YANG and LIM

[2023] FCWA 246

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: YANG and LIM [2023] FCWA 246

CORAM: O'BRIEN J

HEARD: 6 NOVEMBER 2023

DELIVERED : Ex tempore

FILE NO/S: 6651 of 2016

BETWEEN: MR YANG

Applicant

AND

MS LIM

Respondent

Catchwords:

JURISDICTION - Where the husband asserts that at the time orders were made for alteration of property interests the court was functus officio, as an earlier application had been dismissed when the parties reconciled - Where that assertion is misconceived

PROPERTY - Where the husband seeks to set aside property orders made in his absence either by recourse to the Family Court Rules 2021 or to s 79A of the Family Law Act 1975 (Cth) - Where the merit in those claims is not obvious - Orders to particularise

CHILD SUPPORT - Where the husband seeks a declaration pursuant to a long repealed provision of the legislation - Application dismissed

Legislation:

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Hannan
Respondent	:	Mr Worth

Solicitors:

Applicant	:	Jackson McDonald
Respondent	:	Elite Family Law

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

Bailey v Marinoff (1971) 125 CLR 529

Birknell v James [1978] AC 297

Gabel & Yardley (2008) FLC 93-386

Hickey & Hickey and the Attorney General for the Commonwealth of Australia

(Intervenor) (2003) FLC 93-143

In the Marriage of Bennett (1985) FLC 91-617

In the Marriage of Tudor (1992) FLC 92-273

Lewandowski v Lovell (1994) 11 WAR 124

Mullane v Mullane (1983) 158 CLR 436

Shaw & Shaw and Anor [2016] FamCAFC 159

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Vidler v Merit Engineering Pty Ltd (1987) 86 FLR 213

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 Yang and Lim has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1On 24 July 2023, [Mr Yang] (“the husband”) commenced proceedings seeking a raft of orders directed to two primary issues – his contention that orders for alteration of property interests made by a Magistrate on 27 July 2021 should not be enforced or implemented, and his contention that he is not the biological father of the two children for whom he is assessed to pay child support. His application is opposed by [Ms Lim] (“the wife”).

2To give context to what follows, including the nature of the specific relief sought, it is necessary to set out the relevant background.

Background

3The husband was born in 1962, and the wife in 1982. The parties were married on 10 November 2011. On the husband’s evidence they separated initially on 9 September 2016. They were divorced on the wife’s application on 9 December 2021.

The initial proceedings

4The wife commenced proceedings on 1 November 2016, seeking parenting orders in relation to the children [Child A] born 4 July 2011, and [Child B] born 21 August 2012, and orders for alteration of property interests. The husband filed a response on 30 November 2016; he too sought parenting orders and orders for the alteration of property interests. The financial orders sought by each party were non‑specific; the wife sought an order that the husband pay her “such sum of money equivalent to 65% of the net asset position of the parties” and the husband sought an order requiring him to pay the wife “a sum of money equivalent to 10% of the net assets of the parties.”

5The proceedings were assigned to a Magistrate. At the relevant time, the husband was in the process of selling a property at [Suburb A] which was registered in his sole name (“the [Suburb A] property”). Orders were made by consent on 5 December 2016 requiring the wife to withdraw a caveat she had lodged against that property, so as to permit settlement on sale to proceed. The orders also provided, again by consent, for the proceeds to be applied to the discharge of the mortgage, and payment of expenses associated with sale, with the balance to be deposited into a joint account requiring both signatures for any withdrawal. That interlocutory order was made pursuant to s 114 of the Family Law Act 1975 (Cth) (“the Act”).

6The parties then advised the Court that they had reconciled. Orders were made by consent finalising the parenting proceedings in terms which are not relevant for present purposes. The parties jointly sought an order for the equal division of the monies held in the joint account established pursuant to the order made on 5 December 2016; properly, in the circumstances of the parties’ reconciliation and their ability to equally divide those proceeds without court order, the Magistrate declined to make the order sought. On 24 March 2017 the Magistrate made an order adjourning the property proceedings, with a further order that if no request for a relisting was received by the close of registry on 24 May 2017, the matter was to be referred to her in chambers for final orders to be made without further notice in the following terms:

(a)all previous financial orders will be discharged;

(b)the Form 1 application and Form 1A response insofar as financial orders sought will be dismissed; and

(c)the proceedings shall otherwise be dismissed.

