Dorfer and Dorfer

[2007] FamCA 500

FAMILY COURT OF AUSTRALIA

DORFER & DORFER [2007] FamCA 500

FAMILY LAW - PROPERTY SETTLEMENT - Leave to review orders out of time - To do justice between the parties - Hardship -  Prejudice and explanation for delay

Family Law Rules 2004 (Cth) Rule 1.14

In the Marriage of Sanders (1992) 17 Fam LR 103;
McIntyre & McIntyre (1994) FLC 92-468;
In the Marriage of O'Bryen (2005) 33 Fam LR 25;
In the Marriage of Sanders (1992) 17 Fam LR 103;
In the Marriage of Tormsen (1993) 18 Fam LR 232;
In the Marriage of Whitford (1979) 4 Fam LR 754;
Harris v Caladine (1991) 14 Fam LR 593;

APPLICANT: Mrs Dorfer

RESPONDENT: Mr Dorfer

FILE NUMBER: SYF 2189 of 1991

DATE DELIVERED: 1 June 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 24 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N. Jackson

SOLICITOR FOR THE APPLICANT: Anne Day & Associates

COUNSEL FOR THE RESPONDENT: Mr R. Maurice

SOLICITOR FOR THE RESPONDENT:           David H. Cohen & Co

Orders

1.Insofar as the application of the wife filed 14 November 2006 seeks an extension of time to file a Review of the orders made by the Court on 31 May, 1993, the application is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2189 of 1991

Mrs Dorfer

Applicant

And

Mr Dorfer

Respondent

REASONS FOR JUDGMENT

1. The wife seeks an extension of the time within which she can apply to review orders made for property settlement by consent on 31 May 1993.

Applications

1. By her application filed 14 November 2006, among other orders the wife seeks:

   1. That pursuant to Rule 1.14 of the Family Law Rules 2004 the Court grant leave for an extension of time to file a Review of the orders made by the Court on 31 May, 1993.

   2.   …..

2. The husband opposes that order.

The hearing

1. The proceedings arise in the context of proceedings instituted by the husband to enforce orders for settlement of property made by consent on 31 May 1993. The wife responded with proceedings under section 79A which are yet to be heard. She also seeks to review the property orders. She needs leave to do so as she is nearly 14 years out of time. It was decided that rather than fix the section 79A, Review and extension of time applications for hearing together, I would determine the extension of time application first. That matter was fixed for hearing as a short matter before me at 9.30 am on 24 May 2007. On that day the matter was heard and judgment was reserved.

Issues for determination

1. There are no relevant factual disputes. The issues for determination are discretionary and include the following matters:

• whether the extension of time will enable the Court to do justice between the parties;

  owill the wife suffer hardship if the time is not extended;

  oif the time is extended what prejudice would the husband suffer;

  ois there an adequate explanation for the wife’s delay.

Short History

1. The wife and husband are 51 and 50 years of age respectively.  They commenced living together in about 1975, were married on … May 1981, they separated in February 1989 and their divorce became final on … February 1995. Final orders for settlement of property were made by this Court, with the consent of the parties, on … May 1993.

Children

1. The parties have two adult children:

   a daughterwho is nearly 23 years of age; and

   a sonwho is 20 years of age.

Background Facts

1. On 26 February 2007 Watts J heard and determined an application for summary dismissal of the wife’s applications under section 79A and for extension of time to review.  In dismissing the application for summary dismissal, his Honour included the following background in the reasons for judgment. I do not understand any relevant aspect of that background to be contraversial:

   ……

   10.The wife was born […] August 1955 and is currently 51 years of age. 

   11.When the wife was about 20 she was involved in a car accident in Switzerland.  She received compensation of about 10,000 Swiss Francs before the marriage.  In 1975 the exchange rate was about 2.58 Swiss Francs so the amount of the compensation in Australian dollars at the time would have been about $3,875. 

   12.When the parties commenced to live together in about 1975 the wife says that she was 21 years of age and the husband was 20 years of age. 

