TAN and GUAN

[2021] FCWA 39

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: TAN and GUAN [2021] FCWA 39

CORAM: SUTHERLAND CJ

HEARD: 23 DECEMBER 2020

DELIVERED : 4 MARCH 2021

FILE NO/S: PTW 2649 of 2020

BETWEEN: MR TAN

Applicant

AND

MS GUAN

Respondent

Catchwords:

REVIEW - Application for an extension of time to review Registrar's decision - Extension of time necessary to do justice between the parties

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Robertson
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Norman Waterhouse Lawyers
Respondent	:	Fahey Mwenda & D'Adamo

Case(s) referred to in decision(s):

Mirren & Mirren [2020] FamCAFC 94

Stewart & Stewart [2012] FCWA 103

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tan and Guan has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1 I am asked to determine whether to grant [Mr Tan] (“the husband”) an extension of time to review the decision of a Registrar to make consent financial orders on 28 April 2020 (“the consent orders”), pursuant to an Amended Application for Consent Orders filed on 17 April 2020 (“the Amended Application”) by [Ms Guan] (“the wife”). In short, the wife opposed the husband’s application for an extension of time / review and instead effectively sought that the husband should be required to proceed with his alternative application pursuant to s 79A of the Family Law Act1975 (Cth) to set aside the consent orders.

2 In support of his application for an extension of time / review, the husband relied upon his financial statement filed on 7 August 2020, his affidavits filed on 7 August 2020 and 18 October 2020 and the affidavit of his solicitor filed on 22 December 2020. The wife relied upon her financial statement filed on 18 September 2020, her affidavits filed on 18 September 2020 and 7 December 2020 and the affidavit of a professional translator and interpreter filed on 7 December 2020. The parties also relied, to a greater or lesser extent, on the wife’s Notice to Admit Facts filed on 24 November 2020, the husband’s Response to Notice to Admit Facts filed on 8 December 2020 and each party’s written submissions.

3 There are numerous significant factual disputes between the parties, including but not limited to: (1) the husband’s proficiency in various languages, including English, Mandarin and Cantonese; (2) the date of the parties’ final separation; (3) whether the wife effectively “railroaded” the husband into a financial settlement (as the husband alleged) or the parties engaged in negotiations with each other about financial issues and reached an agreement (as the wife alleged); (4) whether various emails purportedly sent to and/or from the husband were actually sent to and/or from him or at his direction, or were in fact authored by the wife (pretending to be the husband); and (5) whether the husband understood the nature and effect of the various documents written in English and signed by him in April 2020, including the original Application for Consent Orders, the Amended Application and a Binding Child Support Agreement.

4 These are matters that cannot be determined in this application, particularly as neither party has been tested by cross examination on their affidavit evidence. For the benefit of the parties, what this means is that I cannot make any findings of fact where the evidence is in dispute. That will be the task of the judicial officer at trial, if the matter proceeds that far.

Basic background facts:

5 The husband was born in 1967 in [Country A]. He now resides in Perth and is retired. The wife was born in 1983 in [Country A]. She now resides in Perth and is occupied with home duties. While there is considerable dispute about the husband’s proficiency in different languages, it does not appear to be in dispute that the wife is fluent in English, Mandarin and Cantonese.

6 The parties were married in [Country A] on [in] 2007. It was not in dispute that at the time of their marriage, the husband owned substantial assets, including shares in [the husband’s family business] and real estate in [Country A]; whereas the wife had no assets of significance.

7 The parties have two children of their marriage, who are now aged twelve and seven.

8 In or about 2016, the parties decided to migrate to Australia. Preparatory to their move to Australia, the husband invested $1,500,000 in a property development venture in Western Australia (“[Property Investment]”) and the parties purchased a home in [Suburb A] in their joint names in February 2017 (“the [Suburb A] property”). The parties are in dispute as to the source of the funds used to acquire the Property Investment and the Suburb A property: the husband maintained the funds were lent to him by his family members in Country A; while the wife maintained the funds were sourced from the parties’ own resources.

