Gough and Amado (No. 3)

[2007] FamCA 458

FAMILY COURT OF AUSTRALIA

GOUGH & AMADO (NO. 3) [2007] FamCA 458

FAMILY LAW – PRACTICE AND PROCEDURE - Stay of proceedings in relation to Order 2 made 4 May 2007

Family Law Act 1975 (Cth)

APPLICANT:	MS GOUGH
RESPONDENT:	MR AMADO
FILE NUMBER:	SYF	5594	of	2003
DATE DELIVERED:	9 May 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATE:	9 May 2007

REPRESENTATION

APPLICANT:	The applicant wife in person
COUNSEL FOR THE RESPONDENT:	Mr R Bell
SOLICITOR FOR THE RESPONDENT:	Clinch Neville Long

Orders

1. That there be a stay of proceedings in respect of Order 2 made 4 May 2007 which shall expire at 5.00pm on 3 June 2007.

NOTATIONS:

A.That Exhibit 15 being the written submissions made at the trial by counsel for the applicant in those proceedings were endorsed as being filed in Court on 2 February 2007.

B.That 2 February 2007 was the last day of the hearing.

C.The respondent in those proceedings made oral submissions directly in response to Exhibit 15 on 2 February 2007.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF5594 of 2003

MS GOUGH

Applicant

And

MR AMADO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms Gough (who for convenience I shall refer to as “the applicant”) seeks a stay of proceedings in relation to Order 2 made on 4 May 2007.

2. The applicant’s Application in a Case is that filed 7 May 2007.

3. In support of the applicant’s application, she relies on her Affidavit sworn 7 May 2007.  That affidavit in turn includes a copy of her Notice of Appeal filed on the same day.

4. The substance of the applicant’s application that due to lack of financial resources it is difficult, if not impossible, to arrange for alternative accommodation in accordance with the terms of Order 2 made 4 May 2007.

5. The application is opposed by the respondent to this application, through his counsel.  The basis of that opposition is that the property has been ordered to be sold a considerable time ago and that I have made findings of fact in relation to disruption of the procedure for sale by the applicant.  Consequently, it is submitted that there should not be any further delay and in any event the applicant has alternative accommodation, albeit in France.

6. I have determined that the application will succeed.

7. On the basis of the material before me and having regard to the findings of fact that I made it is probable that the applicant cannot reasonably re-organise her accommodation by 11 May 2007.

8. I have some doubt as to whether the Notice of Appeal filed 7 May 2007 does in fact reveal any proper ground of appeal.  However, that is a matter to be considered by the Full Court.

9. I pointed out to the applicant that one of her contentions that emerge from the Notice of Appeal is that she had not seen Exhibit 15, which is the written submission made by counsel for the respondent (to this application) until after the orders were made on 4 May 2007.

10. I have checked that exhibit and the bench-book and it is clear that it was endorsed by me as having been filed in Court on 2 February 2007 being the last day of the hearing.  Further, the applicant directly responded to those written submissions with her oral submissions.

11. Consequently, in my view that contention is totally without foundation.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  9 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GOUGH & AMADO