W and W

[2008] FCWA 56

[2008] FCWA 56

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	W and W [2008] FCWA 56
CORAM	:	MARTIN J
HEARD	:	21 DECEMBER 2008
DELIVERED	:	16 MAY 2008
FILE NO/S	:	PT 1259 of 2004

BETWEEN : W

Applicant/Husband

AND

W

Respondent/Wife

Catchwords:

FAMILY LAW - characterisation of order - consent order - spousal maintenance or property orders - extension of time - review of decision of Registrar

Legislation:

Family Law Act 1975 - s 74, s 75, s 79 and s 81

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Berry
Respondent	:	Dr A Dickey QC

[2008] FCWA 56

Solicitors:

Applicant	:	Chris Williams Lawyers
Respondent	:	Paterson & Dowding

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

Elliot and Willcox (1996) FLC 92-687
Florie and Florie (1988) FLC 91-913
Gallo v Dawson (1990) 93 ALR 479
Langford and Coleman (1993) FLC 92-346
Mullane v Mullane (1983) FLC 91-303
Sommerville and Sommerville (1999) FLC 93-042
Tormsen and Tormsen (1993) FLC 92-392
Yunghanns & Ors v Yunghanns & Ors; Yunghanns (1999) FLC 92-836

[2008] FCWA 56

1 The applications to be determined by the Court are a Form 2 application first

filed by the husband on 28 May 2007, and amended on 14 November 2007, and a Form 2A response filed by the wife on 13 December 2007. There are two issues to be determined:

• the nature of consent orders, made in April 2004, particularly whether paragraphs 3 and 4 of the orders are to be characterised as property, or spousal maintenance orders;

• whether leave should be granted to the husband to seek a review of the decision of a Registrar of this Court to make the consent orders.

2 The husband does not seek to proceed with a review of the Registrar’s decision

if the Court finds that paragraphs 3 and 4 of the consent orders are determined to be
spousal maintenance orders, as he then would have an opportunity to seek a variation.

Background

3 The husband is 44 years old and a [technician], and the wife is 38 years old and, presently, a part-time sales assistant. The parties were married [in] February 1994. They separated on 20 January 2004, and were divorced in December 2006. There is one child of the relationship, [J], born [in] June 1994 (aged 13 years).

4 After the breakdown of their marriage, the parties, without receiving any legal

advice, filed a Form 12A consent orders application, on 8 March 2004, dealing with
the arrangements for the care of [J], and property settlement.

5 On 15 March 2004, a Registrar of the Court wrote the following letter to the

parties:

“I refer to the above matter and confirm that an application for consent

orders was filed in this Registry on 8 March 2004.

I note that both parties appear to have taken legal advice in this matter
[emphasis added]

I note at paragraph 5 of the agreement mention is made of child maintenance for the child [J]. This Court does not have jurisdiction to make that order. I am prepared to make the orders set out in the minute but I do indicate at this stage that that part of the order is not enforceable. To deal with child support in relation to that child it would be necessary to enter into a child support agreement through the Child Support Agency.

I draw that to both parties’ attention and if you confirm that you want the order made notwithstanding paragraph 5 then the orders will be made in due course.

I await your response.”

6 The husband and wife responded in a joint letter to the Court on 6 April 2004, as

follows:

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“I refer to your letter dated 15 march 2004 (sic) regarding paragraph 5.

We [the husband and wife] both agree to the orders to be made notwithstanding paragraph 5.

I apologize for the delay in the response to your letter, however could this application is processed as soon as possible as we have financial hardships to over come.”

7 The Registrar then made the orders as proposed, on 14 April 2004, which provide as follows:

“This is an agreement between the two parties being, [Mr W](Husband/Father) and [Mrs W] (Wife/Mother) for the following to be observed;

1. The property and home at number xx Lot xx [the address], (Diagram xxxx / Volume xxxx / Folio xxxx) will be re-mortgaged and transferred under the sole name and responsibility of [Mr W]. The dividing of the contents of the home and shed will be an amicable mutual agreement between [Mr W] and [Mrs W].

2. Once the mortgage has been approved a 50% shared of the profit of the house being $52,000.00 will be paid to [Mrs W]. Plus a payment of $8000.00 towards a vehicle. No future claims can be made against the above mentioned property or house. All fees and charges will be the responsibility of [Mr W].

