Simmons and Anor and Kingley

In *Simmons & Anor and Kingley* [2013] FamCA 568, the Family Court of Australia considered an application by the applicants, Mr and Mrs Simmons, for a stay of parenting orders made on 5 July 2013, pending the determination of their appeal against those orders. The dispute concerned the parenting arrangements for a child, C Arndale-Kingley. The applicants sought to stay the operation of the July order, which had already been put into effect, with the child living with her father, the respondent Mr Kingley, and resuming attendance at her previous school.

The primary legal issue before the Court was whether to grant a stay of the existing parenting orders pending the appeal. This required the Court to consider the principles governing applications for stays, including the entitlement of a successful litigant to the benefit of a judgment, the onus on the applicant to establish a proper basis for a stay, and the paramount consideration of the child's best interests. The Court also had to assess factors such as the bona fides of the applicants, the potential for undue delay, the likely time to hear the appeal, and whether refusing the stay would render a successful appeal nugatory.

Justice Hogan applied the established principles for granting a stay, noting that while a stay should not be granted as a matter of right, it could be ordered if the applicant satisfied the Court of a justifiable ground. Crucially, the Court considered that events had overtaken the proceedings, as the child had been informed of the July order, had moved to live with her father, and had recommenced attending her school. Granting a stay would necessitate informing the child of a further change in her care arrangements, which the Court found would likely cause significant confusion and was not in her best interests, particularly given recent substantial changes. The Court also noted that limiting the frequency of changes in custodial arrangements is especially desirable for a child.

The application for a stay was dismissed. The Court ordered that if the respondent sought costs, written submissions were to be exchanged between the parties within specified timeframes. The judgment was published under a pseudonym as approved by the Chief Justice pursuant to section 121(9)(g) of the *Family Law Act 1975* (Cth).