Forster and Forster

[2013] FamCA 47

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER [2013] FamCA 47

FAMILY LAW - INITIATING APPLICATION – where the wife seeks to set aside orders declared to be voidable and then seeks orders for property settlement – where the husband opposes the application – orders set aside.

Family Law Act 1975 (Cth) – s 79A

Taylor & Taylor (1979) FLC 90-674

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 31 January 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 31 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs West

SOLICITOR FOR THE APPLICANT: Catherine Hicks & Co

FOR THE RESPONDENT: In person

Orders

1. Upon the oral application of the wife paragraph 1 of the order sought in the Initiating Application filed on 17 January 2013 be amended to also refer to paragraph 3 of the order made on 1 October 2010 as being sought to be set aside.

2. Upon the oral application of the wife paragraph 2 and the first line of paragraph 3 of the Initiating Application filed on 17 January 2013 be struck out.

3. As sought in paragraph 1 of the Initiating Application filed on 17 January 2013 as now amended, paragraphs 1 to 4 of the orders made on 23 April 2010, paragraphs 1 and 3 of the order made on 1 October 2010 and paragraph 1 of the order made on 6 December 2011 be set aside.

4. The balance of the Initiating Application filed by the wife on 17 January 2013 and the Response filed by the husband on 25 January 2013, SAVE AND EXCEPT insofar as that Response sought the dismissal of paragraph 1 of the Initiating Application, be referred to a Registrar for the purposes of listing for trial before a Judge of this Honourable Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

File Number: ADC 3359 of 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In accordance with my order of 15 January 2013, and in particular paragraph 4 of that order, I now have before me an Initiating Application filed by the wife seeking in effect that certain orders previously made be set aside, and then seeking orders for property settlement.

2. In discussion with Mrs West, counsel for the wife, it has become apparent that the orders sought need to be amended and Mrs West has now made an oral application to that effect.  That application, as expressed by Mrs West, was first, to amend paragraph 1 to include paragraph 3 of the order made on 1 October 2010 as an order to be set aside, secondly, to strike out paragraph 2 of the orders sought, and thirdly, to strike out the first line of paragraph 3.

3. The oral application is opposed by Mr Forster, (“the husband”).

4. Dealing with the three parts of the application.

5. Given my findings as set out in my reasons for judgment delivered on
   19 December 2012, that the order for property settlement made on 23 April 2010, as varied by the orders made on 1 October 2010, are voidable, it was necessary for the wife to include all paragraphs of those orders in this application to set aside.  By oversight the wife omitted to include paragraph 3 of the order made on 1 October 2010.  However, it is apparent that that paragraph of that order is voidable, as well as, for example, paragraph 1 of that order.  Certainly my reasons for judgment delivered on 19 December 2012 make that point.  Given that, it is appropriate to amend the application in the way sought in that regard.

6. The second part of the application is to strike out paragraph 2.  For the life of me I do not understand why the husband would object to that, but he has.  As I have explained to Mrs West it is not possible to set aside a judgment; what is set aside is orders.  Thus the order sought in paragraph 2 simply cannot be made and it is appropriate that it be struck out, and I will do so.

7. Next, with paragraph 3, which comprises an application for an order for property settlement, as I pointed out to Mrs West that is not a rehearing of the application; it is indeed a new order sought, subject to the original order for property settlement being set aside.  To clarify that, and to put it in proper context, the application is to strike out the first line of paragraph 3.  Again, in my view, it is entirely appropriate that that be done.

8. As I have foreshadowed for some time, at least as far back as when I delivered by reasons for judgment on 19 December 2012, and indeed in that judgment itself, as a result of finding that orders that were made when the Litigation Guardian appeared are voidable, there were three choices that flowed from that finding in relation to those voidable orders.  One was for an application to be made to set aside those orders on the grounds that they are voidable.  As I explained in my reasons for judgment of 19 December 2012, in my view that was the appropriate course of action to take in this matter.

9. The second alternative was for an appeal to be filed and pursued against the orders that were found to be voidable.  In my view that appeal would be limited to seeking that those orders be set aside.  In other words, having the same effect as what I will call a simple application to set aside those orders.  However, as I accepted when this matter was raised again on 15 January 2013 in the context of an adjournment application by the wife to enable her to bring the application that is before me today, it is readily apparent that if an appeal was pursued there would be significant delays in that being finalized, as opposed to, and I use this phrase advisedly, a simple application to set aside. 

10. The third option was an option initially raised as I recall by counsel for the wife as a possibility, and was for an application to be made pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside the order for property settlement, being one of the orders that I have now found to be voidable. As I indicated though in my reasons for judgment, such a course would be inappropriate given that it could only deal with the order for property settlement, and could not deal with any of the other orders that I found were voidable.

