Forster and Forster (No. 2) - [2013] FamCA 50

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 2)

[2013] FamCA 50

FAMILY LAW – ENFORCEMENT - Enforcement order

Family Law Act 1975 (Cth)
Real Property Act 1986 (SA)

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

FILE NUMBER:

ADC

3359

2007

DATE DELIVERED:

23 January 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide/Melbourne video link

JUDGMENT OF:

Cronin J

HEARING DATE:

23 January 2013

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Hicks

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co

Orders

That notwithstanding the duplicate Certificate of Title Register Book Volume … Folio … to the real property at … P Street, Adelaide Suburb N in the State of South Australia has not been produced to the Registrar-General of the Lands Title Office, the said Registrar-General is directed to issue a new Certificate of Title pursuant to s 64 of the Real Property Act 1886 (SA) to the purchasers of the said property.
That the wife’s costs of this application are reserved to the trial judge.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That the application in a case filed 18 January 2013 is otherwise dismissed.
The response to the wife’s application (although not filed) treated as an oral application by the husband this day is otherwise dismissed.
That the husband’s costs of this day are reserved to the trial judge.
That THE COURT REQUESTS that the Deputy Chief Justice of the Family Court of Australia investigate any complaint made by the husband relating to the conduct of these proceedings and any other proceedings about which written complaint has been made by the husband.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 2) 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 MELBOURNE

FILE NUMBER: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

REASONS FOR JUDGMENT

I propose to make the orders in terms of paragraph 2 of the application of the wife filed 18 January 2013. I shall return to the husband’s response to that in a moment. The history of this case does not need to be reiterated. Having regard to the discrete nature of the application I need only look at two particular concepts. The first is that orders were made by a Federal Magistrate on 23 April 2010 which, it seems, exhausted the powers under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) relating to the division of property. Those orders were made apparently by consent and at a time when there was an extant case guardian order.
Mr Forster, (“the husband”), as the respondent, has consistently complained since 2008 that he was excluded from the proceedings by virtue of the case guardian order. It took a long time but he eventually appealed and the Full Court set aside…

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.

Continue reading Forster and Forster (No. 2)

Details

AGLC: Forster and Forster (No. 2) [2013] FamCA 50
Case: [2013] FamCA 50
Decision Date

CaseChat Overview and Summary

In *Forster & Forster (No. 2)*, the Family Court of Australia considered an application by the wife for an order directing the Registrar-General of the Land Titles Office to issue a new Certificate of Title for a property, notwithstanding the duplicate Certificate of Title had not been produced. The husband, appearing in person, had raised numerous objections and sought various orders, including that the contract of sale be deemed void and that proceedings be stayed. The court was asked to give effect to prior orders made for the sale of the property.

The primary legal issue before the court was whether it had the power to direct the Registrar-General to issue a new Certificate of Title under section 64 of the *Real Property Act 1886* (SA), and if so, whether it should exercise that power. The court also considered the husband's various applications, including requests to void the sale contract, stay proceedings, and obtain details of the purchaser, in light of existing orders for the property's sale.

Justice Cronin found that the *Real Property Act 1886* (SA) defines "court" to include any Commonwealth court, and section 64 empowers such a court to direct the Registrar-General to issue a new certificate of title even if the duplicate has not been produced, to give effect to a judgment, decree, or order. The court noted that prior orders had been made for the sale of the property, and the current application was to facilitate the completion of that sale. The husband's objections and alternative applications were largely dismissed, as they either sought to override existing orders that the court had no power to vary, were not supported by evidence, or were premature. The court also noted the husband's ongoing complaints about the conduct of proceedings and ordered that these be brought to the attention of the Deputy Chief Justice for investigation.

The court ordered that the Registrar-General be directed to issue a new Certificate of Title to the purchasers of the property. The wife's costs of the application were reserved to the trial judge, as were the husband's costs. The husband's application and his oral response were otherwise dismissed. The court also noted that publication of the judgment under a pseudonym had been approved.

Orders