Barnaby & Schimmell - [2008] FamCAFC 182

FAMILY COURT OF AUSTRALIA

BARNABY & SCHIMMELL

[2008] FamCAFC 182

FAMILY LAW – APPEALS – from decision of Federal Magistrate – DISSOLUTION OF MARRIAGE - APPLICATION FOR RECISSION OF DECREE NISI - Objection to jurisdiction/forum non inconveniens - Divorce proceedings commenced in another jurisdiction prior to proceedings in Australia - Errors of fact and law

FAMILY LAW - LITIGANTS IN PERSON - Requirements of Natural Justice and Procedural Fairness

FAMILY LAW - ADJOURNMENT APPLICATION - Inadequate and Insufficient Reasons or Failure to Give Reasons - s98A(1) Family Law Act 1975

House v The King (1936) 55 CLR 499

Pettitt v Dunkley (1971) 1 NSWLR 376

Taylor v Taylor (1979) FLC ¶90-674

Bennett v Bennett (1991) FLC ¶91-191

Graham v Graham (1991) FLC ¶92-243

Re F (Litigants in Person Guidelines) (2001) FLC ¶93-072

Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246

Corporate Affairs Commission v Transphere Pty Ltd (No 5) [2917/84] (unreported) Supreme Court of New South Wales 13 November 1987, per Young J

Evans v Bartlam [1937] AC 473 at 487

Maxwell v Keun [1928] 1 KB 645

Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32

F and C [2005] FamCA 573

Brittingham v Williams [1932] VLR 237

Hawkins v James [400041/90] (Unreported, New South Wales Court of Appeal, 13 February 1990)

APPELLANT:

Ms Barnaby

RESPONDENT:

Mr Schimmell

FILE NUMBER:

SYM 7986 of 2004

APPEAL NUMBER:

EA 55 of 2005

DATE DELIVERED:

27 November 2008

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ, Warnick and May JJ

HEARING DATE:

28 October 2005

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 April 2005

LOWER COURT MNC:

[2005] FMCAfam 417

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney

SOLICITOR FOR THE APPELLANT:

Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Adrian Twigg and Co

Orders

That the appeal be allowed.
The decree nisi granted on 22 April 2005 be rescinded.
That the husband’s Application for Divorce be remitted for re-hearing before the Federal Magistrates’ Court following the publication by the Full Court of reasons for their Orders.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 55 of 2005
File Number: SYM 7986 of 2004

Ms Barnaby

Appellant

And

Mr Schimmell

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Barnaby (“the wife”) against an order of his Honour Federal Magistrate Scarlett on 22 April 2005 granting a decree nisi in proceedings for the dissolution of the marriage between her and Mr Schimmell (“the husband”).
It was not in dispute that the parties both wanted to be divorced. However the wife objected to the divorce proceedings occurring in Australia. On 19 August 2004 she had filed for divorce in Germany. On 28 January 2005 the wife filed a Response Objecting to Jurisdiction to the husband’s Application for Divorce. It was argued on appeal that this apparent objection to jurisdiction also encapsulated a forum non inconveniens ground (implicitly if not otherwise an application for a stay of the Australian proceedings until the German proceedings were completed).
As a result of the wife’s divorce application being heard in Germany on 6 December 2005, during which time this judgment had been reserved, there was an urgent requirement for the production of orders so as not to nullify the parties’ appeal rights. As a consequence of the urgency, this Court made orders on 6 December 2005 which allowed the appeal in part: rescinding the decree nisi granted on 22 April 2005, remitting the husband’s divorce application for re-hearing, and providing both parties costs certificates in the matter. These are the Full Court’s reasons for those orders.
The date of separation was contested between the parties. The husband asserted that the parties separated on 4 August 2003 in his Application for Divorce filed 9 December 2004. The wife asserted that the parties separated on 4 August 2004 in her Amended Response not date-stamped, but apparently filed on 21 March 2005.
The wife sought an adjournment apparently by letter on both 19 April 2005 and 22 April 2005.
On 22 April 2005 Scarlett FM refused to grant the adjournment sought by the wife in the proceedings providing his reasons in a short written judgment[1] (in evidence in these proceedings). He then proceeded with the divorce application and granted a decree nisi. The wife filed a Notice of Appeal on 19 May 2005. She had filed a Notice of Address for service on 16 May 2005, ie after the divorce hearing.
[1] On 22 August 2005