7There were no “previous financial orders” at that time; clearly the Magistrate’s intention was that the injunctions made by consent on 5 December 2016 would be discharged, and the substantive application and response would be dismissed.

8Neither party sought a relisting, and the matter was referred to the Magistrate in chambers. On 24 May 2017 orders were made in the terms foreshadowed (“the May 2017 orders”).

The subsequent proceedings

9The wife commenced further proceedings on 28 March 2019, asserting that the parties had again separated on 24 April 2018. Again, she sought a singular order that the husband pay her “such sum of money equivalent to 65% of the net asset position of the parties.” That application was served on the husband. He appeared, without a lawyer but with the assistance of an interpreter, at the first hearing before a Registrar on 16 May 2019. He was ordered to file responding documents within 28 days. Otherwise, orders were made in standard terms for mutual disclosure, and for the parties to attend a Conciliation Conference on 3 December 2019.

10The husband did not comply with the order requiring him to file responding documents. He did not attend the Conciliation Conference. The Registrar made orders to progress the matter towards trial; those orders required the parties to file their affidavit material for the purposes of trial by a specified time prior to a Readiness Hearing, the date for which was not allocated at that point. The wife foreshadowed an application for leave to proceed on an undefended basis.

11On 10 July 2020 the parties were advised that the Readiness Hearing had been listed for 5 November 2020. On 17 September 2020, they were advised that a Pre-Trial Conference would be convened on 8 December 2020.

12The parties did not file their trial documents. The wife was represented at the Readiness Hearing, but the husband did not appear. The Pre-Trial Conference was vacated, the wife was ordered to serve copies of the relevant orders on the husband, and the proceedings were referred to the presiding Magistrate for consideration to be given to the matter proceeding on an undefended basis. The wife was ordered to file an amended substantive application specifying with more precision the orders she sought.

13The wife filed that amended application on 18 November 2020. She sought the sale of the jointly owned home at [Suburb B] (“the [Suburb B] property”) with various supportive orders, and that she receive the whole of the net proceeds. She sought an order that the husband “transfer from his superannuation fund to [her] superannuation fund $80,000” and that the parties each otherwise retain their own chattels, bank accounts and superannuation.

14On 26 November 2020, the wife filed an interlocutory application seeking leave to proceed undefended, the allocation of a trial date, orders for service of additional documents on the husband, and an order dispensing with personal service on the condition the documents be left in the letterbox at the Suburb B property, which the husband continued to occupy. On 18 January 2021, the Magistrate made orders in those terms, and listed the matter for an undefended trial on 7 April 2021.

15The matter was not made ready to proceed on that date. The wife was given liberty to obtain a valuation of the Suburb B property, and the husband was ordered to provide access to the property for that purpose. The undefended trial was relisted to take place on 24 June 2021.

16The undefended trial proceeded on that day. The husband did not appear. The Magistrate reserved his decision, which was subsequently published from chambers on 27 July 2021.

17The orders made by the Magistrate on 27 July 2021 (“the primary orders”) required the parties to do all things necessary to sell the Suburb B property, and provided for the proceeds of sale to be “distributed” by paying costs of sale, outstanding rates and taxes, and the amount required to discharge the mortgage, paying $10,000 to the husband, and paying the balance to the wife. A further order was made that “each party otherwise retain all assets liabilities and financial resources in their own names” (sic) and that “the proceedings be and are otherwise dismissed.” For reasons which are not apparent, in circumstances where the only pending proceedings were concluded, an order was also made transferring the proceedings from the Magistrates Court to this court. Self-evidently, that order was of no effect as there were no proceedings to transfer.

