Uysal and Mardine

[2014] FCCA 488

FEDERAL CIRCUIT COURT OF AUSTRALIA

UYSAL & MARDINE [2014] FCCA 488

Catchwords:
FAMILY LAW – Parenting – stay of orders.

Legislation: 

Family Law Act 1975

Nineth & Nineth [2011] FamCA 128
Aldridge & Keaton [2009] FamCAFC 106

Applicant: MR UYSAL

Respondent: MS MARDINE

File Number: DGC 37 of 2013

Judgment of: Judge Small

Hearing date: 7 March 2014

Date of Last Submission: 7 March 2014

Delivered at: Melbourne

Delivered on: 7 March 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms Harris

Solicitors for the Respondent: Melbourne Lawyers

ORDERS

1. The application filed 6 March 2014 in the Federal Circuit Court of Australia for the Stay of Orders made 10 February 2014 is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Uysal & Mardine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

DGC 37 of 2013

MR UYSAL

Applicant

And

MS MARDINE

Respondent

REASONS FOR JUDGMENT

1. The matter of Uysal and Mardine comes before me today for hearing of the father’s Application in a Case to stay the orders that I made in this matter on 10 February 2014.  Those orders, and the reasons that accompanied them, were delivered after a four and a half day trial, essentially held in two blocks over a three and a half week period ending on 27 November 2013.

2. I won’t read all of those orders into the record but, in essence, what they provided was that the mother would have sole parental responsibility for the parties’ child, [X], who was born [in] 2012, that [X] would live with the mother, and that the mother would be permitted to remove [X] from Australia and take him to live with her in the United States which is her home country.  In fact, the orders say that she can take him to live anywhere she chooses, after she has removed him from Australia.

3. That’s the essence of the orders that were made, and further orders were made allowing for the father to spend time with [X] in the United States on a fairly restricted basis, it’s true.  On, I think, three times a year for no more than two weeks at a time, and that time is to be supervised.   However, the issue of supervision over the long term was left to the mother’s discretion as she would have sole parental responsibility for [X]. 

4. As I’ve said, those orders were handed down and reasons given, and I think the reasons ran to something like 79 pages.  And it was all delivered on 10 February 2014.  The orders provided that the mother was permitted to remove [X] from Australia on or after 12 March 2014, which was 30 days after the date the orders were made. 

5. The father filed a Notice of Appeal on 5 March 2014, together with an Application in a Case for a stay of those orders, and a supporting Affidavit.  The Notice of Appeal states that the father seeks leave to appeal all the orders made on 10 February 2014, and he sets out the grounds thus, and I quote from the Notice of Appeal:

   My lawyers withdrew from the case midway through the trial and I was left unrepresented for the remainder of the trial.  There was a miscarriage of justice as a result of the best interests of the child not being properly assessed.  The judge did not weigh up the evidence adequately before her, eg, my concerns regarding the welfare of [X] if the relocation to the USA went ahead. 

6. The orders sought in the father’s Appeal are simply two.  One, that [X] remain in Australia so that he can develop and maintain a relationship with his father,  and secondly, an order for equal shared parental responsibility.  And in the Application in a Case he simply asks for a stay of the orders pending the Appeal, and for the matter to be dealt with urgently.  I note in that regard that the Notice of Appeal and the Application in a Case were filed on 5 March 2014, and I’m hearing the application for stay of orders on 7 March 2014.

7. In the Affidavit, sworn on 5 March, which accompanies the Application in a Case, and I am going to read that in full, too, because it’s quite short but it makes clear what the father is seeking, - he says:

   There is currently an appeal process against the orders that were made on 10 February 2014.  I am in the process of instructing lawyers in regards to the transcripts and other requested documents for the application, as well as arranging funds for the process.  I wish to have this matter reviewed before [X] leaves the country, which would be a point of no return event for the matter pending consideration in regards to his best interest and welfare.  Also there wasn’t a compliance of the orders since 10 February in regards to my time spent with [X].

8. I’ve explained to Mr Uysal that the second part of that Affidavit does not support any orders that he seeks, and that there are other avenues open to him should he wish to enforce any orders made by this court.

