In Falkner & Candle [2021] FedCFamC1F 66, Jano Family Law enforced payment of a family law judgement award of $604,168 where the wife sought a partial stay of property settlement orders requiring her to pay money to the husband.
When the wife defaulted in her obligation to pay the judgement sum in full, having made a partial payment only, we immediately filed an application to enforce payment of the judgement award in full. In turn, the wife sought a partial stay of the judgement as she had a potential costs application in relation to the proceedings at first instance. This case is slightly unusual in that the husband sought enforcement of a judgement award having himself earlier filed an appeal against the judgement itself. However, as the husband’s appeal application did not seek a stay of the judgement being appealed, we advised him to enforce the wife’s payment of the judgement award. Our decision to make the application on behalf of the husband was vindicated in full and the wife’s failure to obey Court orders was one of the factors in having costs awarded against her.
His Honour Justice Tree considered the wife’s application from various angles [9]:
Although couched as an application for partial stay of the orders of Foster J, that is not the only way to characterise the wife’s application. It can also be seen as seeking a prohibitory interlocutory injunction, restraining the husband from accessing and utilising the monies which by now ought to have been paid to him, and hence his own property. Alternatively it can also be seen as seeking both a prospective and retrospective application for security for costs. It is useful, given the relatively unusual nature of the wife’s application, to consider her application through all three prisms before determining whether, ultimately, the discretion that I have should be exercised as she seeks.
Ultimately, the wife’s application could not succeed on any characterisation of her application [41]:
No matter which prism the wife’s application is viewed through, I would decline to make the orders which she seeks. Therefore her Amended Application in a Case filed 2 July 2021 should be dismissed to the extent it sought the partial stay, and to the extent that the same relief was sought by her Response to an Application in a Case filed 2 September 2021, it should also be dismissed.
As to costs, the wife’s failure to comply with prior orders of the Court was one factor relevant to the award of costs to the husband [44]:
In the event that the wife’s applications failed, and the husband’s application therefore succeeded, she again sensibly appeared to concede that she could not resist an order for costs. Even if I am mistaken as to that, her loss, superior financial position, and failure to comply with prior orders of the court, compel that she should bear the husband’s costs. There will therefore be an order that the wife pays the husband’s costs of his Application in a Case filed 3 August 2021.
Subsequent to the hearing of his successful enforcement application, the husband’s appeal application was heard in which he was also represented by Jano Family Law, with the result that the appeal was also successful. The decision is reported at Candle & Falkner [2021] FedCFamC1A 102.
To make a confidential, no-obligation inquiry, please use our secured and encrypted New Client Form.