Jamine & Jamine (No 2)
[2010] FamCAFC 133
•15 July 2010
FAMILY COURT OF AUSTRALIA
| JAMINE & JAMINE (NO. 2) | [2010] FamCAFC 133 |
| FAMILY LAW - APPEAL – Application in an appeal – concerning the time when a divorce order is to take effect – where the applicant sought an extension of time for the divorce order to take effect pending the outcome of the applicant’s application for special leave to appeal to the High Court – consideration of s 55(5) and s 55(3) of the Family Law Act 1975 (Cth) – extension of time for the divorce order to take effect granted. | ||
| Family Law Act 1975 (Cth) s 55 De Lewinski v Director General NSW (1996) FLC 92-678 Edelsten v Ward (No 2) (1988) 63 ALJR 346 Jennings Construction Ltd v Burgundy Royal Investments Pty (No.1) (1986) 161 CLR 681 | ||
| APPLICANT: | Mr Jamine | |
| RESPONDENT: | Mrs Jamine |
| FILE NUMBER: | MLC | 3286 | of | 2008 |
| APPEAL NUMBER: | SA | 108 | of | 2008 | |
HEARING DATE: | 14 July 2010 | ||||
| DATE OF ORDER: DATE OF DELIVERY OF REASONS: | 14 July 2010 15 July 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra (by video and telephone link to Melbourne) |
| JUDGMENT OF: | Finn J |
REPRESENTATION
SOLICITOR FOR THE APPLICANT: | Mr Jamine in person |
| SOLICITOR FOR THE RESPONDENT: | Mr Dragojlovic |
Order Made 14 July 2010
Pursuant to the provisions of s 55(2) of the Family Law Act 1975 (Cth) (“the Act”) and to the extent necessary having regard to the provisions of s 55(3) and s 55(5) of the Act, the period at the expiration of which the divorce order made by the Federal Magistrates Court on 10 December 2008 is to take effect is extended to the expiration of one month from the day on which the application by Mr Jamine for special leave to appeal, or if special leave be granted, the appeal against the order of the Honourable Justice O’Ryan made on 15 June 2010, is determined by the High Court.
IT IS NOTED that publication of this judgment under the pseudonym Jamine & Jamine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: SA 108 of 2008
File Number: MLC 3286 of 2008
| Mr Jamine |
Applicant
And
| Mrs Jamine |
Respondent
REASONS FOR JUDGMENT
On 14 July 2010 I heard on an urgent basis this application which concerns the time in which a divorce order is to take effect. I conducted the hearing from the Canberra Registry of the Court by way of video link to a courtroom in the Melbourne Registry of the Court where the applicant was appearing in person and by way of a telephone link to the solicitor for the respondent at his office in an outer Melbourne suburb.
After I had indicated that I proposed to make one of the orders sought by the applicant, I commenced to give oral reasons for my decision before actually making the order. Before I had proceeded very far into my oral reasons, there was an electricity failure which made it impossible to continue the hearing by video link.
Arrangements were, however, able to be made for a recorded telephone link to both parties, and on that link I was able to make the order. Given the circumstances, I informed the parties that I would now provide written reasons for my order rather than attempt to continue the oral judgment which had been interrupted by the power failure. I would also explain that in my oral reasons I had done no more than outline part of the factual background to the application. These then are my written reasons for the order made on 14 July 2010.
Section 55 of the Family Law Act 1975 (Cth)
Before referring further to the application which was before me on 14 July 2010, it may be of assistance to the parties (particularly to the respondent wife who was not present herself at the hearing) if I set out s 55 of the Family Law Act 1975 (Cth) (“the Act”), in its entirety, as a number of its subsections will be referred to in these reasons:
Section 55 When divorce order takes effect
(1) Subject to this section, a divorce order made under this Act takes effect by force of this section:
(a) at the expiration of a period of 1 month from the making of the order; or
(b) from the making of an order under section 55A; whichever is the later.
(2) If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:
(a) make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or
(b) make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.
(3) If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:
(a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or
(b) on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted; whichever is the later.
(4) A divorce order does not take effect by force of this section if either of the parties to the marriage has died
(5) In this section:
"appeal" , in relation to a divorce order, means:
(a) an appeal or application for leave to appeal against, or an intervention or application for a re‑hearing relating to:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(b) an application under section 57 or 58 for rescission of the divorce order or an appeal or application for leave to appeal arising out of such an application.
(6) For the purposes of this section, where an application for leave to appeal, or for a re‑hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as:
(a) the leave granted remains capable of being exercised; or
(b) an appeal or re‑hearing instituted in pursuance of the leave is pending.
Background to the application heard on 14 July 2010
On 10 December 2008 FM Hartnett granted an application by Mrs Jamine for a divorce order in relation to her marriage to Mr Jamine. In the normal course of events that order would have taken effect at the expiration of one month from its making (s 55(1)).
However, on 23 December 2008 Mr Jamine filed a notice of appeal against the Federal Magistrate’s order. The effect of his instituting the appeal was that by virtue of s 55(3), the divorce order would not take effect until the expiration of one month from the date on which the appeal was determined.
