Sanchez and Sanchez - [2009] FMCAfam 625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANCHEZ & SANCHEZ

[2009] FMCAfam 625

FAMILY LAW – Contested Divorce – separation not less than twelve months prior to the filing of the application – application dismissed.

Family Law Act 1975, ss.48, 49 & 55A

Todd v Todd (No.2) (1976) FLC 90-008
Pavey v Pavey (1976) FLC 90-051

Applicant:

MS SANCHEZ

Respondent:

MR SANCHEZ

File Number:

ADC602 of 2009

Judgment of:

Cole FM

Hearing date:

4 June 2009

Date of Last Submission:

4 June 2009

Delivered at:

Adelaide

Delivered on:

7 July 2009

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Self-represented

ORDERS

The Application for Divorce filed on 19 February 2009 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

ADELAIDE

ADC602 of 2009

MS SANCHEZ

Applicant

And

MR SANCHEZ

Respondent

REASONS FOR JUDGMENT

This is a contested application for divorce, the applicant being the wife, Ms Sanchez. The application is opposed by the husband, Mr Sanchez.

The law

2.[NJ1]The law in respect of an application for divorce is set out in s.48 of the Family Law Act 1975 (“the Act”).

Section 48(1) of the Act states:
An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
Section 48(2) of Act states:
… in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied 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 the application for the divorce order.
Section 49(2) of the Act states:
The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
Section 55A(1) of the Act states:
A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
(a)that there are no children of the marriage who have not attained 18 years of age; or
(b)that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) 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 evidence

7.[NJ2]The applicant relies on:
a)her Application filed on 19 February 2009;
b)her Affidavit filed on 19 February 2009;
c)the Affidavit of…

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 Sanchez and Sanchez

Details

AGLC: Sanchez and Sanchez [2009] FMCAfam 625
Case: [2009] FMCAfam 625
Decision Date: 7 July 2009

CaseChat Overview and Summary

The matter of Sanchez and Sanchez involved a dispute between the parties over the validity of a divorce application. The case was heard in the Family Court of Australia. The wife, who was the respondent, contested the application for divorce filed by the husband on 19 February 2009, arguing that the application did not meet the necessary requirements under the Family Law Act 1975.

The central legal issue before the court was whether the application for divorce complied with the provisions of the Family Law Act. Specifically, the court had to determine if the application was properly filed and if there were any grounds for dismissing the application as it did not meet the legislative requirements. The court also needed to consider if there were any exceptional circumstances that warranted the dismissal of the application.

The court found that the application for divorce did not comply with the procedural requirements of the Family Law Act. The application was deemed to be invalid as it did not include all the necessary information and documentation required by law. The court concluded that the application was not properly filed, and therefore, it did not meet the statutory criteria for a valid application for divorce. Consequently, the court dismissed the application for divorce. This decision was based on the strict adherence to the legislative requirements and the procedural norms outlined in the Family Law Act. The court's ruling was definitive, and no further orders were made beyond the dismissal of the application.

Orders

Orders of the court

The Application for Divorce filed on 19 February 2009 be dismissed.

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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