   13.The parties were married on […] May 1981

   14.The parties moved to Australia in about September 1981.

   15.The wife says she studied English at that time and that she had studied English at school.  She said “when I first came to Australia my English was very basic.  I studied English and over the years, my English has improved”.  She said she studied English part time with other migrants for two years.

   16.The wife says in 1984 her parents gifted her 20,000 Swiss Francs to assist in the purchase of the home.  She asserts in her affidavit that the exchange rate for that time was fairly close to par (exhibit C shows the exchange rate to be 1.14).

   17.In March 1986 the property at [B] was purchased for the sum of $69,000.  $45,000 was borrowed from the Commonwealth Bank.  Although it is not clear the wife says “I used the 10,000 Swiss Francs which was about AUS $10,000 to renovate the house as it was old”.  I an uncertain as to what that evidence means.  The exchange rate at the time of the purchase of the house was 1.49.  It is unclear as to whether or not the 10,000 Swiss Francs which were received by the wife before she was married were left overseas and only brought to Australia in 1986. 

   18.There are two children of the marriage, [a daughter] born […] June 1984 and [a son] born […] January 1987. 

   19.The parties separated in February 1989 and were separated under the one roof until September 1989.  At this time the wife says the husband took all the financial records, her passport and birth certificates.  The wife says although the parties had been separated under the one roof since February the husband left the home in September with only one hours notice.  The wife says that at this time she was consulting a [Dr S], psychiatrist at [H] for depression and she was on antidepressants. 

   20.On 28 October 1991 orders were made in relation to [the children].  They were to live primarily with them mother.

   21.The parties signed orders for final property settlement which were made by consent in the Family Court of Australia at Sydney on 31 May 1993.

   22.The parties divorced on […] February 1995. 

   23.The wife and the children continued to live in the matrimonial home at [B] between the date of the separation and 17 November 2006 (paragraph 62 of the wife’s second affidavit).

   24.Contracts for the sale of the matrimonial home were exchanged on or about 10 November 2006 for a sale price of $465,000 (see paragraphs 57 and 59 of the wife’s second affidavit). 

   25.I am told settlement is expected today.

   WHAT THE WIFE SAYS HAPPENED AFTER THE SEPARATION

   26.After the separation the wife was on social security benefits.  At the time of separation the children were about 5 and 2 years of age. 

   THE TERMS OF THE CONSENT ORDER

   27.The order made on […] May 1993 is in the following terms:-

   Notations

   1.The parties were married on […] May 1981, in Switzerland.

   2.There are two children of the marriage, [a daughter] born […] June 1984 and [a son] born […] January 1987.

   3.The parties separated in February 1989.  The wife and the said children still reside in the former matrimonial home, situated at [B].

   4.The former matrimonial home is subject to a mortgage to Commonwealth Bank of Australia, [R] Branch with present balance of approximately $45,000 and which the husband has been paying at the rate of $590.00 per month.

   5.The parties have had discussions regarding property settlement and it has been agreed that the wife and the children are to reside in the former matrimonial home until the youngest child attains the eighteen years of age or becomes self supporting whichever shall first occur.

   6.Upon the youngest child obtaining the age of eighteen years or becoming self supporting, the former matrimonial [sic] is to be sold and the net proceeds thereof to be divided as to the husband 65% and as to the wife 35%.

   7.The husband and wife agree that payment of mortgage will include a component for maintenance in relation to the said children.  The wife will in consideration for which release the husband of any obligation to pay child maintenance.

   8.In the interim the wife is to maintain the former matrimonial home in good order and will be responsible for and attend to payment of all rates, taxes, stamp duties, house insurance and other outgoings relating to the home.

   9.Upon the youngest child attaining the age of eighteen years or becomes self supporting, whichever shall first occur, and until the former matrimonial home is sold, the wife shall pay rent at the market rate to the husband, to be calculated at 0.15% per week of the market value of the house.  The market value will be assessed by a Real Estate Agent.

