Sampson and Hartnett (No. 3)

In *Sampson and Hartnett (No. 3)*, Moore J of the Family Court of Australia considered an application by the mother for a stay of an order requiring the parties' children to reside in Sydney by 1 May 2007, pending the determination of her appeal against property and parenting orders made on 21 March 2007. The dispute centred on whether the children should relocate to Sydney as ordered, or remain in Geelong with their mother pending the appeal.

The court was required to determine whether to grant a stay of the relocation order. In doing so, it had to consider the principles applicable to stays of parenting orders, which include the rights and welfare of the children, the delay in the appeal process, whether refusing a stay would render a successful appeal nugatory, the hardship to each party, and the merits of the grounds of appeal. The paramount consideration in this determination was the welfare of the children.

Moore J applied the principles established in cases such as *Clemett and Clemett* and *CSN v JBN*, which emphasise the paramountcy of the child's welfare and the desirability of limiting changes to their living arrangements. The court considered the mother's arguments that the children's primary care arrangements would be maintained and that relocation would cause significant financial and practical hardship, potentially rendering costs "thrown away" if the appeal succeeded. However, the court found that the grounds of appeal lacked apparent merit, and that refusing the stay would allow the children to experience their father's home environment and his half-brother, J, which was considered qualitatively important for their well-being. Conversely, granting the stay would require the father to continue travelling to Geelong, incurring significant cost and inconvenience, and would mean the children would continue to see him in rented accommodation rather than his home.

The application for a stay of the order requiring the children's relocation to Sydney was dismissed. Moore J concluded that dismissing the stay application was the outcome most consistent with the paramount consideration of the children's best interests, particularly given the qualitative benefits of their living arrangements with their father in Sydney.