9 As I have identified above, the parties dispute the date of their final separation and a number of the documents filed in the proceedings to date give conflicting dates (and as early as 1 January 2017). The wife now appears to maintain that the parties separated on a final basis in mid-2017; whereas the husband now appears to maintain that the earliest date that the parties separated on a final basis was in late 2018.

10 Whatever the date of the parties’ final separation, it does not appear to be in dispute that in early January 2018, the parties and their children moved to Perth on a permanent basis and commenced living in the Suburb A property.

11 Both parties appear to agree that in 2018 the husband sold his shares in the husband’s family business to his family members in Country A. The husband’s position was that he received sale proceeds of approximately $4,560,000 and used the funds: (1) to purchase a property in [Suburb B] in the wife’s sole name for $800,000 (“the [Suburb B] property”); (2) repay debts totalling $3,100,000 owed to the husband’s family, including in relation to the purchase of the Suburb A property and the Property Investment; (3) purchased motor vehicles and shares totalling $300,000; and (4) spent approximately $320,000 on meeting the family’s living expenses in Australia and Country A. On the other hand, the wife maintained that: (1) the 8,178,000 shares that were “purchased” by the husband’s sister, [Ms D], are in fact, held by Ms D on trust for the husband; (2) the funds that were paid by Ms D to the husband were not retained by him, and instead were sent back to the family business in Country A; and (3) the husband continues to receive dividend payments relating to the shares from Ms D.

12 The wife’s position was that in January 2020 the parties had some discussions about a proposed financial settlement between them, including by reference to a notepad in which the wife had set out the financial settlement she proposed she would receive. The wife videoed part of the discussions, including the notes on the notepad. The parties are in dispute as to: (1) whether the husband was aware of and/or consented to the wife recording him; (2) what was said by each party in the video; (3) whether the husband was able to read and understand and/or agreed to the proposed financial settlement set out in the notepad. I am unable to make any findings in relation to these matters on the available (untested) evidence before me.

13 On 2 April 2020 the husband and the wife attended at the offices of three separate law firms. In summary, the wife deposed that the husband was fully aware of the reasons why the parties were attending at the solicitors’ offices: to sign various legal documents to give effect the parties’ agreement about financial issues, following their extensive negotiations. On the other hand, the husband deposed that he was not really aware of the purpose of attending at the solicitors’ offices, save that he thought it was something to do with the parties’ becoming divorced. The parties firstly attended at the office of [Law Firm A], which firm had been instructed by the wife to prepare the Application for Consent Orders. The husband’s position was that he and his wife met with a solicitor, [Mr E], who spoke to him in English and showed him the pages of various documents where he needed to sign. The husband maintained that: the documents were not explained to him; he was not given the opportunity to read the documents; the documents were not translated to him; and he did not understand what he was signing or their nature or effect.

14 The parties then attended at the office of [Law Firm B], which firm had been instructed by the wife to prepare a Binding Child Support Agreement. It does not appear to be in dispute that the wife solely attended on her solicitor, for the purposes of signing the agreement. The parties then attended at the offices of the third firm of solicitors: [Law Firm C]. The husband’s position was that the wife handed him the agreement, just before he then met with [Mr F]. Leaving aside the issues of whether the husband understood Mr F, whether he was given independent legal advice about the agreement and understood the nature and effect of the agreement, (which matters are not relevant to these Reasons), it did not appear to be in dispute that Mr F did not give the husband any legal advice in relation to the Application for Consent Orders.

15 The court file reveals that on 9 April 2020 the parties filed a joint application for divorce, which had been prepared by the wife’s solicitors, Law Firm A. The application specified that the parties had separated on 1 January 2017, albeit both parties deposed in separate affidavits that they had separated under the one roof at around July 2017 and continued to live under the one roof.

16 Also on 9 April 2017, the wife filed the Application for Consent Orders. The document was:

a)sworn by the wife on 2 April 2020 before Mr E and the statement of independent legal advice was signed by another solicitor of Law Firm A; and

b)also sworn by the husband on 2 April 2020 before Mr E. Although the husband deposed in the application that he was aware of his right to independent legal advice, he did not “tick the box” to indicate that he had received such advice. There was no separate affidavit by an interpreter to confirm that the contents had been translated to the husband prior to him signing the document.

