RYCROFT & HAMLETT (No.2) - [2018] FCCA 2289

FEDERAL CIRCUIT COURT OF AUSTRALIA

RYCROFT & HAMLETT (No.2)

[2018] FCCA 2289

Catchwords:
FAMILY LAW – Children – application for stay of orders pending appeal – where there was delay in filing notice of appeal – where stay of orders would necessitate another relocation of child – where child had already commenced schooling – where balance of convenience favoured mother’s relocation remaining undisturbed – application dismissed.

Cases cited:

De Lewinski v Direct General, New South Wales (1996) FLC 92-678

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681

K & B [2006] FamCA 848

Applicant:

MR RYCROFT

Respondent:

MS HAMLETT

File Number:

BRC 5094 of 2011

Judgment of:

Judge Egan

Hearing date:

18 July 2018

Date of Last Submission:

18 July 2018

Delivered at:

Brisbane

Delivered on:

18 July 2018

REPRESENTATION

Counsel for the Applicant:

Ms Cullen

Solicitors for the Applicant:

Integrated Family Law

Solicitors for the Respondent:	Genuine Legal
Counsel for the Independent Children's Lawyer:	Mr Bunning
Solicitors for the Independent Children's Lawyer:	SJP Law

IT IS ORDERED:

That the Application in a case filed on behalf of the father on 10 July 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5094 of 2011

MR RYCROFT

Applicant

And

MS HAMLETT

Respondent

REASONS FOR JUDGMENT

I have before me an application in a case filed on behalf of the father on 10 July 2018. That application seeks a stay of all of the orders made by me when I handed down judgment on 8 June 2018 in respect of a hearing which had been conducted before me on 5 June and 6 June 2018.
Relevantly, the application concerns a stay of the orders which I made which permitted the mother to relocate the residence of herself and the child [X] from Town A to Suburb 1, Suburb 1 being an inner city suburb in Brisbane.
I handed down reasons on 8 June 2018 where I essentially found that it was in the best interests of the child to remain living with her mother in circumstances where the travel time between Suburb 1 and Town B, where the father lives, was substantially the same as the travel time from Town B to Town A where the mother and the child at the time of trial were living.
The reasons given by me also adverted to the child being a resilient child in the context of her being well able to manage a move from Town A to Suburb 1, any such move involving necessarily a change of schooling.
In a practical sense this application for stay was filed at a time when the application was, because of listing issues, unlikely ever to be heard before 16 July 2018, that date being the date of the commencement of the third term of school for children enrolled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RYCROFT & HAMLETT (No.2)

Details

AGLC: RYCROFT & HAMLETT (No.2) [2018] FCCA 2289
Case: [2018] FCCA 2289
Decision Date: 18 July 2018

CaseChat Overview and Summary

The applicants, Rycroft and Hamlett, sought a stay of orders made by the Family Court pending their appeal. The dispute concerned the relocation of a child, with the mother having already relocated the child. The application for a stay was heard by Egan J.

The primary legal issue before the court was whether to grant a stay of the existing orders, which would effectively require the child to be relocated again. This required the court to consider the applicants' prospects of success on appeal, the risk of injustice if the stay was refused, and the balance of convenience.

Egan J noted the significant delay in the filing of the notice of appeal. Furthermore, the court found that a further relocation of the child would be disruptive, particularly as the child had already commenced schooling in the mother's location. The balance of convenience was found to favour the mother's relocation remaining undisturbed, as the disruption to the child's life would be substantial if the stay were granted.

Consequently, the application for a stay of the orders was dismissed.

Orders