Re Turner, G.J. v Ex parte Turner, P.C

[1995] FCA 56

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA  DISTRICT REGISTRY      )      No. VP 1086 of 1995
  )
GENERAL DIVISION                 )

B E T W E E N:

RE:      GRAHAM JOHN TURNER

EX PARTE: PAMELA CHRISTINE TURNER

JUDGE:    Heerey J

DATE:        15 February 1995

PLACE:    Melbourne

EX TEMPORE REASONS FOR JUDGMENT

The debtor opposes a sequestration order on the ground that the judgment or order on which the bankruptcy notice is founded is not a "final judgment or final order" within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth).

The order in question was an order of the Family Court of Australia made by Judicial Registrar Haines on 7 March 1990.  The order ordered that the husband, the present debtor, pay to the wife, the present creditor, the sum of $70,000 on or before 7 August 1990, such payment to be made as to $40,000 on or before 7 June 1990 and $30,000 on or before 7 August 1990.  The order further provided that upon such payment the wife transfer to the husband, at his expense, all of her interest in the property at 1 Duiker Court, Narre Warren, and that the husband indemnify the wife against payments and liability under the mortgage on that property.  There was a further provision that, if the whole of the payment was not made, the husband sign all necessary documents to transfer the property to the wife on trust for sale to pay out of the proceeds the costs of sale, then to discharge the mortgage, then so much of the payment due to the wife as was outstanding, and the balance to the husband. 

The present case seems to be clearly covered by the decision of the Full Court of this Court in Re Nemeth (1987) 15 FCR 155 in which it was held that the mere fact that an order made by the Family Court may be varied under s 79A(1) of the Family Law Act 1975 (Cth) does not prevent the order from being a "final order" within the meaning of s 40(1)(g) of the Bankruptcy Act. Section 79A of the Family Law Act confers a discretion on the Family Court to vary an order made "in proceedings with respect to the property of the parties to a marriage" if the Court is satisfied of one or other of a number of circumstances, including, for example, that circumstances have arisen since the order was made which makes it impracticable for the debtor to carry it out.  In Nemeth the Full Court applied the reasoning of Starke J in Pepper v McNiece (1941) 64 CLR 642 at 649 where his Honour said:

"An order is not the less final because it is subject to appeal or to reconsideration or to rescission or variation for until rescinded, set aside or varied the order stands with its quality and condition unimpaired."

It was contended by counsel on behalf of the debtor that Nemeth was distinguishable because it was dealing purely with matters of property whereas in the present case there are matters of spouse maintenance involved. I am not persuaded that that would necessarily make any difference. I note that s 43(3)(f) of the Bankruptcy Act does provide specifically that some kinds of  maintenance orders under the Family Law Act are to be deemed final orders.  However, the short answer is that the order in question in the present case was solely concerned with property. 

So much appears from the copy of the application to the Family Court which was in evidence.  The application was in accordance with form 7 under the Rules of the Family Court.  Under the heading, "Application For" various kinds of orders were crossed out, including "spouse maintenance" and "child maintenance".  The only remaining subject matter of the application was "property".  There were references in the creditor's affidavit sworn 27 September 1989 to the effect that she had a child then aged 17 for whom the debtor had made no financial contribution and that the debtor had never given her any money for housekeeping throughout the marriage, that she had always purchased the food and other incidentals and that she paid a debt of the creditor when they commenced living together.

None of this detracts at all from the conclusion that the Family Court order was concerned, and concerned only with making a provision for the creditor to receive property from the debtor.  In my opinion Nemeth is indistinguishable.  The application will be dismissed.

There will be a sequestration against the estate of the debtor.  The date of the Act of Bankruptcy is 8 October 1994.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr M Carrazzo

Solicitor for the applicant:     Bailey, Timms & Nicholson

Counsel for the respondent:      Mr G Devries

Solicitor for the respondent:     Theo Fleming & Robyn Calder

Date of hearing:                 15 February 1995