Court Ignores Desperate Mom's Appeal—Kids' Lives Upended Anyway in Shocking Family Court Clash!
Kerimowa & Chong (No 2) [2025] FedCFamC1F 395
Intro
In the explosive Kerimowa & Chong (No 2) [2025] FedCFamC1F 395 ruling, Justice Anderson of Australia's Federal Circuit and Family Court (Division 1) slammed the door on a mother's frantic bid to pause final parenting orders while she appeals. Despite her pleas, the court put kids' stability front and center, ruling that appeals don't automatically hit the brakes on life-changing decisions. This case drives home a brutal truth: stays are rare "exceptional" favors, not a sure thing in custody wars.
Facts and Issues
- The parties are the parents of two children, aged 10 and 8.
- Following a final trial in April 2025, Justice Anderson made orders on 1 May 2025 granting the father sole parental responsibility and directing that the children live with him.
- The mother was ordered to have no time with the children for six months (the “moratorium period”), followed by limited supervised contact.
- The mother appealed those final orders on 29 May 2025, claiming procedural unfairness and inadequate consideration of her allegations of family violence.
- Before filing her appeal, she sought a stay of the orders (filed 12 May 2025), effectively asking that the children return to her care pending appeal.
- The Independent Children’s Lawyer (ICL) and father opposed the application, arguing that reinstating the mother’s care would expose the children to an unacceptable risk of harm and create disruptive changes in residence.
The central issue:
Should the Court grant a stay of the final parenting orders, allowing the children to return to the mother, pending the outcome of her appeal?
Law
Justice Anderson applied the principles in:
- Rule 13.12, Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) — empowering the Court to stay orders pending appeal.
- Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 — outlining 11 principles for granting stays (the “First XI”).
- Zyma & Begum [2025] FedCFamC1A 11 — setting out that a stay should only be granted where execution of the order would render an appeal nugatory.
- Navickas & Fried [2024] FedCFamC1A 248 — emphasising that in parenting matters, the children’s welfare is significant but not paramount in stay applications.
- Clemett & Clemett (1981) FLC 91-013 — changes in a child’s residence should be minimised pending appeal.
The general principle:
“A successful litigant is entitled to the fruits of the litigation unless the stay is necessary to preserve the effectiveness of the appeal.” (Aldridge & Keaton; Navickas & Fried).
Application of Law to Facts
Justice Anderson held that:
- The mother’s appeal was bona fide but only “arguable,” with limited prospects of success ([18]–[25]).
- Her claims of procedural unfairness—based on cross-examining the expert without counsel—were unsupported because she had received the report months earlier and was assisted by the ICL during questioning ([21]).
- Allegations of violence and child abuse were found to have been fully considered and rejected after detailed reasoning in the original judgment ([22]).
- Granting a stay would disrupt the children’s stability and contradict the original findings of risk ([28]–[29]).
- The mother was found to pose an unacceptable psychological risk to the children due to her beliefs and behaviour.
- Reinstating her care would expose them to instability and potential harm.
- The balance of convenience favoured maintaining the current orders ([26]).
- The appeal was to be heard expeditiously, reducing the risk of long-term separation.
- Refusing the stay would involve only one potential change of residence, whereas granting it would risk two disruptive transitions ([29]).
- The welfare of the children was a significant but not decisive factor—nonetheless, it weighed heavily against disturbing their current placement ([27]).
Judgment and Reasoning
Justice Anderson dismissed the mother’s stay application ([31]).
His Honour reasoned that:
- The appeal raised no strong legal or factual grounds likely to succeed.
- The findings of risk to the children in the mother’s care were substantial and evidence-based.
- The father’s entitlement to the “fruits of the litigation” should not be overridden absent exceptional circumstances.
- Maintaining residential stability outweighed the mother’s desire to resume care temporarily.
Costs for the father and the ICL were reserved, pending the appeal’s outcome ([32]).
Key Precedents Cited
- Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
- Cantrell & North & Anor (2019) FLC 93-921
- Navickas & Fried [2024] FedCFamC1A 248
- Clemett & Clemett (1981) FLC 91-013
- Zyma & Begum [2025] FedCFamC1A 11
Take-Home Lesson
A parenting stay will only be granted in rare cases where refusal would render the appeal meaningless or cause immediate harm to a child.
In Kerimowa & Chong (No 2), the Court reaffirmed that a stay is not a “second chance” to relitigate custody but a tool to preserve the status quo where necessary for justice. Where the original judgment is reasoned, the findings of risk are clear, and the children’s welfare depends on continuity, final orders will stand pending appeal.
The decision also serves as a warning: appeals in parenting cases do not automatically pause enforcement—parents must demonstrate real prejudice, not just dissatisfaction with the outcome.
