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

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

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.
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.
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.
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

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.
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.
The oral application is opposed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Forster and Forster [2013] FamCA 47
Case: [2013] FamCA 47
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Forster (the wife) sought to set aside previous orders and then obtain property settlement orders, which Mr Forster (the husband) opposed. The court was required to determine whether to grant the wife's application to amend her initiating application and to set aside certain prior orders. The husband opposed these applications.

The court was asked to consider the wife's application to amend her initiating application to include an additional order from 1 October 2010 as voidable, and to strike out certain paragraphs of her application. The central legal issue was whether the court had the power to set aside previously made orders that had been found to be voidable, and whether the wife's application was the appropriate procedural mechanism for achieving this. The husband contended that such orders could only be set aside through an appeal process or an application made pursuant to section 79A of the *Family Law Act 1975* (Cth).

Justice Strickland, applying the principles established in *Taylor & Taylor* and other High Court decisions, affirmed the court's inherent jurisdiction to set aside voidable orders. His Honour found that the orders in question were indeed voidable, as determined in previous reasons for judgment. Consequently, the court allowed the wife's application to amend her initiating application to include the additional voidable order and struck out the specified paragraphs. The court also noted that the husband's opposition to striking out paragraph 2 of the wife's application was unfounded, as judgments themselves are not set aside, but rather the orders made. The balance of the initiating application and the husband's response, save for his request for dismissal, were referred to a Registrar for listing for trial.

Orders