Harwood and Jade - [2009] FamCA 912

FAMILY COURT OF AUSTRALIA

HARWOOD & JADE

[2009] FamCA 912

FAMILY LAW – MARRIAGE – NULLITY – Application to set aside divorce and for nullity decree

Family Law Act 1975 (Cth) ss 4, 44, 113

Brennan v Brennan (1953) CLR 129
Pavey and Pavey (1976) FLC 90-051
In the Marriage of S (1980) FLC 90-820
Sutherland Shire Council v Leyendekkers and Anor (1970) 91 W.N. NSW 250
Ibeneweka v Egbuna [1964] 1 WLR 219
C v C (Nullity) (1998) FLC 92-824

APPLICANT:

Mr Harwood

RESPONDENT:

Ms Jade

FILE NUMBER:

SYC

8037

2007

DATE DELIVERED:

22 September 2009

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

4 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr G. Johnston
SOLICITOR FOR THE APPLICANT:	M.G. O’Callaghan & Associates

COUNSEL FOR THE RESPONDENT:	Mr J. Dupree
SOLICITOR FOR THE RESPONDENT:	Russo & Partners

Orders

The Application for Final Orders filed on behalf of the husband on 1 April 2008, as amended by leave, is dismissed

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8037 OF 2007

MR HARWOOD

Applicant

And

MS JADE

Respondent

REASONS FOR JUDGMENT

The parties were married in April 2004 and divorced by the Federal Magistrates Court with final effect from 11 August 2007. The husband seeks a declaration that the divorce is invalid and if successful, a decree of nullity in relation to the marriage. The wife opposes that relief.

Applications

In his Application for Final Orders filed 1 April 2008 the husband sought:
1.A declaration of nullity with respect to the marriage between the parties on […] April 2004 pursuant to Section 51 of the Family Law Act, 1975.
2.An Order that the marriage between the parties on […] April, 2004 is void pursuant to Section 23B of the Marriage Act, 1961.
3.An Order rescinding the divorce between the parties.
4.Such other Orders as the Court deems fit.
By consent leave was granted at the commencement of the hearing before me, as follows:
…
6.That leave be granted to the husband to Amend his Application filed 1 April 2008 to seek a declaration in the following terms:
“Declare that the divorce decree made in the Federal Magistrates Court on 10 July 2007 is invalid.”
…..
The wife opposes both applications.

Affidavits

The husband relied on the following affidavits:
Affidavit of the husband filed 1 April 2009       .
Further Affidavit of husband filed 3 July 2008 (paragraphs 1 to 8, 12, 16, 25, 26, 27, 31, 33)
Affidavit of Mr A Harwood filed 3 July 2008
Affidavit of Mr H filed 7 May 2009
The wife gave her evidence orally.

The proceedings

On 1 April 2008 the husband filed an Application for Final Orders seeking to set aside a divorce and the granting of a nullity decree. The proceedings before this Court had originally commenced with the…

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 Harwood and Jade

Details

AGLC: Harwood and Jade [2009] FamCA 912
Case: [2009] FamCA 912
Decision Date: 22 September 2009

CaseChat Overview and Summary

This matter concerned an application by the husband seeking a declaration that his divorce was irregular and should be set aside. The dispute arose from the husband's assertion that the divorce proceedings were improperly commenced due to non-compliance with specific provisions of the *Family Law Act 1975* (Cth) concerning the timing of divorce applications and adequate service. The case was heard by Judicial Registrar Loughnan.

The primary legal issue before the court was whether it had the power to make a declaration under section 113 of the *Family Law Act 1975* that the divorce was irregular and should be set aside. This required the court to consider the scope of its discretion under section 113 and the circumstances under which a declaration would be considered "justified," particularly in light of the husband's claims regarding the alleged procedural irregularities in the divorce application, specifically relating to sections 44(1B) and 44(1C) of the Act and the adequacy of service.

Judicial Registrar Loughnan considered the principles governing the exercise of declaratory jurisdiction, referencing *Sutherland Shire Council v Leyendekkers* and *Ibeneweka v Egbuna*. The court noted that while the power to grant a declaration should be exercised with a "proper sense of responsibility," there were no strict legal restrictions beyond the requirement that the court be satisfied a declaration is justified. The husband's argument centred on the alleged failure to comply with section 44(1B) and (1C) of the *Family Law Act 1975*, which impose restrictions on filing divorce applications within two years of marriage without specific reconciliation assistance or court leave. The court found that the husband had not established grounds for setting aside the divorce, implying that the procedural requirements, as argued by the husband, were either met or not sufficiently irregular to warrant a declaration.

The application for final orders filed on behalf of the husband was dismissed.

Orders

Orders of the court

The Application for Final Orders filed on behalf of the husband on 1 April 2008, as amended by leave, is dismissed

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

Section 113 of the Family Law Act 1975 provides:Proceedings for declarations In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified. Section 4(1) of the Family Law Act 1975 relevantly provides:"matrimonial cause" means: ….. (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 Learned counsel for the husband was not able to take me to any authority on the matters to be taken into in exercising the discretion under section 113. Learned counsel for the wife took me to a passage in the second edition (1984) of Declaratory Orders by Mr P.W. Young QC which included reference to a decision of Street J, then the Chief Judge in Equity of the NSW Supreme Court in Sutherland Shire Council v Leyendekkers and Anor (1970) 91 W.N. NSW 250 at 258. in that decision Street J noted that: “In dissenting from a restrictive, that is to say “cautious”, “sparing”, “jealous” approach to the discretionary aspects of the declaratory jurisdiction, I am following what shas become an accepted approach in this court and appeals therefrom in the four years since the introduction of the present form of s. 10 of the Equity Act. Used with “a proper sense of responsibility” consistently with Lord Radcliffe’s observations, the jurisdiction has made a significant contribution to the quick and inexpensive, authoritative resolution of disputes appropriate to be made the subject of declaratory relief.” The reference to Lord Radcliffe is a reference to Ibeneweka v Egbuna [1964] 1 WLR 219 where Viscount Radcliffe, giving the decision of the Privy Council, said at 224-5 : … it is doubtful that there is more principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issues unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. In the words of section 113, the Court must be satisfied that a declaration is justified. It is the husband’s case that the divorce should be set aside because it was irregularly obtained. The irregularity is said to arise as the husband was not entitled to bring the application because of section 44(1B) and 44(1C) and when he did, service was not adequate. Section 44 of the Family Law Act 1975 relevantly provides:Institution of proceedings ….(1B) An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate: (a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is: (i) a family counsellor; or (ii) if the court is the Family Court, the Federal Magistrates Court or the Family Court of a State--an individual or an organisation nominated for the parties by a family consultant; or (iii) if the court is not the Family Court, the Federal Magistrates Court or the Family Court of a State--an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and (b) signed by that person or on behalf of that organisation, as the case may be. (1C) Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may: (a) if the application has not been filed--give leave for the application to be filed; or (b) if the application has been filed--at any time before or during the hearing of the application, declare that it is so satisfied; and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed. ….