PARKS & PARKS - [2011] FMCAfam 1314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARKS & PARKS

[2011] FMCAfam 1314

FAMILY LAW – Divorce – review – no appearances.

Family Law Act 1975, ss.48, 55A
Federal Magistrates Act 1999, ss.17A, 102, 104

Applicant:

MR PARKS

Respondent:

MS PARKS

File Number:

PAC 2386 of 2011

Judgment of:

Harman FM

Hearing date:

8 November 2011

Date of Last Submission:

8 November 2011

Delivered at:

Parramatta

Delivered on:

8 November 2011

ORDERS

The Application for Review filed by the husband in these proceedings and returnable before the Court today is dismissed.
Remove all issues from the list of cases awaiting hearing.
Request that the Parramatta Registry notify the husband of the determination of his Application as soon as practicable.

NOTATION:

As a consequence of dismissal of the above Application that the divorce order pronounced by Registrar Walsh, 10 October 2011, remains in force and that a final divorce order shall issue 11 November 2011.

IT IS NOTED that publication of this judgment under the pseudonym Parks & Parks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 2386 of 2011

MR PARKS

Applicant

And

MS PARKS

Respondent

REASONS FOR JUDGMENT

The proceedings before the court today arise from an Application for Review filed by the Respondent Mr Parks regarding the pronouncement of the divorce order by Registrar Walsh.
The Application for Divorce to which the Application for Review relates was filed by the wife on 31 May 2011.
A divorce order was pronounced by Registrar Walsh on 10 October 2011.
The wife does not appear today, nor does the husband.
The Application for Divorce was dealt with by the Registrar pursuant to s.48 of the Family Law Act 1975. The Application on its face did not disclose the existence of any children to whom the provisions of s.55A would apply.
The Sessional Registrar, as is apparent from the outcome sheet upon the file and the divorce order not having yet been processed or issued, was satisfied as to jurisdiction based on the wife’s citizenship, found marriage proved, found grounds of irretrievable breakdown of the marriage proved and declared that there were no children to whom s.55A applied. The divorce was to become effective one month from the date of its pronouncement, i.e. on or about 11 November, 2011 being this Friday.
The proceedings were listed at short notice by a Registrar and upon

Mr Parks contacting the Court.
It is germane to note that Mr Parks resides in the Philippines and that arrangements had been made and communicated to him by email, by court staff, advising him of the fact that the matter was listed before the Court today at 9.30am and that he would be required to contact the Court at that time via the phone number provided to him. The Court has no ability to contact Mr Parks overseas.
The Application for Review on its face presents some difficulty as to its prosecution. It states as to the orders sought:
“I would like the court to ensure before divorce is granted, that Ms Parks settle the court ordered (sic) issued 17 April 2007, file number: FL028/070024, and interested paid in lieu of time waiting for payment.”
The difficulty that arises from that assertion, it being clear that the order was made in a State Local Court, is that the order is not before this Court. Accordingly, it is impossible to ascertain what has occurred with respect to it.
Further difficulties are manifested in the Application for Review, including:
(a)There is no proof of service of the Application for Review upon the wife, or indeed any notice to her of the existence of these proceedings, it being the responsibility of the Applicant both to attend to service and to prove it the Court; and,
(b) The Court’s jurisdiction in dealing with an Application for Divorce under s.48 is not dependant upon compliance with undisclosed orders made by State Local Courts and whether any such order is under the provisions of the Family Law Act 1975 or not is not apparent from the application for review.
Section 48 provides that an application under the Family Law Act 1975 for a divorce order in relation to a marriage should be based on the ground that marriage has broken down irretrievably. It then goes on to provide in sub-s.48(2):
“Subject to subsection (3), in a proceeding instituted by such an Application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the Application for the Divorce Order.”
Subsection 48(3) provides that:
“A divorce order shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.”
Section 55A provides an additional consideration for the Court prior to a divorce order becoming final and in circumstances where there are children of the marriage.
No other provision is contained within Part 6 of the Family Law Act 1975 dealing with the pronouncement of the divorce order to take account of the circumstances which are raised by the Application for Review, namely, the alleged non-compliance by the wife with an order made by another Court, the terms of which order are not before this Court.
Accordingly, the Application, on its face, must fail.
I am satisfied, accordingly, that I can and should deal with the Application in the absence of both parties pursuant to s.17A of the Federal Magistrates Act 1999, which provides for summary judgment. It indicates that:
“The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and,
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.”
Subsection 17A(2) provides for the reverse circumstance in the context where the wife is defending proceedings, although in this case as I have indicated it is unclear whether the wife even has notice of the Application, let alone has been served, and the Court is satisfied there is no reasonable prospect of prosecuting the Application.
Subsection 17A(3) indicates that the Court need not be satisfied that prosecution is hopeless or bound to fail for it to have no reasonable prospect of success, although as would be apparent from the above reasons, I am satisfied that it is indeed bound to fail as being ultra vires the considerations required of the Registrar or the Court.
For the sake of completeness, I also note that the power to deal with a divorce on a non-contested basis is a power delegated to a Registrar under s.102 of the Federal Magistrates Act 1999.
Section 104 provides a process of review from any decision made by a Registrar and accordingly I am satisfied that the Application is on its face properly before me. However, for the reasons suggested, I am satisfied that the Application could not succeed.
It is also relevant to note with respect to the proceedings that before the Application for Divorce could, in fact, be dealt with to conclusion, that it was necessary for the wife to have brought an Application for Substituted Service, and orders were again made by the Sessional Registrar in that regard. Affidavits of Service were filed in those proceedings deposing as to compliance with orders for substituted service, the husband having been served via the email address provided by him to this Court.
The matter was called today at 9.30 am and at that time the Court had not been contacted by the husband to prosecute his Application.
There has now been a further period of some twenty minutes awaiting the call from the husband prior to a commencement of the remainder of the list
The husband it would appear has attempted to contact the Court through the National Enquiry Centre to indicate difficulty in contacting the Court through the number provided. However the number provided to the husband is the telephone number for the phone service within the Court and the service has not rung.
In those circumstances, I am additionally satisfied that the Application should be dismissed for want of prosecution. I am satisfied that the husband has had the opportunity to participate in both the previous, substantive divorce proceedings and in the Application today and has not done so and, in the case of the original divorce proceedings, has offered not explanation for why he did not participate or seek to.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 1 December 2011