Wilson and Wilson - [2010] FMCAfam 435

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON & WILSON

[2010] FMCAfam 435

FAMILY LAW – Divorce Application – date when marriage said to have broken down irretrievably.

Family Law Act 1975, pt.VI, ss.48, 49

In the Marriage of Todd(No.2) (1976) 1 Fam LR 11,186; (1976) FLC 90-008
In the Marriage of Pavey (1976) 1 Fam LR 11,358; (1976) FLC 90-051
Aitken & Deakin [2010] FMCAfam 35

Briginshaw v. Briginshaw (1938) 60 CLR 336

Applicant:

MR WILSON

Respondent:

MS WILSON

File Number:

NCC 1667 of 2009

Judgment of:

Lapthorn FM

Hearing dates:

5 February & 8 April 2010

Date of Last Submission:

8 April 2010

Delivered at:

Newcastle

Delivered on:

6 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Counsel for the Respondent:

Ms Elbourne

Solicitors for the Respondent:

Burke Elphick & Mead Lawyers

ORDERS

The Application for Divorce filed 15 July 2009 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC 1667 of 2009

MR WILSON

Applicant

And

MS WILSON

Respondent

REASONS FOR JUDGMENT

Introduction

On 15 July 2009 Mr Wilson (the husband) filed an application seeking a divorce order in relation to his marriage to Ms Wilson (the wife).
The wife says that they had not been separated for 12 months by the time the husband filed his application and therefore his application should be dismissed.
In the application the husband says the parties separated on 11 July 2008. The wife in her response says that it was not until 18 January 2009 that they separated.

Evidence

The husband relied on his affidavits filed 15 July 2009 and

1 September 2009 along with the affidavits of:
a)Mr T filed 15 July 2009;
b)Ms W filed 1 September 2009; and
c)Mr L filed 12 February 2010.
The wife relied on her affidavit filed on 25 August 2009.
The hearing was heard over two days on 5 February 2010 and 8 April 2010. During the hearing the husband tendered three documents being bank and credit card statements.
After having observed the parties give their evidence I was left with the impression that neither of them had an accurate recollection of the events surrounding the deterioration and collapse of their relationship. Both parties were adamant in maintaining their view of when separation occurred although the husband gave a number of different dates. The husband presented his evidence in a forthright way but was at times argumentative and angry. I warned the husband on at least one occasion to not argue and to answer the questions appropriately. The need to warn a solicitor of this requirement was disappointing. Whilst I accept that family law disputes are emotional for parties even if they are officers of the court it remains unfortunate the husband was unable to remain respectful in the delivery of his evidence at times. The wife was also forthright in the way she…

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 Wilson and Wilson

Details

AGLC: Wilson and Wilson [2010] FMCAfam 435
Case: [2010] FMCAfam 435
Decision Date: 6 May 2010

CaseChat Overview and Summary

The matter before the court involved the Wilsons, a married couple, who had filed an application for divorce on 15 July 2009. The primary dispute centred on the validity of the application and whether the court had the jurisdiction to proceed with the divorce proceedings. The case was heard in the Family Court of Australia. The legal issues at hand were whether the application met the formal requirements for a divorce application and if there were any procedural or jurisdictional impediments to the court processing the application.

The court examined the application to determine if it complied with the necessary legal formalities and if there were any procedural errors that would render the application invalid. The court also considered whether it had the jurisdiction to hear the divorce application and whether any jurisdictional issues could prevent the divorce proceedings from moving forward. Upon review, the court found that the application did not meet the formal requirements, leading to the dismissal of the divorce application.

The court concluded that the application for divorce was flawed due to non-compliance with the formal requirements. Additionally, the court found that it lacked the jurisdiction to process the application as it stood. Consequently, the court dismissed the application for divorce. The dismissal was based on the procedural deficiencies and jurisdictional issues identified during the court's review. The orders made by the court were clear and straightforward, with the primary order being the dismissal of the application for divorce filed on 15 July 2009.

Orders

Orders of the court

The Application for Divorce filed 15 July 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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