3. As of the 20 January 2004 the above mentioned property will be rented to [Mrs W] by [Mr W]. [Mrs W] will pay [Mr W] a weekly rental of $150.00 or a mutual agreement made. [Mrs W] may rent this property of a long as she requires. It will be the sole decision of [Mr W] and [Mrs W] together to vacate the property. No other party other than [Mr W] and [Mrs W] will be recognized in any decision regarding future of the above mentioned property. All decisions must be a mutual agreement between [Mr W] and [Mrs W].

4. The maintenance of the above mentioned property will be carried out by [Mr W] at least one day per month. …

6. The child [J] born [in] June 1994 will reside with the mother. The father and mother will have joint responsibility for the long and short term care of the child's welfare and development. The father will have reasonable contact with the child under a mutual agreement with the mother. However the child schooling will come first in any mutual agreement.

7. As of the 20 January 2004 all AGC (No.xxxx) and BankWest Visa (No. xxxxxxx) accounts will be the responsibility of [Mr W].”

[2008] FCWA 56

8 Pursuant to the orders, the former matrimonial home at [the address] was transferred to the husband on the condition that the wife receive a total of $60,000. The orders then permitted the wife to remain in the home indefinitely.

9 The submission of the husband’s counsel was that the then effect of the consent

orders was that, at that time, the husband received approximately 31.6% of the parties’
assets and the wife received 68.4%.

10 The husband’s application, filed on 28 May 2007, sought an order that

paragraphs 3 and 4 be discharged pursuant to ss 74, 80 and 83 of the Family Law Act 1975. He sought that within 30 days of the orders being made, the wife obtain alternative accommodation, be enjoined from the use or occupancy of the former matrimonial home and that she withdraw the caveat she had placed over the property.

11 The wife filed a response, on 10 August 2007, seeking that the husband’s application be dismissed.

12 On 14 November 2007, the husband filed an amended application seeking the

same orders as in his original application filed on 28 May 2007, but with an additional order that, in the alternative to discharging paragraphs 3 and 4 of the consent orders, and subject to the husband being granted an extension of time, the consent orders be reviewed. The husband filed a Form 2 application on the same day, seeking that the consent orders be reviewed and accordingly, sought an extension of time in which to review the orders.

13 In response to the husband’s Form 2 application, the wife filed an application on

13 December 2007, seeking the dismissal of that application and for the husband to
pay her costs.

Characterisation of paragraphs 3 and 4 of the consent orders

14 The effect of characterising paragraphs 3 and 4 as property orders made pursuant

to s 79 of the Family Law Act is that, subject to any appeal, or review, the orders can only be varied pursuant to the limited jurisdiction to set aside or vary such an order provided by s 79A of the Act. If the orders are determined to be spousal maintenance orders made pursuant to s 74, then they may be varied or discharged pursuant to s 83 of the Act.

15 For the husband, it was submitted that paragraphs 3 and 4 of the consent orders do not satisfy the test for an order for alteration of property interests pursuant to s 79, but they do satisfy the requirements for an order which may be characterised as spousal maintenance pursuant to s 74, in contrast to paragraphs 1 and 2, which transfer the property to the husband and refers to the amount to be paid to the wife, are orders that alter the legal or equitable interest of the parties in their property.

16 The husband referred to the decision of High Court of Australia in Mullane v Mullane (1983) FLC 91-303, which involved the consideration of the following orders made by the Supreme Court of New South Wales:

[2008] FCWA 56

“4.	That by consent the Petitioner have the exclusive occupation of the property situate at and known as Number Thirty-four Careebong Road, French’s Forest and being the land comprised in Certificate of Title Volume 7705 Folio 182 until such time as all three of the said children of the marriage shall have become self-supporting or the Petitioner shall have remarried whichever event shall first occur.
5.	That by consent the Respondent pay all capital and interest due under the mortgage on the aforesaid property as well the Municipal and Water Rates assessed in respect of the property together with ordinary Fire and Burglary Insurance in respect of the property and the cost of all reasonable repairs and maintenance thereto.
6.	That by consent the Petitioner be at liberty to apply for such further injunctions or other Orders as may be necessary to give full effect to Order (5) herein.”