9. The grounds for the stay, or the orders that Mr Uysal seeks are quite vague.  He simply seeks a stay of orders.  He doesn’t say what orders he would want to pertain if I were to grant that stay, although my view is that, were I to stay the orders of 10 February, then previous orders would pertain and those orders were made in 2013, I think in June 2013, which provided for supervised time to be spent for two-hour periods between [X] and his father.

10. In relation to the issues to be taken into account in stay applications, Ms Harris, for the mother, took me to the case of Aldridge & Keaton, a decision of the Full Court of the Family Court and, indeed, a three-judge decision of the Full Court of the Family Court, in which the court sets out particular issues that a court, considering a stay application, should consider.  I will go back to that in just a moment. 

11. I note that in this matter the best interests of the child are a very significant issue.  There is some authority, indeed in Nineth & Nineth [2011] FamCA 128 Murphy J said that they were the primary consideration in stay proceedings, and he quotes a decision of the High Court of Australia, and particularly a statement by Kirby J in that matter which talks about the rights of children in proceedings which concern them.

12. In Aldridge & Keaton the court said that the best interests of the child are a significant consideration, and I certainly take them as a most significant consideration in this case.  [X] is not quite 15 months old.  He is a dependent infant, and his interests and his best interests have to be at the forefront of the court’s mind when orders are being made in relation to him. 

13. I note that a stay decision is a discretionary decision.  There’s nothing in the legislation that talks about what I can and can’t do in relation to a stay of orders – well, it gives me the power to stay them but it doesn’t go much further than that.  And, therefore, I have a very wide discretion in what I can decide as a result of this stay application.  I note the following things. 

14. First, that the onus is on the Applicant to establish the matters necessary for the exercise of my discretion to grant a stay.  I would say that it is a matter to be noted that stays are not granted lightly, nor are they granted as a matter of course.  And, indeed, in Aldridge & Keaton their Honours make it clear that the filing of a Notice of Appeal on its own is not a reason to stay orders.

15. The second thing I need to consider is whether the appeal is based on substantial grounds or is a mere delaying tactic on the part of the applicant.  That’s a question in a sense of the bona fides of the applicant.  I have had the opportunity to see the Applicant, Mr Uysal, in court now – this is I think the fourth occasion.  I have no doubt as to his bona fides in the sense that he truly believes that what he is doing is in the best interests of his son.  He truly believes that [X]’s best interests are served by him staying in Australia and continuing to develop and maintain the relationship he has been able to build with [X] over the past seven or eight or nine months since these proceedings began. 

16. I do need to consider though whether the Appeal is are based on substantial grounds and the grounds as set out in the Notice of Appeal, as I’ve said, are basically two.  They are that Mr Uysal went through the trial without lawyers and that he believes that, because of that, [X]’s best interests were not fully assessed during the trial.  And the second ground is that he believes that I did not weigh up the evidence adequately before me, that I did not give enough weight to his concerns about what would happen if [X] were able to go with his mother to the United States to live.

17. To be absolutely fair to Mr Uysal, given that he is self-represented today and that he has prepared his documents himself, I’m going to infer from his Affidavit material a further ground for the stay and that is what might be called “the nugatory argument”: the argument that if I do not grant the stay, then the appeal is of no consequence.  And I do see that as one of the grounds of Appeal.  That is what I believe

    
    

    Mr Uysal meant when he said in his affidavit that:

    I wish to have this matter reviewed before [X] leaves the country which would be a point of no return event for the matter pending consideration in regards to his best interests and welfare.

18. So when I look at the grounds of the Appeal, for the purposes of the stay application I think there are three.  First, the question of whether the fact that Mr Uysal did not have legal representation for the whole trial meant that there was a miscarriage of justice in that the best interests of the child were not fully assessed.

19. It was pointed out to me, and I know because I was there, and I made the orders, of course, that the reason that Mr Uysal did not have legal representation at the trial, in the end, was his own doing.  He had full representation up to the second day of the first block of the final hearing.  It was on that second day that he withdrew his instructions from his lawyers and sought an adjournment so that he might obtain further legal advice and representation. 

