Weir & Weir
[2021] FedCFamC1F 83
•28 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Weir & Weir [2021] FedCFamC1F 83
File number(s): SYC 2233 of 2021 Judgment of: HENDERSON J Date of judgment: 28 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to extend time for a Review of a Registrar’s decision – Application for an extension of time granted. Legislation: Family Law Act 1975 (Cth) s 79A(1)(a)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.31
Cases cited: Gallo v Dawson (1990) 93 ALR 479
Jago v District Court of New South Wales (NSW) (1989) 168 CLR 23
Mirren & Mirren [2020] FamCAFC 94
Sanders and Sanders (1993) FLC 92-246
Tormsen & Tormsen (1993) FLC 92-392
Division: Division 1 First Instance Number of paragraphs: 57 Date of hearing: 25 August 2021 Counsel for the Applicant: Ms McDiarmid Solicitor for the Applicant: Feeney Family Law Counsel for the Respondent: Mr Cummings SC Solicitor for the Respondent: Nolan Lawyers ORDERS
SYC 2233 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WEIR
ApplicantAND: MS WEIR
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
28 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Order 1 of the husband’s Application in a Case filed 10 June 2021 seeking leave to file a review of consent orders made by Registrar Mordaunt on 22 April 2021 is granted.
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 the pseudonym Weir & Weir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This was an application by Mr Weir (“the husband”) to file a review of orders made by consent by a Registrar out of time.
Ms McDiarmid of counsel acted for the husband and Mr Cummings SC for the wife, Ms Weir (“the wife”).
The material I read was:
(1)For the husband:
(a)Application in a Case filed 10 June 2021;
(b)Affidavits of the husband filed 9 June 2021, 15 June 2021 and 13 August 2021;
(c)Affidavit of the husband’s solicitor, Mary Feeney, filed 18 August 2021;
(d)Affidavit of Dr B filed 13 August 2021;
(e)Financial Statement filed 13 August 2021; and
(f)A case outline.
(2)For the wife:
(a)Response to an Application in a Case filed 17 June 2021;
(b)Affidavit of the wife filed 16 August 2021;
(c)Financial Statement filed 23 August 2021;
(d)A case outline; and
(e)A Court Book consisting of the wife’s material together with annexures such as the Application for Consent Orders, various loan agreements relating to the husband’s failed business, correspondence emails and the like.
The legal representatives for the parties made submissions.
SHORT CHRONOLOGY
The parties commenced cohabitation in 1997.
In 1998 the parties married.
In 2003 Y was born and in 2006 X was born.
From 2019 to January 2021 the husband incurred business losses totalling over $1 million including loans to friends and family.
On 9 March 2021 the husband attempted suicide and was admitted to C Hospital.
On 10 March 2021 the parties separated.
On 17 March 2021 the husband was admitted to D Hospital for psychiatric treatment.
On 29 March 2021 the parties signed an Application for Consent Orders at a time that the husband was still at D Hospital undergoing active treatment arising from his attempted suicide.
The Application for Consent Orders indicates the husband was unrepresented when he signed the documents as was the wife.
On 29 March 2021 the wife filed the Application for Consent Orders with the Court.
On 7 April 2021 the husband was discharged from D Hospital.
On 22 April 2021 Registrar Mordaunt made the orders by consent.
On 2 June 2021 the husband sought legal advice.
On 9 June 2021 the husband filed an application for a review and an extension of time in which to file the review.
On 18 June 2021 Justice Henderson made orders for a stay of the operation of the distribution of funds from the sale of the former matrimonial home and a partial distribution of the proceeds of sale to the wife, and listed the matter for the hearing of the application for an extension of time.
There has been a partial carrying out of the consent orders as the former matrimonial home has been sold and the husband’s creditors paid out and the wife has received some funds.
SHORT SYNOPSIS
The husband is some 27 days late in filing his application for a review.
The glaring and concerning facts are that the husband was undergoing psychiatric treatment in a mental health facility at the very time he signed the Application for Consent Orders, namely 29 March 2021.
He had made an attempt on his life on 9 March 2021.
