Blakeley and Morrell

[2014] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAKELEY & MORRELL [2014] FCCA 2212

Catchwords:
FAMILY LAW – Stay on Appeal – relocation.

Legislation:  
Family Law Act1975

Clement & Clement (1981) FLC91-013
Sheldon & Weir (No.4) [2010] FamCA 1214
House v the King (1936) 66 Commonwealth Law Reports 499

Applicant: MS BLAKELEY

Respondent: MR MORRELL

File Number: SYC 4645 of 2010

Judgment of: Judge Myers

Hearing date: 10 September 2014

Date of Last Submission: 10 September 2014

Delivered at: Newcastle

Delivered on: 10 September 2014

REPRESENTATION

Solicitors for the Applicant: Peter Hamilton & Associates

Solicitors for the Respondent: Emery Partners

ORDERS

1. The Court is of the view that it is not in the best interests of the children that they remain living with the mother and spend time with the father on the terms proposed by the mother if a stay were to be granted.  The application for a stay of the orders made on 22 August 2014 is refused, and dismissed.  Those are the orders I make.

2. The Court reserves the costs of the respondent in the application for stay to be determined on a date to be advised.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

SYC 4645 of 2010

MS BLAKELEY

Applicant

And

MR MORRELL

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. These are proceedings in respect of an application for a stay of orders made by the court on 22 August 2014.  On 28 August 2014 a notice of appeal was filed in the Eastern Region of the Appeals Registry of the Family Court of Australia.  The notice of appeal provides that the appeal be allowed; that the orders of the Federal Circuit Court made on 22 August 2014 be set aside, that the matter be remitted for re-hearing before a judge other than Judge Myers and that the Respondent pay the Appellant’s costs of the appeal.  At part (e) of the appeal there are listed grounds of appeal as follows:

   (1) That the learned judge erred in law in that he:

   (a) failed to consider all of the likely effect on the mother and her ability to parent the children by reason of her disappointment and distress at being required to relocate to Newcastle and the effect that that may have on the children;

   (b) failed to consider at all the likely effect on the mother and her ability to parent the children by reason of her being removed from the support of her family and support network in Queensland and the effect that that may have on the children;

   (c) failed to consider the effect on the mother and her ability to parent the children by reason of her having an ongoing financial commitment with the father in circumstances where it is common ground that she was unable to support herself;

   (d) failed to consider at all the mother’s ability to obtain…