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What is an application for a stay?

By November 24, 2020February 23rd, 2024No Comments

Once you have received a family court judgment, you must follow the orders contained in it exactly or risk being in breach and facing potential penalties. If you object to orders in your judgment, and decide to appeal your matter, this doesn’t automatically suspend the enforcement of the judgment’s orders. They will stay in force pending the outcome of your appeal, unless you make an application to have the orders stayed. Here’s a brief look at what’s involved with an application for a stay.

A recent case in the family court (pseudonymised as Blakeley and Jaine) centred on the subject of a husband’s application for a stay against orders that he pay a sum of spousal maintenance. His application was however dismissed by the court, with the judge deciding his application was “opportunistic”.

In this case the husband had been ordered to pay weekly spousal maintenance of $836. However, he applied for a stay of the orders based on the claim of financial hardship. His wife argued he should continue to make the spousal maintenance payments until the appeal court ordered him not to. The husband’s argument was rejected by the court, with the judge finding he clearly did have the capacity to pay the sum of spousal maintenance ordered.

The judge said the husband was exaggerating the depth of his financial hardship, earning for example $842,000 in the tax year ending 2019. There was also property of the relationship to be divided in the region of $5 to $6m. The sum of spousal maintenance the husband would be required to make until the appeal was heard would amount to $16,000, a “modest” figure relative to the man’s wealth.

We note the husband, who was self-represented, could have chosen his words more carefully because. In his opening paragraph he wrote that “As a consequence of order 1 made by Wilson J on 5 March 2020, I am now in financial difficulty”. The judge found this an “affront” and said there were many things leading to the man’s financial difficulties other than the order for spousal maintenance. The judge said:

“I take the view that the husband’s pursuit of the stay application was opportunistic….In bringing his stay application the husband was endeavouring to arrange his financial affairs so that he met almost every outgoing – actual or conditional – ahead of his liability to pay spousal maintenance. I have not allowed him to that. His application had no prospects of success. It should not have been brought.”

Application for a stay: How it works

Once an appeal has been started, an “application in a case” can be made for a stay. A stay is where the court pauses the operation of an order while an appeal is decided. Note that simply filing a Notice of Appeal doesn’t stay the operation or enforcement of an order. If a stay is successfully obtained, but an appeal is unsuccessful, the stay is lifted and the order becomes effective again.

The application for a stay is filed in same registry where the order under appeal was made and heard by the judge who made the order under appeal. (If the trial judge refuses the stay application, appellants have remedies before the Full Court.)

How do courts decide to grant an application for a stay?

Granting of a stay is discretionary – that is the court may exercise its discretion. The onus is on the applicant to persuade the court that special circumstances exist that justify pausing the orders. Applicants also need to persuade the court that their appeal has reasonable prospects of success.

Courts have to look at the “bona fides” of any stay application – essentially, how genuine is the reason behind it. Stay applications can’t be made as a tactic or as a weapon to stop the other party enjoying the benefits of the judgment.

Against the husband’s “bona fides” in this case were: that he had repeatedly engaged in non-disclosure or not full disclosure to the wife; the fact that he had delayed for six months before bringing the stay application and gave no explanation for the delay; the fact that he has actually paid the spousal maintenance ordered since the orders were made “yet he now asserts ‘financial difficulty’, two seemingly inconsistent positions”.

Another valid reason to reject the stay application is that the husband’s prospects for succeeding at appeal were described as low. The judge in this application noted, “It has never been a proper basis of appeal for an appellant to argue that he is dissatisfied with the outcome”.

If the husband did succeed at appeal in having the spousal maintenance order varied, any payments of spousal maintenance that he had made in the interim would be capable of being reversed in any case.

Rather unsurprisingly, the husband was ordered to pay the wife’s costs in the application. The wife was helped here by her early offer to the husband to withdraw the stay application which received no response. When determining costs, courts are allowed to take into consideration whether there was an unreasonable refusal of an offer of compromise.

You can read the judgments in the case mentioned above here and here.

If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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