Lock and Walton

[2016] FCCA 1996

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCK & WALTON [2016] FCCA 1996

Catchwords:
FAMILY LAW – Wife filed application in a case seeking to rescind divorce order before the divorce became final – applicant claimed the parties were separated for less than 12 months – wife did not file a response to the divorce – husband filed affidavits refuting the wife’s claims – wife did not attend hearing of her application – application dismissed.

Legislation:

Family Law Act 1975, s.55(2)(a)

Applicant: MS LOCK

Respondent: MR WALTON

File Number: DGC 793 of 2016

Judgment of: Judge Harland

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Dandenong

Delivered on: 11 July 2016

REPRESENTATION

The Applicant: No appearance

The Respondent: In Person

ORDERS

1. The application filed by the Wife on 22 June 2016 be dismissed.

AND THE COURT NOTES THAT:

1. The divorce is to become final on 12 July 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 793 of 2016

MS LOCK

Applicant

And

MR WALTON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed today after the applicant filed an urgent application in a case seeking to have a divorce order rescinded. She first came to Court on 28 June 2016 seeking that order. she had not arranged for personal service of the application. Therefore, it was adjourned until today to give the respondent an opportunity to attend and answer the claim. The applicant filed her application before the divorce was due to become final. In those circumstances, it was possible to, pursuant to section 55(2)(a) of the Family Law Act 1975 (Cth), extend the period before the divorce became final and I did so until 12 July 2016. The wife did not file a response to the divorce and did not attend the divorce hearing. She said she did not open her emails until after the hearing date.

3. The wife filed an affidavit in support of her application and attached various documents, including residential tenancy documents and a consent form with respect to in-vitro fertilisation (“IVF”).  The respondent has filed an affidavit by himself in response, an affidavit of his fiancé and an affidavit of his father which all state that the parties have not been living together for some two and a half years.  The respondent says that he gave some assistance to the applicant after they separated with respect to her visa application but has since told the Immigration Department that they separated. 

4. It seems clear from the correspondence, which includes email exchanges from the wife to the husband, that she had acknowledged that the relationship was over and that after the relationship was over the husband had agreed to donate sperm to enable the wife to have a child.  There are several references by the wife herself to the parties having been separated and intending to get a divorce.  It seems that perhaps she was resisting the divorce becoming final because of her visa status. 

5. The wife has not turned up today and, in those circumstances, I am satisfied it is appropriate to dismiss the application and pursuant to the order that I made on 28 June 2016 the divorce will become final tomorrow.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 3 August 2016