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appeal and stay

any srl's at this level?

Hi all,

I am intersted to hear from anyone who has been a srl at the stage of applying for a stay or orders, pending appeal of interim orders (which were supposed to be final orders -but the judge came up with a grand idea to place the children with a 3rd party for 6 months!)

So, the affadavit to support the 'application in a case' - should it include the precedents of case law? or should that go with the grounds of appeal (have some there already, but have more).

It's hard to find precedents when the judge did something unprecedented……………………..

Happy New Year! Hope nobody had such a miserable time as we did on the holidays with kids forcibly in care.
The stay of orders application will go back to the trial judge for determination. This is sufficient to deter most applications in particular those initiated by srl's.

The grounds of appeal are included in the "Notice of Appeal" which must be filed within 28 days of the publication date of the orders being appealed. The Notice of Appeal also includes the orders you are seeking in lieu of the orders being appealed.

Pay careful attention to dates. I read a recent judgement in which an srl appeal was received by the court post office within time but not processed until the day after. This required another application for an extension of time with consequence of months of delay and costs to the other party.

The Notice of Appeal is on the court file before the stay is heard and therefore available to the judge. It can be annexed to the stay affidavit if you wish. The affidavit should contain the points of law on which the appeal relies and any other relevant facts to support those points.

Without reading the reasons for judgment I have no idea what your grounds would be. It always comes down to the welfare of the child. Perhaps something along the lines of "the learned judge erred in law in failing to appropriately consider the impact on the child of her decision to remove contact with both parents and its effect or potential effect on the meaningful relationships being maintained with the father and paternal grandparents and significant others." This is rough draft that I strongly suggest be refined and modified by careful examination of stay caselaw, which includes grounds from other successful cases on austlii.

"The principles to be applied in determining an application for a stay of orders are also well known. In EJK & TSL (No 4) [2006] FamCA 1022 the Full Court, on hearing a second stay appeal in the same matter, referred to the relevant principles to be applied in determining such an application."

You can cite specific caselaw or authorities that supports your case but refrain from quoting slabs of these judgements. These should be presented in oral argument and are more appropriately placed in your "summary of argument". It might be useful to write a preliminary summary.

If the stay application fails it becomes incumbent on the appellant to file and concurrently prosecute another appeal against that judgement to protect the substantive appeal being rendered nugatory. Significantly more work and costs and time.
Go to the registry personally and ask for an expedited stay hearing. This might be granted in 2 weeks. Have no idea of time for judgement.

In my humble opinion the stay will be difficult. I am concerned the whole process might actually prolong and disadvantage your case. Personally I would be concentrate on the Family report. If the allegations are so conflicting the expert will establish the parenting and mental health baselines for a favorable rehearing.
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