Dorthe & Achan [2025] FedCFamC1F 815 (13 November 2025)

1. Until further order, paragraph 7 of the Final Orders dated 4 June 2015 and the Enforcement Application filed 16 May 2024 be stayed.
2. The parties and any lawyers on the record shall personally attend a Conciliation Conference with Judicial Registrar Russell at 9:00am on 4 February 2026.
3. The parties and any lawyers on the record shall follow any directions from the Judicial Registrar convening the Conciliation Conference in relation to their attendance in person, by Webex or by telephone.
4. The parties are excused from personal attendance at the Conciliation Conference and are granted leave to appear electronically via Webex.
5. Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2022 (Cth), the parties shall each pay equal share of the applicable Conference fee no less than 14 days prior to the Conciliation Conference.
6. Not later than 4.00pm on 21 January 2026 each party must:

(a) ensure that all documents required to be exchanged between parties pursuant to section 71B/90RI of the Family Law Act 1975 (Cth) (as amended) and Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;

(b) ensure that any report that is relevant to the proceedings has been filed;

(c) provide to the Court (by email to [...]) and to the other party a single collated bundle of documents comprising:

(i) a Confidential Outline of Case (Dispute Resolution);

(ii) a detailed minute of Orders Sought;

(iii) details of any previous or current family violence orders;

(iv) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);

(v) particulars of any financial resource;

(vi) a valuation or market appraisal of any real estate or other asset the value of which is in dispute;

(vii) statements for, and where applicable, valuations of any superannuation interest; and

(viii) written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

1. In the event no final agreement is reached at the Conciliation Conference, the parties must within 28 days of the date of the Conciliation Conference, make a genuine offer to settle which includes reference to the following:

(a) "This offer to settle is made under Division 4.2.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)."

1. The matter be listed for a Directions Hearing before Judicial Registrar Altavilla on a date to be fixed.

1. Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:

(a) the total costs and disbursements incurred by the party in the proceeding to date;

(b) an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and

(c) an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

1. The Confidential Outline of Case (Dispute Resolution) is a confidential, without‑prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Dorthe & Achan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons concern two proceedings. On 16 May 2024, Ms Dorthe filed an enforcement application against her former husband, Mr Achan, seeking payment of $330,000 owed to her pursuant to paragraph 7 of what were titled final orders dated 4 June 2015 made by Judge Roberts ("the final orders"), legal costs and $211,663.65 comprising of penalty interest against Mr Achan. In response, Mr Achan filed an Initiating Application on 3 September 2024 seeking that paragraph 7 of those orders be set aside either pursuant to paragraph 8 of those orders or by virtue of s 79A(1)(b) of the Family Law Act 1975 (Cth) ("the Act") and that there be a division of assets pursuant to s 79 of the Act. On 19 March 2025, Ms Dorthe filed a Response to Initiating Application seeking that the Initiating Application filed by Mr Achan be dismissed and that her enforcement application proceed.

1. Mr Achan is aged 50 and Ms Dorthe is aged 47.[1] They married in 1998, separated in 2014 and divorced in about 2016.[2] There are four children to the marriage.[3] The parties travelled to Country B in 2014, and for competing reasons, Mr Achan remained there with the children until 2016.[4] During that time, Ms Dorthe initiated proceedings in what was then the Federal Circuit Court of Australia and on 4 June 2015, Judge Roberts made the final orders which provided relevantly:
   1. Within 30 days of the date of this Order, the Husband pay to the Wife the sum of $330,000.00.
   2. In the event that the Husband returns with the children to the jurisdiction of this Court, the Husband have liberty to apply with respect to the amount referred to in Order 7 above.
2. On 14 October 2016, after his return to Australia, Mr Achan initiated parenting proceedings in this Court which resolved shortly thereafter by consent. Mr Achan says that during these proceedings, Ms Dorthe did not seek the enforcement of the payment nor was he made aware of its existence otherwise he would have applied for it to be discharged.[5] He also claims to be currently impecunious and in great hardship.[6] Ms Dorthe denies that Mr Achan was unaware of the order or that he is impecunious and alleges that he has gone to great lengths to conceal his income from this Court.[7] She further states that she did not pursue enforcement of the payment earlier as she was advised that Mr Achan had no assets in Australia.[8] She also disagrees that he was unaware of the orders where she submits that Zeno Lawyers appeared on behalf of Mr Achan at the hearing on 4 June 2015 and although they ceased to act later that day, a lawyer from the firm was present in court and is assumed to have advised Mr Achan of the outcome.[9]
3. To give effect to the order she seeks to be enforced, Ms Dorthe seeks the sale of C Street, Suburb D, VIC ("Suburb D property") which she says she recently became aware was transferred into the name of Mr Achan. She says that it was previously registered in Mr Achan's brother's name to conceal his ownership of the property.
4. These proceedings are MLC6162/2024 ("Dorthe & Achan").