20. I heard that application from him and I granted it.  I made it abundantly and explicitly clear to him that there would be no further adjournment after that one adjournment for him to get further legal representation.  And the matter was then adjourned to a date some almost three weeks hence so that the trial might continue.  And I note that Ms Mardine, the mother, was under cross-examination by the father’s counsel at the time that the matter was adjourned. 

21. When the matter returned to court some three weeks later, Mr Uysal was, again, represented by counsel and an instructor.  He had instructed his counsel to apply for a further adjournment on certain grounds which I think are not particularly relevant to this application today but I dismissed that application – after I had heard it.  I didn’t dismiss it without hearing it.  I heard his counsel Mr Kiernan. I dismissed it and gave reasons for that dismissal.

22. Mr Uysal then instructed his counsel to make a second application in almost identical terms for an adjournment.  And when I made it clear that I was not going to grant that application, Mr Uysal withdrew his instructions from his solicitor.  And once he became aware that it was definite that there would be no adjournment, he sought to reinstate those instructions but, quite properly, in my view, both the solicitor and counsel felt compromised and sought leave to withdraw.

23. Mr Uysal then represented himself for the remainder of the proceedings and that is for the rest of the cross-examination of

    
    

    Ms Mardine, for the cross-examination of each of Ms Mardine’s parents, for his own evidence-in-chief and cross-examination, for the cross-examination of the family reporter, Dr W, for the cross-examination of his treating psychiatrist, Dr K, and for the cross-examination of the family supervisor, Ms T.

24. I said to him at the time, and I have said to him today, that I thought he did a pretty good job of representing himself.  That there were times, as I said in my judgment, that it was difficult to understand the questions that he asked but that in general he made a pretty good fist of it.

25. I haven’t been presented with any authority that says that a self-represented litigant for that reason alone - that the lack of legal representation on its own is a ground of appeal.  But what Mr Uysal says is that the consequence of that lack of representation was that there was a miscarriage of justice in that [X]’s best interests were not properly assessed.

26. Ms Harris, for the mother, points out that in the judgment the best interests of [X] were canvassed considerably.  That the judgment sets out what the law requires the court to consider when looking at the children’s best interests and goes through those considerations one by one and matches them, if I can put it that way in the vernacular, to the evidence adduced at trial.

27. The grounds upon which Mr Uysal has appealed I think can be said to be substantial.  That is not to say that the appeal will be successful but that for the purposes of the stay application I consider that the Appeal is based on substantial grounds and cannot be said to be a mere delaying tactic, although that is the effect of the Application were I to grant it.

28. I think that Mr Uysal, clearly genuinely believes that it is in [X]’s best interests to stay in Australia.  I therefore have no doubt or no question about his bona fides in that sense.

29. The next thing I need to take into account is the length of time for the appeal to be heard and what prejudice that delay might bring to the other party.  That’s put in terms of the factors set out in Aldridge & Keaton.  The way it’s put is that I need to make some preliminary assessment of the strength of the proposed Appeal and whether the Appellant has an arguable case, and in this case there are so many uncertainties in relation to this Appeal.

30. The Notice of Appeal was filed two days ago.  There are two grounds noted.  They are put in terms that I make no criticism of in the fact that Mr Uysal has prepared them himself, but they are not in terms that are generally recognised as grounds of appeal in this court, or for the Family Court, for that matter.  And a letter tendered to the court today – from the Family Court registry to Mr Uysal makes one thing very clear, and I will read from that letter.

    I understand that you have sought a stay of the orders pending determination of this appeal.  You should be aware that in the normal course of events the appeal is unlikely to be listed for hearing before June 2014.

31. Mr Uysal says in his affidavit and from the bar table that he is intending to instruct lawyers for the appeal and that he is attempting to find the funds or to arrange funds for that purpose.  Ms Harris says, quite rightly, that there are many steps that an Applicant or an Appellant must go through before an Appeal can even be listed, and they are things like an Index, an Appeal Book, with proper grounds for appeal being made.  And it seems that none of those things have yet been done and we are uncertain as to when they will be done. 