11. Thus, for any number of reasons I confirm that the appropriate course in this case is for an application to be made to set aside the voidable orders, as opposed to pursuing an appeal.

12. As I have said in my reasons for judgment, certainly on 15 January 2013 in relation to the adjournment application, and as I may have referred to in my reasons for judgment delivered on 19 December 2012, but I cannot immediately recall whether I did so or not, it is a well known fact that the husband is keen, and has been keen, to pursue an appeal because he has other issues which he seeks to raise, and in particular in relation to how the Litigation Guardian handled his case.  As I have attempted to explain to the husband, in my view those issues would not be able to be aired through the appeal process.  To repeat as I have said before, I would expect the Full Court seized with that appeal would only deal with the issue of setting aside.

13. I now turn to the application before the court.

14. In support of that application Mrs West has referred me to the High Court decision of Taylor & Taylor (1979) FLC 90-674 where the ability of this court to make orders pursuant to the inherent jurisdiction to set aside orders was confirmed.

15. I have no doubt that I have the power to make an order setting aside orders that have been found to be voidable, and in addition to the case of Taylor I also refer to the High Court decisions which I set out in paragraph 29 of my reasons for judgment of 19 December 2012.  Although that paragraph dealt with the issue of whether voidable orders could be set aside by an appeal process, it is quite apparent from the High Court decisions therein referred to, that apart from an appeal process it was open to a judge of a superior court of record to set aside orders that are found to be voidable. 

16. The husband has opposed making that order and in paragraph 1 of his Response filed on 25 January 2013, he has sought the dismissal of the Initiating Application.  As is obvious, and as I have explained to the parties, I am only dealing with the application within the Initiating Application wherein the orders are sought to be set aside.  The husband I note has sought other orders in his Response and just as I am not dealing with the application for property settlement now made by the wife, I am not dealing with the further orders sought by the husband in his Response.  I have explained to the parties that those matters will be the subject of further orders that I will make today to move the proceedings along the case management pathway.

17. For the husband’s benefit I note that in dealing with paragraph 1 of the Initiating Application as it now reads, and in dealing with paragraph 1 of his Response, I am sitting as a Judge at first instance, not as an appeal Judge.

18. Initially today the husband sought leave to amend his Response to seek summary dismissal of the application. I have indicated to the husband that there is no need for that because that is in fact what is happening here; I am hearing not only the application, but his application in his Response to dismiss it, in other words, in a summary fashion. In any event the husband in his opposition to the application has suggested that this is an order that cannot be made, and the only way it can be made is either through the appeal process, i.e. by a Full Court hearing an appeal against the orders sought to be set aside, or if an application is made pursuant to s 79A of the Act. The husband has said quite rightly that property settlement orders once made are final and they can only be, he says, set aside by an application under s 79A, or by an appeal process where an error is found by the trial Judge or the Federal Magistrate, whoever has heard the application. However, what he has overlooked is that I have found that the orders the subject of this application are voidable for the reasons I have set out in extenso in my reasons for judgment delivered on 19 December 2012.  Indeed, if the husband was able to take a step back he would realise and appreciate that this process was started by him.  He is the one who raised the issue of the Litigation Guardian, he is the one who appealed against the orders appointing the Litigation Guardian, and he is the one who was successful in having the Full Court set aside those orders.  The only consequence of that result is either the orders that were made with the involvement of the Litigation Guardian were void or voidable.  I have found that they are voidable.  Having found that they are voidable that enables this court to receive and hear an application to set aside the orders that are voidable, for the reasons that I have explained today, and on the authority of the cases to which I have referred.

19. As I have said, and I repeat, it seems to me that the husband has another agenda and that relates to his concern about the behaviour and conduct of the Litigation Guardian.  However, that cannot be a concern of mine in terms of the application that is before me now.

20. On the basis that I have found that the orders are voidable, and on the basis that I have no doubt that I have the power to set aside those orders, I propose to make an order in terms of paragraph 1 of the Initiating Application filed by the wife on 17 January 2013.

21. I propose now to address the balance of the Initiating Application filed by the wife on 17 January 2013, and the balance of the Response filed by the husband on 25 January 2013.

22. As I have indicated to Mrs West and the husband, as I understand it, Justice Cronin from the Melbourne Registry will be available to manage this matter and to hear the trial, and his Honour has indicated that the trial may be able to be heard in May 2013.  His Honour has also indicated that he would need to conduct a directions hearing which will take place either by telephone or video link.  Therefore the only order that I propose to make to move the matter along the case management pathway is to refer the balance of the Initiating Application and Response to a Registrar for listing before a Judge of this Court.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 31 January 2013.

Associate:     

Date:              8 February 2013