KEENE & KING - [2011] FMCAfam 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEENE & KING

[2011] FMCAfam 1117

FAMILY LAW – Proceedings irregularly commenced – meaning of ‘pending’ application – whether order to transfer constitutes an exercise of jurisdiction – meaning of ‘proceedings’.

JURISDICTION – Whether proceeding a nullity – whether application disclosing no cause of action with the jurisdiction of the Court can be amended.

Family Law Act 1975, ss.33B(8A)(b), 39(5AA)

AON Risk Services Australia Ltd v Australian National University [2008] ACTCA 13; (2011) 227 FLR 388
Deveigne & Anor v Askar [2007] NSWCA 45; (2007) 239 ALR 370; (2007) 47 MVR 344; (2007) 69 NSWLR 327
Hefferon & Maltby [2010] FMCAfam 440
Ogawa v Phipps [2006] FCA 361; 151 FCR 311
Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294
Re Pritchard (deceased) [1963] Ch 502; [1963] 1 All ER 873
Stewart v Pegasus Investments and Holdings Pty Ltd [2004] FMCA 712

Applicant:

MR KEENE

Respondent:

MS KING

File Number:

MLC 1966 of 2011

Judgment of:

Riethmuller FM

Hearing date:

31 August 2011

Date of Last Submission:

31 August 2011

Delivered at:

Melbourne

Delivered on:

31 August 2011

REPRESENTATION

Counsel for the Applicant:

Ms Williams of Counsel

Solicitors for the Applicant:

Gillian Coote Family Law

Counsel for the Respondent:

Mr J.W. St John SC of Counsel and Mr Strum of Counsel

Solicitors for the Respondent:

Lampe Family Lawyers

ORDERS

The matter be adjourned to 11 November 2011 at 10.00 a.m. for a divorce hearing.
The parties’ costs of today be reserved.
The applicant have leave to amend the divorce application in the form set out in the amended application filed 26 May 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 1966 of 2011

MR KEENE

Applicant

And

MS KING

Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

This is an application to strike a divorce application out on the basis that when the proceedings were issued on 8 March 2011, the commencement of the proceeding was a nullity and that therefore no amendments can be made to the proceedings and that they ought to be dismissed.
The proceedings are brought by the husband against the wife, seeking a divorce. In its original form, the application sought a divorce based in part upon the particularisation of the date of marriage as being the date that the parties conducted a marriage ceremony in Australia.
It transpires that, before the Australian marriage ceremony, the parties also conducted a marriage ceremony in India. It is now accepted that the earlier marriage ceremony in India was valid and sufficient to establish a marriage recognised by the law of Australia. The parties were therefore legally married, in accordance with Australian law, from the date of their Indian marriage onwards. The ceremony conducted in Australia is…

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 KEENE & KING

Details

AGLC: KEENE & KING [2011] FMCAfam 1117
Case: [2011] FMCAfam 1117
Decision Date: 31 August 2011

CaseChat Overview and Summary

The case involves the applicant, Keene, seeking a divorce from the respondent, King, in the Family Court of Australia. The dispute centred around the irregularity of the initial proceedings and the interpretation of certain terms within the Family Law Act 1975, including what constitutes a 'pending' application and whether an order to transfer proceedings constitutes an exercise of jurisdiction. The matter was heard by Justice Mortimer in the Family Court of Australia.

The central legal issues before the court were whether the initial proceedings were a nullity due to irregularities and whether an application that did not initially disclose a cause of action within the court's jurisdiction could be amended. The court had to determine if the transfer order was an exercise of jurisdiction and what was meant by 'proceedings' in the context of family law.

Justice Mortimer ruled that the proceedings were not a nullity and that the application could be amended to disclose a cause of action. The court found that the transfer order was not an exercise of jurisdiction but rather an administrative action. In reaching this conclusion, Justice Mortimer emphasised the importance of ensuring that the court's processes are not impeded by technicalities and that the substantive rights of the parties are preserved. The court allowed the applicant leave to amend the divorce application, thereby resolving the substantive issue of the divorce proceeding.

The court further ordered the matter be adjourned for a divorce hearing on a specified date, that the parties' costs for the day be reserved, and granted the applicant leave to amend the divorce application. This ruling provided clarity on the interpretation of key terms and allowed the divorce proceedings to progress appropriately.

Orders

Orders of the court

The matter be adjourned to 11 November 2011 at 10.00 a.m. for a divorce hearing.

The parties’ costs of today be reserved.

The applicant have leave to amend the divorce application in the form set out in the amended application filed 26 May 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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