Owen & Owen (No. 2)

[2020] FamCA 1003

FAMILY COURT OF AUSTRALIA

Owen & Owen (No. 2) [2020] FamCA 1003

File number(s):	CAC 1752 of 2016
Judgment of:	GILL J
Date of judgment:	27 November 2020
Catchwords:	FAMILY LAW – practice and procedure – review of decision by Registrar to execute document – extension of time for review
Legislation:	Family Law Act 1975 (Cth) 106A
Number of paragraphs:	8
Date of hearing:	27 November 2020
Place:	Canberra
Counsel for the Applicant:	Ms Drewitt
Solicitor for the Applicant:	Frank Law
Solicitor for the Respondent:	Self-representing

ORDERS

CAC 1752 of 2016

BETWEEN:

MS OWEN

Applicant

AND:

MR OWEN

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	27 NOVEMBER 2020

THE COURT ORDERS THAT:

1.Leave is granted to extend the time to seek Application of the Review of the Registrar's decision to execute the document to the Real Estate Institute of 13 October 2020 to 27 November 2020.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX-TEMPORE REASONS FOR JUDGMENT

GILL J:

1. This matter concerns an application to extend time for the review of the Registrar's decision to execute documents.  The execution of documents by the Registrar was purportedly pursuant to orders made on 10 May 2019 that provide a mechanism where a party is in default in the execution of the documents necessary to effect the orders to execute the orders on behalf of the party or parties.

2. On 13 October 2020 Registrar Walker-Munro executed a document directed to the Real Estate Institute to facilitate the sale of the property the subject of order 1 of the orders of 10 May 2019. 

3. The review period for a decision which appears to be made pursuant to s 106A of the Family Law Act (Cth) 1975 is 21 days.  That 21 day period expired on or about 3 November 2020.  An Application was filed seeking review of that step taken by the Registrar on 24 November 2020.  The application for extension was clearly made out of time.

4. The husband accepts that he did not tell the wife that the Application had been made to the Registrar and says that he was not obliged to do so because the terms of the orders of 10 May 2019 set out a mechanism which simply requires him to file an affidavit setting out the default so that the Registrar is able to execute the relevant document.  It is not clear that there is no requirement to notify the wife of such an Application to the Registrar.  The husband is correct that on a number of occasions prior to making Application to the Registrar he had warned the wife that he intended to do so, but accepts that at no stage did he tell her that he had in fact made the Application to the Registrar.

5. The decision whether or not to extend the period falls to be determined in accordance with the main purposes of the Rules and in this case falls to determined on the interests of justice. I doubt that the orders mean that the husband was able to simply file an affidavit without placing the wife on notice of having taken that step, but without resolving that particular issue, if the orders provided a strict code by which relief under s 106A was to be given, then the husband himself did not comply with that strict code as the affidavit that he provided was not the affidavit of a solicitor which is the form of affidavit that is stipulated by the relevant order.

6. There are two matters then that go to the interests of justice in the extension of time.  The first is the delay in filing the Application for Review is explained by the wife having no actual or direct notice of the Application being made, even though there was some notice of the intention to make an Application.  The absence of having been told the Application was being made explains the delay. 

7. The second aspect is the merits of the Application.  These are proceedings where a review is a review ab initio, being a review from scratch, and makes the identification of error perhaps unnecessary but where there is clear non-compliance with that which was in place to facilitate the execution of the documents that is a matter that informs the considerations of the interests of justice in a manner as to justify an extension of time. 

8. Accordingly, leave is granted to extend the time to seek Application of the Review of the Registrar's decision to execute the document to the Real Estate Institute of 13 October 2020 to 27 November 2020.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       30 November 2020