Owen & Owen (No. 3)

[2020] FamCA 1022

FAMILY COURT OF AUSTRALIA

Owen & Owen (No. 3) [2020] FamCA 1022

File number(s):

CAC 1752 of 2016

Judgment of:

GILL J

Date of judgment:

4 December 2020

Catchwords:

FAMILY LAW – review of Registrar’s decision to execute the document – where the wife seeks that it be set aside – where s 106A discretion should not become a Trojan horse for a de facto s 79A attack upon the orders – where it is justified that relief be granted – reasonable concession of factual matters on behalf of the wife

Legislation:

Family Law Act 1975 (Cth) ss 79A and 106A

Family Law Rules 2004 (Cth) 18.10

Cases cited:

Sohrab & Bahar [2017] FamCA 199

Number of paragraphs:

18

Date of hearing:

27 November 2020

Place:

Canberra

Counsel for the First Applicant:

Ms Druitt

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:	4 DECEMBER 2020

THE COURT ORDERS THAT:

1.The application of the wife of 24 November 2020 to aside of the orders of Registrar Walker-Munro of 13 October 2020 executing the document for the Real Estate Institute of NSW is dismissed;

2.The wife’s Application in a Case of 24 November 2020 is 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 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).

REASONS FOR JUDGMENT

GILL J:

1. The parties entered into consent orders resolving their property litigation on 10 May 2019.

2. The terms of those orders are set out at the end of this judgment.  They included provisions directing the parties to take particular steps in relation to indemnification of the other party, and removing the other party from guarantees, liabilities and responsibilities in respect of particular items of property.

3. The parties accepted that a number of the obligations cast upon the parties have not been fulfilled.  The steps to be taken by the parties that were the focus of application and argument were to be undertaken within 90 days of the making of the orders, a time frame that lapsed in August 2019.

4. The subject of these proceedings was the default provision in respect of one of the properties of the parties.  The default provision at Orders 3, 4 and 5 provides for the sale of the real estate interest held at H Town on default.

5. Specifically, the proceedings concern the execution by the registrar of a document directed to the President of the Real Estate Institute of NSW as provided for in Order 3.

6. The wife accepted that, if the property was to be sold in accordance with the default provisions, then the document was a necessary document to be executed, implicitly accepting her obligation to execute the document.  The wife has not executed the document.

7. The husband, in reliance on the provisions contained within the orders for the execution of documents where a party has failed to do so, obtained the Registrar’s signature on the document.  In doing so, he did not place the wife on notice of his application to the Registrar, although he informed her of his intention to apply to the Registrar.  The husband provided the Registrar with an affidavit setting out the requirement for the execution of the document.  The affidavit was not the affidavit of a solicitor as was required under the orders.

8. The decision of the Registrar to execute the document is now the subject of review, with the wife seeking that it be set aside.

9. In reviewing the decision, the provisions at Rule 18.10 apply.  It is a review as an original hearing, and so the question to be determined is whether, on the evidence, the document should be executed, rather than identifying whether there was a defect in the process or conclusion reached by the Registrar.

10. The power being exercised is that set out at s 106A. The Rules provide mechanisms surrounding the exercise of the power. The orders entered into by the parties dispense in part with the application of the Rules. The issue is whether I should exercise the power to appoint the Registrar to execute the document that has been executed. If not, steps will be required to reverse the effects of the execution of the document. If so, there is no need for further steps to be taken, the Registrar having already executed the document.

11. In considering the matter, it is apparent that:

    (a)The time for the wife to comply with the conditions at Orders 1 and 2 has passed, without the wife effecting the obligations cast upon her by those orders;

    (b)The time for compliance lapsed in August 2019;

    (c)The default provisions for those orders provide for the sale of the H Town property;

    (d)The document executed by the Registrar was a document necessary to effect the sale in accordance with the default terms; and

    (e)The wife has not executed the document executed by the Registrar, and indicates no intention to do so.

12. The wife resists the execution of the document in her stead.

13. The wife says that she cannot now comply with her obligations at Orders 1 and 2.  She says that she cannot do so due to the effects of the husband not effecting his obligations at Orders 8, 9 and 10 of the orders, thereby depriving her of the ability to obtain finance necessary to give effect to Orders 1 and 2.  The husband accepts that he has not done so, asserting that he, too, is unable to do so.

14. The wife claims that the orders are frustrated by virtue of the husband’s failure and so the relief that he seeks should not be granted. Although the wife has intimated that she will make an application pursuant to s 79A in reliance upon these circumstances, she has not done so.

15. In considering the discretion in relation to the granting of relief under s 106A, in Sohrab & Bahar [2017] FamCA 199 I said:

    An application under s 106A does not entitle a court to reconsider the appropriateness of the orders made at trial. It provides a mechanism to cause orders to be carried out. However, the granting of relief is expressed as a matter of discretion. Once the preconditions set out in paragraphs (a) and (b) are met, the court may grant the relief.  Accepting that the onus is on the applicant for the relief to demonstrate that the relief ought to be given, typically, the meeting of the preconditions set out in paragraphs (a) and (b) will see the relief granted.  The fact that parties are entitled to the fruits of their litigation of itself provides a strong reason why the relief ought to be given, meaning that normally a strong basis for the refusing of relief will need to be made out before the relief is withheld.  However, reason not to give the relief may arise where the giving of the relief would significantly distort the effect of the orders made.  Such a circumstance may, but will not always, arise where the party seeking the relief is not compliant with other aspects of the orders.

    And further:

    A significant distortion of the effect of orders may arise where there is a clear interaction between the orders that have not been complied with by a party and those orders that the same party seeks to enforce by means of s 106A. It may also arise where a significant risk to the overall scheme of the orders is demonstrated as arising from the failure of the party who seeks relief pursuant to s 106A to comply with other orders.

16. That does not mean that the discretion in relation to s 106A becomes a Trojan horse for a de facto s 79A attack upon the orders. Once the applicant has demonstrated that the grounds for the relief have been made out, as identified above, relief will usually follow. In this case default provisions were agreed by the parties in relation to non-compliance with Orders 1 and 2. No corresponding default mechanism was put into place in relation to Orders 8, 9 and 10. No specific link was drawn between the operation of Orders 1 and 2 with Orders 8, 9 and 10. The absence of such points against any withholding of relief. Although the wife points to failure to comply with Orders 8, 9 and 10 resulting in the wife not retaining finance in order to comply with Orders 1 and 2, if that is a justification for resetting the orders, then, it seems, the only avenue for relief is pursuant to s 79A. This should not be taken to suggest that relief will be available or should be granted pursuant to s 79A, merely that s 79A is the only provision for the setting aside of such orders.

17. The effect is that, even though the husband did not comply with either the Rules, nor with the provisions in the orders for obtaining the s 106A relief, the matters identified above justify such relief being granted, particularly on the reasonable concession of factual matters on behalf of the wife.

18. Accordingly the order that would result would be for the Registrar to execute the relevant document.  That step having already been taken, the appropriate order is for the wife’s application for the setting aside of the orders of Registrar Walker-Munro of 13 October 2020 be dismissed along with the wife’s Application in a Case.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       4 December 2020