Forster & Forster & Anor (No 2)
[2013] FamCAFC 21
•31 January 2013
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER AND ANOR (NO. 2) | [2013] FamCAFC 21 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the first respondent seeks to have the orders made on 19 December 2012 amended under Rule 17.02 of the Family Law Rules 2004 (Cth) to include a declaration that the consent parenting order made on 16 March 2009, the property settlement orders made on 23 April 2010 (as varied by the order made on 1 October 2010), and the costs order made on 6 December 2011 in favour of the wife were voidable – order amended as sought. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the first respondent seeks a dismissal of the applications in an appeal or those parts of the applications in an appeal and the appeals or those parts of the appeals now before the court – where the applicant opposes the orders for dismissal as sought by the first respondent – where there is no utility in any of the remaining applications in an appeal or Notices of Appeal proceeding – applications in an appeal and Notices of Appeal dismissed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – COSTS – where the first respondent makes an oral application for costs in relation to the orders made dismissing the various applications in an appeal and Notices of Appeal filed by the applicant – where the quantum of costs sought is not able to be provided – where the first respondent seeks an adjournment – where it is appropriate to grant the adjournment in order that the court and the applicant can be advised of the quantum of costs sought – application adjourned. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 17.02 |
| APPLICANT: | Mr Forster |
| FIRST RESPONDENT: | Ms Forster |
| SECOND RESPONDENT: | Crown Solicitor’s Office |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBER: | SOA | 44 & 46 | of | 2010 |
| SOA | 60 | of | 2012 | |
| SOA | 91 | of | 2012 |
| DATE DELIVERED: | 31 January 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 31 January 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 November 2012 |
| LOWER COURT MNC: | [2012] FamCA 1028 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATES: | 16 March 2009 23 April 2010 |
| LOWER COURT MNC: | NA – consent orders [2010] FMCAfam 395 [2011] FMCAfam 1310 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mrs West |
| SOLICITOR FOR THE FIRST RESPONDENT: | Catherine Hicks & Co Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Ms Watson |
Orders
SOA 44 of 2010, SOA 46 of 2010 and SOA 60 of 2012
Pursuant to Rule 17.02 of the Rules the order made on 19 December 2012 be amended to include an order numbered 2 as follows:
(2)The consent parenting order made on 16 March 2009, the property settlement orders made on 23 April 2010 (as varied by the order made on 1 October 2010), and the costs order made on 6 December 2011 in favour of the wife, be declared voidable.
SOA 44 of 2010
That part of paragraph 1 of the amended application in an appeal filed by the husband on 27 July 2010 seeking an extension of time to appeal against final property settlement orders made on 27 October 2010 by Federal Magistrate Lindsay be dismissed.
The application in an appeal tendered and filed by the husband on 31 January 2013 be dismissed
SOA 46 of 2010
The Notice of Appeal filed on 14 July 2010 and the application in an appeal filed on 10 August 2010 be dismissed.
SOA 60 of 2012
That part of the Notice of Appeal filed on 13 August 2012 against the order made by Federal Magistrate Lindsay on 6 December 2011 providing that the husband pay the wife’s costs of and incidental to the property settlement proceedings fixed in the sum of $40,000 be dismissed.
SOA 91 of 2012
The applications in an appeal filed by the husband on 15 January 2013 be dismissed.
AND IT IS FURTHER ORDERED THAT:
The oral application for costs made by the wife and further consideration of that part of the Notice of Appeal filed by the husband on 13 August 2012 against the order for costs made in favour of the Litigation Guardian by Federal Magistrate Lindsay on 6 December 2011 be adjourned to 9:30am on Tuesday 26 February 2013.
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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 44 & 46 of 2010, SOA 60 of 2012 & SOA 91 of 2012
File Number: ADC 3359 of 2007
| MR FORSTER |
Applicant
And
| MS FORSTER |
First Respondent
And
| CROWN SOLICITOR’S OFFICE |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
I have before me an oral application by the wife to amend the orders that I made on 19 December 2012 to include a declaration that the orders that I found were voidable are voidable.
That application is made pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) (“the Rules”) which permits a judicial officer to rectify an error in orders.
I consider that the omission of a declaration was an error in the order that I made. It is beyond doubt that in my reasons for judgment delivered on
19 December 2012, I found the orders made with the involvement of the Litigation Guardian were voidable. It was then appropriate and necessary for a declaration to be made to that effect in order to formally complete the exercise.Mr Forster has opposed me proceeding under Rule 17.02 and amending the orders pursuant to what is called the slip rule. Mr Forster has indicated that he opposes it because it introduces different wording, in other words as I have explained it, it turns a finding into a declaration. In my view that is not a basis for opposing the application of the slip rule and it is appropriate to amend the orders in accordance with the slip rule for the reasons I have expressed.
Accordingly, on the oral application of the wife, and pursuant to Rule 17.02 of the Rules the order made on 19 December 2012 be amended to include an order numbered 2 as follows:
2.The consent parenting order made on 16 March 2009, the property settlement orders made on 23 April 2010 (as varied by the order made on 1 October 2010), and the costs order made on 6 December 2011 in favour of the wife, be declared voidable.
Having made the orders that I have in the first instance file, and in particular the order setting aside the orders that I have declared are voidable, it then became appropriate to address the matters that I adjourned to today namely, the various applications in an appeal filed by Mr Forster, and his appeals. What I am referring to there, and for ease of reference, are set out in paragraph 1 of my reasons for judgment delivered on 19 December 2012.
First, in SOA 44 of 2010 there is paragraph 1 of the amended application in an appeal filed by the husband on 27 July 2010 seeking an extension of time to file an appeal against final parenting orders made on 16 March 2009, and final property settlement orders made on 23 April 2010 by Federal Magistrate Lindsay.
Pausing there, I have already dealt with that part of that application seeking an extension of time to file an appeal against the final parenting orders, and indeed I dealt with that in my reasons for judgment delivered on 19 December 2012, and one of the orders I made on that day was to dismiss that part of the application. What is thus outstanding is that part of the application seeking an extension of time to file an appeal against final property settlement orders made on 23 April 2010 by Federal Magistrate Lindsay.
Secondly, in SOA 46 of 2010 there is a Notice of Appeal filed on 14 July 2010 against orders made by Federal Magistrate Lindsay on 22 June 2010, refusing a stay of the orders for property settlement made on 23 April 2010, and by way of enforcement of those orders.
In that same file there was also, and still outstanding, an application in an appeal filed on 10 August 2010 seeking an extension of time to file a draft appeal index in relation to the Notice of Appeal filed on 14 July 2010.
Thirdly, and finally, in SOA 60 of 2012 there is a Notice of Appeal filed by
Mr Forster on 13 August 2012, but dated and sent to the Appeal Registry on
3 January 2012, against the orders made by Federal Magistrate Lindsay on
6 December 2011. Pausing there, there are two relevant orders made by Federal Magistrate Lindsay on that day. One was that the husband pay a certain amount of costs to the wife, and the other was an order that the husband pay a certain amount of costs to the Public Trustee in the Public Trustee’s capacity as his Litigation Guardian. The appeal against the latter order must remain for the time being given that, as I have indicated earlier today to Mrs Watson who appeared for the Public Trustee, reflecting upon the matter, I have determined that that order was not in fact voidable; it was an order in a completely different category from the other orders that I have declared voidable. That order was made upon the application of the Litigation Guardian seeking their costs as Litigation Guardian for the husband. Thus it was not a situation of an application where the Litigation Guardian was acting in place of the husband. Given that the order made is not voidable for the reasons that I have found the other orders to be voidable. It may be that there are other difficulties with that order, but the position now is that Mrs Watson will be seeking instructions as to what action the Public Trustee will ultimately take. Accordingly, on the basis that that order remains, and I have not declared it to be voidable, the appeal against it can also remain for the time being. Thus, I am only now dealing with that part of the Notice of Appeal which seeks to appeal against the order made by Federal Magistrate Lindsay whereby the husband was ordered to pay costs to the wife.Mrs West has sought a dismissal of the applications in an appeal or those parts of an application in an appeal, and the appeals or those parts of the appeals which are now before me, and which I have just identified.
In relation to the application in an appeal to extend the time to file an appeal against the property settlement orders Mrs West says there is no longer any utility in that application remaining given that the order for property settlement has now been set aside.
Mr Forster disputes that. He says that he has not been given justice; he says he has not been given a hearing by this court; he says that he has been prejudiced by the process that has occurred; he says he has lost his house, he has lost his possessions, and he seeks, and these are my words, justice and redress in relation to those matters. However, the fact is that none of those matters would be able to be pursued in an appeal if I granted an extension of time to appeal against the orders made on 23 April 2010 because I have set aside those orders.
In these circumstances I agree entirely that there is no utility in that application being pursued. I am comforted in that finding by the knowledge that the wife has now made an application for property settlement and the husband has joined in that application, and that all issues of property settlement including what has happened in the past will be brought to account in that application when it is ultimately heard by a Judge of this Court. I therefore propose to dismiss the application in an appeal.
Turning to the Notice of Appeal filed on 14 July 2010, there are two aspects to that Notice. First, it seeks to appeal against an order refusing a stay of the orders for property settlement made on 23 April 2010. Pausing there, Mrs West has made the same submission that there is no utility in allowing that appeal to proceed and she asks that it be dismissed.
Mr Forster has opposed the order for dismissal sought by Mrs West for the same reasons as I have set out earlier in these reasons. I note that Mr Forster opposes all other applications made by Mrs West for the same reasons, and I do not therefore propose to repeat those reasons in respect of each matter that I now deal with.
