Balen and Jackson (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BALEN & JACKSON (NO.2)

[2009] FMCAfam 555

FAMILY LAW – Practice & procedure – stay application.

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Brown & Brown (unreported) [2006] FamCA 44
Dmitrieff & Shaw and Ors (No.2) [2008] FamCA 992
Kruger & Kruger [2009] FamCA 228
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91

Applicant:

MS BALEN

Respondent:

MR JACKSON

File Number:

SYC 5684 of 2008

Judgment of:

Sexton FM

Hearing date:

14 May 2009

Date of Last Submission:

14 May 2009

Delivered at:

Sydney

Delivered on:

14 May 2009

REPRESENTATION

Solicitors for the Applicant:

Flintoff Lawyers

Counsel for the Respondent:

Ms R. Winfield

Solicitors for the Respondent:

Eleanor Murphy & Co

ORDERS

The husband’s application for a stay filed on 12 May 2009 be dismissed.
The wife’s costs be reserved to final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Balen & Jackson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 5684 of 2008

MS BALEN

Applicant

And

MR JACKSON

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

These Reasons are delivered orally.
This case concerns an application for a stay of orders made on 9 April 2009, providing for the husband to pay periodic and lump sum spouse maintenance to the wife on an interim basis.
On 9 April 2009, the Court ordered the husband to pay to the wife by way of periodic spouse maintenance the sum of $650 per week, or $2,817 per calendar month, and $43,000 by way of a lump sum spouse maintenance payment, such sum to be paid by no later than 30 April 2009. The Orders further provided that the amount of lump sum maintenance would be reduced by $20,000 if the husband delivered to the wife furniture and personal effects held by the husband in storage in Australia within 21 days of Order. The Court gave the husband a further extension of time to file and serve his Response, affidavit in support and financial statement, and adjourned the matter to 19 June 2009 for further mention in relation to the wife's final application for property and spouse maintenance.
On 12 May 2009, the husband made an application to stay Orders 5, 6 and 7 in relation to payment of interim periodic maintenance and lump sum spouse maintenance. The husband's legal representative was directed to serve this application upon the wife's legal representative by 2.00p.m. on 13 May 2009, and the matter was listed before me today. The husband was represented by Ms Winfield of Counsel and the wife by Ms Flintoff, solicitor, who also represented the wife in the interim proceedings.
In relation to these proceedings, the husband relies on an Application in a Case filed on 12 May 2009, an affidavit of his legal representative, Ms Eleanor Murphy, filed on 12 May 2009, and an unfiled affidavit and financial statement of himself sworn on 13 May 2009. Ms Murphy…

CaseChat Overview and Summary

Balen and Jackson (No.2) is a decision of the Family Court of Australia that addresses the issue of a husband’s application for a stay of proceedings related to a property settlement. The husband filed an application seeking to stay the proceedings on 12 May 2009, arguing that the wife had engaged in unreasonable delay in bringing the matter to court. The court was required to determine whether the husband’s application for a stay should be granted or dismissed, and whether the wife was entitled to an award of costs.

The court considered the husband’s argument that the wife had engaged in unreasonable delay in bringing the matter to court. However, the court found that the husband had not demonstrated any prejudice caused by the delay, and that the wife had acted reasonably in bringing the matter to court. The court also considered the wife’s argument that the husband’s application for a stay was an abuse of process, and found that the husband’s application was not an abuse of process. The court held that the husband’s application for a stay should be dismissed, and that the wife’s costs should be reserved to final hearing. The court’s decision was based on the principle that the court should not allow a party to use delay as a means of avoiding a just outcome, and that the court should consider the conduct of both parties in determining whether a stay should be granted. The court’s decision also emphasised the importance of the wife’s right to access to justice, and the need to ensure that the court’s processes are not abused.

Orders of the court

The husband’s application for a stay filed on 12 May 2009 be dismissed.

The wife’s costs be reserved to final hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established