The enforcement proceedings

18The wife commenced proceedings to enforce the primary orders on 29 September 2022. If the husband did not comply with the orders for sale of the Suburb B property, she sought to be appointed sole trustee for sale.

19The enforcement application came before a different Magistrate on 25 January 2023. The husband did not attend the hearing. Orders were made requiring him to do all things necessary in conjunction with the wife to place the Suburb B property on the market for sale with a specified agent. If he did not, by operation of the orders the wife was appointed sole trustee for sale. Orders were made requiring the husband to allow access to the property by the selling agent, restraining him from removing fixtures and the like, and requiring him to deliver up vacant possession upon sale.

20There were further difficulties, and the wife filed a further application on 17 March 2023 seeking that the husband vacate the property, and orders permitting him to be removed from the property by a bailiff if he did not comply. She sought further orders for the net proceeds of sale to be placed into a joint account requiring the signature of both parties, notwithstanding the terms of the primary orders. That application was listed for 27 March 2023.

21On that day, a Magistrate made orders requiring the husband to vacate the property within 14 days, and deliver up keys, remote controls, and the like to the wife. If he failed to do so, a warrant was to issue authorising his physical removal from the property by the Marshal of the court. He was ordered to pay the wife’s costs of $800 by deduction from what would otherwise be his share of the net proceeds pursuant to the primary orders. Again, the husband did not attend the hearing.

22On 13 July 2023, a Magistrate made orders enabling the wife to sign all documents required to affect the sale and transfer of the Suburb B property, dispensing with the need for the husband’s signature.

The sale of the property

23On the husband’s evidence, he was served on 16 June 2023 with a warrant for the possession of the Suburb B property and was thus “evicted”. The property was sold, and settlement took place on 4 August 2023. The net proceeds of sale are presently held in a joint bank account in circumstances outlined further below.

The husband’s application

24In his application commencing the present proceedings, filed on 24 July 2023, the husband sought final orders which may be summarised as follows:

(a)orders pursuant to r 311(1)(a) of the Family Court Rules 2021 (WA) (“the Rules”) setting aside the primary orders, and the enforcement orders made on 25 January 2023;

(b)in the alternative, that each of those orders be “set aside pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth)”;

(c)a declaration that the May 2017 orders “dismissing the financial proceedings remain in force”;

(d)a consequential declaration that the proceeds of sale of the Suburb B property should be divided equally between the parties, that the wife’s interest in the husband’s chattels, bank accounts and superannuation should vest in him, and that the husband’s interest in the wife’s chattels and bank accounts should vest in her;

(e)declarations pursuant to s 69VA of the Act that he is not the father of Child A and Child B, but that in the event that he is found to be Child B’s father he “have leave to particular the parenting orders he seeks within 28 days of receipt of the parenting testing results” (sic);

(f)orders pursuant to s 143 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) compelling the wife to repay to him all child support payments he has made for the children; and

(g)costs.

25He sought interim and interlocutory orders which may be summarised as follows:

(a)that the primary orders, and the enforcement orders made on 25 January 2023, be stayed until further order;

(b)that the net proceeds of sale of the Suburb B property be paid into a joint interest-bearing account requiring the signatures of both parties for any transactions until further order;

(c)that he, Child B and Child A undergo parentage testing procedures, with the wife to meet the whole of the associated costs, and with the reports of the test outcomes to be received into evidence in the proceedings;

(d)that all existing child support assessments, and any garnishee arrangements, including as to the recovery of arrears, be suspended and any further enforcement proceedings be stayed, and that he cause the Registrar of the Child Support Agency to be served with copies of those orders and the documents filed in support of the application; and

(e)costs.

26The husband’s application is supported by an affidavit sworn by him, a financial statement, written submissions filed on his behalf on 1 August 2023 and further written submissions filed this morning.