The Grounds of Appeal

The Notice of Appeal filed by the appellant wife on 19 May 2005 contained five specific grounds of appeal. At hearing, counsel for the wife sought to rely on two only of those original grounds and sought leave to amend the Notice of Appeal so as to proceed on another four grounds. The grounds of appeal relied upon were that:
1.The learned Federal Magistrate made a material error of fact and an error in law in finding 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 Dissolution of Marriage (“the proceedings”).
…
5.The learned Federal Magistrate denied natural justice to the Appellant because by pronouncing the Decree Nisi in the absence of the Appellant, despite of the evidence of the reason for her absence sent by the Appellant to the Court in advance of the Hearing of the Application for the Dissolution of the Marriage on 22 April 2005, the Federal Magistrate did not ensure that procedural fairness was afforded to the Appellant, and failure to ensure a fair trial.
The further amended grounds of appeal are as follows:
6.The Federal Magistrate erred in failing to:
6.1grant an adjournment of the proceedings so as to enable the Appellant to participate in the same;
6.2provide adequate and sufficient reasons for declining to adjourn the proceedings;
6.3otherwise provide the Appellant with a proper opportunity to be heard in the proceedings;
thereby failing to afford the Appellant procedural fairness and denying the Appellant natural justice.
7.The Federal Magistrate erred in failing to:
7.1 have any or proper regard to section 98A(1) Family Law Act 1975; and
7.2 have regard to relevant considerations on the adjournment application including the prejudice to each party and that the Appellant was self-represented.
8.The Federal Magistrate erred in failing to hear and/or determine the Appellant’s Objection to Jurisdiction.
9.The Federal Magistrate erred in failing to provide adequate and sufficient reasons:
9.1 for finding the “ground of irretrievable breakdown of marriage proved” and,
9.2 so as to permit the material relied upon in the proceedings to be identified.
The appellant wife sought the following orders as provided in the Summary of Argument:
1.That the Appeal be allowed.
2.That the decree nisi entered on 22 April 2005 be rescinded.
3.That the Application for Divorce (and the Objection as to Jurisdiction) be remitted for re-hearing before the Federal Magistrates Court.
4.Costs.
The husband resisted the appeal and sought an order that the appeal be dismissed, that the decree nisi become absolute forthwith, and costs.

Further Evidence

There was a request by Counsel for the appellant wife to adduce three pieces of further evidence. The first item was an affidavit from Mr Tunn sworn 21 October 2005. He is a lawyer practicing in London. He had provided a letter of introduction for a German law expert. This affidavit was objected to and Counsel for the wife conceded that the affidavit would be of greater assistance if the matter were to be reheard, rather than on appeal.
The second item of evidence which Counsel for the wife sought to introduce was an affidavit of Ms Locke sworn 26 October 2005, attached to which was a translation of the judgment of the Oberlandesgericht Koblenz (Higher Regional Court of Koblenz) which overturned the decision of the Amtsgericht Saarburg (District Court of Saarburg) to suspend the divorce proceedings in Germany. This evidence was not objected to by the respondent husband and was admitted into evidence.
The third piece of further evidence was an affidavit of the German law expert, Mr Moss, referred to by Mr Tunn. This evidence had not been filed or served upon the respondent husband. Counsel for the respondent husband objected to the admission of this evidence on the basis of prejudice. Because of the affidavit’s late filing he had not been able to receive instructions from his client or to have an opportunity to cross-examine the German expert effectively if he needed to do so.
Counsel for the wife submitted that if the further evidence was not accepted, the appellant would be prejudiced and on that basis, sought an application for adjournment.
The Court refused the application to admit further evidence of Mr Tunn and Mr Moss, but accepted the affidavit of the translator with the decision of the German Court attached.
The application for an adjournment was also refused.

