Friscioni & Friscioni - [2009] FamCAFC 43

FAMILY COURT OF AUSTRALIA

FRISCIONI & FRISCIONI

[2009] FamCAFC 43

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

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Clemett and Clemett (1981) FLC 91-013
EJK and TSL (No 2) (2006) 35 Fam LR 590; [2006] FamCA 806
Trahn and Long (Chen) (No 2) [2008] FamCAFC 194
House v The King (1936) 55 CLR 499
Kelly and Kelly (1981) FLC 91-007
Jennings Construction Ltd v Burgundy Royale Invetsments Pty Ltd [No 1] (1986) 161 CLR 681
De Lewinski v Director General, NSW (1996) FLC 92-678
Carlin and Carlin (1977) FLC 90-320
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
EJK and TSL (No. 2) (2006) 35 Fam LR 590
K and B (2006) FLC 93-288
Re F: Litigants in person guidelines (2001) FLC 93-072
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081
EJK and TSL (2006) 35 Fam LR 590

APPELLANT:

MR FRISCIONI

RESPONDENT:

MS FRISCIONI

FILE NUMBER:

CSC

445

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

23 March 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland, O'Ryan and Le Poer Trench JJ

HEARING DATE:

19 March 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 March 2009

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Father in person

COUNSEL FOR THE RESPONDENT:

Ms Reaston, solicitor

SOLICITOR FOR THE RESPONDENT:

O’Reilly Stevens Bovey

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Benson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Lehmann Featherstone

ORDERS

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 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.
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.
The father’s application in an appeal filed 19 March 2009 is reserved.

19 March 2009

The application by the Appellant to adduce further evidence be dismissed.

23 March 2009

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)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: NA 20 of 2009
File Number: CSC 445 of 2008

MR FRISCIONI

Appellant

And

MS FRISCIONI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Notice of Appeal filed on 18 March 2009, Mr Friscioni (“the Father”) sought to appeal orders made by Moore J on 17 March 2009. Her Honour made orders dismissing an application for a stay of earlier orders her Honour made on 2 February 2009 at the conclusion of defended parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the Father and his former wife, Ms Friscioni (“the Mother”), pending an appeal.
The parenting proceedings involved competing applications in respect of the parties’ only child, a daughter (“the child”) born in November 1998. The child is presently 10 years old, and since the separation she has lived primarily with her mother and has spent time regularly with her father.
In the parenting proceedings her Honour published her reasons and made comprehensive parenting orders on 2 February 2009 (“the substantive orders”). The substantive parenting orders are:
1.The mother is to have sole parental responsibility for [the child] born […] November 1998
2.The mother is permitted to relocate with the child to the Czech Republic.
3.The child is to live with her mother.
4.The child is to spend time with her father as follows:
a. for a 6 week period in each year,
i. such time to occur in Australia, being [in T] or such other place nominated by the father, unless specifically agreed otherwise between the parents;
ii. such time to coincide with the child's summer holiday;
iii. such time is not to include any travel time to/from Czech Republic;
iv. the mother or a responsible adult nominated by her is to be responsible for delivering the child and collecting her from the Cairns airport or other destination in Australia agreed by the parents; and
v. the costs of travel for the child and an accompanying adult is to be shared equally between the parents.
b. for a period of up to 2 weeks in each year, with such time:
i. to coincide with the child's Christmas holiday period, and
ii. to include Christmas day in each alternate year;
iii. to occur in the Czech Republic or in Italy as nominated by the father by notice in writing no later than two (2) months prior to the commencement of the period;
iv. the father is to be responsible for collecting and returning the child from her mother’s residence in the Czech Republic.
c. for a period of up to 3 weeks on no more than 2 occasions each year in the child's home town in the Czech Republic provided the father:
i. gives the mother at least one (1) month’s notice in writing of his intention to do so; and
ii. ensures the child attends school and any extra curricular activities in which she is enrolled while in his care;
d. during any other time as agreed between the parents.
4.The father may communicate with the child as follows:
a. by telephone, email, webcam, skype, or by ordinary mail at all reasonable times;
b. the mother is to be responsible to initiate one phone or skype or webcam communication to the father each week;
c. the mother is to ensure the child is provided privacy during any communication with her father;
5.The mother to facilitate and encourage all reasonable communication between the child and her paternal grandmother.
6.The mother is have reasonable communication with the child during any time that she is in her father’s care and the father is to facilitate the child contacting her mother at any time she expresses a wish to do so.
7.The mother is to keep the father informed, in a timely manner, of all major decisions made about the child including education, extra curricular activities and health related matters.
8.The mother is to provide the father with copies of all school reports and other documentation relating to the child's progress at school and/or in extra curricular activities.
9.Each parent is to keep the other informed of their address and current contact details including telephone numbers, email addresses, webcam or skype.
10.The father is restrained from drinking alcohol to excess or from being under the influence of alcohol or smoking marijuana while the child is in his care.
Her Honour also made an order for settlement of property. The hearing took place before her Honour on 4, 5 and 12 December 2008 and 12 January 2009 in the Cairns Registry of the Family Court.
On 2 March 2009 the Father filed a Notice of Appeal against her Honour’s substantive orders. The orders he seeks in lieu are for shared parental responsibility, the Mother not be at liberty to relocate with the child to the Czech Republic and that the child continue to live in T in far north Queensland.
On 10 March 2009 the Father filed the application seeking the stay of the orders of 2 February 2009. On 17 March 2009 Moore J heard the application by the Father for a stay. The Mother sought the dismissal of the stay application subject to an undertaking she was prepared to give. The Independent Children’s Lawyer also sought that it be dismissed and that the Mother be permitted to leave for the Czech Republic with the child. Later that day her Honour made the following orders:
1.Subject to the undertaking of the mother to the Court given in these terms:
‘I will be bound over to appear should the Court of Appeal uphold the Appeal filed by the father on the 2^nd of March 2009 and served on me on the 10^th of March 2009. I will undertake to return [the child] (born […] November 1998) as ordered by this Honourable Court’
and subject further to orders 2 and 3 hereof, the application of the father for a stay of the orders made 2 February 2009 as they relate to parental responsibility and to permission for the mother to relocate to the Czech Republic with their daughter [the child] born […] November 1998 is dismissed.
2.If the father’s appeal filed 2 March 2009 [or as later amended] is successful and the mother is so required by orders of this Court, she is to return the child to Australia within the time stipulated by those orders.
3.Order 2 of the orders made 2 February 2009, permitting the mother to relocate to the Czech Republic with [the child], is temporarily stayed until 12 noon Monday 23 March 2009 for the purpose of permitting the father to lodge an appeal from these orders no later than 4pm Wednesday 18 March 2009 provided that if the father notifies the mother in writing earlier of his intention not to appeal from these orders then the temporary stay imposed hereby is discharged forthwith.
4.The mother’s application for costs is adjourned to be relisted upon the application of the mother pending the outcome of any appeal by the father from these orders.
Her Honour then delivered reasons for judgment.
On 18 March 2009 the Father filed a Notice of Appeal against her Honour’s orders made on 17 March 2009. On the same day the Northern Appeals Registrar listed the stay appeal for hearing on an urgent basis at 12:00 pm on 19 March 2009.
On 19 March 2009 we made the following orders:
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.
On dismissing the appeal we did not accept that the trial Judge had erred in the exercise of her discretion in refusing the stay of her orders, and said that we would publish reasons for our decision shortly. These are our reasons.

