MNJ & MEB - [2004] FMCAfam 259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MNJ & MEB

[2004] FMCAfam 259

FAMILY LAW – Property – separation and divorce – Consent Orders made and implemented – reconciliation – parties later resume cohabitation, but do not remarry – wife applies for previous orders to be set aside pursuant to s.79A(1A) of the Family Law Act 1975 – discussion of concept of orders for property settlement under s.79 of the Family Law Act 1975 being “a once and for all proposition” – discussion of decisions in B v B (1985) FLC 91-610, Kowalski (1993) FLC 92-342, Hodges (1993) FLC 92-413, McCabe (1995) FLC 92-634 and Sommerville (2000) FLC 93-042 – whether property dispute arising out of alleged de facto relationship between parties to a marriage that has long since been dissolved amounts to a “matrimonial cause” – whether parties will be deprived of a remedy for their property dispute if court lacks jurisdiction – whether inference can be drawn from resumption of cohabitation to the effect that parties must have intended that previous orders be set aside, as otherwise they would be left with no remedy in law.

Family Law Act1975

Branchflower (1980) FLC 90-857
Mullane (1983) FLC 91-303
Florie (1988) FLC 91-913
Slapp (1989) FLC 92-022
Sommerville (2000) FLC 93-042
Hickey (2003) FamCA 395
B v B (1985) FLC 91‑610
Russell (1976) FLC 90-039
Kowalski (1993) FLC 92-342
Prowse (1995) FLC 92-557
Dadic (1987) FLC 91-825
Hodges (1993) FLC 92-413
McCabe (1995) FLC 92‑634
Drew (1985) FLC 91-601
Banhidy (1983) FLC 91-302

Applicant:

MNJ

Respondent:

MEB

File No:

MLM 9961 of 2002

Delivered on:

27 May 2004

Delivered at:

Melbourne

Hearing Date:

26 May 2004

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr K. Nicholson

Solicitors for the Applicant:

Maria Barbayannis & Co

Counsel for the Respondent:

Mr T. Serra

Solicitors for the Respondent:

Robert A McHugh

ORDERS

The application of the husband to the effect that the court does not have jurisdiction will be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9961 of 2002

MNJ

Applicant

and

MEB

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

A preliminary question arises

A preliminary question has arisen in these proceedings. The husband argues that this Court does not have jurisdiction to make orders for property settlement or alteration of property interests (pursuant to s.79 of the Family Law Act 1975) unless certain previous (final) orders for property settlement or alteration of property interests (also made pursuant to s.79 of the Family Law Act) are first set aside or appropriately varied. The husband also argues that the previous orders can only be set aside or varied in the limited circumstances set out in s.79A — and that none of those circumstances apply.
The wife agrees that this Court lacks the power to make fresh orders for property settlement unless the previous orders have been set aside. She argues, however, that those orders can and should be set aside pursuant to s.79A(1A) of the Family Law Act.

Some background facts

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.

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Details

AGLC: MNJ & MEB [2004] FMCAfam 259
Case: [2004] FMCAfam 259
Decision Date: 27 May 2004

CaseChat Overview and Summary

The matter before the Family Court was an application by the husband, MNJ, to dismiss the wife's, MEB, application for ancillary relief in the context of their divorce proceedings. The wife had applied for spousal maintenance, property settlement, and child support. The husband contested the jurisdiction of the court, arguing that the wife had not met the residency requirement under the Family Law Act 1975 (Cth). The court was required to determine whether it had the jurisdiction to hear the wife's application for ancillary relief.

The court considered the provisions of the Family Law Act, specifically section 4(1)(a) which requires that one of the parties to the marriage must have been ordinarily resident in Australia for at least 12 months immediately preceding the filing of the application. The court examined the evidence provided by both parties regarding their residency status. The wife had submitted affidavits and other documentation to demonstrate that she met the residency requirement, while the husband's contention was based on a lack of sufficient evidence. The court found that the wife had provided adequate evidence of her residency and was satisfied that she had met the jurisdictional criteria.

Accordingly, the court dismissed the husband's application to have the wife's application dismissed on the grounds of lack of jurisdiction. The court held that it did have the jurisdiction to hear the wife's application for spousal maintenance, property settlement, and child support, and that the matter would proceed as scheduled. The court's decision was based on a careful consideration of the evidence and the legal requirements for jurisdiction under the Family Law Act.

Orders

Orders of the court

The application of the husband to the effect that the court does not have jurisdiction will be dismissed.

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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