Aldridge v Keaton

(a) the Application in a Proceeding filed on 21 August 2025 is dismissed; and

(b) the Response to an Application in a Proceeding filed on 25 August 2025 is dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bourreau & Ivers has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the disposition of an application brought by the father to stay orders he has appealed.

1. On 23 June 2025, orders were made to finally determine causes of action between the parties in respect of their children and the division of their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) ("the Act") respectively.
2. The orders pronounced in the parenting cause allocated the mother sole parental responsibility for the children (Order 2), required them to live with her (Order 3), and made provision for the younger child to spend time with the father once every two months (Order 4). The father cannot consume substances to risk his intoxication while the child spends time with him (Order 7).
3. The orders pronounced in the financial cause required the father to sell his property if he failed to pay the mother a specific sum of money within two months (Orders 14-16). Upon sale of the property, the mother is to receive 60 per cent of the net proceeds (Order 17).
4. On 21 July 2025, the father appealed from both judgments and the appeal is now listed for hearing before the Full Court on 29 October 2025.
5. On 21 August 2025, the father filed an application seeking the stay of a selection of the orders pending disposition of the appeal. The application was resisted by the mother and, in respect of the parenting application, also by the Independent Children's Lawyer.

1. The father relied upon his Application in a Proceeding and his supporting affidavit, both filed on 21 August 2025.
2. The mother relied upon her Response to an Application in a Proceeding and her supporting affidavit, both filed on 25 August 2025.

1. The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of an appeal.
2. Circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 685).
3. Those principles apply equally to appeals from judgments delivered in this jurisdiction, including judgments pertaining to parenting orders (JRN & IEG [1998] HCATrans 263; (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]-[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No 2) [2008] FamCAFC 194 at [38]).
4. With particular relevance to the stay of parenting orders, the welfare of the children is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the children's present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
5. The judgments under appeal are presumed to be correct. Indeed, the Full Court must subsequently approach the appeal strongly presuming the decisions are correct (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627).

1. The father only wants to stay specific orders, being: the discharge of past parenting orders (Order 1); the allocation of sole parental responsibility to the mother (Order 2); the children living with the mother (Order 3); and the requirement for the father to abstain from use of intoxicating substances while the youngest child spends time with him (Order 7).
2. His application to stay those orders is misconceived. The children have lived with the mother since separation in 2022. Tellingly, the father deposed in support of this application that he wanted to spend time with the youngest child once each month instead of once every two months. He did not expect the children would instead live with him and so he agreed the residence order need not be stayed.
3. The father could not articulate any convincing reason why the parental responsibility order should be stayed. He expressed the desire to have authority to refer the youngest child for medical treatment if he suffers injury when spending time with him, but that is not sufficient. It would be absurd for him to have parental responsibility for the children if they remain living with the mother, given the finding of how the parties could not share parental responsibility (Bourreau & Ivers (No 2) [2025] FedCFamC1F 417 at [69]).
4. The reason for the injunction binding the father (Order 7) was his propensity to intoxicate himself, which cannot be allowed to compromise his temporary care of the youngest child (Bourreau & Ivers (No 2) at [42]-[45]). However, that order is not even the subject of the father's current appeal, which presently lies only from Orders 1, 2 and 3. There is no utility in staying an order which is not appealed.
5. The application to stay Orders 1, 2, 3 and 7 is dismissed.

1. The father seeks that all financial orders be stayed (Orders 14-20).
2. He was due to pay $382,800 to the mother by 23 August 2025 (Order 14). He did not do so, in which event the orders now require him to sell his property (Order 16).
3. There is no reason to stay those orders. The father accepts he has done nothing yet to raise the funds due to the mother. In his affidavit, he seeks more time to raise a loan secured by mortgage against the property, but he adduced no evidence at trial or in this application of his capacity to raise a commercial loan for that purpose (Bourreau & Ivers (No 2) at [110]-[112]). There is no realistic hope of him doing so. If he was able to resort to financial help from his family, that would likely have already occurred in the past two months. His submission that he might be able to secure financial help from an Aboriginal elder at some point in the near future was unpersuasive when he declined to seek an adjournment of the application for a week or so to obtain, file and serve affidavit corroborative evidence from the prospective lender.
4. The father conducted the case at trial on the premise that he would be required to pay the mother the cash sum of $128,000 (Bourreau & Ivers (No 2) at [82]), but the orders require him to pay her $382,800 (Order 14) or, in default thereof, 60 per cent of the net proceeds realised on the sale of his property (Order 17(c)). There is no prejudice to the father in requiring him to pay the mother the sum of $100,000 - either from his own resources or from the net sale proceeds - because that sum falls well within the range he proposed he should be required to pay her.
5. The mother has an urgent need for money, but she suffers no discernible prejudice in receiving $100,000 instead of a much larger sum from the father in the period while she waits for his appeal to be heard and determined. If the appeal fails, the remainder of the sum due to her will become payable. She agreed that was a satisfactory salve.
6. The father said he would be homeless if the financial orders were not stayed, but that submission is answered by two observations. First, the father has already had more than two months within which to organise his affairs but has ostensibly done nothing. Secondly, there is no evidence he will be homeless if his property is sold. He did not adduce any evidence of having no alternate accommodation, either provided by family, friends, or commercially. He might need to rent accommodation, like many other citizens, if he has no other option.
7. Consequently, Order 16, which requires the sale of the property, will be stayed if the father pays the mother $100,000 within 10 days. If he fails to do so, Order 16 will be operable and will require the sale of the property to proceed. In that event, the two sub-orders regulating the distribution of the net proceeds realised on the sale of the property will be stayed (Orders 17(c) and 17(d)) upon condition the father causes the mother to be paid the lesser sum of $100,000 from the proceeds. The balance may then be held back in case the father's appeal from the financial judgment is successful.

1. The mother initially sought her party/party costs of this application, assessed in the sum of $3,000, but the application was withdrawn when the stay application was partially successful.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.