1. On 14 July 2025, in separate proceedings, Mr Achan's new wife, Ms Heidrun, filed an Initiating Application that the orders of 4 June 2015 be set aside pursuant to s 79A of the Act, a declaration that she has an interest in the Suburb D property and that she be granted leave to intervene in the enforcement proceedings referred to above.
2. Ms Heidrun is aged 34, she married Mr Achan in 2014 and they separated, on her evidence, on 12 August 2024.[10] There are four children to the marriage being:

(a) W born in 2015 (aged 10);

(b) X born in 2018 (aged 7);

(c) Y born in 2022 (aged 3); and

(d) Z born in 2022 (aged 3).

1. Ms Heidrun is currently unemployed and relies on Centrelink benefits.[11] Her evidence is that if Ms Dorthe is successful in enforcing the payment, she and the children will be homeless and all her contributions to the marriage with Mr Achan will be eroded.[12] She says that she and Mr Achan purchased the Suburb D property for $400,000 in 2022, and they both made contributions to its purchase and thereafter by way of renovations and repair.[13] She asserts that she has been solely responsible for paying the rates, bills and the children's school and childcare fees since separation. Mr Achan is the sole registered proprietor of the Suburb D property.[14]
2. Ms Dorthe does not accept the narrative of Ms Heidrun to the extent where she believes that Ms Heidrun and Mr Achan have not genuinely separated and the claimed separation is a tactic to frustrate the enforcement of the payment.[15]
3. These proceedings are MLC8754/2025 ("Heidrun & Achan & Dorthe").

1. On 25 July 2025, the matters were listed for final hearing before Judge A Humphreys, but instead proceeded as a Judicial Settlement Conference whereby orders were made joining Ms Heidrun to the MLC6162/2024 proceedings. It was noted that future case management of the matter and the issue of consolidation is to be determined in the Federal Circuit & Family Court of Australia (Division 1).
2. On 18 August 2025, Judicial Registrar ("JR") Altavilla made orders listing the matter before myself for interim defended hearing for determination of the s 79A applications brought by Mr Achan and Ms Heidrun. The parties were to file, by no later than 24 September 2025, an affidavit going to the matters to be determined at the interim defended hearing and neither party were to rely on any documents at the hearing which were filed after this date.

1. Mr Achan, by way of his Outline of Case, relies on:

(a) Amended Application filed 24 September 2025;

(b) affidavit of Mr Achan filed 24 September 2025; and

(c) Financial Statement filed 11 July 2025.

1. During the hearing, counsel for Mr Achan provided the Court with written submissions.
2. Ms Dorthe did not file an Outline of Case. As noted above, she filed the enforcement application on 16 May 2024 and a Response to Initiating Application on 19 March 2025. Pursuant to the orders of JR Altavilla she filed an affidavit in support on 24 September 2025.
3. By way of her Outline of Case, Ms Heidrun relies on:

(a) Initiating Application filed 14 July 2025;

(b) affidavit of Ms Heidrun filed 14 July 2025; and

(c) final orders of 4 June 2015.

1. As noted above, it is Ms Dorthe's case that the applications of Mr Achan and Ms Heidrun be dismissed and that her enforcement application be permitted to proceed.
2. Ms Heidrun contends that the final orders should be set aside where to enforce those orders as sought by Ms Dorthe would require the sale of the Suburb D property. Ms Heidrun asserts that this would leave her and the children without housing and would effectively defeat any claim under s 79 of the Act that she would have against Mr Achan. She therefore seeks to protect her interests. Ms Heidrun relies on s 79A(1)(d) of the Act which provides:

(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:

...

