· 2026-10-08T01:49:20+0000 · 927 posts

Citation: Assies & Assies (No 2) [2026] FedCFamC1F 640

Filing an Appeal Doesn't Freeze a Relocation: Why the Stay Failed on Weak Grounds, Missing Evidence and Questionable Timing

In Assies & Assies (No 2) [2026] FedCFamC1F 640, the Court dealt with a mother’s application to stay a final parenting order. That order let the father relocate their five-year-old daughter, Y, to “Country C” while the mother’s appeal was pending. The result: the stay was refused, and the interim restraint on removing Y from Australia was discharged ([120]–[121]; Orders 1–2). The important point is that a stay is not automatic just because an appeal has been filed. The applicant has to show a proper basis. Here, Bennett J’s preliminary view was that every ground of appeal was weak, not arguable or misconceived ([71], [85], [89], [103], [105]). The judge also found the mother’s bona fides “questionable” because of how she timed her consent to the older child’s departure against the filing of her appeal ([106]–[107]). Finally, the judge was satisfied that Y’s best interests were served by going to Country C now, even though she might have to come back if the appeal succeeds ([120]). All paragraph references below are to the judgment.

Why it matters: Many parents, and some practitioners, treat a Notice of Appeal as an emergency brake. It isn’t. “The mere filing of an appeal is insufficient to grant a stay” ([50]). If you want the status quo kept pending appeal, you need arguable grounds that would actually change the outcome, evidence supporting your factual case, and conduct that shows the application is brought in good faith and with the child in focus.

🧩 Facts and Issues

The family

The parents married in 2005 in City B, Country C, and separated in February 2025 ([14]). The parents and all the children hold dual Australian/Country C citizenship. The family moved from Country C to Australia in 2019 ([16]).

There are four children ([15]):

Ms CC (20) was living with the father at trial and planned to return to Country C in November 2026 ([15(a)]).
Mr R (18) has lived in City B since December 2025, near the maternal grandmother ([15(b)], [25]).
X (14) moved to Country C in September 2026 with the mother’s consent. He is living with the maternal grandmother until the father arrives ([15(c)], [43]).
Y (5) was described as presenting with Autism Spectrum Disorder and Global Developmental Delay, assessed by psychologist Ms TT in April 2026 ([15(d)], [33]).
The mother was Y’s primary carer. That was “not in dispute” ([17], [75]).

Family violence history: allegations, not findings

The judgment records an intervention order history. The judge made no findings about family violence:

In mid-2025 the mother applied for an IVO against the father, and it was refused ([20]).
Police later applied for an IVO after a changeover incident in November 2025 ([24]). An interim IVO was made ex parte in December 2025 ([27]).
In early 2026 the father consented without admissions to a limited final IVO protecting the mother, X and Y ([29]).
Earlier, police had issued a limited Family Violence Safety Notice against the adult daughter, Ms CC, after an argument with the mother in front of Y ([18]).

The father’s consent to an IVO without admissions is not an admission of family violence, and the stay judgment does not treat it as one. Family violence was not argued as a ground for the stay.

The trial and the final order

Hartnett J heard the final hearing over 27–29 July 2026 and gave judgment on 19 August 2026 (Assies & Assies [2026] FedCFamC1F 547) ([2], [35]).
The father got sole parental responsibility for major long-term decisions and permission to relocate Y (and X) to City B on or after 16 September 2026 ([2], [41]).
The mother’s position during the trial kept changing. She said she would not relocate, then conceded under cross-examination that she would follow Y after exhausting her appeals, and in closing went back to saying she would not relocate. She pressed no alternative orders ([36]).
The day before judgment, after her solicitors had stopped acting, the mother applied to reopen the case to adduce further evidence. All of it pre-dated the trial ([37]–[38]). Hartnett J dismissed that application ([40]).

After the final order

On 24 August 2026 the father asked the mother to consent to X travelling early so he could start the Country C school year. She agreed on 2 September, and X left in September and started school on 7 September ([43]). (The judgment dates the father’s request as 26 August at [106]. See “Unclear points” below.)
On 3 September 2026 the mother filed her Notice of Appeal, an application for expedition and this stay application ([45]). She gave the father no warning that the appeal was coming ([107]).
The father enrolled Y at D School in City B and booked an occupational therapy assessment and ten speech pathology sessions in Country C, all starting on 28 September 2026 ([44], [100]).
The stay went to Bennett J as urgent matters judge because Hartnett J was unavailable ([46]).

