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 of 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

1. 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.

2. That the wife’s costs of this application are reserved to the trial judge.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the application in a case filed 18 January 2013 is otherwise dismissed.

3. The response to the wife’s application (although not filed) treated as an oral application by the husband this day is otherwise dismissed.

4. That the husband’s costs of this day are reserved to the trial judge.

5. 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

1. 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.

2. 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 the case guardian order on 23 March 2012. There were, at that time, other extant appeals. When the Full Court handed down its decision on 23 March 2012, it is apparent that the husband was seeking the Full Court also effectively exercise the powers under s 79A of the Act to set aside the orders of 23 April 2010.

3. The Full Court said that it was inappropriate that they do that.  The way I read their Honours’ judgment, it is clear they said it was inappropriate for an intermediate appeal court to exercise that power because the husband had a right to have his case heard anew.  That view was reinforced when Strickland J dealt with some applications by the husband for leave to appeal.  On 19 December 2012 Strickland J indicated very clearly that it was his view, sitting as a Full Court, that the orders made by consent in the Federal Magistrates Court were voidable.

4. There has been much discussion this morning about how the orders should be set aside. The Court has power under s 79A to set aside the orders, bearing in mind that it must exercise its discretion whether it sets the orders aside and that usually gives rise to consideration of whether or not some different order would be made. It seems to me, however, that if the order was set aside and a property trial was again ordered, the husband would have every opportunity to have his say and argue for a division of property under s 79 of the Act.

5. The husband is very unhappy about the fact that any litigation he has been involved in in this court has not gone according to the way he sees it should.  He says his appeals were intentionally delayed.  He says that in Adelaide, he is not going to get a fair hearing.  He makes complaints about judges who have heard his applications for disqualification where they have been dismissed.  I am not making any determination of any of that issue today.  That is not my function.

6. I have pointed out to the husband that there is a course of action under which the Deputy Chief Justice is responsible for the oversight of all complaints about judges.  On that basis, I will bring to the Deputy Chief Justice’s attention by virtue of the orders that I will make, that there are complaints and they should be investigated.  I return then to the issue at hand. 

7. On 30 November 2012, when the orders of the Federal Magistrates Court dividing the property were extant, it was ordered that the property, which was the subject of the earlier orders, be sold.

8. Consequent upon that order, a contract of sale was executed. It seems that there was also an order made under s 106A of the Act for a Registrar to sign on behalf of the husband in the event that he did not and that order has been carried out. There is now a pending settlement of the sale of the property. The application before me today is not in relation to that sale, but rather in relation to the production of the title.

9. The husband has not indicated any desire to hand over the title even if he had it.  The Registrar General of the Land Titles Office has indicated, by letters set out in the application that supports this application, that a new title will be issued and that office will carry out whatever needs to be done to ensure that the contract of sale is completed.  Having regard to the fact that I am effectively making orders to give effect to the orders of 30 November 2012, only subject to what the husband’s application may say I have to make the orders that are sought by the wife.

10. The Real Property Act 1886 (SA) defines court for the purposes of s 64 of that legislation, to include any court of the Commonwealth. Section 64 empowers a court to direct the Registrar General to issue or make any certificate in the register book of the Land Titles Office notwithstanding the relevant duplicate certificate of title has not been produced and to make such entries as may be necessary to give effect to any judgment, decree or order of that court.

11. Accordingly, there is the power for me to make the orders and the only question is why I should not. 

12. Dawe J made orders on 30 November 2012 for the sale.  Her Honour’s reasons for judgment indicate that consequent upon making the order for the sale, the husband sought a stay.  That stay application was considered and her Honour dismissed it.  I do not have power to override what her Honour has done.  The husband then made an application, as I understand it, for an expedition of his appeal against that order.  I have no indication in any material as to when that appeal would be heard or why it would be heard, bearing in mind that it is an interlocutory order and the husband would need leave.

13. On that basis I am giving effect to the orders that her Honour made on 30 November 2012.  That order would follow normally save for the response to that application which the husband relies upon.  His response was not filed because the registry in South Australia said that it could not be filed for a procedural reason.  For natural justice purposes, I have a copy of that response and I have considered it.  The husband told me when the proceedings commenced that he not only wanted those orders made but a further two orders as well.

14. The first order that he sought was that the contract of sale be deemed void.  He has also sought that order in the written document.  A second order he seeks, which is not in writing, is that these proceedings be stayed until 31 January 2013 when some setting aside proceeding is listed before Strickland J.  That is what I have been told his Honour has indicated he will hear and as such, even if the order was set aside it would not affect the order of Dawe J of 30 November.

15. I do not have power to stay Dawe J’s orders.  The stay should be dealt with by the judge who made the orders unless there are circumstances such as the absence of that judge.  The husband had the opportunity to be heard, although he may say otherwise.  Her Honour’s reasons quite clearly indicate that he was heard and on that basis, I do not see it appropriate for me to venture into the fifth order that he seeks.  The sixth order that he seeks is that there be a stay or that if a stay is not granted then a stay be granted of these proceedings pending an expedited appeal.

16. There is no basis for me to do that because I cannot stop the sale, other than by the exercise of discretion in refusing to direct to issue of a new title.  The husband said the house does not really mean anything to him.  This is about him getting money for his son’s education and he wants to be able to borrow against the title.  That would not be a basis for me to delay the orders that Dawe J made.  Indeed, that is not the application before me.

17. What I am being asked to do is to stay those proceedings pending the expedited application before the Full Court.  I do not know what the Full Court is going to do, but it seems to me there is no prejudice to the husband because the reality is he is not seeking the house anyway.  The husband also seeks orders that he be provided with the details of the purchaser.  Counsel for the wife indicated that that will be provided as part of a discovery process, but not before the sale.  Having regard to what I have just said, there seems to me to be no reason why those details should be provided before the sale.  I have no doubt that the husband is entitled to that information in due course because he alleges that the wife has done something to reduce the value by doing a deal relating to the sale.  No doubt that will come out in the fullness of time. 

18. The other orders that the husband seeks is that the wife be restrained from entering into a contract of sale.  I cannot make that order because she has already entered into the contract and the evidence before me shows that the settlement of the sale is tomorrow. 

19. There is a further order sought that the contract of sale, if it has been entered into, using his words, absent the course of natural justice, be declared void.  I could not do that without the purchasers obviously having some say.  They have entered into a contract presumably at arm’s length and until I was convinced otherwise, this Court does not have power to enter into that commercial arena without the third parties being properly heard.  On that basis there is no reason for me to make that order. 

20. The husband also seeks that the wife be restrained from being within a kilometre of that property. Having regard to the orders of 30 November 2012 there is no evidence that would entitle me to exercise the powers under s 114 of the Act, such as I could find that that order was proper.

21. The final order, subject to the question I will mention in a moment of costs, is that the solicitor for the wife be accountable for costs that arise from this application.

22. Having read the affidavit of the husband about his complaints about the solicitor, Ms Hicks, those are matters that are more appropriately raised on a costs application.  A costs application would normally only follow when the substantive proceedings were heard, including these proceedings.  I shall deal with that problem if and when the time arises. 

23. The final matter is that the husband seeks that the court discontinue the reference in any proceedings, including these reasons, to “husband and wife” and he wants a more formal title of his own name or “ex-husband” used.  I have explained to him that I use the husband and wife reference purely for convenience purposes.  That is not an order that I would, therefore, propose to make today. 

24. Accordingly, I propose to make orders in terms of paragraph 2, removing the words “in the alternative”.  And I will have that order expedited.  I otherwise dismiss the application for orders set out in the response, which I will have placed on the court file.  I will ask that these reasons be expedited.  In the matter of Forster I make the following orders:

    
    
    

ORDER DELIVERED

1. I will make a direction that the court do all things within its power to gather together any complaints by the husband relating to the conduct of the court, its staff and judicial officers and that those matters be brought to the attention of the Deputy Chief Justice along with a copy of these reasons this day. 

2. I otherwise dismiss the application in a case and refuse the orders sought by the husband as I have indicated.

RECORDED   :   NOT TRANSCRIBED

1. I would propose to reserve both parties’ costs of the day, but particularly those of the wife. I do not know that I can reserve the husband’s costs unless there are legal costs incurred, his out-of-pocket expenses are not matters that fall within s 117 of the Act, so there is not a lot I can do about that. But I am certainly prepared to reserve his costs for the trial judge to determine and also the wife’s. I should also certify for counsel.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 January 2013.

Associate: 

Date:  11 February 2013