32. Mr Uysal has said that he’s considering selling his car in order to provide funds for the Appeal and Ms Harris has submitted that I should take into account not only his legal fees – his representation fees – but the funds that it will take to provide transcripts of the proceedings for the Appeal when I am considering the prospects of the Appeal proceeding.

33. When I look at the question of delay and what prejudice that delay might bring to the mother, I cannot help but be influenced by the fact that the mother is the primary carer of [X] and always has been.  In that regard I consider the evidence before me at trial and as set out today also by both Ms Harris in submission and the mother in the witness box, because the mother and the supervisor both gave evidence today on oath and were cross-examined by the father.

34. The mother’s evidence, both at trial and under cross-examination today, was that she is vulnerable, that she relies very much on her mother, who is currently in Australia, to assist her in [X]’s care, and that her ability to care for [X] would be greatly affected and impacted were her mother not to be with her.

35. She gave evidence that her mother’s visa for Australia expires on 10 April 2014 and her mother would have to leave the country at that time.  We know that even if the father were able to file all his material in relation to the Appeal that the earliest it could be heard – the very earliest it could be heard – is three months from now.

36. The maternal grandmother would need to leave before that time.  She would need to leave in approximately four and a half weeks or 5 weeks time.  That would leave the mother on her own in Australia.  It would leave her without any support in this country and with the care of 15 month old [X].

37. In looking at what is in [X]’s best interest, of course I need to take that into account.  So in looking at the length of the appeal, the least time it will take is three months. Then there would be at least, I would say, up to a three month period before judgment were given.  And then if the appeal were successful then it would take approximately another nine to 12 months for the matter to be reheard.

38. That means that Ms Mardine would have to stay in this country for at least another year.  And the evidence before me, both in terms of her oral evidence today and the submissions made by counsel and the evidence adduced at trial – her sworn evidence – and the expert evidence of Dr E, the psychiatrist who provided a psychiatric evaluation, and Dr W, the family consultant who provided the family report, makes it clear that Ms Mardine’s vulnerabilities would have a great impact on her mental health and on her ability to care for [X] were she forced to remain in the country.

39. Another matter that the matter of Nineth & Nineth says that I must take into account, and I understand that I’m going between the two cases of Aldridge & Keaton and Nineth & Nineth, but one of the things that Justice Murphy says that I must take into account is whether the Appeal challenges findings made in the judgment.  And that’s actually quite difficult to answer because there’s no finding of fact that I made that is being challenged, but the finding of what is in [X]’s best interest is certainly being challenged, so I take that into account.

40. The next thing that I need to take into account - and it’s very clear in all the judgments I have read – all the authorities I have read on matters of stay applications – is the question of the future of the appeal if the stay is not made.

41. Mr Uysal puts that in his affidavit material as “a point of no return event” if [X] leaves the country.  Usually in these terms, in these cases, it’s referred to as “rendering the appeal nugatory”.  In other words, if [X] is to leave the country, and the Appeal is about whether [X] is to leave the country, then there’s no point in having the Appeal if he has already gone.  That is the argument that I have inferred from

    
    

    Mr Uysal’s material that he is making, and it is a major argument.  Aldridge & Keaton calls it “a substantial factor” in determining whether it would be appropriate to grant a stay. 

42. Ms Harris’ submissions were significant on that point and she made clear that while the nugatory argument, if I put it that way, is substantial, it’s not paramount and it is merely one of the matters to be taken into account.  And I note that, indeed, Justice Murphy says that very thing.  That it’s one of the things, and a substantial thing, to be taken into account.

43. In looking at the Appeal, again, we don’t know what’s going to happen with the Appeal.  Ms Harris’ argument is this, as I understand it, if the appeal is successful her client has given evidence in the witness box today that she will bring [X] back to Australia from the United States if the Full Court orders that she do so – that [X] return.

1. I pointed out to Ms Harris that that’s not an enforceable undertaking.  That once Ms Mardine is in the United States, this court has no jurisdiction over her.  However, Ms Harris, quite rightly, said that while that is the case, Mr Uysal would have rights under The Hague Convention on the Civil Aspects of the International Abduction of Children to make an application for [X] to be returned under that Convention.

