Lehear and Lehear

[2009] FamCA 645

FAMILY COURT OF AUSTRALIA

LEHEAR & LEHEAR [2009] FamCA 645

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal – Power under s 79 exhausted

Family Law Act 1975 (Cth)
Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)

J & J [2003] FamCA 751
Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436
RBH and JIH [2005] FamCA 226

APPLICANT: Ms Lehear

RESPONDENT: Mr Lehear

FILE NUMBER: DGC 1987 of 2009

DATE DELIVERED: 23 JULY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS JENKINS

SOLICITOR FOR THE APPLICANT: ANDERSON PARTNERS

THE RESPONDENT: IN PERSON

Orders

1. That the application for consent orders filed pursuant to Rule 10.15 on 25 June 2009 is dismissed.

2. That all proceedings be removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Lehear & Lehear is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1987  of 2009

MS LEHEAR

Applicant

And

MR LEHEAR

Respondent

REASONS FOR JUDGMENT

1. On 21 November 2001, Registrar Windebank made orders in chambers. They were final orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”).  Whilst there is nothing specific in the orders to say that, it is the only conclusion open because of three things:

   (a)The orders purport to be made under s 79 of the Act and as I shall mention below, s 79 is a once-only exercise of power;

   (b)Notation A to the said orders reads:

   That the parties intend that these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

   and;

   (c)      A notation also to the orders read:

   It is intended that the financial settlement herein releases each party against any and all claims against the other party arising out of damages for any and all allegations of domestic violence, personal injury, abuse or harassment by one party against each other.

2. There is now a request by both parties to reopen the orders but not in the usual way.

3. On 25 June 2009, the wife by her solicitors, filed an application for consent orders.  That application was supported by an affidavit filed by each party.  Each party sought orders simply be made in terms of some minutes attached to the affidavit of the wife.  The proposed orders are splitting orders.

4. The matter was filed in the Dandenong Registry of the Court and brought to the attention of the registrar who quite properly refused to make the orders and advised the parties on 2 July 2009 that she would transfer the matter to the Judicial Duty List at Melbourne.

5. On 20 July 2009, counsel appeared on behalf of the wife and the husband appeared in person. 

6. Ms Jenkins of counsel acknowledged the difficulties associated with the jurisdictional point to which I shall…