Papageorgio and Nicolaou - [2014] FamCA 31

FAMILY COURT OF AUSTRALIA

PAPAGEORGIO & NICOLAOU

[2014] FamCA 31

FAMILY LAW – CHILDREN – Interim Proceedings – Relocation – Whether the child is to relocate to Greece – Where the mother is the primary carer of the child – Where the mother’s visa is expiring – Where the father is remaining in Australia – Whether there should be a change of primary carers pending final hearing – Whether res judicata applies to interim parenting orders

APPLICANT:

Mr Papageorgio

RESPONDENT:

Ms Nicolaou

FILE NUMBER:

SYC

7757

2013

DATE DELIVERED:

28 January 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

23 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Clarke

SOLICITOR FOR THE APPLICANT:

Willis & Bowring Solicitors

COUNSEL FOR THE RESPONDENT:

Mr White SC

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

IT IS ORDERED

That the wife cause the sum of $5,000 to be deposited in a Controlled Money Account with Michael Conley Lawyers to be held by them pending further order of the Court.
That a solicitor from Michael Conley Lawyers file and serve an affidavit confirming that the sum of $5,000 is held in accordance with Order 1 and annexing documentary evidence of the deposit.
That the wife file undertakings in the form prescribed in Rule 13.15 of the Family Law Rules that :
(a)She will return to Australia to participate in the final hearing of the applications in relation to parenting orders affecting the child S born … May 2011 (“the child”); and
(b)She will not institute proceedings in any other Court or jurisdiction in relation to the child; and
(c)She will not challenge the jurisdiction of the Family Court of Australia to hear and determine any parenting proceedings in relation to the parenting of the child.
That upon compliance with Orders 1 to 3 herein, the mother is permitted to remove the child S born … May 2011 (“the child”) from Australia and to travel with the child to B Municipality in Greece.
That the child S born … May 2011 be removed from the Airport Watch List.
That the Australian Federal Police give effect to the preceding order by removing the child S born … May 2011 from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia
That during any period the child is living in Greece and the father is living in Australia the father shall have Skype access with the child at any reasonable time.
That during any period the father is present in Greece he shall spend time with the child as agreed between the parents and in the absence of agreement for four hours each afternoon.
That the matter be listed before the Honourable Justice Rees at 9.30am for Directions on 28 February 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Papageorgiou & Nicolaou has been approved by the Chief Justice pursuant to s 121(9)(g) of the

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 Papageorgio and Nicolaou

Details

AGLC: Papageorgio and Nicolaou [2014] FamCA 31
Case: [2014] FamCA 31
Decision Date: 28 January 2014

CaseChat Overview and Summary

The case of *Papageorgio and Nicolaou* concerned parenting orders made by Rees J in the Family Court of Australia. The dispute involved the wife's application to remove the child from Australia to Greece, with the father seeking to ensure the child's participation in future parenting proceedings and maintain contact.

The primary legal issues before the court were whether to permit the wife to remove the child from Australia, and if so, under what conditions. This included ensuring the child's return for a final hearing, preventing parallel proceedings in other jurisdictions, and establishing arrangements for the father's ongoing contact with the child.

Rees J ordered that the wife could remove the child to Greece upon compliance with several conditions. These included depositing $5,000 into a controlled money account, filing undertakings to return to Australia for the final hearing, not commencing proceedings elsewhere regarding the child, and not challenging the Family Court's jurisdiction. The court also ordered the child be removed from the Airport Watch List and stipulated Skype access for the father, as well as specific time with the child when the father was in Greece.

Orders

Orders of the court

IT IS ORDERED

That the wife cause the sum of $5,000 to be deposited in a Controlled Money Account with Michael Conley Lawyers to be held by them pending further order of the Court.

That a solicitor from Michael Conley Lawyers file and serve an affidavit confirming that the sum of $5,000 is held in accordance with Order 1 and annexing documentary evidence of the deposit.

That the wife file undertakings in the form prescribed in Rule 13.15 of the Family Law Rules that :

(a) She will return to Australia to participate in the final hearing of the applications in relation to parenting orders affecting the child S born … May 2011 (“the child”); and

(b) She will not institute proceedings in any other Court or jurisdiction in relation to the child; and

(c) She will not challenge the jurisdiction of the Family Court of Australia to hear and determine any parenting proceedings in relation to the parenting of the child.

That upon compliance with Orders 1 to 3 herein, the mother is permitted to remove the child S born … May 2011 (“the child”) from Australia and to travel with the child to B Municipality in Greece.

That the child S born … May 2011 be removed from the Airport Watch List.

That the Australian Federal Police give effect to the preceding order by removing the child S born … May 2011 from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia

That during any period the child is living in Greece and the father is living in Australia the father shall have Skype access with the child at any reasonable time.

That during any period the father is present in Greece he shall spend time with the child as agreed between the parents and in the absence of agreement for four hours each afternoon.

That the matter be listed before the Honourable Justice Rees at 9.30am for Directions on 28 February 2014.

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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