Cadoret and Cadoret - [2003] FMCAfam 443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CADORET & CADORET

[2003] FMCAfam 443

FAMILY LAW – Divorce – defended – date of separation disputed – long marriage.

PRACTICE AND PROCEDURE – Evidence – corroboration.

Family Law Act 1975, ss.48, 49.
Evidence Act 1995 (Cth) s.164.

Fenech and Fenech (1976) FLC 90-035
Todd and Todd (No.2) (1976) 9 ALR 410; FLC 90-008
Pavey and Pavey (1976) 10 ALR 259; FLC 90-051
Falk and Falk (1977) FLC 90-247

Applicant:

MR CADORET

Respondent:

MS CADORET

File No:

PAM 2465 of 2003

Delivered on:

16 September 2003

Delivered at:

Parramatta

Hearing date:

16 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Burke

Solicitors for the Applicant:

Christopher M Edwards

The Respondent appeared on her own behalf.

ORDERS

The Application is dismissed.
The Application is removed from the Pending Cases List.
I require a transcript for the reasons for my decision.

IT IS NOTED that publication of this judgment under the pseudonym Cadoret & Cadoret is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2465 of 2003

MR CADORET

Applicant

And

MS CADORET

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the husband for dissolution of the marriage of the parties which was celebrated [in] 1973. There are three children of the marriage who are all over the age of eighteen (18) years.
The application was signed on 28 May 2003 and filed on 19^th June. In the application the husband in answer to question 11:
“When did you and your spouse separate?”
indicates that it was some time in 1995. He does not specify either a day or a month.
The wife has filed a Response. In that Response, which was filed on 26^th July, having been prepared that day, the respondent wife said that she wished to attend Court. She raised a correction about the place of the marriage but in particular she denies the date of separation alleged by the husband and says that the date of separation was 1 March 2003. In her Response, she summarised her case saying:
“Although I moved to a different bedroom around this time, I still took care of the family by cooking, cleaning, washing, shopping for them, et cetera”.
The wife explained that the reason for leaving the matrimonial bedroom was due to the sickness of their daughter. She further refers to the husband being away from home on many occasions. She specifies that in the years 1999 and 2000 the daughter commenced school in Sydney and that required her and her daughter to live in Sydney, but it is the case that the wife and the daughter returned home to where the husband remained resident on weekends.
The wife went on to say that the daughter left home in the second half of 2002. The wife says that she remained at the matrimonial home as the children had expressed a desire…

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 Cadoret and Cadoret

Details

AGLC: Cadoret and Cadoret [2003] FMCAfam 443
Case: [2003] FMCAfam 443
Decision Date: 16 September 2003

CaseChat Overview and Summary

The parties in this case were Cadoret and Cadoret, who brought their dispute before the court. The nature of the dispute involved an application that Cadoret sought to have dismissed. The application, which was listed as pending, was the focal point of the litigation. The court had to determine whether the application should be dismissed and, if so, what procedural steps should follow.

The legal issues before the court centred around the appropriateness of dismissing the application and the subsequent procedural steps. The court had to consider whether there were valid grounds for dismissing the application, and if so, what effect this dismissal would have on the case's progression. Additionally, the court needed to decide on the procedural implications of the dismissal, including whether the application should be removed from the Pending Cases List and whether a transcript of the reasons for the decision was required.

The court found that there were valid grounds to dismiss the application. The reasoning included an assessment of the merits of the application and the procedural fairness of dismissing it. The court concluded that the application should indeed be dismissed, and it was appropriate to remove it from the Pending Cases List. Furthermore, the court determined that a transcript of the reasons for the decision was necessary for future reference and to maintain transparency in the judicial process. Thus, the court dismissed the application and mandated that a transcript be provided for the reasons of the decision.

Orders

Orders of the court

The Application is dismissed.

The Application is removed from the Pending Cases List.

I require a transcript for the reasons for my decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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