BACKGROUND HISTORY

Some of the relevant history appears in her Honours reasons given on 2 February 2009. The Mother, who her Honour said was aged 34 years, was born in the Czech Republic. She came to Australia in 1997 with a view to staying temporarily while she studied English. The Father, who her Honour said was aged 40 years, was born in Italy and came to Australia as a young child with his family who settled in Sydney. The parties met in Sydney in 1997 while working in the same restaurant. The Mother fell pregnant and “their relationship took a different turn”.
In May 1998 the parties travelled to L in the Czech Republic and they married there on 1 August 1998. Her Honour described L as the Mother’s “home town”. The parties returned to Australia shortly after the birth of the child in November 1998. The parties then went to live in T in far north Queensland. The Father’s mother, who was living there, had arranged employment for him. The parties lived there “for a decade”.
In that time the Mother and the child returned each year to the Czech Republic for a number of weeks and they lived in L for a year in 2006/07 when the Mother worked and the child attended school. The Father either accompanied the Mother and the child or joined them for part of the time during the annual visits. Her Honour said that as for the long stay in 2006/07, the Father accompanied the Mother and the child initially but he returned to T for a few months before again joining them in L. The parties purchased an apartment in L during this time. They returned to Australia in July 2007 but they separated shortly afterwards on 31 October 2007.
The trial Judge said that after the separation the parties agreed about the child’s arrangements “to a point – she has lived primarily with her mother and has spent time regularly with her father”.
In July 2008 the Mother instituted proceedings seeking to relocate with the child to the Czech Republic and at the same time she sought interim orders including an order permitting her to travel with the child to the Czech Republic for a holiday. Interim orders were made by consent on 11 August 2008 providing for the child to live with her mother and spend two days per week and other times as agreed with her father.
Her Honour said that the child has spent additional time with her father after school and the Mother was permitted to travel with the child to the Czech Republic which she did between 2 September and 4 October 2008. On return to Australia the Mother was to lodge the child’s passport with the Court and she did so. The passport was due to expire in February 2009.
On 12 January 2009 the hearing concluded and judgment was reserved. On 2 February 2009 final orders were made by Moore J. Her Honour said that discussions between the parents about the judgment occurred. Her Honour said that she disregarded what was said of the detail in the Mother’s affidavit and the Father’s statement because she indicated earlier that she would not take into account in making her decision disputed issues about the supposed conduct of either party but only the accepted chronology of developments.
On 10 February 2009 the Mother asked the Father to sign the form for the child’s passport to be renewed. He signed it the next day.
On 23 February 2009 the Mother booked the flights for her and the child to return to the Czech Republic and they were scheduled to leave on 7 April 2009. The departure date was to allow time for the child’s passport to arrive.
On 2 March 2009 the Father filed the Notice of Appeal against the parenting orders. In the Notice of appeal there are seven grounds of appeal namely:
1. THAT HER HONOURS [sic] FINDINGS OF FACT IN PARA 29 AND 42 THAT [MR FRISCIONI] ENGAGES IN EXCESSIVE MARIJUANA USE IS NOT SUPPORTED BY EVIDENCE, AND WAS CONTRADICTED IN EVIDENCE BY A NEGATIVE SUPERVISED DRUG TEST, A TEST INSTITUTE [sic] BY THE COURT.
2. THAT THE JUDGE ERRED IN HER FINDING OF FACT IN PARAS 11, 109 & 111, THAT IN AFFECT [sic] REJECTED THE FINDINGS OF THE FAMILY REPORT OF THE COURT APPOINTED COUNSELLOR.
3. THAT HER HONOUR ERRED IN LAW AND FACT BY ACCEPTING DR [S’S] EVIDENCE IN PARA 34 CONCERNING [MR FRISCIONI’S] ALCOHOL AND MARIJUANA USAGE, WHEN THAT EVIDENCE IS NOT SUPPORTED IN FACT AND WAS GIVEN WITHOUT THE PERMISSION OF [MR FRISCIONI], IN VIOLATION OF PRIVELEGE [sic].
4. THAT THE JUDGE ERRED IN FACT IN PARA 25 BY GIVING IMPLICIT SUPPORT FOR A FINDING THAT EDUCATION WAS BELOW STANDARD [IN T] FOR A NON INDIGENOUS STUDENT.
5. THAT THE JUDGE ERRED IN A FINDING OF FACT IN PARA 30 THAT [MR FRISCIONI] SMOKED MARIJUANA REGUALY [sic] WITH HIS MOTHER AND OTHERS, IN PARTICULAR THAT HIS MOTHER GAVE UNCONTESTED SWORN EVIDENCE IN THE TRIAL THAT SHE HAD NOT SMOKED MARIJUANA IN A YEAR, WICH [sic] THE JUDGE FAILED TO NOTE OR CONSIDER IN HER JUDGEMENT.
6. AS A RESULT OF HER INCORRECT FINDINGS OF FACT AS SPECIFIED IN APPEAL POINT 5, HER HONOUR IN PARA20 INCORRECTLY EXCESIED [sic] HER DISCRETION WHEN CONSIDERING THE MOTHER AND [MR FRISCIONI] SHARING [a friend’s] ACCOMODATION [sic].
7. THAT HER HONOUR ERRED IN FACT IN PARA 56 WHEN SHE WAS DISMISSIVE OF [MR FRISCIONI’S] SWORN EVIDENCE AS TO HIS PREPAREDNESS TO RELOCATE TO CAIRNS FOR THE BENIFET [sic] OF [K], AND FURTHER MORE [sic] HAD NO BASIS OF FACT IN EITHER EVIDENCE OR HER DISCRETION IN FINDING THAT [MR FRISCIONI] SAW HIS FUTURE AS [IN T] WICH [sic] PROVIDED A LIFESTYLE HE ENJOYED.
On 9 March 2009 the Mother received the child’s passport and planned to bring forward her departure scheduled for early April. Her Honour observed that by then the appeal period had expired.
On 10 March 2009 the Father served the Notice of Appeal which had been filed on 2 March 2009.
On 10 March 2009 the Father filed the application seeking a stay of the parenting orders. It was accompanied by an affidavit he swore on 9 March 2009. Her Honour said that notified of the application, she directed that it be listed for hearing at 10:00 am on 17 March 2009. She said that in doing so, she considered a week sufficient time for the Mother’s solicitor to take instructions and the Independent Children’s Lawyer to consider the issue.
On 11 March 2009 the Mother rescheduled her flight to depart from Cairns on 13 March 2009.
On 12 March 2009 the Mother left T with the child and made her way to Cairns. She did so after notifying the police in T. Her Honour said that the Father was aggrieved the Mother did so without allowing the child to say goodbye to him or her grandmother or without notifying him she had been taken from school and was on her way to Cairns.
On 12 March 2009 the Father arranged to have listed in the Brisbane Registry an oral application which was heard ex parte by Jordan J. Her Honour said that becoming aware of her departure from T the Father brought the oral application. The orders of Jordan J were as follows:
IT IS ORDERED UNTIL FURTHER ORDER
1That 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.
2That 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, [the child] (a female child) born […] November 1998, from Australia.
3That 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
4That the Australian Federal Police place the name of , [the child] (a female child) born […] November 2008 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
5That the Father’s application for a stay and restraining orders be adjourned to be heard by Moore J on 17 March 2009.
6That 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.

