Hannigan and Sorraw (No 3)

This decision concerns an application by the father for an interim stay of orders made by Justice Cohen on 13 September 2010, and for orders restraining the mother from removing the child, S, from Australia. The father had filed an appeal against Justice Cohen's judgment and orders. Justice Loughnan had previously granted an interim stay on 16 September 2010.

The primary legal issue before the court was whether to continue the interim stay of the 13 September 2010 orders and to grant the father's application to restrain the child's removal from Australia, pending the determination of his appeal. The court was required to balance the father's right to pursue his appeal with the mother's custodial rights and the child's welfare.

Justice Cohen reasoned that the father's appeal had sufficient merit to warrant consideration of a stay. However, the court also recognised the mother's position and the potential disruption to the child's life if the stay was granted unconditionally. Consequently, the court made conditional orders. If the mother provided an undertaking to return the child to Australia should the father's appeal be successful, then the interim stay and the father's application would be discharged and dismissed respectively. Conversely, if the mother failed to provide the undertaking, the court would make orders staying the 13 September 2010 orders, restraining the child's removal from Australia, and placing the child's name on the Airport Watch List. Costs were reserved.