Burton & Churchin & Anor

The appeal, brought by Ms Burton, the step-mother, against orders of the trial judge in the Family Court of Australia, was allowed and the orders set aside. The orders had provided for the child to live with the aunt in France and that the aunt have sole parental responsibility. The appeal against a stay order was dismissed. The Full Court found that the trial judge had erred in applying s 60CC(2)(a) of the Family Law Act 1975 (Cth) and that this error coloured everything that followed in the trial judgment. The court found merit in the grounds of appeal challenging the application of s 60CC(2)(a) and the approach to the evidence concerning the child’s primary attachment. The appeal against the parenting orders must succeed and those orders be set aside. It appeared common ground that if the appeal succeeded it would be necessary for there to be a new trial. It also appeared to be agreed that earlier interim orders made on 7 June 2011 which provided for the child to live with the step-mother, who was to have sole parental responsibility, would revive. It was common ground that the costs of the appeal in relation to the stay order should be costs in the main appeal and that no order for costs in favour of any party would be justified, but that both parties and the independent children’s lawyer should receive the appropriate costs certificates for the appeal and the new trial.