Mayer & Mayer (No 2)
[2025] FedCFamC2F 586
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mayer & Mayer (No 2) [2025] FedCFamC2F 586
File number(s): SYC 2880 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where matter previously listed in the Defaulters’ List for non-compliance with procedural orders and a lack of progression in the matter – where on previous occasion the competing relief sought by the parties was dismissed – where Orders were made by a Senior Judicial Registrar on an interim basis subsequent to such dismissal and therefore absent power - where the Applicant now seeks to set aside the orders dismissing the proceedings pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – where s138 and 254(4) of the Federal Circuit and Family Court of Australia Act (2021) thus applies - where Applicant submits she would be prejudiced if proceedings not reinstated – where the Respondent previously submitted that the proceedings should not be dismissed but now opposes the application - where all property located in Australia is registered in the name of the Respondent - where the parties are divorced – where the discretion is exercised to discharge the Orders made in the Applicant’s absence dismissing the proceedings and the Orders made by the Senior Judicial Registrar confirmed. Legislation: Family Law Act 1975 (Cth) ss 79, 79A.
Federal Circuit and Family Court of Australia Act (2021) ss 138, s 254(4).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13(1)(a)
Cases cited: Barbey & Tuttle [2013] FamCAFC 44 at [90]
Taylor v Taylor [1979] HCA 38.
Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 2 May 2025 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Barrak Lawyers Counsel for the Respondent: Mr Connor Solicitor for the Respondent: Takchi & Associates ORDERS
SYC 2880 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAYER
Applicant
AND: MR MAYER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.Orders 1 and 2 made on 27 February 2025 are discharged.
2.The Orders made by the Senior Judicial Registrar on 7 April 2025 are confirmed.
3.The matter is listed for further Directions at 9:30 am on 14 May 2025, with the parties and their legal representatives to attend in person.
4.Each of the parties are to serve upon the other party and forward to the Chambers of Judge Murdoch via email by no later than 4:00 pm 13 May 2025 a Draft Minute of Order to progress the matter.
5.Save as to the question of costs, the Application in a Proceeding filed 28 March 2025 and the Response filed 11 April 2025 are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
These are proceedings commenced by the wife, Ms Mayer (“the wife’) on 27 April 2023 seeking an adjustment as to the property of the parties pursuant to s79 of the Family Law Act 1975 (Cth). The respondent husband, Mr Mayer (“the husband”) filed a Response to such application on 24 June 2023.
The parties were married in 1987 and separated on 30 April 2022. A divorce order was made in mid-2023, becoming final in mid-2023. There are no children of the marriage to whom the Act applies.
The application for determination is made by the wife pursuant to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia Rules (2021) to set aside orders made by me on 27 February 2025 dismissing the parties’ competing relief. The husband opposes the application.
The wife relies on:
·The Application in a Proceeding filed 28 March 2025;
·The affidavit of the wife’s solicitor filed 5 March 2025; and
·A further affidavit of the wife’s solicitor sworn 2 May 2025 (with leave). [1]
[1] Exhibit A
The husband relies on:
·The Response to Application in a Proceeding filed 11 April 2025;
·Affidavit of the husband filed 11 April 2025; and
·Correspondence from the husband’s solicitors to the wife’s solicitors dated 16 April 2025 and 24 April 2025.[2]
[2] Exhibit B
For the reasons recorded below the wife’s application will be granted.
PROCEDURAL BACKGROUND
The Amended Application for Final Orders filed by the Wife on 19 March 2024 is not competent. It seeks “that orders be made to divide the matrimonial property as to 70% to the Applicant Wife and 30% to the Respondent Husband”, leave to amend such application upon the husband providing financial disclosure, and an order that the husband “make spousal payments to the wife as determined by the court.”
The Further Amended Response filed by the Husband on 27 March 2024 seeks orders broadly that the property of the parties be adjusted as to 35% to the wife and 65% to the husband.
At the commencement of the proceedings the husband was the registered proprietor of four real properties in Suburb C, a property at Suburb D and property at Suburb E. The wife is the sole registered proprietor of two blocks of vacant land in Country B. The wife asserts that the husband has interests in real property in Country B that he has not disclosed.