Background

For present purposes the factual background of this appeal can be stated briefly.
In November 1964 the appellant wife was born in Italy. She is now aged 43. The wife’s occupation is not clear from the material filed. At the time of marriage the wife worked as a sales agent. There is reference in the evidence before the Court that the wife’s work requires international travel. The respondent husband was born in December 1965 in Germany and is currently aged 42. The husband is a professional. The husband holds both German and Australian citizenship. The parties commenced cohabitation approximately six months prior to marriage and married in December 2000 in New South Wales. There are no children of the marriage.
At the time of hearing the husband was living in Switzerland and the wife was living in Italy. On the divorce application filed 9 December 2004, the husband had crossed a box stating that he “[r]egards Australia as his home”. The husband had also ticked the box stating that he wished the court to hear the application in his absence.
After the husband filed for divorce in Australia, the wife filed a Response Objecting to Jurisdiction on 28 January 2005. The grounds upon which the wife relied were that she had filed for divorce in Germany on 19 August 2004 (she noted that her application was to be heard within 12 months from the date of filing); that the parties spent the majority of their married life in Germany, not Australia; that the matrimonial home is in Germany; that the applicant is a German citizen living and residing in Switzerland; and that she had not been properly served with documents.
The matter was listed before a Registrar on 3 February 2005. Registrar Davis adjourned the proceedings because there was insufficient evidence about separation under the one roof. The husband filed a further affidavit,[2] and in response to that further affidavit the wife filed a form titled “Amended Response” and an affidavit.[3] In the Amended Response the wife opposed the application because: she disagreed that the parties had been separated for 12 months at the time of filing for divorce; she had already filed for divorce in Germany, and that her application was to be heard on 12 April 2005; the parties had primarily lived in Germany; the matrimonial home was in Germany; and the applicant was a German citizen.
[2] 3 February 2005
[3] 21 March 2005
The issue of service was no longer pursued and was not in issue in the appeal. The Amended Response did not specifically state that the appellant was objecting to jurisdiction or specifically raise forum non inconveniens arguments or seek a stay pending the completion of the German proceedings.
Prior to the hearing date on 22 April 2005, the respondent wife terminated her retainer with her former solicitors. On 19 and 22 April 2005 the Family Court at Parramatta received letters from the wife enclosing a medical certificate and stating that she was no longer represented but that she wanted to be present for the hearing on 22 April 2005 but that she could not presently attend.
The learned Federal Magistrate decided not to further adjourn the proceedings. He heard the application and granted a decree nisi.
The decision by a judicial officer to grant or refuse an adjournment is an exercise of discretion, which is not often interfered with on appeal. However for the reasons set out hereafter, we are of the view that, if the learned Federal Magistrate had properly considered the implications for the conduct of the hearing of the divorce application, (which he failed to do), in the context of the other findings which he at least impliedly made, he would have (and should have) granted the adjournment sought - however informally that may have been made.[4]
[4] The learned Federal Magistrate does not appear to have taken any point about the failure of the wife to have applied for the adjournment in a formal way.

The Judgment of the Trial Judge

The judgment of the Federal Magistrate is short and solely deals with the issue of the adjournment. The reasons for judgment, published 22 August 2005 state:
1.This is an application for divorce. There is no appearance by or on behalf of the Respondent wife. She has, however, filed a Response objecting to jurisdiction.
2.The wife has forwarded a letter to the Family Court, in the belief that the proceedings are to be heard in that court, dated the 15^th April 2005. The contents of that letter, so far as they are relevant, are:
The present (sic) to inform you that I have just decided to withdraw the authority I gave to Solicitor Pierce to represent me for the Divorce Opposition against Mr Schimmell because I don’t feel assisted well enough.
I wished to come to Australia to be present during the hearing […] but my health conditions do not allow me to fly[…] I enclose a doctor’s certificate proving my disease that I asked to be translated for you and sworn in front of Modena Court in Italy.
3.The medical report confirms that the Respondent is unable to travel […].
4.I accept the contents of the medical report. Nevertheless, I am not satisfied that I should adjourn the proceedings. The wife has chosen to withdraw her solicitor’s instructions and has not instructed anyone else to appear for her. Had she done so, I could have adjourned the matter to a suitable date and made directions for a defended hearing, had that been the desired course.
5.I propose to hear and determine the application.
It is clear from the Federal Magistrate’s judgment that he was aware that the wife had filed a response (in which she may be said to have objected to jurisdiction) that she no longer had legal representation, that she was unable to travel to Australia, and inferentially, that she wished to be present for the proceedings.

