KEENE & KING
[2011] FMCAfam 1117
•31 August 2011
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 therefore mere surplusage as they were already married. The husband therefore seeks to amend his divorce application to refer to the date of marriage and place of marriage as being that of the Indian marriage, not the Australian one.
Counsel for the wife submits that the amendment should be refused because the proceedings are a nullity and they cannot be repaired. He submits that the proceedings were brought for a divorce with respect to a marriage that was not the marriage that created the relationship between the parties and were proceedings that could never have succeeded.
Counsel relied upon Deveigne & Anor v Askar [2007] NSWCA 45; (2007) 239 ALR 370; (2007) 47 MVR 344; (2007) 69 NSWLR 327 as authority for the proposition that proceedings which are a nullity cannot be rectified as there is nothing pending before the Court that is capable of rectification. The judgment in Deveigne’s case is a particularly long and detailed judgment dealing with a very large number of authorities. At its core is the proposition that when proceedings are brought against a non-existent party or by a non-existent party, such as someone who is dead or a company that has been deregistered, that those proceedings are a nullity and that there is nothing that can be rectified.
There are numerous statements of various tests that have been applied at different times in different Courts. There has also been legislation in the past, commencing with amendments to the English Supreme Court Rules but also reflected in various other rules and legislation in other jurisdictions, to reduce the arguments with respect to nullities and expand the Court’s powers to amend proceedings which might have otherwise been thought to be nullities. These are discussed in paragraph [137] and onwards in Deveigne’s case.
The position, put fairly and forthrightly by Lord Denning, in Re Pritchard (deceased) [1963] Ch 502; [1963] 1 All ER 873, is that:
The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead or non-existent and I would like to see the word “nullity” confined to those cases in the future.
This is referred to in the decision of Deveigne at paragraph [91]. The Australian High Court has also made comment on these issues, looking at the differences between procedural and substantive law. It is a difficult question and in some ways the more one inquires into it, the more difficult it becomes to divine the precise place where nullity ends and proceedings which can be amended or otherwise dealt with, begin. A practical approach is clearly warranted. It seems clear, both on the basis of Deveigne’s case and ordinary logic, that if a party to the proceedings simply does not exist, the proceedings must be a nullity in that respect.
Similarly, to use Danckwerts J’s analogy of a dog licence, if a person purported to issue proceedings by going to the dog registry counter of the local authority rather than to the Court Registry it would also be a nullity.
In this case, however, proceedings were issued in the registry of this Court. Both of the parties are real persons. Both of them are in fact married. There is the state of legal relationship between them of duties, obligations and so forth that is the legal state of marriage. When that state of marriage actually came into existence is an issue, which it seems, is based on a fact that the applicant got wrong at the commencement of the proceedings. Nonetheless, the husband issued proceedings seeking a dissolution of the legal relationship of marriage as between the two parties.
It seems to me that therefore proceedings were pending and that what he got wrong was the particulars of the facts and circumstances that are said to give rise to that legal relationship between the parties. He is, on ordinary principles, entitled to apply to amend his application to properly reflect the facts and circumstances that show the entitlement to relief and that is what he seeks to do now.
Even if I be wrong in this analysis, I also have regard to the fact that the proceedings were validly pending before the Court to be determined. The fact that in the form that they were initially issued may arguably be one that does not give me jurisdiction to deal with the case, (as this is a statutory court); that is that it was arguably a case that could only be about the legal effect of the ceremony that occurred in Australia in its original form, it seems nonetheless the case was a “matter” pending before me.
I diverge here for a moment to outline the jurisdictional issue as it is an added complexity in this case due to the provisions of the Family Law Act 1975. If the case were one that only related to the ceremony in Australia rather than the dissolution of the legal relationship of marriage between the parties, then upon acceptance of the fact that the ceremony in Australia was not a valid marriage (because of the previous marriage), this Court would not have jurisdiction under the Family Law Act 1975, (see s.39(5AA)), to declare the Australian ceremony a nullity. This is the very narrow exception to this Court’s jurisdiction under the Family Law Act 1975, an exception that is difficult to rationalise when one considers the work of the Court: it is only the jurisdiction with respect to declarations of nullity of marriages that the Court does not have in an arena where the Court has full and broad jurisdiction to deal with divorce applications. Indeed, in many contested divorce applications, a central feature is a determination as to the validity of an existing marriage before the Court has power to order a divorce. Why such a provision remains in the legislation is not something that is apparent from the Act or the circumstances in which the Courts operate.