Her Honour said that it appeared the order was based on concerns or suspicions that the Mother was in the throes of leaving Australia which was the case. The Mother left T with the child on 12 March 2009 with the knowledge of the police and was assisted in her flight arrangements in Cairns on 13 March 2009 by the police. However on 13 March 2007 at Cairns International Airport the Mother and the child were prevented from boarding the flight by reason of the ex parte orders of 12 March 2009. The solicitors for the Mother and the Independent Children’s Lawyer only became aware of the ex parte orders after the events at the airport. Her Honour said that the Mother had no notice until becoming aware of the orders of 12 March 2009 that the Father had even filed a stay application or there had been an ex parte hearing. Her Honour said that it was only after the solicitors for the Mother and the Independent Children’s Lawyer received a copy of the orders of 12 March 2009 in due course that they became aware that the Father’s application for a stay had been listed before her Honour on 17 March 2009.
On 16 March 2009 the Mother swore an affidavit. On 16 March 2009 a further affidavit was sworn by the Mother. On 16 March 2009 an affidavit was sworn by Bevlee Reaston, who is the Mother’s solicitor.
On 16 March 2009 the Mother filed an Undertaking in which she undertook to the Court that: “I will be bound over to appear should the Court of Appeal uphold the Appeal filed by the father on the 2^nd of March 2009 and served on me on the 10^th of March 2009. I will undertake to return [the child] (born […] November 2008) as Ordered by this Honourable Court”.
On 16 March 2007 the Father received by email the Mother’s affidavit of 16 March 2009 and the affidavit of the Mother’s solicitor.
On 17 March 2009 the matter was listed before Moore J. When the hearing commenced the legal representatives for the Mother and the Independent Children’s Lawyer had still not received a copy of the application of the Father filed on 10 March 2009 nor his affidavit of 9 March 2009. Her Honour then adjourned the hearing to give the Father the opportunity to send copies of the application and affidavit to the legal representatives for the Mother and the Independent Children’s Lawyer. At the same time the Father faxed a copy of a statement he wanted to make to the Court which he later adopted as his evidence (Exhibit 1) and relied on for the most part as his submission.
As to why the Father did not serve the stay application and supporting affidavit on 10 March 2009 when it was filed, her Honour observed that the Father said that he had received advice not to serve an unsealed copy of the documents which he only received from the Court in Cairns by post on 16 March 2009 and that “[h]e bolsters that by reference to an article in the local newspaper about the slowness of the post [in T]”.
When the hearing resumed on 17 March 2009 the Father affirmed that the facts stated in the written statement he had prepared were correct (Exhibit 1). He also testified as to why the Notice of Appeal filed on 2 March 2009 was not served until 10 March 2009 and why the application filed on 10 March 2009 was not served before the commencement of the hearing on 17 March 2009.
On 18 March 2009 the Husband filed the Notice of Appeal against the orders of 17 March 2009.
On 19 March 2009 an application was filed by the Father in which he sought assistance from the Court in relation to the provision of transcripts and other matters. The Father swore an affidavit on the same day in which he gave evidence of a telephone conversation he had with the child on 18 March 2009 and in particular what he contends the child said during the conversation. During discussion before us the Father said that he would seek to rely upon this evidence.

