Principles of stay applications in children’s matters: Family Court

Principles of stay applications in children’s matters: Family Court

The Full Court of the Family Court in Aldridge and Keaton has helpfully set out the principles of stay applications:

The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

  • the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
  • a person who has obtained a judgment is entitled to the benefit of that judgment;
  • a person who has obtained a judgment is entitled to presume the judgment is correct;
    the mere filing of an appeal is insufficient to grant a stay;
  • the bona fides of the applicant;
  • a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
  • a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
  • some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
  • the desirability of limiting the frequency of any change in a child’s living arrangements;
  • the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time;
  • the best interests of the child the subject of the proceedings are a significant consideration.
Request an Appointment
Fill in the form below to find out if you have a claim.
Request an Appointment - Stephen Page
Things to Read, Watch & Listen

How I Became a Fertility and Surrogacy Lawyer

A legal career that began in mainstream family law evolved into one of Australia’s most specialist practices in fertility, surrogacy and assisted reproductive technology. Over almost four decades, Stephen Page has handled thousands of complex matters, influenced law reform, advised clinics, taught ethics and regulation, and championed the human rights of everyone affected by assisted… Read More »How I Became a Fertility and Surrogacy Lawyer

Lessons From My Own Surrogacy Journey

Stephen Page’s story is a frank, sometimes brutal, ultimately hopeful account of what it means to pursue parenthood when the path is anything but straightforward. From a childhood conviction to be a dad, to confronting infertility, miscarriage, an ectopic pregnancy and the legal uncertainty around parentage, his journey illustrates the medical, emotional and legal hurdles… Read More »Lessons From My Own Surrogacy Journey

Australian Surrogacy Law: Setting the Record Straight on Misleading Claims

Response to op-ed in The Australian by Stephen Page On Wednesday, a UK writer and anti-surrogacy advocate wrote an op-ed in The Australian. I first became aware of the article when my colleague Sarah Jefford OAM told me. For some reason, the author conflated transmen giving birth with surrogacy ( I am still missing the… Read More »Australian Surrogacy Law: Setting the Record Straight on Misleading Claims

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board