Orders sought

The mother sought to stay ten orders, restrain Y’s removal from Australia, and have Y’s passports held by the ICL ([9]). In argument her counsel “sensibly” focused on the relocation order, Order 3 ([10]).
The father opposed. He offered to return Y to Australia within 21 days if the appeal succeeded and orders required her return ([11]).
The Independent Children’s Lawyer opposed the stay ([12], [68], [102]).

Issues

Had the mother shown a proper basis for staying the relocation order pending appeal, applying Aldridge v Keaton ([50], [104])?
As part of that, how strong were her five grounds of appeal on a preliminary assessment ([53]–[103])?
Did the other stay factors favour a stay: bona fides, risk of the appeal being rendered nugatory, terms, disruption to the child, timing of the appeal, and Y’s best interests ([104]–[120])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth), s 60CA. In deciding whether to make a particular parenting order, the child’s best interests are the paramount consideration ([72]).
s 60CC(2)(d) covers the capacity of each parent to meet the child’s needs. s 60CC(2)(e) covers the benefit to the child of relationships with both parents and other significant people ([72], fns 27–28). The judge relied on Hartnett J’s treatment of these factors, particularly Y’s sibling relationships ([80]).
Division 12A of Part VII (principles for child-related proceedings) was raised through Naczek v Dowler (No 4), quoted in Crother & Tothill, in support of the mother’s argument that reopening applications in parenting cases should be decided with best interests in mind ([55]).
s 94AAA(6) is referred to in the passage quoted from Saltern & Mink: a rehearing is not “appropriate” unless an established error results in a miscarriage of justice ([69]).
Part XIVB and s 114Q(2) are the publication restrictions and the approval of the pseudonym (cover notes).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 10.13 and 10.14(b) are referred to only in the standard note about corrections to reasons.
The 1996 Hague Child Protection Convention, Arts 23 and 26 (recognition and enforcement of measures between Contracting States). The judge raised this in response to a Country C solicitor’s letter the mother relied on ([115]–[116]).

Note that the judgment does not identify the statutory source of the power to grant a stay. It goes straight to the case-law principles in Aldridge v Keaton ([50]).

📌 Precedents Relied On

Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 — The governing stay principles: the onus is on the applicant (no “special” circumstances needed); the successful party is entitled to the benefit of the judgment and to presume it is correct; filing an appeal is not enough; bona fides; terms and balance of convenience; risk the appeal is rendered nugatory; a preliminary assessment of the appeal’s strength; limiting changes in the child’s living arrangements; timing of the appeal; best interests as a significant consideration ([50], [104]).
House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513 — Cited within Aldridge on the limits of appellate interference with discretionary judgments ([50]).
Reid v Brett [2005] VSC 18 — Raised by the ICL at trial on the criteria for reopening a case after the hearing but before judgment ([39]). The mother said reliance on this “civil” authority was error ([55]).
Stephens & Stephens (2009) FLC 93-425 — Hartnett J’s source for the reopening factors (her Honour’s reasons at [11], quoted at [54]): foreseeability, importance, probative value, prejudice, timely conclusion, explanation ([54]).
Crother & Tothill [2017] FamCA 307; Naczek v Dowler (No 4) [2018] FamCA 653 — Relied on by the mother. In parenting cases, new evidence “has to be considered (not necessarily accepted) if it will affect the outcome”, and the question is “whether the further evidence … will affect the determination” ([55]–[56]).
Saltern & Mink [2020] FamCAFC 320 (citing Lane & Nichols and Conway v The Queen) — An error of law on appeal does not automatically mean the appeal is allowed. A rehearing requires a miscarriage of justice ([69]).
OP v TP (Conduct of Counsel) (2003) 30 Fam LR 281; Maddax and Danner [2016] FamCAFC 176; Barnabus v Phineus (2025) 72 Fam LR 246 — Litigants are bound by how their counsel ran the case unless counsel was so inept that the result was procedurally unfair ([70], [88], fns 26 and 31).

🧠 Analysis

Issue

The mother had filed an appeal against a relocation order. Should the relocation order be suspended until the appeal is heard, which was likely to be the week of 6 December 2026 ([114])? Or should the father be free to take Y to Country C now?

