Should a parent be allowed to relocate their children overseas while an appeal is pending?Pressner & Lennart (No 2) [2024] FedCFamC1F 900 (23 December 2024)
Background of the case
This case involves a dispute between the parents of two children, X and Y, regarding their relocation to the United Kingdom. On December 16, 2024, the court delivered a judgment permitting the mother to relocate the children’s residence to the UK. Following this, the father promptly filed an Application in a Proceeding on December 17, 2024, seeking a stay of the final parenting orders. He also filed a Notice of Appeal on December 18, 2024, contesting the decision.
To support his application, the father submitted two affidavits dated December 17 and 18, 2024, along with a Case Outline Document. The mother opposed the application and filed her Response to Application in a Proceeding and an accompanying affidavit on December 19, 2024.
The core legal issue in this case is whether a stay of the final parenting orders, allowing the mother to relocate the children, should be granted pending the determination of the father’s appeal.
Legal Issue and Principles
The key issue was whether a stay of the final parenting orders, allowing the mother to relocate the children, should be granted pending the determination of the father’s appeal. The court applied principles from Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 and Trahn & Long (No 2) [2008] FamCAFC 194, which establish that:
“It is not necessary for the applicant to demonstrate special or exceptional circumstances.
The mere filing of a stay is insufficient basis for granting a stay.
A person is entitled to the benefits of, or the ‘fruits’ as it is often referred to, of the judgment.
The person who has obtained the judgment is entitled to presume that it is correct.
The court will consider the bona fides of the applicant for the stay.
A stay may be granted on terms fair to all parties.
The court must weigh the risk that an appeal may be rendered nugatory if a stay is not granted, and I accept that is a substantial factor.
There needs to be a preliminary assessment of the strength of the appeal and whether the appellant has an arguable case.”
Court’s Consideration
The court acknowledged the father’s prompt action in filing for the stay and appeal. It considered the practical implications of the relocation, particularly on the children’s education and emotional well-being. X was about to start high school in Australia and had expressed resistance to moving, which raised concerns about the emotional impact of an uncertain transition. Relocating mid-school year would pose additional challenges, including making new friends, and adapting to a different environment.
The mother would also need to give up rental accommodation and make school arrangements in the UK, potentially creating instability for the children. While the court accepted that she could return with the children if the appeal was successful, the disruption caused by an international move and possible reversal weighed against immediate relocation.
The court assessed the father’s appeal as arguable. Given the serious and potentially irreversible consequences of relocation, and the relatively short timeframe for an appeal decision (four to six months, potentially shorter if expedited), the court found it reasonable to maintain the current living arrangements in Australia until the appeal was determined.
Court’s Decision
Balancing the competing interests of both parents and the welfare of the children, the court granted a stay of the relocation orders until further order. This decision aimed to minimise disruption to the children’s lives while allowing the appeal process to be properly considered. However, the court permitted both parents to take the children overseas for holidays.