Sellers and Burns and Anor

FAMILY COURT OF AUSTRALIA

SELLERS & BURNS AND ANOR [2018] FamCA 93

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where application for stay pending Leave to Appeal and Appeal to Full Court – Interim orders as to spouse maintenance and interim property – Consideration of applicable principles – Where the husband’s appeal lacks merit – Where the appeal would not be rendered nugatory if a stay is not granted – Stay granted on terms as to spouse maintenance – Stay refused as to interim property

Family Law Rules 2004 (Cth) r 22.11

Burns & Sellers (No2) [2017] FamCA 914
Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
House v R [1936] HCA 40
Jackson & Balen [2009] FamCAFC 131
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Mr Sellers

FIRST RESPONDENT: Ms Burns

SECOND RESPONDENT: Mr Kirk

FILE NUMBER: PAC 5854 of 2016

DATE DELIVERED: 23 February 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 23 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: McAuley Hawach Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE FIRST RESPONDENT: Karras Partners Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Nicholas Eddy & Company

Orders

1. That the interim order as to spouse maintenance made on 14 November 2017 be stayed pending determination of the husband’s Application for Leave to Appeal and Appeal to the Full Court pursuant to Notice of Appeal filed 11 December 2017 provided that the husband pay to the wife by way of interim spouse maintenance the sum of $1,850.00 per week commencing 11 December 2017.

2. That the husband’s Application for Stay of the interim property order made 14 November 2017 be dismissed.

3. That costs of both parties of and incidental to the Application for Stay be reserved pending determination of the Application for Leave to Appeal and Appeal to the Full Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sellers& Burns and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5854  of 2016

Mr Sellers

Applicant

And

Ms Burns

First Respondent

And

Mr Kirk

Second Respondent

REASONS FOR JUDGMENT

1. The application for determination is the Application in a Case filed by the husband on 20 December 2017 seeking orders as follows:

   a)that orders 1, 2(a), 2(b) and 2(c) of the orders dated 14 November 2017 be stayed pending the determination of the Appeal proceedings;

   b)that the wife pay the…