BLAKELY & MORRELL
[2014] FamCAFC 196
•03 October 2014
FAMILY COURT OF AUSTRALIA
| BLAKELY & MORRELL | [2014] FamCAFC 196 |
| FAMILY LAW – APPEAL – Application in an Appeal for expedition of two appeals– Where the respondent supports the application for expedition – Where the effect of the orders appealed is that the mother and children must relocate interstate – Where application for a stay was refused – Where the interests of justice support expedition of the appeal. |
| Family Law Act 1975 (Cth): s 94 Family Law Rules 2004 (Cth): r 12 |
| APPLICANT: | Ms Blakely |
| RESPONDENT: | Mr Morrell |
| FILE NUMBER: | SYC | 4645 | of | 2010 |
| APPEAL NUMBERS: | EA EA | 118 133 | of of | 2014 2014 |
| DATE DELIVERED: | 03 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 29 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 August 2014 |
| LOWER COURT MNC: | [2014] FCCA 1888 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levick by telephone |
| SOLICITOR FOR THE APPELLANT: | Peter Hamilton & Associates Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC by telephone |
| SOLICITOR FOR THE RESPONDENT: | Emery Partners |
Orders made 29 September 2014
The appellant mother is given leave to make an oral application for orders in accordance with paragraphs 10.1 and 10.3 of her Notice of Appeal in EA 133 of 2014 filed on 16 September 2014.
Appeals EA 118 of 2014 and EA 133 of 2014 are consolidated and listed for an expedited hearing.
The parties shall attend upon the Eastern Appeals Registrar as directed by the Registrar in relation to directions for an expedited hearing.
Costs are reserved to the Full Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blakely & Morrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 118 of 2014; EA 133 of 2014
File Number: SYC 4645 of 2010
| Ms Blakely |
Applicant
And
| Mr Morrell |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court is an Application in an Appeal and supporting affidavit filed 17 September 2014 by Ms Blakely (“the mother”) seeking that her Notice of Appeal filed 28 August 2014 be expedited. The appeal relates to final parenting orders made by Judge Myers on 22 August 2014 concerning the parties’ two children, X and Y.
By those orders, the mother was required to relocate with the children from Queensland where she presently lives to the Newcastle environs.
In addition, the mother has also filed a Notice of Appeal concerning orders made by Judge Myers on 10 September 2014 refusing to stay the earlier orders (“the stay appeal”). The mother also seeks that this appeal be expedited and that the two appeals be heard together.
The respondent in the appeal is the children’s father Mr Morrell (“the father”). He supports the mother’s applications for expedition and consolidation of the appeals.
The mother having established a sound basis for expedition of both appeals, orders to that effect were made at the conclusion of the hearing and in relation to which I indicated I would shortly publish my reasons. These are those reasons.
Background facts
So as to give this application context, it is necessary to record a few seemingly uncontroversial facts.
The father has three children from previous relationships being C, B andA. It is understood that C and B live in Sydney with their mother and spend three weekends out of four with the father. A lives overseas with his mother and does not spend time with the father.
The parties commenced a relationship in about November 2006.
In 2009 their daughter X was born.
The parties separated in early 2010. The exact date is controversial but nothing turns on this. In any event, in June 2010 (when both parties agree they had separated) the mother and X moved to Queensland. It is understood that the mother has family in Queensland.
On or about 27 July 2010 property settlement orders were made by consent.
According to the father the parties recommenced cohabitation in about
April 2011 in New South Wales. The primary judge accepted that the parties were in a relationship between April and June 2011 and that by
June 2011 they were again separated.
The mother’s case was that the father had been physically and verbally abusive towards her. His Honour was not satisfied that the father’s actions would be sufficient to make a finding of family violence that would rebut any presumption of equal shared responsibility.
In 2012 the parties’ son Y was born.
At the time of the hearing before Judge Myers the father lived on the NSW Central Coast in a three bedroom unit and worked as a medical specialist. It was accepted that the father was declared bankrupt in August 2010 and was discharged from bankruptcy in about the middle of 2013.
At the date of the hearing the mother was living in Queensland Department of Housing rental accommodation and was not engaged in any paid employment.
The primary judge found that if the children were allowed to remain living in Queensland, that they would not be able to have a meaningful relationship with their father, especially given the mother’s negative views of the father. Having found that there was no risk of physical or psychological harm in either home, his Honour made the parenting orders now the subject of appeal.
On the same day that the mother filed her Notice of Appeal (27 August 2014) the mother also applied for a stay of the final orders made. Her application for a stay was refused in relation to which his Honour made orders and published his reasons for judgment on 10 September 2014. Those orders are also under appeal and the mother asks that it too be expedited and heard at the same time as the substantive appeal.
Presently, the mother and children have taken up short term rental accommodation in the Newcastle region. Her financial circumstances are precarious.
Discussion and conclusion
Section 94(2)(D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge, if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules2004 (Cth) (“the rules”) which specifically deal with the criteria to be applied on an application for expedition of an appeal.
Rule 12.10A deals with applications for an expedited trial. The rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The factors identified in the rules in respect of trials are apposite to this application. Most compelling in this case, however, is that the effect of his Honour’s orders is that if the mother wishes to continue her role as the primary carer of the children she and they must leave their home and, in apparently difficult circumstances, re-establish themselves in another state. With the parties’ daughter due to commence school next year, it is undoubtedly in the interests of her education, that these appeals are dealt with as quickly as can be accommodated.
The mother’s case for expedition is outlined in her affidavit filed
17 September 2014.
For these reasons expedition of both appeals is appropriate as is an order that they be heard at the same time.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 03 October 2014.
Associate:
Date: 03 October 2014
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