Moore & Moore

[2007] FamCA 1589

FAMILY COURT OF AUSTRALIA

MOORE & MOORE [2007] FamCA 1589

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision of Registrar – order for husband to file Form 13 Financial statement – No time frame in which required to file – further order made to file Financial Statement within 28 days – Whether both orders need to be subject of review – Application by wife for final orders seeking revocation of court’s approval of deed and property settlement – Whether Family Law Rules require husband to file Financial Statement – Definition of “financial case” – Not a case where Financial Statement required to be filed – In any event issue of revocation of approval of deed needs to be determined first – Orders of Registrars discharged

FAMILY LAW – PRACTICE AND PROCEDURE – Application to extend time to file Application for review – Adequate explanation for delay – Extension of time granted

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Moore

RESPONDENT: Ms Moore

FILE NUMBER: ADF 4732 of 1998

DATE DELIVERED: 15 November 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 15 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: Wallmans Lawyers

COUNSEL FOR THE RESPONDENT: Mr A. Jordan

SOLICITOR FOR THE RESPONDENT: David M. Davidson

Orders

1. That the time for the husband to file an application seeking a review of the orders of Registrar Heuzenroeder made on 24 April 2007 be extended to 10 August 2007.

2. That the orders made by Registrar Heuzenroeder on 24 April 2007 and Registrar McMahon on 23 July 2007 in so far as those orders required the husband to file a Form 13 Financial Statement be discharged.

3. That the Application in a Case filed by the husband on 10 August 2007 be dismissed and removed from the active pending cases list.

4. That there be no order for costs.

5. That by 4:00pm on 31 January 2008 the wife file and serve her affidavit of evidence in chief that she intends to rely on for the purposes of the trial.

6. That further consideration of the Application for Final Orders filed on 18 December 2006 and the Response to an Application for Final Orders filed on 30 October 2007 be adjourned to 9:30am on 6 February 2008.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4732 of 1998

MR MOORE

Applicant

And

MS MOORE

Respondent

EX TEMPORE REASONS

1. I have before me an Application in a Case filed by the husband on 10 August 2007.  In that application the husband sought a number of orders, including a review of the order made by Registrar McMahon on 23 July 2007 that the husband file a Form 13 Financial Statement and seeking that that order be discharged.  The husband also sought an order that the order made by Registrar Heuzenroeder on 24 April 2007 that the husband file a Form 13 Financial Statement be discharged.  He also he sought to the extent necessary, that he be granted an extension of time within which to lodge the Application for Review.

2. Perhaps to put that application into context, these proceedings were commenced on 18 December 2006 when the wife filed an Application for Final Orders seeking firstly revocation of the approval of a deed, that approval being given on 24 November 2000, and secondly, that pursuant to Section 79 of the Family Law Act 1975, and by way of settlement of property, or alteration of interest in property, the husband pay to the wife such sum as this court deems just and equitable.

3. That application eventually came before Registrar Heuzenroeder on 24 April 2007 when he ordered that the wife, within 28 days, file a Form 13 Financial Statement and particulars of claim.  He went on and made a further order that the husband file a Response and a Form 13 Financial Statement.  However, and this has caused the problem in this case, the Registrar did not fix a time frame for those documents to be filed, save and except that they were to be filed after receipt of the documents that the wife was ordered to file. Prima facie, the husband could have just continued to ignore that order given that there was no time frame after the receipt of the documents to file his documents.  I will come back to that later in these reasons.

4. The wife eventually filed her Form 13 Financial Statement on 30 May 2007 but she did not file her particulars of claim until 19 July 2007. The matter came before Registrar McMahon on 23 July 2007, I am told as a result of the default by the wife in not complying with the earlier order. 

5. In any event, Registrar McMahon then made an order that the husband file a response and a Form 13 Financial Statement within 28 days.  He noted on the draft order sheet that the order in respect to the filing of the Form 13 was not by consent.  It was opposed by the husband.