At the time the Application for Consent Orders were signed the wife collected him from D Hospital, took him to a divorce lawyer’s home that the wife had consulted but asserts was not acting for her, the husband says he saw the Consent Orders for the first time, signed them and the wife then returned him to D Hospital to continue treatment.
The husband was not discharged from the clinic for another eight days from 29 March 2021.
The husband was unrepresented at the time he signed the Application for Consent Orders and was undergoing psychiatric treatment as a result of an attempted suicide some 20 days earlier.
The husband asserts multiple errors in the Application for Consent Orders as follows:
(1)The value of the home as described in the application;
(2)The percentage of matrimonial monies being paid to him as described in the application;
(3)That he was being paid a fixed sum and the home sold for 25 per cent more than the value ascribed to it in the Application for Consent Orders, and the wife has reaped the benefit of this higher price;
(4)That the value of the husband’s loans being discharged from the sale of the home were not disclosed in the application and thus the Registrar was not aware of the monies the husband would actually receive;
(5)That describing the division of assets as 64 per cent to the wife and 36 per cent to the husband was misleading as his loans totalling over $1 million were not disclosed, the home sold for 25 per cent more than the value ascribed to it with the wife retaining the benefit of that increased sale price and the husband ultimately received net $50,000 in circumstances where he is unemployed and the wife is employed;
(6)The orders provided for the wife to receive $2.7 million in liquid assets and $644,000 in superannuation in a marriage of over 20 years.
The wife disputes these errors and vigorously maintained the orders were fair and that the husband ought not be allowed to file a review.
I disagree just as vigorously with her case and submissions.
THE LAW
The High Court dealt with the principles that apply in an application to extend time to file a notice of appeal in Gallo v Dawson (1990) 93 ALR 479 (“Gallo v Dawson”) in the following terms at 480-481:
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...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.
(Citations omitted)
These principles were further considered in the decision of Sanders and Sanders (1993) FLC 92-246:
In Jacenko and Jacenko (1986) FLC ¶91-776 at 75,644, the Full Court of the Family Court of Australia was there considering an application pursuant to section 44(3) of the Family Law Act, that is an application to commence proceedings referable to property after the expiration of the statutory period.
In the course of delivering his reasons for decision, Nygh J had this to say:
The applicant must establish three principle matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time...
Secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.
That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Howard... which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.
If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application”
In Mirren & Mirren [2020] FamCAFC 94 (“Mirren”) at paragraph 19 the Full Court said:
…The well-known case of Gallo v Dawson (1990) 93 ALR 479 helpfully sets out the principles to the taken into account when dealing with such an application. The prime consideration is to do justice between the parties but significant considerations are the length of the delay, the explanation for the delay and the merits of the proposed proceeding.
As their Honours opine in Mirren at [17], the power being exercised by a Registrar to make consent orders pursuant to section 37A of the Family Law Act 1975 (Cth) (“the Act”) is a delegated power and, consistent with the decision of Harris v Caladine (1991) 172 CLR 84, the right to have such a decision reviewed by a judge is “central to the constitutional integrity” of such a delegated power.
Rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) is as follows:
1.31 Court may make orders or dispense with these Rules
(1) The court may, in the interests of justice, dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the 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.
Section 44 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) sets out that:
The Federal Circuit and Family Court of Australia (Division 1) has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds as the Court considers appropriate…
An application for a review of a Registrar’s decision pursuant to the Rules is to be filed within 21 days and this time may be extended.
Their Honours in Mirren say relevantly at paragraph 18:
…The practical effect of an extension of time, in this case, would be to set aside the consent orders made by the Registrar because once an application for a review is filed, those orders cease to have any effect and a judge must decide what orders should be made. The husband would then withdraw his consent leading to the inevitable dismissal of the application for the making of the consent orders.
This is precisely the outcome in this matter if the husband is successful. I note in Mirren the Court upheld the primary judge’s decision to allow the husband to file a review of a Registrar’s orders some six years after they had been made. In this matter it is some 27 days.
Addressing the factors.
There is little hardship to the wife in these orders being set aside. I have made an interim property distribution to her to allow her to accommodate herself and the children in an area near the children’s school, a matter she is most desirous of achieving, and she is working and earning an income.