27At a hearing before a Magistrate on 1 August 2023, orders were made by consent to ensure that the sale of the Suburb B property proceeded to settlement as scheduled. Further orders were made by consent for the husband to receive $9,200 from the net proceeds of sale (in circumstances where under the primary orders he was entitled to receive $10,000, and there is an existing costs order in favour of the wife in the sum of $800), for the wife to receive $10,800, and for the remaining balance to be deposited into an interest-bearing account in joint names, requiring both signatures for any transaction. An interim injunction was granted by consent restraining the husband from withdrawing monies from his superannuation account. An order was made by consent for parentage testing of Child B at the husband’s expense. Otherwise, orders were made for the filing of responding documents by the wife and for the matter to proceed to this hearing.

28The orders noted that the intended purpose of this hearing was to facilitate argument in relation to the following issues:

(a)“nullity” of previous orders;

(b)distribution of the proceeds of the sale of the Suburb B home;

(c)paternity issues; and

(d)child support issues.

The wife’s response

29The wife filed her response on 28 August 2023. She seeks the dismissal of the husband’s application, and that the primary orders “remain in full force and effect”.

30She sought a further order that “in the event the Court is minded to determine the [husband’s application, she] file” an amended response within 14 days of “those Orders”. She otherwise sought an order that the husband pay her $727.12 representing the costs incurred by her for a locksmith when the husband was “evicted” from the property, and costs.

31She sought orders in identical terms both on a final and interim and interlocutory basis. Her response was supported by an affidavit and financial statement sworn by her.

The approach to be taken

32Section 45A permits the Court to make a decree for one party against another in relation to the whole or any part of proceedings if there is no reasonable prospect of success in either the prosecution or defence of the relevant component of the relief sought. The relevant component need not be hopeless or bound to fail to have no reasonable prospect of success. Similarly, the Court may dismiss all or part of proceedings at any stage if satisfied that the relevant component of the relief sought is frivolous, vexatious or an abuse of process. The Court may take either action either on application by a party to the proceedings, or on its own initiative.

33While I had anticipated that the matters noted by the Magistrate on 1 August 2023 would all be heard and determined today, over the course of the hearing it emerged that was not the case. While the parties sought the determination of the husband’s primary contention as described later in these reasons, counsel for the wife confirmed that he did not seek to proceed at this hearing with any application for summary dismissal of the second and third limbs of the husband’s application. He reserved his client’s rights in that regard, saying that the question should be revisited only upon the husband particularising the third limb of his application. He said further that his client did not pursue the proposition that the injunction granted on 1 August 2023, freezing the proceeds of sale of the Suburb B property, should be set aside or varied today. Rather, he reserved his client’s right to revisit that in the context of the foreshadowed applications to be made after the husband’s case is particularised.

34The question of parentage testing was also listed for hearing today. On instructions, counsel for the husband advised that his client now accepts that he is Child B’s father, and that the order for parentage testing in relation to Child B made by consent on 1 August 2023 should be discharged. He confirmed that the husband pursues the issue of parentage testing in relation to Child A; counsel for the wife said that application was not opposed provided that the husband meets the associated costs.

35During the course of submissions, I drew counsel’s attention to fundamental difficulties with the husband’s application in relation to child support as presently framed, as summarised later in these reasons. It appears that those difficulties may have been belatedly recognised by counsel’s instructor prior to the hearing, as further written submissions filed only this morning on behalf of the husband, while not acknowledging any difficulty with the application as originally framed, made reference to entirely different legislation.

36Against that background, I turn to the limited matters requiring determination today.

The husband’s first contention

37The husband argues that the May 2017 orders determined the then pending application for alteration of property interests, such that the Magistrates Court was thereafter functus officio. Accordingly, he argues that the primary orders and the subsequent orders enforcing them “are nullities, as having been made without jurisdiction”.[1] The submission, with respect, conflates different concepts.

[1] Husband’s submission at 17.

38Once an order disposing of proceedings has been perfected, that proceeding is, absent relevant statutory provision, “at an end in that court and is in its substance… beyond recall by that court.[2]” At that point, and in relation to the proceeding in question, the court is functus officio. It cannot make further orders “in litigation that has been brought regularly to an end”[3].

