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
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.
That the husband’s Application for Stay of the interim property order made 14 November 2017 be dismissed.
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
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…
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- Case
- [2018] FamCA 93
- Decision Date
CaseChat Overview and Summary
The primary legal issues before Foster J were whether to grant a stay of the interim spouse maintenance order and whether to grant a stay of the interim property order. The court was required to assess the merits of the husband's application for a stay in light of the relevant legal principles governing such applications in the context of family law appeals.
Foster J determined that a stay of the interim spouse maintenance order should be granted, but with a condition. The husband was ordered to pay $1,850.00 per week by way of interim spouse maintenance, commencing from 11 December 2017, pending the determination of his application for leave to appeal and appeal. However, the husband's application for a stay of the interim property order was dismissed. The costs of both parties in relation to the application for stay were reserved pending the outcome of the appeal proceedings.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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