17 As a result of the above orders, the wife and children continued to occupy the

property and, at the time the High Court heard the matter, the occupation had continued for 15 years. The property was registered solely in the husband’s name, and he had continued to meet the mortgage repayments and other associated costs in respect of the property.

18 In considering the characterisation of such orders, the High Court said, at

78,071:

“There is no reason why a Court, in particular circumstances, cannot provide maintenance for the wife and children of a marriage by securing them for a suitable period the occupation of the matrimonial home. The inclusion of the condition that the right to occupy the home shall continue until “the children of the marriage shall have become self-supporting” is a strong indication that the order is properly categorised as an order for maintenance.

In our opinion, therefore, sec. 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right: Stow v Mineral Holdings (Aust.) Pty. Ltd. (1977) 51 A.L.J.R 672 at p. 679; Ex parte Meneling Station Pty. Limited (unreported, delivered 8/12/82, pp. 14 and 28). It does not exclude every interest which is not assignable or transferable (cf. per Mason J. in Meneling Station at p. 15). Thus an order under sec. 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring.

It follows, then, that sec. 79 does not authorise a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit

[2008] FCWA 56

its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a sec. 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment. Where the section refers to a settlement of property, it should be understood as using the expression in a sense which is closely related to the meaning which the expression bears in the law of real and personal property.”

19 In Florie and Florie (1988) FLC 91-913, the Full Court considered the characterisation of orders which, among other things, stated that the wife be granted the exclusive occupation of the matrimonial home for the remainder of her life or until she remarries. The Full Court said, at 76,626-76,627:

“Counsel for the wife sought to distinguish the orders in question in this case from those considered by the High Court in Mullane's case on two bases. Firstly, he submitted that because those orders were made in the context of other orders (1(e) and (g)) which clearly altered the interests of the parties in other property (the land in Holland and the contents of the home) they should be seen as part of an entire package of orders altering the parties' interests in property, and therefore should be treated, along with those other orders, as if they had been made under sec. 79. Secondly, he submitted that because order 1(d) gave the wife a right to occupy the property until her death (provided she did not remarry) it should be seen as giving her an equitable life estate in the property, albeit that that estate would be defeasible upon her remarriage. He pointed out that the orders considered in Mullane's case did not limit the wife's right of exclusive occupation by reference to her lifetime, but only by reference to the period of the dependency of the children or the duration of the wife's status as a single woman.

We are unable to accept these submissions, and are of the opinion that neither basis put forward by counsel for the wife is a valid basis for distinguishing Mullane's case.

In our view the mere fact that orders 1(d) and (f) were part of an entire package of orders, some of which altered the parties' interests in property, cannot affect the essential character of those orders. Certainly they must be construed in the light of the other orders, but those other orders do not change the essential nature of those orders. The entire package included some orders (1(e) and (g)) which altered the parties' property interests, and some (1(d) and (f)) which did not. The orders were made by consent, and the parties must be taken to have intended that their joint legal and equitable interest in the matrimonial home remain unaltered.

Nor, in our opinion, does the definition of the wife's right of occupation by reference to her lifetime alter the essential nature of order 1(d). It granted to the wife only a personal right against the husband, and her lifetime was chosen as one of two alternative bases by which the duration of that right was defined. It might be said that if the right were personal to her it could not survive her death in any event, and that the reference to her lifetime

[2008] FCWA 56

was therefore unnecessary unless it added something to the right. However, we think that it may have been included only in order to make it clear that the intention of the parties at that time was that her right should not be determined by any event occurring during her lifetime, other than her remarriage. That may be very relevant when the Court comes to consider whether it should exercise its jurisdiction to discharge or vary the order, but in our view it cannot change the nature of the order or the right which it gave the wife. If it had been the parties' intention (and therefore the intention of the Court's order) to grant the wife a life estate in the property, it would have been a simple matter to draw the orders so as to require the husband to transfer to her such an estate, or at least to provide that she should have such an estate, rather than a mere right of exclusive occupancy. That was not done.”

20 In the present case, paragraph 3 of the orders goes much further than simply

granting exclusive occupation to the wife until the happening of certain events. The order specifies that, as of 20 January 2004, the former matrimonial home was to be rented at $150 per week to the wife as long as she required, and further, that a joint decision must be made between the husband and wife to vacate the property.

