FAMILY COURT OF AUSTRALIA
| STEPHENS & STEPHENS (Stay Application) | [2010] FamCAFC 20 |
| FAMILY LAW - PROPERTY – STAY APPLICATION – PENDING SPECIAL LEAVE TO APPEAL TO HIGH COURT – Application for stay of orders of the Full Court and the orders of a single judge in the appellate jurisdiction of the Family Court of Australia – Where the mere filing of an application for special leave to appeal to the High Court does not operate as a stay of execution of the orders in respect of which leave to appeal is sought – Whether the circumstances in this case are exceptional FAMILY LAW - STAY APPLICATION – Where the Wife has received the benefit of the judgment and has invested the money into real property – Where it was submitted that there was a real risk that it would not be possible to restore the interested parties to their former position – Whether there was any reasonable prospect of recovery of the moneys paid pursuant to the orders FAMILY LAW - STAY APPLICATION – Circumstances in which the Wife is prepared to give an undertaking to the Court, the effect of which would be to restrain her from dealing with the real property and her investment portfolio – Where it was submitted that there may be a risk that the assets, the subject of the undertaking, would be vulnerable to claims by unspecified unsecured creditors of the Wife – Where the Wife testified that if the appeal succeeded she may have to sell the property – Where the evidence clearly demonstrates that the Wife currently has more than adequate assets to support the undertaking – Where the court is not persuaded that there is evidence that the Wife is a spendthrift or that she would dissipate her assets such that we could infer that she would take steps to put at risk her financial position by incurring significant unsecured liabilities – Application dismissed provided the Wife files in court an undertaking in the terms described FAMILY LAW - STAY APPLICATION – Stay of orders of a single judge of the appellate jurisdiction – Where the Order provided that the stakeholders invest a sum of money as trustees for the parties pending quantification and/or determination of the Husband’s liability for costs pursuant to orders made in various courts – Where no submission were made regarding the dissipation of this money by either the Wife or the Husband before the outcome of the special leave application – Application dismissed provided the Wife files in court an undertaking that no amount be disbursed from that portion of money held by the stakeholders FAMILY LAW - STAY APPLICATION – Stay of orders of the Full Court providing for written submissions regarding costs – Where the Husband did not file written submissions as to costs as the orders required – Where the Husband submitted that a determination of any application for costs of the appeal proceedings should await the outcome of the application for… |
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- AGLC
- Stephens & Stephens (Stay Application) [2010] FamCAFC 20
- Case
- [2010] FamCAFC 20
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the mere filing of an application for special leave to appeal to the High Court operated as a stay of execution of the orders, and whether the circumstances in this case were exceptional enough to warrant a stay. The court held that the filing of an application for special leave to appeal did not automatically stay the execution of the orders. The court also found that the circumstances in this case were not exceptional enough to warrant a stay, particularly as the wife was prepared to give an undertaking to the court to restrain her from dealing with the real property and her investment portfolio.
The court dismissed the application, but provided that the wife file an undertaking in the terms described. The court also dismissed the wife's application for costs, finding that she had justifying circumstances, but that the husband had not complied with an order to file submissions. The husband was ordered to pay the wife's costs of the proceedings.
The court's final orders included that the wife file an undertaking to restrain her from dealing with certain property and investments pending the determination of the special leave application. The court also dismissed the husband's application for a stay of the orders, and ordered him to pay the wife's costs of the proceedings. The court noted that the wife had justifying circumstances for her application for costs, but that the husband had not complied with an order to file submissions.
Orders
Orders of the court
1.
The First Respondent file and serve within seven days of the date of these orders an undertaking to the Family Court of Australia which should provide that pending the determination of the application for special leave to appeal to the High Court of Australia filed on 21 January 2010 and any consequent appeal if special leave is granted:
(a) the First Respondent be restrained from transferring, assigning, encumbering by mortgage or charge or otherwise or in any way dealing with her interest in the property situate and known as [suburb B] and further shall not similarly deal with the shares and cash at bank referred to in paragraph 30 of her affidavit of 4 February 2010 such as to cause such shares and cash at bank to have a value of less than $200,000.00.
(b) the First Respondent be restrained from executing any deed, document, instrument or writing or doing any act or thing to cause any portion of the amount of $500,000.00 referred to in order 3 made on 10 March 2009 to be paid by the stakeholders in satisfaction of any orders for costs.
2.
It be noted that the title of the property at [suburb B] is in the sole name of the First Respondent and is unencumbered.
3.
The Application in a Case filed by [the Husband] on 2 February 2010 be dismissed.
4.
The Application in paragraph 2 (costs) of the Response filed on behalf of the First Respondent on 5 February 2010 be dismissed.
5.
In relation to the costs of the proceedings concluded by judgment on
24 December 2009:
(a) [The Husband] be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the applications by him to extend the time to file an application for leave to appeal; the appeal by him and the cross-appeal by the Wife by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 21 days of the date hereof.
(b) Each other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
(c) Each party endorse on the cover sheet of any submissions filed pursuant to orders 5(a) and (b) the date upon which a copy of that submission was served on the other parties.
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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