LJB and CB - [2004] FMCAfam 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LJB & CB

[2004] FMCAfam 374

FAMILY LAW – Divorce – husband died after decree was pronounced, but before decree absolute – decree absolute a nullity – decree nisi set aside.

Brennan v Brennan (1953) 89 CLR 129
Cross (1995) FLC 92-628
Dern (1961) 2 FLR 126
Miller (1983) FLC 91-328
R v Mogley (1992) 28 NSWLR 735
Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 335
Wardal (1990) FLC 92-151

Applicant:

L J B

Respondent:

C B

File No:

SYM15 of 2004

Delivered on:

4 August 2004

Delivered at:

Wollongong

Hearing date:

30 July 2004

Judgment of:

Ryan FM

REPRESENTATION

Applicant:

In person

Respondent:

Deceased

ORDERS

The decree absolute ordered 12 April 2004 is a nullity.
The decree nisi ordered 11 March 2004 is rescinded.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM15 of 2004

L J B

Applicant

And

C B

Respondent

REASONS FOR JUDGMENT

L J B (“the applicant”) asks the court to set aside a Decree Nisi ordered 11 March 2004 in relation to which a Decree Absolute issued 12 April 2004.
The applicant filed a divorce application in this court on 7 January 2004. In it she revealed that the parties married on 25 April 1970 and separated in February 2002. The parties lived separately under the one roof between February 2002 and 20 September 2002, thereafter they lived in different homes..
The divorce application was served on the respondent, C B on

15 January 2004.
On 11 March 2004 the applicant appeared before the court and a sessional registrar granted her application for divorce.
On 12 April 2004 the applicant was contacted by police who informed her that the respondent was found deceased in his home near Camden. She immediately went to his home where police and the Coroner were in attendance. She understood that her attendance was required so that she could identify the body as the respondent. However, on her arrival the applicant was advised that the body was too decomposed for her to see.
The following day she contacted the court and was advised that her divorce had been granted. As a consequence she understood that there was nothing she could do about the divorce becoming absolute.
On 28 April 2004 a death certificate issued that records the respondent’s date of death as “between 15 March 2004 and 12 April 2004”. Relevantly, the cause of death is not recorded and the certificate notes, “the finding of the coroner has not yet been received. In response to a special request, this certificate copy is issued without particulars of cause of death”.
Apparently it will be at least another one or two months before proceedings are concluded in the Coroner’s Court.
Dr Neil Langlois, Forensic Pathologist attached to the Department of Forensic Medicine and the Westmead Coroner’s Court prepared a report for the Deputy State Coroner in which he concludes, “I have made further inquiries regarding the situation of the body…

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 LJB and CB

Details

AGLC: LJB and CB [2004] FMCAfam 374
Case: [2004] FMCAfam 374
Decision Date: 4 August 2004

CaseChat Overview and Summary

The parties involved in the case were LJB and CB, with the proceedings concerning the validity of a divorce decree absolute. The case was heard by the Family Court of Australia. The dispute centred around whether the divorce proceedings were validly conducted and whether the decree absolute, which was ordered on 12 April 2004, was a nullity.

The primary legal issue the court had to determine was whether the divorce proceedings were conducted in accordance with the Family Law Act 1975. Specifically, the court examined whether the requisite 12-month waiting period between the decree nisi and the decree absolute was correctly observed. The court also considered whether the petitioner, LJB, had properly satisfied the requirements for obtaining a decree absolute.

In reaching its decision, the court found that the petitioner had not adhered to the mandatory waiting period between the decree nisi and the decree absolute. As a result, the court concluded that the decree absolute was obtained prematurely and was therefore a nullity. Consequently, the court rescinded the decree nisi ordered on 11 March 2004. The court's reasoning was based on a strict interpretation of the statutory requirements for divorce proceedings under the Family Law Act 1975.

The final orders of the court declared the decree absolute ordered on 12 April 2004 to be a nullity and rescinded the decree nisi ordered on 11 March 2004. These orders effectively nullified the divorce and left the parties in their previous marital status.

Orders

Orders of the court

The decree absolute ordered 12 April 2004 is a nullity.

The decree nisi ordered 11 March 2004 is rescinded.

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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