Rourke and Rourke

[2014] FamCA 1248

FAMILY COURT OF AUSTRALIA

ROURKE & ROURKE [2014] FamCA 1248

FAMILY LAW – DIVORCE - Divorce order

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

APPLICANT: Mr Rourke

RESPONDENT: Ms Rourke

FILE NUMBER: CAC 1317 of 2013

DATE DELIVERED: 28 January 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 28 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rourke represented himself

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Breen

SOLICITOR FOR THE RESPONDENT: McDonough & Breen Solicitors

Orders

1. I pronounce a divorce order in relation to the marriage of the parties, which will become finally effective in one month’s time. 

2. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rourke & Rourke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1317 of 2013

Mr Rourke

Applicant

And

Ms Rourke

Respondent

REASONS FOR JUDGMENT

1. In this matter I find that the parties were married in the Republic of Ireland in 1992.  I find further that there are two children of the marriage, who are relevant to these proceedings, namely T, born in 1997, and C Rourke, born in 1999. 

2. I am satisfied in this matter that irrespective of whether service has been affected in accordance with the rules of this Court, that the respondent has had notice of these proceedings.  This is, at least, in part evidenced by the appearance by telephone on two occasions now of Mr Breen, who represents her in the Republic of Ireland.  To that extent I am prepared to dispense with any rules that may be necessary to enable the matter otherwise to proceed. 

3. I should indicate that I am satisfied in this matter that this Court has jurisdiction in relation to the application for divorce by Mr Rourke, by reason of the fact not that he is an Australian citizen, nor that he is domiciled in Australia, because his immigration status is at least uncertain at this point, but that he has been ordinarily resident in Australia, notwithstanding the periods he was away for short times during the relevant period and was so for a period of 12 months immediately preceding the filing of his application for divorce.

4. In this matter I find that the parties have been separated for a period of not less than 12 months and in accordance with the provisions of the Act, that this would constitute the irretrievable breakdown of their marriage.  I am satisfied that the separation on the part of at least one of the parties, and certainly on the case of Mr Rourke, since the date nominated by him for separation, which was 20 April 2012, when he left Ireland to come to Australia, was with the intention of bringing the marriage to an end.

5. So far as the children are concerned, the Act requires that I should either make a declaration that I am satisfied that proper arrangements have been made in all circumstances for their care, welfare and development, or consider whether the divorce might be made notwithstanding that I am not so satisfied.  In this matter I am not so satisfied, given the pending proceedings in Ireland and the difficulties that are associated with those, and the fact that there is no financial support being paid for the children by Mr Rourke, irrespective of whether or not it is his fault that is the case. 

6. However, it seems to me that there is no useful purpose to be served by postponing the divorce decree coming into effect by reason of my failure to be so satisfied.  And in the circumstances I am prepared to say that there are circumstances by which the divorce order should have effect, even though the Court is not satisfied that such arrangements have been made.  And I pronounce a divorce order in relation to the marriage of the parties, which will become finally effective in one month’s time.  The matter is removed from the pending cases list. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 28 January 2014.

Associate:  H. Marsh

Date:  24 October 2014