Kamlade and Kamlade - [2004] FMCAfam 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAMLADE & KAMLADE

[2004] FMCAfam 320

FAMILY LAW – DIVORCE – Defended – objection to jurisdiction – Federal Magistrates Courts jurisdiction to pronounce decree dissolving a marriage claimed to be unconstitutional – costs – circumstances justifying order – party wholly unsuccessful.

Family Law Act 1975, s.60B

Applicant:

LEE SHARRYN KAMLADE

Respondent:

PAUL KAMLADE

File No:

PAM 101 of 2004

Delivered on:

19 April 2004

Delivered at:

Parramatta

Hearing date:

19 April 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Mr Dunkley
McPhee Kelshaw

The Respondent:

Appeared on his own behalf

ORDERS

The Decree Nisi for the dissolution of the marriage.
The Respondent is to pay the Applicant’s costs of these proceedings in the sum of $960.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 101 of 2004

LEE SHARRYN KAMLADE

Applicant

And

PAUL KAMLADE

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the wife in these proceedings for a decree of dissolution of the marriage. The respondent who is the husband opposes the granting of the decree. He has filed a response in which he challenges the jurisdiction of the Court. He objects to the jurisdiction on constitutional grounds, referring to the preamble to the Commonwealth Constitution referring to s.42 of the Constitution; s.51, which are the powers of Parliament subject to the Constitution; he refers to Chapter iii of the Constitution which sets out the Judicature. As I have said, Chapter iii of the Constitution applies to the Federal Magistrates Court as Federal Magistrates are Chapter iii Justices under the Commonwealth Constitution.
In addition the respondent also refers to an extract of transcript of proceedings including some obiter statements by the honourable Justice Waddy RFD in the course of adjourning these proceedings. The paragraph to which the respondent refers and upon which he relies is a paragraph which has been quoted in part by the respondent but I will read more fully the comments of his Honour beginning:
It's a free country. People are entitled to go into marriage. They're entitled to go out of marriage. This is not a Court of morals. It doesn't have Shi'ah law or Christian law or any other sort of law. It just has the law of the Commonwealth of Australia.
That is the relevant passage that I understand.
The first comment I would make is that with the greatest of respect to his Honour an obiter statement in proceedings at first instance in the Family Court is not binding on the Federal Magistrates Court. A decision of a single Judge of the Family Court is only binding on the Federal Magistrates Court if that Judge is in fact exercising a delegated jurisdiction from the Full Court of the Family Court on hearing of an appeal from this Court, and that of course is not the case and with the greatest of respect to his Honour he did not intend it to be.
The Commonwealth Constitution sets out the powers of the Commonwealth Parliament in s.51 to which the respondent has referred. Section 51 paragraph xxii says in effect Parliament shall have a power to make laws with respect to: xxii) divorce and matrimonial causes and in relation thereto, parental rights in the custody and guardianship of infants.
The jurisdiction of the Federal Magistrates Court is set out in

s.39(5)(aa) of the Family Law Act and that jurisdiction relates to matrimonial causes with a few specified exceptions. A matrimonial causis described and in fact defined in s 4 of the Family Law Act. It includes a decree of dissolution of marriage. One of the exceptions contained in s.39(5)(aa) of the Family Law Act in relation to the jurisdiction of this Court is as far as declarations of nullity of marriage are concerned, they can only be made by the Family Court. In any event, I would comment that applications for a decree of nullity are a very rare application and I doubt if the Family Court is overwhelmed by having that jurisdiction to itself.
The fact is that the Federal Magistrates Court has been given the power by an Act of the Commonwealth of Australia to pronounce decrees of dissolution of marriage. The Commonwealth Parliament has been given the jurisdiction by the Constitution of the Commonwealth of Australia to legislate on just such a topic. The respondent submits the Australian Constitution is based on ecclesiastical law. I beg to differ. The Australia Constitution is in fact an Act of the Parliament of Great Britain and it was that Act of the British Parliament that brought about federation of the Australian states on 26 January 1901.
The short answer is that this Court does have jurisdiction to pronounce decrees of dissolution of marriage. Therefore the response objecting to jurisdiction is dismissed.
I look now at a further response filed by the respondent in which he takes exception to the date of separation. He refers to certain points about living arrangements or details in respect of his child, he refers to a matter about something the wife has allegedly told the Court psychologist, presumably that was not in confidential counselling, and makes certain complaints about the wife's condition.
The respondent has filed a further response in which he challenges certain matters contained in the application and asks the Court to dismiss the application. He denies that he separated and he says he has never regarded the marriage as over. Of course the Family Law Act provides that it is open to one party to separate notwithstanding the lack of consent and in fact even the anguish and emotional pain of the other party. And all too often in this Court we see people whose spouses have left them in various circumstance and they are devastated by it and they hold out hopes and in fact make requests to the spouses asking them to return and promising forgiveness of any wrongdoing that they may have committed. The law does not require divorce to be a consensual matter.
The respondent also says that the applicant has not been complying with the orders that are in force or has not been providing contact in accordance with the spirit of the orders. There are parenting proceedings that are ongoing in the Family Court before the honourable Justice Waddy RFD. Those matters have been adjourned to a date in June. Whilst there are interim orders that were made in the Family Court by Halligan JR, the challenge to the observance of those orders would, as Mr Dunkley for the mother suggested, still leave the Court to pronounce a decree nisi in circumstances allowed by

s.55A(1)(b)(ii), in that there are circumstances by reason of which a Court could allow a decree to become absolute notwithstanding the fact that the Court might not otherwise be satisfied about the welfare of the child. I am of the view, having heard the arguments of both parties, that the parties have been separated and it seems to me that the period of separation or final separation, namely 15 November 2002, is the appropriate date in the circumstances. I note the application was filed on 9 January 2004 and as Mr Dunkley for the applicant points out, even taking the later of the two dates which is the date to which the respondent refers, there is evidence to show that the parties have lived separately and apart for a period in excess of 12 months prior to the filing of the application notwithstanding the lack of consent by the respondent and his obvious dismay at that situation.
Accordingly, I find that the parties were married at St Mary's in the state of New South Wales on 13 May 1995. I find that the applicant and the respondent were domiciled in Australia. I find that the parties separated on 15 November 2002 and have thereafter lived separately and apart. I find that the marriage has irretrievably broken down and I pronounce a decree nisi for the dissolution of the marriage.
There is one child of the marriage under the age of 18 years, Patrick Keith who was born on 14 May 1999. I have heard the respondent's submissions and the submissions on behalf of the applicant as to whether appropriate, proper arrangements have been made for the welfare of this child. Taking the respondent's submissions into account that he says that he is not receiving contact in the spirit of these orders. Without proceeding into testing those contentions by way of evidence it would be difficult for me to make a finding that I was satisfied that the proper arrangements have been made. I am satisfied, however, that there are circumstances by reason of which pursuant to s.55A(1)(b)(ii) I should allow the decree to become absolute.
The decree will become absolute in one month from today.

Application for costs

Section 117 of the Family Law Act begins with the premise that the parties should pay their own costs in subsection (1) but subsection (2) refers to circumstances where the Court may consider it appropriate to make an order for costs. Subsection 2A sets out a number of matters that the Court may take into account.
The respondent says that it is his right to in fact defend his child's relationship, although it is certainly the situation that a child can have a strong and loving relationship with a parent even though the parents no longer remain married to each other. And indeed, the principles set out in s.60B of the Family Law Act make that very clear indeed.

Mr Dunkley for the applicant wife also says that the respondent's application is frivolous and vexatious and submits also that the respondent has been wholly unsuccessful in these proceedings before the Court.
I am not prepared to go so far as to find that the respondent's application was frivolous and vexatious in the circumstances, as it may well be that he is acting out of a deeply held belief. I would have to comment however that to challenge the constitutional basis of a decree of dissolution of marriage under the Family Law Act 1975 in the year 2004 is perhaps a very courageous undertaking. In any event, I am satisfied that it is quite clear that the respondent has been wholly unsuccessful in these proceedings and I am of a view that this is a matter that warrants an order for costs. A matter of one day is sought and according to the scale set out in the Federal Magistrates Court Rules 2001. The proceedings are defended proceedings and the applicant seeks a sum of $960.
I order that the respondent is to pay the applicant's costs of these proceedings in the sum of $960.
I require a transcript of my reasons for the two decisions today.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 29 June 2004