Matthews and Bender (No 3)

In *Matthews & Bender (No. 3)* [2013] FamCA 828, the Family Court of Australia considered an application by Ms Bender (the mother) for a stay of orders made on 27 September 2013, pending the determination of her appeal. The previous orders had granted the father, Mr Matthews, sole parental responsibility for the child, ordered that the child live with the father, and permitted the father to change the child's school. The mother sought to return to previous orders where the child lived with her. The Independent Children's Lawyer opposed the stay application.

The primary legal issue before the Court was whether to grant a stay of the parenting orders, specifically concerning the child's residence and schooling, pending the mother's appeal. This required the Court to consider the principles governing stay applications, including the onus on the applicant, the entitlement of a successful litigant to the benefit of their judgment, the potential for an appeal to be rendered nugatory, the bona fides of the applicant, and crucially, the best interests of the child. The Court also had to assess the strength of the proposed appeal and the desirability of limiting changes to the child's living arrangements.

Justice Macmillan applied the well-settled principles for granting a stay, referencing cases such as *Trahn & Long (No 2)* and *Friscioni & Friscioni*. The Court noted that while the mother's appeal was bona fide and had some arguable merit, its grounds were considered relatively weak, particularly concerning the judge's findings of fact and the weight given to evidence. The Court found that the appeal was unlikely to succeed and that the risk of the appeal being rendered nugatory was not a substantial factor in this case. The Court placed significant emphasis on the child's best interests, considering the potential disruption of returning the child to the mother's care, the mother's past behaviour and lack of insight into her impact on the child, and the child's positive adjustment to living with the father and her apparent excitement about changing schools.

The application for a stay was dismissed. The Court concluded that granting a stay would be disruptive and potentially detrimental to the child's welfare, outweighing the mother's grounds of appeal and the desirability of limiting changes to the child's living arrangements. The Court noted that while the appeal might be heard in March 2014, the child would have been living with the father for many months by then, and a successful appeal would necessitate further significant change. The Court also addressed the specific request to stay the order permitting the change of school, finding that the child's positive engagement with the proposed new school and the feedback from the child psychologist supported the father's position against a stay.