FAMILY LAW – APPEAL AGAINST DISMISSAL OF APPLICATION FOR STAY – FINAL PARENTING ORDERS – where appeal against discretionary judgment - where father appealed trial Judge’s dismissal of his application for a stay of final parenting orders (“the substantive orders”) pending appeal – where parenting orders allowed Mother to have sole responsibility for the child and allowed her to relocate the child overseas - where father asserted that the grant of the stay is in the best interests of the child and that the Mother would not comply with the final parenting orders - whether refusal to grant stay would render the appeal nugatory – where trial Judge appropriately gave significant weight to the circumstances and best interests of the child and the effect of the Mother if a stay was granted – where the trial Judge did not rely on the undertakings by the mother as crucial to her determination – No error by trial Judge established - Appeal against refusal of stay dismissed
The appeal against Order 1 of the orders made by the Honourable Justice Moore on 17 March 2009 is dismissed.
The father pay the mother's costs of the stay appeal in the sum of $2,400.00.
Order 4 of the orders of the Honourable Justice Jordan made 12 March…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Friscioni & Friscioni [2009] FamCAFC 43
Case
[2009] FamCAFC 43
Decision Date
CaseChat Overview and Summary
The appeal in Friscioni & Friscioni was heard by the Family Court of Australia, involving a dispute between the parents of a child born in November 1998 regarding the child's international travel. The mother sought to prevent the child from being removed from Australia by having her name placed on the airport watch list at all points of international arrivals and departures. The father opposed this measure. The legal issues before the court included the validity of the mother's application to have the child's name placed on the airport watch list and the appropriateness of the father's application to adduce further evidence.
The court addressed these issues by dismissing the appeal against the initial order made by Justice Moore on 17 March 2009, which pertained to the airport watch list. The court found that the father should pay the mother's costs of the stay appeal, amounting to $2,400.00. The order placing the child's name on the airport watch list was discharged, effective from noon on 23 March 2009. Additionally, the mother's appeal filed on 18 March 2009 was to be listed for hearing before Justice Moore at a later date. The father's application filed on 19 March 2009 was reserved, and the court dismissed the application to adduce further evidence. The court's decisions reflected a careful consideration of the balance between the parents' rights and the best interests of the child.
Orders
Orders of the court
1.
The appeal against Order 1 of the orders made by the Honourable Justice Moore on 17 March 2009 is dismissed.
2.
The father pay the mother's costs of the stay appeal in the sum of $2,400.00.
3.
Order 4 of the orders of the Honourable Justice Jordan made 12 March 2009 placing the name of the child [the child] (a female child) born … November 1998 on the airport watch list at all points international arrivals and departures in Australia for the purpose of preventing removal of the said child from Australia is discharged on and from 12.00 noon, Monday, 23 March 2009.
4.
The mother’s application in an appeal filed 18 March 2009 is to be listed before the Honourable Justice Moore for hearing at a time and date to be notified to the parties by the Case Co-ordinator.
5.
The father’s application in an appeal filed 19 March 2009 is reserved.
19 March 2009
6.
The application by the Appellant to adduce further evidence be dismissed.