KOELL & MADER

[2015] FCCA 796

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOELL & MADER [2015] FCCA 796

Catchwords:
FAMILY LAW – Divorce – defended divorce – where husband commenced proceedings in Australia – where wife commenced proceedings in the United Kingdom – where decree nisi pronounced in the United Kingdom – where decree absolute will not issue unless a fee is paid – where wife declines to pay fee – where wife claims husband should pay fee – delay – Response to Divorce dismissed – Divorce Order made.

Legislation:

Family Law Act 1975 (Cth), s.48

Cases cited:
Koell & Mader [2014] FCCA 2866

Applicant: MR KOELL

Respondent: MS MADER

File Number: SYC 3704 of 2014

Judgment of: Judge Scarlett

Hearing date: 11 March 2015

Date of Last Submission: 11 March 2015

Delivered at: Sydney

Delivered on:  9 April 2015

REPRESENTATION

Counsel for the Applicant: Ms Cohen

Respondent: In person

ORDERS

1. The Response to Divorce filed on 29 July 2014 is dismissed.

2. A Divorce Order is granted.

3. The Divorce becomes effective after the expiration of one (1) month from the date of this Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3704 of 2014

MR KOELL

Applicant

And

MS MADER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for Divorce brought by the Husband. It has been defended by the Wife on the basis that she had commenced her own Petition in the United Kingdom and she claimed that Australia is not an appropriate forum.

2. I set out the procedural history of the matter in an interim decision handed down on 10 December 2014 (Koell & Mader[1]), where I found that I was not satisfied that Australia was a clearly inappropriate forum and I indicated an intention to exercise the Court’s jurisdiction, noting the Wife’s delays in proceeding with her own Petition to the Court in the United Kingdom.

   [1] [2014] FCCA 2866

3. At paragraph [33] of the decision I stated:

   Unless either of the parties produces cogent evidence to the Court within seven days that a divorce order should not be made, I intend to hear the Application for a divorce order dissolving the marriage between the parties.[2]

   [2] [2014] FCCA 2866 at [33]

Subsequent Procedural History

1. After handing down the decision on 10^th December 2014, I adjourned the proceedings until 18^th December to allow each party the opportunity to produce evidence to the Court that a Divorce order should not be made.

2. On 18^th December 2014 I granted an adjournment until 4^th February 2015, as the Wife produced evidence that showed that her Petition to the Court in the United Kingdom was proceeding to finality. The Wife tendered a document from the Family Court at Central Family Court entitled Certificate of entitlement to a decree. That document stated:

   The Court certifies that the Petitioner has sufficiently proved the contents of the petition and is entitled to a decree of divorce on the grounds that that the marriage has irretrievably broken down, the facts found proved being the Respondent’s adultery with the Co-Respondent and to an order that the Respondent pays the costs of the Petitioner.

   Date: 9^th December 2014

   Take notice that the Court has fixed the 22^nd December 2014 at 10:00 am for the pronouncement of a decree and the making of the orders included in the District Judge’s Certificate by a District Judge sitting at the Family Court at Central Family Court, First Avenue House, 42-49 High Holborn, London, WC1V 6NP.

   Note:     Unless the decree or any of the orders is opposed, it is unnecessary for any party to appear at Court for the pronouncement.

   Any party to these proceedings may be heard on the question of costs at the hearing. A party will not be heard unless he or she has served notice of his or her intention to attend the hearing and to apply for or to oppose the making of an order for costs not less than two days before the hearing.

3. There was no appearance by or on behalf of the Husband on 4^th February 2015. However, the Court had received a request from Counsel for the Husband for an administrative adjournment to April, which the Wife opposed, on the basis that she was planning to leave Australia before then. The Application was therefore adjourned to 11^th March 2015.

4. On 11^th March 2015 Ms Cohen of Counsel appeared for the Husband and the Wife attended Court by telephone. The Wife had filed an affidavit sworn or affirmed on 10^th March 2015 in which she made some submissions critical of the Husband’s counsel and, more relevantly, sought that the Husband should pay the fee of 45 UK pounds for the decree absolute to issue.

5. After some argument I stood the matter out of the list and reserved my decision.

Evidence and Submissions

1. The wife in her affidavit stated:

   1.  I was awarded court costs in the divorce between Mr Koell and I.

   2. The Decree Absolute costs 45 pounds to file (please see evidence). This is approximately $88.64, which due to my financial circumstances I was unable to find. Once this is lodged everything is finalised.

   3. I have requested sent (sic) two e-mails to Ms. Cohen requesting that Mr Koell pays this fee as I have been awarded this and I am entitled to it. I also asked her to facilitate a meeting between Mr Koell and I for mediation by getting me dates that Mr Koell would be free and if he had a preferred location so that I could start to look to organise these things…

   5. As a result of Ms Cohens (sic) blatant refusal to communicate and allow me to bring this matter to its conclusion, this has now been delayed by her and her clients (sic) actions…[3]

   [3] Affidavit Ms Mader 10.3.2015 at paragraphs [1]-[3], [5]

2. The Wife annexed to her affidavit a document from the UK Government entitled “Get a divorce”. The document has a sub-heading “6. Apply for a decree absolute” which sets out the procedure for an application to be made for a decree to become absolute. The document says:

   The decree absolute is the legal document that ends your marriage.

   You need to wait at least 6 weeks after the date of the decree nisi before you can apply for a decree absolute.

   The delay gives you a chance to discuss finances and other issues with your husband or wife before the marriage comes to an end.

   !    Apply within 12 months of getting the decree nisi – otherwise you will have to explain the delay to the court.

