…following an unsuccessful appeal – stay was such that time pursuant to the appealed order did not run until the appeal was dismissed
In Goldsmith & Stinson (No.2) [2023] FedCFamC1A 25 (15 March 2023) the Full Court (McClelland DCJ, Riethmuller & Strum JJ) heard a wife’s appeal against a decision of Carew J.
Final orders required the wife to transfer a property to the husband and for him to pay the wife $602,415 within 60 days. The wife filed an appeal, while the husband obtained a stay pending the appeal.
After the wife’s appeal was dismissed, the husband advised that he would be ready to settle on 15 July 2022. The wife sought to invoke the default provisions of the final orders which would result in the transfer of property to the wife.
The parties then filed competing enforcement applications, with Carew J extending the time in which the husband had to comply with the final orders. The wife appealed.
McClelland DCJ & Strum J said (from [60]):
“…[T]he extent of the amendments made by the primary judge in the … [final] orders … simply imposed new dates to give effect to her Honour’s decree but did not impose completely different rights and obligations on the parties. …
(…)
[92] …[W]e are of the view that, when considered in this context, the 60 day timeframes [mandated by the final orders] may be consequential or machinery provisions, capable of subsequent amendment. …”
As to the stay, McClelland DCJ & Strum J said (at [113]):
“…[T]he effect of the stay … is that … it operated retrospectively … [which] operated nunc pro tunc from the date of the final order … [such that] the period of 60 days for the husband to do the acts required of him … did not commence to run until the dismissal of the wife’s second appeal…”
Delivering a separate judgment, Riethmuller J did not agree that the timeframe was a machinery provision capable of amendment, however the stay order was such that the orders were within the ambit of the trial judge’s discretion.
The appeal was dismissed. The wife was ordered to pay costs.
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
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