21 For the wife, it was submitted that paragraph 3 creates a lease, and therefore

provides the wife with a proprietary interest in the former matrimonial home. For her, it was argued that the paragraph contains the four necessary formal conditions of a lease, being the identification of the parties, the subject matter, the consideration and the terms.

22 For the husband, it was submitted that if paragraph 3 is considered to be a lease,

as claimed by the wife, then the effect of the order is to require him to indefinitely
maintain the wife under the guise of a property order.

23 The submission on behalf of the wife was that the decision of the Full Court in

Mullane (supra) should not apply, as paragraph 3 is not an order for exclusive occupation, as it does not simply exclude the husband from the former matrimonial home and therefore does not come within the scope of the Full Court’s statement, referred to above, as “an order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property.” (emphasis added). For the wife it was said that in Mullane, the order granted the wife exclusive occupation of the property, without any specification of any consideration or the identification of the term. The High Court points out “…though a spouse acquiring an interest in property under a sec. 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment.”

24 At the hearing, counsel for the husband referred to the disputed intentions of the

husband and wife as to the effect of the consent orders, namely that the husband believed the arrangement to be short term and the wife considered it to be an indefinite arrangement. It was stated by Nygh J in Langford and Coleman (1993) FLC 92-346 at 79,671:

[2008] FCWA 56

“… an order made by consent must be treated like any other non- consensual court order it must be read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were”.

25 This position was affirmed by the Full Court in Yunghanns & Ors v Yunghanns & Ors; Yunghanns (1999) FLC 92-836 at 85,729:

“In the absence of any allegation of fraud or mistake or other vitiating circumstances in the formation, drafting or recording of the orders, extrinsic evidence is not admissible to contradict the plain words of the order, or to seek to establish the agreement between the parties which lay behind it.”

26 The submissions for the husband briefly mentioned that the Court might

consider the order to fall under the exception of “mistake” as the orders, strictly construed, do not reflect the agreement of the parties when the orders, drafted without legal advice, were signed.

27 I do not necessarily accept, having regard to all the evidence, that the renting

back arrangement constitutes an order for property settlement because a lease is
created.

28 I have concluded that while the order taken as a whole is for settlement of

property comprising a “package deal”. However, the extent it provides for the wife to have an indefinite right of occupation for a fixed rent, it is more likely to be a provision for spousal maintenance.

29 However, if this order is properly characterised as an order for maintenance, I

am not satisfied, on the evidence before me, that the order should necessarily be
discharged.

30 I have concluded that the characterisation is not of significance, having regard to

my conclusion that the orders, as a whole should be reviewed for the following
reasons.

Extension of time to review orders

31 In relation to reviewing a decision by a Registrar of the Family Court of Western Australia, rule 25(2) of the Family Court Rules 1998 states:

“A party to proceedings may apply to the Court to review an order or direction made by a Registrar for 28 days after the Principal Registrar, Registrar or Deputy Registrar makes the orders or direction.”

32 In this case there has been a substantial delay in commencing the proceedings to

review the orders made by the Registrar. An application to review the orders was required to be made in May 2004. The husband, as at the date of filing his application, was some 3½ years out of time.

[2008] FCWA 56

33 Rule 1.14 of the Family Law Rules 2004 permits the Court to extend a time fixed under the Rules even though that time has passed.

34 For the wife, it was submitted that the husband should not be granted leave for an extension of time to review the Registrar’s decision for the following reasons:

• he does not provide any explanation for why he has taken 3 ½ years to make his application;

• there is no reason to suppose the husband was not fully aware of the terms of the orders;

• the husband does not provide satisfactory reasons for his delay, particularly the reasons provided are too vague and imprecise to be acceptable; and it is unreasonable to vary the orders as the husband made the initial application and consented to the orders.

35 For the husband, it was submitted that leave should be granted in order to permit

justice to be done between the parties. In this respect, the husband relied on the
following passage by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:

“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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 AT 262.”

36 However his Honour went on to further clarify this principle:

“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 rules 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: see Avery v No 2 Public Service Appeal Board [1973] 2NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871 at 872, Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.”

