Waite & Waite-Hollins

The appeal concerned an application to stay the return of two children to Switzerland pending an appeal against a substantive judgment. The children were scheduled to return to Switzerland on the same day as the appeal hearing. The father sought the stay, citing instability for the children and alleging the trial judge erred in finding the mother would voluntarily return the children to Australia if the appeal were successful. The children had been in the care of the Department of Community Development for the preceding 18 months, with the mother residing in Switzerland and the father having predominantly supervised contact.

The legal issues before the Full Court were whether the trial judge erred in refusing the father's application for a stay of the children's return to Switzerland, particularly in light of the grounds of appeal which alleged the decision was contrary to law and the principles established in *EJK v TSL (No.2)*. The father contended that the trial judge should not have found that the mother would voluntarily return the children to Australia in the event of a successful appeal, given the history of the proceedings.

The Full Court distinguished the present case from *EJK v TSL (No.2)*, finding that the trial judge had applied the correct test and was satisfied that adequate safeguards existed in Switzerland to ensure the mother's compliance with any court order. The court considered the unusual circumstances, including the children's preparation for departure and the potential trauma of restricting their immediate return, as well as the trial judge's finding regarding the likelihood of serious psychological problems for one child if her wish to reside with the mother did not eventuate. Ultimately, the Full Court held that the welfare of the children dictated their expeditious return to Switzerland.

The appeal was dismissed, with the notice of appeal filed on 4 September 2006 being dismissed. The costs of the 4 September 2006 hearing were made costs in the appeal filed on 28 July 2006.