Friscioni & Friscioni (No. 3)

[2009] FamCA 189

FAMILY COURT OF AUSTRALIA

FRISCIONI & FRISCIONI (NO. 3)	[2009] FamCA 189
FAMILY LAW – CHILDREN – Parenting proceedings – orders made permitting mother to relocate with parties’ 10 year old daughter to the Czech Republic – father lodged appeal – father sought stay of relocation order pending appeal – stay refused but temporary stay imposed to enable father to appeal against refusal

Family Law Act 1975 (Cth)

APPLICANT: Mr Friscioni

RESPONDENT: Ms Friscioni

INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

FILE NUMBER: CSC 445 of 2008

DATE DELIVERED: 17 March 2009

PLACE DELIVERED: Sydney – by telephone link

PLACE HEARD: Sydney – by telephone link

JUDGMENT OF: Moore J

HEARING DATE: 17 March 2009

REPRESENTATION

THE APPLICANT: Mr Friscioni appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: Ms Reaston, O'Reilly Stevens Bovey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann, Lehmann Featherstone

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 born in 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. 

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 SYDNEY

FILE NUMBER: CSC 445  of 2008

MR FRISCIONI
Applicant

And

MS FRISCIONI
Respondent

REASONS FOR JUDGMENT

1. On 2 February 2009 I delivered judgment and made orders in parenting and property proceedings between the parties.  Suffice to say now that those orders provided for the mother to have sole parental responsibility and permitted her to relocate to the Czech Republic with their 10 year old daughter. 

2. On 2 March 2009 the father filed a Notice of Appeal.  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. 

3. On 10 March 2009 he filed an application seeking a stay of those particular orders.  It was accompanied by an affidavit he swore on 9 March. 

4. Notified of the application, I directed that it be listed for hearing at 10 am today.  In doing so, I considered a week sufficient time for the mother’s solicitor to take instructions and the independent children’s lawyer to consider the issue. 

5. In the meantime, on 12 March 2009 the father arranged to have listed in Brisbane Registry an oral application which was heard ex parte by Jordan J and this resulted in orders staying the relocation order until 5pm today, restraining the mother from taking the children from Australia until then, and placing the child on the Airport Watch List administered by the Australian Federal Police.  The matter was adjourned to today before me.  It appears the order was based on concerns or suspicions that the mother was in the throes of leaving Australia which was the case.  She left T with the child on 12 March with the knowledge of the police and was assisted in her flight arrangements in Cairns the next day by the police.  But she and the child were prevented from boarding the flight by reason of the ex parte orders.  The solicitors for the mother and the ICL only became aware of the ex parte orders after those events at the airport.  And it was only after they received a copy of those orders in due course that they became aware the father’s stay application had been listed before me today. 

6. How did this happen?  The father had not served either the mother or her solicitor or the independent children’s lawyer with his application for a stay.  I directed he do so by fax at the outset of the hearing when this became apparent and the matter was stood down for that purpose.  At the same time he 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. 

7. Why did he not serve the stay application and supporting affidavit on 10 March when it was filed?  He says he had received advice not to serve an unsealed copy of the documents which he only received from the Court in Cairns by post yesterday.  He bolsters that by reference to an article in the local newspaper about the slowness of the post in T. 

8. It may be worth noting that that 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. 

9. In any event, the mother seeks the dismissal of the stay application subject to her undertaking which I shall come to shortly.  The ICL also asks that it be dismissed and that the mother be permitted to leave for the Czech Republic with the child. 

10. 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.  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 in Clemett and Clemett (1981) FLC 91-013 – per Nygh J 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 this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father……’

11. In Kwon and Lee [2006] FamCA 806 the Full Court [per Coleman, May and Boland JJ] considered the continued application of this passage post the changes brought about by the Family Law Reform Act 1995 (Cth) and accepted the principles discussed there remain relevant and the child’s best interests, even if not the paramount consideration, are a significant consideration. Their Honours observed that the importance of the consequences for a child of granting or refusing a stay are well recognised and they cited the following passage from the decision of Kirby J at 1332 in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329:

    ‘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.’

12. More recently the approach to a stay application was summarised by the Full Court in Truong and Liu (Chen) (No 2) [2008] FamCAFC 194 this way:

    ‘These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:

    ·    the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;

    ·    a person who has obtained a judgment is entitled to the benefit of that judgment;

    ·    the person who has obtained a judgment is entitled to presume the judgment is correct;

    ·    the mere filing of an appeal is insufficient to ground a stay;

    ·    the bona fides of the applicant;

    ·    a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;

    ·    a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether  it will be appropriate to grant the stay;

    ·    some preliminary assessment of the strength of the proposed appeal - whether the  appellant has an arguable case;

    ·    the desirability of limiting the frequency of any change in a child’s living arrangements;

    ·    the period of time in which the appeal can be heard and whether existing satisfactory 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.’