   By consent the parties agree as follows:-

   1.That the wife and children reside in the former matrimonial home until the youngest child obtains the age of eighteen years or becomes self supporting whichever shall firs occur.

   2.That the husband shall pay mortgage in respect of the former matrimonial home (which is to be paid in lieu of child maintenance).

   3.Upon the youngest child obtaining the age of eighteen years or becomes self supporting whichever shall first occur, the wife shall meet all outgoings in relation to the up-keep of the home including rates, taxes, stamp duties, house insurance etc.

   4.Upon the youngest child obtaining the age of eighteen years or becomes self supporting whichever shall occur, the former matrimonial home is to be sold forthwith and the net proceeds of same to be divided as to the husband 65% and as to the wife 35%.

   5.Upon the youngest child attaining eighteen years or becomes self supporting and until the former matrimonial home is sold the wife shall pay rent monies to the husband at the calculated rate of 0.15% of the market value of the house, until the said matrimonial home is sold.  The market value of the house will be assessed by a Real Estate Agent.

   PROPERTY ORDERS

   28.The wife’s evidence in relation to how the property orders were made is reasonably short so I set it out in full:-

   44.Property orders were made on […] May 1993 [I note this is the date the orders were filed.  They were made on […] May 1993].  At that time I just wanted piece and quiet.  I felt under too much pressure.  I did not have any funds to employ a solicitor.  Legal Aid paid for my solicitor when the children’s orders were made.  [The husband] had taken all the paper work from the house when he left so I had no information as [sic] our finances.  I did not have any money to pay a solicitor.

   45.Between 1991 and 1993 [the husband] would discuss the property orders with me when he came to collect the children.  I recall I had a conversation with him which included words to the following effect:-

   “[The husband] said:

   ‘We need to sell the house.  I’m bringing a real estate agent here’.

   I said:

   ‘Where am I going to go?  I can’t go back to Switzerland.  By the time we pay the bank and my parents there is no money left’.

   [The husband] said:

   ‘You can live in a Housing Commission place’.

   We had several conversations to this effect.  He handed me a proposal with three options.  None of the options referred to payment of rent. I choose [sic] the second option.”

   46.The first proposal was for [the husband] to pay minimal maintenance and receive 55% of the house when [the son] was 18.  The second proposal was for [the husband] to pay maintenance and receive 65% of the house when [the son] was 18.  The third proposal was for the house to be sold and the court to decide.  I chose the second option.  I did not obtain the advice of a solicitor due to my financial position.  [The husband] did not pay any monies to the maintenance and upbringing of the children.  He did pay the mortgage of $445 per month.

   47.I am not aware of [the husband’s] financial position at the time of separation or at the time the property orders were made.

   48.At the time the property orders were made my income was from Department of Social Security benefits.  [The husband] paid the mortgage of $445 per month.  We owned our home at [B] subject to the mortgage, a car which [the husband] retained and the contents of the home.

   49.I recall that after I chose the second option, a few months later, [the husband] arrived at my home at [B] with papers.  I signed the papers.  On a later occasion I signed another paper which said I could have legal representation.  [The husband] brought the paper to me and took me to see a Justice of the Peace that he knew in [B]. 

   50.We then went to a typewriter or office equipment repair store in [B].  I signed a document before the man in the shop who [the husband]t knew who was a Justice of the Peace. 

   51.I was aware that I could remain in the house until [the son] turned 18.”

29.On 18 December 2006 I quickly looked at the file and told counsel at the bar table that the only thing on the file was sealed copies of the orders which were the subject of the dispute.  This was incorrect.  There were three documents that were on the file, being a Form 7, the Notice of Address of for Service by the wife and an affidavit by the wife sworn 8 February 1993. Those documents were forwarded to the legal representatives of the parties and I have heard further submissions this morning in relation to matters arising from those documents. 

