BLAKELY & MORRELL - [2014] FamCAFC 196

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

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…

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 BLAKELY & MORRELL

Details

AGLC: BLAKELY & MORRELL [2014] FamCAFC 196
Case: [2014] FamCAFC 196
Decision Date: 03 October 2014

CaseChat Overview and Summary

The appeal in Blakely & Morrell was brought by the mother, Ms Blakely, against the father, Mr Morrell, in relation to final parenting orders and the refusal of a stay of those orders. The central issue before the court was whether the appeals should be expedited and consolidated for hearing. The mother sought the expedition of the appeals due to the need to relocate to a different state, which would cause significant disruption, especially considering that their daughter was due to start school. The father supported the mother’s application for the expedition and consolidation of the appeals. The court found that expediting the appeals was in the interests of justice, particularly given the impact on the children’s education and the need for the family to relocate under challenging circumstances.

The court’s reasoning was grounded in the statutory provision under section 94(2)(D)(j) of the Family Law Act 1975, which allows for the expediting of the hearing of an appeal. Although there are no specific criteria mentioned in the Act or the Family Law Rules 2004 for expediting an appeal, the court considered the factors relevant to prioritising cases. The most compelling factor was the effect of the primary judge’s orders, which required the mother and children to relocate, thereby disrupting their lives significantly. The court also noted that expediting the appeals was in the best interests of the children, particularly with the daughter’s impending school start date. Therefore, the court granted the mother’s application for the expedition of the appeals and ordered that they be heard together.

As a result of the court’s decision, the mother’s applications for expedition and consolidation of the appeals were granted. The appeals, EA 118 of 2014 and EA 133 of 2014, were consolidated and listed for an expedited hearing. The parties were directed to attend upon the Eastern Appeals Registrar for further directions regarding the expedited hearing. Costs were reserved to the Full Court. The court’s decision ensured that the appeals would be addressed promptly, minimizing further disruption to the family and allowing for a timely resolution of the issues at hand.

Orders