That turned on whether the mother discharged her onus of showing a proper basis for a stay ([50], [105]). The main questions were:

the preliminary strength of her five grounds of appeal
her bona fides
the risk of the appeal being rendered nugatory
the disruption to Y if she went and later had to return
where Y’s best interests lay in the meantime

Rule

The Aldridge v Keaton principles apply ([50]):

The onus is on the applicant for a stay. No “special” or “exceptional” circumstances are needed.
The successful party is entitled to the benefit of the judgment and to presume it is correct.
Filing an appeal is not enough.
The court considers the applicant’s bona fides, whether a stay can be granted on terms, and the balance of convenience.
The risk that the appeal will be rendered nugatory is “a substantial factor”.
The court makes a preliminary assessment of the strength of the appeal, asking whether it is arguable.
It considers the desirability of limiting changes in a child’s living arrangements and the time until the appeal is heard.
The child’s best interests are a significant consideration.

Two further rules shaped the assessment of the grounds:

Materiality: an error does not lead to a rehearing unless it produces a miscarriage of justice ([69]).
Conduct of counsel: a party is bound by how the case was run at trial unless counsel’s ineptitude produced procedural unfairness ([70], [88]).

Application

Filing an appeal did not displace the father’s entitlement to the judgment

Bennett J started from the Aldridge framework ([50], [104]). The father had a final order after a three-day trial. He was entitled to its benefit and to presume it was correct. The mother had to show why it should be suspended. Her original application tried to stay far more orders than she needed to protect her position ([10]). The judge noted that the other orders she appealed were “incidental to the relocation” and would not be stayed either ([117]–[118]).

Ground 1: a “wrong test” argument fails if the excluded evidence would not have changed anything

The mother’s lead ground was framed as “a very clean, distinct legal point” ([51]). She said Hartnett J refused to reopen the case by applying civil principles (Reid v Brett, Stephens) rather than a best-interests approach (Crother & Tothill, Naczek v Dowler) ([53]–[57]).

Bennett J did not decide whether that was an error. He said he did not find that the error was made ([69]). He also accepted there was “some merit” in the father’s argument that Hartnett J’s reasons, read as a whole, necessarily engaged best interests, because the trial judge asked whether the evidence would “impact the outcome of the case” ([59]–[60]). The decisive point was materiality:

Asked to identify what in the 136 pages of excluded material actually mattered, counsel pointed to two letters: one from the paediatrician, Dr SS, and one from the occupational therapist, Ms AF ([61]–[64]).
The paediatrician’s letter said the availability of services in Country C “would need to be carefully considered”. That suggested the comparison had not yet been done at all. There was “no admissible evidence demonstrating a comparison of services between jurisdictions” ([63]).
The supports the letters described (OT, speech therapy, behavioural support, collaboration with kindergarten) were “clearly contemplated” by Hartnett J. The letters were “of insufficient probative value”, and the trial judge’s conclusion that the evidence would not affect the outcome “was a finding open to her Honour” ([65]).
The other material counsel relied on was already in evidence at trial in the mother’s own affidavit ([66]–[67]). Counsel conceded that the dance classes it mentioned would be available in Country C ([67]).
All the material was available to the mother’s lawyers well before trial. She did not allege that her trial counsel was so inept as to make the trial unfair ([70]).

Result: Ground 1 was “weak, and in the final analysis, not arguable” ([71]).

The practical point: an attractive legal label (“wrong test”, “error of law”) does not make an appeal strong. The question is what the excluded evidence would have changed. If you can’t point to specific evidence and explain how it would have shifted the outcome, the error, even if one is assumed, is immaterial.