(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or

(a) the final orders are not final by reasons of the reference to "liberty to apply" in paragraph 8 of those orders;

(b) he has the liberty to apply and seeks, pursuant to that liberty, the orders be set aside pursuant to the reservation in the orders;

(c) that the final orders be set aside by operation of r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (as was then applicable) or r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"); or

(d) that the final orders be set aside pursuant to s 79A of the Act by reason of a miscarriage of justice.

1. In support of his contention that the final orders are not final by reason of the reference to "liberty to apply", counsel for Mr Achan refers the Court to Gabel & Yardley (2008) FLC 93‑386 where it is submitted that where the Court has not exhausted its jurisdiction under s 79 of the Act, there remains for the Court the power to adjust property without recourse to s 79A of the Act.
2. As to the question of whether an order is interim or final, counsel for Mr Achan refers to the following comments by the Full Court in Lippman & Lippman [2010] FamCAFC 127; (2010) FLC 93-439:
   1. In the light of the decision in Gabel & Yardley (supra), any distinction between "partial" and "interim" orders for settlement of property is probably more apparent than real. However, the distinction between orders which finally determine proceedings, and orders which do not remains potentially significant, as this case clearly illustrates. To the extent that orders do not finally determine proceedings, they are, at least to some extent, "interim". We also note, without commenting further on its significance in this case, that the provisions of s 79(2) require the Court to make final orders that are just and equitable.
   2. On any view of the case, a number of significant issues potentially remain for judicial adjudication if they prove controversial. Whether controversial or not, further orders need to be made in order to finally and completely determine the proceedings between the parties. Whatever the nature and extent of the power which remains exercisable by the trial judge, the existence of such power in our view renders the orders of 30 March 2010 "interim". As such, the orders are "prescribed decrees" for the purpose of s 94AA(1) by virtue of Regulation 15A(1). Leave to appeal is thus required.
3. It is submitted by counsel for Mr Achan that paragraph 8 of the final orders, left the Court with the capacity to revisit the final orders thus not exhausting the Court's power pursuant to s 79 of the Act. It is therefore Mr Achan's case, that whether by reference to "liberty to apply" or the Court's power not being exhausted under s 79 of the Act, the final orders should be partially set aside.
4. In addition to this, Mr Achan points towards two further factors to support his submissions that the final orders are not final, being:

(a) The absence of a s 81 declaration appearing on the face of the orders; and

(b) no reasons for judgment being provided.

Rule 10.13

1. Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (as was then applicable) provided relevantly:

(2) The Court may vary or set aside its judgment or order after it has been entered if:

(a) the order is made in the absence of a party; or

(b) the order is obtained by fraud; or

(c) the order is interlocutory; or

(d) the order is an injunction or for the appointment of a receiver; or

(e) the order does not reflect the intention of the Court; or

(f) the party in whose favour the order is made consents.

1. This is now provided for at r 10.13 of the Rules which sets out:

(1) The court may at any time vary or set aside an order, if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction or for the appointment of a receiver; or

(e) it does not reflect the intention of the court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in the order; or

(h) there is an error arising in the order from an accidental slip or omission.

1. The Full Court in Barbey & Tuttle [2013] FamCAFC 44; (2013) FLC 93-534 said:
   1. The discretion to set aside orders made in default of a party's appearance is unfettered. Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed). His Honour did consider each of these matters, and did not err in his approach. He was not bound to give one matter more weight than another, and was correspondingly entitled to place significant weight on the wife's failure to establish a reasonable explanation for her failure to appear or to participate in the proceedings.
2. Whilst the discretion to be exercised is unfettered, it is nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation and in court efficiency.
3. More recently, Austin J in Scott (No 4) [2023] FedCFamC1A 239, summarised the relevant principles in the exercise of discretion under r 10.13(1)(a) as:
   1. Before the Court will be persuaded to vary or set aside an order made in a party's absence, the aggrieved party must be able to demonstrate, first, a reasonable excuse for having failed to appear in the first instance, and secondly, reason to suspect the result might have been different had the party appeared and been able to present the case he or she intended (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [28] and [48]-[50]).

1. In the alternative, Mr Achan submits that the final orders ought to be partially set aside pursuant to s 79A(1)(a) of the Act on the basis that there has been a miscarriage of justice. This section relevantly provides:

(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; or

...

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.

