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

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

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.
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.
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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Friscioni & Friscioni (No. 3)

Details

AGLC: Friscioni & Friscioni (No. 3) [2009] FamCA 189
Case: [2009] FamCA 189
Decision Date: 17 March 2009

CaseChat Overview and Summary

In *Friscioni & Friscioni (No. 3)*, heard before Moore J of the Family Court of Australia, the father sought a stay of orders permitting the mother to relocate with the parties' ten-year-old daughter to the Czech Republic, pending his appeal against those orders.

The central legal issue before the court was whether to grant a stay of the relocation orders to allow the father to pursue his appeal. This involved considering the balance of convenience and the potential prejudice to the parties and the child should the stay be granted or refused.

His Honour dismissed the father's application for a stay of the relocation orders, subject to the mother providing undertakings to the court. These undertakings included her agreement to return the child to Australia if the father's appeal was successful and if ordered by the court. The court also imposed a temporary stay on the relocation order until a specific date to enable the father to lodge an appeal against the refusal of the stay. The mother's application for costs was adjourned pending the outcome of any appeal.

Orders

Orders of the court

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 2nd of March 2009 and served on me on the 10th 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.

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.

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.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.