2. That would be a different process than if [X] stayed here, but that, nevertheless, is a process that would be open to him.  It might be more difficult and, indeed, I think that’s obvious.

3. But the point that Ms Harris makes, which I think has great force, is that the nugatory argument needs to be balanced against the best interests of the child.

4. When I look at what is in [X]’s best interests, when I consider all the matters in relation to his mother’s ability to take good care of him, when I look at matters that have come to light and are now in evidence since the orders were made on 10 February, I am greatly concerned about [X]’s best interests in light of his father’s behaviour.

5. Ms T is the supervisor of time that has been spent between [X] and his father since June of 2013.  She wrote two reports in the substantive proceedings and gave evidence and was cross-examined in those proceedings. 

6. She has now provided a report dated 2 March 2014 and gave evidence on oath today, being cross-examined by Mr Uysal.  The matters set out in that report are of great concern to the court.  They reveal that since the orders were made Mr Uysal’s behaviour and comments were of such concern to the professional supervisor that ultimately she stopped a supervision session on 23 February, and while there was one more time for the paternal grandmother to spend time with [X], there has apparently been no contact between [X] and his father since 23 February.

7. I’m not sure what to say about the matters set out in Ms T’s report of 2 March as adopted on oath today.  It sets out a plan by Mr Uysal to bring [X] in to see me in chambers in an attempt, Ms T thought, to influence me to change my mind in terms of the stay application, or that it would influence me in making my decision, whatever that would be.

8. There were statements made to Ms T about Mr Uysal’s beliefs that I had been influenced by a third party to the proceedings between the trial and the delivery of judgment.  That he believed that I was dissatisfied with my own judgment and that he read into the judgment a suggestion – well, even more than a suggestion – that he should appeal my orders.

9. Those matters are particularly concerning when I’m looking at what is in [X]’s best interests.  They confirm issues that were raised and dealt with by experts in the proceedings and I note that no less than three separate psychiatrists and the clinical psychologist all, in the proceedings, provided evidence of concern at the father’s behaviour and his attitude to [X] and to the mother and to, indeed, the events of the relationship.

10. When I take all of those things into account and the evidence that the father had said to the independent psychiatrist, I think, to Dr E that he would appeal any decision I made, and that statement was made well before the trial – I cannot see that it is in [X]’s best interests to stay the orders that I made on 10 February.

11. I understand that that will cause great distress to [X]’s father and to his grandmother.  I am persuaded by the arguments of Ms Harris that the Appeal can nevertheless proceed.  Ms Mardine’s behaviour during trial and, indeed, her bringing of these proceedings in the first place when she could actually have just left the country with [X], show me that she has a respect for the law, that she is prepared, it might even be said to her detriment, to work within the bounds of legal process.  And while I do understand that her statement on oath that she would bring [X] back is not enforceable, there are other avenues available to Mr Uysal should the Full Court decide that [X] should return to Australia.

12. For all of those reasons and looking at all the matters that I need to take into account, and especially in Aldridge & Keaton and particularly in relation to the interests of [X], the period of time the Appeal can be heard and whether there are existing satisfactory arrangements that might support the granting of the stay, there simply aren’t.

13. Ms Mardine has sold much of her furniture.  She has made arrangements with her accommodation, as much as she can, in preparation for leaving, and I don’t think that there are existing satisfactory arrangements which support the granting of the stay.

14. I also am cognisant of the right of Ms Mardine or the entitlement, if I can say it, of Ms Mardine to rely on the judgment that has been made after a trial of some substance.  As I said, four and a half days of evidence and submissions where witnesses were cross-examined.  Ms Mardine is entitled to the benefit of that judgment.  I have to take that into account – her entitlement to that – and I do take that into account.

15. When I look at the preliminary assessment of the strength of the Appeal, when I look at the length of time within which an Appeal can be heard, when I look at the best interests of [X], I cannot see, even not counting – although I do – the prospects of success of the Appeal, I cannot see that the grounds for the stay have been made out.

16. And in those circumstances, in the matter of Uysal & Mardine I dismiss the Application in a Case made by the father on 5 March 2014.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 13 March 2014