[2] Bailey v Marinoff (1971) 125 CLR 529.

[3] Ibid per Menzies J at [4].

39The primary orders were not made in the litigation brought to an end by the May 2017 orders. They were made in subsequent litigation commenced by the wife’s application filed on 28 March 2019. There can be no suggestion that the Court was functus officio when the primary orders were made.

40The real question raised by the husband’s first contention is whether, by virtue of the dismissal of the original application for alteration of property interests, no subsequent application for alteration of property interests could be entertained nor orders made.

41The May 2017 orders did no more than dismiss a then pending application in circumstances where the parties advised the Court that they had reconciled. The Magistrate appropriately did not simply dismiss the proceedings immediately on receipt of that advice; rather, she made orders leaving the proceedings on foot on the basis that if no request for a relisting was received by a specific date, the relevant application and response would be dismissed.

42An order striking out an application for want of prosecution is an interlocutory order only.[4] Similarly, an order dismissing an application for want of prosecution is interlocutory[5], and does not prohibit a subsequent application seeking the same relief, as the merits of the substantive application have not been considered let alone determined.

[4] In the Marriage of Tudor (1992) FLC 92-273; In the Marriage of Bennett (1985) FLC 91-617

[5] Vidler v Merit Engineering Pty Ltd (1987) 86 FLR 213.

43I acknowledge that, as noted earlier in these reasons, the parties had jointly sought an order for the equal division of monies then held in a joint account from the proceeds of sale of the Suburb A property, and that the Magistrate declined to make that order. In doing so, her Honour did no more than decline to exercise power under s 79 in circumstances where the parties had reconciled. Her Honour was clearly correct to do so, and to make further orders permitting the parties to seek a relisting of the substantive application if they chose to do so. It was only when they did not seek a relisting that the substantive application and response were dismissed.

44There can be no suggestion that the merits of the substantive application and response dismissed by the May 2017 orders were considered let alone determined before the orders were made.[6]

[6] Birknell v James [1978] AC 297 at 322 per Lord Diplock; Lewandowski v Lovell (1994) 11 WAR 124 at 132-133

45No issue of res judicata, claim estoppel or issue estoppel arises.

46Accordingly, the only basis upon which the husband’s first contention could be upheld is if the primary orders were made without jurisdiction, by virtue of the court’s power under s 79 being exhausted by the making of the May 2017 orders.

47It is beyond doubt that there is but one valid exercise of the power under s 79, albeit that exercise may be undertaken incrementally.[7] If the May 2017 orders involved the exercise of that power, in the context of the dismissal of the then pending proceedings, then no further exercise of the power was available in the subsequent proceedings.

[7] Hickey & Hickey and the Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 at [48], Gabel & Yardley (2008) FLC 93-386, Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 .

48There was no exercise of the power under s 79 involved in the making of the May 2017 orders.[8] The exercise of that power is only reflected by orders “which work an alteration of the legal or equitable interests in the property of the parties or either of them”. The mere dismissal of an application which sought orders for alteration of property interests, without more, does not involve the exercise of that power.

[8] Mullane v Mullane (1983) 158 CLR 436 at 445.

49Indeed, authority binding on me confirms that even an order expressed to be made “by way of alteration of property interests pursuant to s 79” and which then simply provides that the “assets of [the parties] be divided between [them]” in particular percentages, as effectively sought by both these parties in the initial proceedings and by the wife subsequently, would not without more have effected an alteration of property interests pursuant to s 79.[9]

[9] Shaw & Shaw and Anor [2016] FamCAFC 159 at [81].

50The orders did not in any sense effect an alteration of the property interests of either party. As the power was not exercised, it cannot have been exhausted.

51I reject the proposition that the primary orders were made without jurisdiction. That conclusion having been reached, the proposition that orders enforcing the primary orders were necessarily made without jurisdiction falls away for obvious reasons. So too does the proposition that the May 2017 orders “remain in force”.

