Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2] - [2025] WASCA 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DUNNE (A PSEUDONYM) -v- LLOYD (A PSEUDONYM) [No 2] [2025] WASCA 122
CORAM:   THOMSON P
MITCHELL JA
HALL JA

HEARD:   11 AUGUST 2025
DELIVERED          :   11 AUGUST 2025
PUBLISHED           :   13 AUGUST 2025
FILE NO/S:   CACV 50 of 2025
BETWEEN:   DUNNE (A PSEUDONYM)
Appellant
AND
LLOYD (A PSEUDONYM)
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   JONES J
Citation: [LLOYD (A PSEUDONYM)] and [DUNNE (A PSEUDONYM)] [2025] FCWA 120
File Number            :   PTW 5273 of 2021

Catchwords:

Family law - Parenting orders - 'Reversal of care' orders - Where primary orders give sole parental responsibility of children to father - Where mother has appealed against primary orders - Application for stay of primary orders pending determination of the appeal - Principles governing stay applications in parenting matters

Legislation:

Family Court Act 1997 (WA)

Result:

Application for a stay dismissed

Category: A

Representation:

Counsel:

Appellant	:	P J Hannan
Respondent	:	P Giles SC and C Huntly
Intervener	:	No appearance

Solicitors:

Appellant	:	Klimek & Wijay Family Lawyers
Respondent	:	Gillian Marks & Company
Intervener	:	State Solicitor's Office (WA)

Case(s) referred to in decision(s):

Aldridge v Keaton [2009] FamCAFC 106
Anderson v Senior [2013] FamCAFC 152; (2013) 279 FLR 399
Bruce & Bruce (No 2) [2023] FedCFamC1F 1012
Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220
De L v Director-General, Department of Community Services (NSW) [1996] HCA 9; (1996) 70 ALJR 532
Dekker & Rapallino (No 2) [2024] FedCFamC1F 726
Dent v Bishop [2017] FamCA 81
Dunne (a pseudonym) and Lloyd (a pseudonym) [2025] WASCA 119
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
EJK v TSL [2006] FamCA 730; (2006) 202 FLR 240
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
In the Marriage of Clemett (1980) 50 FLR 248
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
K v B [2006] WASCA 100
Langley v Tarelli [No 2] [2020] FamCAFC 126
Lloyd (a pseudonym) and Dunne (a pseudonym) [2025] FCWA 120
P v Q [2023] WASCA 121
Re Evelyn [No 3] (1998) 23 Fam LR 73
Stephens v Taylor [2008] FamCAFC 74
T v S [No 2] [2015] WASCA 235
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

THOMSON P:

This is an application for an interim stay of 'reversal of care' orders made by the trial judge in respect of a parenting matter in the Family Court of Western Australia, pending an appeal of the trial judge's decision. The 'reversal of care' orders were made on 29 May 2025. The effect was that a child who was 4 years old, was immediately removed from the care of the appellant mother, who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASCA 122
Decision Date: 13 AUGUST 2025

CaseChat Overview and Summary

Dunne and Lloyd were parents to two children, and the dispute arose from the primary orders that gave sole parental responsibility of the children to the father. The mother, Dunne, had appealed against these orders and subsequently applied for a stay of the primary orders pending the determination of the appeal. The court had to decide on the principles governing stay applications in parenting matters and whether to grant the stay in this case. The court considered the balance of convenience, the interests of the children, and the likelihood of success of the appeal. The court found that the principles governing stay applications in parenting matters required a careful consideration of the best interests of the children and the potential impact of the stay on their welfare. The court ultimately decided that the stay should not be granted as it was not in the best interests of the children to disrupt the primary orders that had been in place for a significant period. The court recognised the importance of stability and consistency for children in parenting matters and found that the stay would not be in the best interests of the children. The orders of the court were that the application for a stay of the primary orders be dismissed.

In reaching its decision, the court emphasised the importance of considering the best interests of the children in all parenting matters, including stay applications. The court found that the mother had not demonstrated that the stay was necessary to protect the children's welfare or that the potential disruption to the children's lives would be outweighed by the benefit of the stay. The court also considered the impact of the stay on the father's ability to care for the children and found that it was not in the children's best interests to disrupt the primary orders that had been in place for a significant period. The court recognised that parenting orders are not absolute and may be subject to review or variation if circumstances change, but found that the circumstances in this case did not warrant a stay of the primary orders. The court's decision highlights the importance of considering the best interests of the children in all parenting matters, including stay applications, and the need for stability and consistency in children's lives.

Orders