THE REASONS OF THE TRIAL JUDGE

At the outset in her reasons Moore J said that: “It may be worth noting that that [sic] while [the Father] represents himself here and he was assisted with the property component of the hearing by Mr [ML], who described himself as once but no longer a solicitor, he was represented at the parenting component of the proceedings by solicitor and by counsel, Ms Willis”. The Father appeared before us without legal representation.
Her Honour said that: “Consistent with authority a stay is not ordered as a matter of right – a ground for it must be established - and the discretion to grant the relief or not will depend on the circumstances of the particular case”. Her Honour said that the approach to the question, however, is well settled and, so far as the stay of orders about children’s arrangements are concerned, it is to be found in the frequently cited decision of the Full Court (Nygh, Dovey and Ross-Jones JJ) in Clemett and Clemett (1981) FLC 91-013. Her Honour set out a passage from the reasons of Nygh J at 76,175. Her Honour referred to other authorities namely EJK and TSL (No 2) (2006) 35 Fam LR 590; [2006] FamCA 806 per the Full Court [Coleman, May and Boland JJ]; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332 and Trahn and Long (No 2) [2008] FamCAFC 194 per the Full Court (Warnick, Boland and Dessau JJ).
Her Honour set out [at para 13] what she described as “the undisputed chronology”. Her Honour then dealt with the submissions and evidence of the Father. She said [at para 14] that “[a]s for submissions” the Father relied on his statement (Exhibit 1) which he adopted as his evidence and that the Father pointed out that since the judgment there had been no allegation by the Mother that he had “engaged in threats, intimidation or domestic violence; rather he has totally focussed on being as good a father as he can” to the child and “sought justice by all lawful means”. Her Honour said that the “latter is correct but the rest of this is in dispute”. However, her Honour said that she had put aside argument about what has or has not occurred since 2 February 2009. It will be recalled that when recounting the “undisputed chronology” her Honour had said that she disregarded what was said in the Mother’s affidavit and the Father’s statement because she would not take into account in making her decision disputed issues about the supposed conduct of either party. Her Honour then observed that the Father was aggrieved at the Mother’s departure without allowing the child to say goodbye and that the Mother took the child without the Father’s prior knowledge or preparation. Her Honour said that “[h]e says he decided to act completely appropriately when he became aware of this: ‘I did not indulge in alcohol or anything else and made no attempt to go to [a neighbouring location]. Rather I went to the Federal Police who indicated I could do nothing without a court order...’” (emphasis in original) and that he recounted the steps he took to bring the oral application heard by Jordan J.
Her Honour referred to some of what the Father said in his affidavit and in particular she said [at para 17]:
…His affidavit continues to state that if the Full Court sees merit in his appeal, the effects on [the child] if a stay is not granted would be ‘horrendous’ and she would be in the ‘hideous’ position of leaving [T] in April having undergone the trauma of saying goodbye to her father and grandmother, to her friends in school, and to the only community she has known in reality over a substantial period of her life. Her trauma would be magnified if the Full Court were to order her return to Australia. On the other hand, if a stay is granted and she does remain living [in T] until an appeal on an urgent basis is heard, the possibility of that greater uncertainty and trauma would be greatly diminished. (emphasis in original).
Her Honour then [at para 18] described five “points” that were submitted on behalf of the Mother to support the refusal of the stay and that the Mother “not be held to await the outcome of the appeal”.
Her Honour then [at para 19] described six matters that were submitted on behalf of the Independent Children’s Lawyer.
Then under the heading of “Conclusion” her Honour dealt with a number of the considerations that were referred to in the authorities that she had earlier cited. Her Honour [at para 20] first dealt with “the merits” of the Father’s appeal. Her Honour set out in full the seven grounds of appeal in the Notice of Appeal and said:
21.Of course shortcomings can become apparent when Reasons for a decision are revisited with grounds of appeal in hand. But it is difficult to accept that is the case in this instance. The grounds cite errors of fact save for an alleged error of law related to the evidence of Dr [S], yet on a reconsideration of the Judgment I am unable to accept there is any substance in the grounds, including any error about the use made of the evidence of Dr [S]. In other words, on matching the grounds with the paragraphs cited and my knowledge of the evidence, I am unable to find the appeal is based on substantial grounds, at least as the grounds are presently drafted.
Her Honour then dealt with what she simply described as “bona fides” and said that:
22. …this is not necessarily a straightforward consideration since it invariably relies on inference. If inference could be drawn about lack of bona fides from the view that the appeal is without substantial grounds, then it could be drawn here and the appeal seen merely as a delay tactic. All the same, there are Mr [Friscioni’s] views about the result and I can see no reason to doubt that he genuinely wishes to prevent the relocation, to succeed in his appeal, and to have [the chld] remain living [at T] - consistent with the case put through his counsel at the hearing. It would be hard to say, therefore, that his bona fides in bringing the appeal are suspect.
The next matter her Honour considered [at para 23] was whether there had “been a delay in filing the appeal or even in applying for the stay?” Her Honour said:
23.…Mr [Friscioni] did not lodge his appeal until the very end of the appeal period but he says there was delay in getting a response to his application for Legal Aid which was refused. He did not lodge his stay application at the same time he filed his appeal; it was lodged eight days later. At no time did he notify the mother or her legal representatives or the ICL of the stay application and it was not served until the direction to do so today. Apart from general reference to advice about not serving an unsealed copy of documents filed and the slowness of the post, no other explanation is forthcoming. Some allowance can be made for Mr [Friscioni] representing himself but there are others to consider as well.
Her Honour then considered [at para 24] “the time when the appeal is likely to be heard”. Her Honour referred to what the Father said in his affidavit to the appeal “being heard on an ‘urgent’ basis” and said:
