Atkinson and Atkinson

[2017] FamCA 649

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON [2017] FamCA 649

FAMILY LAW – ORDERS – Application to extend the time for filing an application for review of a Registrar’s orders – Where concurrent application seeking relief under s 79A of the Act – Where the issues are substantive raising questions of common or unilateral mistake and properly the subject of an application under s 79A of the Act – Application for leave to review out of time dismissed.

Family Law Act 1975 (Cth) s 79A
Family Law Rules 2004 (Cth) rr 1.14, 17.02, 18.08

Gallo v Dawson [1990] HCA 30
McMahon and McMahon (1976) FLC 90-038
Smith & Wilson [1999] FamCA 1595

APPLICANT: Mr Atkinson

RESPONDENT: Ms Atkinson

FILE NUMBER: PAC 1681 of 2015

DATE DELIVERED: 25 August 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ziade of Anthony Ziade & Associates

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: McPhee Kelshaw

Orders

1. That the husband’s application for leave to review out of time of the Registrar’s determination to make consent orders on 22 April 2016 be dismissed.

2. That any application for costs of the present application be made by way of written submission filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days thereafter judgment as to costs reserved to chambers.

3. That proceedings be adjourned to the Judicial Case Management list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkinson & Atkinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1681  of 2015

Mr Atkinson

Applicant

And

Ms Atkinson

Respondent

REASONS FOR JUDGMENT

1. The applicant husband seeks an order that the time for filing an Application for Review of consent property orders made by a Registrar on 22 April 2016 be extended.

2. On 22 April 2016 the Registrar exercising delegated power made final property and parenting orders by consent in proceedings that had been commenced by the wife in April 2015.

3. The property orders relevantly provided, in summary, as follows:

   1.For the sale of a real estate property at Suburb B and, after selling costs and discharge of the mortgage, the proceeds of the sale to be applied in payment:

   i)of outstanding school fees for the children of the marriage;

   ii)to the wife of the balance of the proceeds “with the exception of any amount if the property sells for more than $245,000.00”.

   4.Payment to the wife of the sum of $7,200.00 then held by C Estate Agents Suburb D.

   6.That the wife transfer to the husband her interest in a real estate property at Suburb E.

   7.That the husband to, concurrently with such transfer, discharge the existing mortgage secured over the said property.

4. Subsequently, on 12 July 2016 the husband filed an Application in a Case relevantly seeking the following orders:

   a)that leave be granted out of time for the review, pursuant to Rule 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”) for a review of the orders made on 22 April 2016 in these proceedings by the Registrar;

   b)in the alternative, that pursuant to section 79A of the Family Law Act 1975 (Cth) (“the Act”), the orders made by the Registrar on 22 April 2016 in these proceedings be varied or set aside;

   c)that orders made on 22 April 2016 be stayed pending determination of this Application in a Case and of any review, variation, setting aside or any other proceedings to finalise the substantive issues relative to the orders sought by each of the parties.

5. Subsequently, on 6 October 2016 the husband filed an application initiating proceedings that sought the following orders:

   a)That pursuant to section 79A of the Act the order for property settlement made on 22 April 2016 be varied by deleting paragraphs 1.1 and 1.6 and substituting in lieu of paragraph 1.6 the words “in payment of $185,000.00 to the husband and the balance to the wife”.

   b)That the wife cause to be paid to the husband all amounts received by her by way of rent from the property at Suburb B from the date of the orders made by the Registrar on 22 April 2016 to the date of implementation of (the previous order) hereof.

6. It should be noted that the application initiating proceedings seeking relief under section 79A was the appropriate commencing process for the purposes of that relief and not the Application in a Case previously filed by the husband.

7. On 29 September 2016 the husband filed an Amended Application in a Case seeking the following orders:

   a)That the time for filing an application for review of the order made by the Registrar on 22 April 2016 be extended.

   b)That orders 1, 2, 3, 6 and 7 made on 22 April 2016 be stayed.

8. There is no issue that a Registrar has the power to make consent orders in current proceedings such as was done in this matter. It is also common ground that any application to review a Registrar’s order must be made within 28 days of any order made: Rule 18.08 of the Rules.

9. Rule 1.14 provides generally for a party to apply to the Court to shorten or extend any time fixed by the Rules and that an application may be made even if the time fixed by the relevant rule has passed.

10. As to the applicable principles, in McMahon and McMahon (1976) FLC 90-038 the Court said (at 75,144):

    The general principles governing applications for leave to extend time are established by a number of cases. In summary, the applicant must show that there are adequate reasons which explain the delay; that there is a substantial issue to be raised on appeal; and that no hardship or injustice is caused to the Respondent which cannot be compensated by orders as to costs or otherwise.

11. In Gallo v Dawson [1990] HCA 30 McHugh J said:

    The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262.

    This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the Rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time...

The husband’s complaint

1. The husband relied upon the following affidavits:

   a)his affidavit filed 12 July 2016;

   b)his affidavit filed 9 August 2016;

   c)his affidavit filed 5 September 2016;

   d)the affidavit of Mr E, barrister filed to December 2016.

2. The husband complains of two difficulties in relation to the orders made 22 April 2016:

   a)Firstly, that the order for sale of the Suburb B property provides that on sale there should be a payment “of an amount sufficient to discharge the mortgage secured upon the property”.

   b)Secondly, that the orders make no provision for payment in the event that the Suburb B property sells for more than $245,000.00.