The second limb of the husband’s application

52Secondly, the husband contends that pursuant to r 311(1)(a) the Court should set aside the primary orders, and the orders of 25 January 2023 enforcing them. The relevant rule provides that “a court may at any time vary or set aside an order if it was made in the absence of a party”.

53A question potentially arises as to whether this court can make the order sought by reference to the Rule, in circumstances where it was not this court that made the primary order. It is not necessary to determine that question at this point.

54A further issue was raised by counsel for the wife. He submits that the wife’s reliance on r 311 is misplaced, and that the relevant provision is r 172. Nothing turns on that for today’s purposes, as the wife did not press for any determination at this stage of the second limb of the husband’s application.

The third limb of the husband’s application

55In the alternative to his primary contention, and the second limb of his application, the husband contends that the primary orders and the enforcement orders made on 25 January 2023 should be set aside pursuant to s 79A(1)(a) of the Act.

56The proposition that the enforcement orders made on 25 January 2023 should be so set aside is readily dealt with. First, those orders were not orders made “under section 79 in property settlement proceedings” and accordingly are not amenable to being set aside pursuant to s 79A(1). Secondly, and equally fundamentally, the orders provided only for the mechanics of the sale of the Suburb B property, and injunctions restraining the husband from removing fixtures from the property or entering that property following sale. The sale has been completed and settlement has been effected. The orders have been fully executed and there can be no suggestion that there is any utility in them being set aside, even under the correct head of power. That aspect of the husband’s application will be dismissed.

57To otherwise succeed in the third limb of his application, the husband must satisfy the Court that, by reference to the primary orders, there has been a miscarriage of justice. In his affidavit filed in support of the application, the husband does not raise any question of fraud, duress, suppression of evidence, failure to disclose relevant information, or the giving of false evidence. The basis upon which he asserts a miscarriage of justice is entirely unclear. The closest he comes to adducing evidence potentially relevant to that question is his broad assertion that, as English is his second language, he did not understand what the primary proceedings were about, and his assertion that the eventual proceeds of sale of the Suburb B property exceeded what was anticipated at the time of the primary orders, leading to an outcome different from that intended by the Magistrate.

58The first of those assertions will, if it is pursued, fall to be considered against the background of the husband having been represented by a lawyer in the parenting and property proceedings commenced in 2016, having sworn affidavits in those proceedings without the use of an interpreter, and having on his evidence worked [in the entertainment industry] in Perth for nearly 30 years.

59In relation to the second of those assertions, the husband says (accurately) that the Magistrate making the primary orders found that at the relevant time the Suburb B property had a value of $490,000 and was encumbered by a mortgage securing a debt of $300,176 and a memorial securing the wife’s debt to Legal Aid Western Australia in the sum of $5011. He says accordingly that the net equity in the property was approximately $190,000 – it was $184,813. The only other significant asset at the time was the husband’s superannuation, which the Magistrate found to have a value of $225,299.

60The husband expresses his understanding that the Suburb B property was eventually sold for approximately $630,000, and that the debt secured by mortgage at the time of sale was $279,292. He says accordingly that the net equity in the property was approximately $350,708. Under the primary orders, he was to receive $10,000 from those proceeds and the wife was to receive the balance.

61The wife’s financial statement filed on 28 August 2023 says that the balance of the proceeds of sale of the Suburb B property presently held in a joint account in the names of the parties pursuant to the orders made by consent on 1 August 2023 total $223,538. At the hearing this morning, counsel for the husband did not cavil with the accuracy of that evidence. As $20,000 in total was distributed to the parties from the proceeds of sale pursuant to those orders, the net proceeds at settlement totalled $243,538, not the much higher amount estimated by the husband.

62According to the husband’s financial statement filed on 24 July 2023, his superannuation entitlements now total $268,264.

63The net proceeds of sale of the Suburb B property accordingly were some $58,725 greater than anticipated by the Magistrate at the time of the making of the primary orders. The husband’s superannuation is worth approximately $42,965 more than it was at the time of the making of the primary orders. By virtue of his non‑compliance with the primary orders, the husband had occupation of the Suburb B property for some three years longer than the primary Magistrate intended.