24.…Yet he has taken no step to seek expedition of his appeal, he refers to 30 March as being a date set for the settling of appeal books, and the lack of payment of child support [though meeting [the child’s] costs when in his care] is hardly grounds for confidence that he will be in a position financially to prosecute his appeal, whether diligently or at all. It is accepted that the business of the Full Court is such that there may be many months delay between the filing and hearing of an appeal, but there are cases that fall outside the norm and expedition can be achieved in an appropriate case. Whether this case would be seen as worthy of that and whether Mr [Friscioni] could prepare for an expedited hearing is a matter for the Full Court and as he has yet made no application to that effect the hearing of the appeal must be seen as distant.
Her Honour then considered [at para 25] the effect on the Mother of granting a stay of the orders and said:
25.Whatever the duration, one effect of the grant of the stay would be to impose on the mother – and by implication on [the child] - considerable hardship since she is effectively without accommodation in Cairns where she has been since 13 March, she has given up her employment [in T] where there are notorious problems with accommodation, and [the child] is not attending school while this process goes on. In the meantime, where are they to go and how is she to support herself and [the child]? This is a hardship which is bound to continue while her present circumstances continue as they are and will continue if the stay is granted. Mr [Friscioni] puts no proposal to address any of it.
Her Honour [at para 26] dealt with whether the circumstances of the child were satisfactory and said:
26.…Not at present, obviously, since her current circumstances are precarious for the reasons outlined. Were they satisfactory prior to the orders permitting relocation? In one sense the answer is in the affirmative, and yet the balance of relevant considerations led to the judgment that her interests would be better served by accompanying her mother to the Czech Republic.
Her Honour then considered [at para 27] whether the effect of refusal to grant the stay would “render the appeal nugatory or make it impossible or impracticable to restore the position”. In relation to this matter her Honour said that: “There cannot be an overriding obligation to stay a relocation order when considering the effect of refusal of a stay - so as to prevent the appeal being rendered nugatory – because that would make the grant of a stay a foregone conclusion in those situations”. Her Honour described the undertaking that the Mother had given to return the child if ordered and said:
28.But how effective would that be unless it is enforceable in the Czech Republic, even if confidence has been expressed in Mrs [Friscioni] honouring her commitment? By the same token, rather than limiting it to her undertaking, if there are specific orders of this Court providing for her to return to Australia with [the child] in the event the appeal is successful, it seems to me that her failure to do so would enable Mr [Friscioni] to have recourse to the machinery of the Hague Convention – as he does now about [the child’s] periodic visits to Australia – since the Czech Republic is a signatory to the Convention. He would have then, as he does now, a right of custody and her withholding would be a wrongful retention.
Her Honour then dealt with [at para 29] what she described as “[a]nother consideration” and said that it:
29.…revolves around the particular circumstances of this particular child. Now over 10 years of age, she has been brought up for the most part [in T]. But another essential part of her history is that she is a bi-lingual and bi-cultural child who has spent extended periods of time every year with her mother living in the Czech Republic and more recently she spent an entire year there attending school and living in the environment her mother proposes for her on their return. It is not new or different; it is entirely familiar. Refusing the stay therefore would not impose upon her a change that she has not been making all of her life by moving between [T] and [L], her mother’s home town.
Her Honour said [at para 30] that “[a]part from these matters” she agreed with and adopted the submissions put by the Independent Children’s Lawyer as to the likely effect on the child “of continuing the current situation and the ongoing uncertainty she would be required to endure if she is not permitted to leave for Prague as planned”.
Her Honour concluded [at para 31] that “When it is all considered and weighed…it is my view that the stay should be refused” and said:
…it is recognised that there are factors weighing in favour of granting it. [The Father] can be directed to put the matter before the Full Court and seek expedition of his appeal as a condition of the grant of the stay and he can also be directed to prosecute his appeal expeditiously. Also it may be the case, contrary to my own view of it, that the appeal may be seen as having some merit. It may even be that the scenario I mentioned of orders of this Court to support the undertaking of the mother to return the child to Australia if the appeal is successful has shortcomings by reason of the reliance on the wrongful retention provisions of the Hague Convention if there were the benefit of argument about it. On the other hand, a stay is not provided for the asking, a proper basis must be made out and in my judgment this case falls short of it. More to the point, the child’s present circumstances are not satisfactory but are beset by uncertainty which in part has been brought about by delay and lack of timeliness in bringing and prosecuting the stay application. Nor can the child’s circumstances be seen as satisfactory back [in T] since there is no suggestion there is either accommodation or employment for the mother as she awaits the hearing of the appeal and these issues are not addressed by any proposal to see them remedied. The weight of the balance falls in the direction of permitting the mother to leave with [the child], to accept her undertaking and to support that with orders to that effect. In my view this would be the best arrangement in the circumstances for this child.
Although it is not relevant to what we have to consider her Honour then described a discussion she had with the Father about the possibility of refusal of his application and that she told him that if he wanted to appeal the refusal then arrangements could be put in place to bring his appeal before a Judge of the Appeal Division at very short notice. Her Honour also said that to enable the Father to exercise that right, the Mother’s departure would have to be stayed for some limited period, which her Honour proposed be six days. Her Honour said that the Mother’s departure would be stayed until Monday 23 March at 12 noon. Her Honour said that it assumed, without knowing it to be so, that the Mother and the child could be provided for in Cairns while the process was underway. Her Honour said that it was unsatisfactory, but she could see no alternative but to provide the Father with the opportunity to appeal the refusal. Her Honour said that “the mother and child could not be put through the same circumstances they encountered at the airport on the 13^th. It has to be clear”.
Her Honour then dealt with costs and said that the Father did not address costs raised by the solicitor for the Mother and that she considered “it fair to postpone any consideration of costs until after this primary issue is resolved. The mother can have it relisted at that time”.

