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
That the application for consent orders filed pursuant to Rule 10.15 on 25 June 2009 is dismissed.
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
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.
There is now a request by both parties to reopen the orders but not in the usual way.
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.
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.
On 20 July 2009, counsel appeared on behalf of the wife and the husband appeared in person.
Ms Jenkins of counsel acknowledged the difficulties associated with the jurisdictional point to which I shall…
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- Lehear and Lehear [2009] FamCA 645
- Case
- [2009] FamCA 645
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CaseChat Overview and Summary
The central legal issue before the court was whether the proposed consent orders met the requirements for approval under the relevant rules of the Family Court. Specifically, the court had to determine if the application, as presented, was sufficient to warrant the making of the consent orders sought by the parties.
Justice Cronin dismissed the application for consent orders. The court also ordered that all proceedings related to this matter be removed from the list of cases awaiting a hearing, indicating that the application, in its current form, was not proceeding to finalisation.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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