At the conclusion of a hearing on 10 December 2025, we made orders granting a stay of certain orders made by the primary judge pending determination of this appeal or other order. We said that we would publish written reasons for making those orders. These are our reasons for making the orders.
The parties were in a de facto relationship with each other from 2011 until their separation on 19 November 2021. They currently share the care of two children born during their de facto relationship. Both parties are currently unemployed, although the appellant is in receipt of worker's compensation payments in an undisclosed amount. The appellant lives with her current partner, the parties' children and her current partner's child in a house in Joondalup (Joondalup property). The parties are joint registered proprietors of the Joondalup property. The respondent, who is currently pregnant, lives with her current partner and the parties' children in rental accommodation. The current income of both parties appears to be limited, and both appear to rely on their current partners for financial support to some extent.
Apart from modestly valued cars and personal effects, the Joondalup property is the parties' only substantial asset. The parties jointly purchased the Joondalup property in May 2021 for $510,000. The Joondalup property was purchased using $118,636 which the appellant's mother paid into the parties' joint bank account, a $408,000 loan secured by a mortgage over the property and the parties' joint savings. At the time of trial, it was agreed that the value of the Joondalup property was $720,000 and that $385,699.53 was owing on the mortgage.[1]
It appears to be common ground that the appellant or her current partner have been responsible for making mortgage repayments and paying rates and charges associated with the Joondalup property since its purchase. The current loan balance is $377,303.62 and the repayments are currently about $2,900 in arrears. It is unnecessary to resolve the parties' differences as to the cause of the payments being in arrears.
On 2 April 2025, the primary judge made property adjustment orders which relevantly provided for the Joondalup property to be transferred into the appellant's name alone, for the mortgage to be refinanced by a loan in the appellant's name alone and for the appellant to pay the respondent $187,967. This was required to occur by 28 November 2025. If it did not, the primary orders require the Joondalup property to be listed for sale. After discharging the mortgage, and paying rates and selling costs, $187,967 is to be paid to the respondent and the balance of the purchase price is to be paid to the appellant.
The appellant commenced this appeal against the primary orders on 28 April 2025. The appellant's principal contentions in challenging the property orders concern:
[2]
(a) the treatment of the payment of $118,636 by the appellant's mother as a gift to both parties; and
(b) the trial judge's failure to apply a 'two pool' approach which separately considered the parties' contributions in relation to the Joondalup property when assessing the parties' contributions under s 205ZG of the Family Court Act 1997 (WA).
[3]
The appellant also complains of the trial judge's decision not to take account of the appellant's student loan liability of approximately $27,500, and her Honour's decision to include the respondent's liability to pay legal fees of about $10,000, in assessing the parties' financial positions. The appellant also alleges a reasonable apprehension of bias in relation to the trial judge, although this allegation appears misdirected to the reasons for the primary judge making the primary orders.
By application in an appeal filed on 14 November 2025, the appellant sought a stay of various primary orders including the property adjustment orders to which we have referred. At a directions hearing held on 21 November 2025, we programmed the stay application for hearing on 10 December 2025 and made an interim order staying those orders until noon that day.
The general principles on which this court determines whether it will grant or refuse a stay are well established.[2] Broadly speaking, there are three primary considerations. First, whether a stay is necessary to preserve the subject matter of the appeal - that is whether, without the stay, the appeal might be rendered nugatory. In this respect the term 'nugatory' is used in the sense of indicating that a stay is necessary to preserve the subject matter or the integrity of the litigation or as indicating that, at the least, refusal of a stay could create practical difficulties in respect of the relief which may be granted on the appeal. Secondly, whether the appeal has a reasonable prospect of succeeding. Thirdly, whether the balance of convenience favours the grant of the stay.
The appellant contends that the appeal would be rendered nugatory if the Joondalup house is sold before the appeal is determined. She contends that if the property is sold, 'the children and I would lose our home permanently, this impact would be immediate, significant and irreversible'.[3]
A difficulty for the appellant is that it appears she has not taken any concrete steps to refinance the property and there is no evidence as to the appellant's borrowing capacity. The best outcome which the appellant could realistically hope for in the appeal is a substantial reduction of the amount which she is required to pay the respondent. If she is to gain sole ownership of the Joondalup property, then she will need to refinance in her own name the mortgaged debt which is currently owed by both parties. We can accept that the current need to finance the payment of about $188,000 payable to the respondent, in addition to the current outstanding loan balance, might affect whether the appellant is able to refinance the mortgage in a way that avoids the sale of the Joondalup property. However, there is no evidence as to whether the appellant can currently obtain finance for the current outstanding balance of the mortgage plus the amount of about $188,000 which she is required to pay to the respondent. Nor is there any evidence about whether the appellant has the capacity to refinance the current outstanding balance of the mortgage in her own name even if the amount she is required to pay the respondent is reduced to nil on appeal. If the appellant lacks that capacity (which is quite possible given her current employment status) then the Joondalup property would need to be sold irrespective of the outcome of the appeal.
