Price and Underwood (No. 2)
[2008] FamCA 267
•16 April 2008
FAMILY COURT OF AUSTRALIA
| PRICE & UNDERWOOD (NO. 2) | [2008] FamCA 267 |
| FAMILY LAW – DIVORCE |
| APPLICANT: | MS N UNDERWOOD as Case Guardian for MR UNDERWOOD |
| RESPONDENT: | MS PRICE |
| FILE NUMBER: | MLC | 13425 | of | 2007 |
| DATE DELIVERED: | 16 April 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 16 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Brown, SC |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Molyneux, QC |
| SOLICITOR FOR THE RESPONDENT: | Maria Barbayannis & Co |
Orders
Ms N Underwood be appointed as case guardian
Leave be granted to the solicitor for the case guardian to file an Application for Divorce in court.
The Family Law Rules in relation to special service of the Application for Divorce, are dispensed with, so that the divorce application may proceed before me today.
FINDINGS
The Husband is domiciled in Australia at the date of filing of the application for divorce.
I find that the parties were married at Melbourne in February 1986.
I find that the ground that the marriage has broken down irretrievably proved based on a separation date not later than 3 April 2007.
ORDER
I make a divorce order.
DECLARATION AND ORDER
I declare that there is one child of the marriage K born … September 1991 and I find that there are circumstances by reasons of which the divorce order should take effect even though the court is not satisfied that proper arrangements have been made for the care, welfare and development of that child.
ORDER
Pursuant to s.55(2)(b) Family Law Act I reduce the period at the expiration of which the divorce order will take effect so that the divorce order takes effect at the rising of the court and for that purpose the court now rises.
IT IS NOTED that publication of this judgment under the pseudonym Price & Underwood is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13425 of 2007
| MR UNDERWOOD |
Applicant
And
| MR PRICE |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Appointment of Ms N Underwood as Case Guardian
Ms N Underwood has made an oral application to be appointed as case guardian for the purposes of conducting an application for divorce on behalf of the husband, Mr Underwood. On 18 May 2007 the husband provided to Ms Underwood an enduring power of attorney. The power of attorney authorises Ms Underwood to do on behalf of the husband anything he may lawfully authorise an attorney to do. It has no condition or limitation and endures even after the husband becomes legally incapable. Senior Counsel for the wife tells me that the husband has been unconscious since Monday. I am satisfied Ms Underwood is a person who has been appointed to manage the affairs of the husband. Senior Counsel for the wife submits the person holding a financial enduring power of attorney does not have the required standing to make an application for divorce. I find that is not so.
The application for Ms Underwood to be appointed as case guardian is, in the first instance, based on Rule 6.10(2) Family Law Rules. Ms Underwood has filed an affidavit sworn 14 April 2008 and a notice of address for service. Her affidavit says that the husband is terminally ill and has, on medical advice provided to her, up to three days, to live. Ms Underwood consents to being appointed as case guardian. Counsel for the wife submits that the wife wishes time to make a response including to seek to have this enduring power of attorney revoked in another place. In my view it is not appropriate to delay the matter. Ms Underwood cannot proceed with the proposed application for divorce in the event her father dies. Ms Underwood has filed the necessary documents under Rule 6.10(2) Family Law Rules and accordingly is taken to be appointed as the husband’s case guardian and can pursue the husband’s application for divorce.
Application for Divorce
Given the husband’s imminent death, I have granted leave for the case guardian to file an Application for Divorce in Court and I have dispensed with the Family Law Rules in relation to special service of the Application for Divorce, so that the divorce application may proceed before me today. That divorce application asserts a date of separation which is controversial. The date asserted in that application is October 2005. Senior Counsel for the wife said that the husband told the wife on 3 April 2007 that he “wished a decree nisi”. What I have been told from the bar table and is that up until 9 April the wife conceded and agreed to a date of separation which was 3 April 2007. I am told, without demur from Senior Counsel for the wife, that there was a finding previously made by the magistrate. The wife agreed to the date of 3 April 2007 and that before the Full Court yesterday that date was not put in issue by the wife.