On 11 May 2023, interim orders were made by a Senior Judicial Registrar restraining the husband from dealing in any way with the six items of real property held solely in the husband’s name, allowing for the sale of same upon certain conditions being met.
The matter was listed for directions on at least five occasions between 30 August 2023 and 6 March 2024 to progress the matter including the obtaining of single expert valuations and the attendance by the parties at a mediation. The matter was listed into the Defaulter’s List operating in the Sydney Registry on 21 August 2024 by a Senior Judicial Registrar for non-compliance with a raft of orders to progress the matter.
On 19 September 2024, further orders were made by consent that the Suburb E property be sold and after payment of various expenses, the balance of the proceeds be deposited into the trust account of the wife’s solicitors.
At the listing of the matter in the Defaulter’s List on 3 October 2024, orders were made by me again regulating the appointment of a single expert lawyer in Country B to ascertain whether the respondent has any interest in any real property and for the applicant to file a draft joint balance sheet by 24 February 2025, together with each of the parties filing a certificate of readiness by the same date. The matter was adjourned until 27 February 2025 to ensure compliance and progress the matter forward in the case management pathway.
At the listing of the matter on 27 February 2025, there was no appearance by or on behalf of the applicant wife. The respondent husband was present with his legal representative. Neither of the parties had complied with the orders and directions made by me. Nothing had been filed since the matter was last before the Court. Neither party had made an application to extend the time for compliance with the orders. In submissions as to why, in those circumstances, the proceedings should not be struck out, the respondent’s solicitor stated that the parties had not complied with the orders and directions as they were busy engaging in selling some of the real property of the parties.
Arising from the parties’ noncompliance with the orders and directions of the court, both the application and the response were struck out and short oral reasons provided. Those reasons recorded that the parties were at liberty to commence fresh litigation as they may be advised. As the orders were made in the absence of the wife, the court noted that pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) an application may be made to have them set aside.
The current application was then filed by the wife seeking that those orders be set aside and that the husband “be immediately restrained from any dealings with the real estate in the matrimonial asset pool as per previous orders 3 and 4 made 11 May 2023.” The Response filed by the husband on 11 April 2025 seeks a dismissal of the wife’s application and an order that the wife pay the husband’s “costs in relation to this application together with the costs incurred on 27 February, 2 April and 7 April 2025.” Such application was listed for hearing before me on 2 May 2025.
The wife then filed a further Application in a Proceeding on 27 March 2025 (“the further interim application”) seeking orders on an urgent ex parte basis that broadly, until further order, orders be made in accordance with the prior interim orders of 11 May 2023, 23 January 2024 and 19 September 2024 restraining the husband from dealing with the real property or net proceeds of sale thereof, together with a declaration that the wife has an equitable interest in the real property registered in the sole name of the husband. The husband’s Response to the further interim application filed on 2 April 2025 sought that the wife’s application be dismissed, or in the alternative orders particularising the application of funds from the sale of the Suburb E property.
The wife’s further interim application was listed before a Senior Judicial Registrar on 7 April 2025 and on this date, orders were made that:-
1.Orders 2, 3 and 4 of the Orders of 11 May 2023 be reinstated pending further Orders.
2.Orders 1, 2, 3 and 4 of the Orders of 23 January 2024 be reinstated pending further Orders.
3.Orders 2 – 7 (inclusive) of the Orders of 19 September 2024 be reinstated pending further Orders.
4.The proceedings are adjourned to 2 May 2025 at 9am before Her Honour Judge Murdoch for Hearing.
5.The Application in a Proceeding filed 27 March 2025 and the Interim Response filed 2 April 2025 are otherwise dismissed.
6.Each party has leave to serve a copy of the sealed Orders of 7 April 2025 upon the conveyancing solicitor and agent in respect to the Suburb E Property and direct them to distribute the sale proceeds in accordance with these Orders.
At the time of the making of these orders there were no substantive proceedings on foot, they having been dismissed by way of the Orders made by me on 27 February 2025. Thus, the orders made by the Senior Judicial Registrar were made absent the power to do so.