There is significant prejudice to the husband in not granting this review given the circumstances of how it was that he came to sign the consent orders, while still in a facility and undergoing psychiatric treatment for an attempted suicide some 20 days prior to the orders being signed, and the reality being in a pool approaching $4.5 million he received just over $1 million and the wife the remainder.
The delay by the husband in filing his application for a review some 27 days late is clearly explained by the fact that he was suffering a mental illness at the time he entered into these orders which required him to be hospitalised in a facility for a period of four weeks and during this period of hospitalisation the wife facilitated his signing the Application for Consent Orders. The husband took appropriate steps after his release from the facility and as his mental health began to retrieve from his attempted suicide.
Most importantly in this matter, the Registrar who made the consent orders was entirely unaware of any of the above facts surrounding the signing of the consent orders or the significant errors which, I accept from the husband’s case, are contained in the Application for Consent Orders.
In light of these findings, the Application for Consent Orders is seriously deficient. There was no disclosure of any of the above significant facts concerning the husband’s mental health and therefore capacity to voluntarily into enter into final orders relating to property settlement. Further, due to the significant omissions of the factual reality for the parties of bringing into effect the consent orders the Registrar was unaware of the parties’ actual financial and personal circumstances when exercising her discretion and thus was unaware of the significant injustice perpetrated upon the husband when these orders were brought into effect.
In these circumstances the Registrar has exercised her discretion unaware of material facts which would have had an impact upon her decision to either make the consent orders or not make them.
These facts also establish grounds upon which consent orders can be set aside or varied pursuant to section 79A(1)(a) of the Act, which section is as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
There was clearly a failure to disclose relevant information on the Application for Consent Orders as described above.
Quoting from Gallo v Dawson, these matters indicate there is material before the Court upon which I can be satisfied that to refuse the application to file a review out of time constitutes not just an injustice but a significant injustice to the husband.
Further, the Court has an implied power to control its own processes.
Justice Gaudron in Jago v District Court of New South Wales (NSW) (1989) 168 CLR 23 set out at [7]:
The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands…
The Court is in control of its processes. One of the foundations of the Court processes at the heart of parties’ capacity to have the Court make orders on written material only and in the absence of their personal appearances before the Court is that the Court must be satisfied parties have fully disclosed all material facts which could have a bearing on the exercise by a judicial officer of their discretion to make, or not make, consent orders put forward by parties.
This foundation has been breached in this matter.
I need not traverse the multitude of documents and evidence put forward by the wife that in her opinion the husband was well when he signed the Application for Consent Orders, doctors reports about how well he was at that time and that he understood the implications of his actions and conduct, that his brother who is a lawyer, not a family lawyer, had given him advice, that she and he had negotiated the orders and had agreed on how the property was to be divided for I have formed the view that the very foundation of the principles of the Court were breached by the manner in which the parties failed to disclose significant facts to the Registrar in the Application for Consent Orders. I accept the wife’s alarm and distress when she found out about the failure of her husband’s business and the monies he had lost due to that failure from and owing to friends and family. That, however, is not a relevant factor impacting upon my discretion in this application.
I am also concerned that, consistent with the husband’s evidence, the evidence would tend to show that the wife did put significant pressure on him to sign these consent orders, that he was extremely regretful and remorseful of his actions and conduct, the difficulty his business failures had placed he and his family in and that, given his vulnerable psychological state at that time, he may have been under undue pressure or duress to sign the documents.
In Tormsen & Tormsen (1993) FLC 92-392 the Full Court stated:
The fundamental issue in applications for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties… In that connection the Court must weigh the right which the respondent to the application prima facie has to attain the benefit of the judgment… A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed… But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation.
The interests of justice outweigh all other factors in this matter and demand the husband be granted leave to file his application for review out of time. As such the orders will be ultimately set aside as the husband has clearly withdrawn his consent to the making of the orders by the filing of the review. Quoting from Mirren at paragraph 18:
…The practical effect of an extension of time, in this case, would be to set aside the consent orders made by the Registrar because once an application for a review is filed, those orders cease to have any effect and a judge must decide what orders should be made.
Maintaining the interests of justice in this matter outweighs any factor or issue the wife raised and the husband is granted leave to file a review of the consent orders made out of time.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 28 September 2021
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