6. That brief background perhaps puts into context why the husband has framed his application in the way that he has.  He sought primarily to review the order of Registrar McMahon but of course there was still the earlier order of Registrar Heuzenroeder, and if there was to be a review of Registrar Heuzenroeder's order the husband needed an extension of time.  Thus out of an abundance of caution he sought all those orders in that application.

7. This matter came before me initially on 17 October 2007 when I heard argument on the review as to whether the registrar - and it does not matter which Registrar because the same argument applies to both, should have been made an order for the husband to file a Form 13 Financial Statement.

8. After hearing those submissions, though, the issue of which order should be reviewed, and indeed whether it should be both orders, was raised with counsel.  In the end result it was determined that it was necessary to deal with this matter completely, and there should be a review of the order of Registrar Heuzenroeder.  However, to repeat, to do that the husband had to have an extension of time and unfortunately in his affidavit in support of his application he had not set out any of the factual bases which would support an extension of time.

9. Thus the matter was adjourned to today to enable the husband to file a further affidavit addressing the question of an extension of time in relation to reviewing the order of Registrar Heuzenroeder.  I now have before me an affidavit filed on behalf of the husband and it is an affidavit of his solicitor, Mr Barnes, filed on 30 October 2007, which sets out the factual basis on which the husband seeks an extension of time.

10. The application for an extension of time is opposed, as is the application for review of both orders of the registrars.

11. The husband, in order to obtain an extension of time, needed to explain the delay in filing an application for review.  Given the nature of the case and the need for particulars of claim to be filed, it was open to the husband to delay doing anything at all about the matter until those particulars were filed, because of course they may have been such that the case could have been summarily dismissed, or the particulars might not have been filed. 

12. Thus, until those particulars were filed the husband's position, and in my view quite appropriately, was that the case was not properly before the court and there was in effect no need for him to address the filing of documents.

13. The problem with that approach was that there was an order by Registrar Heuzenroeder for the filing of a Form 13, but, as I have expressed already, there was no time frame for that to be filed.  It was open to the husband to file an Application for Review of Registrar Heuzenroeder's order within the time allowed for such a review but in my view it was also open to the husband to wait and see whether the wife's case was properly before the court before addressing that issue.

14. I said on the last occasion, and I repeat, that although no time frame specified by Registrar Heuzenroeder, it seems to me that if it had been put to the test that his order would have been interpreted as requiring the filing of the documents by the husband within a reasonable time of the wife filing her documents and them being received by the husband.

15. In my view though the husband has adequately explained the delay. 

16. Of course Registrar Heuzenroeder's order, in a sense, was overtaken by the order of Registrar McMahon made on 23 July 2007.  There is an issue as to whether Registrar McMahon's order was a discrete order in itself or whether it was merely filling in the gaps of Registrar Heuzenroeder's order, namely, providing the time frame.

17. I have received an affidavit from the wife this morning, which annexes a transcription of notes taken by her solicitor at the hearing before Registrar McMahon.  It is conceded that those notes do not cover the entirety of what was said before Registrar McMahon, but to the extent it is relevant to this issue the notes indicate that what Registrar McMahon was doing was extending the time for the husband to file his documents.

18. In my view that does not affect the issue of whether the husband should have an extension of time to review the order of Registrar Heuzenroeder; it goes to the issue of whether Registrar Heuzenroeder's order needs to be addressed at all and whether it is just Registrar McMahon's order which need be the subject of review.

19. In my view - and again I think I expressed this on the last occasion - it is necessary to address Registrar Heuzenroeder's order because if all that was done was to address Registrar McMahon's order, and if the husband was successful in that, that would still have left Registrar Heuzenroeder's order and the husband would still be obliged to comply with that.  As I say, in my view his order would have been interpreted to have required a filing of documents within a reasonable time, and to repeat, I consider the delay has been adequately explained.

20. As Mr Berman has rightly put to me, it is a question of balancing the delay and the explanation of the delay against any prejudice to the wife in extending the time for a review to be filed.  I agree with Mr Berman that there is nothing in the evidence before me and nothing that has been put in any submission which would indicate that the wife would suffer any prejudice if I extended the time for the filing of the review application. 