13. Before coming to submissions, it may be useful to set out the undisputed chronology:

    ·On 11 August 2008 consent orders were made for the child to accompany the mother to the Czech Republic for a visit and on return the mother was to lodge the child’s passport with the Court.  She did so.  The passport was due to expire in February. 

    ·On 2 February 2009 judgment was delivered permitted the mother to relocate with the child. 

    ·Discussions between the parents about the judgment occurred.  I disregard what is said of the detail in the mother’s affidavit and the father’s statement because I indicated earlier that I would not take into account in making this decision disputed issues about the supposed conduct of either but only the accepted chronology of developments. 

    ·On 10 February 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 the mother booked the flights for her and the child to return to Prague and they were scheduled to leave on 7 April.  The departure date was to allow time for the child’s passport to arrive. 

    ·On 9 March the mother received the child’s passport and planned to bring forward her departure scheduled for early April.  [By now the appeal period had expired]. 

    ·On 10 March the father served his Notice of Appeal which had been filed 2 March. 

    ·On 11 March the mother rescheduled the flight to depart Cairns 13 March. 

    ·12 March she left T with the child and made her way to Cairns.  She did so after notifying the police in T.  The father is aggrieved she 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.  Becoming aware of her departure from T he brought the oral application heard ex parte by Jordan J. 

    ·13 March she was assisted by police at the airport but she was prevented from leaving by reason of the ex parte order.  She had no notice until becoming aware of this order that the father had even filed a stay application or there had been an ex parte hearing. 

14. As for submissions, the father relies on his statement which he adopted as his evidence.  Apart from matters of chronology already mentioned, he points out there that since the judgment there has been no allegation by the mother that he has 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.  Certainly the latter is correct but the rest of this is in dispute and I have put aside argument about what has or has not occurred since 2 February.  He is aggrieved at the mother’s departure without allowing the child to say goodbye and that the mother took the child without his prior knowledge or preparation.  He 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.’  From there he recounts the steps he took to bring an oral application heard ex parte. 

15. In his affidavit he refers to the orders and the judgment and observes that I ‘declined’ to make a specific order about the timing of the relocation.  He continues:

    ‘The affect of her honours decision not to provide a framework or schedule in relation to the ordered relocation has left the mother with complete discretion as to the timing and affect of the relocation.’

16. He also says the mother told him in early March she was planning to relocate in early April, after a series of conversations about the move and the arrangements for their daughter.  He adds:

    ‘I indicated to the mother that I was bound by the orders of Justice Moore and that I declined to take the option of [the child] residing in Australia until the end of April 2009 and me not having further access in 2009.  My reasoning for doing this was that I was bound by the judgement and that irrespective of a relocation on any date in April that it would be before any appeal was heard.’

17. The meaning of this is not clear.  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. 

18. To support the refusal of the stay and that the mother not be held to await the outcome of the appeal, these points are made by Ms Reaston:

    ·The chronology is traversed, no doubt to demonstrate the bona fides and reasonableness of steps taken by the mother.

    ·The mother gives an undertaking to the Court [copy filed] to return the child to Australia if ordered to do so by this Court.  Asked how such an undertaking could assist unless it was able to be enforced in the Czech Republic, Ms Reaston says she had done some research but has not followed it through; however, since the Czech Republic is a signatory to the Hague Convention she says a copy of the Court order and the mother’s undertaking could be registered there.  She does not know how long it would take to do that. 

    ·The mother is now in Cairns without a job, without real accommodation, and the child has an expectation that she would now be in the Czech Republic where arrangements have been made for her enrolment at school. 

    ·As for the time the appeal would be heard, she has a matter where it has been set for September and there have been two mentions about settling the appeal books, which takes time. Mr the father has the onus of preparing appeal books, but it was his evidence in the property proceedings that he had substantial debt. 

    ·He is still not paying any child support and the mother is still paying for the child’s needs, presently without any source of income.  She has incurred costs related to the change in their flight and legal costs in meeting the stay application.  The father had given an undertaking to the Court on 12 March to pay costs she incurred should he be ordered to do so and she seeks an order that he pay them.  In the meantime, she is ‘running out of accommodation’ and no means to pay for it. 

19. Ms Lehmann, the independent children’s lawyer, makes these submissions to support the dismissal of the father’s stay application:

    ·The appeal lacks merit.  Probably Legal Aid was of that view since they rejected his application for assistance with an appeal. 

    ·There had been delay in filing the appeal and the inference could be drawn that the appeal is a delaying tactic and not bona fide. 