Ms Molyneux, in preliminary discussions with me, indicated that the wife now might wish to assert some later date, being October 2007 but that was not the subject of submission by her when she was invited by me to make submissions about the ground in the Application for Divorce, in response to Mr Brown’s submissions. At that time, the only submission that Senior Counsel for the wife made that would prevent me from proceeding to make a divorce order today was on the basis that proper arrangements had not been made for the child of the marriage, K, who was born in September 1991.
A separation can be brought about by the unilateral action or conduct of one only of the parties (s.49(1) FLA). The wife conceded before me that the husband took such an action on 3 April 2007. I consequently find that the ground that the marriage has broken down irretrievably proved based on a separation date not later than 3 April 2007.
The wife did not raise any issue under s.55A FLA before the Federal Magistrate or the Full Court in the proceedings relating to the previous divorce application, but seeks to do so in this application.
Section 55A(1) provides:
That a divorce order in relation to a marriage does not take effect unless the Court has, by order, declared that it is satisfied that either proper arrangements in all the circumstances have been made for the care, welfare and development of a child under the age of 18 or that there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have been made.
The arrangements referred to in s.55A(1) for a child of K’s age, would normally relate to obligations a parent had to pay child support. Those obligations terminate upon the death of a parent. The husband’s death is imminent.
I am told that there is a section 79 application on file that has been filed by the wife. The Court therefore already has jurisdiction to make whatever order the Court believes is just and equitable by way of alteration of property interests for the benefit of a child of the marriage. Notwithstanding that, I am told by Senior Counsel for the wife that the wife does not concede proper arrangements have been made by the husband for K. In those circumstances I will consider the alternate declaration.
The exceptional circumstances in this case are the imminent death of the husband. In my view those circumstances are a powerful reason why I should make the alternate declaration under s.55A(1)(b)(ii).
Accordingly, I make the following findings in this case. I find that the husband, was domiciled in Australia at the time the application was filed. I find the marriage between the husband and wife at Melbourne in February 1986 proved. I find that the ground for irretrievable breakdown of marriage is proved on the basis 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 this application for divorce based on a separation date of 3 April 2007. I declare that there is one child under the age of 18, K, born in September 1991 and I declare that there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that proper arrangements have been made for her welfare and development.I make a divorce order as sought.
Application under s.55(2)(b) FLA
An application has been made by the case guardian under s.55, sub-s(2)(b) for an order that the ordinary time, which would be one month, for the divorce order to take effect be reduced until the rising of the Court. The one month period is, historically in the Act, to guard against collusion of the parties in relation to the date of separation, or some other fraud relating to the divorce application or to provide a last minute opportunity for reconciliation. On what I have heard today, none of those matters are of relevance. Senior Counsel for the wife asked that the one month period remain, notwithstanding the husband will die in that time and her submission is that for collateral financial reasons I should not accede to the application for shortening of time because that would affect other rights that she says the wife has in respect of other relief which the wife seeks.
I however am dealing with the divorce application today. It seems conceded that the husband has expressed a wish to die an unmarried man, although Senior Counsel for the wife contends that the husband’s motivation for this wish is unclear. It seems that his death is imminent. As Mr Brown points out, Ms N Underwood’s affidavit saying her father had up to three days to live was sworn on Monday. It is now lunch time on Wednesday. If I do not accede to the application and the husband dies before the divorce order takes effect, then pursuant to s.55, sub-s(4), the divorce order that I have made has no effect. I do not accept the submission made by Senior Counsel for the wife that no appeal is possible if an order is made under s.55(2)(b). Consequently, I make an order reducing the time for the divorce order to take effect so that the effect of the divorce order will be operational upon the rising of the Court and for that purpose the Court now rises.
I ask the recording service to record the time that I have just made that order.
The time is 1.18 pm.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 18.4.08
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