Burton and Churchin and Anor (No. 2)

In *Burton & Churchin and Anor (No. 2)* [2013] FamCA 741, the Family Court of Australia considered an application by Ms Burton (the stepmother) for a stay of substantive parenting orders made on 16 August 2013. These orders granted the child C Churchin's aunt, Ms Churchin, sole parental responsibility, the child's residence, and permission to relocate the child to France, with provisions for time with her sister and stepmother. The application for a stay pending Ms Burton's appeal was opposed by Ms Churchin, while the mother, Ms Myers, did not participate.

The central legal issue before the Court was whether to grant a stay of the parenting orders pending the determination of Ms Burton's appeal. In determining this, the Court was required to consider established principles for stay applications in child-related matters, including the onus on the applicant, the entitlement of a judgment holder to the benefit of their judgment, the bona fides of the applicant, the balance of convenience, the risk of an appeal being rendered nugatory, an assessment of the strength of the appeal, the desirability of limiting changes to a child's living arrangements, the timeframe for the appeal, and, critically, the best interests of the child. The Court also considered Ms Burton's application for costs.

Justice Johnston applied the principles from cases such as *Clemett & Clemett*, *Aldridge & Keaton*, *Trahn & Long (No. 2)*, and *Cape & Cape*. While acknowledging the aunt's entitlement to the benefit of the judgment and the fact that the appeal was against a discretionary judgment with potentially limited grounds, the Court ultimately granted the stay. This decision was primarily based on the desirability of limiting changes to the child's living arrangements and the potential distress and disruption that would occur if the child were to settle in France only to be repatriated to Australia following a successful appeal. The Court also noted the availability of an early hearing date for the appeal. Ms Burton's undertaking to pay the child's school fees in France was noted, and her costs application was dismissed, with the Court adhering to the usual costs rule under s 117(1) of the *Family Law Act 1975* (Cth).