Elspeth v Peter

Elspeth v Peter concerned an application by the wife (Elspeth) to stay certain orders made by Benjamin J on 20 February 2007, pending the determination of an appeal against those orders. The application sought to stay orders relating to make-up time for the children with their father, the delivery of the children to the father's home, costs orders in contravention proceedings, and a suspended sentence of imprisonment. The application was heard in the Family Court of Australia at Hobart.

The court was required to determine whether to grant a stay of the previously made orders. In considering this, Benjamin J applied the guiding principles for stay applications, which require a judicial officer to exercise discretion. These principles include assessing whether refusing a stay would render a successful appeal nugatory, the merits of the appeal, any hardship to the parties, the bona fides of the applicant, the time until the appeal hearing, and the need to limit changes in children's living arrangements.

Benjamin J dismissed the application for a stay of orders relating to make-up time and the delivery of the children, finding no reason to alter the previous decisions. The application to stay the costs order in favour of the Independent Children's Lawyer was granted, as the lawyer was not pressing for payment and did not object. However, the application to stay the costs order in favour of the husband was refused, with the court finding that the potential hardship to the husband from a stay outweighed any hardship to the wife. The application to stay orders concerning Mr S and G was dismissed as they were not present and had not filed appeals. The application to stay the suspended sentence was also refused, as the court considered that granting a stay would undermine the penalty for non-compliance with previous orders.

Consequently, the court ordered that the stay of costs in favour of the Independent Children's Lawyer be granted, and the remainder of the wife's application for a stay be dismissed. The wife was ordered to pay the husband's costs of the application in the sum of $1,250.00 and the Independent Children's Lawyer's costs of $220.00, both within fourteen days.