Childs and Childs (No 3)

[2009] FamCA 885

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 the Court recollects having observed on that occasion that there was no source documentation from the proposed lender in relation to the refinancing of the two proposed securities and the discharge over the D property.

5. The Court is mindful of the wife’s entitlement to enjoy the fruits of success at trial, to the hardship which the refusal to dismiss the husband’s stay application will cause her, but, with respect to the submissions of Counsel for the wife and the further evidence, the philosophy underpinning the decision of 12 August 2009 has not been undermined or changed by the further evidence. On the other hand, to the extent that the husband presses for the making of a stay order, the Court is not disposed to accede to his request. 

6. Without suggesting that the husband would fail to continue to prosecute his appeal expeditiously and diligently, the continuing apparent absence or paucity of possible merit, as that can be gauged by reference to the grounds of appeal in the husband’s Notice of Appeal, suggest that this would have to be, particularly having regard to the prejudice to the wife, one of the weakest stay applications with which the court could be confronted. Quite simply, to relieve the husband of the pressure of continuing to prosecute his appeal diligently, when the appeal, having regard to the grounds of appeal, appears so weak or “improbable,” militates against granting him a stay.

7. The orders will accordingly continue in the terms of 12 August 2009, so far as they remain applicable, that is to say, the application for a stay is adjourned generally with liberty to restore on 72 hours notice. The Court previously requested an expedited hearing of the appeal. The Court would further request 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. Costs are further reserved. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  15 September 2009