30.The Form 7 which was completed by the husband was a pleading which was verified by him on 11 February 1993.  It had a section in it entitled “Property”, as follows:-

“9.  PROPERTY:

The husband and wife cohabited during the following periods:
Not applicable
All the property of each party at the time of the filing of this application is identified and described as to the best of the applicant’s knowledge and ability in the Statement of Financial Circumstances, or affidavit in lieu of that statement, filed with this application.
The facts relies on be [sic] the applicant in seeking an order under Section 78 of the Act are as follows:
Not applicable
The initial financial contribution of each party at the time of the commencement of cohabitation was as follows:
Not applicable
The facts relied upon pursuant to paragraphs 79(4)(a) to (d) of the Family Law Act are as follows:
Not applicable
The facts relied upon pursuant to paragraph 79(4)(e) of the Family Law Act are as follows:
Not applicable
Other relevant facts relied upon by the applicant are as follows:-

Not applicable.”

31.I have already commented during submissions that what the husband said was that there was nothing that was applicable by way of information of initial financial contribution.  That there was no relevant fact that the Court need know about under s.79(4)(a)-(d), and that there was no relevant fact the Court needed to know about under s.79(3)(e) and there was no other relevant fact the Court needed to know about. 

32.The second document was an affidavit of the wife sworn 8 February 1993.  The form of this document clearly indicates that that was a document prepared in the office of the husband’s lawyer and that is consistent with the wife’s sworn evidence as to how she came to sign that document.  The text of the document is as follows:-

1.I am the respondent wife herein;

2.I have reached an agreement with my husband concerning property which has been reduced to writing and executed by the parties;

3.I understand that I could seek legal advice in relation to the terms of the orders sought but do not wish to do so;

4.The property settlement is set out in the consent orders executed by the parties;

5.That I believe it is the best settlement that both my husband and I could agree to;

6.I therefore respectively request that the court make the orders set out in the short minutes of orders concerning property.  Notwithstanding the fact that I have not instructed a solicitor because I do not wish to do so.

33.The wife signed the document which on its face said that she understood she could seek legal advice that she believed that it was the best settlement that both she and her husband could agree to and notwithstanding that she had not instructed a solicitor she wished to enter into the agreement. 

34.The third document is a notice of address for service signed by the wife on 8 February 1993.  On its face it tells the Court that the wife has received a sealed copy of the application.  There is in fact no evidence before me at all that the wife received a copy of the application and in fact given that the application itself was not filed until after the notice of address for service was signed, I can safely infer that the wife did not have a sealed copy of the husband’s Form 7 at the time she swore her affidavit and signed her notice of address for service. 

35.What flows from this is that the material that was presented to the Court by the husband on his oath upon which the Court made orders was material which was never given to the wife. 

………..”

Credit and Submissions

The evidence of the witnesses

1. There are no significant factual disputes and therefore there was no need for oral evidence. The proceedings were conducted on the papers and with the benefit of submissions.

Submissions

1. On behalf of the wife it is submitted that the circumstances and outcome of the orders of 1993 were so unfair as to work an injustice to the wife. It is submitted that the injustice arises because the wife had no legal representation; there was no real disclosure of the relevant financial circumstances; the wife had limited English; she had earlier been treated for depression; the ultimate division was unfair and the rental clause was manifestly unfair. It is submitted that the hardship to the wife of refusing the extension of time was such that it outweighs any inadequacy in her explanation for delay. I am referred to a decision of Purvis J in In the Marriage of Sanders (1992) 17 Fam LR 103, wherein time was extended.

