Jeney & Dewar
[2021] FedCFamC1F 101
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jeney & Dewar [2021] FedCFamC1F 101
File number(s): BRC 1901 of 2021 Judgment of: AUSTIN J Date of judgment: 1 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the applicant seeks review of a divorce order – Where the applicant’s opposition to the divorce is based, in part, on contended breaches of a Binding Financial Agreement made pursuant to s 90C of the Family Law Act 1975 (Cth) and, in part, upon the Agreement being void – Where the applicant has not made any application to either enforce or set aside the agreement – Where the criteria for divorce are satisfied – Where there is no reason to disturb the divorce order made by the Registrar – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VI, VIII, ss 39, 48, 55, 55A, 71A, 90C, 90G, 90K, 90KA Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 1 October 2021 Place: Newcastle The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
BRC 1901 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DEWAR
Applicant
AND: MS JENEY
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application for Review filed on 24 September 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeney & Dewar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
Before the Court for hearing is an Application for Review filed by the applicant husband on 24 September 2021, seeking the review of the divorce order made between the parties by the Registrar on 14 September 2021.
For the following reasons, the application is misconceived and must be dismissed.
Background
The parties were married in 2001 in Queensland, Australia.
The wife asserted in the Application for Divorce she filed on 15 February 2021 that the parties finally separated on 5 September 2006, they did not live together thereafter, and it was unlikely they would reconcile. The husband did not take any issue with the accuracy of those facts in his Response filed on 29 July 2021. He only sought to correct inaccurate information furnished by the wife about his residential address and occupation.
The divorce application was originally listed for hearing in June 2021, but was successively adjourned to August 2021 and then September 2021, apparently at the husband’s request. The application was heard by the Registrar by telephone on 14 September 2021, when the divorce order was pronounced.
According to the contents of the husband’s Response, his opposition to the divorce is based upon the wife’s alleged breach of a financial agreement (“the agreement”) executed between the parties on 22 November 2007, over a year after their final separation, and other instances of her financial misconduct.
A copy of the agreement was annexed to the wife’s Application for Divorce, the contents of which disclose that it was made pursuant to s 90C of the Family Law Act 1975 (Cth) (“the Act”) after both parties were independently advised by lawyers about the effect of its terms.
In summary, the husband contended the wife’s breaches of the agreement and her financial misconduct included:
(a)failure to divide the credit balance of a joint bank account with him (but the agreement makes no provision in respect of any joint bank account);
(b)retention of furniture and contents from a residential property in Queensland (though clause 4 of the agreement specifies how that personal property was to be divided);
(c)retention of a king size bed and mattress, for which he wants compensation of $5,500 (though clause 4(a)(vii) of the agreement entitles the wife to “the main bed”);
(d)lending money to her sister during the parties’ cohabitation and prior to the agreement, which he wants repaid with interest (though such financial transactions merged in the terms of the agreement);
(e)failure to transfer to him exclusive title in certain real property (as required by clauses 3(c)(i) and 3(c)(v)(a)(i) of the agreement);
(f)failure to vacate the residential property in Queensland within the time prescribed by the agreement (clause 3(c)(ii)), for which he wants compensatory rent;
(g)failure to repay him the sum of $5,000 he loaned her during cohabitation (though this financial transaction merged in the terms of the agreement);
(h)failure to account to him for the sum of $5,500, being the proceeds of a car he sold in approximately 2000 (though this financial transaction merged in the terms of the agreement)
(i)failure to account to him for the sum of $6,000, being the value of a trade-in car from which she benefitted in approximately 2004 (though this financial transaction merged in the terms of the agreement); and
(j)retention of his wedding ring, valued by him at $1,000, which he wants returned.
As a consequence of those matters, the husband declared in his Response:
This divorce cannot go ahead until all these matters and others are resolved. These are serious breaches of court orders.
But there are no such orders at all. Since the agreement purports to be binding upon the parties (s 90G), the agreement ousts the Court’s jurisdiction under Pt VIII of the Act to make property settlement orders between the spouses (s 71A). If the husband considers the wife has breached the agreement, he is at liberty to seek orders to enforce her compliance with it (ss 90G(2) and 90KA), but in the last 13 or more years he has not made any such application.
The husband also asserted in his Response that, when he signed the agreement in November 2007:
…I was suffering mentally and had no idea what I was signing due to the mental stress I was under.
If it be that he instead regards the agreement as void or voidable on account of his actual ignorance of its implications, neither has he brought any proceedings in the last 13 or so years to set the agreement aside (s 90K).
Having proceeded with the divorce application, the Registrar extended the period for the divorce order to take effect until 12 December 2021 (s 55(2)), apparently to allow time for the husband’s foreshadowed review application to be heard.
In the husband’s Application for Review, he asserts:
The Registrar illegally gave my ex wife [name] a divorce even though there were quite serious financial and other breaches which constituted contempt of court.
…
I am seeking the divorce application to be disposed of until all outstanding financial and other serious matters are resolved [sic]. There are contempt of court matters involved. I would like the matter to be heard before a judge not an incompetent registrar.
The review application was listed for hearing before me today (1 October 2021). It is to be conducted as a hearing de novo.
Before the hearing commenced, the husband sought an adjournment which was refused. The only reasons advanced for the adjournment were his asserted need to issue subpoenas to garner more evidence to place before the Court to vindicate the complaints he made in his Response. For the reasons which will follow, such evidence could have no bearing upon the resolution of the current dispute over the parties’ divorce, so an adjournment would be futile. The husband filed his Response in late July 2021 and has had months within which to accumulate and adduce all the evidence he considers necessary.
Legal requirements
Proceedings for divorce may be instituted if, when the application is made, either party to the marriage is an Australian citizen, is domiciled in Australia or is ordinarily resident in Australia (s 39(3)).
An application for divorce is made pursuant to Pt VI of the Act. The only ground for divorce is the irretrievable breakdown of the marriage (s 48(1)), established by the separation of the spouses for a continuous period of not less than 12 months immediately preceding the date upon which the divorce application was filed (s 48(2)) and there being no reasonable likelihood of the resumption of their cohabitation (s 48(3)).
There were no children of the marriage and so no other considerations apply (s 55A).
Conclusion
The criteria of ss 39(3) and 48 of the Act are satisfied by the unchallenged contents of the wife’s Application for Divorce.
I am satisfied the parties were married.
I am satisfied the wife was an Australian citizen and was domiciled and ordinarily resident in Australia when she filed her Application for Divorce.
I am satisfied the parties were separated for not less than 12 months immediately before the divorce application was filed in February 2021 (in fact, it was for more than 14 years), there is no reasonable prospect of the parties resuming cohabitation, and so the marriage has broken down irretrievably.
There is no reason to disturb the divorce order made by the Registrar.
The Application for Review filed on 24 September 2021 is dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 5 October 2021
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