Once an Order has been made by the Court, if one party is dissatisfied with the Order they can file an appeal. However, the filing of an appeal does not affect the Order and it will continue unless an Application to Stay an Order is filed.
An Application for the stay of an Order can only be filed following the filing of the Notice of Appeal. A Stay Application is commenced by filing an Application in a Case with a supporting affidavit setting out the grounds for why a stay of the previous order should be made. Stay applications are not an application within the appeal and as such, the application will be listed before the Judge who made the decision that is being appealed.
In Stay Applications, the onus is on the applicant to demonstrate to the Court that there is a proper basis for a stay of the Order, although the applicant is not required to establish any special or exceptional circumstances to be granted a stay of the Order.
The principles that a Judge is required to consider when determining to grant a stay of an order are:
• a person who has obtained a judgment is entitled to the benefit of that judgment;
• a person who has obtained a judgment is entitled to presume the judgment is correct;
• the mere filing of an appeal is insufficient to grant a stay;
• the bona fides (‘good faith’) of the applicant;
• a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
• a weighing of the risk that an appeal may be rendered irrelevant if a stay is not granted;
• some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case;
• the desirability of limiting the frequency of any change in a child’s living arrangements;
• the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
• if the stay is in relation to parenting matters, a significant consideration will be the best interests of the child.