Underwood and Price (No.4)
[2008] FMCAfam 467
•11 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UNDERWOOD & PRICE (No.4) | [2008] FMCAfam 467 |
| FAMILY LAW – Date of effect of divorce order – special circumstances – no reduction or extension of period. |
| Family Law Act 1975, ss.55, 55A, 60B, 106B Administration and Probate Act 1958, s.91 |
| Applicant: | MR UNDERWOOD |
| Respondent: | MS PRICE |
| File Number: | MLC 13425 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 11 April 2008 |
| Date of Last Submission: | 11 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brown SC with Mr Dixon |
| Solicitors for the Applicant: | Glezer Lanteri & Associates |
| Counsel for the Respondent: | Ms Molyneux QC and Mr Magee QC |
| Solicitors for the Respondent: | Maria Barbayannis & Co |
ORDERS
The wife’s application for extension of the period pursuant to section 55(2)(a) of the Family Law Act 1975 is refused.
The husband’s application for a reduction of the period pursuant to section 55(2)(b) of the Family Law Act 1975 is refused.
The divorce order will take effect 1 month from 9 April 2008 in accordance with section 55(1)(a) of the Family Law Act 1975.
The Court declares that it is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the child K born in 1991.
Liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Underwood & Price is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 13425 of 2007
| MR UNDERWOOD |
Applicant
And
| MS PRICE |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The Court is satisfied that the husband wanting to die unmarried and his imminent death are special circumstances within s.55(2)(b) of the Family Law Act 1975 (the Act). Special circumstances are not limited to “rights” existing under the Act. Having found special circumstances, the Court must then consider whether those special circumstances justify the Court reducing the period at the expiration of which the divorce order will take effect or whether countervailing considerations mean that a reduction of the period is not justified.
The Court is satisfied that there is a real chance that if the divorce order takes effect immediately, the husband’s spouse and his daughter K, now 16, will suffer financial detriment as a result. The quantum is difficult to determine at present, but it may be significant. An action may, and the Court puts it no higher than “may”, be available to the wife under s.106B of the Act. If property is returned to the Trust it may not be distributed to the wife as she would not then be the “spouse”. An action may be available under s.91 of the Administration and Probate Act 1958. Again, the Court uses the word “may”, not “is”.
In all the circumstances, the Court is not satisfied that the wish of the husband to be divorced before his death and that his death is imminent, are special circumstances that justify the Court ordering a reduction of the period after which the divorce order will take effect. A reduction is refused.
The Court is not satisfied that the test in s.55(2)(a) for an extension of the period to be granted has been met. An extension of the period is refused.
Pursuant to s.55A(1) the Court declares that it is satisfied that the proper arrangements in all circumstances have been made for the care, welfare and development of the child K. The objects in s.60B do not limit the discretion in s.55A(1). No declaration is required in relation to adult child T.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 11 April 2008
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