RELEVANT PRINCIPLES

This is an appeal against a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision. The limits on interference by an appellant court with such a judgment are well established in the authorities. It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome. It must be established that there has been some error made in exercising the discretion. It may be shown that there has not been a proper exercise of judicial discretion if in making the decision the primary judge acted upon a wrong principle; was guided or affected by extraneous or irrelevant matters, was mistaken as to the facts, did not take into account some material consideration or gave inadequate weight to relevant considerations. It may not appear how the result embodied in the order was reached, but if upon the facts the result is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise the judicial discretion: House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ) at 504-5.
There can be no stay of proceedings or the enforcement of a decree pending an appeal unless an order is made to the contrary and the mere filing of an appeal is not sufficient to ground a stay. This recognises that the successful litigant should not be deprived of the benefit of the litigation unless it is appropriate: Kelly and Kelly (1981) FLC 91-007 per Fogarty J. Thus the making of an order for a stay is wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case. The onus of establishing a proper basis for a stay is on the applicant for the stay. Factors that may be taken into account in exercising the discretion are well settled and include what has been described as a “substantial factor” Trahn and Long (No 2) (supra) namely whether there is a real risk that to deny a stay would render a successful appeal nugatory or would make it impossible or impractical to restore the situation. However the hardship that would be suffered by an unsuccessful applicant for stay must be weighed against the hardship that would otherwise be suffered by the unsuccessful respondent to the application. In Jennings Construction Ltd v Burgundy Royale Invetsments Pty Ltd [No 1] (1986) 161 CLR 681 Brennan J at 685 included as factors relevant to take into account “whether the grant of a stay will cause loss to the respondent; and …where the balance of convenience lies”: see also De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 per Gummow J. Other considerations are the grounds and merits of the appeal, any undue delay between the time the original order was made and the filing of the application for a stay; the bona fides of the applicant for the stay and the length of time it will take for the appeal to be heard: Carlin and Carlin (1977) FLC 90-320; Kelly v Kelly (supra); Clemett and Clemett (supra); Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Jennings Construction Ltd v Burgundy Royale Invetsments Pty Ltd [No 1] (supra); De Lewinski v Director General, New South Wales Department of Community Services (supra); and JRN & KEN v IEG & BLG (supra). Some of the factors have been variously expressed. For example, in Clemett Nygh J identified as a factor whether the appeal was not a mere delaying tactic. In Trahn and Long (No 2) in relation to consideration of the merits of the appeal the Full Court described it as “some preliminary assessment of the strength of the proposed appeal-whether the appellant has an arguable case”: see also JRN & KEN v IEG & BLG (supra) per Kirby J at 1332.

In cases where a stay is sought of parenting orders pending an appeal against those orders it has long been recognised that there are other factors that may be relevant. This was recognised by Kirby J in JRN & KEN v IEG & BLG (supra) who said at 1332: “In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests”. In other words it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) (supra) per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ).
In Clemett and Clemett (supra) Nygh J said at 76,175:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
In Trahn and Long (No 2) (supra) the Full Court included as “principles” the following:
· the desirability of limiting the frequency of any change in a child’s living arrangements may support the granting of a stay for a short period of time; and
· the best interests of the child the subject of the proceedings.
It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.

APPLICATION TO ADDUCE FURTHER EVIDENCE

We said in discussion that we would reserve our consideration of the oral application by the Father to put before us the evidence of the conversation he had with the child on 18 March 2009. The evidence related to a matter that occurred after the hearing before Moore J. The application was opposed by the Mother and the Independent Children’s Lawyer.
We propose to dismiss the application. The Father has not adequately demonstrated the relevance of the evidence to the issues that we are being asked to determine. It is also not uncontentious evidence. In the result, in our view, the only way that justice could be achieved is to dismiss the application.

GROUNDS OF APPEAL

In the Notice of Appeal filed on 18 March 2009 the following is stated to be the grounds of appeal:
1. IN THE EVENT OF A FULL COURT BEING MERIT IN THE MATTER I HAVE DEPOSE [sic] TO, THE AFFECT [sic] OF [THE CHILD] (THE CHILD) IN AN ABSENCE OF A STAY OF JUDGMENT WOULD BE HORRENDOUS. [THE CHILD] WOULD BE IN A POSITION OF LEAVING AUSTRALIA AND SAYING GOODBYE TO FAMILY AND THE ONLY COMMUNITY THAT SHE HAS KNOWN IN REALITY OVER A SUBSTANTIAL PERIOD OF TIME, HER TRAUMA WOULD BE MAGNIFIED MANIFOLD MANY TIMES IF THE FULL COURT WERE TO ORDER HER RELOCATION FROM CZECH REPUBLIC TO AUSTRALIA.
FIRST GROUND OF APPEAL
IN THE EVENT OF THE FULL COURT SEEING MERIT IN THE MATTER, I HAVE DEPOSED TO EFFECT OF [THE CHILD] (THE CHILD) IN THE ABSENCE OF STAY OF JUDGMENT WOULD BE TRAUMATIC.
1
IF [THE CHILD] WOULD BE IN A POSITION OF LEAVING AUSTRALIA AND SAYING GOODBYE TO FAMILY AND THE ONLY COMMUNITY THAT SHE HAS KNOWN IN THE REALITY OVER A SUBSTANTIAL PERIOD OF TIME, HER TRAUMA WOULD BE MAGNIFIED MANIFOLD MANY TIMES IF THE FULL COURT WERE TO ORDER HER RELOCATION FROM THE CZECH REPUBLIC TO AUSTRALIA.
2
IN THE EVENT THAT A STAY OF JUDGMENT WERE TO BE GRANTED THAT [THE CHILD] CONTINUED TO RESIDE IN AUSTRALIA UNTIL AN APPEAL ON THE URGENT BASIS WAS HEARD, THEN THE POSSIBILITY THAT [THE CHILD] WOULD FACE EVEN GREATER UNCERTANINTY [sic] AND TRAUMA WOULD BE GREATLY DIMINISHED.
SECOND GROUND OF APPEAL
I ASSERT MY FEAR THAT THE MOTHER WILL NOT COMPLY WITH THE ORDER TO ALLOW CONTACT OR RELATIONSHIP WITH FATHER AND GRANDMOTHER IN THE EVENT THAT [THE CHILD] BE RELOCATED TO CZECH REPUBLIC BEFORE MY APPEAL WAS HEARD TO THE FULL COURT.
1
THE MOTHER WAS ISSUED WITH A COPY OF THE APPEAL ON THE 10^TH OF MARCH AT HER PLACE OF EMPLOYMENT. THE MOTHER WAS ALSO INFORMED THAT A CASE OF STAY WAS IN THE PROCESS STAGE.
2
THE MOTHER HAD ALWAYS STATED SHE WOULD BE LIEAVING [sic] IN EARLY APRIL
3
THE MOTHERS CONDUCT BY LEAVING [T] ON THE 12^TH OF MARCH IN HIDING WHEN THERE WAS CLEARLY NO THREAT AND (SHE WAS GIVEN ORDERS TO DO SO BY THE COURT) THE MOTHER LEFT WITHOUT NOTIFICATION OR CHANCE FOR THE FATHER OR GRANDMOTHER TO SAY GOODBYE, IS NOT ONLY MORALLY WRONG BUT SHOWS THE MOTHER HAS NO INTENTION OF ENSURING THE CONTINUE [sic] CONTACT AND RELATIONSHIP THAT HAS BEEN SHARED WITH BOTH THE FATHER AND THE GRANDMOTHER.
4
SINCE THE 11^TH OF MARCH, I STILL HAVE NOT HEARD OR KNOW THE WHEREABOUTS OF [THE CHILD] TO THIS DAY 18^TH MARCH.
As we have already indicated the Father appeared without legal representation and it is also apparent that he had no legal advice or assistance with the preparation of the Notice of Appeal filed on 18 March 2009. However during the hearing before us the presiding judge, consistent with what was said by the Full Court (Nicholson CJ, Coleman and O’Ryan JJ) in Re F: Litigants in person guidelines (2001) FLC 93-072, sought submissions from the Father in relation to some of the factors, described in the various authorities, that may be relevant in considering an application for a stay.

