Maider & Carrigan - [2008] FamCA 862

FAMILY COURT OF AUSTRALIA

MAIDER & CARRIGAN

[2008] FamCA 862

FAMILY LAW – DIVORCE – Divorce order – husband opposed wife’s application for divorce on ground divorce already granted overseas – whether divorce purported to have been granted overseas should be recognised as valid pursuant to s 104 of Family Law Act – whether divorce effected in accordance with Pakistani law – court satisfied marriage not dissolved – appropriate for court to hear divorce – necessary requirements for divorce proved – divorce to become final notwithstanding court not satisfied that proper arrangements have been made for children of marriage.

FAMILY LAW – COSTS – application for costs by wife – s 117 – husband did not appear and was wholly unsuccessful – husband to pay wife’s costs.

Family Law Act 1975 (Cth) ss 104 & 117

APPLICANT:

Ms Maider

RESPONDENT:

Mr Carrigan

FILE NUMBER:

ADF

1515

2006

DATE DELIVERED:

9 October 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

9 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B.W. McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Churches

SOLICITOR FOR THE RESPONDENT:

Martin Robinson Solicitors

Orders

The Court by order declared that it was satisfied that the children of the marriage who have not attained the age of 18 years are the children specified in the order and there are circumstances by reason of which the decree nisi should become absolute notwithstanding that the Court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the children D born on the … June 1997 and N born on the … December 2003.

The husband pay the wife’s costs of and incidental to the Application for Divorce and the Response thereto on the basis that such costs to be agreed and if there is no agreement within twenty-eight [28] days such costs to be as taxed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1515 of 2006

MS MAIDER

Applicant

And

MR CARRIGAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is the application of the wife for a divorce filed by the wife on 9 August 2007. This is opposed by the husband, as indicated in his response filed on 12 September 2007, on the ground that a divorce between the parties has already been granted, according to the law of Pakistan, on or about 14 February 2007. The wife denies that there has been any valid divorce in Pakistan.
The hearing before me to determine the divorce was specifically listed at a time that it was anticipated the husband would be present in Australia. At the hearing before me today the wife was present and represented by Mr McQuade of counsel. The husband was not present. He was represented by Mr Churches of counsel.
I…

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 Maider & Carrigan

Details

AGLC: Maider & Carrigan [2008] FamCA 862
Case: [2008] FamCA 862
Decision Date: 9 October 2008

CaseChat Overview and Summary

In *Maider & Carrigan*, Dawe J of the Family Court of Australia considered an application for divorce by the wife, which was opposed by the husband. The husband's opposition was based on the assertion that a divorce had already been granted to the parties in Pakistan. The central dispute therefore concerned the validity and recognition of the purported overseas divorce under Australian law, specifically pursuant to section 104 of the *Family Law Act 1975* (Cth).

The court was required to determine whether the divorce purportedly granted in Pakistan was valid according to Pakistani law, and consequently, whether it should be recognised as a valid dissolution of the marriage under Australian legislation. Furthermore, the court had to consider whether the necessary requirements for an Australian divorce had been proven, and whether a decree nisi should become absolute despite the court not being satisfied that proper arrangements had been made for the children of the marriage.

Dawe J found that the marriage had not been dissolved by the Pakistani proceedings. The court was satisfied that the requirements for an Australian divorce had been met. Notwithstanding the court's reservations regarding the arrangements for the children, it was deemed appropriate to proceed with the divorce. The court also ordered that the husband pay the wife's costs of the divorce application and his response, as he had not appeared and was wholly unsuccessful.

Orders

Orders of the court

The Court by order declared that it was satisfied that the children of the marriage who have not attained the age of 18 years are the children specified in the order and there are circumstances by reason of which the decree nisi should become absolute notwithstanding that the Court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the children D born on the … June 1997 and N born on the … December 2003.

The husband pay the wife’s costs of and incidental to the Application for Divorce and the Response thereto on the basis that such costs to be agreed and if there is no agreement within twenty-eight [28] days such costs to be as taxed.

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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