17 The court issued a number of requisitions in relation to the Application for Consent Orders. In response, on 17 April 2020 the wife then filed the Amended Application. The document was:

a)sworn by the wife on 17 April 2020 before Mr E, and the statement of independent legal advice was again signed by another solicitor of Law Firm A; and

b)also sworn by the husband on 17 April 2020 before Mr E. Although the husband again deposed that he was aware of his right to independent legal advice, he did not “tick the box” to indicate that he had received such advice. There was again no separate affidavit by an interpreter to confirm that the contents had been translated to the husband prior to him signing the document.

18 On its face, the Amended Application provided that: (1) the total net asset pool was valued at $12,365,664.82,[1] including the husband’s family business valued at approximately $7,000,000; (2) the wife would receive 31% of the total net assets, including the Suburb A property, the Suburb B property and the Property Investment; and (3) the husband would receive 69% of the total net assets, which primarily comprised the husband’s family business. The husband’s position is that in reality, pursuant to the consent orders, the wife received 80% and he only 20% of the parties’ actual total net assets, which he calculated to be $4,981,430.

[1] This was the figure provided at Annexure “B” to the Amended Application. However, the figures provided at Item 46 of the Amended Application put the total net asset pool at $12,364,344, whilst the figures provided at Annexure “A” to the Amended Application put the total net asset pool at $12,364,314. As will become apparent, these were not the only errors / inconsistencies in the Amended Application.

19 A Registrar made orders by consent (“the consent orders”) in the terms of the Amended Application on 28 April 2020, by affixing a stamp to the Amended Application. The consent orders were formally extracted by the court the same day.

20 The wife’s position was that she only received a copy of the consent orders from Law Firm A on 23 June 2020. Both parties agreed that the wife then emailed a copy of the consent orders to the husband on 24 June 2020.

21 The husband’s position was that on 26 June 2020 he urgently sought independent legal advice in relation to the consent orders. On 6 July 2020, the husband’s solicitors conferred in writing with Law Firm A, raising concerns about the consent orders, including maintaining that: (1) the husband did not provide informed consent; and (2) the net asset pool as set out in the Amended Application was mispresented to the court. The husband’s solicitor’s letter also gave notice that if the consent orders were not set aside by consent, then the husband would make an application for an extension of time to review the Registrar’s decision and/or to set aside the orders pursuant to s 79A of the Family Law Act 1975.[2]

[2] Although not specifically relevant to these Reasons, the husband’s solicitors also wrote to Law Firm B Services raising serious concerns about the Binding Child Support Agreement.

22 Thereafter, there was an exchange of correspondence between the wife’s new solicitors and the husband’s solicitors, but no agreement was reached. On 13 July 2020, the husband instructed his solicitors to commence preparing a Form 1 Application and supporting documents. They were filed on 7 August 2020.

23 At the first return date of the Form 1 application on 11 August 2020, the presiding magistrate ordered the wife to file responding documents and listed the matter for an interim hearing in October 2020. The wife filed her responding documents on 18 September 2020.[3] At the hearing on 27 October 2020, the proceedings were adjourned by consent to be dealt with by a judge. On 9 November 2020, I made procedural orders in relation to the hearing of the husband’s application for an extension of time / review before me on 23 December 2020. On 12 December 2020 the wife filed a Form 2 Application, seeking to rely upon further evidence, including the video recording taken by her in January 2020. At the hearing before me on 23 December 2020, the wife was permitted to rely upon the further evidence as sought by her. In addition to each party’s written submissions, the counsel for both parties made further oral submissions and thereafter, I reserved my decision.

Applicable law:

[3] The wife subsequently filed an Amended Form 1A Response on 5 November 2020.

