FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ibragimova & Pokorna [2024] FedCFamC1F 914
File number(s): BRC 16577 of 2023 Judgment of: JARRETT J Date of judgment: 12 December 2024 Catchwords: FAMILY LAW – CHILDREN – Where the respondent sought to relocate the residence of the children interstate until further order – Where the respondent’s case was built on financial hardship – Where the respondent’s proposal lacked specificity and was not made out – Application in a Proceeding dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: C and S [1998] FamCA 66
Marvel & Marvel (No.2) [2010] 43 FamLR 348
Morgan & Miles [2007] FamCA 1230
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 12 December 2024 Place: Brisbane Counsel for the Applicant: Mr Slade Jones Solicitors for the Applicant: Hede, Byrne & Hall Solicitors for the Respondent: Litigant in person Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 16577 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR IBRAGIMOVA
Applicant
AND: MS POKORNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.From the 15 December 2024, order 2 of the orders made 5 March 2024 be discharged.
2.The respondent is restrained and an injunction hereby issues restraining the respondent from relocating the children’s residence more than 140km from Brisbane City Hall.
3.The children spend time with the applicant at all times as agreed between the applicant and the respondent in writing and failing agreement:
(a)every second Saturday and Sunday between 9:00am and 4:00pm on each day; and
(b)commencing in the December 2024 school holidays, from 9:00am until 4:00pm for up to three consecutive days during each school holiday period, with such time to commence on the Sunday immediately following the end of the school term.
4.In relation to the time the children spend with the applicant pursuant to these orders:
(a)time will be supervised by the paternal grandmother or such other person or organisation as agreed between the parties in writing;
(b)the applicant will have leave from his employment;
(c)changeover will occur at the Town B Community Venue unless otherwise agreed between the parties in writing; and
(d)the applicant will not attend any C Organisation meetings or music gigs at licensed venues with the children.
5.Leave is given to the parties to provide to their treating health professionals including their psychologists a copy of the affidavit of Ms D filed 27 August 2024 and affidavit of Dr E filed on 16 October 2024.
THE COURT FURTHER ORDERS THAT:
6.The respondent file and serve an amended response by 4:00pm on 26 December 2024 particularising the orders she seeks the Court to make on a final basis.
7.The application be adjourned to 10:00am on 10 March 2025 for final hearing (with an estimated hearing time of five (5) days) in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
8.In the…
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CaseChat Overview and Summary
The court examined the specifics of Ms Pokorna's proposal and the reasons for the relocation. The primary issue was whether the respondent's financial hardship was genuine and sufficient to warrant the relocation of the children. The court found that the proposal was not adequately substantiated and that the relocation was not justified. The court further considered the best interests of the children, including their need for stability and continuity in their environment.
In its reasoning, the court highlighted the lack of detailed evidence supporting the financial hardship claim and the respondent's failure to provide a viable alternative that would not disrupt the children's current living arrangements. The court emphasised the importance of the children maintaining a consistent routine and environment, which would be compromised by an interstate move. Consequently, the application to relocate the children was dismissed. The court issued an injunction preventing the respondent from relocating the children more than 140km from Brisbane City Hall and outlined specific contact arrangements between the children and the applicant.
The final orders included the discharge of a previous order, a prohibition on relocating the children beyond a specified distance, and detailed contact arrangements. The court mandated that the respondent file an amended response and outlined a schedule for the final hearing, including specific deadlines for affidavits and case outlines. The court also set conditions for cross-examining authors of reports and the admissibility of such reports if proper notice was not given.
Orders
Orders of the court
BRC 16577 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR IBRAGIMOVA
Applicant
AND:
MS POKORNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1. From the 15 December 2024, order 2 of the orders made 5 March 2024 be discharged.
2. The respondent is restrained and an injunction hereby issues restraining the respondent from relocating the children’s residence more than 140km from Brisbane City Hall.
3. The children spend time with the applicant at all times as agreed between the applicant and the respondent in writing and failing agreement:
(a) every second Saturday and Sunday between 9:00am and 4:00pm on each day; and
(b) commencing in the December 2024 school holidays, from 9:00am until 4:00pm for up to three consecutive days during each school holiday period, with such time to commence on the Sunday immediately following the end of the school term.
4. In relation to the time the children spend with the applicant pursuant to these orders:
(a) time will be supervised by the paternal grandmother or such other person or organisation as agreed between the parties in writing;
(b) the applicant will have leave from his employment;
(c) changeover will occur at the Town B Community Venue unless otherwise agreed between the parties in writing; and
(d) the applicant will not attend any C Organisation meetings or music gigs at licensed venues with the children.
5. Leave is given to the parties to provide to their treating health professionals including their psychologists a copy of the affidavit of Ms D filed 27 August 2024 and affidavit of Dr E filed on 16 October 2024.
THE COURT FURTHER ORDERS THAT:
6. The respondent file and serve an amended response by 4:00pm on 26 December 2024 particularising the orders she seeks the Court to make on a final basis.
7. The application be adjourned to 10:00am on 10 March 2025 for final hearing (with an estimated hearing time of five (5) days) in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
8. In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2022.
9. Each party file and serve on each other party no later than 4:00pm on 10 February 2025:
(a) one (1) consolidated affidavit setting all evidence in chief given by that party; and
(b) one (1) consolidated affidavit of each witness intended to be relied upon at trial setting out all evidence in chief of that witness.
10. Each party file and serve on each other party no later than 4:00pm on 24 February 2025, a case outline setting out:
(a) a precise minute of the final orders sought;
(b) a relevant chronology;
(c) a list of affidavits intended to be relied upon at trial; and
(d) a list of the issues arising in the application (both factual and legal) by reference to s 60CC of the Family Law Act 1975 (Cth) and for each issue so identified a reference to the evidence (in each affidavit relied upon by that party) upon which that party intends to rely in respect of that issue.
11. No party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
12. In the event that either party wishes to cross examine any author of a report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) at the final hearing, that party shall provide written notice to the report writer of such intention no later than fourteen (14) days prior to the commencement of the hearing.
13. In the event that no such notice is given to the report writer in accordance with the previous order and the report writer is otherwise unavailable, the report authored by that person will be admitted into evidence without cross examination unless the trial judge otherwise orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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