Director of Public Prosecutions for Victoria and Hoppe and Anor

The Director of Public Prosecutions for Victoria applied to the Family Court of Australia to set aside final property orders made by a Registrar on 3 July 2017. These orders, which were sought by Ms Hoppe (the first respondent) and Mr Vijayan (the second respondent), purported to effect a property transfer between the parties. The application was brought because a restraining order under the Victorian Confiscation Act 1997, made by Judge Dyer on 23 May 2017, was in place, and a copy of this order had been provided to the Court by the parties when they sought the consent orders. Mr Vijayan was incarcerated at the time of the hearing.

The primary legal issue before the Court was whether the Registrar had the power to make the consent orders on 3 July 2017, given the existence of the state confiscation restraining order and the provisions of sections 90VA and 90VB of the Family Law Act 1975 (Cth). These sections generally require proceedings to be stayed once the Court is aware of such a restraining order. The Director argued that the Registrar's delegated power to make the orders should not have been exercised in these circumstances, and that the orders should be set aside.

Justice Cronin reasoned that the Registrar should not have made the consent orders because the existence of the restraining order, which was provided by the parties, triggered the operation of sections 90VA and 90VB of the Family Law Act. The Court found that a cursory examination of these sections would have indicated that the proceedings should have been stayed. The fact that the parties attached a copy of the restraining order to their application meant that further inquiries should have been made, and the exercise of the power to make the consent orders was therefore inappropriate. The Court noted that even if the second respondent had not been aware of the application, the orders would still have had to be set aside.

The Court ordered that the consent orders made by Registrar Lethbridge on 3 July 2017 be set aside. The application by the Director of Public Prosecutions was otherwise dismissed. Proceedings for property alteration between Ms Hoppe and Mr Vijayan were stayed pending further order. The original application for consent orders filed on 30 May 2017 was adjourned to a date to be fixed, with a provision that it would stand dismissed if no further application was made by 4:00 pm on 13 March 2019.