Therefore, while there was some evidence that a refusal of a stay might render the appeal nugatory, the evidence in support of the proposition was weak.
The respondent did not contend that the appeal has no reasonable prospect of succeeding. It is settled that this is not a high hurdle for an applicant for a stay to overcome. As this court noted in GXB v Tyson [No 3]:[4]
[4]
It will usually be enough to show that the grounds of appeal have a rational and logical prospect of succeeding. Grounds of appeal that have a rational and logical prospect of succeeding are grounds that are not irrational, fanciful or absurd. Accordingly, this consideration is concerned with unmeritorious appeals. It means that the court may refuse a stay in circumstances where it is plain that the appeal is without merit.
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We accepted that the appeal has a reasonable prospect of succeeding in this sense, although at this preliminary stage we would not put it any higher than that.
We concluded that the balance of convenience favoured the grant of a stay of the orders requiring the sale of the Joondalup property.
The respondent properly accepted that the money due to her under the primary orders should be paid into an interest-bearing account pending the determination of the appeal. As such, her immediate financial position would not be affected by the grant of a stay.
The respondent would be prejudiced by the grant of a stay as it would mean that she could not begin to enforce the orders requiring the sale of the Joondalup property until after the appeal was determined. If a stay were refused and the sale proceeded, the money due to the respondent if the primary orders were affirmed in the appeal would be held in an account from where it could be promptly applied. However, we made an order that the appeal, which is ready for hearing, be listed on 3 March 2026. Assuming that the primary orders are not disturbed as a result of the appeal, the delay that will result from the grant of a stay will therefore be relatively short.
The prejudice to the respondent will also be moderated by the fact that we did not stay the primary order requiring payment of about $188,000 by 28 November 2025. Therefore, interest will accrue on that sum during the operation of the stay of the orders requiring the sale of the Joondalup property under s 239 of the Family Court Act.
The circumstance that the respondent properly accepts that, pending determination of the appeal, she should not be able to deal with the fruits of the judgment as she pleases, is also material to whether a stay should be ordered for the reasons explained by Wheeler JA in Westpac Banking Corporation v The Bell Group Ltd (in liq).[5]
On the other hand, the appellant would be put to the inconvenience and expense of the sale of the Joondalup property if a stay of the orders requiring the sale of the Joondalup property was not granted. The appellant and the parties' children (who live with the appellant half the time) would lose their current home, which may prove unnecessary if the appeal is allowed.
The absence of evidence as to the appellant's borrowing capacity substantially weakened the claim for a stay. However, by a small margin, we were satisfied that on balance it was in the interests of justice to extend the stay of the orders requiring the sale of the Joondalup property pending determination of the appeal or other order.
We considered it appropriate to make an order requiring the appellant to comply with order 9 of the primary orders by 4.00 pm on 7 January 2026. Order 9 requires the appellant to bring the mortgage repayments up to date, meet ongoing home loan payments and outgoings for the Joondalup property and maintain the Joondalup property in clean and presentable condition for sale. The mortgage is currently in arrears, and it is the appellant's responsibility to ensure that payments are brought up to date while she continues to occupy the premises, particularly while that occupation is facilitated by the stay. If the appellant does not comply with order 9, at the least from 7 January 2026, then that may change the balance of convenience in a way that justifies discharging the stay.
We note that it was common ground that the orders requiring the change of the names of the parties' children should be stayed pending determination of the appeal. The appellant did not pursue an application for stay of the orders requiring the return of the respondent's personal belongings, and requiring the appellant to maintain the Joondalup property and mortgage payments pending sale of the Joondalup property.
We therefore made orders to the following effect on 10 December 2025:
Subject to further order of the court, the operation and enforcement of orders 2 - 8 and 14 of the primary orders is stayed pending the determination of this appeal.
The parties have liberty to apply to vary or discharge order 1 of these orders on 72 hours' notice to the other party.
The appellant must comply with order 9 of the primary orders by 4.00 pm on 7 January 2026, and thereafter continue to comply with order 9 of those orders, failing which the respondent may apply to discharge order 1 of these orders.
The appeal is listed for hearing at 10.30 am on 3 March 2026.
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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.