not yet been dealt with, but I will come back to that in a moment.
In relation to the application seeking an extension of time, to repeat, the applicant father has filed two affidavits which set out the reasons for seeking the extension.
As is required, part of one of those affidavits is the applicant father’s proposed Notice of Appeal. There are two problems with that Notice of Appeal. The first problem is it does not contain any grounds of appeal, and for that reason alone, the application seeking an extension of time could, and should, be dismissed. However, it is apparent from the orders sought in that proposed Notice of Appeal, and also in the applicant father’s affidavit material, what his complaints are, and they raise matters that he says have occurred since the orders were made, and which relate to the children and their need for counselling in relation to their return to Serbia, and their alleged concern about the return to Serbia, even to the extent, as the applicant father deposes, of them having suicidal thoughts in the event of return.
They are matters which have clearly arisen since the order of 11 March 2021, and I have explained to the applicant father that it is not open to him to seek to appeal on the basis of such matters. They do not demonstrate or establish any appealable error by the primary judge. Thus, even if the applicant father had set out in his grounds of appeal those matters, that would not have advanced his case, and the position would still be that if he was able to file an appeal, the appeal would almost immediately need to be dismissed because it would have no merit.
Of course, if a proposed appeal can be found to have no merit, there is clearly no utility or any basis for granting an extension of time, given that the result of an extension of time would be the filing of the appeal, but with that appeal having no prospect of success, it would become a futile exercise.
Thus, for those reasons, I propose to dismiss the Application in an Appeal seeking an extension of time.
That then has an impact upon the application of 8 April 2021 in which a stay is sought, given that the stay can only be sought pending the hearing of an appeal. There is no appeal on foot, and no extension of time will be granted to file the Notice of Appeal, and thus that application seeking a stay also falls by the wayside and will need to be dismissed.
However, that still leaves the prospect of the applicant father pursuing an application under reg 19A of the Convention, and he has indicated today that he proposes to do that, and file that application together with a supporting affidavit as soon as he is able to prepare it, and hopefully today.
The situation with the return of the children is that their mother is, to repeat, currently completing 14 days quarantine. The children are due to be handed over to the mother at 10:00am on 17 June 2021, namely tomorrow, and I am told that the children and the mother are booked on a flight returning to Serbia from Australia on Sunday evening.
Realistically then, that only leaves two business days, namely 17 and 18 June to hear and determine any application that the father might seek to file pursuant to reg 19A of the Convention. And in that regard, contact has been made with the chambers of the judge who made the return order on 11 March 2021, and her chambers have advised this Court that her Honour has availability to hear an application if filed tomorrow. I thank her Honour for making that time available.
In terms of the applicant father now preparing and filing an application, he is without legal representation and thus this Court has arranged for him to be provided with some assistance from the Brisbane registry, where the application would need to be filed. That assistance is to provide him with a copy of the form that he would need to use to make the application, together with a form of affidavit. It has also been arranged that if the applicant father does file the application, or seek to file it, that he is to send it to Northern Appeals to avoid any delay in the application being received, filed and forwarded to the chambers of her Honour, for the purposes of a hearing on 17 June 2021, if that is to come about.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 30 June 2021
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