Uysal and Mardine - [2014] FamCAFC 37

FAMILY COURT OF AUSTRALIA

UYSAL & MARDINE

[2014] FamCAFC 37

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant appeals against the dismissal of his application seeking a stay of orders made on 10 February 2014 permitting the respondent to remove the child from the Commonwealth of Australia and reside in the United States of America or any other country of her choosing as on and from 12 March 2014 – where the appellant has appealed against those orders – where the appeal against the dismissal of his application has been brought on urgently at the request of the appellant – where the appellant alleges that the trial judge erred in giving insufficient weight to his argument that once the child leaves Australia the child will not return – where the presumption is that the trial judge made the correct decision – where the appellant only brought his application for a stay of the trial judge’s orders on 6 March 2014 – where on the documents currently before the court there is little merit in the appeal against the substantive orders – where the respondent is at the airport waiting to board an aeroplane with the child – appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Uysal

RESPONDENT:

Ms Mardine

FILE NUMBER:

DGC

2013

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

11 March 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

11 March 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

7 March 2014

LOWER COURT MNC:

REPRESENTATION

THE APPELLANT:	In Person
COUNSEL FOR THE RESPONDENT:	Ms Harris

SOLICITOR FOR THE RESPONDENT:

Melbourne Family Lawyers

Orders

The Notice of Appeal filed by the father in SOA 19 of 2014 on 11 March 2014 be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 19 of 2014
File Number: DGC 37 of 2013

Mr Uysal

Appellant

And

Ms Mardine

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal filed by the father today, 11 March 2014. The father seeks to appeal against an order made by Judge Small on 7 March 2014 dismissing the application filed on 6 March 2014 by the father seeking a stay of orders made by the same judge on 10 February 2014.
The appeal has been brought on urgently at the request of the father, and he appears today in person by way of telephone link between the Melbourne Registry of the Family Court, and the Adelaide Registry of the Family Court. The mother is represented by counsel, Ms Harris, who also appears by way of telephone link with the Adelaide Registry of the Family Court.
I note that the Notice of Appeal that is before me today has not yet been served on the mother or her legal representatives. There was also an application in an appeal and supporting affidavit filed by the father earlier today, and neither of those documents have been served. I earlier summarised the contents of those documents and read that onto the transcript for the benefit of Ms Harris, but to repeat, the application in an appeal was in effect an application to expedite the appeal, and the affidavit, brief as it was, was in support of that.
With the Notice of Appeal, given Ms Harris does not have a copy of it, she being on a mobile telephone in her motor vehicle conducting this hearing, I read out precisely the grounds of appeal, as they were not lengthy, together with the orders sought by the father.
The grounds of appeal are as follows:
1.The judge did not weigh my argument that once [the child] leaves Australia it would be a point of no return event.
Pending the appeal process against the relocation order for [the child] to USA that were made on the 10^th of February 2014, the stay order was argued to be of upmost [sic] relevance and importance, and the judge gave no consideration to these points.
I also indicate that I have not been provided with either the reasons for judgment delivered by Judge Small on 7 March 2014, or the transcript of the hearing before her Honour on that day. All I have from that day is the formal order made by her Honour, which as I said, dismissed the father’s application. I also indicate that I do not have before me today the application that was before her Honour, nor any supporting documents filed on behalf of the father, nor anything filed in response by the mother, or her legal representatives on her behalf.
The only other documents that I do have, apart from the four I have mentioned so far, including the formal order, are the reasons for judgment delivered by her Honour on 10 February 2014, when she made a number of parenting orders, and the Notice of Appeal filed by the father on 5 March 2014 against those orders. I will return to that Notice of Appeal shortly.
Although I have limited documentation, I have been assisted by oral

submissions from Ms Harris, and from the father.
The circumstances of the urgency of the hearing of this appeal are as follows.
The relevant order made by Judge Small on 10 February 2014 was to permit the child the subject of the proceedings to leave the Commonwealth of Australia on or after 12 March 2014, and to live with the mother in the United States of America, or any other country of the mother’s choosing. The child, whose name is A, was born in 2012, and thus he is obviously very young.
I am told today that the mother is currently at Melbourne International Airport waiting to board a flight with the child, that flight departing Melbourne at 12:50am, it now being 6:00pm in Melbourne. I am told by Ms Harris that on the basis of the orders made by Judge Small, including the order made on

7 March 2014, the mother has purchased non-refundable tickets, and to purchase those tickets she has sold her furniture, and she has nowhere to live. Her ultimate destination is the United States of America. That is where her parents reside, she being an American citizen, although she also has permanent residency in Australia.
I therefore proceed on the basis that the mother is shortly to return to the United States to reside with her parents, and I note that that was the proposal put by her to Judge Small, and which Judge Small accepted, and that comes from Judge Small’s reasons for judgment delivered on 10 February 2014.
I am unclear as to the basis for her Honour allowing the child to live with the mother in any other country of the mother’s choosing apart from the United States, but I need not be concerned with that now because, as I say, I proceed on the basis that the mother is travelling with the child to the United States.
Apart from the order that I have just referred to, other orders made on