1. The thrust of this submission by Mr Achan is that he says he was denied procedural fairness which falls under "any other circumstances" contained in s 79A(1)(a) of the Act. In this respect, he submits that the final orders were made in his absence, unrepresented and without any formal application having been made or served on him.
2. Mr Achan refers to Ms Dorthe not seeking a lump sum payment as was provided for in the final orders in her Initiating Application with the assertion being that as the order that Mr Achan pay Ms Dorthe $330,000 was not sought by Ms Dorthe in her applications it therefore should not have been made without notice to Mr Achan.
3. As to the Court's exercise of discretion, it is submitted:

(a) the procedural unfairness was serious;

(b) Mr Achan was denied the opportunity to make any submissions as to the payment;

(c) order for the payment of $330,000 forms an erroneous assumption that the funds from which that sum was to be paid existed at the time of the hearing;

(d) he has remained unaware of the order for nearly 10 years, where, during that time, he remarried and had four children;

(e) he is, prima facie, unable to meet the payment; and

(f) Ms Dorthe can still seek a cash payment by way of a continuation of the s 79 proceedings.

1. In considering such applications, the Full Court in Patching & Patching [1995] FamCA 46; (1995) FLC 92-585 identified a four-step process:

(a) whether a ground (including "other circumstance" as alleged by Mr Achan) exists;

(b) whether that amounted to a miscarriage of justice;

(c) whether the Court, in its discretion, should vary or set the order aside; and

(d) whether the Court should make another order under s 79 of the Act.

1. It is uncontroversial that Mr Achan failed to attend the final hearing in circumstances where he had notice of that hearing.
2. The matter was fixed for hearing by orders of the Court made on 23 February 2015. Mr Achan had a solicitor acting for him and who are on the record from 4 April 2015. The solicitor appeared on the morning of the first day of the hearing in order to withdraw as solicitors on record. That attendance indicates that they were aware of the hearing.
3. As to the submission that the use of the expression "liberty to apply" in the final orders is determinative of whether the orders are final or interim, I refer to Lorde & Chu [2014] FamCAFC 228, as cited in Singam & Moffrey [2015] FamCAFC 42; (2015) FLC 93-641:

5. In Lorde & Chu [2014] FamCAFC 228, this Court said (at [36]):

Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes[1981] FamCA 41; (1981) FLC 91-060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) provides for a rehearing at first instance in such circumstances. We also observe that it is not uncommon, and indeed desirable, that where a judge makes an order in the absence of a party who will be affected by the order, that the judge expressly provide in his or her orders that the party in whose absence the orders were made have liberty to apply, within a specified period of time, to have the orders varied or set aside.

(Emphasis added)

