West & West - [2024] FedCFamC2F 1333

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
West & West [2024] FedCFamC2F 1333

File number(s): DGC 817 of 2023

Judgment of: JUDGE JENKINS

Date of judgment: 1 October 2024

Catchwords: FAMILY LAW – Divorce – application to declare divorce void – no service of divorce application – the limited circumstances where a divorce order that has become absolute may be void or voidable – application dismissed

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 48, 113

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r. 2.33, 2.42, 2.43, 2.44

Cases cited:
Fox v Percy [2003] HCA 22

Miller & Miller [1983] FamCA 26

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 45

Date of hearing: 8 August 2024

Place: Dandenong

Counsel for the Applicant: Ms Teicher

Solicitor for the Applicant: Jessy Bhullar Lawyers

Counsel for the Respondent: Mr McIntyre

Solicitor for the Respondent: FCL Lawyers
ORDERS

DGC 817 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WEST

Applicant

AND:
MS WEST

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

1 OCTOBER 2024

Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 October 2024
THE COURT ORDERS THAT:
1.The husband’s applications filed 14 March 2023 and 5 April 2024 (insofar as they relate to the divorce) be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:

This matter came before me as an application by the husband seeking to declare a divorce order as void.
A divorce order was made on 28 October 2020. The applicant husband says he was never served with the wife’s application for divorce and was unaware that the divorce order was made. Furthermore, he says the parties had not been separated for a period of 12 months when the wife filed her divorce application.
BRIEF BACKGROUND
The parties were married in City B, Country C in 2005.
They have three children together, Ms D who is now 18 years old, X who is 17…

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 West & West

Details

AGLC: West & West [2024] FedCFamC2F 1333
Case: [2024] FedCFamC2F 1333
Decision Date: 1 October 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr. West sought to have a divorce he was granted in 2023 declared void, arguing that he had not been properly served with the divorce application. The matter was contested by Ms. West, the other party to the marriage. The court was tasked with determining whether the divorce could be declared void due to the alleged failure to serve the divorce application correctly.

The central issue before the court was whether the divorce order, which had become absolute, could be considered void due to the lack of proper service. The court examined the specific circumstances under which a divorce order that has become absolute could be deemed void or voidable. The court had to assess whether the absence of proper service met the stringent criteria necessary to render the divorce order invalid. Additionally, the court considered whether the applicant had acted promptly in raising the issue and whether any delay might have prejudiced the respondent.

The court found that the applicant had not demonstrated that the failure to serve the divorce application met the stringent criteria necessary to declare the divorce void. The court held that the applicant had not acted with due diligence in raising the issue of improper service, and the delay in bringing the application had prejudiced the respondent. As a result, the court dismissed the application to declare the divorce void. The court concluded that the divorce order remained valid and binding.

The court ordered that the husband’s applications filed on 14 March 2023 and 5 April 2024, insofar as they related to the divorce, be dismissed. The form of the order is subject to entry in the Court’s records, and any minor typographical or grammatical errors may be corrected, or a variation to the order may be recorded.

Orders

Orders of the court

DGC 817 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR WEST

Applicant

AND:

MS WEST

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

1 OCTOBER 2024

Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 October 2024

THE COURT ORDERS THAT:

1. The husband’s applications filed 14 March 2023 and 5 April 2024 (insofar as they relate to the divorce) be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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File number(s):	DGC 817 of 2023
Judgment of:	JUDGE JENKINS
Date of judgment:	1 October 2024
Catchwords:	FAMILY LAW – Divorce – application to declare divorce void – no service of divorce application – the limited circumstances where a divorce order that has become absolute may be void or voidable – application dismissed
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 48, 113 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r. 2.33, 2.42, 2.43, 2.44
Cases cited:	Fox v Percy [2003] HCA 22 Miller & Miller [1983] FamCA 26 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Whisprun Pty Ltd v Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	45
Date of hearing:	8 August 2024
Place:	Dandenong
Counsel for the Applicant:	Ms Teicher
Solicitor for the Applicant:	Jessy Bhullar Lawyers
Counsel for the Respondent:	Mr McIntyre
Solicitor for the Respondent:	FCL Lawyers

DGC 817 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WEST Applicant
AND:	MS WEST Respondent

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	1 OCTOBER 2024