Husserl and Mullett

[2017] FamCA 17

FAMILY COURT OF AUSTRALIA

HUSSERL & MULLETT [2017] FamCA 17

FAMILY LAW – PROPERTY – consent orders – where the registrar did not have power to make the orders because they were out of time – where the parties could not justify their orders – agreement not to proceed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Husserl

RESPONDENT:	Mr Mullett
FILE NUMBER:	MLC	10812	of		2016

DATE DELIVERED: 10 January 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 January 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the application for consent orders filed on 7 November 2016 is struck out.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10812 of 2016

Ms Husserl

Applicant

And

Mr Mullett

Respondent

REASONS FOR JUDGMENT

1. Ms Husserl and Mr Mullett lived together in a de facto relationship which commenced in 2003.  According to a document they filed on 7 November 2016 and returnable that day before a registrar in chambers, their de facto relationship came to an end on 20 October 2014.  For reasons which are not at all clear, notwithstanding that they seem to have separated in October 2014, they did not file the application until 7 November 2016. 

2. The Family Law Act 1975 (Cth) (“the Act”) requires that an application for property orders to be brought within the two-year period from the end of the relationship and, although the form does not use the word “end”, the parties seem to have accepted that their relationship ended on 20 October 2014, although there is even some dispute about that. When the file came to the registrar in November 2016, a letter was written to the parties which, today, they have acknowledged they had received, indicating that they were out of time for the Court to exercise its discretion to make any orders in addition to which there were some problems of the drafting in the form itself.

3. The parties have both acknowledged that they had legal advice, but they do not seem to have had legal advice about the particular issues that the registrar raised.  In addition to the problem of being out of time, the figures that they have used in the document to justify the respective assets and liabilities they acknowledge are wrong.  Furthermore, the document that they sent in purporting to be the draft of the orders they want is headed “Additional notes regarding this case”, and under the heading of “Childcare”, they made reference to a mutual agreement about things such as school holidays and swapping weekends, and even child support of $100 per week. 

4. The additional notes then go to refer to “financials” purporting to be what might be described as an agreement between the parties as to financial matters. Even if I were satisfied that leave should be granted under section 44(5) of the Act, I would not be prepared to make the orders in the terms of the “additional notes” and, particularly, could not be confident that the figures that I was given in the document would enable me to make a finding as to any orders being just and equitable in any event. All of that led to a discussion with the parties, both of whom were unrepresented, prior to the luncheon break.

5. I indicated to them that I was perplexed as to why they needed orders at all, and both of them indicated that they had been told that it was a formality and they needed to finalise things.  I indicated to them that they should think about all of these things over the luncheon break and that, if they did not return at quarter past 2, then I would presume that they had reached agreement and did not require the intervention of the Court.  If they did return, then the Court would have to deal with how to fix all of their problems. 

6. As it is now 5 past 3 in the duty list and they have not returned after lunch, I have concluded that they do not need the assistance of the Court and, accordingly, the application jointly filed on 7 November 2016 is struck out.  I will have the reasons transcribed and placed on the court file. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 January 2017.

Associate: 

Date:  18 January 2017