Pawley and Pawley (No.2)

[2017] FCCA 1100

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAWLEY & PAWLEY (No.2) [2017] FCCA 1100

Catchwords:
FAMILY LAW – Parenting – relocation – slip rule pursuant to rule 16.05 – stay application dismissed.

Legislation:

Family Law Rules 2004 (Cth), rule 22.11
Federal Circuit Court Rules 2001 (Cth), rule 1.05(2)

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685

Campbell & Spalding [1998] FamCA 66
Clemett & Clemett (1981) FLC 91-013
D & SV [2003] FamCA 280
DJL v The Central Authority (2000) 201 CLR 226
Elyard Corporation Proprietary Limited & DDB Needham Sydney Proprietary Limited (1995) 133 ALR 2006

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) [1986] HCA 13; [1986] 160 CLR 220

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; [1986] 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K & B [2006] FamCA 848
Morgan & Miles (2007) FLC 93-343
Sampson & Hartnett(No.10) [2007] FamCA 1365
Tobey & Rezek [2017] FamCAFC 84

Applicant: MS PAWLEY

Respondent: MR PAWLEY

File Number: NCC 363 of 2017

Judgment of: Judge Middleton

Hearing date: 16 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Newcastle

Delivered on: 26 May 2017

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Mr Brogan, Bale Boshev Lawyer

Counsel for the Respondent: N/A

Solicitors for the Respondent: Mr White, Powe & White Family Lawyers

THE COURT ORDERS THAT:

1. The application in a case filed 10 May 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pawley & Pawley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 363 of 2017

MS PAWLEY

Applicant

And

MR PAWLEY

Respondent

REASONS FOR JUDGMENT

1. By application in a case filed on 10 May 2017, Ms Pawley, the mother, sought the following orders: 

   (i)All requirements under the rules be and are hereby abridged to enable this application to be listed and heard before Judge Middleton as a matter of priority or otherwise on an urgent basis;

   (ii)The order made on 4 May 2017 by Judge Middleton be stayed;  

   (iii)Costs.

2. The affidavit of the mother filed 10 May 2017 in support of her application indicated that the stay was sought pending an appeal. The only order made on 4 May 2017 by me was made pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

Background

1. Proceedings were commenced by Mr Pawley, the father, on 4 February 2017.  The parties commenced cohabitation in late 2009, married on (omitted) 2013, and separated on a final basis in January or February 2016. 

2. The proceedings relate to two very young children, X, born (omitted) 2014, and Y, born (omitted) 2016.

3. The father had been spending one day per week with X from the date of separation, but had spent no time with Y but for brief contact at changeovers with X.