Appellate Principles

The principles governing appeals particularly about discretionary decisions may be briefly stated.
In Australian Coal and Shale Employees Federation v The Commonwealth,[5] Kitto J, at 627 described the restraint that an appellate court should take in respect of discretionary judgments as follows:
[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
[5] (1953) 94 CLR 621
In House v The King[6], Dixon, Evatt and McTiernan JJ stated at 504-505 that:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[6] (1936) 55 CLR 499
In Gronow v Gronow,[7] Stephen J stated at 519,
The constant emphasis of the cases is that before a reversal an appellant court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
[7] (1979) 144 CLR 513
The statement of principle from House v The King is supported by the decision of his Honour Kirby J in AMS v AIF,[8] who commented at 86-042 – 86-043 that:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
[8] (1999) FLC ¶92-852
Counsel for the husband referred to a number of authorities that make specific comment about interference with a discretionary decision in respect of an adjournment application. We think it unnecessary to discuss those references here, as the effect of those authorities is sufficiently summarised in what we have recognised in paragraph 24 of these reasons, namely that a decision to grant or refuse an adjournment is not often interfered with on appeal.

Grounds 6.2 and 9

In this matter the learned Federal Magistrate provided no reasons for granting the divorce, at least not in any written form. A consequence of the absence of reasons is that we do not know how or why the learned Magistrate proceeded and to what material he had regard. Grounds 6.2 and 9 of the wife’s grounds of appeal attack the adequacy of the reasons provided by the Federal Magistrate. We were invited to consider the Full Court’s decision in Bennett v Bennett[9]. In that case, the Full Court reviewed authorities on the subject, particularly those of the New South Wales Court of Appeal, including Pettitt v Dunkley,[10] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor[11] and Soulemezis v Dundley (Holdings) Pty Ltd.[12] In the latter case, McHugh JA (as he than was) discussed the fact that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for the provision of reasons serves at least three purposes: to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; to further judicial accountability; and to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future. We think it of significance to this appeal that there are no reasons given in relation to any proposed procedure, in the event the application for adjournment was refused.
[9] (1991) FLC ¶92-191
[10] (1971) 1 NSWLR 376
[11] (1983) 3 NSWLR 378
[12] (1987) 10 NSWLR 378

Meaning of “Undefended Hearing”