1. Presumably, Judge Roberts was heeding the advice of the Full Court when using the expression "liberty to apply" and in circumstances where the terms of the order are final orders, the expression "liberty to apply" is simply giving expression to the party's capacity to apply to set aside orders made in their absence pursuant to the provisions of the rules.
2. As to the absence of a notation or written reasons, there is no reason to suppose that oral reasons were not provided at the hearing, particularly given that counsel attended the hearing. Had written reasons been requested, they could have been provided. The absence of a notation is not determinative of the question of whether the orders are final or interim.
3. As to the submission that in the event that the Court finds that the order is not a final order, that the order ought be set aside pursuant to the liberty to apply reserved under the rules, it then becomes a question of consideration of Mr Achan's evidence as to whether it is sufficient to give rise to a basis for making such an order.
4. The submission that Mr Achan was unaware of the terms of the orders made on 4 June 2015 and his obligation to pay Ms Dorthe $330,000, does not withstand scrutiny.
5. In a Family Report filed 11 April 2017, which was obtained for the purposes of the 2016 parenting application, reference is made twice to the outstanding payment at paragraphs 4 and 58. This indicates that since at least 2017, Mr Achan has been aware of the obligations created by the final orders.
6. As to the submission that Mr Achan was not accorded procedural fairness because the relief obtained by way of final orders was not expressly foreshadowed by Ms Dorthe's Amended Initiating Application, that submission similarly does not withstand scrutiny.
7. Ms Dorthe sought orders including a just and equitable division of the property of the parties at the hearing conducted on 3-4 June 2015. Ms Dorthe relied on an affidavit sworn on 1 June 2015. That affidavit sets out Ms Dorthe's narrative as to financial matters and includes an allegation that Mr Achan had removed the proceeds of sale of several properties from Australia to Country B. Those sale proceeds were included in Ms Dorthe's statement of what she considered to be the assets available for division. The affidavit, which the Court assumes was served on Mr Achan's solicitors, includes what is best described as a claim for relief and that includes a division of the matrimonial assets which include the proceeds of sale of the aforementioned properties. The claims of Ms Dorthe are supported by documentary evidence attached to that affidavit. Mr Achan is aware of that affidavit and has referred to that affidavit in his application in support of the orders sought by this application
8. In circumstances where the affidavit was filed and served, Mr Achan and his solicitors who were then acting for him were on notice of the nature of the orders sought. It is not a case that at the hearing, Ms Dorthe sought to rely on different evidence beyond the scope of what was raised in the material that had been filed and served.
9. In Lund & Whittall (2024) 70 Fam LR 389 at [33], Berman J said:
   1. This Court does not rely upon or require pleadings. It is permissible to gain an understanding of the nature and extent of the claim and the particulars of the claim from documents properly identified. In this regard, the substantial affidavit material and written submission documents seeks to set out the parameters of the applicant's claim. It is not for me to determine to finality the orders sought by the applicant against the second respondent unless I am satisfied that they are so lacking in any merit that they would not be able to resist an application for summary dismissal.
10. In this case, the parties were able to discern the claims that were made and the parameters of those claims from the affidavit evidence that was filed in the proceeding. At the time the orders were made, the Court had evidence (which had been disclosed) which formed the basis of the orders made.
11. In my view, the final orders should not be set aside pursuant to s 79A of the Act or pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) at this time. There is a considerable contest of evidence which requires testing. Ms Dorthe has had the entitlement to payment of the sum of $330,000 since June 2015, and the loss of that benefit is now significant. In the circumstances, the Court is not minded to set aside the orders at this interim hearing but will stay the operation of the relevant order pending further order of the Court. The evidence of Mr Achan in support of the application is not such that the Court is currently persuaded that a different result would be obtained if the judgment was set aside. Further, the application under s 79A relies on s 79A(1)(a) and I have found that there was no miscarriage of justice when the order was made. Mr Achan's evidence that Ms Dorthe spent the proceeds of sale of the properties is simply an assertion without evidence.
12. Similarly, as with the application made by Mr Achan, the application of Ms Heidrun to set aside the orders requires a determination of the evidence particularly where, at present, there is a controversy raised as to whether there has in fact been a separation. In that regard, I refer to the affidavits of Mr Achan and Ms Heidrun where there is a lack of detail regarding their separation. Mr Achan says at paragraph 70 of his affidavit filed 24 September 2025 that "Due to these proceedings, we have now separated." Ms Heidrun in her affidavit filed 14 July 2025 similarly provides a lack of detail aside from saying at paragraph 10 that "We separated on a final basis on 12 August 2024." This date was slightly under 3 months after Ms Dorthe filed her application for enforcement.
13. Further, the evidence of Ms Heidrun as to the financial contributions to the purchase of the property is not clear. Whilst she does give evidence of non-financial contribution in particular the care of the children, in my view, that evidence does not go to the level as to justify an order setting aside the orders of 4 June 2015. Instead, I will also stay the enforcement of the final orders pending further order.
14. Mr Achan sought orders that the application be otherwise adjourned to a Judicial Registrar for further case management. I will make orders to that effect, and I will refer the matter to a conciliation conference to be conducted by a Judicial Registrar. I note that the net assets of the parties are modest and the legal fees involved in this matter are likely to consume most of the financial resources that are available to the parties, or which is the subject of dispute. It is therefore in all the parties' best interests of a pragmatic commercial solution to be found to avoid a consequence whereby the majority of financial resources available are consumed by legal fees.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.

[1] Mr Achan's affidavit filed 24 September 2025 ("Mr Achan's affidavit") at [4].

[4] Mr Achan's affidavit at [30]-[31].

[7] Ms Dorthe's affidavit filed 24 September 2025 ("Ms Dorthe's affidavit") at [26].

[8] Ms Dorthe's affidavit at [34]-[35].

[10] Ms Heidrun's affidavit filed 14 July 2025 ("Ms Heidrun's affidavit") at [3], [7] and [10].

[13] Ms Heidrun's affidavit at [19]-[21].

[14] Ms Heidrun's affidavit at [22]-[23].