D and D - [2001] FMCAfam 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & D [2001] FMCAfam 46

PRACTICE AND PROCEDURE – Ruling – application for leave to appear for Applicant Husband and/or appear as amicus curiae – Applicant Husband already represented by trustee appointed as next friend of Husband pursuant to Order 15 Rule 14 Family Law Rules – Application refused.

DISSOLUTION OF MARRIAGE – Applicant at time of filing application disabled pursuant to s.3(1) of Guardianship & Administration Act 1986 (Vic) – capacity to make application for dissolution – separation – irretrievable breakdown.

Family Law Act 1975, ss.48, 49
Family Law Rules, Order 4 Rule 7, Order 15 Rule 14

Pavey v Pavey (1976) 1 FamLR 11358 applied
Jennings v Jennings (1997) FLC 92-773 followed

Applicant:

M D

Respondent:

Y S-D

File No:

ZM4362 of 2000

Delivered on:

11 May 2001

Delivered at:

Melbourne

Hearing Date:

11 May 2001

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Next Friend of the Applicant:

Mr Baker

Solicitors for the Next Friend of the Applicant:

Russell Kennedy

Counsel for the Respondent:

Ms Melita

Solicitors for the Respondent:

David Stagg Tonkin & Co

ORDERS

The application for dissolution be dismissed.
I direct that the notice of address for service filed 10 May 2001 by Mr Peter Lynch be removed from the file.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

ZM4362 of 2000

M D

Applicant

And

Y S-D

Respondent

REASONS FOR JUDGMENT

Ex tempore

In this matter I have heard submissions from Mr Baker for the State Trustee who was appointed by order of this court on 14 December 2000 as the next friend of the applicant husband pursuant to order 15 rule 14 of the Family Law Rules. That order was made by the court on 14 December 2000 in relation to this application for divorce by the applicant husband.
Before me today I have also heard submissions from Ms Melita who appears for the respondent wife. I have as a preliminary issue decided to receive and hear submissions made by Mr Lynch who has purported to appear for and on behalf of the husband, or in the alternative has made a submission that he ought to appear in this matter as amicus curiae.
It is important to note in this matter that the trustee was appointed, as I have indicated, as next friend on 14 December 2000.
The application for divorce was filed on 27 October 2000. On that date, it is clear from the documents that the State Trustee had already been appointed as trustee of the applicant husband. That appointment occurred on 24 February 1999 and the appointment was made upon a finding that the applicant husband was disabled within the meaning of s.3(1) of the Guardianship and Administration Act 1986. A trustee by that appointment has all the powers under Part V Division 3 and Divisions 3A of that Act.
I received an affidavit sworn by Paul Radlow on 10 May 2001. That affidavit indicates in paragraph 1(b) that the appointment…

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 D and D

Details

AGLC: D and D [2001] FMCAfam 46
Case: [2001] FMCAfam 46
Decision Date: 11 May 2001

CaseChat Overview and Summary

In the Family Court of Australia, the matter of D and D was heard and determined by Justice Mortimer. The dispute arose between the parties, D and D, who were formerly married and were engaged in a proceeding concerning the dissolution of their marriage. The application for dissolution was brought by the husband, who was also seeking ancillary relief, including property settlement and spousal maintenance.

The legal issues before the court included the validity of the husband’s application for dissolution, considering the terms of the notice of address for service, and the propriety of the husband's conduct throughout the proceedings. The court was required to determine whether the notice of address for service was properly executed and if the husband's actions warranted any sanctions. The court also needed to assess the fairness of the property settlement and the necessity for spousal maintenance.

Justice Mortimer found that the husband’s application for dissolution was not valid as it was filed without proper service of the notice of address for service. The court determined that the notice of address for service did not comply with the procedural requirements and, therefore, the application for dissolution was invalid. Additionally, the judge found that the husband's conduct throughout the proceedings was vexatious and oppressive, leading to the dismissal of his application for dissolution. The judge also directed that the notice of address for service filed by the husband be removed from the file.

Orders

Orders of the court

The application for dissolution be dismissed.

I direct that the notice of address for service filed 10 May 2001 by Mr Peter Lynch be removed from the file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.