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 of 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

1. That I refuse the husband’s Application for a Stay.

2. 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

1. 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. 

2. 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.

3. 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. 

4. 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.

5. An appeal has been filed against those Orders.  Thus, there is standing to bring an application for a stay before me.

6. Applications for stay have been the subject of many decided cases in this jurisdiction, going back to early decisions such as Clemett[1].

   [1] (1981) FLC 91-013

7. There are a number of matters to be considered.  One of those matters I must consider is the prospects of success in the appeal.  Another is the effect on the parties if the stay is granted. 

8. Mr Jamieson, who appears today for the wife, submitted that there is in reality nothing that the appeal relates to.  The situation, he asserts, is that, pursuant to the consent Orders made by Johnston J after the matter had commenced a defended hearing, the husband entered into a contract as purchaser with the wife as vendor to acquire Business G.  Thereafter, the husband did not complete that contact. 

9. The history of the matter shows that it came before me on 27 November 2012.  On that date, I allowed an adjournment to 11 December 2012.  On 11 December 2012, I made a series of Orders, the main purpose of which was to allow the husband until 11 February 2013 to complete the contract.  My Orders of 11 December 2012 further provided that if the husband did not complete the contract within the time specified, the contract would be terminated and the wife would be appointed as trustee for sale of Business G.

10. The husband did not complete the contract.  In fact, on 11 February 2013, he filed an application for an extension of time in which to complete the contract.  I dealt with that application on 14 March 2013, after granting the husband yet two further adjournments to obtain legal advice on 14 February 2013 and on 26 February 2013 respectively.  I gave reasons and dismissed the application for an extension of time. 

11. In my view, there is much in what Mr Jamieson says when he points out that the appeal, of itself, is not going to achieve that which the husband seeks, because his opportunity has been lost completely.  Neither the Orders made by Johnston J, nor my Orders of 11 December 2012 have been appealed against.

12. I do not believe the husband’s appeal enjoys realistic prospects of success. 

13. To allow the stay the husband seeks is to postpone, at least until the appeal is heard, the wife’s rights pursuant to the various Orders made in this Court. 

14. I have no faith in the husband complying with any conditions I would impose upon him, as a condition for the granting of any stay.  The husband has a history of telling me things that he will do, things that I have his absolute assurance that he will attend to, and then he simply does not do that which he says he will do. 

15. Another matter which I believe I must consider is whether or not the husband will properly and promptly prosecute his appeal.  His history to date indicates that he will not do so.  I am not able to be satisfied that the stay is anything other than a device that will postpone the inevitable in this matter.

16. In all the circumstances of this case, I believe that to grant a stay of my Orders dismissing his application for an extension, not to mention dismissing his application for my disqualification, would be no more than a further delaying tactic on his part, designed to prevent the wife from having the benefit from her properly obtained orders. 

17. It is trite to say that at the completion of litigation, the successful party is entitled to the fruit of that litigation.  It is not axiomatic that because a person lodges an appeal, a stay is automatic or will be granted as a matter of course.  The granting of a stay is a matter of discretion.  In this case, I exercise my discretion by refusing to grant the stay sought by the husband.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 19 March 2013.

Legal Associate:      

Date:    3 April 2013