Blakely & Morrell (No.2) - [2014] FamCAFC 226

FAMILY COURT OF AUSTRALIA

BLAKELY & MORRELL (NO 2)

[2014] FamCAFC 226

FAMILY LAW – APPEAL – REFUSAL OF STAY – Where trial judge refused to stay the operation of parenting orders requiring the mother to relocate interstate pending the hearing of the appeal against those orders – Where appeal against discretionary judgment –Where his Honour did not accept that the true effect of his orders requiring two young children to relocate was that their mother would also have to relocate in order to continue being the primary carer – Where his Honour did not adequately engage in his reasons with the fact that the children had lived with the mother in Queensland for nearly all their lives and had little connection to the area in which the father lived –Where the decision was plainly wrong – Appeal allowed – Where stay granted pending determination of substantive appeal.

Family Law Act 1975 (Cth): s 117(1)

CDJ & VAJ (1998) 197 CLR 172
Clemett & Clemett (1981) FLC 91-013

Trahn & Long (No. 2) [2008] FamCAFC 194

APPELLANT:

Ms Blakely

RESPONDENT:

Mr Morrell

FILE NUMBER:

SYC

4645

2010

APPEAL NUMBER:

133

2014

DATE DELIVERED:

27 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan & Benjamin JJ

HEARING DATE:

25 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 September 2014

LOWER COURT MNC:

[2014] FCCA 2212

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Levick

SOLICITOR FOR THE APPELLANT:

Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT:

Mr Page SC with
Mr Kelly

SOLICITOR FOR THE RESPONDENT:

Emery Partners

Orders

The appeal against orders made by Judge Myers on 10 September 2014 be allowed.
The orders made by Judge Myers on 10 September 2014 be set aside.
The application for a stay of Orders 2-18 inclusive made by Judge Myers on 22 August 2014 be granted and the stay continue until the determination of Appeal No 118 of 2014.
Failing agreement between the parties, pending determination of Appeal No 118 of 2014 the orders made by Judge Myers on 13 June 2013 continue in operation.
The mother’s application to adduce further evidence in the appeal being paragraphs 14, 23, 33 and 48 of her affidavit filed 7 November 2014 be granted.
The father pay the mother’s costs of and incidental to appeal EA 133 of 2014, as agreed or to be assessed.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 133 of 2014
File Number: SYC 4645 of 2010

Ms Blakely

Appellant

And

Mr Morrell

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 16 September 2014, Ms Blakely (“the mother”) appeals against orders made by Judge Myers on

10 September 2014 whereby his Honour dismissed her application to…

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 (No.2)

Details

AGLC: Blakely & Morrell (No.2) [2014] FamCAFC 226
Case: [2014] FamCAFC 226
Decision Date: 27 November 2014

CaseChat Overview and Summary

The case of Blakely & Morrell (No.2) involved a dispute between the mother and the father of a child, concerning custody and parenting orders. The case was heard in the Family Court of Australia. The father appealed against orders made by Judge Myers on 10 September 2014, which had set aside previous orders made by the same judge on 13 June 2013. The mother had applied for a stay of certain orders, which was granted by Judge Myers on 22 August 2014. The father sought to appeal against the orders made by Judge Myers on 10 September 2014, and the mother sought to adduce further evidence in support of her application.

The legal issues before the court were whether the appeal against the orders made by Judge Myers on 10 September 2014 should be allowed, and whether the application for a stay of certain orders should be granted. The court also needed to determine whether the mother's application to adduce further evidence should be allowed. The court had to consider the relevant legal principles and authorities, as well as the evidence and submissions of the parties.

The court found that the appeal against the orders made by Judge Myers on 10 September 2014 should be allowed, and the orders should be set aside. The court also found that the application for a stay of certain orders should be granted, and the stay should continue until the determination of Appeal No 118 of 2014. The court found that, failing agreement between the parties, the orders made by Judge Myers on 13 June 2013 should continue in operation pending the determination of the appeal. The court also found that the mother's application to adduce further evidence should be granted, as it was necessary in the interests of justice. The court ordered that the father pay the mother's costs of and incidental to the appeal.

These orders reflect the court's consideration of the relevant legal principles and authorities, as well as the evidence and submissions of the parties. The court's decision was based on a careful analysis of the facts and law, and provides guidance for future cases involving similar issues.

Orders

Orders of the court

The appeal against orders made by Judge Myers on 10 September 2014 be allowed.

The orders made by Judge Myers on 10 September 2014 be set aside.

The application for a stay of Orders 2-18 inclusive made by Judge Myers on 22 August 2014 be granted and the stay continue until the determination of Appeal No 118 of 2014.

Failing agreement between the parties, pending determination of Appeal No 118 of 2014 the orders made by Judge Myers on 13 June 2013 continue in operation.

The mother’s application to adduce further evidence in the appeal being paragraphs 14, 23, 33 and 48 of her affidavit filed 7 November 2014 be granted.

The father pay the mother’s costs of and incidental to appeal EA 133 of 2014, as agreed or to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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