3. As to the second contention, a perusal of the original minute of orders signed by the parties and initialled by the Registrar on 22 April 2016 reveals that the subsequent typescript of the sealed orders was in error in that the words “with the exception of any amount if the property sells for more than $245,000.00” should be followed by the words: “The amount over $245,000.00 shall be paid to the husband”.

4. It is clear that the error in the sealed copy of the orders can be readily rectified by operation of the slip rule (Rule 17.02 of the Rules). Amended orders will issue accordingly.

5. As to the husband’s first contention he asserts that there was at times confusion as to whether funds borrowed by the parties from the ANZ bank were secured over the Suburb E property, the Suburb B property or both. The husband asserts that the Suburb B property was purchased by borrowing the whole of the purchase price from the ANZ bank. It appears the inference is that the Suburb E property was used as collateral security for that borrowing.

6. He asserts that the conciliation conference proceeded on the understanding that the ANZ mortgage debt of approximately $100,000.00 was secured over both the Suburb E property and the Suburb B property and as a consequence of the agreed order for sale the mortgage would be discharged on sale of the Suburb B property. This assertion is notwithstanding an obligation on him in consideration of the transfer of the wife’s interest in the Suburb E property to him to refinance the mortgage secured over that property.

7. The husband, otherwise, makes complaint that the wife has not accounted to him for rent received in respect of the Suburb B property. It is to be noted that the consent orders of 22 April 2016 make no reference to receipt and distribution of rental income relating to the jointly owned Suburb B property that is a partnership between the husband and wife. That partnership would be ended upon final sale of the property with thereafter a proper accounting for income received and disbursed as between the parties to occur.

8. Subsequent to the consent orders, there was correspondence between the parties’ respective legal representatives and agreement was not able to be reached about the intended operation of the sale order in so far as it provided for a discharge of mortgage.

The wife’s contention

1. The wife filed a Response to the husband’s Application in a Case on 22 December 2016. In that Response she sought the dismissal of the husband’s Application in a Case and enforcement orders facilitating the sale of the Suburb B property as provided for in the orders of 22 April 2016 notwithstanding that those orders themselves provide a mechanism for sale and distribution of the proceeds of sale.

2. The wife, otherwise, seeks that the Court make a notation that there is no mortgage secured over the property at Suburb B and thus no payment provided for to discharge any mortgage as contemplated in the consent orders of April 2016.

3. The wife relied upon her affidavit filed 22 December 2016.

4. It is readily apparent that she asserts that the difficulties were encountered in implementing the arrangements contemplated for sale of the Suburb B property in the consent orders. Those difficulties in any event are simply matters that could be the subject of an appropriate enforcement application.

Discussion

1. It is clear that the orders made on 22 April 2016 may be amended under the slip rule so as to properly reflect the Minute of Orders provided to the Registrar at the time the consent orders were made.

2. Otherwise, there appear to be issues of common mistake or unilateral mistake as to the circumstances of the mortgage secured or not secured over the Suburb B property.

3. The wife for her part opposes any extension of time in which to review the Registrar’s determination to make the consent orders. If leave is given to file such a review out of time it is clear that the husband would simply then withdraw his consent and property proceedings would once again be on foot between the parties.

4. The question of whether there is a mortgage secured over the Suburb B property is simply a question of fact. The real issue is whether there was some form of mistake that rendered a “miscarriage of justice” at the time the orders were made. Such is a matter for evidence.

5. One or both of the parties being mistaken as to the circumstances of such security at the time of making the orders would more properly enliven the Court’s jurisdiction so as to consider whether to vary or set aside the orders under s 79A of the Act by reason of a “miscarriage of justice”.

6. The husband for his part has properly filed an Application initiating proceedings properly seeking relief under s 79A of the Act. It is somewhat puzzling that in the circumstances of this matter he seeks to proceed on a more discreet basis by a review of the Registrar’s decision to make the consent orders.

7. The distinction between the two applications was referred to by Jordan J in Smith & Wilson [1999] FamCA 1595 as follows:

   In my view, the factual issues raised by the wife in each process involves substantial, fundamental and a vast range of matters in issue. They also potentially involve important legal issues. In my view, such matters are more appropriately considered in the context of a substantive application of the section 79A type, rather than in the context of an extension of time application. If there is a scale of matters from procedural to substantive, then a section 79A application is at the pointy end of the substantive scale, whereas a leave application is much closer to a procedural matter. In my view, the essential deliberations in this case should be considered as being more substantive than procedural.

8. In this matter the wife opposes the application for leave although seeking for her part orders as to enforcement that do not reflect the enforcement provisions provided for in the orders themselves.

9. Otherwise, the husband asserts a factual matrix supporting assertions as to unilateral or common mistake such as to vitiate the consent orders and thus fall within the “miscarriage of justice” contemplated by s 79A.

10. The husband’s application requires determination on a defended basis as to disputed facts and circumstances that were in place at the time of the consent orders being made.

11. In all of the circumstances, it is appropriate that the husband proceed by way of his s 79A application. Indeed, the wife filed a Response to that application on 10 February 2017.

12. Accordingly, the husband’s application for leave to review the Registrar’s determination out of time will be dismissed.

13. An order will be made accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 August 2017.

Associate: 

Date:  24 August 2017