Lockley and Bardot (No. 2)
[2016] FamCAFC 210
•12 September 2016
FAMILY COURT OF AUSTRALIA
| LOCKLEY & BARDOT (NO. 2) | [2016] FamCAFC 210 |
| FAMILY LAW – APPEAL – CHILDREN – Where the parties have reached consent orders in relation to the disposition of the appeal – Where the primary judge erred in failing to apply the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) – Appeal allowed – Orders set aside – Proceedings remitted for rehearing. |
| Family Law Act 1975 (Cth) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8 |
| Mazorski v Albright (2008) 37 Fam LR 518 |
| APPELLANT: | Ms Lockley |
| RESPONDENT: | Mr Bardot |
| INDEPENDENT CHILDREN’S LAWYER: | SP Nasti & Co Solicitors |
| FILE NUMBER: | SYC | 8874 | of | 2007 |
| APPEAL NUMBER: | EA | 110 | of | 2016 |
| DATE DELIVERED: | 12 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Murphy & Aldridge JJ |
| HEARING DATE: | 12 September 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2016 |
| LOWER COURT MNC: | [2016] FCCA 1982 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Wearne (solicitor advocate) |
| SOLICITOR FOR THE APPELLANT: | Legal Aid NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | McCabe Partners Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lawson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | SP Nasti & Co Solicitors |
Orders
IT IS ORDERED BY CONSENT IN ACCORDANCE WITH MINUTES OF CONSENT MARKED EXHIBIT A IN THE APPEAL:
Appeal allowed.
That the final orders of Judge Neville dated 30 June 2016 be set aside in their entirety.
That the proceedings be remitted for further hearing before a different trial judge.
That there be no order for costs.
That interim orders be made in accordance with the document marked annexure ‘A’ pending further order.
IT IS FURTHER ORDERED BY CONSENT AND PENDING DETERMINATION OF THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT:
That the child, X shall live with the Mother.
That X shall spend time with the Father as follows:
(7.1) During school term:
(7.1.1)From 10.00 am Saturday, 17 September 2016 to 4.00 pm Sunday, 18 September 2016;
(7.1.2)Commencing Friday, 14 October 2016 from after school (or 3.00 pm) Friday to before school (or 9.00 am) Monday and each alternate weekend thereafter.
(7.2) During school holidays:
(7.2.1)In term 3, 2016, from 10.00 am Saturday, 24 September 2016 to 10.00 am Saturday, 1 October 2016;
(7.2.2)Commencing term 1, 2017, for one half of the school holiday periods in terms 1, 2 and 3 as agreed, or if not agreed, from 10.00 am on the first Saturday of the school holiday period to 10.00 am on the second Saturday of the school holiday period;
(7.2.3)In term 4, 2016, for one half of the school holiday period on a week-about basis commencing 4.00 pm Sunday, 25 December 2016 to 4.00 pm Sunday, 1 January 2017.
That X shall have the following parental communication:
(8.1)X shall be at liberty to telephone his mother or his father at any time that he requests;
(8.2)X shall have telephone contact with the parent with whom he is not living or spending time each Wednesday between 7.00 pm to 8.00 pm.
That X shall be enrolled in, and attend at D Public School.
That for the purposes of changeover, if changeover is not to occur at X’s school, changeover shall occur at McDonalds, in Suburb P.
That the mother and father do all things necessary to facilitate X’s attendance with the mother upon a child and family psychologist agreed between the parties to address separation anxiety dynamic identified in Dr R’s Expert Report dated 6 March 2016 and for this purpose the mother has liberty to provide a copy of Dr R’s report to the psychologist.
IT IS FURTHER ORDERED:
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lockley & Bardot (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 110 of 2016
File Number: SYC 8874 of 2007
| Ms Lockley |
Appellant
And
| Mr Bardot |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
The parties have reached an agreement, which includes the agreement of the Independent Children’s Lawyer, that the appeal should be allowed and various orders consequential upon that decision be made. In essence, the agreement provides that pending remitter X (“the child”) would continue to live with his mother and spend time with his father, along the lines of the orders made by this Court last week in the stay appeal.
In my view, the appellant made out a compelling case for intervention by this Court. I am satisfied his Honour erred in his failure to apply the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), the consequences of which were material to the approach that his Honour then took in relation to the primary considerations and the question of weight to be attached to family violence and risk of harm.
His Honour, at paragraph 10 of his reasons for judgment, quoted with obvious approval from the decision of Brown J, Mazorski v Albright (2008) 37 Fam LR 518, and there misstated not her Honour’s decision, but the application of that decision in the context of risk of harm in cases to which the 2011 Family Violence Amendments apply.
His Honour also, in my view, focused almost unerringly on the child’s wishes to have a broader or larger family, but did not take into account what seems to be the unchallenged evidence that the child’s greatest fear was to not be able to reside with his mother. There can be no doubt that that fear was a weighty consideration and which his Honour either overlooked or incorrectly viewed as being irrelevant.
I am also of the view that his Honour’s finding that the mother’s sister’s evidence was compelling was not available to him. I could go on, but these remarks are sufficient to show that the appellant was entitled to this Court’s intervention, and I am content to make the orders as presented.
Murphy J
I agree with Ryan J that error is established and that orders in accordance with the parties’ agreed disposition of the appeal are appropriate.
Aldridge J
I also agree.
Ryan J
The orders will be in accordance with exhibit A. We are agreed that cost certificates in favour of the respondent and Independent Children’s Lawyer are appropriate.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy and Aldridge JJ) delivered on 12 September 2016.
Associate:
Date: 1 November 2016
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