LOCKLEY & BARDOT

Case [2016] FamCAFC 185

FAMILY COURT OF AUSTRALIA

LOCKLEY & BARDOT [2016] FamCAFC 185
FAMILY LAW – APPEAL – CHILDREN – STAY – Appeal against refusal to grant a stay – Where the mother has been the child’s primary carer since birth – Where the primary judge’s orders changed the child’s residence from the mother to the father and gave the father sole parental responsibility for the child – Where the child had never lived with the father – Where the mother has filed an appeal against these orders – Where the mother sought a stay of the orders pending the determination of the appeal – Where the primary judge refused to grant a stay – Where the primary judge assessed the prospects of success of the mother’s appeal by reference to the wrong Notice of Appeal – Where the proposed appeal is arguable – Where the primary judge also considered the time it would take for the mother’s appeal to be heard by the Full Court – Where the appeal was expedited  – Where the single expert gave evidence that moving the child to the care of his father would be upsetting in the short term – Appeal allowed. 

Family Law Act 1975 (Cth) s 60CC(3)(c)
Federal Circuit Court of Australia Act 1999 (Cth) s 54

Federal Circuit Court Rules 2001 (Cth) r 15.03
Adamson & Adamson (2014) FLC 93-622
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

APPELLANT: Ms Lockley
RESPONDENT: Mr Bardot
INDEPENDENT CHILDREN’S LAWYER: SP Nasti & Co Solicitors
FILE NUMBER: SYC 8874 of 2007
APPEAL NUMBER: EA 141 of 2016
DATE DELIVERED: 6 September 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ryan, Aldridge & Foster JJ
HEARING DATE: 6 September 2016
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 26 August 2016
LOWER COURT MNC: [2016] FCCA 2210

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
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Nasti of SP Nasti & Co Solicitors

Orders

  1. That the appeal be allowed.

  2. That the orders of Judge Neville made on 26 August 2016 be set aside.

  3. That the orders of Judge Neville made on 30 June 2016 be stayed pending determination of the Appellant Mother’s appeal in EA 110/2016 by the Full Court of the Family Court of Australia.

  4. That Order 9 of the Orders of Registrar Cameron dated 2 September 2016 be varied to extend time for the Appellant to file and serve her summary of argument in the substantive appeal (EA110/2016) to Thursday 8 September 2016 at 10.00 am.

  5. That the Application in an Appeal filed 31 August 2016 be allowed.

  6. That the Appellant Mother have leave to file and serve an Amended Notice of Appeal in accordance with the amended notice filed in…

Continue reading LOCKLEY & BARDOT

Sign in free to access the full text

Details
AGLC
LOCKLEY & BARDOT [2016] FamCAFC 185
Case
[2016] FamCAFC 185
Decision Date

CaseChat Overview and Summary

The appeal before the Court was brought by the mother, who sought to overturn the decision of Judge Neville to grant sole parental responsibility to the father and change the child’s residence from the mother to the father. The mother argued that the primary judge had erred in not granting a stay of the orders pending the determination of the appeal. The father, in turn, argued that the appeal should be dismissed as it had no reasonable prospects of success. The case was heard by the Full Court of the Family Court of Australia.

The primary legal issue before the Court was whether the primary judge had erred in not granting a stay of the orders pending the determination of the appeal. The Court also needed to consider whether the primary judge had assessed the prospects of success of the mother’s appeal by reference to the correct Notice of Appeal. The Court was required to determine whether the appeal was arguable, whether the primary judge had considered the time it would take for the mother’s appeal to be heard by the Full Court, and whether the appeal had been expedited.

The Court found that the primary judge had erred in not granting a stay of the orders pending the determination of the appeal. The Court found that the primary judge had assessed the prospects of success of the mother’s appeal by reference to the wrong Notice of Appeal. The Court found that the proposed appeal was arguable and that the primary judge had not considered the time it would take for the mother’s appeal to be heard by the Full Court. The Court found that the appeal had been expedited. The Court allowed the appeal and set aside the orders of Judge Neville. The Court stayed the orders of Judge Neville pending the determination of the mother’s appeal in EA 110/2016 by the Full Court of the Family Court of Australia. The Court also varied Order 9 of the Orders of Registrar Cameron dated 2 September 2016 to extend time for the mother to file and serve her summary of argument in the substantive appeal. The Court allowed the mother’s application in an appeal and granted her leave to file and serve an Amended Notice of Appeal. The Court made orders in accordance with the signed Minute of Consent marked Exhibit A in the appeal. The Court also made orders pending the determination of the appeal.

The Court ordered that the child shall live with the mother, that the child shall spend time with the father as specified, that the child shall have the following parental communication, that the child shall be enrolled in, and attend at [D] Public School, and that the mother and father do all things necessary to facilitate the child’s attendance with the mother upon a child and family psychologist agreed between the parties to address separation anxiety dynamic identified in Dr [B’s] Expert Report dated 6 March 2016. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the orders of Judge Neville made on 26 August 2016 be set aside.

3.

That the orders of Judge Neville made on 30 June 2016 be stayed pending determination of the Appellant Mother’s appeal in EA 110/2016 by the Full Court of the Family Court of Australia.

4.

That Order 9 of the Orders of Registrar Cameron dated 2 September 2016 be varied to extend time for the Appellant to file and serve her summary of argument in the substantive appeal (EA110/2016) to Thursday 8 September 2016 at 10.00 am.

5.

That the Application in an Appeal filed 31 August 2016 be allowed.

6.

That the Appellant Mother have leave to file and serve an Amended Notice of Appeal in accordance with the amended notice filed in Court today.

7.

Orders in accordance with the signed Minute of Consent marked Exhibit A in the appeal.

IT IS FURTHER ORDERED BY CONSENT AND PENDING DETERMINATION OF APPEAL EA 110/2016:

8.

That the child, [X], shall live with the Mother.

9.

That [X] shall spend time with the Father as follows:

(9.1) During school term:

(9.1.1) From 10.00 am Saturday, 17 September 2016 to 4.00 pm Sunday, 18 September 2016;

(9.1.2) 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.

(9.2) During school holidays:

(9.2.1) In term 3, 2016, from 10.00 am Saturday, 24 September 2016 to 10.00 am Saturday, 1 October 2016;

(9.2.2) In term 4, 2016, for one half of the school holiday period on a week-about basis.

10.

That [X] shall have the following parental communication:

(10.1) [X] shall be at liberty to telephone his mother or his father at any time that he requests;

(10.2) [X] shall have telephone contact with the parent with whom he is not living or spending time each Wednesday between 7.00 pm – 8.00 pm.

11.

That [X] shall be enrolled in, and attend at [D] Public School.

12.

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 [B’s] Expert Report dated 6 March 2016 and for this purpose the mother has liberty to provide a copy of Dr [B’s] report to the psychologist.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.