Garapiperis and Kasiopoulas

This matter concerned an application by the wife for a stay of property settlement orders made on 2 December 2010, and for costs. The wife sought that the husband pay her costs on a party and party basis from 19 February 2010 to 2 December 2010, relating to the period from an offer of settlement to the judgment date. The court was the Family Court of Australia, presided over by Justice Loughnan.

The legal issues before the court were whether the wife was entitled to a stay of the property settlement orders pending an appeal filed by the husband, and whether the wife was entitled to an order for costs against the husband. In determining the costs issue, the court was required to consider the provisions of section 117 of the *Family Law Act 1975* (Cth), which generally mandates parties to bear their own costs but grants the court power to make orders based on factors including financial circumstances, conduct of the parties, failure to comply with orders, whether a party was wholly unsuccessful, and any written offers to settle. Regarding the stay application, the court had to consider whether the appeal would be rendered nugatory without a stay, any prejudice to the parties, and the balance of convenience.

Justice Loughnan reasoned that the wife had not discharged the onus required to justify a costs order. While the wife argued the husband was in a stronger financial position and that she was wholly successful, the court found that neither party was wholly unsuccessful, particularly given the review proceedings involved a fresh hearing with significantly changed asset and liability values. The court also considered various settlement offers made by the wife, but concluded that the changed circumstances between the offers and the final judgment meant they did not justify a costs order. On the stay application, the court found no evidence of detriment the wife would suffer that would render the appeal nugatory, nor sufficient prejudice or imbalance of convenience to warrant a stay. The court noted that the wife's argument regarding raising funds for the payout was not compelling, as the interest rate on a potential loan was likely less than the judgment interest, and she had not provided evidence of significant costs associated with securing such a loan.

Consequently, the wife's application for a stay was dismissed. The court reserved its decision on costs, directing the parties to provide written submissions within 21 days, with replies to be lodged within a further 14 days, to allow for natural justice given the parties' absence at the hearing.