Seyler & Seyler
[2008] FMCAfam 361
•11 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEYLER & SEYLER | [2008] FMCAfam 361 |
| FAMILY LAW – Property order made – obligation to set aside order – application flawed. |
| Family Law Act 1975 (Cth) |
| Wilkes & Wilkes (1981) FLC 91-060 Johansen & Babel [2007] FamCA 1525 |
| Applicant: | MR SEYLER |
| Respondent: | MS SEYLER |
| File number: | TVC830 of 2007 |
| Judgment of: | Coker FM |
| Hearing date: | 11 March 2008 |
| Date of last submission: | 11 March 2008 |
| Delivered at: | Townsville |
| Delivered on: | 11 March 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Hibble |
| Solicitors for the Respondent: | Nelson Lawyers |
ORDERS
The Application filed on 3 December 2007 be dismissed.
Costs be reserved.
The Legal Representatives for the Wife be granted liberty to apply within 60 days of today in relation to the issue of costs.
IT IS NOTED that publication of this judgment under the pseudonym Seyler & Seyler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC830/2007
| MR SEYLER |
Applicant
And
| MS SEYLER |
Respondent
REASONS FOR JUDGMENT
Proceedings were commenced in this Court on 28 June 2007 by
Ms Seyler whom I shall refer to as the wife. She sought orders in relation to a property settlement to be effected between herself and the husband, Mr Seyler. The proceedings came before the Court and an order was made on 8 October 2007, which provided for a settlement of property generally in terms of that which was sought by the wife.
Subsequently, the husband filed an application on 3 December 2007. In that application he sought on an interim basis, an order in these terms:
Injunction preventing sale of property in case TVC830 of 2007, pending hearing of decision.
The husband then sought on a final basis, orders with regard to the sale of the property which was the subject of the earlier orders, but on a basis that it be sold by an agent approved by both parties, and for a sum approved by both parties, and that thereafter there be a distribution of funds: firstly, to the ANZ Bank including the payment of the Visa card, selling agent's fees, the solicitor's fees to do with the sale; a payment then to the husband of $90,000 being the reimbursement of a deposit paid in relation to the purchase of the property; the payment of $50,000 to the Australian Tax Office; and that any remaining monies then be divided equally between the parties. It was proposed also by the husband that each party should then retain their own superannuation and bear their own costs in relation to the proceedings.
A response was filed by the wife on 24 January 2008, which sought orders in relation to dismissal of the application filed on 3 December 2007, and an order that the husband pay the wife's costs associated with the proceedings.
Interim orders were also sought in relation to completion of forms and other documentation necessary to effect the sale of the property envisaged pursuant to the Orders of 8 October 2007.
The application before me has been argued strongly on the part of the wife on the basis that the application should be dismissed. It is argued on the basis that the husband has failed to meet any of the obligations that are required in relation to an application, for example, to set aside an order. In particular, I am referred to the decisions of the Full Court of the Family Court in Wilkes & Wilkes (1981) FLC 91-060 and the decision in Johansen & Babel [2007] FamCA 1525.
In Wilkes (Supra) case which was approved in Johansen & Babel (Supra), consideration was given to the various matters that would need to be considered by a Court in relation to an exercise in discretion to set aside orders. They include the relevant circumstances including the need to end the litigation, the reasons proffered for the non-appearance of the party, the delay in bringing the application, prejudice to the other party which could not adequately be compensated for by an order for costs, and whether there appeared to be a real issue to be tried on the merits.
The husband has set out a number of matters of concern in relation to the circumstances upon which the orders have been made. He referred particularly to circumstances with regard to his health and to concerns in relation to his capacity to properly represent his position in relation to the matter. He indicated also in his material that he was, at least for part of the time during which the proceedings were on foot, incarcerated and therefore was not in a position to appear.
He indicates financial concerns in relation to how the matter might have been properly dealt with. With respect, however, he does not explain why no material was filed in relation to the proceedings though no doubt the husband is able, if given the opportunity to do so. Unfortunately, the situation also remains that the husband has not presented medical evidence in relation to the matter that is before me, but of course, indicates that he would be able to do so given the opportunity.
He indicates that there is evidence of financial contributions made by him, including a payment of the deposit, he says, of $90,000, which was put toward the purchase of the property the subject of the proceedings, and that as the marriage was only of very short compass, that there should be a reimbursement made.
He refers to a taxation liability being capital gains tax arising from the sale of a previously owned property which was utilised toward payment of the deposit in relation to the purchase of the subject property. No evidence is, however, before the Court. Of course, I must, as I am, be mindful of the fact that the husband acts on his own behalf and that there are clearly concerns that arise there, and there must be some discretion exercised in relation to such matters.
Just as clearly however, the wife is, through her legal representatives, entitled to know the case they are required to answer. What troubles me however more in relation to this matter is the question of whether I might be, to use the Latin maxim, functus officio. In other words, on the material that was before me on 8 October 2007 I determined, rightly or wrongly, what were to be the orders in relation to the proceedings. And I note the definition of words and phrases legally defined in the Butterworths publication, "functus officio" includes a notation to the effect, the term means:
That the person who decides something is precluded from again considering the matter even if new evidence or arguments are presented to him.
It occurs to me that in this case I am being asked specifically to do what seems to be outside the power of the Court, at least insofar as the type of application which is before me. In the decisions to which I have already referred, Wilkes (Supra) and Johansen & Babel (Supra), there is specific notation to the effect that they are Appeal Court decisions.
The husband in his address to me indicated that he had approached Legal Aid in relation to this proceeding but was advised that it was an appeal matter. And, when he then spoke with legal advisors he was told that there would need to be a significant financial contribution by him. He indicates that he was not able to afford that, and for that reason has taken the steps to approach the matter in the manner that he has done. Whilst that may be understandable, it is also not a proper or appropriate course to follow in relation to the matter.
Whilst I would indicate here that I have certain sympathies for the husband in relation to these matters, particularly noting the indications given with regard to his medical circumstances and his unfortunate circumstances with regard to not being able to continue in his career in the Defence Force, the fact is the decision has been made. The husband was aware that the appropriate and proper approach was to make an appeal in relation to that matter. He has not done so, notwithstanding the fact that the application has been filed.
The remedy does not arise simply from the fact that the Registry has accepted the documentation. A decision has been made. I am of the view that I am to use, as I said, the Latin maxim, functus officio. The appropriate approach, if I am wrong, was to proceed by way of appeal. The application now before me is in my view fundamentally flawed. It must accordingly be dismissed, and I intend to so order in relation to such matters.
What flows from that then is the question of costs. I have been asked on behalf of the wife to seek or to make an order in relation to costs. In my view it not necessarily appropriate that I should do so at this time. The husband indicates that his financial circumstances are dire. One would hope that there may be some opportunity for him to take advice in relation to this matter. And, whilst Legal Aid may not be the appropriate course, one would hope that Community Aid or other matters including Defence Community Organisation may be able to provide some assistance and direction.
What I am more inclined to do, therefore, is to reserve costs in relation to the matter on the basis that if there is no resolution as between the parties, or advice received by the husband, then the legal representatives for the wife are at liberty within 60 days of today to seek to have the matter of costs revisited, should that be necessary.
RECORDED : NOT TRANSCRIBED
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 2 May 2008
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