McIntosh and Anderson - [2013] FamCA 164

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
Espie and Espie (1983) FLC 91-347
Geborovich & Geborovich [2010] FamCA 257
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Russell v Russell (1976) 134 CLR 495
Savage and Hodgson (1982) FLC 91-222
Savage and Hodgson (1982) FLC 91-281
Shephard v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76
Taffa & Taffa (Summary Dismissal) [2012] FamCA 181
Wilson v McDonald (2009) 253 ALR 560

M Davies, A S Bell and P L G Brereton (eds), Nygh’s Conflicts of Laws in Australia, (LexisNexis, 8^th ed, 2010).

APPLICANT:

Ms McIntosh

RESPONDENT:

Mr Anderson

FILE NUMBER:

ROC

367

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

FILE NUMBER:…

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 McIntosh and Anderson

Details

AGLC: McIntosh and Anderson [2013] FamCA 164
Case: [2013] FamCA 164
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a dispute between Ms McIntosh (the wife) and Mr Anderson (the husband) concerning property settlement. The parties were married in Australia but subsequently divorced in Country B. The wife sought property settlement orders under s 79 of the Family Law Act 1975 (Cth), and both parties agreed that the divorce obtained in Country B should be recognised under s 104 of the Act. The husband contended that the wife required leave under s 44(3) of the Act to bring her property settlement application, arguing that the limitation period in s 44(3) applied to overseas divorces.

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