Price & Underwood (Divorce Appeal)

FAMILY COURT OF AUSTRALIA

PRICE & UNDERWOOD (DIVORCE APPEAL) [2009] FamCAFC 127

FAMILY COURT – APPEAL – DIVORCE – Whether the trial Judge erred in allowing a case guardian to bring an application for a divorce order – Where the suitability of the case guardian was in question – Whether the trial Judge erred by not considering the implications of making a divorce absolute order – Whether the trial Judge erred by ordering that the time between the order nisi and absolute be abridged – Whether the trial Judge erred by not granting the wife an adjournment to respond to the divorce application – Whether the trial Judge erred in not allowing the wife’s application at trial to adduce further evidence with respect to the divorce application – Whether the trial Judge erred in his findings of fact with respect to the date of separation and the findings in relation to arrangements for the child – Whether the trial Judge erred in law by dispensing with the Family Law Rules 2004 including 1.12, 5.12 and 6.09

FAMILY LAW – APPEAL – DIVORCE – Case guardian – Whether a case guardian can bring an application for divorce on behalf of a person with a disability – Whether the case guardian was properly appointed in accordance with the Family Law Rules 2004 (“the rules”) – per Boland & Ryan JJ – Part 6.3 of the rules is of general application – A person who is a manager of the affairs of a party suffering a disability including a person so appointed for the purposes of State or Commonwealth law will qualify, subject to compliance with the rules, to be a case guardian – The rules provide a case guardian can start a case for a person under a disability - A case guardian may bring an application for divorce but such an application will be nugatory unless the case guardian can satisfy the Court that the applicant, whom the case guardian represents, had the requisite intention to bring the marriage to an end and that the marriage has irretrievably broken down – Where husband’s daughter held Power of Attorney – No error by trial Judge in permitting case guardian to bring application for divorce – Where trial Judge found requisite intention to bring marriage to an end and irretrievable breakdown of marriage proved.

DIVORCE - Whether an appeal can be brought against a divorce order which has become final – per Boland & Ryan JJ – s 93 Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final – Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void.

Whether the trial Judge properly exercised his discretion in making the alternate declaration under s 55A(1)(b)(ii) of the Act that the divorce should become final notwithstanding proper arrangements had not been made for a child under the age of 18…