P v Q

[2023] WASCA 121

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Family Law
2. › Parenting orders
3. › Stay of parenting orders pending appeal
4. › Whether special circumstances exist
5. › Whether appeal rendered nugatory
6. › Whether appeal has reasonable prospects of success
7. › Balance of convenience and best interests of children
8. › Family Court Act 1997 (WA), ss 66A, 66C
1. Family Law
2. › Parenting orders
3. › Proceedings ordered to proceed on undefended basis
4. › Exclusion of party from proceedings for misconduct
5. › Whether procedural fairness denied
6. › Whether reasonable apprehension of bias
1. Practice and Procedure
2. › Stay of execution pending appeal
3. › General principles
4. › Special circumstances
5. › Whether right of appeal rendered nugatory
6. › Reasonable prospects of success
7. › Balance of convenience
8. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 43
1. Family Law
2. › Financial orders
3. › Stay of financial orders pending appeal
4. › Undertaking not to withdraw superannuation sufficient to preserve position

Quick Take

In considering a stay of parenting orders pending appeal, the welfare of the children is at least a significant consideration in the balance of convenience, even if the question whether it is the paramount consideration remains unresolved. Where an appeal against no-contact orders has reasonable prospects of success, the risk of the appeal being rendered nugatory arises from the potential adverse impact on the parent-child relationship during the period of separation, but this must be weighed against the risk of disruption to children if contact is restored and then terminated again. The question whether the best interests of the child are the paramount consideration on a stay application, or merely a significant consideration, remains open in Western Australia.