DIONETT & REYNES

[2015] FamCA 885

FAMILY COURT OF AUSTRALIA

DIONETT & REYNES [2015] FamCA 885

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the wife seeks a stay of interim orders pending the outcome of her appeal – Where the written submissions provided by counsel for the wife do not address the considerations relevant to the granting of a stay – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Dionett

RESPONDENT: Mr Reynes

FILE NUMBER: SYC 1686 of 2012

DATE DELIVERED: 22 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE:	21 October 2015
ORDERS MADE:	21 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Simpson

SOLICITOR FOR THE RESPONDENT: Ms Adams

SOLICITORS FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. The wife’s Application in a Case filed 24 September 2015 is dismissed.

2. The applicant wife is to pay the respondent husband’s costs of and incidental to this application as agreed or as assessed, on the basis that such payment will be made by the wife from her share of the proceeds of sale of the property situate at and known as F Street, G Town, Country H.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dionett & Reynes (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1686  of 2012

Ms Dionett

Applicant

And

Mr Reynes

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. On 11 August 2014 Aldridge J made final orders in respect of parenting, property settlement and spouse maintenance issues.  On 27 August 2015 I made interim orders in relation to a stay of a Child Support Assessment and the mechanism for sale of a property located in Country H (“the G Town property”).  Otherwise, I dismissed all outstanding applications which arose pursuant to the husband’s Amended Application in a Case filed on 11 June 2015 and the wife’s Response to an Application in a Case filed on 13 August 2015.

2. On 24 September 2015 the wife filed a Notice of Appeal in relation to the orders of 27 August 2015.  Given that my orders were as to interim financial issues, the wife requires leave to appeal.  She sought such an order on 24 September 2015, together with an application seeking expedition of the hearing of her appeal.

3. On 1 October 2015 the wife’s application for expedition of the hearing of her appeal was dismissed and she was ordered to pay the husband’s costs.  The orders provided that the wife pay these costs from the proceeds of sale of the G Town property.

Background

1. Relevant background facts were set out in my Judgment of 27 August 2015 and are incorporated into these Reasons.

2. Since 15 September 2015 the wife’s family has made an offer to purchase the G Town property for $279,995.  The wife’s step-father indicated that he would be in a position to proceed with a purchase upon the sale of one of his companies (Annexure “B” to the husband’s affidavit sworn 21 October 2015).

3. On 21 September 2015 a real estate agent, Mr U, advised the husband that he had a prospective purchaser for the property at a price of $275,000.  The agent indicated that this purchaser was in a position to proceed immediately and the husband accepted his offer.  The husband anticipates that settlement will occur in December 2015.

Consideration

1. On 20 October 2015 counsel for the wife filed written submissions which, with respect, were confusing and appeared not to address significant considerations relevant to the granting of a stay order.  These written submissions seem to suggest that I should re-visit aspects of my Reasons for Judgment.

2. The written submissions on behalf of the wife suggested that I made “an adverse assessment of the mother’s credibility”, which apparently led to “the handing down of orders in favour of the father”.  I reject any suggestion that I made an assessment of the credit of either party.  In the context of untested evidence in an interim hearing, I could not and did not make any findings as to credit.

3. I reject also that I dismissed certain relief sought by the wife “on a technicality”.  As indicated in my Reasons for Judgment, some orders sought by the wife were incapable of enforcement and accordingly should not have been entertained by the Court.

4. At no stage was I provided by counsel for the wife with a copy of her Notice of Appeal, nor any submissions with respect to the suggested merits of her grounds.  I was provided with no evidence as to when a hearing of the wife’s appeal is likely.

5. Orders for the sale of the G Town property were made on 11 August 2014, which is some fourteen months ago.  I elected to place the husband in a position of sole control over the sale on 27 August 2015.  I see no reason now why that order should be stayed, so as to prevent settlement occurring as anticipated in December 2015.

6. In all of these circumstances I dismiss the wife’s Application in a Case filed on 24 September 2015.  The wife was invited to withdraw her application for a stay of the orders of 27 August 2015 by letter from the husband’s solicitors dated 14 October 2015 but declined to do so.  This letter placed the wife upon notice that, in the event of her application for a stay being dismissed, the husband would seek an order for costs.  In these circumstances, I consider that it is appropriate that the wife pay the husband’s costs of and incidental to the application for a stay of the orders of 27 August 2015.  I was invited by the solicitor for the husband to make orders which would cause payment of these costs from the wife’s share of the proceeds of sale of the G Town property.  I adopt that course.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 22 October 2015.

Associate:

Date:  22 October 2015