Wishart and Hamill

[2020] FamCA 229

FAMILY COURT OF AUSTRALIA

WISHART & HAMILL [2020] FamCA 229

FAMILY LAW – PRACTICE AND PROCEDURE – where final property adjustment orders were made by the Federal Circuit Court of Australia in the absence of the Respondent – where the Respondent seeks to set aside those orders – proceedings transferred to the Family Court of Australia – where the Family Court of Australia does not have jurisdiction to grant the relief sought with respect to setting aside the orders.

Family Law Act 1975 (Cth) ss. 44(6), 79A, 90RD, 90SM
Federal Circuit Court Rules, r.16.05

APPLICANT: Ms Wishart

RESPONDENT: Mr Hamill

FILE NUMBER: BRC 6376 of 2013

DATE DELIVERED: 6 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 6 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Bunning

SOLICITOR FOR THE APPLICANT: SJP Law

SOLICITOR FOR THE RESPONDENT: Turnbull Mlyne

Orders

1. That the Application constituted by the amended Initiating Application filed 12 December 2019 be transferred to the Brisbane Registry of the Federal Circuit Court.

2. That the costs of today’s appearance be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wishart & Hamill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6376 of 2013

Ms Wishart

Applicant

And

Mr Hamill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. On 17 December 2013, for reasons published, Judge Purdon-Sully made a number of Orders.  But essentially and importantly:

   a)a declaration pursuant to section 90RD of the Family Law Act 1975 (“the Act”), that the parties were in a genuine domestic relationship (de facto relationship) within the meaning of the Act, between 3 May 1988 and 24 January 2011; and

   b)in the absence of the Respondent, Mr Hamill, her Honour made property adjustment Orders.

2. Subsequently, on 10 November 2014, those Orders were amended.  On 17 June 2019, Mr Hamill, as an unrepresented litigant, filed an Application in which he sought inter alia:

   a)leave to proceed under section 44(6) of the Act;

   b)to set aside, I infer, not the declaration of a de facto relationship, but the property adjustment Orders, pursuant to Rule 16.05 (2) of the Federal Circuit Court Rules 2001, because the Order was made in his absence;  and

   c)sought an interim injunction restraining the respondent, Ms Wishart, from dealing with a property owned by her and registered in her name at B Street, City C.

3. That Application, to be fair, was not well-pleaded.  But, as the Applicant was unrepresented, that was explained.  He was doing the best he could.  Subsequently, the Application was amended.  But, more importantly, on 1 October 2019, a judge of the Federal Circuit Court of Australia transferred the pending applications to the Family Court of Australia.  I do not have reasons for the transfer.  Although Mr Mylne, the solicitor advocate for Ms Wishart  today, suggests, and Mr Bunning, pro bono Counsel for Mr Hamill also suggests, that it may have been transferred because there are some complexities to this matter arising from the mental health challenges of the Applicant.

4. Be that as it may, I am comfortably satisfied that the Application pursuant to Rule 16.05(2) of the Federal Circuit Court Rules2001 was not dealt with by the Federal Circuit Court of Australia before it was transferred. As I discussed with Mr Bunning of Counsel today, and he ultimately accepted as a logical interpretation of the current law and practice, it is usually expected (certainly anticipated within an appeal regime) that if there is an application to set aside an order made in the absence of the party, that right ought be exhausted before other relief proceeds in relation to either enforcement of the order and/or setting aside of that order under, in this case, section 90SM of the Act (the de facto property equivalent to section 79A of the Act).

5. Having discussed the matter with the parties today, I regrettably have formed the view that the application must be remitted to the Federal Circuit Court of Australia so that a judge of that Court (and whether that is the initial trial judge or another judge is not a matter for me but for the Federal Circuit Court) to consider the pending Application for discretionary leave to set aside the final property Orders under Rule 16.05(2) of Federal Circuit Court Rules 2001.

6. Having decided to do so, it is neither appropriate, nor am I satisfied the Court has sufficient jurisdiction, to entertain the interim injunctive relief sought by the Applicant.  However, in a common sense approach to this matter and at the invitation of the Court, Ms Wishart , through her retained solicitor, Mr Mylne, indicates that she is prepared to give an undertaking to the Court (but in that regard an undertaking in this Court is an undertaking that is enforceable in other courts as an order of the Court), that she will not sell or list the property for sale at B Street, City C, without giving not less than 21 days’ notice in writing to the applicant, Mr Hamill.

7. I will publish these Reasons, merely so that the Federal Circuit Court of Australia can understand why the matter has been returned to that Court. I had indicated to the parties, however, that if and when the Federal Circuit Court of Australia deals, as in my view it ought, with the relief pleaded as early as June 2019,to set aside the Orders under Rule 16.05(2) of the Federal Circuit Court Rules 2001 – which relief is still maintained as Mr Bunning of Counsel indicated today – and the Court, having done so, decides to transfer whatever relief still remains, then I will ensure that the transfer of the matter is facilitated in a way where the matter is again listed before me for directions as soon thereafter as possible.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 6 March 2020.

Associate:

Date: 28 April 2020