10 February 2014 by her Honour provided for the mother to have sole parental responsibility for the child, and obviously for the child to live with her. In terms of the time that the father would spend with the child, her Honour made an order that once the child left Australia he should spend such time with the father as may be agreed between the parties, and during no more than three periods of two weeks per year in the United States of America or any other country of the mother’s choosing. I have not been told of any agreement that has yet been reached as to the time that is to be spent by the father with the child, but at the moment the child has not physically left Australia.
The difficulty with this case is obvious. The mother and child are at the airport waiting to board a plane to take them ultimately to the United States in accordance with her Honour’s orders. The father has an appeal against an order made by Judge Small dismissing his application for a stay of those orders. If I found that the appeal had merit and allowed the appeal, then it would be a matter of whether I re-exercised the discretion of the judge in terms of the stay application that was before her Honour, or sent it back to another judge of the Federal Circuit Court. If I re-exercised the discretion I would do that now, and if I re-exercised the discretion such that the stay was granted then that would have immediate practical implications for the mother and the child.
However, my initial consideration of this matter is as follows. This is an appeal, and as such the father needs to demonstrate that the trial judge has erred in reaching her decision. The father effectively has set out one ground of appeal, and that is that the trial judge failed to give any weight to his argument that once the child leaves Australia, the child will not return. In considering that challenge the practical difficulty that I have is that I do not have her Honour’s reasons for judgment, nor even the transcript of the hearing, but I do have the presumption that the trial judge has made the correct decision, and there are other matters that I can and should address in order to decide this appeal.
Before addressing those other matters, I observe that clearly there is no opportunity to adjourn this hearing to either obtain further documentation, or to allow the documents filed today to be served, or to obtain considered summaries of argument. I can only do the best I can with what I have been provided. Both the father and Ms Harris are in the same position
To repeat, the father has filed a Notice of Appeal against the orders made by the trial judge on 10 February 2014. His grounds of appeal contained in that Notice of Appeal are these:
1.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 adequatly [sic] before her – eg: my concerns regarding the welfare of [the child] if the relocation to USA went ahead.
In considering the merits of that appeal, given that the result of a successful appeal would be that the child would not be permitted to relocate and live with the mother overseas, I can say that having read her Honour’s reasons for judgment delivered on 10 February 2014, it is difficult to see how the father can be successful in that appeal. I cannot exclude his prospects of success entirely, because I do not have the complete information before me today that a Full Court sitting and hearing his appeal would have. Doing the best I can though, on the basis of the reasons for judgment of the trial judge, and the alleged error complained of by the father, to repeat, it seems to me that his chances of success are minimal. In my view that has relevance to the appeal that I now have before me.
The next matter I refer to is this. The father of course has brought on this appeal urgently. He now realises the possible effect of this appeal being successful namely, the child not being permitted to relocate overseas and live with the mother at this point pending the hearing of the substantive appeal. More significantly though, the trial judge delivered her reasons for judgment in the substantive proceedings and made orders on 10 February 2014. One of the orders her Honour made of course was that the child is permitted to leave the Commonwealth of Australia on and after 12 March 2014 and live with the mother. Immediately the father was alerted to the fact that if he was going to do something about this he should do it before 12 March 2014, and frankly, well before then.
I raised this issue with the father and he tells me that the day after the delivery of judgment he went to see the lawyers that he had previously engaged but they were not prepared to act for him. They were the lawyers who the father either sacked or who indicated that they were not prepared to act for him part way through the hearing of the matter before Judge Small. He then went to a second set of lawyers but there were issues of cost, and he then went to a third set of lawyers but they refused to act for him. In the meantime, the father says he applied for legal aid but that was unsuccessful. Ultimately he filed the application seeking a stay himself, and that application was only filed on

6 March 2014.
In my view if the father was serious about this he would have filed an application seeking a stay well before 6 March 2014. He has ultimately done it himself, he is therefore capable of doing it himself, and for him to proffer an excuse that he was attempting to secure the services of a lawyer frankly does not impress me given the issue that the father was confronting. In the circumstance of the father not filing his application until 6 March 2014, for him to come to this court and seek an urgent appeal on the cusp of the mother and the child leaving Australia, equally concerns me.
The fact that the father did not file an application for a stay until 6 March 2014 needs to be put into context. Six March 2014 was a Thursday. The matter was heard urgently by the Federal Circuit Court on Friday 7 March 2014. There then followed a weekend and a Public Holiday and then there was only one business day left, namely today, before the child was able to leave the Commonwealth of Australia. That puts into sharp focus the father’s delay in filing an application seeking a stay.
The final matter I take into account is that the basis of the father’s appeal is that once the child leaves Australia he will not return. However, it is not apparent from her Honour’s reasons for judgment delivered on 10 February 2014 that that is the case. That has ramifications for not only the substantive appeal, but also the appeal before the court today.
Given all those factors, I am not able to find that the judge erred in dismissing the application for a stay, and I propose to dismiss the appeal.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 11 March 2014.

Associate:

Date: 14 March 2014