Papageorgiou and Nicolaou

[2014] FCCA 113

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAPAGEORGIOU & NICOLAOU [2014] FCCA 113

Catchwords:
FAMILY LAW – Children – parenting – relocation – international relocation – application transferred to the Family Court of Australia under Protocol between the Federal Circuit Court of Australia and the Family Court of Australia – interim orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 68B
Federal Circuit Court of Australia Act 1999 (Cth), s.39

Applicant: MR PAPAGEORGIOU

Respondent: MS NICOLAOU

File Number: SYC 7757 of 2013

Judgment of: Judge Scarlett

Hearing date: 16 January 2014

Date of Last Submission: 16 January 2014

Delivered at: Sydney

Delivered on: 17 January 2014

REPRESENTATION

Counsel for the Applicant: Ms Clarke

Solicitors for the Applicant: Willis & Bowring

Counsel for the Respondent: Mr Conley

Solicitors for the Respondent: Michael Conley Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The Respondent Mother is restrained from relocating the residence of the child, [X], born [in] 2011, from the Commonwealth of Australia.

2. The Mother and Father are to have equal shared parental responsibility for the child, [X].

3. The child, [X] is to live with the Mother and spend time with the Father at times agreed between the parties.

4. For the personal protection of the Mother, MS NICOLAOU and the child [X] the Applicant Father is restrained from assaulting, molesting, denigrating, abusing or threatening the Mother or the child or permitting any third party to do so.

5. The Applicant is to file and serve any further affidavit upon which he seeks to rely within 21 days.

6. The Application is transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit Court of Australia Act 1999.

7. The Application is listed for directions before Registrar Campbell at 10 am on 22 January 2014.

8. IT IS REQUESTED THAT the hearing of the Application be expedited due to the fact that the Mother is remaining in Australia on a temporary visa, and due to the allegations made in the Notice of Child Abuse, Family Violence or Risk of Family Violence filed in Court on 16 January 2014.

IT IS NOTED that publication of this judgment under the pseudonym Papageorgiou & Nicolaou is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 7757 of 2013

MR PAPAGEORGIOU

Applicant

And

MS NICOLAOU

Respondent

REASONS FOR JUDGMENT

1. The matter was before me yesterday and an application was made in respect of the orders sought in the Amended Response filed yesterday.  I indicated that I would consider the matters overnight.  Essentially, whilst I have made it clear that as this is an international relocation matter, the proper venue for this matter is the Family Court, under the protocol between the Family Court and the Federal Circuit Court, and that I would be transferring the matter.

2. The Mother presses her application for leave on an interim basis to relocate the residence of the child out of Australia back to Greece.  Issues have been raised on behalf of the Mother alleging family violence in the current situation and I am conscious of the Mother’s visa situation which would not, as her present visa situation is, allow her to remain in Australia for a lengthy period of time, although she did say in her affidavit she believed that she would be able to get a three month extension to her visa and she was reluctant to apply for a spouse visa due to the breakdown of the marital relationship.

3. Mr Conley also expressed fears that if the matter were to be transferred to the Family Court, that it would lose momentum because he is of the belief, with some justification, that the matter is a matter of urgency and needs to be expedited.  Ms Clarke, for the Father, having received the Amended Response, the Notice of Child abuse and the Mother’s affidavit, has sought time to file and serve material in reply, which is not unreasonable in the circumstances.

4. Her client opposes the application to relocate the residence of the child out of Australia to Greece. As I understand it, her client does not oppose the matter being transferred to the Family Court or the request for expedition.

Conclusions 

1. I have considered all these matters.  The decision to allow the Mother to relocate the child’s residence out of Australia on a temporary basis, to my mind, is too large a decision to permit.  I am not prepared to accede to that application.

2. I am conscious of the allegations of family violence and I am prepared to make, and I will make, a section 68B injunction for the personal protection of the Mother and of the child where necessary. I will transfer the matter to the Family Court and it may assist Mr Conley’s concerns if I were to advise him that the matter can be listed for directions before Registrar Campbell of that Court next Wednesday, the 22^nd.  There will be a formal request for expedition generally, and I would hope that the Family Court would understand the reasons for that.

3. I will make it clear that orders (1), (2), (3) and (4) are Orders made until further order.  They are interim orders and not final orders, and I will leave it to the Family Court to make whatever further interim orders or whatever final orders are necessary, but the matter will be before the Family Court on Wednesday, the 22^nd January at 10:00am.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  17 January 2014