Myers and Myers

[2012] FamCA 300

FAMILY COURT OF AUSTRALIA

MYERS & MYERS [2012] FamCA 300

FAMILY LAW - PRACTICE & PROCEDURE – ORDERS – application for an extension of time for the wife to file an application for review of consent orders made by a Registrar of the Family Court – consent orders were made between the parties for the wife to transfer a property to the husband and to receive an agreed sum – parties complied with consent orders - the wife confirmed that she had read and understood the statement of truth in respect of her knowledge and understanding of the property settlement proposed in the application for consent orders – where the statement of independent legal advice for the husband was completed but was not completed for the wife – where the Registrar wrote to the parties noting that the independent legal advice certificate was unsigned and sought more information to satisfy himself that the outcome proposed was just and equitable – where the wife sought advice from a Community Legal Centre in relation to the Registrar’s letter – where the wife did not take steps to advise the court that she wished to withdraw her consent to the proposed orders and was unable to provide medical evidence to support the proposition that she was incapable of addressing the situation of seeking to set aside the consent orders – where there is no evidence of a much higher value for the property transferred as asserted by the wife and there is evidence of reduction in the value of the property transferred since consent orders were made – where the wife would be unlikely to meet a costs order against her if leave was granted and a review was undertaken – orders made dismissing the application of the wife for extension of time

Family Law Rules 2004 (Cth), rr 1.14 & 18.08

Emmett v Emmett [2011] FamCAFC 213
Gallo v Dawson [1990] HCA 30
Re Commonwealth; Ex parte Marks [2000] HCA 67

APPLICANT: Ms Myers

RESPONDENT: Mr Myers

FILE NUMBER: NCC 2376 of 2011

DATE DELIVERED: 30 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 April 2012

REPRESENTATION

COUNSEL FOR THE  APPLICANT: Mr Gorton

SOLICITOR FOR THE APPLICANT: Baker Love
inc. Rutter Morgan

SOLICITOR FOR THE RESPONDENT:

Mr Haricharan

Hunter Family Law Centre

Orders

1. The Application in a Case filed by the wife on 28 February 2012 for an extension of time for the filing of an Application for a Review of a Registrar’s decision is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myers & Myers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2376 of 2011

Ms Myers

Applicant

And

Mr Myers

Respondent

REASONS FOR JUDGMENT

Applications

1. This is an Application in a Case made by the Applicant Wife, Ms Myers.  The application was filed on 28 February 2012 and returnable in a duty list on 23 April 2012.  The application seeks the following orders:

   ·Pursuant to rule 1.14 of the Family Law Rules 2004 (the Rules) the time for the wife to file an application for review of the consent orders made on 2 November 2011 pursuant to rule 18.08 of the Rules be extended to 7 days from today.

2. The wife, if successful, seeks to then transfer the proceedings to the Federal Magistrates Court.

3. This application is opposed in a Response to an Application in a Case filed by the husband, Mr Myers on 12 April 2012.

4. The applicant relied on the following:

   ·Application in a Case filed on 28 February 2012; and

   ·Affidavits filed 27 March 2012 and 28 February 2012.

5. The respondent relied on the following:

   ·Response to an Application in a case filed on 12 April 2012;

   ·Affidavit filed on 18 April 2012; and

   ·Affidavit of Valuer Mr R filed on 20 April 2012.

Short History

1. This was a long marriage.  In 1987 the parties started living together.  In 1991 they married.  There were two children of the relationship, now aged 17 and 12 years.  On 20 June 2010 the parties separated and have been divorced.

Property settlement

1. An Application for Consent Orders was made by both parties, filed in the court on 12 September 2011.  The consent orders proposed were dated 9 September 2011 and were signed by each party and their respective solicitors.  The relevant sections of the application for consent orders, in particular part J and L were completed, these are the “Statements of Truth” of each party.  Thus each party confirmed that he and she had read and understood the statement of truth in respect of knowledge and understanding of the property settlement proposed.  The statement of independent legal advice for the wife (Part M) was not completed.  The husband’s was (Part K).  It seems clear that the wife was legally represented at the time the orders were signed but not when the Application for Consent Orders was signed.  What the wife says about that is contained in her affidavit[1], that is, in the first part of 2011 she and her husband had commenced negotiations for property settlement each with the assistance of a lawyer.  Thereafter the wife “decided not to retain a lawyer and continued the negotiations without the assistance of legal advice”.  The wife concedes that she executed the Application for Consent Orders and asserts that she did not receive legal advice at the time of executing the documents[2].

   [1]  Wife’s affidavit, affirmed 24/2/2012, para 6

   [2]  Wife’s affidavit, affirmed 24/2/2012, para 7

2. On 5 October 2011 a Registrar of this Court wrote to both the wife and the solicitor previously acting.  The Registrar noted that the independent legal advice certificate was unsigned and sought more information to satisfy himself that the outcome was just and equitable[3].  The Registrar in his letter says this: 

   Leaving out superannuation, where I would accept there is a reasonable proposed adjustment, it otherwise seems very light on to me as far as the proposed payment to the wife is concerned.

   [3]Wife’s affidavit, affirmed 24/2/2012, Annexure B

3. The Registrar finally advised that the matter could be re-visited at any time after he received satisfactory responses to his request for further information, but he would otherwise list the matter back in chambers in approximately one month’s time.