In this matter the learned Federal Magistrate provided no reasons for granting the divorce in any written form at least and his reasons for not granting the adjournment were within narrow compass and are set out previously in this judgment. The learned Federal Magistrate somewhat briefly but nevertheless adequately identified his reasons for refusing to grant the adjournment. In essence the learned Federal Magistrate determined that because the wife had not chosen anyone to appear for on her behalf then he would proceed to deal with the divorce application. Implicit in his reasoning is that he would not accept her application for an adjournment as a self-representing litigant but curiously would have done so at the request, he says, of someone appearing on her behalf (see paragraph 4 of his Honour’s reasons). It is implicit in the learned Federal Magistrate’s reasons that he does not accept that the wife’s illness or her absence from the country are reasons sufficient to grant the adjournment. It also appears to be implicit in his reasons that if he were to proceed he would do so on the basis on the evidence of the husband alone - that in effect it would be an undefended hearing.
Precisely what is meant by an “undefended hearing” is in itself a curiously uncertain concept. There are circumstances where parties receive due notice of the proceedings before the court and refuse to participate in any way.
However difficulties arise when a litigant fails to attend a hearing. As mentioned above, a litigant who expresses a disregard for the court’s proceedings should not be heard to complain if the matter proceeds in their absence. However the mere unexplained absence of a litigant may give rise to different considerations. Moreover, if the absence of the litigant is explained and the explanation is accepted (as it was here) the task of the trial Judge in deciding how to proceed is more difficult.
In this matter the learned Federal Magistrate was presented with material before him which he did not identify but nevertheless was clearly cognisant of. A response had been filed with an affidavit which, in its terms, joined issue on the fundamental question for consideration in the divorce – whether or not the parties had been separated for twelve months.
When considering therefore whether to grant the adjournment or not, the learned Federal Magistrate was faced with the potential difficulty of, if he were to proceed in the absence of the respondent/wife what notice or weight (if any) should be given to her formal response and (“possibly”) the affidavit filed by her.
In one sense if the learned Federal Magistrate were to refuse the adjournment and then to proceed to the hearing there would be no person present (he might reasonably expect) to tender any documents on behalf of the wife or to indicate to the court what documents she relied upon. Technically, therefore, it might be said, that if he did proceed in those circumstances the only evidence before the court would be that of the husband.
If he were to accept that the affidavit in response of the wife was appropriate evidence before him, he would be faced with the challenge that there would be two apparently contradictory pieces of evidence in the husband’s affidavit and the wife’s and that he would have no apparent way of distinguishing between them.
We should add that on the material before us on appeal it is apparent that there is nothing in the terms of either affidavit which would make it inherently unbelievable or cause a trial judge to disregard the evidence completely.
A trial judges’ task in proceeding in the circumstances (if these were validly found to have existed) where notwithstanding the physical absence of one of the parties there was contradictory evidence about a critical element of what had to be decided is very difficult indeed.
On the other hand, if the trial judge is proceeding in circumstances where he or she has determined that it is appropriate to do so with only one party present or represented before him or her and no contradicting evidence the situation is much simpler.
Whether or not the failure of a party to attend the court or to be represented on the day of the hearing has the effect of there necessarily being no evidence before the court from that party has been the subject of consideration at least inferentially in a number of decisions of this court.
In Graham v Graham,[13] an application for dissolution of marriage was transferred from a Registrar to the trial Judge because the Registrar believed that because the respondent had filed documents in the Registry disputing the date of separation, it was a defended matter and hence outside his jurisdiction.
[13] (1991) FLC ¶92-243 per Mullane J
A central question for the trial Judge was whether the matter became defended once a response is filed, irrespective of whether the respondent appeared at the hearing. His Honour, Justice Mullane determined that the decision to list proceedings as either defended or undefended will depend not upon which documents are filed at the Registry, but
on what transpires at the hearing - that is the evidence before the court and the submissions made. Where the respondent does not appear, there are no submissions made on his behalf, and there is nothing in the evidence at the hearing to establish that the proceedings are defended, they are clearly undefended. (at 78,650)
In Graham, the trial Judge stated that the judicial officer hearing the application must rely upon material in evidence at the hearing such as the documents which the wife had sought to rely upon, “and must not rely upon other material such as affidavits, letters or documents which are not put in evidence at the hearing”. He referred to O’Sullivan v O’Sullivan.[14]
[14] (1991) FLC ¶92-216