64No miscarriage of justice arises from those facts. To succeed in the third limb of his application, the husband will need to establish that the primary orders themselves gave rise to a miscarriage of justice, and then persuade the Court to exercise its discretion in his favour against the background of his delay, his acknowledgement that he was served with the application which led to the making of the primary orders and attended the first hearing with an interpreter before then failing to participate in the proceedings or comply with orders made in them, and his subsequent failure to comply with the primary orders themselves.

65Again, the consideration of whether the third limb of the husband’s application might be summarily dismissed as having no reasonable prospect of success was not a matter listed for determination today. The merits of that aspect of the husband’s application, and for that matter the second limb of his application, will nevertheless require preliminary assessment in due course in the context not only of any summary dismissal application, but any interlocutory application in relation to the continuation or otherwise of the injunction freezing the proceeds of sale of the Suburb B property.

The path forward in the property dispute

66As I have determined that there is no merit to the proposition that the May 2017 orders remain in force, nor that the primary orders were made without jurisdiction, the parties need to bear in mind that the remaining alternatives advanced by the husband in the property case would, if successful, lead to different outcomes.

67If the primary orders are set aside pursuant to r 311(1)(a), then the proceedings commenced by the wife’s application filed on 28 March 2019, and which were otherwise concluded by the making of the primary orders, remain on foot. The husband would then need to respond to that application by the wife for alteration of property interests.

68If the husband’s alternative application is successful, and the primary orders are set aside pursuant to s 79A(1)(a), the outcome is potentially different. The husband seeks only that the substantive orders for alterations of property interests be set aside; he does not, at this stage at least, seek that any orders be made in substitution for those orders. It is presumably in that context that the wife has sought orders permitting her to file an amended response if the husband’s substantive application is to be entertained.

69The application to the extent it seeks orders pursuant to s 79A(1)(a) is, to put it as neutrally as possible, presently ill-defined. The wife should not be put to the expense of further responding until the husband’s case is particularised. Equally, any possible consideration of summary dismissal whether on application by the wife or on the Court’s own motion can only properly proceed once the case is better defined. I propose to make orders to that end.

Other matters

70Some further observations as to the relief presently sought by the husband may fairly be made.

71His primary contention, and the first and second elements of the relief sought, are already outlined above only to the extent of what the husband seeks in relation to the primary orders. There is, however, more to it than that.

72In the second limb of his application, the husband seeks that the primary orders be set aside. He then seeks a declaration that the May 2017 orders dismissing the then pending financial proceedings “remain in force”. Accordingly, he does not propose to seek any order for the alteration of property interests.

73Consistently with that, he seeks a consequential declaration that the proceeds of sale of the Suburb B property should be divided equally between the parties, reflecting their joint ownership of the property prior to its sale.

74That is where the consistency ends. The husband then seeks a “declaration” that the wife’s interest in his chattels, savings and superannuation “vest in” him, and that his interest in the wife’s chattels and savings “vest in” her. There is no power to make such a declaration. Section 78 only empowers the declaration of the existing title or rights that a party has in respect of property. A “vesting” cannot be effected by a declaration. Such a vesting of any equitable or other interest either party might have in the property of the other can only be an order altering property interests pursuant to s 79 - yet no such order is sought.

75The second limb of the husband’s application is deficient both in substance and in form.

Child support

76The husband sought orders for parentage testing for both Child A and Child B. Orders were made by consent on 1 August 2023 for parentage testing for Child B; no orders were made in relation to Child A. As earlier noted, at the commencement of the hearing I was told that the husband now accepts that he is Child B’s father and agrees that the order for parentage testing in relation to Child B should be discharged. He continues to seek a parentage testing order in relation to Child A.

77The husband sought final orders declaring that he is not the biological father of either child and that accordingly the wife is not entitled to an administrative assessment of child support for either. He sought further orders to recover the child support he has already paid.

78The first point to be made is obvious – the husband sought substantive relief related to child support both for Child B and Child A. He may now be presumed to have abandoned his application in so far as it related to child support for Child B. Those aspects of his application should be dismissed.

