P and P - [2000] FMCAfam 90

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & P

[2000] FMCA fam 90

DISSOLUTION OF MARRIAGE – Objection to jurisdiction – Family Court associated proceedings – Application to transfer to Family Court – Section19 and 39 Federal Magistrates Act 1999

Applicant:

H M P

Respondent:

L J P

File No:

ZM4462 of 2000

Delivered on:

22 December 2000

Delivered at:

Melbourne

Hearing Date:

21 December 2000

Judgment of:

Phipps FM

REPRESENTATION

The Applicant in person

The Respondent in person

ORDERS

Decree nisi of dissolution of marriage granted.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM4462 of 2000

H M P

Applicant

And

L J P

Respondent

REASONS FOR JUDGMENT

By application filed on 2 November 2000, the wife applied for dissolution of marriage pursuant to s. 48 of the Family Law Act 1975. On 30 November 2000, the husband filed a response objecting to jurisdiction and a response to the application for dissolution.
On 21 December 2000, I dismissed the objections to jurisdiction and made an order for the Decree Nisi of Dissolution of Marriage notwithstanding the objections of the husband. These are my reasons for doing so.
The husband and wife each appeared in person. The husband addressed me on the matters contained in his objections. Other than what is contained in those documents only two additional matters need to be referred to. The husband suggested that a Federal Magistrate could not deal with constitutional matters. I pointed out to him that a Federal Magistrate is a Justice under Chapter III of the Constitution and can deal with constitutional matters. I also asked the husband if he agreed that the parties had separated on 28 March 1999 and had lived separately and apart since as stated in the wife's application, and he said that was correct, but then went on to refer to various of the matters contained in his response.
Of the objections to jurisdiction only one needs to be dealt with. The husband asserted that the matter could not be dealt with because of the provisions of s.19(1) of the Federal Magistrates Act 1999. This is as follows:
"Proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court. "
There are a number of matters in the Family Court in relation to the children, the most recent of which, according to the husband's objections, was heard on 8 November 2000. There are a number of appeals to the Full Court of the Family Court of Australia.
The question is whether these are "associated matters" within the meaning of s.19(1) of the Federal Magistrates Act 1999. In my opinion they are not. An application for dissolution under s.48 of the Family Law Act 1975 is an application for primary relief which stands on its own. The structure of the Family Law Act is that applications for dissolution are independent of other applications, and in particular those relating to the children which are the subject matter of the proceedings in the Family Court. Indeed, I think it is a little difficult to see what proceedings under the Family Law Act could be associated with an application for dissolution within the meaning of s.19(1). In deciding whether a Decree Nisi should become absolute the Court must consider the arrangements for children of the marriage under the age of 18 – section.55A Family Law Act – but in doing that the Court is not making any decision about matters that affect the children, such as residence, contact or maintenance. The court is looking at circumstances which exist independently of the application for dissolution. They are dealt with as separate matters. They are not associated matters.
The other issues contained in the notice of objection to jurisdiction which go to the constitutional validity of the Family Law Act 1975 and the Marriage Act 1961 are of no substance and I do not need to deal with them.
It might be thought that given that there are matters arising under the constitution notice should be given to the Attorneys-General of the Commonwealth and the States as required by s.74B of the Judiciary Act 1903. I consider that they are so lacking in substance that they cannot be said to give rise to any matter arising under the constitution.
In the same notice of objection the husband made application pursuant to s.39 of the Federal Magistrates Act 1999 for the application for dissolution to be transferred to the Family Court. The grounds were that it should be heard in the Family Court because of the proceedings already there in relation to the children. There is no basis for this claim. The application for dissolution is quite independent of any proceedings in relation to the children. I therefore refused the application for transfer.
In the response to the application, the husband alleged that there were a variety of matters which should lead to the conclusion that there should not be a Decree Nisi for Dissolution of Marriage. As I have already said, he informed me that he agreed that the parties had separated on 28 March 1999 as alleged in the application for dissolution and had not lived together since. He said that the notice of objection only contained an outline of the matters on which he wished to rely and there was much material in the affidavits before the Family Court. The notice of objection stated that a further affidavit would be supplied.
The only matter which needs to be dealt with is the husband's claim of a possibility of reconciliation or a reasonable likelihood of resumption of co-habitation, to use the words of s.48(3) of the Family Law Act
On the material before me, there is no current possibility of reconciliation, and I cannot see how any further material could alter that situation.
By her application the wife gives evidence that she does not think it likely that there will be a reconciliation. The circumstances of a number of applications to the Family Court and now a number of appeals to the Full Court of the Family Court, is strong corroboration for the wife's statement. People engaged in litigation to this extent are unlikely to reconcile.
It may be that the husband for whatever reason considers otherwise, but the wife's evidence is that there is no reasonable likelihood of cohabitation being resumed, and I accept that. I do not see how any further evidence from the husband could alter that.
In circumstances I accepted the wife's evidence that the marriage had broken down irretrievably.
In granting the Decree, I relied upon the marriage certificate as filed. I found that the parties were married on 12 September 1987 at H in the State of Victoria, that they were both domiciled in Australia, that they separated on 28 March 1999 and had lived separately and apart since the date of separation. I found that the marriage had irretrievably broken down. I pronounced a Decree Nisi for Dissolution of Marriage. I declared that there were three children of the marriage under the age of 18 years and I declared that I was satisfied that proper arrangements in all the circumstances had been made for their welfare.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: