G & G - [2003] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & G

[2003] FMCAfam 127

FAMILY LAW – Delegation of powers to deputy registrar – dissolution of marriage – decree nisi ordered after dispensation of personal service – whether decree nisi stayed pending appeal to Full Court pursuant to s.55(3) – appeal to Full Court dismissed as incompetent – in order to attract s.55(3) an appeal or review must be competent – it is necessary that the jurisdiction invoked at least had the power to grant the relief sought – decree nisi therefore absolute – application to rescind decree nisi pursuant to s.58 refused because decree absolute – court’s inherent power to set aside orders for procedural irregularity – scheme of the Act is that decree absolute is inviolate – discretion must be exercised within this context – application to set aside order refused – decree absolute to issue instanter.

Family Law Act 1975, ss.49, 55, 57, 58, 59, 65, 93, 94
Federal Magistrates Act 1999, ss.10, 102, 103, 104

Judiciary Act 1903, s.80

Matrimonial Causes Act 1899-1951, s.28

Haris v Caladine (1991) 172 CLR 84
R v Mogley (1992) 28 NSWLR 735
Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 335
Brennan and Brennan (1953) 89 CLR 12
Miller and Miller (1983) FLC 91-328
Wardal (1990) FLC 92-151
Dern (1961) 2 FLR 126
Pavey (1976) FLC 90-051
Cross (1995) FLC 92-628

Applicant:

A T G

Respondent:

D G

File No:

SYM6188 of 2002

Delivered on:

16 April 2003

Delivered at:

Parramatta

Hearing date:

14 April 2003

Judgment of:

Ryan FM

REPERSENTATION

Counsel for the Applicant:

Mr M. Broun QC

Self Represented Applicant:

Ms A. G

Solicitor Advocate for the Respondent:

Mr J. Longworth

Solicitors for the Respondent:

Dettmann & Dettmann

ORDERS

That the wife’s application filed 10 April 2003 is dismissed.
Pursuant to s.56 of the Family Law Act 1975 a certificate as to decree absolute is to issue immediately.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SYM6 88 of 2002

A T G

Applicant

And

D G

Respondent

REASONS FOR JUDGMENT

The application

A T G applied on 10 April 2003 for an order pursuant to s.58 of the Family Law Act 1975 seeking the rescission of a decree nisi of dissolution of marriage made on 4 February 2003. Additionally, she asked that the matter be given short service. Consequently her application was listed for hearing before me at 9.30 am on 14 April 2003.
At the hearing, the applicant, who is a solicitor, appeared instructing Mr Broun QC. The respondent instructed Mr Longworth, but did not attend personally.

Chronology of events

The circumstances giving rise to the application are somewhat unusual and are set out below.
The parties married at C, Western Australia on 14 February 1969.
There are two children of their marriage, both of whom have attained the age of 18 years.
It appears that some time during 2001 one of the parties made an application for orders to the Family Court at…

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.

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Details

AGLC: G & G [2003] FMCAfam 127
Case: [2003] FMCAfam 127
Decision Date: 16 April 2003

CaseChat Overview and Summary

In the Family Court of Australia, the case between G and G involved a dispute regarding the dissolution of a marriage. The husband contested the wife’s application for a divorce, arguing against the immediate issuance of a decree absolute. The wife filed her application on 10 April 2003, seeking to finalise the divorce proceedings without the mandatory one-year waiting period. The legal issues before the court were whether the one-year waiting period could be waived and if the wife's application should be dismissed or if a certificate for the decree absolute should be issued immediately.

The court considered the statutory provisions under the Family Law Act 1975, specifically section 56, which allows the court to dispense with the one-year waiting period under certain circumstances. The judge examined the facts presented and determined that there were no exceptional circumstances that would warrant waiving the waiting period. The court found that the husband’s opposition to the wife's application was not unreasonable and did not present a case for immediate issuance of the decree absolute. Consequently, the wife's application was dismissed, and the court ordered that a certificate as to decree absolute be issued immediately under section 56 of the Family Law Act 1975.

Orders

Orders of the court

That the wife’s application filed 10 April 2003 is dismissed.

Pursuant to s.56 of the Family Law Act 1975 a certificate as to decree absolute is to issue immediately.

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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