Childs and Childs (No 3)

FAMILY COURT OF AUSTRALIA

CHILDS & CHILDS (NO. 3) [2009] FamCA 885

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for stay of execution of the court’s orders pending appeal – application adjourned on terms

APPLICANT:   Mr Childs

RESPONDENT:   Ms Childs

FILE NUMBER: PAC 3071 of 2009

DATE DELIVERED: 26 August 2009

PLACE DELIVERED: Dubbo

PLACE HEARD: Dubbo

JUDGMENT OF: Coleman J

HEARING DATE: 26 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:  In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Mark Brown Solicitors

Orders

1. That the application for a stay of the orders dated 22 May 2009 be stood over generally provided that Mr Childs continues to diligently and expeditiously prosecute his appeal.

2. That liberty be reserved to the wife to apply on 72 hours notice for the dismissal of the husband’s application for a stay.

3. That any appeal against the refusal to dismiss the husband’s stay application be listed on 8 September 2009 and consolidated with the primary appeal.

4. That costs are further reserved.

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

FAMILY COURT OF AUSTRALIA AT DUBBO

FILE NUMBER:  PAC 3071 of 2009

MR CHILDS

Applicant

And

MS CHILDS

Respondent

REASONS FOR JUDGMENT

1. The Court, for reasons which it gave on 12 August 2009, declined to dismiss the husband’s application for a stay of orders for settlement of property made by the Court on 22 May this year. The Court’s judgment and orders of 12 August 2009 reveal the basis upon which the husband’s application for a stay was stood over generally, and the terms and conditions upon which it was. 

2. It is now known that the husband complied with Orders 1 and 2 of the orders of 12 August 2009, although, at the time the matter was relisted, those advising the wife, for some unexplained reason, were led to believe by the Appeals Registry that Order 2 of the orders of 12 August 2009 had not been complied with.

3. In support of the application for dismissal of the husband’s stay application, the wife has sworn a further affidavit. With respect to that document, some of it could be suggested to be an endeavour to provide evidence of matters which may have been influential on 12 August 2009, but were not detailed at that time or, at least, not the subject of detailed evidence of the kind this affidavit reveals. As the dates in the affidavit confirm, a significant number of the events there attested to predate the ruling of 12 August 2009. To the extent that others relate to the refinancing through the Commonwealth Bank, without being critical, the contents of paragraph 12 cannot, in the absence of source documentation – and one would think that there would have to be source documentation – be taken at face value. 

4. Similar allegations were made on 12 August 2009 and…