Frere & Frere

In the Family Court of Australia, Mr Frere (the applicant husband) and Mrs Frere (the respondent wife) presented several issues arising from their application concerning property settlement orders made by consent on 30 August 2005. The primary dispute centred on the implementation of Order 15, which detailed a process for dividing personalty, involving a referee. The parties agreed that the original referee had not correctly implemented the process, leading to a breakdown in its execution and subsequent attempts to substitute or modify the process.

The court was required to determine whether to grant the husband leave to amend his application to seek variation of Order 15 under section 79A(1)(b) of the Family Law Act 1975 (Cth) on the ground of impracticability. Additionally, the court had to decide whether the process for dividing the personalty under Order 15 should commence afresh with a new referee or continue from where it left off with the previous referee. Finally, the court needed to address the parties' applications for costs.

Justice Rose granted the husband leave to amend his application, acknowledging that while the original process might not be inherently impracticable, unforeseen circumstances during its implementation could lead to such a situation, necessitating a future s79A(1)(b) application. The court determined that the process under Order 15 must commence afresh with a new referee, reasoning that the consent orders did not contemplate a partial continuation of the process by a substitute referee and that the referee's role was personal. Regarding costs, the court applied the general rule that each party bears their own costs, finding no specific circumstances to justify an order for one party to pay the other's costs, given that both parties had achieved some success on various issues.

By consent, orders were made to facilitate the implementation of Order 15, including provisions for the appointment of a new referee and the Court's power to appoint a person to give effect to Order 15 if a party failed to comply. Leave was granted to the husband to amend his application to seek variation of Order 15 on the ground of impracticability, and this amended application was stood over generally with liberty to restore. The applications for costs by both parties were dismissed.