79The declarations still sought in relation to Child A are expressed to be sought pursuant to s 107 of the Assessment Act. I note the following in relation to the substantive application:

(a)any application made to this court under the Assessment Act must be served on each respondent and on the Registrar of Services Australia.[10] When I enquired of counsel this morning, I was told that the husband’s application was served on 1 November 2023, and that no response had yet been received;

(b)an application for a declaration of the type sought by the husband must be filed within a specified time limit if notice has been given pursuant to s 33 or s 34 of the Assessment Act as to the outcome of any application for a child support assessment. That time limit is 56 days from the date after service of that notice.[11] On the husband’s evidence the most recent child support assessment issued to him was by notice dated 18 September 2022. On his own evidence his substantive application is filed out of time, and no leave has been sought.

[10] Rule 70(1).

[11] Rule 69.

80Those matters might be thought to inform the determination of the husband’s application for interim orders in relation to child support, but there is a more fundamental problem.

81The husband’s application seeks an interim order in the following terms:

Pursuant to Section 140 of the Child Support (Assessment) Act 1989 (Cth) until further order of the Court all existing child support assessments in relation to the children insofar as the assessment makes provision for the Husband to pay child support to the Wife, either directly or by way of garnishee order, including any arrears of child‑support, be and are hereby suspended.

82Section 140 of the Assessment Act was repealed in June 2007.

83Section 109 of the Assessment Act provides that, subject to s 111C of the Child Support (Registration and Collection) Act1988 (“the Collection Act”), the fact that a proceeding is pending pursuant to the Assessment Act does not in the meantime interfere with or affect any administrative assessment.

84In short, there is no valid application on foot for a suspension or stay of the existing child support assessments. That much was sensibly acknowledged by counsel for the husband. In those circumstances, it is hardly surprising that the Registrar of Services Australia has not responded on being served with an application which was clearly deficient. To avoid confusion I propose to dismiss those parts of the husband’s application just described; that does not preclude him from seeking appropriate relief in the amended application which he must now file.

Proposed orders

85Subject to any submissions as to form, I propose to make the following orders:

1.By consent, the order contained in paragraph 6 of the minute of consent orders annexed to the orders made on 1 August 2023 is discharged.

2.The Form 1 Application of the Applicant husband, [MR YANG], filed on 24 July 2023, insofar as it sought the declarations set out at paragraphs 3 and 4 of the minute of final orders sought attached to it, and the orders set out at paragraphs 6, 7, 9 and 11 of the said minute be and is hereby dismissed.

3.The said Form 1 Application insofar as it sought that orders made by a Magistrate on 25 January 2023 be set aside pursuant to s 79A (1) (a) of the Family Law Act 1975 (Cth) be and is hereby dismissed.

4.The said Form 1 Application, insofar as it sought orders as set out at paragraphs 7, 8 and 10-12 inclusive of the Minute of interim orders sought attached to it be and is hereby dismissed.

5.Not by consent, but not opposed, there be an order in relation to parentage testing for the child, [CHILD A] born 4 July 2011 in the terms of paragraph 6 of the said Minute of interim orders sought, with the husband to meet all associated costs.

6.By 4.00 pm on 27 November 2023 the husband must file and serve:

(a)an amended Form 1 Application; and

(b)a document in the nature of a Statement of Claim, setting out the legal and factual bases upon which he asserts that the primary orders for alteration of property interests made on 27 July 2021 should be set aside pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth).

7.By 4.00 pm on 18 December 2023 the Respondent wife, [MS LIM], must file and serve an amended Form 1 A Response, and a document in the nature of a Defence.

8.The proceedings are listed for further hearing at 2:15 pm on 11 January 2024 for determination of any outstanding interim and interlocutory disputes.

9.Costs of both parties are reserved for consideration at that further hearing.

These reasons are the reasons for decision delivered on 6 November 2023, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

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

KV

Associate

13 NOVEMBER 2023