Collu and Rinaldo (Application For Interim Orders)

[2009] FamCAFC 164

FAMILY COURT OF AUSTRALIA

COLLU & RINALDO (APPLICATION FOR INTERIM ORDERS) [2009] FamCAFC 164

FAMILY LAW – APPEAL – PARENTING – Application for interim orders – Where the applicant sought orders changing the parenting arrangement for the period between the appeal hearing and delivery of the judgment – Where the appeal has been expedited – Where the current arrangement required the child to travel between Dubai and Sydney every month – Where both parties accepted that the current arrangement affects the child – Where the parties could not agree to consent interim orders – Where there was no further evidence before the Full Court – Application dismissed

APPELLANT: Ms Collu

RESPONDENT: Mr Rinaldo

FILE NUMBER: PAC 1204 of 2008

APPEAL NUMBER: EA 49 of 2009

DATE DELIVERED: 1 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: May, O’Ryan & Strickland JJ

HEARING DATE: 1 September 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 31 March 2009

LOWER COURT MNC: [2009] FamCA 461

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Curran

COUNSEL FOR THE RESPONDENT: Mr Foster

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. The oral application of the appellant is refused and the judgment in the appeal is reserved.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 49 of 2009
File Number: PAC 1204  of 2008

Ms Collu

Applicant

And

Mr Rinaldo

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

May J:

1. At the conclusion of the submissions in this appeal, an oral application was made by counsel for the mother.  The basis of the application is that until this court provides its judgment and makes orders in the appeal, we should make orders so that the current arrangements for the child be different from those that are currently in place. We were provided with a draft of the proposed interim orders. 

2. It needs to be understood that this is an appeal against an order made on 31 March of this year; the hearing of the appeal has been expedited.  An application was made for a stay of the orders and such an order was made.  The effect of that stay is that a previous order, made on 5 December 2008, is the present order.  Among others, paragraph 4 of that order provides:

   Thereafter the child shall live with the father for one month, then the mother for one month in a like manner.

3. Within that order there is reference to the child living with the mother in Dubai and the father in Sydney.  The basis for this oral application is that the child is finding the travel between the two countries stressful. It is an unsurprising submission in itself, and I don’t know that there is any real controversy about the undesirable effect on the child.  However, it is also submitted that the child is finding being separated from his mother stressful, a matter of course that to some extent goes to the heart of this appeal.  The parties have had some discussions, but it seems are unable to agree.

4. Having heard the submissions of Mr Foster, it is apparent that the issues surrounding this oral application are highly controversial and it could only possibly be resolved, in fairness to the parties, on some, albeit limited, evidence. To that extent, it is my view that such an oral application should not be heard by the Full Court.

O’Ryan J:

1. I agree with the reasons briefly given by the presiding judge, and what she proposes.  Could I add that I understand this to be an oral application seeking, in effect, a variation of orders of 15 May 2009 by way of a stay, of final parenting orders which are currently the subject of the appeal.

2. The effect of the orders of 15 May 2009 was to revive the orders of 5 December 2008, which the learned presiding judge referred to.  The concern I have about it is that the material that is relied upon is the material which was before the trial Judge hearing the substantive application, and there is nothing further being put to us as to what has transpired since 15 May 2009.  That said, I accept, and have some sympathy for the contention that the international travel is having an effect on the child, but the father has put a proposal about that, which, unfortunately, the parties cannot reach an accommodation about.

3. So, for the reasons, as I say, given by the learned presiding judge, and also the additional matters, I have reached the conclusion I have outlined.

Strickland J:

1. I agree with the reasons given by the presiding judge and the orders proposed and I have nothing further to add.

May J:

1. The orders of the court will be that the oral application of the appellant is refused and the judgment in the appeal is reserved.

I certify that the preceding seven (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justices May, O’Ryan and Strickland

Associate: 

Date: