Forster v Forster

[2013] HCASL 98

FORSTER

v

FORSTER

[2013] HCASL 98
A4/2013
A5/2013

1. On 23 April 2010, Lindsay FM made orders in the Federal Magistrates Court in property proceedings, brought under the Family Law Act 1975 (Cth), by a wife (the respondent in this Court) against her husband (the applicant in this Court). Those orders relevantly provided for the husband to pay the wife an amount of $349,600.

2. At the time the property application was argued and decided, the husband was represented by a litigation guardian appointed by Lindsay FM by order made on 19 December 2008.

3. On 24 September 2010, Strickland J granted the husband an extension of time within which to appeal to the Family Court of Australia against a number of orders made by Lindsay FM, including the order appointing a litigation guardian.  Strickland J subsequently ordered the husband to pay the costs of the application for extension.

4. On 23 March 2012, the Full Court of the Family Court set aside the orders of Lindsay FM appointing a litigation guardian for the husband.

5. On 19 December 2012, Strickland J declared that a parenting order to which the litigation guardian had consented, the property settlement orders made on 23 April 2010, a subsequent variation of those orders made on 1 October 2010 and a costs order made on 6 December 2011 were all "voidable".  His Honour also refused the husband's application to extend the time to file an appeal against the parenting order to which the litigation guardian had consented.

6. On 15 January 2013, Strickland J dismissed with costs an application made by the husband for Strickland J to disqualify himself from hearing any further application in the matter.

7. The wife then applied on 31 January 2013 for orders setting aside each of the property settlement and costs orders that Strickland J had declared to be "voidable", and applied for fresh orders to the same effect as those which she sought to have set aside.  On that day Strickland J set aside the property settlement and costs orders earlier declared to be "voidable" and adjourned the further hearing of the application for orders in substitution for those set aside.

8. On the same day, Strickland J also made orders dismissing applications the husband had made in relation to appeals he had instituted, or sought to institute, against the property settlement orders and the associated costs order.  Strickland J dismissed the appeals.

9. The husband now seeks special leave to appeal against the orders made by Strickland J in the proceedings including, in particular, the orders made on 31 January 2013 and the orders refusing the husband's disqualification application with costs.

10. The husband has filed two applications for special leave, one of which requires an extension of time.  There is a deal of duplication in the two applications but it is not necessary to disentangle the two.

11. As the husband does not have legal representation, the applications fall to be dealt with under r 41.10 of the High Court Rules 2004.

12. None of the orders which the husband seeks to challenge in this Court finally disposes of the property issues that remain pending between the husband and wife.  No question of disputed general principle would fall for consideration if special leave to appeal were to be granted.

13. It is not in the interests of justice, whether generally or in the circumstances of this case, that there be a grant of special leave to appeal.

14. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing each application.

K.M. Hayne
21 June 2013
 Amended 13 August 2013 S.M. Crennan