Friscioni and Friscioni (No. 2)

[2009] FamCA 173

FAMILY COURT OF AUSTRALIA

FRISCIONI & FRISCIONI (NO. 2) [2009] FamCA 173

FAMILY LAW – INJUNCTIONS – Pending Stay application

APPLICANT: Mr Friscioni

RESPONDENT: Ms Friscioni

FILE NUMBER: CSC 445 of 2008

DATE DELIVERED: 12 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 12 March 2009

REPRESENTATION

THE APPLICANT: Applicant appears on his own behalf

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the Order permitting the Mother to relocate with the child to the Czech Republic be stayed until 5.00 pm on 17 March 2009 or earlier order.

2. That until 5.00 pm on 17 March 2009 or earlier order, the Mother and her servants and agents be restrained from taking or sending or attempting to take or send the child, K (a female child) born … November 1998, from Australia.

3. That the Marshal and all Officers of the Australian Federal Police and the Police Forces of the State and Territories are requested and authorised to give effect to these orders.

IT IS REQUESTED UNTIL FURTHER ORDER

1. That the Australian Federal Police place the name of the child (a female child) born … November 1998 on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the said child from Australia in breach of these orders.

IT IS FURTHER ORDERED

1. That the Father’s application for a stay and restraining orders be adjourned to be heard by Moore J on 17 March 2009.

2. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC445 of 2008

MR FRISCIONI

Applicant

And

MS FRISCIONI

Respondent

REASONS FOR JUDGMENT

1. Not without some difficulty, I am persuaded that I should restrain the mother. 

2. I should record that on 2 February 2009, after a four day trial, her Honour Justice Moore made orders in the Cairns Court which permitted the mother to relocate from Australia to Czechoslovakia, together with the parties' daughter, K, born in November 1998.

3. Her Honour did not place any time limit to, or other conditions upon, the mother's capacity to relocate and, as a consequence, from 2 February 2009 the mother has been entitled to remove herself and the child from Australia to Czechoslovakia. 

4. It appears that the mother and child have remained at T in far north Queensland, which has been the principal place of residence of the parties and the child since shortly after her birth.  The father has been spending some time with the child. The mother had previously indicated an intention to relocate to Czechoslovakia in April.

5. On 2 March 2009, the father lodged a notice of appeal and, on the same date or thereabouts, he lodged an application for stay which has been listed for hearing before Justice Moore on 17 March 2009.

   RECORDED  :  NOT TRANSCRIBED

6. The father served the notice of appeal upon the mother and, on the evidence he has given today, it would appear that the mother has reacted by removing the child from T and from the school without notice to the father and without giving the father the opportunity to say goodbye to his daughter, and the father fears, upon some reasonable basis, that the mother may have brought forward her plans to move to Czechoslovakia. 

7. He now seeks orders designed to restrain the mother from moving, pending the hearing of his appeal. 

8. This matter throws up a number of competing considerations. 

9. Firstly, under the existing orders, the mother is, indeed, permitted to relocate with her daughter at this time. 

10. Secondly, the father has lodged an appeal.  If he is successful in that appeal, that success may be undermined if the mother has already relocated.

11. Thirdly, I think it is fair to say, as a general proposition, in relocation cases Courts are inclined to stay the operation of those types of orders pending an appeal.  Unfortunately, the father’s stay application is not to be heard until the 17th. 

12. Fourthly, the hearing is only some five days hence and, in the context of this child having resided in T virtually all of her life, delaying her departure, notwithstanding the terms of the orders made by the trial Judge, by some five days, is not a significant impost and not a significant delay.

13. I propose to grant the order and adjourn this application for further hearing to Justice Moore on the 17th, so she can consider this further in the context of considering the stay application. 

    RECORDED  :  NOT TRANSCRIBED

14. The father understands that there may be prospects that costs have already been incurred and that, if Justice Moore refuses to extend this restraining order, her Honour may order that the mother be compensated for any expenses that have been lost, and the father has indicated he is prepared to discharge an obligation to meet those costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  16 March 2009