MOORE and SULTER - [2021] FCWA 47

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MOORE and SULTER [2021] FCWA 47
CORAM: DUNCANSON J
HEARD: 1 DECEMBER 2020
DELIVERED : 26 MARCH 2021
FILE NO/S: PTW 9279 of 2019
BETWEEN: MR MOORE
Applicant
AND
MS SULTER
Respondent

Catchwords:

PROPERTY - PRACTICE AND PROCEDURE - Where the husband seeks an extension of time to review the decision of a Registrar to make consent orders

Legislation:

Family Court Act 1997 (WA) s 33
Family Law Act 1975 (Cth) s 75(2), s 79
Family Court Rules 1998 (WA) r 12, r 24, r 25(2), r 26(1)
Family Law Rules 2004 (Cth) r 1.14

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr J Hedges SC
Respondent	:	Ms J Mansfield

Solicitors:

Applicant	:	Frost & Associates
Respondent	:	Paynes Lawyers

Case(s) referred to in decision(s):

Gallo v Dawson (1990) 93 ALR 479
Harris v Caladine (1991) 172 CLR 84
KLD & SCVG [2009] FamCAFC 56
Mirren & Mirren [2020] FamCAFC 94

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore and Sulter has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1On 16 June 2020 a Registrar of this Court made consent orders for the division of the property of the husband, [Mr Moore] and the wife, [Ms Sulter].
2The application for determination is that of the husband in which he seeks an extension of time in which to apply for a review of the Registrar's order.

BACKGROUND

3The husband is 72 years of age. He is a [farmer]. The wife is 61 years of age. She is a [physiotherapist]. The parties were married [in] 1982. The parties separated [late] 2017.
4In January 2018 the husband commenced a de facto relationship with [Ms C].
5On 20 November 2019 a Family Violence Restraining Order issued against the husband protecting the wife. It was subsequently resolved by agreement on 27 February 2020.
6The parties were divorced [in] April 2020.

THE HISTORY OF THE PROCEEDINGS

7On 3 December 2019 the husband commenced proceedings for property settlement.
8On 19 December 2019 interim orders were made by consent providing that $50,000 be paid to the husband by way of partial property settlement and that [livestock] be delivered to him. The orders also provided for the husband to give disclosure with respect to livestock.
9The sum of $50,000 was paid to the husband and livestock were delivered to him pursuant to the orders.
10On 12 June 2020 the parties attended a conciliation conference. On 15 June 2020 a minute of proposed orders was circulated by the wife's solicitors.
11The conciliation conference reconvened on 16 June 2020 when final property settlement orders were made by consent by [a] Registrar. The consent orders provided that the husband retained the livestock and his business interests, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MOORE and SULTER

Details

AGLC: MOORE and SULTER [2021] FCWA 47
Case: [2021] FCWA 47
Decision Date: 26 MARCH 2021

CaseChat Overview and Summary

The case involved a dispute between Moore and Sutler, the husband and wife, respectively. The husband sought an extension of time to review a decision made by a Registrar to grant consent orders. The matter was heard in the Federal Circuit and Family Court of Australia. The husband argued that he had not been given adequate time to review the decision and that the Registrar had failed to properly consider his submissions.

The legal issues before the court included whether the husband had a right to an extension of time to review the decision, and whether the Registrar had acted in a manner that was procedurally unfair. The court had to consider the relevant legislation and case law in determining these issues. The court also had to consider the circumstances of the case, including the husband's submissions and the Registrar's decision.

The court found that the husband did not have an automatic right to an extension of time to review the decision, but that the Registrar had a discretion to grant an extension if it was just and equitable to do so. The court held that the Registrar had not acted in a manner that was procedurally unfair, as the husband had been given sufficient notice of the application and had an opportunity to make submissions. The court also found that the Registrar had properly considered the husband's submissions in making the decision. The husband's application for an extension of time was dismissed.

The court ordered that the consent orders made by the Registrar be upheld, and that the husband's application for an extension of time be dismissed. The court also ordered that the husband pay the wife's costs of the application.

Orders