Insights and inspiration
Why Can't We Just Agree?
16 February 2016
In December last year a judge of the Family Court dismissed an application before him in five short sentences. That is unusual in itself. My discussion of it will not be quite as brief.
A husband and a wife agreed on orders for property settlement. The process that needs to be followed is this:
- The parties have to fill out a document called An Application for Consent Orders. That sets out what their assets and liabilities are, what the effect of the proposed orders will be in percentage terms, and the history of their marriage so the court can determine why those orders are fair.
- There is a second document, being the consent orders themselves. This is the document that expresses who gets what, and who has to do what and when.
Those two documents have to be signed by both parties and lodged with the court. They are then checked by a court registrar.
It is the registrar's job to look at the material and to see whether the proposed orders are fair based on the material in the Application for Consent Orders. People often think that this is a mere rubber stamp procedure but it is not. The Registrars do really read these documents, as this case indicates.
In this particular case the Registrar refused to make the orders that he or she was asked to make because it could not be seen from the information that they were fair. The Registrar referred the case to a judge.
Anybody who has been around family law for any length of time knows that there are sometimes more than two parties to any dispute. And sometimes the third party can be the Tax Office.
I am of course not suggesting that in this case this is what motivated the husband and wife to reach the agreement that they did. But what happened when the case came before the judge was interesting. The parties were notified by the court that their application for the approval of the consent orders was coming before the judge. They did not turn up. The judge however noticed that there was a significant outstanding debt owed by one of the parties to the tax office.
Without any appearance before him and with most unsatisfactory material from which he could not decide if the proposed orders were fair, the judge had no alternative but todismiss the application. Therefore even though the parties agreed on what orders the court was to make, the court did not make them.
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