24 As to the applicable legal principles, I refer to and respectfully adopt the summary of the law provided by Thackray CJ in Stewart & Stewart [2012] FCWA 103, where his Honour wrote (from [26] onwards):

26. It is not in doubt that:

·a registrar of the Family Court of Western Australia has the power to make consent orders, such power having been delegated to them by the Judges – see s 33 of the Family Court Act 1997 (WA) (“the Act”) and r 24(b) of the Family Court Rules 1998 (“the Rules”);

·registrars are not required to give reasons for any order they make unless requested by a party to do so – see r 22;

·a party may apply to the Court to review an order of a registrar within 28 days of the order being made – see r 25(2);

·a party may apply to extend a time limit, either before or after the occasion for compliance has arisen – see r 1.14 of the Family Law Rules 2004, which has been adopted by r 12 of the Rules; and

·the Court may, of its own motion, review an order of a registrar made under delegated power at any time – see s 33(9) of the Act.

27. I am not minded, of my own motion, to review an order made by consent two years ago, since, inter alia, nothing put to me would suggest that the registrar did anything other than what a judge would have done in similar circumstances.

28. The husband therefore bears the onus of satisfying me that there is a proper basis on which I should extend the 28 day period in which he had to seek to review the consent orders.

29. The principles relating to requests for an extension of time were discussed by the High Court in Gallo v Dawson (1990) 93 ALR 479 at 480. Although the discussion was in the context of a time limit within which to appeal, similar considerations apply in my view to a review of the exercise of a delegated power. In that case, McHugh J said (my emphasis, citations of authority removed):

The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rule will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted … It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice …

30.The Full Court of the Family Court of Australia has also said in Coombs and More (1990) FLC 92-175 at 78,189 (again in the context of an appeal):

The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.

31.In considering these statements of principle, it is important to keep in mind that the Rules provide that a review of an order of a registrar proceeds by way of an “original hearing” (r 26(1)). It is unnecessary to discuss the precise meaning of that expression, it being sufficient to observe that:

·an order of a registrar made under delegated power can be varied or discharged without the necessity to demonstrate error in the appellate sense, and

·in the event the time to seek a review is extended, on carrying out the review the presiding judge would have regard to the fact that the husband has withdrawn his consent (Harris v Caladine (1990) 172 CLR 84).

25 More recently, in Mirren & Mirren [2020] FamCAFC 94, the Full Court of the Family Court of Australia considered the extension of time issue in the context of the review of a decision of a registrar of the Family Court of Australia to make consent orders. (I observe that this point that the legislative provisions of the Family Law Act 1975 (Cth) are similar to, albeit not identical, to the provisions of the Family Court Act1997 (WA) and the Family Court Rules 1998 (WA)).[4] At [30], the Full Court observed that the “primary considerations to be undertaken on an application for an extension of time are the sufficiency of any explanation for the delay in bringing the application and its merits”.

Discussion and conclusions:

[4] Section 37A of the Family Law Act 1975 (Cth) permits the judges of the Family Court of Australia (or a majority of them) to delegate various powers to the registrars of that court. Chapter 18 of the Family Law Rules 2004 (Cth) sets out the applicable rules in relation to the powers of registrars, including review of decisions of registrars. These provisions do not apply to registrars of the Family Court of Western Australia. The following provisions apply instead: s 33 of the Family Court Act 1997 (WA); and r 12 and Part 3 of the Family Court Rules 1998 (WA).

26 The consent orders were made and formally extracted by the court on 28 April 2020. Pursuant to r 25(2) of the Family Court Rules 1998 (WA), the husband was entitled to seek a review by no later than 26 May 2020. However, the husband did not receive a copy of the consent orders from the wife until 24 June 2020, approximately four weeks after the review period had lapsed. The husband did not file the Form 1 Application until 7 August 2020, approximately 10 weeks after the review period had lapsed. In that 10 weeks, the husband: (1) urgently sought independent legal advice; (2) conferred with the wife (through their respective solicitors) in an attempt to resolve matters without further litigation; and (3) instructed his solicitors to commence preparing his Form 1 application. I am satisfied that the delay in the husband bringing the Form 1 Application was short, and was reasonable in the context of the four week delay in him receiving a copy of the consent orders from the wife and the very prompt steps he took thereafter to obtain legal advice and confer with the wife.

27 The husband submitted that his application for an extension of time / review had significant merit, having regard to the significant errors and omissions in the Amended Application. This included, but was not limited to: (1) the inclusion of the husband’s family business; (2) the omission of various debts owed by the husband; and (3) the omission of the wife’s [Bank A] account.