37 McHugh J’s position in Gallo v Dawson (supra) was supported by the Full Court in Tormsen and Tormsen (1993) FLC 92-392 at 80,017:

“The fundamental issue in application for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties: Hughes v. National Trustee Executors & Agency Co. of Australasia Ltd [1978] VR 257 at 262 per McInerney J. cited with approval in Gallo v. Dawson (1990) 93 ALR 479 at 480 per McHugh J. In that connection the Court must weigh the right which the

[2008] FCWA 56

respondent to the application prima facie has to attain the benefit of the judgment: Vilenius v. Heinegar (1962) 36 ALJR 200 at 201, and the desirability that there be finality of litigation: Ratnam v. Cumarasamy [1964] 3 All ER 933 at 935. A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed: Shepperdson v. Lewis [1966] VR 418 at 421, 422 per O'Bryan J. But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation. As counsel for the husband rightly pointed out, there is an analogy with applications for leave to institute proceedings under Section 44(3) of the Family Law Act where the absence of an adequate explanation has been regarded as merely a factor to be considered: See Althaus and Althaus (1982) FLC 91-233; (1979) 8 Fam LR 169: Carlon and Carlon (1982) FLC 91-272; 8 Fam LR 729.”

38 While it is clear that the Court should ensure justice is done between the parties,

there are a number of other factors to take into consideration, including the reasons for the delay, whether any hardship will be caused to the respondent, being the wife in this case, and the desirability for finality of litigation.

39 It was also noted by the Full Court in Elliot and Willcox (1996) FLC 92-687, at

83,136:

“We would also point out that the Court also has the power to review a decision of a Registrar of its own motion, regardless of the time that has elapsed from the making of the decision and that this would have been open to his Honour or to this Court; see Murray v Director, Family Services (1993) FLC 92-416.”

The husband’s position

40 For the husband, it was argued that the lapse of time needs to be placed in the

context of the Court’s misapprehension that the parties obtained legal advice and the parties misunderstanding as to the intention of the orders. The husband says he did not seek any legal advice prior to completing the application for consent orders, nor was he aware of the right to review the orders within 28 days of the date on which they were made.

41 The husband also asked the Court to take judicial notice of the current property

market, and that rent of $150 per week is substantially less than market rent. The husband says he cannot sell the property because of the orders, and that such an outcome is grossly unjust and inequitable, and accordingly, the orders should be reviewed.

42 The husband’s position is that as the orders do not specify an end date for the

wife to vacate the former matrimonial home, he continues to be solely responsible for all financial payments on the property whilst the wife resides there paying substantially less than market value in rent. The husband says the matter is now of particular significance as he purchased a second property in which to live with [his new partner] and her child, with the intention of selling the former matrimonial home.

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He says the wife was aware of his intentions and he had discussed with her when she would be moving out. On this basis, he says he obtained a loan which was structured so that he did not have to meet any mortgage repayments on the second property for a period of time to allow the wife to find alternative accommodation while he placed the former matrimonial home on the market.

43 He says that since negotiations between himself and the wife have failed in

relation to her vacating the property, he is required to service two mortgages. This has prevented him and [his new partner] making future plans as his financial circumstances are so uncertain and restrictive. This has placed great strain on the relationship and the husband has moved to his mother’s home. He says that he and [his new partner] currently attending counselling.

44 At the hearing, the husband was employed as a [technical operator] in the North

of Western Australia. He earnt $1,144 per week after tax and his mortgage repayments on the two properties were $989.75 per week. He was also paying $58 per week to the wife for child maintenance. He says that in the last financial year he was required to cash in his holiday pay to help meet living expenses. The husband now wants to work in Perth however he says he does not have the qualifications to earn the same income he is currently receiving in Perth and therefore he is not financially able to change his employment.

The wife’s position

45 The wife argues that the husband cannot simply withdraw his consent to the

orders because they have not had the practical effect he had expected. Although she acknowledges the parties did not seek legal advice in regard to the orders sought, she says that it cannot be said that the Registrar made the consent orders because the parties sought legal advice, rather he made the consent orders on the basis of the Form 12A. She says, from the Form 12A filed by the parties, it is understandable that the Registrar would have made the mistake that the parties received legal advice. The parties had placed a cross in the box that stated “I have had independent legal advice on my relevant rights under the Family Law Act and the effect and consequences of orders being made in the terms proposed.” The instructions on the form state to cross every box that applied, whereas the parties had ticked the other boxes that did apply and a cross in the box that did not apply.