Ground 2: separation from the mother had to be weighed against everything else Y would gain or lose

The mother argued that Hartnett J gave insufficient weight to the impact on Y of being separated from her, and that it was “safer” for Y to stay in Australia pending the appeal ([73]). Bennett J explained that the impact of separation cannot be weighed in isolation. It depends on the context, including that “all of her family, except the mother, are in Country C or will shortly be in Country C” ([72]). He looked at three things ([74]):

Comparative parenting capacity. The mother was Y’s primary carer and loved her, but Hartnett J had found that the father had “a greater capacity to provide for [X] and [Y’s] emotional and psychological needs” ([75]–[76]). Hartnett J accepted the single expert’s evidence. Ms T had described the mother at times “infantilising” Y and using parenting strategies that “could be considered as compromising of [Y’s] development” ([76], [78]). Hartnett J called Ms T’s evidence “insightful and unequivocal” ([77]).
Other significant relationships. Y’s siblings, especially Mr R, were a central feature. Hartnett J found that keeping Y in Australia away from them “does not promote her best interests” ([80]). Ms T described the siblings as “strong and facilitative” and “a buffer against her parents’ caregiving failings” ([76], [78]).
Whether Y would actually be “separated” from the mother. The mother had repeatedly said she would “never abandon” Y and would follow her to Country C, and had talked about eventually returning to “her roots” ([79], [81]–[82]). Ms T said that if the mother did relocate near City B, Y should live with the mother ([84]). On the evidence, separation was partly a product of the mother’s own choice about where to live ([83]).

These are findings of the trial judge that Bennett J relied on. He did not make fresh findings on parenting capacity. His point was that Ground 2 “goes to the weight” given to the evidence, especially the single expert’s evidence, and was “not arguable” ([85]).

Weight is the hardest thing to appeal. A ground that amounts to “the judge should have given more weight to X” will usually fail unless you can show the weight given was plainly unreasonable or that something relevant was ignored entirely.

Grounds 3 and 4: procedural fairness is about the opportunity to respond, not whether it was used

The mother complained that she had no reasonable opportunity to respond to the Updated Family Report and that the report had not considered the trial affidavits ([86]). Bennett J noted ([86]–[88]):

The report was released about four weeks before trial.
Ms T was the last witness.
The mother gave evidence before Ms T. She could have asked to give oral evidence in response to the report, and she could have put documents to Ms T or tendered them.
She was refused leave to file a further affidavit, but that did not remove those other opportunities.
She is bound by how her counsel ran the case.

Grounds 3 and 4 were “misconceived” ([89]).

Ground 5: the party who says “the services overseas are worse” has to prove it

This ground was about the comparative quality of disability supports in Melbourne and Country C ([90]). The mother’s counsel argued that the father, as the party wanting to move Y away from her current supports, had to prove that Country C had equivalent services ([91]).

The judgment says “I do agree” at [92]. But the reasoning that follows rejects the mother’s argument: “The party who makes a contention bears the onus of proving the contention… Just because the mother makes that statement does not make it so” ([92]). (See “Unclear points” below.) The substance was that:

There was no evidence comparing services from a person competent to give it ([92]).
When asked to identify the nature and extent of Y’s services in Australia, counsel did not do so ([93]).
The mother’s lists of treating professionals and her therapy schedule were “shopping lists”. They did not show any specialist support available in Australia that Y could not get in Country C ([96]–[97]).
At trial, the mother’s hearsay evidence about a kindergarten officer’s views on Country C services got “little weight” because that person was neither called nor gave an affidavit ([95], quoting trial reasons [153]).
Hartnett J accepted the father’s evidence about his plans. Ms T accepted that there “would be a regime in place” in Country C. Being cared for in a language Y knows better was a positive ([98]).
The father had booked OT and speech pathology appointments in Country C for 28 September 2026. He undertook to pay privately until public funding came through, and he offered video appointments with Australian treaters ([100]–[101]). The ICL was “comforted” by this ([102]).
The mother’s concern that delays in therapy “may have consequences … which cannot be remedied” had no evidence behind it ([99]).

Ground 5 was “not arguable” ([103]).

For self-represented parents especially: in relocation cases involving disability, your strong belief that “services there are worse” is not evidence. You need admissible, comparative evidence from someone qualified to give it, and the right time to produce it is at trial.

Bona fides: the timing of the mother’s consent for X counted against her

This is the most pointed part of the judgment. The mother’s position at trial was that X could go to Country C only if the father went too and was his primary carer ([42], [106]). She then consented to X leaving early, and around the same time filed her appeal and stay application without telling the father ([107]).

The result was that X ended up in Country C with his grandmother, while the father and Y stayed in Australia. Bennett J agreed with the father that this was not in X’s best interests ([107]):

“A child-centred approach to this matter would have seen the mother give her consent for X to leave at the same time as advising the father that her appeal and associated applications were about to be filed.” ([107])

The judge described the mother’s actions as “questionable” ([106]). He did not say she acted in bad faith or deliberately engineered the separation. FLAST readers should not overstate this. It was assessed under the bona fides factor and weighed against the stay.

