Berryman & Berryman (No 2)

This matter concerned an application by the respondent mother for a stay of final orders made by Betts J on 23 June 2021, which had directed that the parties' two children, X (born 2009) and Y (born 2013), move from the mother's primary care to the father's primary care. The mother sought this stay pending the determination of her proposed appeal against the final orders. The father, Mr Berryman, opposed the stay application and, by a separate application, sought a recovery order for the children.

The court was required to determine whether to grant the mother leave to bring her application for a stay of the final orders, given that her Notice of Appeal had not yet been filed. It also had to consider whether to grant the stay itself, effectively reviving previous interim orders that had placed the children in the mother's primary care following her unilateral relocation to Adelaide. Furthermore, the court had to determine whether to issue a recovery order for the children, as sought by the father, in circumstances where the children had not been delivered to him as per the final orders.

Betts J dismissed the mother's application for a stay of the final orders. The court reasoned that the mother had not yet filed her Notice of Appeal, a prerequisite for seeking a stay pending appeal. The judge noted that the mother had been unsuccessful at the final hearing, having previously been successful at the interim stage in remaining with the children in Adelaide. The court then issued a recovery order pursuant to section 67Q of the Family Law Act 1975, directing law enforcement officers to find and recover the children and deliver them to the applicant father. The recovery order was to be held on file and could be uplifted upon written request by the father's solicitor. Costs applications were adjourned for a future hearing.