Gains & Anor and Meighan & Anor

The Full Court of the Family Court of Australia considered an appeal by a mother and her mother (the maternal grandmother) against orders that changed the primary residence of a child from them to the father, with the child to spend time with the paternal grandmother. The mother and maternal grandmother sought a stay of these orders and an immediate reduction in the child's time with the father.

The central legal issue before the Court was whether to grant a stay of the residence and contact orders. This required the Court to weigh the potential consequences of granting or refusing the stay, particularly in light of the child's welfare and the nature of the appeal. The Court also considered an application for costs by the respondent paternal grandmother.

Cleary J reasoned that granting a stay would have an immediate disruptive effect on the child by reducing contact with the father and creating uncertainty about their future. The Court found no immediate irreparable consequence from refusing the stay, noting that the appeal did not raise grounds of error of law but rather challenged the discretionary exercise of the trial judge in considering and weighing evidence. The Court was concerned that a stay, or partial stay, risked causing emotional and psychological harm to the child by leaving them caught in transition, with adults unable to provide reassurance. This risk was considered to outweigh the harm of a further change of residence should the appeal be successful and result in a rehearing with a different outcome. Consequently, the applications for a stay were dismissed.

Regarding costs, the paternal grandmother sought to depart from the usual rule that parties bear their own costs, arguing her application had real merit. However, given that the unsuccessful applicants were receiving Centrelink benefits and were financially responsible for the child, no orders were made for costs.