FAMILY COURT OF AUSTRALIA
| MCINTOSH & ANDERSON | [2013] FamCA 164 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties were married in Australia but divorced in Country B – where the wife seeks orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) – where the parties are agreed that the divorce ought be recognised pursuant to s 104 of the Act – where the husband claims the wife needs to seek leave pursuant to s 44(3) before her application for property settlement orders can be heard – whether the limitation contained in s 44(3) applies to overseas divorces – consideration of the meaning “divorce order” and “divorce” as used in the Act – where the limitation in s 44(3) applies only to divorces granted under the Act and does not extend to overseas divorces or to declarations regarding the validity of an overseas divorce. |
| Family Law Act 1975 (Cth) |
| CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 M Davies, A S Bell and P L G Brereton (eds), Nygh’s Conflicts of Laws in Australia, (LexisNexis, 8th ed, 2010). |
| APPLICANT: | Ms McIntosh |
| RESPONDENT: | Mr Anderson |
| FILE NUMBER: | ROC | 367 | of | 2012 |
| DATE DELIVERED: | 20 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 11 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carew |
| SOLICITOR FOR THE APPLICANT: | South & Geldard |
| COUNSEL FOR THE RESPONDENT: | Mr North SC with Mr Alexander of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Duffield & Associates Solicitors |
Orders
The Response filed by the husband on 24 September 2012 be dismissed.
The parties and/or their legal practitioners shall, within 14 days of the date of these orders, confer so as to agree to directions for the further progress of the wife’s Initiating Application filed 10 July 2012.
In the event that the parties reach agreement as contemplated by paragraph 2 of these Orders, they be at liberty to forward by joint e-mail communication to … such agreed directions and, if considered appropriate, they shall be made in chambers without the necessity of further appearance.
In the event that the parties do not reach agreement as contemplated by paragraph 2 of these Orders, the matter be listed before a Registrar on a date and at a time to be advised.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McIntosh & Anderson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
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- McIntosh and Anderson [2013] FamCA 164
- Case
- [2013] FamCA 164
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CaseChat Overview and Summary
The central legal issue before the Court was whether the limitation period prescribed by s 44(3) of the Family Law Act 1975 (Cth) applied to applications for property settlement where the parties' divorce had been granted in a foreign jurisdiction. The husband argued that the term "divorce order" in s 44(3) encompassed foreign divorces recognised in Australia, thus requiring the wife to seek leave to institute proceedings out of time. Conversely, the wife contended that s 44(3) was confined to divorce orders made under the Family Law Act and did not extend to divorces obtained overseas.
Murphy J determined that the limitation period in s 44(3) does not apply to overseas divorces. The Court reasoned that the term "divorce order" as used in s 44(3) is distinct from the broader definition of "divorce" in the Act and is specifically referable to orders made under the Family Law Act itself. The Court noted that the 2005 amendments to the Act introduced the term "divorce order" to replace terms like "decree nisi" and "decree absolute," which were inherently linked to the domestic divorce process. Therefore, a divorce obtained in a foreign jurisdiction, even if recognised under s 104, does not trigger the time limitation imposed by s 44(3).
The Court ordered that the husband's response seeking dismissal of the wife's application be dismissed. The parties were directed to confer and agree on directions for the further progress of the wife's application within 14 days, with liberty to forward agreed directions for chambers orders or, failing agreement, to list the matter before a Registrar.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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