The remaining stay factors did not help the mother

Terms: no party, including the ICL, suggested a stay on terms ([108]).
Nugatory appeal: no party suggested the appeal would be rendered nugatory, and no one suggested the father would fail to return Y if ordered ([109]). He had offered to return her within 21 days ([11]). Because of this, the “substantial factor” in Aldridge did not favour a stay.
Disruption and travel: the mother said long-haul flights would distress Y because of her neurodevelopmental conditions ([111]). But her own trial proposal involved at least one set of international flights a year ([111]). The father’s evidence was that Y had already made the trip three times with stopovers and support ([112]). The judge was “confident” that a five-year-old could experience the trip as a “spend time event” rather than a change of residence ([113]).
Timing of the appeal: the likely hearing in December 2026 was not far off. But it meant a “considerable delay” in a family where X was already separated from the father and Y ([114]).
Enforceability: the mother relied on advice from a Country C solicitor. Bennett J said it did not relate to any ground of appeal and did not seem to address the recognition and enforcement mechanism under the 1996 Hague Child Protection Convention. He said that to the extent it contemplated a fresh merits hearing in Country C, it was “misconceived”, because Order 20 required the parties to obtain mirror orders ([115]–[116]).

Best interests: going now was better than waiting

Bennett J concluded that it was in Y’s best interests “to go to Country C now, even if there is a risk she will be required to return to Australia” if the appeal succeeds ([120]). He relied on the single expert’s consistent support for relocation “whether or not the mother follows” ([114]). The stay was refused ([121]), and the interim restraint was discharged (Order 2; see [119]).

Conclusion

The stay failed because the mother did not discharge her onus ([105]). On a preliminary assessment, her grounds were weak, not arguable or misconceived ([71], [85], [89], [103], [110]):

The reopening complaint failed on materiality.
The separation complaint was about weight.
The procedural fairness complaints ignored opportunities she had at trial.
The services complaint failed for lack of evidence, which was her burden to supply.

The other factors also went against her. Her bona fides were questioned over the X episode. No one said the appeal would be rendered nugatory. Travel was manageable. And the best-interests evidence favoured Y being with her father, siblings and extended family now ([106]–[114], [120]).

This is only a preliminary assessment in a stay application. The appeal itself had not been decided when this judgment was given.

🧠 Take-Home Lesson

A Notice of Appeal is not a stay. The person who won at trial is entitled to the benefit of the judgment. You have to show a proper basis to suspend it ([50]).
On a stay, the strength of the appeal matters. The court takes a preliminary look at your grounds. If they are weak or not arguable, your stay is in serious trouble ([105], [110]).
Materiality beats labels. “Wrong legal test” sounds powerful. But if the evidence you were stopped from using would not have changed the outcome, the argument goes nowhere ([65], [69], [71]).

“An error that changes nothing is not a reason to stop a child’s life in its tracks.”

Bring the evidence at trial. Every document the mother later wanted to rely on existed before the trial ([38], [70]). Trying to bring in old material after the hearing, without a good explanation, rarely works.
You are bound by how your case was run. Unless your trial lawyer was so incompetent that the hearing was unfair, you cannot run a different case on appeal ([70], [88]).
If you say services overseas are worse, prove it. Use admissible, comparative evidence from someone competent to give it. Your own lists of therapists, or what a third party told you, will not do the job ([92]–[97]).

“Saying the supports overseas are worse does not make it so. In relocation cases, the comparison is evidence, not assumption.”

Your conduct after judgment is evidence of bona fides. Consenting to one child leaving while quietly preparing to appeal, and splitting the siblings and carers as a result, was seen as not child-focused ([106]–[107]).
Be consistent about whether you would relocate. The mother’s changing positions on whether she would follow Y to Country C weakened her claim that Y would be “separated” from her ([36], [81]–[84]).
Practitioners and support workers: when preparing or opposing a stay, go through each Aldridge factor. Many of the mother’s arguments in this case were met by practical steps the father took: offering to return Y, booking therapy, offering video sessions with Australian treaters, and enrolling her in school ([11], [100]–[102], [109]).

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