Pawley and Pawley (No 2)

The appeal, EA 33 of 2017, was brought by the mother, challenging the interim parenting order made by the Family Court of Australia. The primary concern was the arrangement for the father to spend time with their two young children. The mother had moved to a new location when the proceedings commenced, but the interim order did not require her to return to her former residence. The father argued that the primary judge had erred by not ordering the mother to move back to the previous area. The mother, however, was prepared to continue facilitating weekly time with the father. The cross-appeal, EA 54 of 2017, was brought by the father, who sought an amendment to the interim order to require the mother to live in the area of her former residence for part of each week.

The court addressed two primary legal issues. Firstly, whether the primary judge had erred in not ordering the mother to return to the previous residence area, given that the interim order did not prevent her from remaining in the new location. Secondly, the court considered whether the primary judge had erred in amending the interim order under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by imposing a requirement for the mother to live in the area of her former residence for part of each week. The court examined whether the proposed amendment was one about which no real difference of opinion could exist, as required by the rule.

The court found that the primary judge had not erred in not ordering the mother to return to the previous residence area, as the interim order did not prevent her from remaining in the new location, and she was prepared to facilitate weekly time with the father. However, the court determined that the primary judge had erred in amending the interim order to require the mother to live in the area of her former residence for part of each week. The court held that the proposed amendment did not meet the criteria of being one about which no real difference of opinion could exist, as required by rule 16.05. The father conceded that the cross-appeal was correct. The court dismissed the mother's appeal, allowed the father's cross-appeal, set aside the orders made by Judge Middleton on 4 May 2017, dismissed the father's appeal, made no order as to costs, and granted costs certificates to both parties.