Wandin and Wandin

[2008] FamCA 365

FAMILY COURT OF AUSTRALIA

WANDIN & WANDIN [2008] FamCA 365

FAMILY LAW – ORDERS – Discharge of orders from 1992

Family Law Act 1975 (Cth)

APPLICANT: Mr Wandin

RESPONDENT: Mrs Wandin

FILE NUMBER: MLC 2463 of 2008

DATE DELIVERED: 26 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

Orders

1. That the husband have leave to proceed this day in the absence of any appearance by or on behalf of the respondent wife.

2. That paragraphs 4 and 5 of the orders made on 7 October 1992 be forthwith discharged.

3. That the reasons for judgment this day be transcribed and be placed upon the Court file.

4. That all outstanding applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

5. Liberty to apply on short notice.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2463 of 2008

MR WANDIN

Applicant

And

MRS WANDIN

Respondent

REASONS FOR JUDGMENT

1. This is an urgent application brought by the husband in the duty list this morning.  It was filed on 18 March 2008.  I propose to treat a pro forma document affidavit of service, which has been sworn by the husband at T on 20 March 2008 before the officer in charge of the T police with a loose registered post customer receipt, as evidence sufficient to say that the respondent has been served with the proceedings.  I will mark as exhibit A the document which is called Service Kit, inside of which is the registered post customer receipt, and I will direct that that exhibit remain on the court file. 

2. In 1992, Registrar Harold made an order by consent of the husband and his then wife relating to property proceedings.  There are really only two significant paragraphs of that order.  The first paragraph is number 4 which was an injunction precluding the husband from leaving the Commonwealth of Australia; the second is paragraph 5 which directed that the husband’s passport remain deposited with the registrar of the court until further order. 

3. The following year, and specifically on 11 October 1993, the parties again reached a compromise and in doing so filed minutes which ultimately became court orders made by a registrar.  Those orders suspended paragraphs 4 and 5 of the orders that I have just mentioned.  The wording of the order is "temporarily set aside" but it is clear that what the parties intended was to suspend rather than discharge the orders.  That conclusion is obvious from paragraph 3 of these orders which says that upon the return of the husband to Australia, he was to deliver his passport to the Melbourne registry where it was to remain until further order of the court. 

4. The husband has told me that that passport ultimately expired and he got a new one and nothing was ever done about serious compliance with that order.  The basis behind the order in 1992 seems to have been that the husband owed his then wife the sum of $15,000 by way of property settlement and a further sum of $5200 for costs.  The husband has told me today under oath that both of those obligations have been fulfilled and he has travelled backwards and forwards on his most recent passport without any interference.

5. The unusual feature is that he served his former wife by post.  He tells me that he has spoken to her and she expressed no interest in the proceedings, which is probably not surprising.  The former wife works in Hobart and, according to the husband, has expressed the view that she has no objections to the orders being made. 

6. Notwithstanding the fact that the orders seem to have originally related to financial matters, the husband had married again and for the last 13 or so years has been responsible for a child of his second marriage, and the wife in those proceedings was sufficiently comfortable about what the husband was doing to enable him to get a passport only a few days ago for that child.  Accordingly, there does not seem to be any real issue that requires the court to restrain the husband from being able to move freely in and out of the Commonwealth, and certainly nothing to prevent him from having access to an Australian passport.

7. The basis behind the application is that the husband married for a third time and sadly his wife died.  She has been cremated and he has a desire to take her ashes back to the Philippines to the extent that he has booked a plane in a few days' time and it would be rather unfortunate if the order made in 1992, still extant, precluded him from carrying out what was otherwise a sensible matter.

8. I am satisfied that this is a case where there is no longer a need for the orders of 1992 and 1993 to remain and I am satisfied that although the first wife has not said anything, written anything or attended the court today, she ought have no basis any longer for objecting to the discharge of the order.  Insofar as she may have some unsatisfied order for financial matters, I note that there has been no action on this file since the orders that I mentioned in 1993.  I am satisfied in the circumstances that it is appropriate to discharge the orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  7 May 2008