2. On behalf of the husband it is submitted that the approach of the Court has been to refuse to extend time in even more compelling circumstances than this. It is submitted that the wife does not say that she did not consent, nor that she did not understand the agreement. It is submitted that the apparent unfairness of the rental clause is explained by it being a penalty provision. The clause was not intended to reflect market rent but was the price to be paid for the wife’s failure to comply with the other provisions of the orders – the sale of the property when the youngest child turned 18 years or became self-supporting. In fact the rent was payable in circumstances whereby the wife ignored correspondence and ignored her obligations under the order. In relation to the general circumstances of the case I am referred to the decision of Finn J in McIntyre & McIntyre (1994) FLC 92-468 in which her Honour was faced with a similar case in the sense that both section 79A and a review out of time were relied on to upset an order made by a registrar in terms consented to by the parties. As a general submission it is put that leave was refused in that case in circumstances whereby the property settlement outcome for the wife was clearly outside a permissible range and the wife was only 3 years late in bringing her application for review.

The approach in proceedings for extension of time to review

1. As a general proposition the Court has power to extend a time fixed by the Rules of court, within which a step must be taken, whether or not the time has expired.

2. Section 37A of the Family Law Act 1975 empowers the judges of the court to delegate powers of the court to Registrars. In relation to an exercise of delegated power by a Registrar, Subsection 37A(9) provides:

   (9)[Party may seek judicial review]  A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.

3. The judges have delegated certain powers to Registrars by the Rules of court since 1985. By r 18.06 of the current rules (Family Law Rules 2004) the judges delegate the power to make consent orders to Deputy Registrars and Registrars. A similar delegation existed in 1993. The current rules make provision at r 18.08 for review, and in Table 18.6, prescribe the time within which reviews of an exercise of power under r 18.06 are to be sought, as follows:

   [r 18.08]        r 18.08 Review of order
   18.08  A party may apply for a review of an order mentioned in an item of Table 18.6 by filing an Application in a Case (Form 2) and a copy of the order appealed from in the filing registry within the time mentioned in the item.

   Note:
   Chapter 5 sets out the procedure for filing an application in a case. The application for review will be listed for hearing by a Judge within 28 days after the date of filing of the application.

   Table 18.6  Orders that may be reviewed

   ….

   4         Order made by a Judicial Registrar, Registrar or Deputy Registrar exercising a power delegated under rule 18.06   - within 7 days after the Judicial Registrar, Registrar or Deputy Registrar makes the order

   …..

   Note:

   A person may apply for an extension of a time mentioned in Table 18.6 (see rule 1.14).

1. Thus in the terms of subsection 37A(9) there is a time within which a review is to be sought “prescribed by, ….. applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection”. There is however no express provision for the “further time … (to be) ... allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection” (emphasis added). It is clear from the note that follows Table 18.6 that the judges intended to make provision for such extensions. The reason for there being no express provision is given in the Explanatory Statement to the Family Law Rules 2004[1].

   [1] The Family Law Rules 2004  take a different approach to the extension of time to that adopted under the repealed rules. The Family Law Rules 1984, as they were when the property settlement orders were made in these proceedings and as they substantially remained until repeal in 2004, made both general provision for the Court to extend time (Order 3 rule 3) and specific provision for the Court or a Registrar to extend the time for the filing an application for review of a decision of a registrar (Order 36A rule 6). The change in approach is explained in the Explanatory Statement for the 2004 Rules as follows:

2. The Rules also include an express power to dispense with the requirements of the Rules (r 1.12).

3. Thus the Court has power to extend the time for filing an application for review. The matters to be taken into account in relation to the extension of time are discussed in many cases.

4. The relevant case law mainly addresses applications to extend time for filing an appeal. To quote the Full Court in dealing with that issue in In the Marriage of O'Bryen (2005) 33 Fam LR 25:

…. the applicant must satisfy the court of three things:

(1)that there is sufficient explanation for the failure to file and serve a notice of appeal within time;

(2)that there is a substantial issue raised by the grounds of appeal and that is one which will, if successful, materially affect the outcome of the case; and

(3)that any hardship occasioned to the respondent because of the delay can be compensated for, and any injustice to the respondent avoided, by orders as to costs or otherwise: see In the Marriage of McMahon (1976) 12 ALR 571; 2 Fam LR 11,267 and In the Marriage of Casson (1988) 12 Fam LR 455; (1988) FLC 91-962.