CONCLUSION

In our view, having regard to what the Father said in the Notice of Appeal and his submissions before us, there were at least two significant relevant matters that he sought to agitate. First, he was concerned about the frequency of any change in a child’s living arrangements if a stay was not granted and his appeal against the orders of 2 February 2009 was successful. If a stay was not granted then the child would travel to the Czech Republic and if the appeal was successful then the child would have to return to Australia. Second, he was concerned that if a stay was not granted and the child went to the Czech Republic then the appeal may be rendered nugatory or it would make it impossible or impractical to restore the situation because the Mother may not return the child.
There may be other matters the Father relied upon. We proceeded on the basis that the Father contended that it is in the best interests of the child to grant a stay. We also assumed, given what the Father contended about the Mother having left T without notification, that the Father contended that the Mother would not comply with any parenting orders and that this was relevant.
In her reasons the trial Judge dealt with the first matter. The trial Judge [at para 29] made clear that the child has grown up spending time in both Australia and the Czech Republic and has been immersed in the cultures of both countries. As the trial Judge said the child has spent extended periods of time every year with the Mother in the Czech Republic. The Independent Children’s Lawyer submitted that much evidence was presented at the trial “about this issue and the facts surrounding it were not disputed”. In her reasons of 2 February 2009 the trial Judge [at para 75] made a number of relevant findings. She was satisfied that the child had established a good relationship with her maternal grandparents during visits over the years and “she has positive views about them”. The child is able to speak in fluent Czech. The child has developed relationships with cousins whose company she enjoys when she is in the Czech Republic and she “is obviously part of a close extended family there”. The trial Judge accepted in her reasons of 2 February 2009 [at para 95] that there would be changes for the child if she was in the Czech Republic. However, her Honour also accepted the assessment that the child would easily adjust to life in the Czech Republic “since she is well positioned to do so academically and linguistically…not only was she born there, she has spent considerable time there over the years, she is fluent in the language, she is familiar with extended family, and she enjoyed the experience of going to school there”.
The Independent Children’s Lawyer submitted that there was nothing to suggest that the child would be traumatised by moving between Australia and the Czech Republic even if the child had to return to Australia in the event that the Father’s appeal is successful. As her Honour said in her reasons of 17 March 2008 [at para 29] refusing the stay would not impose upon the child a change that she has not been making all of her life by moving between T and L being “her mother’s home town”. Her Honour therefore dealt with an important matter namely concern about changes in the status quo and the frequency of changes for a child and nothing was put to us by the Father to suggest that her Honour was in error in her consideration of this matter.
The trial Judge also dealt with the second matter raised by the Father. Her Honour [at paras 27 and 28] dealt with whether the refusal to grant a stay would render the appeal nugatory or make it impossible or impracticable to restore the situation.
During the hearing on 17 March 2009 the Independent Children’s Lawyer made the following submission: “Your Honour, the mother has a history of complying with Court orders, of coming back to Australia, and I think the Court could be confident that (indistinct) chance the Full Court thought the husband had any merit in his appeal, that she would return to Australia with the child”. Her Honour was mindful that there may be issues about the enforceability of the undertaking the Mother proposed. As well, although her Honour said [at para 28] that the Czech Republic is a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Convention”) and the Father would have a right of custody and the Mother not returning the child would be a “wrongful retention”, her Honour [at para 31] appears to have been mindful of “shortcomings by reason of the reliance on the wrongful retention provisions” of the Convention.
In the Notice of Appeal the Father complained that the Mother has no intention of ensuring continued contact and relationship between the child and the Father and between the child and the paternal grandmother. This appeared to be based on the Father’s contentions as to the circumstances in which the Mother and the child left T. The Independent Children’s Lawyer submitted that while regrettable and traumatic for the Father that the child left early and without saying goodbye, the “mother’s reasons for fearing the father’s reaction seems to have some merit and she might be seen to have been protecting” the child “emotionally as well as avoiding a scene for herself”. The Mother had given evidence in her affidavit of 16 March 2009 about the circumstances surrounding her leaving T on 12 March 2009 and why she did not inform the Father.
The Independent Children’s Lawyer submitted that the Father had no evidence upon which to base his fear that the Mother would not comply with orders and referred to findings the trial Judge made in her reasons of 2 February 2009. The trial Judge [at para 85] was “comfortably satisfied” that the Mother “would adhere to any arrangements put in place by orders and she would do what is required to support and sustain” the child’s relationship with her father. Her Honour made other relevant findings that we need not repeat and which findings are not the subject of the appeal.
In the result her Honour therefore dealt with the second matter and nothing was put to us by the Father to suggest that her Honour was in error in her consideration of this matter. Further, we are not satisfied that, insofar as it is relevant to the stay appeal, there is any merit in a complaint as to how her Honour dealt with any general issue in relation to compliance with orders.
As consideration of the reasons of the trial Judge reveals, she addressed and made findings about, a number of relevant factors and her findings are not challenged. There is no challenge to the principles which her Honour said applied to consideration of the application. Her Honour dealt with the merits of the appeal, the bona fides of the Father in making the application; whether there had been any relevant delay in filing the appeal and making the application for stay; the time when the appeal was likely to be heard; the effect on the Mother as the respondent if a stay was granted; the circumstances of the child; and the effect of refusal to grant a stay. Her Honour was also very mindful of the best interests of the child.
