Stadler & Stadler
[2023] FedCFamC2F 88
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stadler & Stadler [2023] FedCFamC2F 88
File number: ADC 1341 of 2022 Judgment of: JUDGE VASTA Date of judgment: 6 February 2023 Catchwords: FAMILY LAW – review of registrar’s decision – orders made in terms sought by the parties Legislation: Federal Circuit and Family Court Act 2021 (Cth): ss 67, 254, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 14.3, rr 1.31, 14.05
Family Law Act 1975 (Cth) ss 90B, 90KA
Division: Division 2 Family Law Number of paragraphs: 29 Date of last submission/s: 13 January 2023 Date of hearing: In Chambers Place: Brisbane Solicitor for the Applicant: Kyrimis Lawyers ORDERS
ADC 1341 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS STADLER
Applicant
AND: MR STADLER
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
6 February 2023
THE COURT DECLARES THAT:
A. The agreement entered into between the wife and the husband in 2001 is a valid agreement as that term is understood pursuant to s 90KA of the Family Law Act 1975 (Cth)
THE COURT ORDERS THAT:
1.The application for review is deemed to be an initiating application for a declaration that the agreement entered into by the parties on in 2001 is a valid agreement.
2.The application for review is allowed.
3.The application for consent orders filed on 30 March 2022 is granted.
4.Orders are made in terms of the minutes of order signed by the parties and lodged with the application for consent orders filed on 30 March 2022 and annexed to these orders.
NOTATION
A.The agreement signed in 2001 is also annexed to these orders. (Agreement removed as it was unable to be anonymised)
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Stadler & Stadler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
In contemplation of their marriage, that would occur in 2001, the wife, Ms Stadler and the husband, Mr Stadler, entered into a “pre-nuptial agreement” in 2001.
That agreement complied with the requirements of s 90B of the Family Law Act 1975 (Cth) (“the FL Act”).
The parties separated on 1 July 2020 and have remained separated. On 30 March 2022, the wife filed an application for consent orders asking this Court to make orders as set out in the minutes of order signed by the parties and lodged with the application for consent orders.
Those orders are essentially the same as what is contained in the agreement.
The application for consent orders went before a Deputy Registrar in Chambers. On 9 November 2022, the Deputy Registrar dismissed the application for want of jurisdiction.
On 30 November 2022, the wife asked this Court to review that decision.
Reviews of Decisions
Upon the enactment of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”), s 254 permits the Chief Judge to delegate powers of the Division 2 Judges to “delegates”. Relevantly for this matter, the power of a Judge to make the form of order that was made, has been delegated to the Senior Judicial Registrar.
As a “check” on this delegated power, s 256 provides that a party to proceedings in which a delegate has exercised such power can apply to the Court for a review of that exercise of power. The section makes it clear that such an application must be within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court.
The section further provides that, upon reviewing the “exercise of power by a delegate”, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The Rules of Court
Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pertain to the review of exercise of power by a Senior Judicial Registrar or Judicial Registrar. The Rules state that a review must be filed within 21 days after the order or decision is made. The application must be served not later than seven days after it is filed and the application must be listed for hearing as soon as possible and within 28 days after the filing, unless it is not practicable to do so.
The procedure for the review states that a Court must hear an application for review as “an original hearing” which means a rehearing of the whole matter and not simply a review of the decision of the original Court (as would happen in judicial review applications).
The Rules state that the Court may receive as evidence any affidavit or exhibits that were tendered in the first hearing or any further affidavit or exhibit.
The overarching purpose of the Rules of Court (as provided by s 67 of the Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 1.31 allows the Court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time. The Rule further decrees that if a Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Consistent with the overarching principles of both the Act and these Rules, I am of the view that the power to review the decision of a Senior Judicial Registrar, or Judicial Registrar, should not be seen as merely another step in the case management process. Nor should it be seen as a vehicle by which parties can take their matter out of the normal case management process and bring it before a Judge in an attempt to somehow “bypass” the case management process.
Whilst the Rules state that the Court must embark upon “an original hearing”, that simply means that the Court is not limited to ascertaining whether there is a jurisdictional error in the manner in which the “delegate” has exercised their power. The focus is still on the decision of the “delegate” but the Court is not limited in how it conducts the review.
This Review
I have decided that this review will be conducted as an original hearing on the papers with the consent of the parties. To this end, I made a number of directions requiring the parties to make their submissions.
Only the wife made submissions, however as the application before the Registrar was a consent order, it is not unreasonable to infer that the husband concurs with the submissions of the wife and would also want the Court to allow the review and give its imprimatur to the consent orders.
The validity and enforceability of financial agreements
Section 90KA of the FL Act states that:
The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.
A Court can only make orders under this section if there are “proceedings relating to such an agreement”. This means that a Court must determine that the agreement is valid, enforceable or effective before it orders that the agreement be enforced.
How does this apply to the present case?
What has not been answered, in any of the material before the Court or the submissions of the parties, is why there is a need for the consent orders. The parties can simply agree to do certain things in accordance with the agreement that they have made. Why the parties need the Court’s imprimatur, to do what they have already agreed to do, is a mystery. Nevertheless, it is what the parties have asked the Court to do.
It is trite to say that if the agreement is valid, then the Court has no jurisdiction to interfere with that agreement.
The wife submits that s 90KA(c) gives the Court power to make an order that the agreement be enforced as if it were an order of the Court. While that is undoubtedly so, this power can only be exercised once a Court has determined the question as to whether the agreement is “valid, enforceable or effective” pursuant to s 90KA.
The Court has not been asked to make such a ruling. The proper manner in which the Court should make such a ruling is in response to an initiating application seeking a declaration, pursuant to s 90KA that the agreement is “valid, enforceable or effective”. Without such a mechanism to “get the ball rolling”, the Court has not been able to establish the fundamental prerequisite for it to exercise the power under s 90KA(c).
This means that, in a proper interpretation of the legislation, the Deputy Registrar was correct in ruling that there was a “want of jurisdiction”. This is consistent with what the representative for the wife has said in their submissions which was that the Registrar had sent an email telling the parties that the Court’s jurisdiction was only enlivened after it determined the threshold question in s 90KA and that an initiating application would be required to be filed.
What order should I make?
This question has perplexed me somewhat. There is no explanation as to why the consent orders need to be made. It would seem that the parties should be required to explain why such orders are needed. There are no apparent reasons why the Court should not require an initiating application to be made so that the Court can answer the threshold question and then exercise the subsequent power.
However, this is now the second time that the wife (and the husband) have put the consent orders before the Court and if I were to dismiss the application, it would mean a further delay and further expenditure of costs by forcing the wife to file an initiating application so the Court can answer a question to which the answer is already clear.
This is an unusual case because there is no need for Court orders when parties wish to enforce an agreement that they both agree is a valid agreement. But for some reason, which is unknown to the Court, they both wish for the Court to make these orders.
However, the overriding mission of this Court is to act without rigid formality if such rigidity gets in the way of a quick and proper resolution of the matter. Even though it would seem contrary to the legislation, I am treating the application for review and submissions as if they were an initiating application.
Whilst it is in many ways against my better judgement, I will make a ruling that the agreement is a valid agreement and make an order enforcing that agreement in the terms of the consent orders.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 6 February 2023
0
0
0