HOPPE & VIJAYAN

[2018] FamCA 1160

FAMILY COURT OF AUSTRALIA

HOPPE & VIJAYAN [2018] FamCA 1160

FAMILY LAW – PRACTICE AND PROCEDURE – Stay application

Family Law Act 1975 (Cth)

APPLICANT: Director of Public Prosecutions for Victoria

RESPONDENT: Ms Hoppe and Mr Vijayan

FILE NUMBER: MLC 5252 of 2017

DATE DELIVERED: 14 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Vout

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Furstenberg

SOLICITOR FOR THE RESPONDENT:

Orders

1. Stay further the prosecution of the application pending further order. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoppe & Vijayan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5252 of 2017

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA

Applicant

And

MS HOPPE AND MR VIJAYAN

Respondent

REASONS FOR JUDGMENT

1. Today’s application arises out of an initiating application filed by the Director of Public Prosecutions for Victoria on 23 February 2018.  The respondents to that application are Ms Hoppe, who I shall call the first respondent, and Mr Vijayan, who is the second respondent.  Rather than start with the initiating application, it is more sensible to put some context to this matter by going back to where it began.  It seems that on 30 May 2017, this Court accepted an application for consent orders under chapter 10 of the relevant rules. 

2. That application was signed by both of the respondents on 27 May 2017.  Attached to the application is an order made by Judge Dyer on 23 May 2017 under the Victorian Confiscation Act 1997.  That order is a restraining order.  The matter in this Court took its usual path of going to a Registrar, who wrote to the solicitors for the first respondent and to the second respondent personally.  That letter was dated 15 June 2017 and to the extent that it is necessary, I would give leave to the parties, but more particularly, the Director of Public Prosecutions, to extract that letter and copy it if it becomes necessary.

3. The important part of the letter of 15 June from the Registrar was querying the relevance of the County Court order in relation to the terms of section 79 of the Commonwealth Act.  What then happened was that the parties signed heads of agreement not answering the question of the Registrar, but simply setting out the basis behind the orders that they then sought.  Whether the Registrar was distracted or not I am unable to say, because the file does not tell me, but in any event, on 3 July 2017, the Registrar then made the orders in the terms that the parties had sought.

4. The nub of those orders was that within 60 days, the second respondent was to transfer a property at Suburb B to the first respondent. The problem was that that order would have meant that the Court was condoning the contravention of the restraining order by Judge Dyer. Even a cursory examination of section 90VA and 90VB of the Family Law Act would indicate that once the Court is aware of the existence of an order, the proceedings are therefore stayed. I am satisfied that the application brought by the Director of Public Prosecutions for Victoria arises out of the fact that first, the Director was not told of the existence of the proceedings, but secondly, the Registrar seems to have ignored the provisions of section 90VA and 90VB.

5. But turning then to the application before the Court filed by the Director on 23 February, it seeks an order that the orders made on 3 July 2017 be set aside pursuant to section 90SN, subsection (1), and that they then be stayed.  In discussion, it is clear that there is an alternative remedy here, and that is for the Court to examine the decision made by the Registrar.  That is because the Registrar can only make such an order if so permitted by legislation on the basis that the Registrar is exercising the delegated power from a judge acting within the judicial power of the Commonwealth.

6. If a judge considers that the power so exercised has been invalidly exercised for whatever reason, it is the responsibility of the judge to rectify the problem.  I have the benefit today of the first respondent being represented by her present solicitor and he does not oppose the setting aside of the orders.  The second respondent, who was realistically the subject of Judge Dyer’s order is currently incarcerated presumably for the very reasons that Judge Dyer made the order in the first place relating to breaches of the criminal law of the State of Victoria.  I am satisfied here that even if the second respondent had not been aware of the application, the Court still would have had to set aside the orders.

7. I am comforted by the fact that there is on the Court file, an affidavit by a Ms C, who says that the relevant documents were sent by post or electronic means to the second respondent at the D Prison.  Indeed, attached to that affidavit of service is an acknowledgement by a person who signed the signature of Vijayan, and that is dated 5 March.  Although there is no other way of confirming that Mr Vijayan signed that acknowledgement, I think I can take judicial notice that it is almost identical to the signature on the documents that were filed by the Court in May and June of 2017.

8. That being the case, and there being no appearance on behalf of Mr Vijayan and no opposition from the first respondent, I am satisfied that it is appropriate to make the orders. In my view, it is quite clear that the Registrar should not have made the order because of the provisions of section 90VA and 90VB. Whether the Registrar had the relevant legislation brought to her attention or not, I am unable to say, but the fact that the parties attached a copy of Judge Dyer’s orders to their application, as they were required to do in any event, satisfies me that further inquiries should have been made and accordingly, the exercise of the power under section 90SN was inappropriate as contrary to the law.

9. On that basis, I shall set aside the orders made by the Registrar.  That then leaves alive the original application for consent orders that was filed on 30 May 2017.  It appears common ground between at least the applicant and the first respondent that there is pending before Judge Dyer, the relevant pursuit of the restrained property and it may be that the first respondent ultimately receives nothing.  But because of the time limits for bringing an application arising out of the ending of a de facto relationship and in this case, it was said by the parties to have ended in June 2016, it seems to me that to avoid a further problem for the parties in the event that there is money left over, I should not simply dismiss the application for consent orders.

10. Accordingly, and without opposition from either applicant or the first respondent, I shall adjourn the matter to a date to be fixed and if there is no further application in the proceedings by 4 pm on 13 March 2019, the application filed 30 May 2017 stands dismissed. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 March 2018

Associate: 

Date:  14 March 2018