   Fill in application form

   To apply for a decree absolute, fill in the notice of application for decree nisi to be made absolute form.

   A decree absolute costs 45 (pounds). This fee won’t apply if you started your divorce after 1 July 2013, as it’s now part of the fee for starting the divorce.

   If your husband or wife started the divorce

   If your husband or wife started the divorce, but they haven’t applied for a decree absolute, you can apply.

   You’ll have to wait an extra 3 months, on top of the standard 6-week delay, before you can do this.

   To apply, fill in an application notice form.

   You’ll have to pay a 155 (pounds) fee and go to a court hearing with your husband or wife.[4]

   [4] Annexure to affidavit of Ms Mader 10.3.2015 (marked as “Evidence 1”)

Consideration of the Evidence

1. It is apparent from the evidence produced that the procedure that applies to a Petition for Divorce under the law of the United Kingdom, at least as far as Petitions filed before 1^st July 2013 are concerned, is somewhat more complicated than the comparatively simple procedure that applies under the Family Law Act 1975 (Cth). Even so, the progress of the Wife’s divorce petition in that country seems to have been unconscionably delayed and drawn-out.

2. The Wife deposed in her affidavit of 5^th August 2014 in support of her Response to the Husband’s divorce application that she “commenced Divorce proceedings in the UK in November 2012”.[5] It would be unfair to lay the all of the blame on her, however, as she deposes later on in that same paragraph:

   The divorce papers were served upon Mr Koell on 31/12/2014(sic)[6] at his residence in [omitted] Queensland. The proceedings were challenged on jurisdiction on the 3^rd July 2013, however I was given liberty to proceed with a petition for a Decree Nisi on 30 September 2013.[7]

   [5] Affidavit of Ms Mader 5.8.2014 at [1]

   [6] Presumably this is a typographical error and the correct date should read “31/12/2012”

   [7] Affidavit of Ms Mader 5.8.2014 at [1]

3. The Wife went on to depose:

   I spoke to a gentleman at the Family Registry in London named [omitted] on 15^th July 2014 who advised that the case is still ongoing and open for me to proceed. He then sent me the documents that I needed in order to file.[8]

   [8] Ibid at [3]

4. The Wife has not explained the delay in proceeding with her petition between 30^th September 2013 and 15^th July 2014. As can be seen from the Wife’s evidence, it was not until 9^th December 2014 that the Family Court in the United Kingdom issued the Certificate of Entitlement to a Decree, stating that the decree would be pronounced on 22^nd December 2014.

5. The Wife asserts that she has already obtained an Order for Costs from the Family Court, which is why the Husband should pay the fee for the decree to become absolute. In my view, she appears to have misread the Certificate. What it appears to say, on my reading, is that she is entitled to a decree nisi and to seek an order for costs on 22^nd December 2014. This interpretation is supported by the Note on the Certificate, advising that the decree and “the orders included in the District Judge’s Certificate” (whatever they may be) will be made in the absence of the parties.

6. Importantly, the Note goes on to say:

   Any party to these proceedings may be heard on the question of costs at the hearing”.

7. As there is no issue as to the fact that neither party attended Court in London on 22^nd December 2014, it appears to me to be quite clear that the Court did not make an Order for costs in favour of the Wife.

8. It is also clear from the document annexed the Wife’s affidavit of 10^th March 2015, that as she is the petitioner for the divorce, the responsibility falls on her to:

   a)Complete a form of application for the decree nisi to become absolute; and

   b)Pay the requisite fee of 45 UK pounds.

9. She has done neither.

10. If it is left to the Husband to apply for the decree nisi to become absolute, it is clear that:

    a)he will have to wait an extra three months from the six week period that applies to a petitioner;

    b)pay a fee of 155 UK pounds; and

    c)attend Court personally.

11. On the Wife’s own evidence, the Husband would not be able to apply for the decree to become absolute until six weeks plus three months from 22^nd December 2014, which would mean that he would not be able to apply until after 2^nd May 2015.

12. If the Wife’s proposal is that the Husband should pay her the money for the petitioner’s fee, there is no guarantee that she will fill in the required form with any promptness at all, noting her unwarranted and unexplained delay in bringing to Court in the United Kingdom a petition for divorce commenced in November 2012. It has taken approximately two years and four months and the Wife has not succeeded in arranging for the decree nisi to become absolute.

Conclusions

1. In my view, this Court has been more than patient with the Wife, noting that she has been without legal representation. However, this matter has gone on quite long enough. The Husband’s Divorce Application could have been heard on 7^th August 2014 and a Divorce Order could have become final a month later.

2. The Wife’s actions have delayed the Divorce Application for months. I am not prepared to find that the Wife’s actions have been prompted by malice as they may just as easily be explained by her inability to understand the divorce process as it applies in the United Kingdom and take the necessary steps to dissolve a marriage which she has consistently stated that she wishes to bring to an end. This Court will now take that step.

3. I propose to dismiss the Response to Divorce filed on 29^th July 2014.

4. I have previously held that this Court has jurisdiction to make a Divorce Order and I propose to exercise that jurisdiction without further delay.

5. I find that the parties were married at Liverpool in the United Kingdom on [date omitted] 2004. The parties are domiciled in Australia. The Husband is an Australian citizen.

6. I find that the parties separated on 12^th January 2012 and thereafter lived separately and apart. I find that the marriage has irretrievably broken down. I pronounce a Divorce Order.

7. There are no children of the marriage under the age of 18 years.

8. The Divorce Order will become final in one month’s time

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 9 April 2015