Forster and Forster (No 2)

In Forster and Forster (No 2), the Family Court of Australia considered an application by the wife for directions regarding the sale of the former matrimonial home. The property was vacant and incurring maintenance costs, and the existing orders for its sale were subject to an application by the husband for leave to appeal out of time. The matter had a complex history, and the wife sought orders for the sale of the property with the proceeds to be held in an interest-bearing account pending further court determination. The husband also made an oral application for a stay of any orders made, intending to appeal.

The court was required to determine whether to grant the wife's application for directions concerning the sale of the former matrimonial home, considering the ongoing costs of maintaining the vacant property and the husband's pending application for an out-of-time appeal. Additionally, the court had to consider the husband's oral application for a stay of any orders made, and the wife's application for costs, including the application of section 117(2A) of the *Family Law Act 1975* (Cth).

Justice Dawe found that the wife's application for directions regarding the sale of the property was appropriate and just and equitable in the circumstances, even with the potential risk of the underlying orders being set aside. The court also imposed a time limit for the husband to file any proceedings to set aside the property settlement orders, aiming to bring finality to the litigation. The husband's oral application for a stay of the orders was refused, as he failed to establish a reasonable likelihood of success or that a stay was appropriate in all the circumstances, particularly given the protracted history of the matter.

Regarding costs, the court considered the conduct of the parties and the fact that the husband was wholly unsuccessful. While acknowledging a dispute regarding the timing of service of proceedings, the court reduced the wife's costs claim to account for this issue. Consequently, the husband was ordered to pay the wife's costs incidental to the divorce proceedings, fixed at $4,000, to be paid within 28 days. The husband's subsequent oral application to stay this costs order was also refused.