Section 138 of Federal Circuit and Family Court of Australia Act (2021) provides that a judgment or decision of the Federal Circuit and Family Court of Australia (Division 2) is valid and binding until set aside, even if it is given or made in excess of the Court’s jurisdiction.
Section 254(4) of the Federal Circuit and Family Court of Australia Act (2021) provides that a power delegated by the Rules of Court, when exercised by a delegate, is taken, for all purposes, to have been exercised by the Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Court.
THE EVIDENCE AND SUBMISSIONS
The first affidavit in support of the current application sworn by the wife’s solicitor deposes that there was no appearance by or on behalf of the wife at the adjourned listing of the matter due to a mis-diarising by the solicitor’s office but that “the proceedings are very much active with much work being done since the listing on 3 October 2024 to attempt to progress sale of real estate in accordance with Court Orders.”[3] It does not depose as to the whether the parties have complied with orders and directions made on 3 October 2024 as to:-
·The progression of the real properties in Country B being valued.
·The obtaining of a single expert lawyer in Country B to undertake searches to ascertain whether the husband has an interest in any real estate in Country B.
·The filing of a Balance Sheet.
·The filing by each of the parties of a Certificate of Readiness.
[3] Affidavit of Mr Benjamin Barrack filed 5 March 2025, paragraph 9.
The second affidavit in support of the current application deposes that:
·On 28 March 2025 the wife served on the husband a draft Balance Sheet. A response has not been received to this communication.
·On 24 October 2024 the wife’s solicitor forwarded an email to a lawyer in Country B requesting that he advise as to whether he could undertake such work and if not, whether advice could be received of three lawyers who could.
·Subsequent to this correspondence the wife’s solicitor received a phone call from the lawyer who advised him that government offices are usually closed and there are many problems with internet and electricity, and they could not accept the work.
·The wife is destitute; she has no funds and is living on a disability pension. If the wife’s application is successful, he is instructed to seek a “money order” to allow his client to meet her living expenses, including payment of the lawyers in Country B to undertake the works as ordered by the court.
·The sale of the Suburb E property has not settled, despite being due to do so. The husband is now in breach of the contract.
The draft Balance Sheet attached to the affidavit records to the asserted property of the parties. It unfortunately does not record the legal owner of each item. It does not appear to be disputed having regard to the orders made restraining the husband dealing with all of the real property in Australia on 11 May 2023 that it is all held by the husband. The wife asserts that the known property pool has a value of $1,215,000. The husband asserts the value to be $163,636. Both parties list the husband’s interest in F Pty Ltd as a financial resource.
The wife submits that she will be prejudiced if the proceedings were not reinstated, it being a thirty-five-year marriage with property in excess of $5,000,000. All of that property is registered in the husband’s name. A further prejudice to the wife will arise if the proceedings are not reinstated as she will need leave of the court to commence fresh property proceedings. The wife has attempted to comply with the directions of the court. The non-appearance by the wife’s solicitor at the listing of the matter on 3 October 2024 arose from a solicitor who no longer works at the firm representing the wife. At the listing of the matter on 3 October 2024 the husband’s solicitor made submissions in support of the matter continuing to progress and thus against its dismissal. The current position of the husband is opportunistic. The wife has no funds and no source of funds; she will only receive property by way of any adjusting orders made pursuant to s79 of the Family Law Act. The wife concedes that there has been noncompliance but submits that it would be a harsh penalty if these proceedings were not the subject of reinstatement, particularly having regard to the then need to seek leave. This is not a matter where the parties have simply sat on their hands.
The husband deposes:
·The wife has still not complied with the direction that she provide the names of two proposed single experts to undertake searches of the husband’s interest in any real property in Country B pursuant to the directions of 3 October 2024.
·The wife did not serve on him a draft Balance Sheet in accordance with the same Directions.
·Subsequent to observing on the court portal that the file was marked “closed” he terminated his solicitor’s instructions. He did not formally instruct his solicitors again until approximately 2 April 2025.
·There is no evidence from the wife as to why she did not appear at court on 27 February 2025. The wife’s solicitor does not give any evidence as to how the listing date was mis-diarised.
·Arising from the applicant wife’s failure to appear on 27 February 2025 he has incurred unnecessary legal costs with respect to appearances on 27 February 2025, 2 April 2025 and 7 April 2025.
