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Property – registrar erred when application for consent orders dismissed…

…after husband’s death when wife withdrew consent

In Hullet & Benton [2022] FedCFamC1A 13 (11 February 2022), the Full Court (Austin, Tree & McEvoy JJ) dismissed an appeal from Macmillan J’s decision in Hullet & Benton [2021] FamCA 449.

Upon a review of his decision, a registrar was held by Macmillan J to have erred when an application for consent orders was dismissed following the husband’s death and the wife’s withdrawal of consent.

Macmillan J held that the proceedings could continue where the rules enabled the husband’s executor as legal personal representative to apply as to the future conduct of the proceedings.

The wife appealed, arguing that when determining the review application, Macmillan J’s power was limited to either granting the application for consent orders or dismissing it; the latter being the only option in the absence of the wife’s consent.

She argued that an application for consent orders was a “different species of application to an adversarial application … and had to be treated differently” (at [10]).

The Full Court said (from [15]):

“… The existence of a ‘judgment’ is the pre-requisite for a competent appeal (s26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act)), for which purpose a ‘judgment’ is defined to include an order or decree, whether it be final or interlocutory (s7, FCFCA Act).

[16] … [A] ‘judgment’ does not include a mere ruling on a question of law which is not decisive of the parties’ rights in the justiciable dispute, even if it is expressed in the form of an order …

[17] … [N]one of the orders amount to a ‘judgment’ since none is decisive of the parties’ rights under Pt VIII of the Act. The orders do no more than achieve the continuity of the proceedings. …

[18] Leave to appeal must be refused once it is understood that no appeal validly lies. (…)”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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