For the same reasons as I have indicated in relation to the application that I have just dealt with, there is absolutely no point in allowing an appeal to proceed against a refusal of a stay of orders that have now been set aside. Those orders are no longer in existence and there is no basis for any stay in relation to those orders. I therefore propose to dismiss that part of the Notice of Appeal for those reasons.
The second aspect of that Notice of Appeal is seeking to appeal against orders made by way of enforcement of the orders of 23 April 2010. Mrs West seeks the dismissal of that part of the Notice of Appeal as well for much the same reasons. She says there is no utility in the appeal proceeding given the orders the subject of the enforcement order have now been set aside, the enforcement order has now been executed, and the matters pertaining to the orders for property settlement will be addressed in the property settlement application that the wife has now made in the sense that the historical matters as to the property of the parties will be taken into account by the trial judge.
Again, I agree with that submission and I also propose to dismiss that part of the appeal.
Next, there is the application in an appeal filed on 10 August 2010 seeking an extension of time to file a draft appeal index in relation to the Notice of Appeal filed on 14 July 2010. Mrs West seeks to dismiss it, and again the husband opposes it for the reasons I have already indicated. In my view there is no utility in allowing that application to proceed given that I propose to dismiss the Notice of Appeal itself, and also as I have set aside the orders made on 23 April 2010 out of which the appeal and this application have arisen.
Finally, there is that part of the Notice of Appeal filed on 13 August 2012 seeking to appeal against the order made by Federal Magistrate Lindsay on
6 December 2011 whereby the husband was ordered to pay a certain amount of money to the wife. Mrs West seeks that that be dismissed for the same reasons she has outlined before and Mr Forster again opposes it for the same reasons he has previously given.For the same reasons that I have already indicated, there is also no utility in allowing that appeal to proceed given that I have set aside the order for costs. I observe that I am somewhat bemused by Mr Forster’s opposition to that given that by setting aside the order he does not have to pay the $40,000 or thereabouts that he was obliged to pay. In any event he has opposed it and I am required to deal with it. To repeat, there is no utility in allowing that part of the appeal to proceed and I propose to dismiss it.
Next, I have raised the issue of two applications in an appeal which were provided to the court by Mr Forster, and which I treated on 15 January 2013 as being filed on that day. I adjourned those applications to today because as I set out in my reasons for judgment delivered on 15 January 2013, Mrs West’s client had not received those applications and obviously had not had any time to consider them. I adjourned further consideration of those applications to today being the first day, as I explained to Mrs West and Mr Forster, that I was available to hear any application in this matter, and any other application in any other matters in this court. In any event I have raised those two applications today, and Mr Forster has said, to use his words, “they’re moot”. In response to my question then as to whether they can be dismissed he has indicated “yes”.
Mrs West does not oppose that and I propose to dismiss those two applications.
Next, Mr Forster has sought to file an application in an appeal dated 28 January 2013 seeking an extension of time to file an appeal in relation to three orders made respectively on 1 October 2010, 20 April 2012 and 16 March 2009. There is an affidavit sworn on 27 January 2013 in support of that application in an appeal. That application has not been formally listed before me today, but I am prepared to deal with it.
Mr Forster first seeks to pursue an appeal against the orders made on 1 October 2010. They are the orders where the property settlement order was varied. I have this morning set aside the relevant paragraphs of that order and therefore in my view there is nothing left to appeal against, and the application must be dismissed.
Secondly, Mr Forster seeks to appeal against orders made on 20 April 2012 where the Federal Magistrate transferred the matter to the Family Court. However, the legislation does not permit an appeal against orders for the transfer of proceedings between the Federal Magistrates Court and the Family Court. Thus, I propose to dismiss that application.
The third order the subject of this application is the order of 16 March 2009 which is the parenting order. I have already dismissed Mr Forster’s application in an appeal to extend time to file an appeal against that order. There is no basis for permitting a further application in an appeal to be made against that order. Therefore I also propose to dismiss that application.
I now have before me an oral application by the wife for costs in relation to the orders that I made dismissing the various applications in an appeal and Notices of Appeal filed by Mr Forster. Mrs West is not in a position to advise the court of the costs sought at this stage, and she has asked that that application be adjourned. That is appropriate given that notice has to be given to Mr Forster of the amount of costs sought, and the reasons for it. I therefore propose to adjourn the oral application for costs made by the wife to 9:30am on 26 February 2013. I note that that listing is after the 22 February 2013 when Justice Dawe has this matter before her, and recalling the matters I raised with Mrs Watson earlier today, it may be convenient if the appeal against the order for costs made in favour of the Litigation Guardian is to be dealt with, that it be listed on that day as well.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 31 January 2013.
Associate:
Date: 25 February 2013
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