LOCKLEY & BARDOT

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.