Benworth and Benworth (No 2)

In *Benworth & Benworth (No 2)*, the Family Court of Australia considered an application by the mother for a stay of certain parenting orders made on 13 May 2011, pending the determination of her appeal against those orders. The father opposed the stay application and sought specific time with the child during the upcoming school holidays if the stay were granted. The dispute centred on the interpretation and implementation of order 6(c) of the original parenting orders, which governed the father's time with the child during school holidays.

The primary legal issue before the court was whether to grant a stay of order 6(c) pending the mother's appeal. This required the court to assess whether the mother had established a proper basis for the stay, considering established principles for such applications in parenting matters. These principles include the applicant's onus to demonstrate a proper basis, the entitlement of a judgment holder to the benefit of their judgment, the insufficiency of a mere appeal filing, the bona fides of the applicant, the balancing of competing rights and convenience, the risk of the appeal becoming nugatory, an assessment of the appeal's arguable strength, the desirability of limiting changes to a child's living arrangements, and ultimately, the best interests of the child.

The court reasoned that the mother's appeal had merit, particularly concerning the interpretation of order 6(c) and its consistency with the trial judge's finding of maintaining the status quo. The mother argued that the status quo involved four-night blocks of time with the father, whereas the father's notices under order 6(c) proposed longer periods. The court found that the father's initial notice dated 16 May 2011, which specified four nights and three nights with the child during the September/October school holidays, was a formal notice pursuant to order 6(c) and not an invitation to negotiate. The court also considered the potential for the child's anxiety to be adversely affected by extended stays with the father, a point raised by the mother based on expert evidence. Given the proximity of the appeal hearing and the potential for the appeal to be rendered nugatory, the court concluded that a stay was warranted.

The court ordered that order 6(c) be stayed, and that for the September/October school holidays, the father would spend time with the child as specified in his notice of 16 May 2011. If the appeal had not been determined before the end-of-year school holidays, the parties were to negotiate those arrangements, commencing with the father providing his requests six weeks prior. The court also noted that particulars of obligations and consequences of contravention were to be included in the orders.