Crawford and Crawford

In the Family Court of Australia, Justice Bennett considered 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 husband's primary objective was to postpone or cancel an auction of a commercial property scheduled for 2 May 2007, which was to proceed pursuant to orders made by Brown J on 14 November 2006. The wife sought dismissal of the husband's application and costs.

The court was required to determine whether to grant the husband's application for a stay of orders, specifically addressing the husband's arguments regarding procedural rules and the merits of his intended appeals. The husband contended that an application for a stay must be made to the judge who made the original order, and that Brown J had acted improperly in dismissing his application for a stay of the 1 February 2006 orders. The court also had to consider the husband's failure to file an appeal against the 1 February 2006 orders within the prescribed timeframes and the status of his appeal against the 14 November 2006 orders.

Justice Bennett dismissed the husband's application, finding that his arguments were without merit. The court reasoned that the husband had misinterpreted Rule 22.12(3) of the Family Law Rules, which requires an application for a stay to be made to the judge who made the primary order only if that judge is reasonably available. Crucially, the husband had not filed a notice of appeal against the 1 February 2006 orders, rendering his application for a stay of those orders incompetent. Furthermore, an earlier application by the husband for a stay of the 14 November 2006 orders had already been dismissed by Brown J, and the husband had not demonstrated any new circumstances warranting a reopening of that issue. The court also noted that the husband's appeal against the 14 November 2006 orders was unlikely to succeed and that the wife's costs were to be paid by the husband.

The court ordered that the husband's application be dismissed and that he pay the wife's costs of and incidental to the application, fixed at $2,000, payable forthwith.