Saturday, 21 February 2009

Family Court sets out principles of stay applications

The Full Court of the Family Court in Trahn and Long (No 2) has set out the principles of stay applications.

Stays have the effect of freezing a judge's original order while waiting the outcome of an appeal.

The Full Court held:

The authorities stress the discretionary nature of the application which
should be determined on its merits. Principles relevant to this matter included
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 “special”
    or “exceptional” circumstances;
    a person who has obtained a judgment is
    entitled to the benefit of that judgment;
  • the person who has obtained a judgment is entitled to presume the judgment
    is correct;
  • the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and
  • the best interests of the child the subject of the proceedings.

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