His Honour Justice Mullane was clearly of the view that unless someone was present at the court to, in effect, affirm reliance upon evidence, then that evidence should not be taken into account. This is an eminently practical and commonsense approach to the matter. A judge should be entitled to have the parties place before him those matters which they regard as appropriate for his determination of the issues between them. It should not be, and is not, the judges’ function to trawl through the court file or, even less appropriately, through the court’s correspondence file to determine what matters might or might not be relevant to the proceedings before the court. This is partially explained by questions of procedural fairness and the fact that if a judge were to rely upon material that the parties had not otherwise put before him then the parties themselves would not have had an opportunity to consider the “evidence” that the judge was relying upon, to make submissions about it or to call evidence in reply.[15]
[15] Brown v Pederson (1992) FLC ¶92-271
In this matter however, no such considerations could reasonably be said to apply. In his brief reasons for the judgment the learned Federal Magistrate made reference to a letter which he clearly took into account into his considerations. No complaint is made about the fact that he did so. The applicant knew or ought to have known because the documents had been filed in the court that the respondent had filed a response and an amended response and an affidavit. The learned Federal Magistrate had not brought into the proceedings unexpected or previously unrevealed documents or evidence.
It may be that a different result would occur if a party who had filed documents in relation to a court proceedings indicates to the court either by action or inaction that he or she wishes to have no further part in the proceedings and does not require or want the court to take any account of the documents or potential evidence filed or is indifferent to the result of whether or not that occurs. In such circumstances it would be appropriate to disregard any such documents filed. However in this case the respondent had filed material indicating that she opposed the application for divorce. She had reaffirmed her opposition by filing an amended response. In addition she had filed an affidavit which went to the heart of the matters for determination by the learned Federal Magistrate. She had indicated that she was unable to attend but wanted the matter adjourned so that she could attend.
In Abbott v Abbott,[16] the Full Court considered in great detail the nature of an undefended hearing in the context of an application for the dissolution of marriage. In that case, the husband had filed an application seeking that the wife’s application for dissolution for marriage be dismissed on the basis that Parliament lacked the power to create the Family Law Act 1975 and that s 116 of the Constitution prohibited the exercise of any such power. After considering the authorities, the Full Court determined that,
…in ordinary circumstances it would be open to a respondent simply to put the applicant to proof of the components of his or her claim. Such a proceeding may be properly described as a “defended” proceeding or at least as not “undefended”. On the other hand, where what a respondent does is to raise issues in defence to the claim which issues are unrelated to the components of that claim or the relief sought, it is not and cannot be described as a defended proceeding.[17]
The Court then went on to note that,
[t]he components of an application for dissolution of marriage (other than the formal matters relating to marriage, jurisdiction etcetera) are the separation of the parties for a period in excess of twelve months and the question of the likelihood or otherwise of a reconciliation. If a respondent puts either of those issues in contest or makes it clear that he (sic) requires the applicant to prove these matters the proceedings would be defended.[18]
[16] (1995) FLC ¶92-582
[17] (at 81,774)
[18] (at 81775)
In those circumstances it seems to us that it would have been incumbent upon the learned Federal Magistrate to have considered that he may have had a serious difficulty in proceeding in disregard of the documents filed by the respondent. It is not necessary for the purposes of this decision for us to make a determination about whether the statement of the law referred to above in Graham v. Graham is accurate in all circumstances. It is enough, for the purposes of this decision, that we should indicate that the learned Federal Magistrate, if he had had time and had reflected upon the matter, ought to have considered the efficacy or even the validity of his proceeding without an adjournment in the light of all of the relevant facts. That he did not address those issues is in our view an appealable error.
Moreover, although his Honour, the learned Federal Magistrate, has not provided any reasons for his determination that he should grant a decree nisi, to some extent the validity of his Honour’s determination is not necessary for our decision although, as indicated, the absence of reasons for the grant of the decree deprives us of an opportunity of knowing how the learned Magistrate proceeded, why he so proceeded and to what evidence he had regard. His Honour should have, in considering the adjournment, firstly considered the course of proceedings if the adjournment was to be refused and secondly, even if concluding that it was open to him to proceed on the husband’s material alone, given the harshness of that result on a person self represented and who he accepted wished to take part in the proceedings, who claimed in a plausible way that she was unable to do so because of illness and absence from the country and to whom he would have granted the adjournment if she was represented, he should have, in the proper exercise of his discretion, granted the adjournment. Even if we were to accept that his Honour’s determination that a person professing to be self-represented, who wished to take part in the proceedings and claimed in a plausible way that she was unable to do so because of illness and absence from the country, did not compel an adjournment; the difficulty, if not impossibility, of making a determination in the proceedings if in fact the material filed on behalf of the wife were to be used, should have meant that an adjournment was not only desirable but essential. His Honour’s failure to grant that adjournment alone means that the subsequent proceedings were flawed, irrespective of how he conducted those proceedings, and that accordingly the decree nisi should be rescinded and the matter remitted for further hearing.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 27.11.08