Tuesday, 23 March 2010

Family Court: stay refused

If clients are upset at a result in court, sometimes they want to appeal, thinking that an appeal will immediately stay or freeze the outcome. This is not the case, as the court must separately make a stay order.

An example of this was in the recent Family Court case of Cameron and Walker. The mother sought to stay an order of Justice Waddy allowing the amount of time that the father spent with the child to move from supervised to unsupervised.

Justice Coleman dealt with the stay application. Ordinarily, one cannot go judge shopping- the judge who made the orders hears the stay application also - but in this case Justice Waddy had retired.

Justice Coleman, in refusing the stay, noted the usual factors:

  • the order appealed against was a parenting order, which is discretionary (therefore harder to succeed against on appeal)
  • granting a stay is discretionary
  • the mother did not delay in appealing- the appeal was genuine not just to get a stay
  • the limiting of change in circumstances in this case did not render the appeal nugatory [useless] without a stay being put in place
  • the child's best interests are always the paramount concern

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