Sitwell and Sitwell (No. 3) - [2013] FamCA 200

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL (NO. 3)

[2013] FamCA 200

FAMILY LAW – APPLICATION FOR A STAY – Husband’s application to stay orders made dismissing an application for an extension of time in which to carry out a contract and dismissing an application for disqualification of the presiding Judicial Officer – Whether the appeal has any prospect of success – Whether the husband will properly and promptly prosecute the appeal in light of his history of conduct in the litigation to date – Wife’s right to the “fruits of litigation” – Whether the husband’s appeal is a further delaying tactic – Application for stay dismissed

Clemett & Clemett (1981) FLC 91-013

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sitwell

RESPONDENT:

Ms Sitwell

FILE NUMBER:

PAC

5769

2010

DATE DELIVERED:

19 March 2013

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Dubbo

JUDGMENT OF:

Collier J

HEARING DATE:

19 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Mr Jamieson

Champion Legal

Orders

That I refuse the husband’s Application for a Stay.
That I dismiss the husband’s Application in a Case filed on 15 March 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell (No. 3) 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 DUBBO

FILE NUMBER: PAC 5769 of 2010

Mr Sitwell

Applicant

And

Ms Sitwell

Respondent

REASONS FOR JUDGMENT

The hearing before me today is being conducted by telephones as I am sitting in the Dubbo Registry. The application before me is that of the husband’s, seeking a stay of Orders made by me on 14 March 2013. The effect of those Orders was to dismiss two of his applications. The first of those, in point of time, was his application for the time for him to complete a contract for sale to be extended. The second was an application that I disqualify myself.
On 14 March 2013, it will be remembered that the husband did not appear. I commenced the proceedings in his absence at about 4.30 pm, being the time that the matter was listed to be heard. At approximately 4.40 pm, that is approximately 10 minutes after the matter had commenced, an email communication was received from the husband saying that he was not able to attend.
This matter, as I have previously made mention, has a history of just such situations arising, where the husband has filed an application or applications and, for whatever reason, does not attend to prosecute those applications or attends and seeks an adjournment so as to obtain legal advice and/or because of his ill-health.
It will be remembered that on 14 March 2013, after hearing from counsel for the wife, I dealt with both matters and dismissed both applications. I then made an order for costs against the husband.
An appeal has been filed against those Orders. Thus, there is standing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sitwell and Sitwell (No. 3)

Details

AGLC: Sitwell and Sitwell (No. 3) [2013] FamCA 200
Case: [2013] FamCA 200
Decision Date

CaseChat Overview and Summary

In *Sitwell & Sitwell (No. 3)*, the Family Court of Australia considered an application by the husband for a stay of orders made on 14 March 2013. These prior orders had dismissed two applications made by the husband: one seeking an extension of time to complete a contract for the sale of a business, and another seeking the disqualification of the presiding Judicial Officer. The wife was the respondent in these proceedings.

The court was required to determine whether to grant the husband's application for a stay of the dismissal orders. This involved assessing whether the husband's intended appeal had any realistic prospect of success, and whether he would prosecute the appeal promptly and properly, given his history in the litigation. The court also considered the wife's right to the "fruits of litigation" and whether the husband's appeal constituted a further delaying tactic.

Collier J dismissed the husband's application for a stay. Her Honour reasoned that the husband's appeal had no realistic prospects of success, as the contract for sale had not been completed within the time stipulated by previous court orders, and neither those orders nor the dismissal orders had been appealed. The court found that granting a stay would merely postpone the wife's entitlement to the benefit of her properly obtained orders and would serve as a further delaying tactic by the husband, whose history indicated a lack of prompt prosecution of his applications. The court exercised its discretion to refuse the stay, noting that the granting of a stay is not automatic upon the lodging of an appeal.

Orders