UYSAL & MARDINE

[2015] FamCAFC 52

FAMILY COURT OF AUSTRALIA

UYSAL & MARDINE [2015] FamCAFC 52

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant failed to file a summary of argument in time and the matter was listed for consideration of whether the appeal should be dismissed for non-compliance pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the father conceded that the appeal would be a fruitless exercise even if it did succeed – Appeal dismissed.

Family Law Rules 2004 (Cth) – r 22.45

APPELLANT: Mr Uysal

RESPONDENT: Ms Mardine

FILE NUMBER: DGC 37 of 2013

APPEAL NUMBER: SOA 17 of 2014

DATE DELIVERED: 5 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thackray, Murphy & Kent JJ

HEARING DATE: 5 March 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 10 February 2014

LOWER COURT MNC: [2013] FCCA 146

REPRESENTATION

APPELLANT: In person

RESPONDENT: No appearance

Orders

1. The appeal 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 17 of 2014
File Number: DGC 37 of 2013

Mr Uysal

Appellant

And

Ms Mardine

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

1. The father appealed against orders made by Judge Small in the Federal Circuit Court on 10 February 2014 in relation to the child X (“the child”), who was born in December 2012.  The orders permitted the child’s mother to relocate the child to the United States of America or, indeed, anywhere in the world that she chose.  The orders went on to permit the father to see the child on three occasions each year, for two weeks at a time, with such visits to be arranged by agreement with the mother and subject to supervision arrangements as specified by the mother. 

2. It is unnecessary to trace all that has occurred in relation to the father’s appeal, which was filed on 5 March 2014.  For present purposes, it is sufficient to say that the father acknowledges he failed to comply with an order made by the Appeals Registrar on 13 May 2014 for him to file his summary of argument, which is a necessary part of the appeal process.  There has been repeated correspondence from the Appeals Registrar to the father, informing him of his obligation to file the summary of argument, and alerting him to the consequences in the event that he failed to comply.

3. The father was given an opportunity to file an affidavit setting out the explanation for his non-compliance, but he did not file one.  However, he appeared before us today and claimed that he placed the matter in the hands of legal advisers, who failed to comply on his behalf.

4. Given that the father is self-represented, and given his explanation, it might have been appropriate for him to be granted an extension of time pursuant to r 22.45 of the Family Law Rules 2004 (Cth). However, the father very properly acknowledges that even if there were merit in his appeal, it would be a fruitless exercise to pursue it, because the child now lives overseas and is not amenable to the jurisdiction of this Court.

5. The father hopes to move closer to where the child is living, but he is having difficulty obtaining the necessary approval.  The father is also keen to obtain photographs of the child and have contact with him, but again accepts that he will have to pursue any legal avenues at a court closer to the child’s current place of residence.  In these circumstances, the father agrees that the appeal should be abandoned or dismissed.

6. In light of that concession, it is unnecessary to refer to the two grounds of appeal in detail, it being sufficient to say that they did not disclose anything to suggest the appeal was likely to succeed if it were pursued. 

7. For those reasons, I would propose that the appeal simply stand dismissed.   

Murphy J

1. I have nothing to add to the presiding judge’s comments.  With reference to the father’s appearance before us this morning, I agree with the order proposed by the presiding judge. 

Kent J

1. I agree with the orders and reasons stated by the presiding judge and have nothing further. 

Thackray J

1. Accordingly, the formal order of the Court is that the father’s appeal be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 5 March 2015, edited to correct grammatical errors and some infelicity of expression.

Associate:     

Date:              31 March 2015