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
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
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.
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.
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…
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- AGLC
- Darley and Darley (No. 3) [2019] FamCA 459
- Case
- [2019] FamCA 459
- Decision Date
CaseChat Overview and Summary
The central legal issue before Carew J was whether to grant the applicant's request for a stay of proceedings in circumstances where the application had not been served on the opposing parties and the deadline for complying with a costs order had passed.
Carew J dismissed the application, finding that there was no evidence presented to explain the delay in seeking the stay or to demonstrate any hardship suffered by the applicant as a result of the existing situation. The court applied the principle that an applicant for a stay must provide a satisfactory explanation for any delay and demonstrate the necessity of the relief sought.
Consequently, the application filed by the applicant on 4 June 2019 was dismissed.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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