Oates and Q

[2009] FamCA 1022

FAMILY COURT OF AUSTRALIA

OATES & Q [2009] FamCA 1022

FAMILY LAW – STAY APPLICATION – whether pending appeal be rendered nugatory absent a stay of proceedings – prospects of success of pending appeal – stay not objected to

Family Law Rules 2004, r.24.13

APPLICANT: Ms Oates

RESPONDENT: Ms Q

FILE NUMBER: SYF 2939 of 2006

DATE DELIVERED: 16 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 16 October 2009

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

Orders

1. That there be a stay of proceedings in relation to Order 1 made 2 October 2009, until further order upon the following terms: 

   That the applicant, Ms Oates:-

   (i)       Diligently prosecute her appeal number EA67 of 2009;  and

   (ii)Seek the earliest available date for hearing of her Appeal irrespective of the convenience of counsel who may be briefed on her behalf.

IT IS NOTED that publication of this judgment under the pseudonym Oates & A is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2939 of 2006

MS OATES

Applicant

And

MS Q

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Application before me is an Application in a Case filed on behalf of Ms Oates on 13 October 2009.  Pursuant to that Application, a stay of proceedings is sought in relation to Orders numbered 1 and 2 made by the Honourable Justice Cohen on 2 October 2009.  Order 2 that was so made was merely that costs be reserved.  Consequently, it must follow that the question of the stay does not arise in relation to that Order.

2. Indeed, the affidavit in support of the Application filed on 20 August 2009 before Cohen J, understandably, only deals with the issue of the application of r.24.13 of the Family Law Rules. The subsequent Notice of Appeal by the applicant filed 9 October 2009 does not raise any ground of appeal in relation to the reservation of costs.  Consequently, I am proceeding with this matter on the basis that the stay that is sought is only in relation to Order 1 made 2 October 2009.

3. For the purpose of this morning’s hearing, I have read the documents to which I have referred, as well as the Reasons for Judgment of Cohen J, delivered on 2 October 2009, and the orders made and judgment delivered in the substantive hearing before Moore J, the subject of the pending appeal from her Honour’s orders.  Each of the parties appeared before me unrepresented. …

4. Consequently, the matter was able to proceed without delay.  The respondent, quite properly, conceded that one of the principles to be applied for the purpose of considering whether or not there should be a stay of proceedings or a stay of orders is whether, without such a stay, a pending appeal is likely to be rendered nugatory. 

5. In relation to the other relevant matters that fall for consideration, it was submitted on behalf of the respondent that the appeal had low prospects of success.  So far as the matters of prejudice and costs are concerned, the respondent did not deal with those matters in any way, because of her concession that the proposed stay was not objected to.  That was on the basis that terms were imposed of the nature which I had previously raised with the applicant, namely, that her appeal be diligently prosecuted and that the earliest date for hearing of the appeal be sought irrespective of the convenience of counsel who may be briefed on behalf of the applicant.

Conclusion

1. I am satisfied that a stay of proceedings until further order should be granted.  That stay will be in relation to Order 1 made 2 October 2009.  I am so satisfied because of a number of matters.  Firstly, that there is no issue that without a stay, the pending appeal is likely to be rendered nugatory. 

2. In addition, having reviewed the Notice of Appeal, I have concluded that there are substantive issues to be raised on the appeal.  It does not follow from that, of course, that I am providing any view at all as to whether or not the pending appeal will in fact succeed or, has a high probability of succeeding.

3. Those matters are of course peculiarly within the province of the Full Court who may hear the appeal.  No issue was raised in relation to prejudice or costs.  I also take into account that there is a pending complaint by the applicant against the respondent before the Legal Services Tribunal and that such procedure has been suspended awaiting the outcome of the applicant’s pending appeals. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  29 October 2009