Horleck and Horleck and Anor

[2015] FamCA 361

FAMILY COURT OF AUSTRALIA

HORLECK & HORLECK AND ANOR [2015] FamCA 361

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – where the wife makes an application to stay orders pending the hearing of an appeal against those orders – stay granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Horleck

1st RESPONDENT: Mr Horleck

2nd RESPONDENT: Ms Lyman Horleck

FILE NUMBER: BRF 8480 of 1994

DATE DELIVERED: 15 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 May 2015

REPRESENTATION

THE APPLICANT: In Person

THE FIRST RESPONDENT: By Telephone

Orders

1. That the Orders of his Honour Justice Forrest made 13 April 2015 are stayed pending determination of the appeal against them commenced by Notice of Appeal NA28/2015 filed on 23 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Horleck & Horleck 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 BRISBANE

FILE NUMBER: BRF 8480 of 1994

Ms Horleck

Applicant

And

Mr Horleck

First Respondent

And

Ms Lyman Horleck

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 13 April 2015, I made orders in this matter between Ms Horleck, Mr Horleck and Ms Lyman Horleck after hearing competing applications by the parties in respect of matters arising from and in connection with final judgment delivered by me in s 79A and property adjustment proceedings between the parties that are currently subject of appeal by Ms Horleck.

2. The orders provided for Ms Horleck to take all steps necessary to cause caveats that are registered over six real properties to be removed, conditional upon personal undertakings being given by Mr Horleck and Ms Lyman Horleck to the Court in terms set out in Attachment A and Attachment B to the orders I made that day, 13 April 2015. 

3. Ms Horleck subsequently filed an appeal against the orders I made that day.  That appeal has been listed to be heard by the Full Court at the same time as her substantive appeal against the final orders that I made that concluded the s 79A proceedings. That appeal is currently listed for hearing in 13 days time on Thursday, 28 May 2015 in the Full Court sitting here in Brisbane.

4. Subsequently, Ms Horleck has filed an Application in a Case in which she principally seeks a stay of the orders that I made on 13 April 2015 pending the hearing and determination of her appeal against those orders.  This application for the stay was listed urgently for hearing by me today given that the appeal is only 13 days away and I had no other available time to hear it between now and then. 

5. When listing the matter on Ms Horleck’s application for hearing today, I indeed was conscious of the fact that the Horlecks would be given little notice of the application. I was also conscious of the fact that I had received information that they had not yet taken advantage of the orders that were made on 13 April by filing the undertakings that conditioned the order that Ms Horleck take steps to remove the caveats. 

6. The matter is before me this morning, Friday 15 May.  Ms Horleck appears in person, Mr Horleck appears by telephone from North Queensland and Ms Lyman Horleck does not appear as she has gone to work.  Mr Horleck informs the Court that neither he nor Ms Lyman Horleck were aware of the application being listed for hearing this morning.  He only became aware when contacted by the Court this morning to determine whether he was going to be appearing today. 

7. I asked Mr Horleck what his position was and particularly directed his attention to the question of the undertakings that I required him and Ms Lyman Horleck to make that conditioned the orders made on 13 April 2015. He informed me that it was correct that they had not yet filed the undertakings. He indicated to the Court that they currently have no intention of filing them, simply because there are some circumstances surrounding the actual wording of the undertakings that do not suit them entirely and because the appeal is pending in only 13 days from now. 

8. I accordingly discussed with him whether in those circumstances it would not be appropriate for me to grant the stay of my orders that Ms Horleck seeks and he offered no real argument as to why I should not grant the stay in those circumstances.  Then I asked Ms Horleck for any submissions and she said very little other than that in those circumstances there is no reason why the stay should not be granted as she seeks. 

9. The granting of a stay of orders made pending the hearing and determination of an appeal against such orders is a matter of discretion. It is generally to be considered by the same judge who made the orders under appeal.  One of the matters to be considered is the timing of the appeal and when it is expected to be heard.  In this case that is a very weighty matter, as I have indicated in discussion with the parties, as the appeal is set for hearing only 13 days from now. 

10. Another matter to consider is whether or not the failure to grant the stay would result in the appeal being nugatory. If it was indeed the case that the Horlecks were intending to file their undertakings between now and the date of the appeal, there would be greater need to consider whether or not Ms Horleck’s appeal against my orders might be rendered nugatory by failure to grant the stay. However, in circumstances where, as I have said, the Horlecks have taken no steps to file the undertakings that were required that conditioned the obligation of Ms Horleck to cause the caveats to be removed and Mr Horleck has said to me that he does not intend to file those undertakings between now and the appeal, those matters are, in my view, sufficient to determine the granting of the stay of my orders of 13 April 2015 until the hearing and determination of the appeal against them.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 May 2015.

Associate:

Date:  18 May 2015