On 15 June 2010 O’Ryan J dismissed Mr Jamine’s appeal. Accordingly, the divorce order was then to have taken effect on 15 July 2010.
Unfortunately, on 30 June 2010 the Melbourne Registry of the Family Law Courts sent a certificate of divorce to the parties. However, on 13 July 2010 the Southern Regional Appeals Registrar advised both parties by letter (sent by fax and email) that the certificate had been sent in error and had no effect in law (a copy of that letter was Exhibit 1 before me).
On the same day, that is, 13 July 2010, Mr Jamine filed an application in the High Court seeking special leave to appeal O’Ryan J’s orders of 15 June 2010, as well as an application (together with supporting affidavit) in this Court (a copy of the application for special leave was Exhibit 2 before me).
The orders sought in Mr Jamine’s application to this Court were as follows:
1.That the Order of the Federal Magistrates Court dated 15 June 2010 terminating the marriage between the Applicant and Respondent
(with effect from 15 June 2010) is ultra vires section 55(3)(a) of the Family Law Act 1975 (“FLA”).2.That time be extended when Divorce Order will take effect pursuant to section 55(2)(a) of FLA pending the final outcome of the Applicants Application for appeal leave to appeal to the High Court.
Discussion of the issues raised by the application
As I explained at the hearing on 14 July 2010, the first order sought by Mr Jamine, being in effect a declaration that the order of 15 June 2010 is “ultra vires section 55(3)(a)” is unnecessary. This is because of the Registrar’s letter of 13 July 2010, which explained that the certificate which had been issued (and which stated that the divorce order was to take effect on 15 June 2010) was of no effect. But even without that letter, the erroneous issuing of the certificate could not have defeated the operation of s 55(3) which provides that a divorce order only takes effect at the expiration of one month after an appeal against the order is determined. There is thus no need for an order because the provisions of s 55(3) clearly apply to the appeal which was determined by O’Ryan J.
I turn then to the second order sought in the application, being for an order under s 55(2)(a) extending time for the divorce order to take effect pending the outcome of the applicant’s application for special leave to appeal to the High Court. Again as I explained at the hearing on 14 July 2010, there may well be a question as to whether such an order extending time is necessary at all. This is because the definition of “appeal” in s 55(5) includes “an application for leave to appeal”, and also the reference in s 55(3) to more than one appeal may indicate that s 55(3) is intended to cover applications for special leave to appeal to the High Court. Thus, s 55(3) may itself again operate to prevent the divorce order taking effect until the expiration of one month after the High Court’s determination of the special leave application (or the appeal if special leave is granted).
However, as I was unable in the time available to find any authority on this question, I indicated during the hearing that I was prepared for the avoidance of doubt and subject, of course, to hearing submissions on behalf of the respondent wife, to make an order under s 55(2) extending the time for the divorce order to take effect until one month after the determination of the application for special leave or the determination of any appeal by the High Court.
Such an order extending the time of effect of a divorce order might well be considered to be in the nature of an order staying an order which is subject to an appeal. The authorities in relation to the grant of such a stay emphasise the need to ensure preservation of the subject matter of the appeal, or in other words, to ensure that the proposed appeal is not rendered nugatory by the refusal of the stay. (See for example, Edelsten v Ward (No 2) (1988) 63 ALJR 346; Jennings Construction Ltd v Burgundy Royal Investments Pty (No.1) (1986) 161 CLR 681 and De Lewinski v Director General NSW (1996) FLC 92-678). Clearly if the divorce order was permitted to come into effect, the application for special leave to appeal, and if such leave were to be granted, any appeal, would be rendered nugatory.
The wife’s solicitor Mr Dragojlovic, endeavoured to persuade me that the husband’s special leave application would be found to be without merit. This was for the reason that given the time which has now elapsed in these divorce proceedings, there could be no dispute that the 12 month period provided for in s 48(2) of the Act, necessary to establish irretrievable breakdown of marriage, and thus the ground for divorce, has long passed. In other words, the wife’s application would now have to succeed.
While there was undoubted force in Mr Dragojlovic’s submissions in this regard, I nevertheless, considered that the more prudent course, given the uncertainty as to whether or not s 55(3) operates with respect of an application for special leave to appeal to the High Court, was to stay the effect of the divorce order by extending the time when the divorce order will take effect.
The date of effect of the divorce order may well only need to be the date when the High Court finally determines the matter. But for consistency with s 55(3), and in case that subsection in fact operates in this case, I considered that my order should reflect the terms of that provision; in other words, I order that the divorce order will take effect one month after the date on which the High Court makes its final determination.
Finally, I mention that in the usual course of events, this application would have been heard by O’Ryan J who constituted the Court which dismissed the first appeal. But as he is currently unavailable, and the application (having only been filed on 13 July 2010) had to be heard before 15 July 2010, I heard the application. I am confident that I had the jurisdiction to do so, either under s 55(2) as a member of the Court in which the appeal had been determined, or alternatively, under s 94AAA(10)(d) in the exercise of the powers of a single judge in relation to the stay of an order made in the appellate jurisdiction of the Family Court.
For these reasons I made the order set out at the commencement of these reasons.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn.
Associate:
Date: 15 July 2010
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