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

Parental leave surrogacy: what surrogates and parents can claim

Parental leave is one of those practical issues that can be overlooked in the excitement and complexity of a surrogacy arrangement. Yet it matters enormously. Time away from work is needed for the birth, recovery, bonding, medical appointments, travel and the first intense weeks of caring for a newborn. For surrogates, intended parents and a… Read More »Parental leave surrogacy: what surrogates and parents can claim

Relocating with children: what Australian family law requires

Relocating after separation can be an entirely understandable decision. A parent may have a new job, family support, a new relationship, financial pressures or a desire to make a fresh start. But when children are involved, moving a considerable distance can have serious family law consequences. A relocation is not simply about where one parent… Read More »Relocating with children: what Australian family law requires

Australian citizenship surrogacy: Home Affairs wants more proof

Australian intended parents pursuing surrogacy overseas need to be ready for a growing paperwork burden when applying for Australian citizenship by descent. A birth certificate alone may no longer be enough. Recent applications indicate that the Department of Home Affairs is increasingly asking for detailed evidence of the surrogate’s pregnancy and birth records, alongside evidence… Read More »Australian citizenship surrogacy: Home Affairs wants more proof

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