Anderson & McIntosh - [2013] FamCAFC 200

FAMILY COURT OF AUSTRALIA

ANDERSON & MCINTOSH

[2013] FamCAFC 200

FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the proposed appeal involves consideration of whether s 44(3) of the Family Law Act 1975 (Cth) applies to applications made under s 79 where parties have been divorced overseas – where the respondent neither consented to nor opposed the granting of leave – where the proposed appeal involves an alleged error of principle on an important issue – leave to appeal granted.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – STATUTORY INTERPRETATION – where the parties were divorced and property settlement orders were made overseas in relation to foreign property but not in relation to property in Australia – where the wife’s application for property settlement in the Family Court of Australia was filed more than 12 months after the date of the foreign divorce – where the husband sought that the wife’s application be dismissed as she had not obtained leave pursuant to s 44(3) – where the trial judge determined the wife did not need leave – where analysis of the legislation and legislative history demonstrates that s 79 proceedings commenced following a foreign divorce are not within the scope of s 44(3) – where the legislation demonstrates a consistency of approach in maintaining a distinction between the terms “divorce” and “divorce order” – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – although the appellant was wholly unsuccessful, it was appropriate for the appeal to be brought given the divergence of judicial opinion at first instance in relation to the scope of s 44(3) following amendments made to the legislation – no order for costs.

Family Law Act 1975 (Cth)

Family Law Amendment Act 1983 (Cth)

Family Law Amendment Act 2005 (Cth)

Bevan & Bevan (2013) FLC 93-454
Cain & Cain (1987) FLC 91-808
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
Espie & Espie (1983) FLC 91-347
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rutherford & Rutherford (1991) FLC 92-225
Savage and Hodgson (1982) 46 ALR 198; (1982) FLC 91-281
Savage and Hodgson (1982) FLC 91-222
Taffa & Taffa (Summary Dismissal) [2012] FamCA 181
The Commonwealth v Baume (1905) 2 CLR 405

APPELLANT:

Mr Anderson

RESPONDENT:

Ms McIntosh

FILE NUMBER:

ROC 367 of 2012

APPEAL NUMBER:

NA 19 of 2013

DATE DELIVERED::

13 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, May and Thackray JJ

HEARING DATE:

16 September 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 March 2013

LOWER COURT MNC:

[2013] FamCA 164

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr D Jackson QC with
Ms C Carew

SOLICITOR FOR THE APPELLANT:

South & Geldard

COUNSEL FOR THE RESPONDENT:

Mr P Dunning QC with Mr M Alexander

SOLICITOR FOR THE RESPONDENT:

Duffield & Associates

Orders

Leave to appeal against the order made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson & McIntosh

Details

AGLC: Anderson & McIntosh [2013] FamCAFC 200
Case: [2013] FamCAFC 200
Decision Date: 13 December 2013

CaseChat Overview and Summary

In this case, Anderson & McIntosh, the parties were involved in a dispute regarding family law, specifically concerning property settlement following a foreign divorce. The matter was heard in the Family Court of Australia. The wife had filed an application for property settlement more than 12 months after her divorce from the husband, which was finalised overseas. The husband argued that the wife's application should be dismissed because she had not obtained leave under section 44(3) of the Family Law Act 1975 (Cth) before filing. The trial judge, however, determined that the wife did not need leave to bring the application. The husband appealed this decision, arguing that the trial judge had erred in interpreting the scope of section 44(3) and its applicability to property settlement applications following a foreign divorce.

The court examined the legislation and legislative history to determine whether section 44(3) applied to property settlement applications filed under section 79 after a foreign divorce. The court concluded that section 79 proceedings, which are related to property settlement following a foreign divorce, were not within the scope of section 44(3). The court found that the legislation consistently maintained a distinction between the terms "divorce" and "divorce order," and that the wife's application for property settlement was not subject to the leave requirement under section 44(3). The appeal was dismissed, and the court found that there was no need to make an order for costs despite the husband's unsuccessful appeal, as the appeal was brought in good faith given the divergence of judicial opinion at first instance.

The ratio of this case is that proceedings for property settlement under section 79 of the Family Law Act 1975 (Cth) following a foreign divorce are not subject to the leave requirement under section 44(3). The court's interpretation of the legislation and legislative history demonstrates a consistent approach in maintaining a distinction between the terms "divorce" and "divorce order." This distinction is essential in determining the scope of section 44(3) and its applicability to property settlement applications filed under section 79 following a foreign divorce.

Orders

Orders of the court

1. Leave to appeal against the order made by the Honourable Justice Murphy on 20 March 2013 be granted.

2. The appeal be dismissed.

3. There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the respondent drew our attention to other provisions of the Act where the words “divorce” and “divorce order” are used. It is appropriate to set out some of those provisions:79 Alteration of property interests…(1B) The court may adjourn property settlement proceedings, except where the parties to the marriage are:(a)parties to concurrent, pending or completed divorce or validity of marriage proceedings; or(ba) parties to a marriage who have divorced under the law of an overseas country, where that divorce is recognised as valid in Australia under section 104; or(bb) parties to a marriage that has been annulled under the law of an overseas country, where that annulment is recognised as valid in Australia under section 104;… It is useful to add s 60F(2):A reference in this Act to a child of a marriage includes a reference to a child of:(a)a marriage that has been terminated by divorce or annulled (in Australia or elsewhere); or(b)a marriage that has been terminated by the death of one party to the marriage. Essential to the argument of the appellant is s 4, defining matrimonial cause, especially (ca)(iii). It is necessary to set out those parts of the section which are of potential relevance in understanding the meaning of “divorce order”:matrimonial cause means:(a) proceedings between the parties to a marriage, or by the parties to a marriage, for:(i) a divorce order in relation to the marriage; or(ii) a decree of nullity of marriage; or(b) proceedings for a declaration as to the validity of:(i) a marriage; or(ii) a divorce; or(iii) the annulment of a marriage;by decree or otherwise; or…(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:(i) arising out of the marital relationship;(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or In the part headed “Part XII – Recognition of decrees”, s 104 of the Act provides for recognition of an overseas divorce as valid in Australia. There is no suggestion in this case that the divorce in Country B would not be regarded as valid in Australia. Section 104(10) which is of some significance provides:The preceding provisions of this section apply in relation to divorces, annulments and legal separations effected whether by decree, legislation or otherwise, whether before or after the commencement of this Act, and, for the purposes of this section, any decree, legislation or other process by which it is established that a purported marriage was or is to become void shall be deemed to be an annulment of the marriage.