Having noted that, the Court does not have jurisdiction to make declarations as to nullity of a marriage, it seems, (based upon the principles set out by Finkelstein J in Ogawa v Phipps [2006] FCA 361; 151 FCR 311), that such jurisdiction would not be part of the Court’s accrued or associated jurisdiction under the Act (because it has been specifically denied to the Court by the legislature). It is, however, a jurisdiction that this Court would have if the matter were transferred to the Family Court and transferred back to the Federal Magistrates Court because of the provisions of Family Law Act that give this Court full jurisdiction with respect to matters transferred to it by the Family Court of Australia (see s.33B(8A)(b) of the Family Law Act 1975).
I therefore return to the main argument. If the proceedings were simply with respect to the ceremony in Australia, then it appears that this Court would not have had jurisdiction to deal with that ceremony because the only appropriate orders would have been a declaration as to the nullity of the purported marriage (because the parties were already married). In those circumstances, could it then be argued that the proceedings themselves were a nullity? It seems to me that the answer to that is no. The proceedings were properly instituted and they were pending before the Court. They were proceedings that were capable of being transferred to another Court (and the relevant Court in this case would be the Family Court of Australia). The availability of a jurisdiction to order transfers in cases such as this has been recognised in this Court and in the Federal Court of Australia. The decision by Phipps FM was referred to by me in argument, Stewart v Pegasus Investments and Holdings Pty Ltd [2004] FMCA 712, and more recently the issue was considered by Jarrett FM in Hefferon & Maltby [2010] FMCAfam 440 where his Honour came to the same view. Proceedings, even where the Federal Magistrates Court is without jurisdiction, can still be transferred to the Federal Court or the Family Court respectively if those Courts would have jurisdiction.
If the Court has power to deal with proceedings that are pending before it, sufficient to transfer them to another Court that would have jurisdiction, it seems to me that there is no reason that the Court would not also have power to allow amendment of such proceedings. If the amendment is to be in a form that would give this Court jurisdiction to grant the relief then such an amendment could be granted by the Court.
In the circumstances I therefore rule that the proceedings themselves are not a nullity. I will proceed to hear submissions, if there be any, with respect to the discretionary matters I should consider when deciding whether or not to allow an amendment under the Rules.
[Further argument ensued with respect to the amended application for divorce]
In this matter, I have regard to the matters set out in Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 and the very useful summary by Lander J in AON Risk Services Australia Ltd v Australian National University [2008] ACTCA 13 at [194]:
194. The following principles emerge from the majority opinion:
(a) the paramount consideration is justice;
(b) an application should not be refused for the purpose of punishing the party for a mistake nor for that party’s delay;
(c) the principles of case management may be a relevant consideration in a particular case;
(d) case management may not be allowed to prevail to cause an injustice to a party by preventing that party from raising an arguable claim or defence;
(e) if, however, the proposed amendment raises a claim or a defence which is arguable, the proposed amendment should be allowed notwithstanding aspects of case management provided that any prejudice the other party might suffer can be compensated by costs.
Amendments are not for the purpose of punishing or denying parties but to be considered in light of whether they are necessary for the effective resolution of the dispute, whether or not a party has been prejudiced and how an amendment may impact upon case management principles in the particular case and the Court generally.
It seems to me that in this case there is no question of prejudice in that the facts that are relevant to the cause of action are all well known and the basic facts that the husband relies upon are not in dispute. The matter has been pending for some time and the amendment was foreshadowed by the filing of an amended application some time ago. The amendment will not impact upon the conduct of the proceedings and therefore will not have any impact upon case management principles. It is necessary to enable the real issues between the parties to be determined which, in my view, are whether or not they should continue to be in a legal relationship in the nature of a marriage between them.
The only other question is whether or not the amended application for divorce should be allowed in light of the fact that the wife may wish to seek a declaration of nullity with respect to the Australian ceremony of marriage. It seems to me that it is open to her to seek a declaration of nullity with respect to that ceremony in her response (and this may be needed for reasons related to her potential rights under the laws of India). However, she does not choose to do so at present. It seems to me that places her in no different a position to the situation had the divorce application been brought with respect to the original ceremony as the particularised marriage ceremony rather than one particularising the Australian ceremony.
In the circumstances I therefore, grant leave to the applicant to amend the divorce application in the form set out in the amended application filed 26 May 2011.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM delivered on 31 August 2011.
Date: 24 October 2011
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