46 The wife denies that the arrangement entered into was intended to be short-term

and believes that the consent orders were final orders. She says that her understanding of the orders was that she would be able to stay in the former matrimonial home as long as she wanted, but that she was required to pay rent. She says she understood that the property would be transferred into the husband’s name, after which he could utilise the equity in the property to borrow as much as he wanted and use the property as security for any other purchases, and that he would be able to use it as an investment property for taxation advantages for himself.

47 The wife also denies that she agreed to vacate the property as suggested by the

husband. She says the parties agreed the consent orders on the basis that unlike the husband, she would always be in a poor financial situation and unlikely to acquire any

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assets in the future. The wife has been unable to be in consistent employment due to caring for the parties’ child, [J], who suffers from severe ADHD and major behavioural problems. She was required to home school [J] as his behavioural problems caused him to be excluded from school. [J], who is 13 years old, is now able to attend high school, however, the wife says her care of [J] still affects her ability to work full time as he has often been suspended and that he requires close supervision.

48 The wife, at the time of hearing, was working part-time as a sales assistant in a

book shop. She earns approximately $360 per week before tax. However, she says that she has always been reliant on Centrelink benefits since separation, which is occasionally supplemented by her part time earnings. The wife says she has no assets other than her car and furniture.

Conclusion

49 Section 81 of the Family Law Act provides:

“In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.”

50 The orders made between the parties do not ever allow for final determination of

the financial relationship between the parties, unless by consent. There is an indefinite obligation on the husband to rent the former matrimonial home to the wife, and vice versa, an indefinite right on the part of the wife to lease the property from the husband. The orders would certainly not have been made had the matter proceeded on a defended basis.

51 In Sommerville and Sommerville (1999) FLC 93-042, Nicholson CJ said at

87,668 – 87,669:

“….it is also necessary to have regard to the purpose and objects of the Family Law Act. It is quite clear that the Act is intended to produce finality in relation to financial dealings between the parties following the termination of their relationship…….Had the original order been made by a judge, the only way in which it could have been challenged would be on appeal to the Full Court, subject to the Full Court granting an extension of time. Because it was made by a Registrar in this case, it can be reviewed by a single judge who can extend time for such a review.

However, I do not believe that it would be doing justice between the parties to grant such an extension of time in the present circumstances where there was nothing wrong with the original order and no suggestion has been made before me that there were any circumstances that might vitiate it other than the failure of the Registrar to exercise his discretion under sub-ss 79(2) and (4) which was a course in which the parties, by their legal representatives concurred, at the time the order was made.

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I think similar considerations apply to circumstances where the Court would review an order on its own motion. I think that this would be confined to circumstances where in the exercise of its supervisory function, it considers that an order should not have been made and that it was necessary to intervene to set it aside.”

52 There is clearly hardship to the husband if the time for applying to review the

orders is not extended, unless he is permitted to seek variation of the order as a spousal maintenance order. If the orders are properly characterised only as property settlement orders, which I accept is possible, then there is a greater risk of injustice to the husband. There may be hardship to the wife in the event that the time is extended, depending on the Court’s eventual determination. However, it would be possible for the wife to seek lump sum spousal maintenance, on a variation application.

53 If the decision is reviewed, being a hearing de novo, the likelihood of injustice to either party would be greatly reduced as the whole of the financial arrangements between the parties would be properly considered.

54 However, there is an explanation for the delay in that the husband asserts that he

was under a misapprehension as to the meaning of the orders, and the parties had not had legal advice. It was only well after the making of the orders that the dispute arose.

55 The most important issue is whether an extension of time will enable the Court

to do justice between the parties. I accept that, in these unusual circumstances, it will, as it is not in the interests of justice for the orders to stand in their present terms. These orders should not have been made in the first place, whether or not the parties had legal advice, even though in this regard, the Registrar was misled by the parties.

56 It is clear that the parties, with the assistance of their legal advisers, should

properly now attempt to renegotiate just, equitable and proper financial arrangements between them, which would need to take into account their current financial circumstances, and I urge the parties to do so.

Proposed order

57 There be an extension of the time for filing of an application for review of the Registrar’s decision dated 15 April 2004.

I certify that the preceding [57] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate