Darley and Darley (No. 3)

[2019] FamCA 459

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 3) [2019] FamCA 459

PRACTICE AND PROCEDURE – Stay of proceedings – Where the application has not been served on the other parties – Where the time for payment of the costs order has passed – Where there is no evidence as to the reason for the delay in applying for a stay or any hardship suffered by the applicant – Application dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT: Ms Darley

RESPONDENT: Mr Darley

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston

FILE NUMBER: BRC 2317 of 2013

DATE DELIVERED: 10 June 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10 June 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Appearance excused

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Appearance excused

Orders

1. The Application in a Case filed by the applicant on 4 June 2019 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2317 of 2013

Ms Darley

Applicant

And

Mr Darley

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed today pursuant to the order made on 5 April 2019 for the applicant mother, Ms Darley, to show cause why a vexatious proceedings order should not be made against her. 

2. On 4 June 2019, the mother filed an application in the case in which she seeks the following order:

   (1)That the orders of Justice Carew made 5 April 2019 be stayed pending the outcome of the appeals filed in the Family Court of Australia on 9 February 2019 and 3 May 2019.

   (2)That this application in the case be determined urgently before the show cause hearing on 10 June 2019.

   (3)That the show cause hearing of 10 June 2019 be vacated pending the outcome of the appeals.

3. It became apparent in my exchange with Ms Darley that what she is hoping to achieve by the stay application is, in fact, to stay the operation of the costs order made against her on 5 April 2019, which is set out in paragraph 11 of that order requiring that she pay the independent children’s lawyer’s costs fixed in the sum of $1,528 within 30 days, and paragraph 14, in which she was required to show cause why a vexatious proceedings order should not be made pursuant to s 102QB of the Family Law Act1975 (Cth).

4. The strongest ground, usually, for granting a stay is that there is a real risk that to deny that would render a successful appeal nugatory or would make it impossible or impractical to restore the situation presently existing.  There are, of course, other considerations to take into account including:[1]

   a)Any hardship that an unsuccessful applicant for a stay might suffer;

   b)Any delay in bringing the application for a stay;

   c)Any grounds and merits of the appeal;

   d)The proximity of the stay hearing from the hearing of an appeal;

   e)The bona fides of the applicant for a stay; and

   f)The length of time it will take for an appeal to be heard.

   [1] See Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; cfAnderson & Senior (Stay Appeal) (2013) FLC 93-556 (as to whether special or exceptional circumstances are required), [34]-[38]; Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322, [12] and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349, [19].

5. I do not have any evidence before me as to when an appeal is likely but there are some fundamental difficulties in granting the stay in this case, one being that the application for a stay of the payment of the costs order has not been served.  Secondly, the application was filed on 4 June, well after the time for payment had passed.  Thirdly, there is nothing in the applicant’s material which addresses any reasons for the delay or, indeed, any basis upon which I could find hardship.  There seems little utility in granting a stay of the vexatious proceedings order consideration. Indeed, it might be of greater utility to deal with the show cause today so that, in the event such an order is made, the mother can give consideration to what steps she will take in terms of exercising any further rights of appeal that she has in relation to that, and then all appeals could, perhaps, be dealt with together.

6. I am not satisfied in the circumstances of this case that there is any utility in granting the stay.  I do not propose to adjourn the hearing of the stay application pending service on the independent children’s lawyer because, in my view, the applicant has not dealt with the issues that I would need to take into account.  Namely, the delay in filing the application for stay and any hardship that would be suffered by her by not setting aside that part of my 5 April 2019 order. 

7. The application filed 4 June 2019 is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 June 2019.

Associate: 

Date:  15 July 2019