EJK & TSL (No. 4)

This matter concerned an appeal to the Full Court of the Family Court of Australia from a decision of a single judge. The appeal challenged the trial judge's refusal to grant a stay of his substantive orders, which had provided for a child to live with the father and be returned to Korea for Korean courts to determine parenting issues. The mother, the appellant, argued that the trial judge erred in his exercise of discretion by considering the likely success of her grounds of appeal and by failing to properly apply the principles relevant to granting a stay in parenting proceedings, particularly as discussed in *Clemett and Clemett*.

The court was required to determine whether the trial judge had erred in his consideration of the substantive grounds of appeal, including whether he had improperly determined the mother's parenting application on a threshold basis, and whether he had properly regarded the principles in *Rice and Asplund* and *King and Finneran*. Further issues included whether the trial judge erred by failing to appoint an Independent Children's Lawyer and order a Family Report, and whether he gave sufficient weight to the mother's position regarding her reluctance to return to Korea due to potential criminal proceedings. The court also considered whether the trial judge's finding that the appeal was not brought *bona fide* vitiated his discretion, and whether he properly considered the effect of delay on the child, the hardship to the parties, and the time until the appeal could be heard.

The Full Court found no error in the trial judge's exercise of discretion. It held that the trial judge had properly considered the relevant principles for granting a stay, including the likely success of the appeal grounds, the best interests of the child, and the potential hardship to the parties. The court determined that the trial judge had not erred in his substantive findings or in his procedural decisions regarding the appointment of an ICL or the ordering of a Family Report, finding these actions unnecessary in the circumstances. The finding that the appeal was not brought *bona fide* did not, in itself, impeach the exercise of discretion, as the primary consideration was the effect of delay on the child.

The appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, to be agreed or assessed.