Stierznow-Almer and Almer (No. 2)

[2009] FamCA 714

FAMILY COURT OF AUSTRALIA

STIERZNOW-ALMER & ALMER (NO. 2) [2009] FamCA 714

FAMILY LAW – REVIEW – Property – review of Judicial Registrar’s orders

APPLICANT: Ms Stierznow-Almer

RESPONDENT: Mr Almer

FILE NUMBER: PAC 777 of 2009

DATE DELIVERED: 28 July 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 28 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Navado Lawyers & Solicitors

FOR THE RESPONDENT: In person

Orders

1. That the husband’s Application in a Case filed 24 June 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Stierznow-Almer and Almer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  PAC 777 of 2009

MS STIERZNOW-ALMER

Applicant

And

MR ALMER

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, a Judicial Registrar made Orders on 13 May 2009.

2. Those orders were essentially to provide for interim spousal maintenance and to preserve the assets of the parties.

3. On 1 June 2009 the husband filed an Application in a Case.  The application was essentially to permit him to purchase some vacant land in Tasmania for $230,000.00 - $23,000.00 of which he said he had because his father had lent it to him and had used it as the deposit on that land.

4. Among other things, the orders the husband sought in his application was that an order the Judicial Registrar made on 13 May 2009 in relation to the consent of the wife being obtained by the husband for him to settle the purchase of land in Tasmania be rescinded.

5. In fact, on 13 May 2009 the Judicial Registrar made an order that restrained the husband from encumbering or dealing with or disposing of, or in any other way dealing with, certain property including the former matrimonial home at S. This appears to me to be what Order 5 of the Orders made 13 May 2009 was directed at.

6. The matter came before Rose J on 9 June 2009.  On that occasion, the husband was represented by a solicitor.  Rose J questioned what Order 5 meant, and I am informed by Ms Whitby, solicitor for the wife, who I accept as providing me with accurate information, that on that occasion the solicitor sought to rely upon a slightly different order, in place of Order 5.  The order the solicitor for the husband sought in its place was that Order 2.14(c) of the Orders made by the Judicial Registrar on 13 May 2009 be set aside so that the husband can further encumber the former matrimonial home situated at S for the sum of $68,000.00 to enable settlement of the part of the purchase of a property in Tasmania.

7. Rose J, I am told by Ms Whitby, who was present in Court appearing for the wife, also asked the husband’s solicitor what other orders made by the Judicial Registrar on 13 May will be challenged.  I am told that His Honour asked this repeatedly, and on each occasion, was informed no other orders.  However, on 24 June 2009 the husband filed a fresh Application in a Case.  This application clearly contains nothing but challenges to, or orders made by, the Judicial Registrar on 13 May 2009, as it is not an application to vary those orders.

8. This application, if it is really an appeal from the Judicial Registrar’s orders - and I think it is - is out of time.  It is also an abuse of process, because there was already, in effect, an appeal lodged from one of the Judicial Registrar’s orders, and that was not only in front of Rose J, but is now part-heard before him.

9. If I am wrong in thinking that the Application in a Case of 24 June 2009 is an appeal out of time, then it can only be an application to vary the Judicial Registrar’s orders, which have become final orders, with the exception of the matters before Rose J.

10. In theory, it could be that the husband’s circumstances have changed since the Judicial Registrar’s decision, as well as since the matter came before Rose J.

11. In reality, an overview of all of the evidence the husband relies on before me leads me to conclude that there is absolutely nothing new in what the husband has said or was seeking to say to me.  Anything contained in those affidavits, in the general sense, could have been put before the Judicial Registrar or Rose J.  There are some minor matters that have occurred since Rose J last had the matter before him, but they are, in the scheme of things, less than could be held to amount to a substantial change of circumstances.

12. The husband claims that there has been a threat to sell the home, but subsequent to that threat, payments have been made on the mortgage, and at the moment there are only two payments behind.  There were one or two payments behind when the matter came on before Rose J, and the general financial circumstances of the parties has not only been available to be dealt with by him;  it was dealt with by the Judicial Registrar and it has barely changed since then.  It certainly has not significantly changed on an overall basis.

13. In all of the circumstances, the attempt to bring what are, in effect, two appeals, results in the second appeal being an abuse of process, particularly as the solicitor acting for the husband steadfastly declined to apply to make any further appeal from the Judicial Registrar’s orders as recently as 9 June 2009.  If, as the husband says, the application before me is not an appeal from the Judicial Registrar’s orders, it too should have been brought before Rose J, because whatever the circumstances which now exist, existed at the time the application was brought before Rose J.  In any event, both since the orders of the Judicial Registrar and since the hearing before Rose J, there have been no significant change of circumstances.

14. In view of that, the Application in a Case of 24 June 2009 should be dismissed.

15. The reason being that it is either out of time in circumstances where, because there is a part-heard application before Rose J involving an appeal, and during that application, the solicitor acting for the husband refused to expand the appeal, or because the application before me, if it is not an appeal from the Judicial Registrar also should have been brought before Rose J because the facts that supported were known to the husband at that time.  In any event, there has been no significant change in circumstances, either since the Judicial Registrar made the orders that are now sought to be varied, and there has been no change in circumstances of a significant nature since the hearing was last before Rose J.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  6 August 2009