Galvan and Galvan
[2011] FMCAfam 287
•4 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GALVAN & GALVAN | [2011] FMCAfam 287 |
| FAMILY LAW – Divorce – stay of – risk to property proceedings – entitlement of party to re-marry. |
| Family Law Act 1975, ss.90MS, 90MT |
| C & H & DFRDBA (2005) 33 Fam LR 494 |
| Applicant: | MS GALVAN |
| Respondent: | MR GALVAN |
| File Number: | CAC 31 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 2 March 2011 |
| Date of Last Submission: | 2 March 2011 |
| Delivered at: | Canberra |
| Delivered on: | 4 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Ms Simpson |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
The Divorce Order be made, but remain stayed until whichever of the following events first occurs:
(a)Final property orders are made by the Family Court of Australia; or
(b)3 months after Mr Galvan files and serves an affidavit that confirms the date and location of his marriage in Fiji.
IT IS NOTED that publication of this judgment under the pseudonym Galvan & Galvan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 31 of 2010
| MS GALVAN |
Applicant
And
| MR GALVAN |
Respondent
REASONS FOR JUDGMENT
This is a case about risk and timing over both of which the Court has no control. On the subject of timing it relates to a foreshadowed marriage; as to timing also and as to expedition, it relates to how expeditiously the matter might be concluded in another Court. Over the foreshadowed marriage and the conduct of the proceedings in another place, as I have said, the Court has no control.
Mr Galvan wants a divorce. Ms Galvan does not dispute his entitlement to it but for reasons related to as yet unresolved property proceedings does not wish the Court to grant it at this time. She fears that in the event that Mr Galvan [unfortunately] dies before the resolution of the property proceedings, it could compromise her position in relation to any entitlement and/or access to his superannuation. In this regard the Court was referred to the Full Court decision in C & H & DFRDBA.[1]
[1] (2005) 33 Fam LR 494 especially at [40] – [44].
It is not disputed that the Husband has an entitlement under the [P] Superannuation Scheme (“the [P]”), a significant portion of which was accrued during the parties’ marriage.
Mr Galvan is no longer a contributing member of the [P]. His entitlement is [potentially] a splittable entitlement under ss.90MS and 90 MT of the Family Law Act 1975 (“the Act”).
It is not disputed that, upon divorce and in the event of Mr Galvan’s death, under the [P] rules, the Respondent Wife would not be considered as a surviving spouse and would not be entitled to any death benefits.
It is against this possible factual scenario that Ms Simpson raised the Full Court decision of C & H & DFRDBA to which I have earlier referred.
Mr Galvan protested - and understandably so - that he is fit and well. He also says that if he remains undivorced from Ms Galvan he is [understandably and self-evidently] unable to remarry. He advised the Court that he is in a relationship with another woman in Fiji and intends to marry her. Hopefully, he says, and subject to finances and other things, this will occur in the next three or perhaps six months. There is no formal evidence by way of affidavit in relation to such matters. I do not say so critically.
Mr Galvan also raises the fact that he feels morally and spiritually responsible for his “former wife.” In this regard he referred in particular to a ‘marital pendant’ which he seeks to have returned to him. On such matters I should not make any comment because they will, more likely than not, be the subject of the property proceedings, which are now transferred to, and will be heard in, the Family Court.
The matters to be weighed now are clearly between protecting
Ms Galvan’s rights which are yet to be determined in the Family Court, and Mr Galvan’s entitlement to move on with his life including his entitlement to remarry. Thus the Court has to try to strike a balance between competing factual matters and competing legal entitlements.
In such circumstances, as I have already indicated, the Court has no control over any of those matters external to the Court and under the control of another Court and or that of one or other of the parties.
It seems to me that Ms Galvan should have the opportunity, but not an unlimited one, to have her case determined with all relevant matters and property before the Family Court. Likewise, Mr Galvan should have the opportunity, but not an unlimited one, to be able to remarry as soon as he is in a position to do so.
Striking an appropriate balance between these competing objects, the orders as set out at the commencement of these reasons should be made.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 1 April 2011
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