Lehear and Lehear
[2009] FamCA 645
•23 July 2009
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 refer. She said the parties did not want to reopen financial issues. That is also clear from their respective affidavits. She asked that I simply set aside the superannuation order. She asked for leave to be able to make an oral application to extend time to review the orders five years out of time.
Ms Jenkins pointed to one decision of Young J, RBH and JIH [2005] FamCA 226 dated 23 March 2005 in which his Honour made orders on an oral application to extend time to review.
Ms Jenkins said that both parties wanted the orders and there was no hardship. She said quite the opposite, there was a benefit to the parties. Importantly, she said that both parties were in heated agreement about the solution to their problem.
The orders made on 21 November 2001 provided that when the husband became eligible to receive benefits from his superannuation fund, he was to pay the wife a sum calculated by reference to a formula. Thereafter, the parties agree (and the Court made) orders of a machinery nature as well as of an injunctive nature relating to the superannuation.
It is important to note that the orders were made by consent of the parties in the shadow of the start-up date of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth).No application was made at that time to delay the making of the orders and I note that the minutes that became the orders were executed and dated on 29 October 2001.
Counsel referred me to RBH and JIH (supra) of 23 March 2005, a decision of Young J. There was also a decision of J & J [2003] FamCA 751 which was an unreported decision of Young J dated 26 June 2003 and referred to in RBH and JIH.
In J & J (supra) his Honour found that the orders that the parties had made were not final. They were in fact interim orders pending the final determination of the s 79 power as to property. That decision is therefore of little assistance.
In RBH and JIH (supra) Young J noted that the parties sought a variation of or the setting aside of the existing orders in relation to the settlement of property. He noted that the primary issue which was not in dispute between the parties related to superannuation. The orders had been made by a registrar on 2 February 2000. However, his Honour found that the orders were confusing and uncertain because they had been drafted by solicitors on an assumption that the proposed superannuation legislation would be introduced into and approved by the federal parliament. As his Honour pointed out, despite that, the orders were pronounced pursuant to s 79 of the Act. Young J said:
There is no retrospectivity applicable to the operation of the Family Law Legislation Amendment (Superannuation) Act 2001. It simply does not apply to property settlements that have already been finalised prior to the date when the legislation came into effect, that being 28 December 2002.
The distinction between RBH and JIH and this case is that the husband applied under s 79A(1)(b) of the Act to set aside the orders. That particular provision relates to the impracticability of the order being carried out. That is not the situation here.
The position in relation to the exercise of the power under s 79 of the Act is not in doubt. In Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436 the High Court of Australia said:
The effect of treating the order as if it had been made under s. 79 is that, subject to a limited jurisdiction to vary it or set it aside, the power of the Family Court to make an order under s. 79 is treated as having been exercised and as exhausted by that notional exercise. The limited jurisdiction to set aside or vary such an order is that conferred by s. 79A and exists only in special circumstances, namely, where the court is satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance.
The Court then said:
…the Family Law Act clearly reveals the intention of the Parliament that if the court, in proceedings with respect to the property of the parties to the marriage or either of them, makes an order “altering the interests of the parties in the property”, and the making of that order has not been attended by any circumstance amounting to a miscarriage of justice, then such order is not open to any review or variation.
There is no application before me under s 79A. There is an oral application before me to extend the time to review the decision of the registrar but there is no material that supports that application nor in my view could it succeed.
Counsel for the wife suggested that a solution to the problem might be to extend the time for the wife to apply for a review of the registrar’s decision.
Although the provisions relating to reviews that applied in 2001 have been superseded by the Family Law Rules 2004, it is important to examine just what the power provides.
Rule 18.07 of the 2004 Rules provides for an application to be made for the review of an order of a deputy registrar. Time is provided under the Rules. In this case, that has well and truly expired but I am urged to reconsider that situation to permit a review to take place out of time.
Rule 18.10 reads:
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d)if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
Because the power is delegated by the Court to a registrar, the time constraints are largely immaterial because it is the responsibility of the Court at any time when it finds that a registrar has inappropriately made an order, to exercise the jurisdiction of the Court properly under the Act.
Notwithstanding the power in the Rule requires a court to hear the matter on a de novo basis, the Rules cannot be used to circumvent very clear intentions of parliament. If it is suggested that by extending the time and exercising the power under Rule 18.10, a court is now invested with power to make orders pursuant to Part VIIIB of the Family Law Act, I reject that. That is because the parties are not seeking to have the Court exercise its powers generally under s 79 but rather, only the discrete issue in relation to superannuation because that power was not available in 2001. The parties themselves indicate that they do not want the Court to examine any of the financial circumstances outside of making the orders relating to superannuation. That flies in the face of the Court making an order which is just and equitable under s 79.
In addition, I have serious doubts about the appropriateness as I have already indicated, of endeavouring to circumvent the very clear legislation of 2001.
Section 5 of the Family Law Legislation Amendment (Superannuation) Act 2001 provides as follows:
(1) Subject to this section, the superannuation amendments apply to all marriages, including those that were dissolved before the start-up time.
(2) Subject to subsections (3) and (4), the superannuation amendments do not apply to a marriage if a section 79 order, or a section 87 agreement, is in force in relation to the marriage at the start-up time.
(3) If a section 79 order that is in force at the start-up time is later set aside under paragraph 79A(1)(a), (b), (c), (d) or (e) of the Family Law Act, then the superannuation amendments apply to the marriage from the time the order is set aside.
It is clear because of that legislation that the provisions of s 79(1A) of the Act do not apply. That provisions reads:
(1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Thus, although the parties are saying that they consent to the variation of the orders, the only basis upon which they could do so normally would be under s 79(1A) of the Act and as I have pointed out, that is specifically excluded by virtue of s 5 of the Family Law Legislation Amendment (Superannuation) Act 2001.
It is not appropriate for a court to endeavour to find a way around specific prohibitions in legislation. It was quite clear that parliament intended to exclude parties who had made final orders under s 79. Specific provision was made for the miscarriage of justice or impracticability provisions none of which apply here.
The power to make orders under s 79 in this case is exhausted. There is no basis for the Court to make the orders sought by the parties.
The application for consent orders filed by the wife on 25 June 2009 must therefore be dismissed.
I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 23 July 2009
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