    ·The effect of this on the child is of importance.  No doubt she was happy and excited to be going off to the Czech Republic to see family and very likely the events at the airport were very upsetting for her.  She is now in an unstable and uncertain situation which is going to cause her more upset.  To some extent the mother had ‘burnt her bridges’ by leaving her job and she does not have accommodation.  But looked at from the child’s perspective there are distinct disadvantages in her remaining here pending the hearing of the appeal. 

    ·The appeal will probably not be heard until around September and of course the decision may take further time.  It is not fair to the child to live with that uncertainty.

    ·The mother was entitled to leave after the decision was made, she has explained her delay in planning her departure for early April, and she has a history of complying with Court orders. On the ‘slim chance’ there is seen to be merit in the father’s appeal, she would return to Australia with the child. 

    ·There are concerns about the father’s financial position: he has done nothing to improve his financial situation since the hearing, this places the child in a difficult situation and she remains dependant on her mother for her financial needs. 

Conclusion

1. First, there are the merits of the father’s appeal.  The Notice of Appeal sets out seven grounds, expressed this way:

   a.That her Honours findings of fact in para 29 and 42 that [the father] engages in excessive marijuana use is not supported by evidence, and was contradicted in evidence by a negative supervised drug trust, a test instituted by the Court.

   b.That the Judge erred in her finding of fact in paras 11, 109 & 111, that in affect rejected the findings of the Family Report of the Court appointed counsellor.

   c.That her Honour erred in law and fact by accepting Dr [S’s] evidence in para 34 concerning [the father’s] alcohol and marijuana usage, when that evidence is not supported in fact and was given without the permission of [the father], in violation of privelege.

   d.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.

   e.That the Judge erred in a finding of fact in para 30 that Mr [the father] smoked marijuana regualy 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 the Judge failed to note or consider in her judgement.

   f.As a result of her incorrect findings of fact as specified in appeal point 5, her Honour in para 20 incorectly excesied her discretion when considering the mother and [the father] sharing Mr [LE’s] accommodation.

   g.That her Honour erred in fact in para 56 when she was dismissive of [the father’s] sworn evidence as to his preparedness to relocate to Cairns for the benifet of [the child], and further more had no basis of fact in either evidence or her discretion in finding that [the father] saw his future as [in T] wich provided a lifestyle he enjoyed.

1. 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. 

2. As for bona fides, 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 the father’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 child remain living in 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. 

3. Has there been a delay in filing the appeal or even in applying for the stay?  The father 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 the father representing himself but there are others to consider as well. 

4. As for the time when the appeal is likely to be heard, the father refers in his affidavit to that being heard on an ‘urgent’ basis.  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 the father 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. 

5. 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.  The father puts no proposal to address any of it. 

6. Are the child’s circumstances satisfactory?  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. 

7. Finally, there is the effect of refusal to grant the stay; more particularly, will it render the appeal nugatory or make it impossible or impracticable to restore the position?  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.  In this case the mother has given an undertaking to return the child if ordered 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’

8. But how effective would that be unless it is enforceable in the Czech Republic, even if confidence has been expressed in the mother 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 the father 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. 

9. Another consideration 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. 

10. Apart from these matters, I agree with and adopt the submissions put by the ICL 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. 

11. When it is all considered and weighed, subject to something I shall say in a moment, it is my view that the stay should be refused.  In saying that, 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. 

12. That said, I discussed with the father the possibility of refusal of his application and told him that if he wants to appeal the refusal then arrangements can be put in place to bring his appeal before a Judge of the Appeal Division at very short notice.  To enable him to exercise that right, the mother’s departure will have to be stayed for some limited period, which I propose be six (6) days.  Her departure will be stayed, therefore, until next Monday 23 March at 12 noon.  The father has been told that he wishes to appeal this order he will need to contact the Appeals Registrar in the Brisbane Registry, with whom he has had contact already, and make arrangements for the matter to be listed before the Full Court.  Of course this assumes, without knowing it to be so, that the mother and the child can be provided for in Cairns while this process is underway if that path is to be taken.  It is unsatisfactory, she may have to impose on people for some days yet, but I can see no alternative but to provide the father with the opportunity to appeal the refusal.  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.  If the father does not intend appealing, she will be at liberty to leave earlier on his written confirmation to that effect. 

13. As for costs raised by Ms Reaston, this was not addressed by the father, perhaps understandably with his focus on other things, and I think it fair to postpone any consideration of costs until after this primary issue is resolved.  The mother can have it relisted at that time. 

14. I will also direct that these orders, a copy of these Reasons, together with a copy of all the material relied on in these stay proceedings and a copy of my Reasons delivered 2 February 2009 be electronically communicated to the Appeals Registrar in Brisbane Registry forthwith so they are available should they be required urgently. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: