Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2]
[2025] WASCA 122
•13 AUGUST 2025
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 resided in Perth, and sent to live with the respondent father in rural South Australia. The application was made almost 3 weeks after the 'reversal of care' orders had been implemented. The appellant sought a mandatory injunction requiring the child to be returned to her care in Perth pending determination of the appeal.
In circumstances where the appeal has been listed for an urgent hearing on an expedited basis, which is to occur on 10 September 2025, I formed the view that the application for a stay and mandatory injunction should be dismissed. I joined in making orders to that effect on 11 August 2025. These are my reasons for doing so. These reasons have required some consideration of the general principles concerning stay applications in the context of parenting matters in the Family Court of Western Australia, and particularly a stay of 'reversal of care' orders.
Background
I have set out a summary of the background to this case in paragraphs [3] ‑ [11] of my judgment relating to this Court's jurisdiction to hear the appeal in this matter.[1] I adopt that summary for the purposes of this judgment. I also supplement the summary of the background as follows.
[1] Dunne (a pseudonym) and Lloyd (a pseudonym) [2025] WASCA 119.
It is not necessary to provide a comprehensive analysis of the trial judge's reasons for making the 'reversal of care' orders. It is adequate to say that he identified the existence of parental conflict, which he considered affected William.[2] The trial judge found that the appellant 'was mostly responsible for the escalation of the parties' conflict'.[3] He also said that he was 'entirely sceptical that [the appellant] is appropriately psychologically minded and insightful when it comes to [William and the respondent].'[4] The trial judge found that 'the conflict between the parties is intractable due largely to [the appellant's] feelings towards [the respondent].'[5] He also found that he had no confidence that the appellant would now follow the orders imposed by the Court, given her repeated failures to comply with previous orders, her fixed view of the respondent and the untrustworthiness of much of her evidence.[6]
[2] [Lloyd (a pseudonym)] and [Dunne (a pseudonym)] [2025] FCWA 120 [314] (primary decision).
[3] Primary decision [316].
[4] Primary decision [317].
[5] Primary decision [318]. See also [364].
[6] Primary decision [318].
The trial judge made some particular credibility findings which were significant. In relation to the single expert witness (Ms Eliza Hatton), the trial judge carefully considered her evidence,[7] and then concluded:[8]
In my view, Ms Hatton failed to properly assess [the appellant's] views about [the respondent] and her contribution to the parties' conflict including her failure to facilitate overnight time and its impact upon [the respondent]. I consider Ms Hatton's reports reveal her to have been an advocate for [the appellant]. My view was strengthened by the manner in which she gave her oral evidence particularly when being cross examined by the solicitor for [the appellant] during which I consider Ms Hatton seemed unreasonably eager to criticise [the respondent].
I decline to accord Ms Hatton's opinions significant weight and prefer the evidence and opinions of Mr De Rooster.
[7] Primary decision [137] ‑ [154].
[8] Primary decision [155] ‑ [156].
Notwithstanding this, as the appellant's counsel pointed out at the hearing of the stay application, the trial judge accepted the opinion of Ms Hatton about the 'drastic' effect of 'reversal of care' orders, and that such orders could have a profound psychological and emotional impact upon a 4‑year‑old child.[9] Ms Hatton was of the opinion that a 'reversal of care' could lead to anxiety, confusion and a sense of abandonment, and foster insecure attachment styles. In Ms Hatton's second report tendered at trial, she also outlined certain other adverse outcomes which could be caused by a 'reversal of care'.[10] As well, the trial judge accepted the opinion of Ms Hatton that the conflict between the appellant and respondent was 'intractable', which meant that they would be unable to effectively co‑parent or undertake parallel parenting.[11]
[9] Primary decision [345].
[10] Primary decision [345] and [369].
[11] Primary decision [364].
The trial judge specifically considered each of the matters prescribed by s 66C(2) and (3) of the Family Court Act 1997 (WA) (FCA) in determining the best interests of William, in the context of considering who should parent him.[12] Significantly, the trial judge made the following findings:
[12] Primary decision [319] ‑ [362].
(a)William's behaviour was not dysregulated when he was with the respondent, but was often dysregulated when he was with the appellant;[13]
(b)he had no confidence that the appellant's underlying attitudes towards the respondent were susceptible of change.[14] He considered that the appellant's attitude towards the respondent was entrenched and pervasive;[15]
(c)William was consequently at risk of psychological harm from the appellant, particularly whilst in her primary care. The trial judge did not believe that the appellant would be able to provide William with a psychologically healthy environment, and this situation was unlikely to improve by William living with the appellant, whilst the appellant continued to have counselling and William continued to have occupational therapy.[16]
(d)the appellant's feelings about the respondent were likely to hamper ongoing facilitation of the father/son relationship just as they had done in the past;[17]
(e)the appellant's parenting style, which was overprotective and permissive, was likely to have caused William to have felt smothered and/or unsupported. The respondent was better able to manage William's behaviour;[18]
(f)the respondent was a person of insight particularly when it came to understanding and parenting William. The respondent had a more balanced understanding of the appellant, than she had of the respondent.[19] The trial judge considered that the respondent would be able to provide William with a psychologically healthy environment. The trial judge found that the respondent and his family were warm and supportive;[20]
(g)the trial judge had no confidence that the appellant would promote William's relationships with the respondent and his family. Conversely, the trial judge considered that the respondent was likely to promote William's relationships with the appellant and her family;[21]
(h)it was likely that the parties would continue to be unable to effectively communicate;[22]
(i)it would not be in the best interests of William for the presumption of equal shared parental responsibility to apply.[23] It would be in the best interests of William to live primarily with the respondent and for the respondent to have sole parental responsibility for William.[24]
[13] Primary decision [326].
[14] Primary decision [326].
[15] Primary decision [370].
[16] Primary decision [370].
[17] Primary decision [326].
[18] Primary decision [349].
[19] Primary decision [350].
[20] Primary decision [371].
[21] Primary decision [362].
[22] Primary decision [364].
[23] Primary decision [365].
[24] Primary decision [372].
At the time of giving judgment on 29 May 2025, the trial judge ordered that the 'reversal of care' orders should take immediate effect. Practically, that meant that William was dropped off at school that morning by his mother, but was collected from school that afternoon, and taken to South Australia, by his father. The trial judge restrained the appellant and her mother from going to the school during that day to see or remove William. The trial judge adopted this course, because he said:[25]
I am entirely sceptical that the grief that [the appellant] has experienced from this outcome is likely to improve, and I do not consider that [William] will be shielded from the obvious distress that [the appellant] will be feeling and the obvious distress that the maternal family is no doubt experiencing as well. So I think it's appropriate that [William] come into his father's care today. … But my thought is that [the respondent] collect [William] immediately. And I am certainly ‑ I think it's in [William's] best interests that I restrain the mother and the grandmother from attending [William's] school in the interim.
[25] Transcript, [Lloyd (a pseudonym)] v [Dunne (a pseudonym)] [2025] FCWA 120, Family Court of Western Australia, 29 May 2024, 14.35 ‑ 14.48.
The trial judge contemplated that he would continue to carefully manage the transition for William.[26] He said that it might be in the best interests of William, initially, to have limited or no contact with the appellant before William began to spend time with her and her family.[27] The trial judge considered that reintroduction would require careful preparation and the appellant, in particular, might well need considerable psychological support.[28]
[26] Primary decision [379].
[27] Primary decision [378].
[28] Primary decision [378].
The trial judge's plan to carefully manage William's transition has not proved possible, at least to this point, because the appellant has made an application for the trial judge to disqualify himself from further involvement in the case, upon the basis of bias. There has been very limited supervised access by the appellant of William, and a small number of electronic communications by a video communication platform.
Basis of stay application
The urgency of the stay application is based upon the opinion of the single expert witness, who considered that William would not be able to cope with being separated from the mother for four consecutive weeks.[29] However, as mentioned previously, the trial judge declined to accord significant weight to the opinions of the single expert witness (Ms Eliza Hatton), as this witness had become an advocate for the mother.
[29] Appellant's Submissions, 4 July 2025, [17] ‑ [20], [41] ‑ [42], [46].
The stay application is otherwise put upon the basis of evidence of an occupational therapist, that William's behaviour was dysregulated and that the respondent failed to detect this, given his evidence that William did not display dysregulated behaviour when with him.[30] The trial judge did not record the evidence of the occupational therapist as showing significant dysregulation;[31] and in any event, if the evidence of the father is accepted, that does not establish (as the mother contends) that William was masking his dysregulation in the father's presence or that the father failed to recognise the dysregulated behaviour. Another alternative is that the dysregulated behaviour ceased in his father's presence.
[30] Appellant's Submissions, 4 July 2025, [37] ‑ [38].
[31] Primary decision [116] ‑ [122]. The report reproduced in [117] refers to William initially becoming very dysregulated and upset during occupational therapy sessions, but this had improved.
Grounds of appeal
The appellant's case was filed in the appeal on 22 July 2025.
If successful, the appellant seeks a re‑trial. The appellant's case does not seek orders which would finally dispose of the case in favour of the appellant. Consequently, if the appeal succeeds, it will necessarily take substantial further time before the case is resolved finally, one way or the other.
The appeal grounds (without particulars) are as follows:
1.In circumstances where it is inferred that the court identified an unacceptable risk to the child in the care to the mother, the primary judge failed to consider what steps could reasonably be taken to allow the child to maintain a meaningful relationship with the other, to the maximum extent possible, to ameliorate that risk.
2.The primary judge erred in law in failing to consider, or to give adequate consideration to, the impact of the orders upon the child.
3.The primary judge erred in law in failing to conduct a proper risk assessment in relation to each the parties and the orders that were proposed by them.
4.The primary judge erred in law in failing to give any, or adequate consideration, to what further order(s) could be made to sufficiently ameliorate any risk in the Mother's household, as identified by the Court.
5.The primary judge erred in law by failing to give adequate reasons for any assessment of risk undertaken and why a reversal of care was warranted.
6.The primary judge erred in law by failing to adequately consider the 'additional considerations' outlined in subsections 66C(1) and (3) of the FC Act.
7.The Court erred in failing to give adequate reasons in relation to the issues canvassed in Grounds 1 ‑ 6.
8.The primary judge erred in finding that the evidence of Ms Hatton, the single expert, should not be accorded significant weight, notwithstanding that the primary judge then, without explanation sought to rely upon aspects of her evidence.
9.Given the delay between the conclusion of the hearing in the delivery of final judgement the Court was unable, or at least impaired, in engaging with the evidence and making orders in the best interests of the child.
Grounds 1 ‑ 7 relate to the exercise of assessing the risk to the welfare of William by reason of the 'reversal of care' orders which severed William's relationship with the appellant, and whether this step was proportionate and necessary in the context of the risks to William posed by remaining as the sole parental responsibility of the appellant. It is alleged that the trial judge did not identify or properly consider the adverse impact upon William in transferring sole parental responsibility to the respondent, or at least did not give reasons demonstrating that he had undertaken the necessary weighing exercise comparing the risks of transfer of care and the risks of leaving William in the appellant's care.
Ground 8 concerns the trial judge's rejection of the evidence of Ms Hatton.
Ground 9 relates to the effect of the delay in giving judgment upon the evidence of the best interests of William.
Principles governing stay applications in parenting matters
Under r 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CAR), a single judge of the WA Court of Appeal has the power to make an 'interim order' in an appeal. An 'interim order' includes an order staying the proceedings in the primary court or the execution of the primary court's reasons: r 3(1)(b) of the CAR. It also includes any other order that the Court of Appeal may make before the appeal is concluded (other than an order giving or refusing to give leave to appeal): r 3(1)(h) of the CAR. Thus, the WA Court of Appeal has the power:
(a)to 'stay' the decision of Justice Jones;
(b)to issue an injunction pending the determination of the appeal, requiring the respondent to return William to the care of the appellant.
The critical question is whether this court should exercise such powers in the circumstances of this case.
There are many cases summarising the general principles applicable to guide an appeal court as to whether to grant a stay of a decision by a primary judge pending resolution of an appeal. There are also cases which consider this issue specifically in the context of parenting orders.
The mere filing of an appeal is insufficient to grant a stay.[32] A person who has obtained a judgment is generally entitled to the benefit of that judgment.[33] That is because a judgment is presumed to be correct until error is found by an appellate court.[34] The applicant for a stay of orders made by a primary judge pending determination of an appeal must therefore show that 'special circumstances' justify the grant of a stay.[35] In P v Q,[36] this Court said that such 'special circumstances' will exist, in the context of an appeal being rendered nugatory, where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed. That formulation of the test of special circumstances is derived from Commissioner of Taxation v Myer Emporium Ltd.[37]
[32] Aldridge v Keaton [2009] FamCAFC 106 [18].
[33] Aldridge v Keaton [18]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22]; P v Q [2023] WASCA 121 [88].
[34] Bruce & Bruce (No 2) [2023] FedCFamC1A 226 [22].
[35] P v Q [88].
[36] P v Q [89].
[37] Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220, 222 ‑ 223.
In Aldridge & Keaton,[38] in a passage which is frequently cited in family law matters,[39] the Full Court of the Family Court said that it is not necessary for an applicant for a stay to demonstrate any 'special' or 'exceptional' circumstances. However, in Bruce & Bruce (No 2)[40] the Full Court of the Federal Circuit and Family Court (Division 1) referred to the need to show that 'there is a real risk that it will not be possible for a successful appellant to be restored to his former position if the judgment against him is executed'.[41] That is the test from Myer Emporium. In effect, that is the same as the test of 'special circumstances' adopted in P v Q. For that reason, there is no difference of any substantive significance between the approach which has been adopted in this court and the Federal Circuit and Family Court (Division 1).
[38] Aldridge v Keaton [18].
[39] For example, the respondent referred to Dekker & Rapallino (No 2) [2024] FedCFamC1F 726 [29].
[40] Bruce v Bruce (No 2) [22].
[41] Myer Emporium, 223.
However, what this discussion emphasises is that the use of particular phrases or expressions, such as 'special circumstances', 'exceptional circumstances', 'rendering an appeal nugatory', and 'preserving the subject matter of the litigation' should not be allowed to divert attention away from the basic purpose of a stay, which is to preserve the integrity of the administration of justice where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if judgment is executed. In cases involving parenting matters, it may not necessarily be helpful to use such expressions. Generally, the subject matter of the litigation (namely, the child) will continue to exist whatever the outcome of the appeal, making it inapt to speak of a stay being necessary to preserve the subject matter of the litigation ‑ although there may be limited situations where the subject matter of the litigation is removed from the power of the court,[42] such as where a child is taken overseas. As well, there might be special circumstances for other reasons which are particular to parenting matters. For example, if the appeal involves allegations of sexual or other misconduct by a parent towards a child and that parent has been granted parenting rights by the primary judge. If the appeal succeeds, the child may have been exposed to care by a parent when that should not have occurred.
[42] T v S [No 2] [2015] WASCA 235 [13].
In considering whether a stay should be granted in respect of 'reversal of care' orders, it may be significant whether these have been carried into effect.[43] It is desirable to limit the frequency of any change in a child's living arrangements.[44] Consequently, where 'reversal of care' orders have not been implemented, and a stay is sought, it has been said that: [45]
If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
On the other hand, where 'reversal of care' orders have been implemented, it may be desirable not to return the child to the position prior to the orders being carried out, with the prospect that, if the appeal fails, the child then is handed back to the successful parent.[46]
[43] K v B [2006] WASCA 100 [27] ‑ [30].
[44] Aldridge v Keaton [18]; Bruce & Bruce (No 2) [24].
[45] In the Marriage of Clemett (1980) 50 FLR 248, 76, 175.
[46] K v B [30].
There is some debate whether an order which stays a parenting order is itself a parenting order. The significance of this is that if the stay order is not a parenting order, there is no statutory prescription that the stay order must be made in the best interests of the child.[47] However, even where a court has taken the view that a stay order is not a parenting order itself, the court has concluded that the welfare of the child is at least a significant consideration, even if it is not the paramount consideration.[48]
[47] P v Q [91].
[48] P v Q [91].
In my view, whether or not a stay order is subject to a statutory prescription that it must be made in the best interests of the child, I consider that, logically, this must be so. The order under appeal is supposed to have been made in the best interests of the child, and the appeal court must make final orders having regard, as a paramount consideration, to what is in the best interests of the child. It therefore seems odd to conclude that an interim stay order could be an order which is not made giving effect to the best interests of the child. If it were to be so, the stay order could have a different aim or object to the final orders under appeal, which seems a difficult proposition to sustain.
Even if there are special circumstances which would justify the grant of a stay, a stay will be refused unless the appeal ultimately has reasonable prospects of success.[49] In assessing the prospects of success, it is important that a decision on a parenting matter involves a discretionary judgment by the primary judge,[50] and so the well‑established principles set out in House v The King,[51] concerning the limits of interference by an appellate court, apply.
[49] Tradesman Technologies [22]; P v Q [88].
[50] Aldridge v Keaton [17], Bruce & Bruce (No 2) [27].
[51] House v The King [1936] HCA 40; (1936) 55 CLR 499.
Further, the applicant for a stay may still fail even if all of the matters just mentioned are overcome, if the balance of convenience is against the grant of a stay. For example, where the grant of a stay will occasion hardship to the respondent, which may not be alleviated by the terms upon which the stay is granted.[52]
[52] Tradesman Technologies [22]; P v Q [88].
Matters relevant to whether to grant stay
There is an important contextual matter to observe before assessing whether or not to grant the stay. It is that the appellant and respondent live in different States. Practically, any orders which are made need to take account of the reality that William will have to reside in one or other State, at least for the purposes of attending school. So much was implicitly recognised by the appellant's counsel, who tried to leave aside the question of schooling.
There are a number of matters relevant to the determination of the stay application. In my view, these generally point away from granting the stay.
First, William has been in the care of his father now since 29 May 2025, which is over 10 weeks ago.
Secondly, the appeal in this matter is listed for hearing on 10 September 2025, which at the time of this judgment is 3 ‑ 4 weeks away. As there is an order for expedition of the appeal, the preparation of a judgment in the appeal will be given priority, certainly if the appeal is likely to succeed. In those circumstances, the question of how the appeal should be resolved will hopefully be resolved quickly.
It follows that, unless the Court is confident that the appeal is likely to succeed, there is the prospect that if a stay is granted William would be returned to Perth for a short time, before having to go back to South Australia. That would be a wholly undesirable result. That is particularly so, having regard to the evidence of the respondent about William settling into life in South Australia, such as schooling.[53]
[53] Respondent's affidavit, 21 July 2025.
Thirdly, the urgency of the stay application is based upon the opinion of the single expert witness, who considered that William would not be able to cope with being separated from the mother for four consecutive weeks.[54] However, as mentioned previously, the trial judge declined to accord significant weight to the opinions of the single expert witness (Ms Eliza Hatton), as this witness had become an advocate for the mother. Notwithstanding that the trial judge accepted the views of the single expert witness about the drastic effect of a 'reversal of care', and the existence of intractable parental conflict, the advocacy finding by the trial judge about the single expert witness makes it difficult to place any confidence in the expert opinions of Ms Hatton on the issue of William's ability to cope with separation from his mother. Of course, I do not overlook that some account should be taken of the fact that, as a matter of ordinary common experience, it might well be expected that a 4‑year‑old child being removed from the parent who has cared for him since birth would experience a degree of difficulty in coping.
[54] Appellant's submissions, 4 July 2025, [41] ‑ [42], [46].
Fourthly, the urgency of the stay application is otherwise put upon the basis of evidence of the occupational therapist referred to previously. However, the trial judge appears to have accepted that any dysregulated behaviour by William ceased in his father's presence.[55]
[55] Primary decision [136].
Fifthly, it is also appropriate to have regard to the prospects of success of the appeal. I consider that this should only require a preliminary consideration of the grounds of appeal, and does not mean that the Court should express any final or pre‑judged view about the appeal. Conscious of that, I have briefly reviewed the Appellant's Case. I consider that arguable matters are raised about the reasoning process of the trial judge and the conclusions which he formed about certain factual matters. On the other hand, there does not appear to me to be any overwhelmingly strong appeal ground which is almost certain to succeed. Beyond that, I am not prepared to say much further about the prospects of success.
Applying these observations to the matters relevant to the question of whether to grant a stay, I find as follows:
(a)there are no 'special circumstances' which mean that a stay is necessary to preserve the subject matter of the litigation, or to avoid the appeal being rendered nugatory, if successful. In other words, I do not think there is a real risk that it will be impossible for the appellant, if successful, to be restored to her former position (although I note that the 'Orders Wanted' in the Appellant's Case only seek a re‑hearing, not final orders allocating sole parental responsibility to the appellant);
(b)the 'reversal of care' orders have been implemented, and it is desirable to avoid William being moved backwards and forwards between his parents pending the resolution of the appeal, particularly where the appeal will be heard and determined on an expedited basis;
(c)it would be in the best interests of William not to be moved about pending the resolution of the appeal, given the evidence about him having settled into South Australia;
(d)the prospects of success for the appeal do not warrant moving William back to Perth pending the resolution of the appeal, as the outcome of the appeal could go either way;
(e)the balance of convenience lies with keeping the status quo which now exists, rather than as it existed prior to judgment.
For all these reasons, I joined in making the order at the conclusion of the hearing on 11 August 2025 dismissing the appellant's stay application.
MITCHELL JA:
On 11 August 2025, the court dismissed an application for a stay of the primary orders pending the determination of the appeal. The court said it would publish reasons for making that order later. These are my reasons for joining in the order dismissing the stay application.
Introduction
The present appeal is from parenting orders made by the trial judge in the Family Court of Western Australia (Family Court) on 29 May 2025 in relation to a child it is convenient to refer to by the pseudonym William. William is the child of the appellant mother and the respondent father. William was born in 2020 and was 4 years 9 months old at the date the primary orders were made. The relationship between the mother and father began in 2019 when they were both working at a mine site and ended in December 2020. The parties were never married. At all material times, the mother has resided in a suburb of Perth in Western Australia and the father has resided on a farm in regional South Australia.
The primary proceedings were commenced in the Family Court by the father in June 2021. At that time, and up until the primary orders were made on 29 May 2025, William lived with the mother and had varying degrees of contact with the father and members of the paternal family. The parties have a highly conflictual relationship and have been largely unable to agree upon arrangements for William's care.
At the time the primary orders were made, interlocutory parenting orders made by Magistrate Hall in the Magistrates Court of Western Australia on 1 August 2023 provided for William to spend time with the father on alternate weekends and on four occasions a year during
school holiday periods. Supervised handovers (which the mother was restrained from attending) were conducted between the father and an agent of the mother either at Kings Park or William's school or day care. The interlocutory parenting orders also provided for the father and William to communicate by a video call on one specified occasion per week.
A trial of the question of the final parenting orders which should be made in the primary proceedings was conducted before the trial judge over 10 days from 30 September 2024 to 11 October 2024. Judgment was reserved. Judgment was delivered and reasons for decision were published by the trial judge on 29 May 2025. The primary orders made on 29 May 2025 provided for the father to have sole parental responsibility for William and for William to live with the father. The primary orders also provided that, until further order, the mother would spend time with William and have electronic communication with him 'as agreed between the parties failing which [the mother] shall have liberty to apply to the court'. The trial judge proposed in his reasons that he would case manage William's transition and contact with the mother.
The primary orders took effect, and were implemented, immediately. The father collected William from his pre-school in Perth on 29 May 2025 and flew to South Australia with him the following day. William has been living with his father in South Australia since that time. The parties were at least initially unable to agree on arrangements for the mother to spend time with and communicate with William. The hearing of an application in the Family Court by the mother for further parenting orders has been delayed by her application for the trial judge to recuse himself from dealing further with the matter. The result was that the mother did not see William for approximately two months after the primary orders were made on 29 May 2025, and did not have any effective communication with him during that time.
On 16 June 2025, the mother instituted this appeal from the primary orders made on 29 May 2025. By application in the appeal filed on 18 June 2025 (stay application), the mother seeks:
(a)a stay of the primary orders pending disposition of the appeal (which she contends would have the effect of restoring the operation of the interlocutory parenting orders made on 1 August 2023);
(b)a mandatory injunction requiring the father to return William to Western Australia; and
(c)an order staying the primary proceedings pending disposition of the appeal.
On 2 July 2025, Thomson P and Hall JA made an urgent appeal order and programmed the appeal for hearing on 10 September 2025. The substantive hearing of the stay application was delayed by resolution of questions concerning the competence of the appeal. Those questions were resolved by this court, which determined the appeal to be competent, in Dunn (a pseudonym) v Lloyd (a pseudonym).[56]
[56] Dunn (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119.
The trial judge's decision
It is convenient at this point to note the following aspects of the trial judge's reasons for decision.
The trial judge made credibility findings in relation to the lay and expert witnesses who had given evidence at trial. The trial judge concluded that the mother was not a credible witness and, unless the mother's version was supported by extrinsic evidence, he had little faith in her evidence and would prefer the father's evidence.[57] The trial judge also preferred the expert evidence of Mr De Rooster, a clinical psychologist engaged to provide family therapy, to that of Ms Hatton, a psychologist appointed as a single expert witness about whom his Honour made the following credibility-based finding:[58]
In my view, Ms Hatton failed to properly assess [the mother's] views about [the father] and her contribution to the parties' conflict including her failure to facilitate overnight time and its impact upon [the father]. I consider Ms Hatton's reports reveal her to have been an advocate for [the mother]. My view was strengthened by the manner in which she gave her oral evidence particularly when being cross-examined by the solicitor for [the mother] during which I consider Ms Hatton seemed unreasonably eager to criticise [the father].
I decline to accord Ms Hatton's opinions significant weight and prefer the evidence and opinions of Mr De Rooster.
[57] [Lloyd (a pseudonym)] and [Dunne (a pseudonym)] [2025] FCWA 120 (primary decision) [81].
[58] Primary decision [155] - [156].
The trial judge then made detailed chronological factual findings about the events leading to trial, which in very broad terms included William's contact with the father increasing over time despite the parents' ongoing conflict, emotional regulation difficulties experienced by William in his mother's care and at handovers attended by the mother, and a failure by the mother to comply with court orders. The trial judge found that William had been impacted by the conflict and that the mother was mostly responsible for the escalation of the parties' conflict.[59] The trial judge found:[60]
I am entirely sceptical that [the mother] is appropriately psychologically minded and insightful when it comes to [William] and [the father]. She was regularly unable to efficiently transition [William] to [the father] at handover. The supervision reports reveal numerous drawn out handovers which must have been exhausting, if not agonising, for everyone particularly [William]. [The mother] was also unable to manage [William]'s behaviours at home noting that I do not consider [William] suffered from anything more than mild separation anxiety.
[59] Primary decision [314], [316].
[60] Primary decision [317].
The trial judge concluded that the conflict between the parties was intractable and largely due to the mother's feelings towards the father. His Honour observed:[61]
Mr De Rooster noted the parties' adversarial relationship and referred to [the mother's] fears and strong views about [the father] having the capacity to hamper [William's] relationship with his father. Whilst [the mother] told Ms Hatton she would now follow the orders imposed by the Court, I have no confidence whatsoever that this will be so given [the mother's] repeated failures to comply with previous orders, her fixed view of [the father] and the untrustworthiness of much of her evidence. Whilst [William] is now transitioning between the parties, in my view, handovers only improved when they took place at school thereby removing [the mother] from the process.
[61] Primary decision [318].
The trial judge concluded that William has a meaningful relationship with the father, has benefitted from that relationship and will derive considerable benefit from its continuation.[62] The trial judge then said:[63]
I have no doubt that [William's] relationship with [the mother] is important and significant to him. However, I am troubled about the quality of that relationship. In my view, it is likely that [the mother] has not been able to shield [William] from her feelings about [the father] which on various occasions has caused her to tremble, turn away and run away. [The mother's] description of [William's] behaviours at home evidence a child in turmoil over several years which, as hypothesised by Mr De Rooster, I consider is likely due to her conduct either by splitting [William's] loyalties or [William] becoming frustrated with her perceptions or parenting style. [The mother's] failure to properly manage handovers has also likely resulted in [William] regularly becoming traumatised by her behaviour. I suspect that [William] is regularly worried about his mother's emotional state.
[62] Primary decision [320].
[63] Primary decision [321].
The trial judge accepted Mr De Rooster's evidence that William had become triangulated amidst his parents' tension.[64] His Honour observed:[65]
The outlook for [William] is a problematic one. I accept [the father's] evidence that [William's] behaviour with him is not dysregulated. However, … [William's] behaviour when with [the mother] is often dysregulated. I have no confidence that her underlying attitudes towards [the father] are susceptible of change. … I agree with the submission made on behalf of [the father] that [William] is at risk of psychological harm from [the mother] particularly in her primary care. I also consider it likely that [the mother's] feelings about [the father] are likely to hamper ongoing facilitation of the father/son relationship just as they have done in the past. I do not consider that implementation of [the mother's] proposals for [William] to spend weekend and holiday time are likely to provide him with sufficient lived experience to successfully counter his exposure to those fears and views.
[64] Primary decision [325].
[65] Primary decision [326].
Subject to his Honour's concerns about the quality of William's relationship with the mother, the trial judge accepted that William had a loving relationship with both parents.[66]
[66] Primary decision [336].
As to the likely impact of a change in care arrangements on William, the trial judge accepted the following opinion expressed by Ms Hatton:[67]
A reversal of care is a drastic but sometimes necessary step. However, the psychological and emotional impact on a 4-year-old child can be profound. Removal from a primary caregiver leading to anxiety, confusion, and a sense of abandonment. This can foster insecure attachment styles, making it difficult for the child to trust adults and form future relationships. Disruptions in care can hinder the development of social skills and emotional resilience, while chronic stress may negatively fracture cognitive functions like problem-solving, memory, and language. Sudden changes can undermine the child's sense of safety and stability, with long-term effects on their ability to form healthy relationships and maintain emotional stability later in life.
[67] Primary decision [345].
Having made the above findings and various other findings in relation to the relevant primary and additional considerations, the trial judge expressed his conclusion in relation to parental responsibility in the following terms:[68]
I am comfortably satisfied that the conflict between the parties is intractable. I accept the opinion of Ms Hatton expressed in her second report that the parties are disagreeable and inflexible and unable to effectively co-parent or even parallel parent. An aspect of this conflict and ineffective communication is the parties' inability to resolve such issues as [William's] electronic communication with [the father] and the attendance of [the mother] at handovers. I consider that the parties are likely to continue to be unable to effectively communicate.
In the circumstances I am more than satisfied it would not be in [William's] best interests for the presumption of equal shared parental responsibility to apply.
[68] Primary decision [364] - [365].
The trial judge's consideration of the question of who William should live with concluded in the following terms:[69]
I have accepted the evidence of Ms Hatton that removing [William] from the primary care of his mother may result in him becoming anxious, confused and feeling abandoned. I accept the possibility that his attachments and developments may suffer if any transition is not properly managed.
In my view, [the mother's] attitude towards [the father] is entrenched and pervasive. … I do not believe that [the mother] is able to provide [William] with a psychologically healthy environment. I do not think this is likely to improve by [William] living with [the mother] and she continuing to have counselling and [William] continuing to have occupational therapy.
In my view, [the father] is able to provide [William] with a psychologically healthy environment. I believe he and his family are warm and supportive.
I conclude it is in his best interests for [William] to live primarily with [the father] and for [the father] to have sole parental responsibility for [William].
[69] Primary decision [369] - [372].
The trial judge found that the father is well-able to attend to schooling and therapy for William. His Honour found that William is likely to need psychological support to successfully manage the transition to the father, and it was important that the father arrange for William to receive psychological support as soon as possible.[70]
[70] Primary decision [376] - [377].
The trial judge concluded by observing:[71]
I consider it imperative that [William's] transition be carefully managed. It may be in his best interests for [William], initially, to have limited or no contact with [the mother] before he begins to spend time with her and the maternal family. This reintroduction will require careful preparation and [the mother], in particular, may well need considerable psychological support. … I also consider that [the father] is likely to benefit from the assistance of a psychologist to navigate [William's] transition into his care.
I propose to case manage [William's] transition and contact with [the mother]. Subject to further evidence, I consider [William's] contact with [the mother] should depend upon a satisfactory transition by [William] and both [the father] and [the mother] being in a position to appropriately manage handovers and spending time with [William].
[71] Primary decision [378] - [379].
Stay application - general principles
The general principles governing the grant or refusal of a stay in the context of an appeal from parenting orders were summarised by this court in P v Q.[72]
[72] P v Q [2023] WASCA 121 [87] - [92].
This court has the power under r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) to grant an interim order in the form of a stay of execution pending the hearing of the appeal if there are 'special circumstances' that justify doing so. For that purpose, ordinarily the applicant will need to show, among other things, that a stay order is reasonably necessary to prevent the appeal being rendered nugatory, or that refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.
In Tradesman Technologies Pty Ltd v Ameduri,[73] Pullin JA summarised the general principles governing the grant of a stay:
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[73] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22], adopting Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
In the context of an appeal being rendered nugatory, it has been said that special circumstances will exist where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed.[74]
[74] Commissioner of Taxation (Cth) v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220, 222 ‑ 223.
Whether the appeal will be rendered nugatory in the above sense remains an important consideration in an appeal from parenting orders made in relation to a child. This is illustrated by the decision of Gummow J in De L v Director-General, Department of Community Services (NSW),[75] in which a stay was sought pending determination of a special leave application in relation to parenting orders. The power to grant a stay can be seen as an aspect of the court's inherent jurisdiction to make such orders pending determination of the appeal, at least against the parties to the appeal, as are needed to ensure the effective exercise of its jurisdiction.[76] A stay will not ordinarily be justified in the absence of some substantial prejudice which cannot readily be reversed by the orders of the court in the event that the appeal is allowed.
[75] De L v Director-General, Department of Community Services (NSW) [1996] HCA 9; (1996) 70 ALJR 532, 534.
[76] See the discussion in Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [60] - [62].
While the above principles provide guidance in the exercise of the discretion, they are not inflexible or exhaustive.[77] In a case involving the custody and care of a child, it is appropriate for the court to also have regard to the best interests of the child in the exercise of its discretion to grant a stay. In considering the grant or refusal of a stay, the court appropriately has regard to the best interests of the child, and any harm to the child which may follow from the grant or refusal, in assessing the balance of convenience.[78]
[77] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [15].
[78] T v S [No 2] [2015] WASCA 235 [12].
There is a division of views in the authorities as to whether the best interests of the child are the paramount consideration in exercising the court's discretion to grant or refuse a stay. On one view, an order for a stay of parenting orders pending an appeal is itself a parenting order as it suspends an existing parenting order.[79] The result is that in determining whether to allow a stay, the court must regard the best interests of the child as the paramount consideration under s 66A of the Family Court Act.[80] However, the view has also been taken that a stay is not an order made under the Family Law Act 1975 (Cth), so that a stay cannot be described as a parenting order under that Act.[81] It is unnecessary for this court to resolve this division of opinion in the present case, which can be dealt with on the basis that the welfare of William is at least a significant consideration even if it is not the paramount consideration. In my view, as was the case in P v Q, the slightly different ways of framing the test would not produce a different outcome in the circumstances of the present case.
[79] Family Court Act s 84(1)(b).
[80] K v B [2006] WASCA 100 [21] citing Re Evelyn [No 3] (1998) 23 Fam LR 73 [68]; In the Marriage of Clemett(1980) 50 FLR 248, 249 ‑ 250; Langley v Tarelli [No 2] [2020] FamCAFC 126 [25] - [28].
[81] EJK v TSL [2006] FamCA 730; (2006) 202 FLR 240 [74]; Stephens v Taylor [2008] FamCAFC 74 [11] - [12]; Aldridge v Keaton [2009] FamCAFC 106 [18].
Counsel for the father suggested that there was some difference in the approach of this court reflected in P v Q, and that adopted by the Full Family Court in Aldridge,[82] particularly as to the need to establish 'special circumstances'. I do not see any significant difference in the two approaches. While the court in Aldridge said that it is not necessary for the applicant to demonstrate any 'special' or 'exceptional' circumstances, the requirement of special circumstances has not been applied in this court as an independent requirement for the grant of a stay. Rather, 'special circumstances' will ordinarily arise when an appeal that has reasonable prospects of succeeding will be rendered nugatory (in the sense described above) if a stay is not granted and the balance of convenience favours the grant of a stay. Further, as has already been emphasised, the above principles are not inflexible or exhaustive. They are not to be applied in a mechanical fashion, and the ultimate question is always whether the interests of the justice require the grant of a stay pending determination of an appeal in all of the circumstances of the particular case.
[82] Aldridge [18]. Counsel referred to the quotation of the relevant passage from Aldridgein Dekker and Rapallino [No 2] [2024] FedCFamC1F 726 [29].
The position of the mother in the present case is that the grant of a stay will revive the interim parenting orders made by the Magistrates Court on 1 August 2023, referred to at [42] above. There is some authority under the Family Law Act which tends to support that proposition, although the reasoning is limited.[83]
[83] See Anderson v Senior [2013] FamCAFC 152; (2013) 279 FLR 399 [25]; Dent v Bishop [2017] FamCA 81 [7].
Disposition of the stay application
For the following reasons, I am not satisfied that it is in the best interests of William, or in the interests of justice, to grant a stay of the primary orders at this time.
Whether the appeal will be rendered nugatory if a stay is not granted
It does not appear that the appeal will be rendered nugatory in the sense described above if a stay of the primary orders until the determination of the appeal is not granted. If the appeal succeeds, then this court may make orders setting aside the primary orders and either substituting orders which this court considers ought to have been made or remitting the matter to the Family Court for retrial. The relevant court could then make an order providing for William to resume living with the mother, either on an interim or permanent basis, and issue an injunction requiring the father to return William to the mother's care. As William remains in Australia there will be no particular difficulty in enforcing that order.
In P v Q, the court accepted that the appeal against parenting orders in that case, which precluded the appellant in that case from having any contact with her children, might be rendered nugatory in a limited sense.[84] The court recognised that the potential for the appeal to be rendered nugatory arose from the risk that a period of complete separation until the hearing and determination of that appeal would have an adverse impact on the children's relationship with their mother, which orders made after the appeal was allowed (if that occurred) could not repair.
[84] P v Q [98].
By contrast, in the present case the primary orders do not in terms prohibit the mother from having any contact with William. The significance of the practical impact of the mother not having seen William since the primary orders were made is discussed below. In summary, that is an issue which is appropriately addressed by the Family Court under the auspices of the current parenting orders rather than by this court on a stay application. Further, the hearing of the appeal is only about four weeks away, so that any impact on the relationship between William and the mother beyond that which has already occurred will be limited.
Whether the appeal has a reasonable prospect of succeeding
The grounds of appeal to this court are set out in the reasons of Thomson P. Having considered the appellant's case, I am satisfied that the appeal has a reasonable prospect of succeeding in the relevant sense, although at this preliminary stage I would not put it any higher than that.
Balance of convenience and best interests of the child
The most significant consideration in the present case is the impact which the grant or refusal of a stay pending the determination of the appeal will have on William.
The mother contends that the most protective action which the court can take pending the determination of the appeal is to grant a stay at this stage. She contends that this will mitigate the potential harm about which Ms Hatton was so concerned pending the resolution of the appeal, restore William to his primary carer and the maternal family with whom he had lived and restore William to his familiar home surrounds, friendships, occupational therapist and school.
The parties have placed a large amount of material adduced as evidence at trial before this court, and the mother in particular relies on the views expressed by Ms Hatton at trial. However, as counsel for the mother properly recognised in his oral submissions, the application for a stay is not the occasion for this court to resolve the appeal, much less to effectively conduct a retrial of the issue of the impact of relocation upon William on the papers. That would not be feasible or appropriate, given the well-established limitations on this court reviewing discretionary decisions significantly based on assessments of the credibility of witnesses. I would not, at least at this stage, place significant weight on those aspects of Ms Hatton's evidence which were not accepted by the trial judge.
One aspect of Ms Hatton's evidence, referred to at [54] and [56] above, which the trial judge did accept is her concerns about the risks of psychological harm associated with the removal of a child as young as William from the care of his primary care-giver. However, most of William's exposure to that risk as a result of his removal from the care of his mother has already occurred. He has now been living with the father in South Australia for two and a half months. The uncontradicted evidence of the father in an affidavit sworn 21 July 2025 is that William is settled with him in South Australia, and that appropriate arrangements have been made for William's schooling as well as psychological and occupational therapy.
It seems to me that the greatest current risk to William's well-being presented by the appeal proceedings is the prospect of him experiencing the disruption of being relocated from South Australia to Perth if a stay is granted and then, if the mother's appeal is not ultimately successful, having to again be removed from his mother's care a short time later and returned to South Australia. That would involve the removal of William from the persons who have been providing his primary care for the past two and a half months, and require him to be exposed to the risk of psychological harm presented by his removal from his mother's care for a second time. William would need to be told something about the move to his mother's house, which would involve either introducing uncertainty into his life if he were told the move may be temporary, or creating a false sense of permanence which may need to be disturbed if the appeal is dismissed.
The risks described in the previous paragraph seem to me to outweigh the risks associated with William remaining in the father's care while the appeal is determined expeditiously, so that his return to his mother's care in the event the appeal is successful is delayed by a relatively short period.
The affidavit evidence filed by the parties indicated that the mother did not have any significant contact with William during the two months after the primary orders were made. The parties placed before the court a significant amount of evidence as to the circumstances which produced that outcome. It does not appear from that evidence that either party behaved in a proactive cooperative manner that should have seen appropriate arrangements made for William to communicate with, and see, his mother. However, at the hearing, we were informed by counsel that the mother has more recently spent supervised face-to-face time with William in South Australia on 26 July 2025 and 10 August 2025, and that further sessions have been planned.
The primary orders contemplate the Family Court making further orders as to the time William spends with the mother and his communications with her. In my view, the best way of dealing with the issues referred to in the previous paragraph pending the determination of the appeal is for the Family Court to make orders prescribing a specific regime on which the parties have been unable to agree. It is unfortunate that the trial judge's performance of this role appears to have been diverted by an application by the mother that his Honour recuse himself on grounds of apprehended bias. No doubt, once that application is resolved, the Family Court will take steps to make orders in relation to the mother's contact with William. That is the more appropriate response to the situation than a stay of the primary orders.
Conclusion and orders
For the above reasons, in all of the circumstances of this case, I am not persuaded that it is in the best interests of William or in the interests of justice to grant a stay of the primary orders at this stage. For these reasons, I joined in the order dismissing the application for a stay of the primary orders pending the determination of the appeal.
HALL JA:
This application for a stay was heard on 11 August 2025. At the conclusion of that hearing, the court dismissed the application. My reasons for joining in that conclusion are reflected in the reasons of Mitchell JA. I also agree with the separate reasons of Thomson P, which I have had the benefit of reading in draft.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DC
Associate to the Honourable President Thomson
13 AUGUST 2025
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