21. That then leaves me to deal with each of the orders of the Registrars.  Obviously the orders are the same in that they require the husband to file a Form 13 Financial Statement.

22. The husband says that given the nature of the application the wife is making, there is no basis for requiring a Form 13 Financial Statement to be filed.  What the husband is saying that the application of the wife for revocation of the approval of the deed needs to be heard first.  Then subject to that application and depending upon the result of it, it would be necessary to address what further application the wife can then make.

23. Obviously if the application for revocation of the approval is dismissed then nothing further will happen in the case, but on the other hand if the application is successful then, as I say, the court will need to address any further application or any consequential application that the wife makes.

24. What the wife has done, as I have indicated already, is that in her application for final orders she has sought an order by way of settlement of property that the husband pay to the wife such sum as this court deems just and equitable.

25. Mr Berman has quite properly pointed out that that is not an application which can proceed at this point, not only because the issue of revocation of the approval of the deed has to be determined first but because the effect of revocation is that the agreement ceases for all purposes to be in force, and for the wife to then seek an order for property settlement, given the passage of time, she would need to seek the leave of the court to institute proceedings for property settlement out of time.

26. I do not make any comment on how successful or otherwise such an application might be, but the fact of the matter is that that is the process.  There would need to be that application and that application will need to be successful before the wife could institute proceedings for property settlement.

27. Mr Berman's submission is that even though the wife has included an application seeking an order for property settlement in her application for final orders it is not in fact before the court at this point in time.  The relevance of that is that a Form 13 Financial Statement has to be filed in accordance with the Rules of this Court and in particular Rule 13.05 in any financial case.  There is a definition of "financial case" in the dictionary to the Rules and that provides:

    "Financial case" means a case (other than an appeal) involving an application:  (a) relating to the maintenance of one of the parties… “,

    that does not apply -

    “(b) relating to the property of the parties to a marriage, or either of them, including …“

    and then it lists a series of applications. Importantly, an application pursuant to Section 87(8) of the Family Law Act 1975 is not included in the list of applications. 

28. As I say, the relevance of Mr Berman's submission about the need for an extension of time first is that there is at this point no application before the court as to the property of the parties to the marriage.  Mr Berman has also referred me to the definition of "matrimonial cause" in Section 4 of the Act which supports that argument.

29. Thus there are really two bases for reviewing the orders of the Registrars.  Firstly, that this is not a case which requires, under the rules, the filing of a Form 13 Financial Statement.  Secondly, even if it did, if it was caught strictly by either the definition of "financial case" or for some other reason, because the first issue that needs to be determined is the revocation of the approval of the deed, there is no requirement for there to be a Form 13 Financial Statement filed in relation to that issue. 

30. Mr Berman points to the particulars that have been filed by the wife, wherein the wife says that there are two bases on which she seeks revocation.  One is that it was not open to the judge who made the order to find that the agreement was proper, and secondly that there was fraud on the part of the husband.  There is no more detail in the particulars than that. 

31. Mr Berman's submission is that that does not of itself introduce any requirement for the husband, now, some seven years later, to file a Form 13 as to his current financial circumstances because that could not bear upon either of the grounds specified by the wife in her particulars of claim.

32. In my view the registrar should not have ordered the husband to file a Form 13 Financial Statement.  I agree with Mr Berman's submissions, both as to the fact that this is not a case within the rules of this court which requires a Form 13 to be filed and in any event, given the nature of the application and the particulars of claim filed by the wife, there is no basis for a Form 13 to be required to be filed by the husband to deal with the application seeking revocation of the approval.

33. Moving to the application for final orders and the response, this matter needs to remain before me, not the least of which because the other two Judges in the Registry are disqualified.  The next step in this process is for the wife to file her trial affidavit.  Mr Jordan asked for two months for that and that is not opposed. 

I certify that the preceding 33 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

15 October 2007