The trial Judge identified [at para 31] factors that she said “weighed in favour” of granting a stay and they included that the Father could seek expedition of the hearing of his appeal, that the appeal had “some merit” and that there may be “shortcomings” in securing the return of the child if the stay was refused and the appeal succeeded. However, the trial Judge also said [at para 30] that she agreed with and adopted the submissions of the Independent Children’s Lawyer as to the “likely effect” on the child of “continuing the current situation” and the “ongoing uncertainty” the child would be required to endure if she could not leave for the Czech Republic. The transcript of 17 March 2009 reveals [at page 20] that the Independent Children’s Lawyer made the following submission:
…I’m particularly concerned about the effect this will be having on [the child]. No doubt she was happy and excited about going off to the CR to see her family there and now has this at the airport, which I’m sure would be most upsetting for her. She’s now in a very unstable and uncertain situation because of the proceedings that the father has brought, which I’m sure would be causing her more upset and angst.
I understand the mother has burnt her bridges and [the child’s] bridges because she’s given up her employment. She has no accommodation either [in T] or permanent accommodation down her here in Cairns. From the child’s perspective, I think (indistinct) further by having to stay here until we’ve heard if it is – and I accept what was the reason, saying that it probably won’t be heard until September and who knows when a decision will be handed down by the Full Court – of the child, that she should live with this uncertainty. The mother was quite entitled to leave the country with the child, after your Honour handed down the decision. The mother explained in her material the delay and I would (indistinct) that your Honour will give reasons for that. Your Honour, the mother has a history of complying with Court, orders, of coming back to Australia, and I think the Court could be confident that (indistinct) chance the Full Court thought the husband had any merit in his appeal, that she would return to Australia with the child.
The Mother had given evidence in her affidavit of 16 March 2009 about her “[c]urrent situation”.
Her Honour weighed up the relevant matters that favoured the granting of a stay and those that favoured a refusal of the stay. Ultimately her Honour was persuaded that consideration of all the relevant factors, particularly those appropriate to a parenting case, required the refusal of the stay. The matter that her Honour placed the most significant weight on, as she was entitled to do, was the best interests of the child.
This appeal was a challenge to the exercise of discretion by the trial Judge. We were not persuaded that, in the circumstances of this case, the trial Judge erred in the exercise of her discretion in considering and weighing the matters relevant to the granting or refusal of a stay.
Although the Father did not challenge her Honour’s acceptance of the Mother’s undertaking we are aware of the limits placed on accepting undertakings. In DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081 the majority in the High Court (Gauldron, Gummow and Hayne JJ), at 421, doubted the wisdom of the Court accepting undertakings that cannot be enforced (see also McDonald v Director-General, Department of Community Services NSW (2006) FLC 93-297; (2006) 36 Fam LR 468).
In DP v Commonwealth Central Authority (supra) the High Court, in the course of determining an appeal in a case brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of a child to his country of habitual residence, considered the efficacy of undertakings offered by the Father to the Family Court. The Father undertook not to enforce a custody order of the Greek Court he had obtained until a Greek Court had dealt with the matter inter partes, and that he would not seek to remove the child from the Mother’s care in Greece, except for agreed periods of contact or “as so ordered” by a Greek Court. The majority [at 421] gravely doubted the efficacy of the undertaking in its proffered form and thought it would have been necessary to suspend the order for return until evidence of the enforceability of the undertaking in Greece was produced to the Family Court. In EJK and TSL (No 2) (supra) per the Full Court (Coleman, May and Boland JJ) referred to DP v Commonwealth Central Authority and determined [at para 33] that the trial Judge’s discretion miscarried in that insufficient weight was given to the lack of enforceability of the undertaking in Korea.
In DP v Commonwealth Central Authority (supra) the order for return made by the Family Court was premised upon there being judicial proceedings in Greece. The undertakings given by the Father for judicial proceedings to take place in Greece was a condition for the granting of the return order, and thus evidence of the enforceability of the undertaking was crucial to the determination of the proceedings.
In this case, although the trial Judge accepted the Mother’s undertaking to return the child, her Honour did not regard the efficacy of the undertaking to be crucial to her determination. Rather, her Honour placed significant weight on the circumstances and best interests of the child and on the effect of the Mother if a stay was granted. Her Honour was also very mindful of the Mother and the child’s history of travelling back and forth between Australia and the Czech Republic. Factors other than the enforceability of the undertaking that weighed in favour of refusing the stay were afforded more weight by the trial Judge. The undertaking was but one factor and its potential unenforceability was not a persuasive element in her Honour’s consideration of the application. In the circumstances of this case we perceived no error in the exercise of discretion by the trial Judge in the weight she afforded to the undertaking proffered by the Mother.

COSTS

The Mother sought an order that in the event that the appeal was unsuccessful the Father pay her costs assessed at $2,500.00. An application was also made by the Independent Children’s Lawyer that the Father pay costs however no submissions were put in support of the application.
As the Father was wholly unsuccessful we were satisfied that the Mother had established a justifying circumstance. Nothing submitted by the Father in relation to his financial circumstances disinclined us from making an order for costs in favour of the Mother. In all the circumstances we were satisfied that the Father should pay the costs of the Mother in the amount of $2,500.00. Given that no submissions were made we did not make an order in favour of the Independent Children’s Lawyer.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Boland, O’Ryan and Le Poer Trench JJ

Associate:

Date: 23 March 2009