1. I am referred to a decision of Purvis J in In the Marriage of Sanders (1992) 17 Fam LR 103, wherein time to review consent orders made by a registrar was extended. In that case agreement was reached in November 1991 but the orders were not made until February 1992. The sealed copy of the orders did not reach the wife’s solicitors until after the time for review had expired. In his reasons for judgment at page 106 Purvis J said:

   “The extension of the time for review thus may be made by the court on such terms as the court thinks fit. The exercise of this discretion, however, is not at large and the principles to be applied are those akin to an application made pursuant to s 44(3) of the Family Law Act, …”

2. To the extent that the decisions in In the Marriage of O'Bryen and In the Marriage of Sanders require certain matters to be found by the Court then they would seem to be more prescriptive that the law permits.

3. Unlike the considerations in relation to leave under section 44(3), no criteria are prescribed for the extension of time for filing a review. As Purvis J said in Sanders, that does not mean that the exercise of discretion is at large. However, the ultimate question is not about an explanation for delay or hardship or prejudice. The only question is whether the extension of time will enable the Court to do justice between the parties.

4. There is a very useful discussion of the approach to proceedings for extension of time in the Full Court decision in In the Marriage of Tormsen (1993) 18 Fam LR 232 where at page 235 the Court said:

   ….
   The fundamental issue in application for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties: Hughes v National Trustee Executors and Agency Company of Australasia Ltd [1978] VR 257 at 262 per McInerney J cited with approval in Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. In that connection the court must weigh the right which the respondent to the application prima facie has to attain the benefit of the judgment: Vilenius v Heinegar (1962) 36 ALJR 200 at 201, and the desirability that there be finality of litigation: Ratnam v Cumarasamy [1964] 3 All ER 933 at 935. A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed: Shepperdson v Lewis [1966] VR 418 at 421,422 per O’Bryan J. But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation. As counsel for the appellant rightly pointed out, there is a analogy with applications for leave to institute proceedings under s 44(3) of the Family Law Act where the absence of an adequate explanation has been regarded as merely a factor to be considered: see In the Marriage of Althaus (1979) 8 Fam LR 169; [1979] FLC 91-233; In the Marriage of Carlon (1982) 8 Fam LR 729; [1982] FLC 91-272. Another example of the undesirability of fettering judicial discretion by reference to judge made rules is seen in relation to the admission of fresh evidence: In the Marriage of Abdo (1989) 12 Fam LR 861; [1989] FLC 92-013; In the Marriage of Cipars (1989) 13 Fam LR 793; [1990] FLC 92-122. His Honour may well have erred in treating the factors listed in McMahon as if they were legislative directions. However the husband did not merely fail to give an adequate explanation for the delay after 6 July 1992. He consulted solicitors in August 1992 and initiated proceedings, no doubt with the benefit of their advice, that sought to enforce the consent orders. Those proceedings were not withdrawn until the end of December 1992.

   It cannot be in the interests of justice that the husband be allowed on the one hand to affirm the consent orders by seeking their enforcement and when that tactic fails for whatever reason to bring desired results to the husband, to seek to have them set aside by way of appeal. It is true that if the husband was granted leave to appeal out of time the appeal would be bound to succeed because it would proceed as a hearing de novo in which the consent of the husband to the orders was withdrawn: Harris v Caladine (1991) 172 CLR 84; 14 Fam LR 593; [1991] FLC 92-217. But just as a failure to adequately explain the delay cannot be regarded as necessarily fatal, so the certainty of success because of the technical nature of the review process, cannot be regarded as conclusive. If it were otherwise, the principle that there be an end to litigation and the certainty of consent orders would be fatally imperilled. In this case having 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'’, see McHugh J at 480 in Gallo v Dawson, we are of the view that justice as between the parties requires that leave to appeal out of time should be denied.

The exercise of discretion

1. While no one criterion is either necessary nor sufficient for the granting of an extension of time, in deciding whether the extension of time will enable the Court to do justice between the parties it is appropriate to consider matters such as:

   ·the hardship for the wife if the time is not expended;

   ·any prejudice to the husband if the time is expended; and.

   ·the existence of an adequate explanation for delay.

2. The question of hardship is complicated. The case law on section 44(3) has it that hardship means not being able to make an arguable case of some significance (see In the Marriage of Whitford (1979) 4 Fam LR 754). Here the hardship would be the loss of access to a de novo hearing rather than a hearing under section 79A.

3. There are several matters to note. Firstly, in the literal sense, if the time is extended then the wife’s review would succeed. The orders made on 31 May 1993 were made by consent. A review is conducted de novo and presumably, the wife would not longer consent to the original orders. That is not the end of the matter, however. The fact of a review does not make the orders a nullity. As with any order of a superior court, the orders stand unless set aside (Harris v Caladine (1991) 14 Fam LR 593).

4. There is little doubt that orders framed in the manner of those made in this case would rarely, if ever, be made in defended proceedings under section 79. Orders allowing one party to remain in a jointly owned home for many years and for an eventual sale and division were a more regular outcome of property proceedings under the Matrimonial Causes Act 1959-1966. However, since 1976 the Family Law Act 1975 with its principle of finally determining the financial relationship between parties and avoiding further proceedings between them (section 81) have virtually done away with such orders.

5. Section 81 makes allowance for the practicability of finally determining the financial relationship but changes in social policy assisted in that aim. In the last years of the Matrimonial Causes Act social policy such as the establishment of the single parent pension and increased availability of subsidised housing through Housing Commissions made it possible for more separated wives to have a financially independent existence. With the imperative gone, the down-side of those occupation and delayed sale orders became apparent. They contributed to what was later described as the feminisation of poverty. With an allowance for the need to accommodate children for some years, a division of property around the time of separation might give a wife a chance of securing appropriate accommodation. A division, without that allowance, deferred until the children attained 18 years, usually resulted in a wife receiving insufficient funds for proper accommodation.

6. The ultimate result of the orders was often unfair. One can readily see the problem of identifying today, an appropriate division based on contributions and other matters including those set out in section 75(2), to come into force 14 years hence. In those 14 years further contributions will be made and the matters relevant to section 75(2) are likely to change. Some of that might justify correction under section 79A but there are limitations to the application of that section.

7. Next, there is real doubt that the exercise of judicial power in this case would pass muster under the principles discussed in Harris v Caladine. In that case Dawson J said at page 617:

   …

   In considering what order, if any, should be made under s 79, a court is required under sub-s (4) of that section to take a number of matters into account, including the various financial contributions made by the parties to the marriage. And sub-s (2) provides that a court shall not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to do so. The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met: see Jenkins v Livesey [1985] AC 424 at 437444.

8. Here the wife was unrepresented, she may not have even seen the final form of orders and there was no relevant financial information.

9. As to the apparent usurious nature of the rental clause. I understand that the application of the clause to the current value of the property puts the ‘rent’ at over $700 per week – far more than market rent for the property. On this point I agree with learned counsel for the husband. That provision is clearly not aimed at reflecting market rental. It is a penalty clause aimed at the mischief that occurred here – that the wife would wait out the period when she had use and occupation of the home and then do nothing about complying with her obligation to join in its sale.

10. It is worth repeating that the fact of hardship is not sufficient for an extension of time. In McIntyre Finn J was presented with circumstances whereby the orders sought to be reviewed about three years out of time, provided a wife in a long marriage with 10% of the net assets. In part the delay resulted from the wife being badly advised. Her Honour found that the outcome may well have been “outside the just and equitable range” and yet was not satisfied that without an extension of time the wife “would suffer a level of hardship such as would warrant or justify a reopening of the consent orders”.

