Full Court Decision | Case Summary
Pensak & Department of Families, Seniors, Disability Services and Child Safety (No 3) [2026] FedCFamC1A 182
The Full Court refused to stay Hague Convention return orders pending a High Court special leave application, because the children had already been returned to Japan and there was no longer any operative order for a stay to act upon.
“In circumstances where the return order made by the primary judge has been implemented, there is no longer any operative order amenable to a stay. A stay would not have the effect of preserving the subject-matter of the litigation, or indeed any effect at all.”
at [17]
Summary
The Queensland Department of Families, Seniors, Disability Services and Child Safety, acting as the State Central Authority at the request of the children’s mother, applied under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of two children, born in 2018 and 2021, to Japan. On 23 April 2026 the primary judge found Japan to be the children’s country of habitual residence and ordered their return. The father appealed, and a number of the return orders were stayed pending the appeal. The appeal was dismissed on 31 August 2026 and the stay was discharged at the same time. In early September the mother and children travelled to Japan, and the father learned of their departure on 7 September 2026. Two days later he applied to the Full Court for a stay pending his application for special leave to appeal to the High Court, together with orders requiring the Department to locate the children and procure their return, adding them to the Family Law Watch List, surrendering passports, restraining further removal, and providing for communication and time with him.
The Full Court dismissed the application. Until special leave is granted there is no right of appeal to the High Court, and no legislative power to stay orders pending a special leave application, so any stay must rest on the Court’s inherent jurisdiction. Applying Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, that jurisdiction is extraordinary and requires exceptional circumstances. The Court observed that special leave is rarely granted, but held that the more significant and insurmountable barrier was that the return order had already been carried out, leaving nothing for a stay to operate on. The balance of the application failed for want of jurisdiction. It called for the exercise of original jurisdiction, which the Court cannot exercise when sitting in its appellate jurisdiction, and ss 32(3)(c) and 44 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) regulate the exercise of appellate jurisdiction rather than conferring more. A new proceeding could not be commenced in Division 1, interim parenting orders could not be made without an extant application for final relief, jurisdiction under the Regulations was exhausted, and the Central Authority’s role was confined to the return application. The Court added that it was at least arguable, and perhaps strongly so, that s 111CD of the Family Law Act 1975 (Cth) prevents Australian courts exercising jurisdiction over children who are neither present in, nor habitually resident in, Australia.
The decision is a reminder that, in Convention matters, the practical window for preserving the status quo can close at the moment an appeal is dismissed. Once a stay pending appeal is discharged and a return order is implemented, a later stay pending special leave is likely to be futile, and the appellate jurisdiction cannot be used to obtain fresh parenting relief about children who have already left Australia.