The husband submitted that:
·The wife has not provided an explanation for her nonattendance on 27 February 2025. The wife should provide evidence of her state of knowledge and questioned why she had not filed an affidavit.
·In substance, the issue of the husband allegedly owning land in Country B goes to the whole nub of the issue.
·The substance of the wife’s submissions appears to be that the matter could still proceed to hearing.
·The orders of 3 October 2024 were not the first time orders were made for the filing of a Balance Sheet.
·There is no evidence before the court as to the wife’s financial circumstances and no evidence from her as to her alleged impecuniosity – the wife is giving evidence from the bar table.
·The costs of the parties in these proceedings have been increasingly disproportionate.
·The wife has not observed the other directions made – what has the wife’s solicitor been doing?
·The property is registered in the sole name of the husband because of cultural issues but the wife is insinuating coercive and controlling behaviour by the husband.
·It is obvious why I was annoyed on 27 February 2025 and dismissed all the proceedings.
·The authorities provide I have an unfettered discretion. It is not a matter for the consent of the parties. The authorities including that of Taylor v Taylor [1979] HCA 38 and Barbey & Tuttle and [2013] FamCAFC 44 at [90] set out the criteria for determining these applications.
·Rule 10.13 is to be distinguished from s79A of the Family Law Act. Rule 10.13 does not apply, and this is not an interlocutory application.
·There needs to be more evidence before the court than there currently is, before the court would exercise its discretion.
·The elephant in the room is the land in Country B.
·The Balance Sheet was served after the proceedings were dismissed.
·The husband does not have a copy of the transcript of the proceedings of 27 February 2025. This would have been obtained by the wife at huge cost – where did the money come from to pay that?
·All of the relevant correspondence between the parties’ solicitors is not in evidence.
DISPOSITION
I do not accept any submission that section 79A of the Family Law Act applies. The wife’s application was not determined on its merits. I am satisfied that the wife’s application is brought pursuant to rule 10.13(1)(a) of the Rules which provides that:
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; …
(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
The approach that the court should take to applications to set aside orders made in the absence of a party are well established and uncontroversial. Matters relevant to the exercise of the discretion are:
(a)the reason for the non-appearance or absence and whether there is a reasonable explanation for the absence;
(b)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside;
(c)whether there is prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the court;
(d)whether there has been delay in bringing the application to set aside and whether, if during the period of delay, the successful party has acted on the judgment, or third parties have acquired rights by reference to it; and
(e)the conduct of the applicant since the judgment or order sought to be set aside was made.
The discretion to be exercised is unfettered. It is however to be exercised judicially, bearing in mind the public interest in there being an end to litigation. The court is not bound to give one matter more weight than another: Barbey & Tuttle [2013] FamCAFC 44 at [90].
Whilst unfortunate, I accept that the wife’s failure to attend the listing of 27 February 2025 arose from an error on behalf of her lawyer. Whilst I accept that compliance with the Directions made on several occasions to progress the matter is still an issue, I also accept that there has been an attempt to progress the matter forward, albeit not within the timelines required. I am satisfied that the wife will potentially suffer significant prejudice were she to be required to commence fresh proceedings as that will require the leave of the court. The parties were married for a period of thirty-five years. All of the real property of the parties in Australia is registered entirely in the husband’s name. The husband himself sought that there be an adjustment of the property of the parties. Having regard to this husband’s prior contentions as to the adjustment of property between the parties, the wife’s submission as to the husband’s position being opportunistic garner merit. The husband’s only submission as to his prejudice was as to costs. Refusing the wife’s application will require further costs and application to be made to the court. Any costs thrown away by the husband arising from the wife’s conduct can be dealt with by way of a costs order if determined to be justified. The wife has attempted to progress the matter since the last listing of the matter.
I am satisfied for the above reasons that the wife’s application should be granted and, in those circumstances, and for the reasons recorded above, the orders of the Senior Judicial Registrar of 7 April 2025 will be confirmed. The matter is not ready as yet to be allocated a Compliance and Readiness Hearing and will be listed for further Directions.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 7 May 2025
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