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Price and Price

Price and Price

Case [2013] FCCA 1372 27 September 2013

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FEDERAL CIRCUIT COURT OF AUSTRALIA

PRICE & PRICE

[2013] FCCA 1372

Catchwords:
FAMILY LAW – Divorce – application for divorce – application contested – application for restitution of conjugal rights in India – consideration and application of ‘clearly inappropriate forum’ test – consideration and application of s.44 of the Family Law Act 1975 – consideration of whether ‘special circumstances’ exist – divorce order granted.

Legislation:
Family Law Act 1975, s.44

Family Violence Protection Act 2008
Hindu Marriage Act, 1955
Marriage Act 1961, s.5

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Gatto & Norton [2012] FMCAfam 1175
Henry v Henry (1996) 185 CLR 571
In the Marriage of Philippe (1977) 20 ALR 381
In the Marriage of Malyszko (1979) 35 FLR 186
Jess v Scott (1986) 70 ALR 185
Navarro & Jurado [2010] FamCAFC 210
Sankil & Sankil [2008] FamCAFC 205
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Applicant:

MR PRICE

Respondent:

MS PRICE

File Number:

MLC 1388 of 2013

Judgment of:

Judge Whelan

Hearing date:

21 August 2013

Date of Last Submission:

21 August 2013

Delivered at:

Melbourne

Delivered on:

27 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Chislett

Solicitors for the Applicant:

Fernandez & Johnson

Counsel for the Respondent:

Ms Swann

Solicitors for the Respondent:

Saundh, Singh & Smith Lawyers

ORDERS

A divorce order be made, such divorce order to take effect and thereby terminate the marriage on 28 October 2013.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1388 of 2013

MR PRICE

Applicant

And

MS PRICE

Respondent

REASONS FOR JUDGMENT

On 26 February 2013, the Husband MR PRICE (“the Husband”) filed an Application for Divorce in the Federal Magistrates Court (as it was then). On 5 April 2013, the Wife MS PRICE (“the Wife”) filed a Response to Divorce contesting the Application on three grounds:
·Jurisdiction – the Wife had instituted proceedings in India under s.9 of the Hindu Marriage Act 1955 (the “Hindu Marriage Act”) for Restitution of Conjugal Rights;
·Date of separation - the Wife contended that the date of separation was in mid-October 2012, not 21 February 2012 as contended by the Husband; and
·Non-compliance with s.44 of the Family Law Act 1975 (Cth) (“the Act”).

Background

The Husband was born in India [in] 1985. The Wife was born in India [in] 1987. The Husband arrived in Australia on a student visa in January 2007. Apart from visits to India to see his family, the Husband had resided in Australia since that time. The Husband is currently on a temporary working visa sponsored by his employer. The Husband has applied for permanent residence.
The Husband stated that since January 2010, his parents had been pestering him to get married. When the Husband was in India in

March 2011, his family introduced him to the Wife.…

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 Price and Price

Details

AGLC: PRICE & PRICE [2013] FCCA 1372
Case: [2013] FCCA 1372
Decision Date: 27 September 2013

CaseChat Overview and Summary

In the matter of *Price and Price*, heard before Judge Whelan, the parties sought a divorce order. The dispute concerned the date upon which the divorce order should take effect, thereby terminating the marriage.

The primary legal issue before the court was to determine the effective date of the divorce order.

Judge Whelan ordered that a divorce order be made, with the effect that the marriage would terminate on 28 October 2013.

Orders

Orders of the court

A divorce order be made, such divorce order to take effect and thereby terminate the marriage on 28 October 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

PRICE & PRICE [2013] FCCA 1372

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 15 of 15 shown

GATTO & NORTON
[2012] FMCAfam 1175 Para 9

…e’s evidence, she intends to stay in Australia. The Australian Court is clearly the appropriate forum. The Husband cited the case of Gatto & Norton [2012] FMCAfam 1175 in support of his submission.…
Navarro v Jurado
[2010] FamCAFC 210 Para 8

…The Wife cited the cases of Navarro & Jurado [2010] FamCAFC 210 and Sankil & Sankil [2008] FamCAFC 205 in support of her submission.…
MZYDG v Minister for Immigration and Citizenship
[2009] FCA 1338 Para 3

…The term ‘special circumstances’ or ‘special reasons’ is one frequently used in statute. In Jess v Scott (1986) 70 ALR 185, the Court considered a number of cases where the expression ‘special circumstances’ or ‘special reasons’ was used and concluded that the expression was intended to distinguish the case from the…
Sankil & Sankil
[2008] FamCAFC 205 Para 8

…The Wife cited the cases of Navarro & Jurado [2010] FamCAFC 210 and Sankil & Sankil [2008] FamCAFC 205 in support of her submission.…
Boscolo v Secretary, Department of Social Security
[1999] FCA 106 Para 4

…In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, French J (as he then was) referred to a number of authorities and concluded at [18] that: [18] The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is gener…
Henry v Henry
[1996] HCA 51 Para 2

…n Australia but contends that they both arise out of the parties’ marital relationship. The Wife relies on the following passage from Henry v Henry (1996) 185 CLR 571: If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the subs…
Secretary, Department of Social Security v Hodgson
[1992] FCA 510 Para 4

…urchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss sai…
Holpitt Pty Ltd v Varimu Pty Ltd
[1991] FCA 354 Para 4

…be "special" in relation to animals generally but " ... when you are speaking of poets, he may need to be a Milton": Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Burchett 1. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55 Para 3

…or vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. [9] [8] See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555. [9] Ibid.…
Minister for Community Services and Health v Chee Keong Thoo
[1988] FCA 54 Para 4

…r the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-262; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security…
Jess v Scott
[1986] FCA 473 Para 3

…The term ‘special circumstances’ or ‘special reasons’ is one frequently used in statute. In Jess v Scott (1986) 70 ALR 185, the Court considered a number of cases where the expression ‘special circumstances’ or ‘special reasons’ was used and concluded that the expression was intended to distinguish the case from the u…
Beadle v Director-General of Social Security
[1985] FCA 234 Para 4

…as spoken of it as having content which is " ... sufficiently understood not to require judicial gloss": Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally b…
Thomas v Commissioner of Taxation (Cth)
[1972] HCA 101 Para 4

…ey fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; larlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual…
Secretary, Department of Social Security v Hodgson
[1992] FCA 338 Para 4

…at does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter…
Hutchins v Commissioner of Taxation
[1996] FCA 201 Para 4

…fined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; larlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or differe…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
44 2 mentions (from Para 1)
Marriage Act 1961 (Cth)
5 2 mentions (from Para 8)
Family Violence Protection Act 2008 (Vic)
1 mention (from Para 11)