4. The evidence suggests that the wife then sought advice from the Hunter Community Legal Centre, taking the Registrar’s letter of 5 October 2011 with her.  In a letter dated 31 October 2011, the Centre raised matters for clarification[4].

   [4]  Wife’s affidavit, affirmed 24/2/2012, Annexure C

5. On 1 November 2011, solicitors for the husband responded to that letter advising that the valuation of the property was proposed by the wife and accepted by the husband and that the parties had agreed on an equal split of the husband’s superannuation.  Also in that letter there is reference to the wife having previously been represented by solicitors, Baker Love Lawyers, but that the parties had negotiated the settlement themselves and further that Lambton Law, the husband’s solicitors, had themselves advised the wife that she could seek legal advice.

6. On 2 November 2011 orders were made by consent in chambers by the Registrar.

7. On her own evidence the wife did not make contact personally or through any solicitor or legal centre representing her with the Registrar after receipt of the letter of 5 October 2011 until February 2012 .

8. On 22 November 2011 solicitors for the husband wrote to the Legal Centre confirming that the matrimonial property had been transferred into the husband’s name pursuant to the orders. 

9. The wife concedes that she received the agreed sum by way of settlement.

10. On 16 January 2012 Hunter Community Legal Centre wrote to the wife[5] confirming the instructions they had received on 14 December 2011.  It contains this statement, “we note that you are not pursuing your objection to the Consent Order Application and intend to contact Lambton Law to obtain your settlement monies”.

    [5]  Wife’s affidavit, affirmed 24/2/2012, Annexure N

11. On 13 February 2012 the wife wrote to the Registrar by email[6], four months after the receipt of his letter.  In that letter the wife refers to feeling that she had signed the Consent Orders under duress and that she had felt pressured into signing.  She also said “I did not have legal representation at this time as I had found a job and had left it because of all the stress”.  The wife also raised the valuation of the property being higher than that referred to in the support documents to the original Consent Orders.

    [6]  Wife’s affidavit, affirmed 24/2/2012, Annexure G

12. It is clear on the evidence of the wife that she did not take steps to advise the court that she wished to withdraw her consent to the proposed orders.  That would be understandable where she was seeking legal advice and perhaps believed that she had unlimited time to consider her position.  However, it was also clear that the wife had made a decision in December 2011, for reasons which are unavailable to the court, not to pursue an objection to the Consent Orders.

13. Finally, it is clear that by February 2012 the wife had again changed her position and sought to take up the issue once more.  At the end of February 2012 this application was filed. 

submissions

1. Each party has made submissions, the husband in writing.  I accept the submission of the husband in relation to the principals relating to extensions of time, that is that the grant of an extension of time is not automatic[7].  The object of the Rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice[8]. In this case the Rules provide for a broad discretion for the shortening or extension of time in respect of any procedural order under the Rules.[9]  The particular Rule in this matter is the review of an order of a Registrar.[10]

   [7]  Gallo v Dawson [1990] HCA 30; Re Commonwealth; Ex parte Marks [2000] HCA 67; Emmett v Emmett [2011] FamCAFC 213 (May, Ainslie-Wallace & Young JJ) at [34]

   [8]  Gallo v Dawson [1990] HCA 30

   [9] Family Law Rules 2004 (Cth), r 1.14

   [10] Family Law Rules 2004 (Cth), r 18.08

The law

1. I must take into account the circumstances of the matter[11].  In this case a property has been transferred and the wife has received the agreed sum.  There is no evidence before me of a much higher value for that property as is asserted by the wife in her material.  There is evidence from the husband by way of valuation of a reduction in the value of the property since the Consent Orders were made.

   [11]  Gallo v Dawson [1990] HCA 30

2. By the wife being unable to show or to provide evidence of the property being of a much higher value and the evidence of the husband showing that there has been a reduction in the value of the property since the Consent Orders were made, then there is unlikely to be an injustice to the applicant by the refusal to grant an extension of time.

3. The circumstances of the parties and the size of the asset pool means that in the event that the leave was granted and a review was undertaken, the costs of a contested hearing would be beyond both of the parties.  It would be unlikely that the wife would be able to meet a costs order against her in the event that the outcome was not significantly different to what was agreed between the parties in the consent orders.

4. Further, I accept the submission on behalf of the husband that if leave is granted then the husband is likely to face injustice as he “has complied with the Orders, refinanced the property, paid legal fees and has commenced carrying out building work on the former matrimonial home”. 

5. I also accept the submission that there is no medical evidence on behalf of the wife which would support the proposition that she was incapable of addressing the situation of seeking to set aside the Consent Orders or (as she has done) seek leave to extend the period of time for review, prior to February 2012.

6. The wife in her affidavit filed 27 March 2012 annexed two medical certificates. The wife’s medical evidence suggests that she was unwell from 15 August 2011 to 15 November 2011. However, the wife has not put any evidence to indicate that she was unwell (depressed) after 14 November 2011 and that she may have sought to set aside the Consent Orders after 22 November 2011 and prior to February 2012

7. Accordingly the application of the wife for extension of time is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 May 2012.

Acting/Associate:    

Date:    30 May 2012