Whittaker and Sinclair

In *Whittaker & Sinclair* [2013] FamCA 477, the Family Court of Australia considered an application for a stay of proceedings for property settlement between Ms Whittaker (the applicant) and Mr Sinclair (the respondent), following a finding that a de facto relationship existed between them. The proceedings also involved applications for interim costs and interim property settlement.

The primary legal issues before the court were whether to grant a stay of the property settlement proceedings, and in relation to the interim applications, whether to order the respondent to pay $200,000 in interim costs and to release $217,000 from a trust fund representing the net proceeds of sale of a unit. The court also considered the respondent's contention that it lacked jurisdiction to deal with the release of these monies.

Justice Loughnan applied the principles for granting a stay, which involve considering the likely success and merit of an appeal, and whether refusing a stay would render the appeal nugatory, while also balancing the prejudice to each party. The court noted that a stay is not automatic upon the filing of an appeal and that the applicant for the stay bears the onus of demonstrating its necessity. The court found that while the appeal had some prospect of success, the respondent's concerns about the potential waste of time and resources, and the irrecoverability of interim payments if successful on appeal, were significant. The court also acknowledged the respondent's delay in prosecuting the appeal.

The court ordered a stay of the property settlement proceedings on two conditions: firstly, that the appellant prosecute the appeal in a timely manner, and secondly, that the parties take all necessary steps to ensure the payment of $39,896.86 from the net proceeds of sale of the Suburb Y property to the applicant. The court noted that the characterisation of this payment would be a matter for the ultimate trial judge. The applications for interim costs and the full amount of interim property settlement were not granted, with the court expressing caution about ordering payments that might not be recoverable if the appeal was successful. The costs of the proceedings were reserved.