Holinski and Holinski (No. 2)

This case concerned an application by Ms Holinski (the mother) for a stay of interim parenting orders made by Hannam J of the Family Court of Australia. The interim orders, made on 21 August 2013, permitted Mr Holinski (the father) to spend time with the parties' two young children, N and L, who had not seen their father for approximately seven and a half months. The mother sought to appeal these orders, arguing that the unsupervised time granted to the father was unreasonable, that the court erred in its consideration of evidence, and that an expert report should have been obtained.

The primary legal issue before the court was whether to grant a stay of the interim parenting orders pending the mother's appeal to the Full Court. In determining this, the court was required to consider the established principles for granting a stay, which include that the mere filing of an appeal is insufficient, the onus rests on the applicant to establish a proper basis for the stay, and a person who has obtained a judgment is entitled to its benefit. Further considerations include the bona fides of the applicant, the balance of convenience and competing rights, the risk of the appeal being rendered nugatory, a preliminary assessment of the appeal's strength, the desirability of limiting changes to a child's living arrangements, the timeframe for the appeal, and, crucially, the best interests of the child.

Hannam J reasoned that while the mother was bona fide in her appeal, the grounds of appeal, particularly concerning the court's assessment of evidence and the discretionary decision not to obtain an expert report, involved conflicting assessments of weight, which appellate courts are slow to overturn. The court found that a stay of the order permitting unsupervised time on 1 September 2013 was appropriate, as the appeal on this specific point would likely become academic if not stayed, rendering that aspect of the appeal nugatory. However, the court determined that a full stay of all orders for the father to spend time with the children was not warranted, as the children's need for a meaningful relationship with their father, as highlighted by the Independent Children's Lawyer, outweighed the mother's prospects of success on other grounds of appeal.

Consequently, the court ordered that Order 2(c) of the interim orders, relating to the specific unsupervised time on 1 September 2013, be stayed pending the hearing of the appeal. The mother's application for a stay was otherwise dismissed, and the oral application for costs was reserved.