Mapalo and Magesso

[2012] FamCA 405

FAMILY COURT OF AUSTRALIA

MAPALO & MAGESSO [2012] FamCA 405

FAMILY LAW – NULLITY - Adjournment refused – Divorce - No objection raised - Application granted.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Mapalo

RESPONDENT: Mr Magesso

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8332 of 2010

DATE DELIVERED: 21 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selimi

SOLICITOR FOR THE APPLICANT: Goz Chambers Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Peter Lynch

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Cathleen Corridon & Associates

Orders

UNTIL FURTHER ORDER IT IS ORDERED

1. The child S MAGESSO born … January 2009 live with the mother.

2. The mother and father, as soon as possible do all such things and acts to make applications to the C Contact Centre for inclusion in the Centre’s supervised time program.

3. The father spend time with the child at C Contact Centre each week for a minimum of two hours on such days and at such times as determined by the Centre.

4. Upon the father spending time with the child in accordance with Order 3 herein for a period of four months, a report from the Centre be requested by the Independent Children’s Lawyer and it is requested that Victoria Legal Aid fund the report.

5. The mother and father each enrol and attend a parenting orders program at F Social Services Agency and provide proof of completion to the Independent Children’s Lawyer.

6. The mother and father are and are hereby restrained from criticising or denigrating the other within the presence of the child or within her hearing or allowing any other person to criticise or denigrate the other.

7. It is requested that Victoria Legal Aid continue to provide funding for the Independent Children’s Lawyer.

8. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. That the matter be adjourned to 3 December 2012 for mention.

IT IS ORDERED

1. That the application of the wife filed 14 May 2012 is dismissed.

2. That upon granting the application for divorce of the husband, his response filed 30 January 2012 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mapalo & Magesso has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8332 of 2010

Ms Mapalo

Applicant

And

Mr Magesso

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In respect of an adjournment application, this case has been in the list for a considerable period of time.  It began when the husband filed an application for divorce in the Federal Magistrates Court on 6 September 2010.  The latter came before Registrar Harold in that Court on 21 October 2010 at which stage, the applicant husband was unrepresented, but the wife was represented by a lawyer.

2. The court note which appears in the hand of the registrar, shows that there was a problem with the basis of the application.  The registrar, whose handwriting I recognise, has written that the wife says that the husband was previously married and that marriage had not been dissolved.  It is clear, therefore, that as of October 2010 the issue of a nullity was a live one. 

3. The registrar adjourned the proceedings to 9 December 2010 where again the applicant husband appeared in person, and the wife as the respondent, was represented by counsel.  It was the same counsel who appeared before me only a few weeks ago.  I am not entirely aware of the basis behind the adjournment, but it was adjourned until 24 February 2011 before a Federal Magistrate rather than the registrar. 

4. The matter came on for hearing before Turner FM on 24 February 2011, but this time, surprisingly, in chambers.  There was no appearance of any of the parties, presumably because the Federal Magistrate thought the issue was whether or not there was a legitimate marriage in the first place.

5. His Honour transferred the matter to this Court on a time and place to be advised.  As at 24 February 2011 the wife had not filed any documents indicating what her position was.  When the matter was transferred to this Court it went through a number of preliminary hearings before registrars.  One of those orders was that the application of the wife for what was presupposed to be the nullity, be filed.  That application was eventually filed on 21 April 2011. 

6. There can be no doubt that as at that date, the wife’s position was clear.  The application she filed was prepared presumably by herself because it was not endorsed with the name of any lawyer.  Eventually the matter came before me at a direction of the registrar, and on 29 December last year, I made an order in chambers directing that the parties file appropriate amended documents so that I could have a look at the matter on 1 February 2012. 

7. On 1 February 2012 the matter came before me.  The wife appeared in person, and Mr Lynch appeared for the respondent.  There was a considerable discussion about the nature of the proceedings and it was quite clear that the issue was whether or not there was a valid marriage.

8. I made orders on 1 February for the applicant to file an amended application setting out with precision the orders she was seeking together with the affidavits of evidence that she relied upon.  At that stage there was also a children’s issue alive. 

9. The matter came before me again on 24 April 2012, and this time Mr McCluskey of counsel appeared for the wife and Mr Lynch as amicus curiae for the respondent.

10. The dispute in relation to the validity of the marriage was continuing in addition to the parenting matter. 

11. Today, the matter was to have been heard, and the parties have compromised the parenting matters and have made agreements that I have endorsed by way of orders which are interim orders until December 2012.

12. An application has now been made to adjourn the application by the wife for the annulment of the marriage.

13. There is no material upon which the wife can rely. Counsel very properly and very sensibly, made the admission from the outset that the material could not be admissible such as would satisfy ss 55 and 56 of the Evidence Act 1995 (Cth). On that basis the application for the annulment could not succeed. He therefore made an application on instructions to adjourn the matter so that material could be obtained from an appropriate court in the relevant African country.

14. How that material might be admissible is not the issue;  the question is whether that course of action could be undertaken.  I stood the matter down for instructions to be obtained to give the wife an opportunity to satisfy me that there is a prospect that she might be able to call some evidence.

15. The wife is in impecunious circumstances, and I accept that is a problem.  She has asked that the matter be adjourned for six months, or at least four months, so that she can raise funds to have her solicitor carry out not only the necessary paperwork, but also if the evidence is available, so that it could be called in the event that it is disputed by the husband.

16. It is often said that justice delayed is justice denied;  there have been a number of attempts to get this case to the Court, and the wife has had a number of lawyers acting for her.  I had given indications on at least one if not two occasions that it is admissible evidence that must be presented to satisfy the Court.  I am not satisfied that any evidence might be presented within four to six months time that might enable the application which is currently before the Court to be granted.  On that basis the application for the adjournment is refused. 

RECORDED:  NOT TRANSCRIBED

1. I have already made a ruling that the adjournment application of the applicant be refused.  Consequently, counsel again quite sensibly and properly said he had no evidence to present, because the evidence that was to be relied upon and specifically paragraphs 16 to 39 of the first affidavit, and paragraphs 4 to 10 of the second affidavit, together with the annexures, could not satisfy me that an order should be made granting an annulment.  On that basis the application is embarrassing and must be dismissed.

2. The application that then remains alive in the Court is the application for divorce filed on 6 September 2010.  Counsel for the wife indicates that he has nothing to say in respect to that;  nor, having regard to the fact that an objection to the divorce being granted has never been filed, can there be any objection to the divorce being granted. 

3. I am also in the unusual position today of being privy to the fact that there are parenting orders being entered into which would appear to be in the best interests of the child S who was born in January 2009.  On the application filed 6 September 2010 I am satisfied that the parties were lawfully married.  I am satisfied as to the jurisdiction.

4. I am satisfied that the parties separated on 11 August 2009.  I am satisfied that the marriage has broken down irretrievably.  I am satisfied that there is one child of the marriage to whom the Family Law Act 1975 (Cth) applies, and that having regard to what I have heard today, there are appropriate arrangements for the child’s welfare. In the matter of Magesso & Mapalo I grant a divorce forthwith to become final in one month from this date. 

I certify that the preceding Twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 May 2012.

Associate: 

Date:  1 June 2012