Price and Underwood (No. 2) - [2008] FamCA 267

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

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…

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

Case: [2008] FamCA 267
Decision Date: 16 April 2008

CaseChat Overview and Summary

In *Price and Underwood (No. 2)*, the applicant sought a divorce from the respondent. The proceedings were before Watts J in the Family Court of Australia.

The primary legal issue before the court was whether to grant a divorce order, notwithstanding that the court was not satisfied that proper arrangements had been made for the care, welfare, and development of the parties' child. A further issue was whether to reduce the period at which the divorce order would take effect.

Watts J found that the husband was domiciled in Australia at the time of filing the application and that the parties were married in Melbourne in February 1986. The court found the marriage had irretrievably broken down, with separation occurring no later than 3 April 2007. The court declared that there was one child of the marriage, born in September 1991. Crucially, the court found circumstances justifying the divorce order taking effect despite the lack of satisfactory arrangements for the child.

Consequently, Watts J made a divorce order and declared that the divorce order would take effect at the rising of the court, pursuant to s. 55(2)(b) of the *Family Law Act*. Ms N Underwood was appointed as case guardian, and leave was granted for her solicitor to file an Application for Divorce. The Family Law Rules regarding special service of the application were dispensed with to allow the matter to proceed.

Orders

Orders of the court

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.

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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