Spoke and Spoke (No. 3)

[2009] FamCA 320

FAMILY COURT OF AUSTRALIA

SPOKE & SPOKE (NO. 3) [2009] FamCA 320

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay struck out – No appearances

Family Law Act 1975 (Cth)

APPLICANT: Ms Spoke

RESPONDENT: Mr Spoke

FILE NUMBER: MLC 9340 of 2008

DATE DELIVERED: 20 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That the application in a case filed 27 March 2009 be struck out.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9340 of 2008

MS SPOKE

Applicant

And

MR SPOKE

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 27 March 2009 by the wife in which she seeks orders that I made on 2 February 2009 be stayed pending the hearing of her appeal.  The wife's application is supported by an affidavit. 

2. There has been no appearance of either the applicant wife, nor any appearance by or on behalf of the husband.  The husband has solicitors acting for him on the record and, whilst it seems rather odd, it may be that they have not been served.

3. I made orders relating to the property proceedings between the parties on 2 February and I note from the court file that the wife has lodged Notice of Appeal. 

4. Normally when an application for a stay is made, the affidavit in support of the stay sets out at least the grounds, if not the Notice of Appeal, to assist in determining whether or not the discretion should be exercised.  The wife has not done that in this case, but I have had the advantage of obtaining a copy of the Notice of Appeal.  The Notice of Appeal at best, is lengthy and the grounds difficult to discern.  I am not aware of when the procedural hearing will occur in this matter, but it seems to me that as she is not here to prosecute the stay application it is hard for me to do anything other than to simply strike it out.

5. The evidence that supported the application is that she simply filed a Notice of Appeal and said that the orders were not just and equitable because of reasons set out in her appeal documents.  Under the provisions of rule 22.12, the filing of the Notice of Appeal does not stay the operation or enforcement of the order unless the legislation otherwise provides for it.  It would seem that if this was the only material upon which the wife was going to rely she would have had considerable difficulty.

6. As she is not here and there is no party on the contradictor's side, the only course open to me is to strike out the application and I do so.

I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 April 2009