Fortnum and Fortnum (Stay application)

[2009] FamCAFC 2

FAMILY COURT OF AUSTRALIA

FORTNUM & FORTNUM (STAY APPLICATION) [2009] FamCAFC 2

FAMILY LAW – APPEAL - Stay application

Family Law Act 1975 (Cth)

APPLICANT/APPELLANT: MR FORTNUM

RESPONDENT: MRS FORTNUM

INDEPENDENT CHIILDREN’S LAWYER

FILE NUMBER: SYF 631 OF 2002

APPEAL NUMBER: EA
EA 66
18 OF
OF 2006
2002

DATE DELIVERED: 9 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: IN CHAMBERS

JUDGMENT OF: FAULKS DCJ, COLEMAN & CRONIN JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 31 May 2006

LOWER COURT MNC: [2006] FamCA 524

REPRESENTATION

THE APPLICANT/APPELLANT: IN PERSON

Orders

1. That the husband’s application in a case filed 28 October 2008 seeking a stay in relation to paragraph 3 to 6 of the orders of the Full Court made on 4 September 2008 be heard and determined in chambers on the documents filed by each party.

1. That the respondent wife and the Independent Children’s Lawyer file and serve any responding material including any written submission by 4.00pm on 23 January 2009.

1. That the husband file any submission in reply to any submission of the respondent wife and the Independent Children’s Lawyer by 4.00pm on 6 February 2009.

IS NOTED that publication of this judgment under the pseudonym Fortnum and Fortnum (Stay application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA IN CHAMBERS

Appeal Number: EA66 OF 2006; EA 18 OF 2002
File Number: SYF631 OF 2002

MR FORTNUM

Applicant/Appellant

And

MRS FORTNUM

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 4 September 2008, we dismissed an appeal by the husband against parenting orders made by Cohen J on 31 May 2006.

2. Cohen J later made orders for costs against the husband.

3. The husband appealed against the costs orders as well and at the time of the appeal, we suggested that the costs question was affected by the outcome of the appeal.

4. We provided in our orders for the parties to file written submissions in relation to both the cost order of Cohen J and also the issue of costs on the outcome of the appeal.

5. Subsequent to the delivery of our reasons for dismissing the husband’s appeal, he sought leave of the High Court of Australia to appeal against our determination. That application is pending.

6. The husband has now filed an application in a case seeking a stay or extension of our orders relating to both of the costs issues. He says that the costs question generally should be stayed until the determination of his application by the High Court or the determination of other various governmental-type inquiries that he will endeavour to have commenced. In support of his application, he filed an affidavit which, apart from assertions, does not take the matter much further.

7. Before determining the husband’s application for the stay, it is appropriate to hear from the wife about the husband’s application.

8. Accordingly, we will make orders that provide for her to file any submission she may wish in response to the husband’s application and affidavit. That should be done by Friday 23 January 2009 and filed with the Appeals Registrar and served upon the husband. We then propose to determine in chambers what (if any) stay or extension of the orders for the filing of written submissions should be made..

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  9 January 2009