Stephens & Stephens (Stay Application)

In Stephens & Stephens, the parties were before the Family Court of Australia on a stay application in relation to orders previously made by the Court. The application was brought by the husband, seeking to stay the execution of certain orders until a special leave application to appeal to the High Court was determined. The wife opposed the application on the basis that she had invested money awarded to her into real property, and there was a real risk that it would not be possible to restore the interested parties to their former position if the stay was not granted.

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.