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.