28 Leaving aside the matters in the preceding paragraph (in relation to which the parties were in dispute), even on the wife’s case there were inaccuracies in the Amended Application, including the omission of: (1) the husband’s alleged interests in a property in [City A, Country B], land in Country A and his superannuation entitlements in Country A; and (2) the wife’s bank accounts in Country A.

29 I am also satisfied that having regard to the uncontested evidence of the parties, there are a number of other inaccuracies in the Amended Application, including but not limited to: (1) at paragraph 11, there was no reference to the Binding Child Support Agreement; (2) at paragraph 26, even though the parties answered “no”, I am satisfied that the proposed orders did affect each party’s earning capacity, having regard to the proposed transfer of the Property Investment from the husband to the wife; (3) at paragraphs 27 and 28, the amount of child support was significantly understated, as compared with the amount provided for in the Binding Child Support Agreement; (4) at paragraph 47, even though the parties answered “no”, I am satisfied that the parties did acquire or dispose of property after the date of separation;[5] and (5) at paragraph 59, the wife’s evidence that “she is not skilled” was not correct, having regard to her evidence that she has tertiary qualifications: a [Bachelor of Commerce] and a history of employment in that field. Having regard to the totality of the undisputed / uncontested errors and omissions in the Amended Application, I am satisfied that the Registrar could not have been properly satisfied that it was just and equitable to make the orders. I am satisfied that had the Registrar been aware of the (uncontested) errors and omissions as identified above, a further requisition ought to have issued.

[5] This is the case no matter whether the date of separation was 1 January 2017 (the date set out in the Amended Application), or mid-2017 as claimed by the wife, or late-2018, as claimed by the husband.

30 Although the wife submitted that there would be no prejudice to the husband if the consent orders were not set aside, I do not agree. The husband was entitled to have this court make a determination as to whether the property settlement detailed in the Amended Application was just and equitable. Allied to that is the proposition that the husband was entitled to have the s 79 inquiry conducted on the basis of information that did not contain material errors or omissions. The fact that the husband was not in receipt of independent legal advice only exacerbates the issue. As the High Court observed in Harris v Caladine (1991) 172 CLR 84 (at 124) per Dawson J:

The fact that an order is sought [under s 79] by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a Registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met [citation omitted].

31 This is not a case where the Registrar could have been so easily satisfied.

32 Although the wife did not point to any specific prejudice to her if the consent orders were set aside, I am nevertheless satisfied that the wife will, at the very least, be prejudiced by continuing to be engaged in family law litigation[6] in circumstances where she considered matters had settled. However, I also bear in mind that even on the wife’s case, if she is successful in resisting the extension of time / review application, she would then be involved in litigation to defend the husband’s s 79A application (and if he is successful in that, then the husband’s s 79 application).

[6] And will no doubt continue to incur legal fees.

33 I am satisfied that granting the extension of time is necessary to do justice between the parties. I have reached that conclusion having regard to: (1) my finding that the delay in the husband bringing his application was short and reasonable; (2) the (uncontested) material errors and omissions in the Amended Application, and noting that the husband did not receive independent legal advice; and (3) the prejudice to each of the parties, as identified above.

34 The practical effect of granting the extension of time is to set aside the consent orders made by the registrar.[7] This is because once an application for review is filed, those orders cease to have any effect and I must decide what orders sought be made. Given that the husband has withdrawn his consent, inevitably the Amended Application should be dismissed.

[7] Mirren & Mirren [2020] FamCAFC 94, [18].

35 I intend to make the following orders:

1.Leave be granted to extend the time for the husband to file an application for review of the orders made by a registrar on 28 April 2020 (“the consent orders”).

2.The consent orders be set aside.

3.The following applications / responses be dismissed:

a)The Amended Application for Consent Orders filed on 17 April 2020;

b)Paragraphs 2 to 6 inclusive of the interim / procedural orders sought in the husband’s Form 1 Application filed on 7 August 2020;

c)Paragraphs 1 and 2 of the interim / procedural orders sought in the wife’s Amended Form 1A Response filed on 5 November 2020; and

d)The Form 2 Application filed on 12 December 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

4 MARCH 2021