McIntosh and Anderson (No. 2)

In *McIntosh & Anderson (No. 2)*, the Family Court of Australia considered an application by the husband for a stay of proceedings. The wife had sought property orders under the *Family Law Act 1975* (Cth), but the husband opposed this, arguing that a divorce obtained in Country B did not constitute a "divorce order" for the purposes of the Act, and therefore the wife required leave to institute proceedings out of time under s 44(3). The court had previously determined that the Country B divorce did not require the wife to seek leave, and the husband had filed a Notice of Appeal against this decision.

The primary legal issue before the court was whether to grant a stay of the orders that allowed the wife's property application to proceed, pending the outcome of the husband's appeal. This required the court to assess whether the husband had an arguable case on appeal and whether the appeal would be rendered nugatory if a stay was not granted. The court also considered the principles governing applications for a stay, as outlined in *Jackson & Balen*.

Justice Murphy applied the principles from *Jackson & Balen*, noting that the onus was on the applicant for the stay, but exceptional circumstances were not required. The court found that the husband had an arguable case, given the existing state of the law and differing judicial interpretations. Crucially, the court accepted that the appeal would be rendered nugatory if a stay was not granted, as the success of the appeal would determine the wife's entitlement to bring the property application, potentially avoiding the need for trial preparation and expense.

Consequently, the court ordered that any further step in the progression of the wife's Initiating Application be stayed pending the outcome of the husband's appeal. The costs of the application were adjourned to be determined later, depending on the success of the appeal.