Mohammed Salah and Gastana (No. 2)

The Family Court of Australia heard an application by Mr Mohammed Salah (the father) seeking a stay of orders made on 15 June 2011, pending his appeal. The original orders concerned parenting arrangements for the parties' two young children, aged three and two, and permitted the mother, Ms Gastana, to take the children on interstate trips for up to one week on two occasions per year, subject to certain notification requirements. The father objected to these interstate trips, particularly a proposed trip to Canberra, and sought to prevent the mother from relocating with the children or taking them out of Queensland without his written permission or a court order.

The legal issues before the court were whether to grant the father's application for a stay of the orders allowing interstate travel, and whether to order the father to pay the costs of the mother and the Independent Children's Lawyer (ICL). In determining the stay application, the court was required to consider whether there was a substantial prospect of success on appeal and whether refusing the stay would render the appeal nugatory. The court also had to consider the conduct of the parties and the financial circumstances of each party when determining the costs order.

Justice Forrest found that the father had fundamentally misunderstood the nature of a stay application, treating it as a fresh parenting application rather than an application to preserve the status quo pending appeal. The court was not satisfied that the father had substantial prospects of success on appeal, as his grounds of appeal did not directly challenge the findings of fact or legal principles underpinning the original order permitting interstate travel. Furthermore, the court determined that refusing the stay would not render the appeal nugatory, as the father's complaints related to the implementation of the order rather than its substance. Consequently, the court found no exceptional circumstances to warrant granting a stay and dismissed the father's application.

In relation to costs, the court noted that the father had been wholly unsuccessful in his application. Applying section 117(2A) of the Family Law Act 1975 (Cth), the court considered the conduct of the parties, including the father's delay in serving documents, and the financial circumstances of the parties. Despite the father's assertion of impecuniosity, the court found it just to order the father to pay the mother's costs of and incidental to the application, fixed at $2,431, and the ICL's costs, fixed at $1,341.