Keskin and Keskin - [2019] FamCA 830

FAMILY COURT OF AUSTRALIA

KESKIN & KESKIN

[2019] FamCA 830

FAMILY LAW – STAY APPLICATION – hearing of appeal on 27 November 2019 – litigant in person – cross-application for variation of orders – both applications refused.

Family Law Rules 2004, r 22.11(3)

APPLICANT:

Ms Keskin

RESPONDENT:

Mr Keskin

FILE NUMBER:

MLC

9445

2014

DATE DELIVERED:

6 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

6 November 2019

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

Orders

The applicant’s enforcement application filed on 27 August 2019 is dismissed.
The respondent’s application filed 15 October 2019 for a stay of the orders made on 19 June 2019 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keskin & Keskin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9445 of 2014

Ms Keskin

Applicant

And

Mr Keskin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

There are two applications before me today. The first is the application by Mr Keskin for a stay of the orders pronounced by me with reasons on 19 June 2019. The second is an application by Ms Keskin for enforcement of the same orders as well as a variation of certain aspects of those orders made by application in a case filed 27 August 2019. Under the rules that determine applications such as this, the filing of a notice of appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided for. Rule 22.11(3) of the Family Law Rules requires an application for a stay to be made, heard and determined by the judge who made the orders under appeal – hence the application is made to me.
Today Mr Keskin advanced an unattractive contention that he said there was so much injustice in the orders that I made that his appeal was a near certainty. It is fair to say that an applicant for a stay is not required to demonstrate extraordinary circumstances or indeed special circumstances before the proceeding is stayed pending appeal. That said, a stay is sometimes granted where the appeal would be rendered nugatory unless the stay were granted.
Mr Keskin has advanced five grounds of appeal in this case. Interestingly, he was represented by lawyers until the very first day of the commencement of this proceeding. He then conducted the trial before me himself and has since retained solicitors to prepare the notice of appeal. He says he has been put to vast sums of legal expenses. Whether that is the case or not is beside the point for the purposes of this application before me.
Embedded in Mr Keskin’s application before me for the stay was his contention, which I invited him to correct if I misheard it, to the effect that the trial was a farce. Unsurprisingly, I take exception to his characterisation of the trial that I conducted as a farce particularly in view of the fact that he said many times during the trial that he was satisfied that he obtained a fair hearing.
The five grounds of appeal advanced were these –
1.The Trial Judge made errors of fact in calculating the value of the existing legal and equitable interests of the parties in the “rolling stock” of the business conducted by the Appellant.
2.The Trial Judge erred in requiring the Husband by Order 5 to pay to the Wife a sum equal to 60% of the total net equity in the Suburb G properties, after finding he only held a 30% interest in the relevant holding equity.
3.The Trial Judge failed to take into account in the ultimate exercise of discretion, the distribution of the proceeds of sale of the former matrimonial home at Suburb L and/or the property in Country O.
4.The Trial Judge’s conclusions as to the Husband’s compliance with his disclosure obligations and conduct of the business and the inferences and approach taken as a result of those conclusions are unsafe in light of the evidence.
5.The Trial Judge’s reasons are inadequate to determine how the ultimate division of 60/40 was arrived at.
Although it is no part of my determination in this case to express any concluded view about the likely prospects of success on appeal, it might fairly be said that those five grounds are scattergun at best and do not properly understand the nature and effect of the reasons that I pronounced, especially where I ordered that 30 per cent of the relevant holding in the Suburb G properties was in the hands of the respondent. Arithmetically that involves the applicant receiving 60% of the 30% interest the respondent holds in the Suburb G properties.
Mr Keskin contended that in respect of rolling stock, debts exceed the amount to be transferred. In the reasons, an extensive recital of the valuation evidence of rolling stock was given. Whether Mr Keskin is able to persuade an appeal court about his contentions remains to be seen. It does not appear to be an especially compelling reason to do what he asked me to do today. In respect of the Country O property he says that some prospective buyer may be in the wings. If that is the case, as I told the parties throughout the trial of this case, they should sell the property and thereby cauterise the loss and rationalise the asset to be sold.
Mr Keskin said that process is now on foot to commence litigation in Country O largely, so he says, agitating the very issues that were agitated before me. That may be the case but that does not change the nature of the reasons that were given and the orders previously made. If there is some truth in the suggestion that some process is underway in a Turkish court there may be scope for one or either of the parties to take steps to inform that court that the subject matter of this proceeding has already been determined, albeit in a foreign court.
Next, Mr Keskin said that he has suffered a stroke which has impaired his ability to engage in aspects of this litigation. He might be right about that, but it is noteworthy that he had solicitors on the record until the commencement of the trial and he has retained solicitors for the purposes of the appeal. To that extent he has not been disadvantaged by any medical incapacity if there be any. No medical evidence was adduced.
Mr Keskin conceded that there was no urgency in respect of this matter, a prospect with which I agree. That said, on 27 November the appeal in this case will be heard, barely 21 days from today. All points that he wishes to make to denounce the reasons he can make on that occasion.
Turning now to Ms Keskin’s application for enforcement, the same can be said in respect of her application. The appeal is to be heard in a matter of days only. She may be vindicated, she may not be. If it turns out that the appeal court disagrees with my orders then the appeal court may require this case to be heard again or it may inject its own reasons and conclusions as to a different outcome. At all events a conclusion will be known about that in very short time.
So far as the application for variation of my orders were concerned, the principal focus of those related to an assertion that a company called GGG Pty Ltd was or might be engaged in some way in spiriting assets out of the control of Mr Keskin or companies or entities owned or controlled by him.
The extent of the evidence on the point was reposed in paragraph 5 of Ms Keskin’s affidavit filed 27 August 2019. That did not demonstrate to me to the requisite degree of satisfaction that I needed to obtain that there was, in fact, the risk for which she complained. Understandably, she may have grave misgivings about what her former husband might do at a commercial level, but the evidence in support of the alteration of the orders to incorporate reference to GGG Pty Ltd was short of the necessary degree of cogency. For those reasons I dismiss the stay application and I also dismiss the enforcement application. I recommend that the parties concentrate their efforts on the appeal.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 6 November 2019.

Associate:

Date: 12 November 2019