HOPPE & VIJAYAN

The Director of Public Prosecutions for Victoria applied to the Family Court of Australia seeking to set aside consent orders made on 3 July 2017, which had been granted to Ms Hoppe (first respondent) and Mr Vijayan (second respondent). The application arose from an earlier application for consent orders filed by the respondents on 30 May 2017, which included an order made by Judge Dyer on 23 May 2017 under the Victorian Confiscation Act 1997, a restraining order. The Registrar, who made the consent orders, had queried the relevance of the restraining order in relation to section 79 of the Family Law Act 1975 (Cth), but subsequently made the orders which would have contravened the restraining order.

The primary legal issues before the Court were whether the consent orders made by the Registrar on 3 July 2017 should be set aside pursuant to section 90SN(1) of the Family Law Act 1975 (Cth), and whether the proceedings should be stayed. The Court also considered whether the Registrar had validly exercised delegated judicial power in making the orders, given the existence of the restraining order and the provisions of sections 90VA and 90VB of the Family Law Act 1975 (Cth), which mandate a stay of proceedings upon awareness of such an order.

Justice Cronin found that the Registrar should not have made the consent orders due to the existence of the restraining order, which should have triggered a stay of proceedings under sections 90VA and 90VB of the Family Law Act 1975 (Cth). The Court was satisfied that the Director of Public Prosecutions was not informed of the proceedings and that the Registrar appeared to have overlooked these statutory provisions. The Court noted that the parties had attached a copy of the restraining order to their application, necessitating further inquiry. The first respondent did not oppose the setting aside of the orders, and the second respondent, who was incarcerated, was presumed to be aware of the restraining order. The Court was satisfied, based on evidence of service and a comparison of signatures, that the second respondent had been notified.

The Court ordered that the consent orders made on 3 July 2017 be set aside. The original application for consent orders filed on 30 May 2017 was adjourned to a date to be fixed, with a provision that it would stand dismissed if no further application was made by 4 pm on 13 March 2019, to avoid further complications for the parties.