11. While a division in the proportions 35% to the wife and 65% to the husband seems inappropriate, that outcome cannot be seen in isolation from the other parts of the parties’ arrangement. For 14 years the wife has had the use and occupation of the parties’ home, to the exclusion of the husband. Over those years the husband has paid nearly $45,000 in mortgage payments. True it is that under the orders those payments were traded against any child maintenance obligation.

12. In summary the orders have caused hardship to the wife. They should not have been made; neither the wife nor the Registrar had enough information to assess whether the orders fell within a proper range of outcomes under section 79; the arrangement for a deferred sale and the ultimate division would probably not have been ordered on a defended basis.

13. As to any prejudice to the husband, there would be some prejudice. Typical matters referred to in leave cases relate to the fact of financial and other arrangements made by a party in the knowledge that no further claim was possible and the problems inherent in litigating over events that occurred many years ago. I accept the submission made by his counsel to the effect that the husband does not have to point to a particular prejudice. The fact is that memories, records and witnesses become unavailable or unreliable through the effluxion of time. Here, through the wife’s inaction, nearly 14 years has been added to the 18 years that had passed from the date of marriage to the date of the orders. It is likely that over the years since 1993 the husband took decisions and made arrangements based on the fact that final orders were made and there was no challenge to them. He certainly made mortgage payments and went without the accommodation afforded by the former matrimonial home for those years.

14. There is no adequate explanation for delay. The problem for the wife’s case is that nearly 14 years have passed since the time she could have reviewed the exercise of power by the registrar, without an extension of time. She does not say that she did not understand the effect of the orders nor that she did not know the orders were made. She does not say that she was under a disability, such as through medical or mental illness at the time the orders were made or for the period since. She does not say that she took no action because of representations made by the husband that went beyond the terms of the orders.

Conclusion

1. Taken together I am satisfied that that justice as between the parties requires that leave to appeal out of time should be denied.

2. There is a requirement that a review be sought within 7 days of the making of orders by a Registrar. That requirement makes sense in the legislative scheme that aims to determine the financial affairs between parties to marriage breakdown and reflects the general requirement that there be an end to litigation. For the time to be extended it is not enough that one party would otherwise suffer hardship; that another judicial officer later considers that the original outcome does not reflect the intention of section 79; that there is no prejudice to the other party; and or that there is a proper explanation for delay. If that was enough then the legislation (here the Family Law Rules 2004), would so provide.

3. Here there is a measure of hardship because the orders are framed in a way that would not have been imposed on the wife in defended proceedings; Her ultimate share of the property may well be less than she would have attained on a defended hearing; the wife did not have legal advice; neither the wife nor the Registrar had sufficient information to allow an assessment of the propriety of the orders. On the other hand an extension of time would cause prejudice to the husband because he met his obligations under the orders; over the 14 years it is likely that he made decisions based on the impact of the orders; records, memories and perhaps witnesses would be less available after 14 years. There is no explanation for delay.

4. The application will be refused.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate: 

Date:  1 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DORFER & DORFER

“…
Rule 1.10:  Court may make orders
Instead of drafting the Rules from the perspective of the Court i.e. “the Court may order”, the Rules have been drafted from the perspective of the client i.e. “a party may apply”. Therefore this rule confirms that the Court has the power to make an order in relation to any matter set out in the Rules either on application or of its own initiative even if there is no application. This avoids constantly repeating throughout the Rules:

“the Court may order that ……….”;
“the Court may, on application, or on its own initiative order that ……………”
….
Rule 1.12:  Court may dispense with rules
Subrule (1). This rule is a general rule inserted to avoid the need to continually repeat the phrase “unless otherwise ordered” wherever that is applicable. This is a significant rule because it codifies the principle that even where a rule is framed in mandatory terms the court retains a discretion to order otherwise, even though the rule itself does not specifically say this.
….
Rule 1.14: Shortening or extension of time
Subrules (1) and (2) are the equivalent of O3r3 (FLR 1984).
….”