Aheb and Aheb

In the Family Court of Australia at Melbourne, Justice Bennett heard an application by the husband seeking to stay the operation or enforcement of orders made on 1 February 2006, and a response from the wife seeking dismissal of the husband's application. The dispute arose from the husband's failure to fully comply with consent orders made on 1 February 2006, which finalised property interests and required him to pay the wife $350,000, with a significant portion of this payment and the discharge of an encumbrance on the former matrimonial home still outstanding. The husband's stated intention was to postpone or cancel an auction of a commercial property scheduled for 2 May 2007, which was to proceed pursuant to separate orders made on 14 November 2006.

The primary legal issues before the court were whether the husband was entitled to a stay of the orders made on 1 February 2006, and whether he had correctly interpreted the rules regarding applications for stays, particularly in relation to the requirement to apply to the judge who made the original order. The court also considered the husband's application for a stay of the enforcement orders made on 14 November 2006, and the wife's application for costs.

Justice Bennett reasoned that the husband's application for a stay of the 1 February 2006 orders was without merit because he had not filed an appeal against those orders, nor had he obtained permission to appeal out of time. The court found that a stay could only be sought where an appeal was filed. Furthermore, the husband's application for a stay of the 14 November 2006 orders had already been dismissed by Brown J, and the husband had failed to demonstrate any new circumstances warranting a reopening of that issue. The husband's interpretation of Rule 22.12(3) was found to be incorrect, as it applied when the judge who made the primary order was reasonably available, and in this instance, the husband had not filed an appeal against the 1 February 2006 orders.

Consequently, Justice Bennett dismissed the husband's application. The court ordered that the husband pay the wife's costs of and incidental to the application, fixed at $2,000, to be paid forthwith. This decision was based on the husband being wholly unsuccessful in his misconceived application, which was considered the most significant factor under section 117(2A) of the Family Law Act 1975, justifying an order for costs.