Black and Black

[2007] FamCA 469

FAMILY COURT OF AUSTRALIA

BLACK & BLACK [2007] FamCA 469

FAMILY LAW - APPEAL – Divorce – Rescission of decree – Appellant wife’s application to rescind divorce dismissed – Appeal asserted that the Federal Magistrate did not offer assistance to guide her through the application – No error in the manner which the Federal Magistrate dealt with the matter procedurally or the conclusion that he reached as a matter of law – Further, there are no appropriate bases for rescission of the divorce under section 58 – Appeal dismissed – Divorce to take effect immediately

Family Law Act 1975 (Cth)

APPELLANT: MS BLACK

RESPONDENT: MR BLACK

FILE NUMBER: MLM 6758 of 2006

APPEAL NUMBER: SA 6 of 2007

DATE DELIVERED: 12 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 12 April 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 15 December 2006

LOWER COURT MNC: [2006] FMCAfam 724

REPRESENTATION

COUNSEL FOR THE APPELLANT: R Teicher

SOLICITOR FOR THE APPELLANT: Nanscawen Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The appeal is dismissed.

2. The divorce order made by Riethmuller FM on 17 November 2006 take effect from this day.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Kay delivered this day will for all publication and reporting purposes be referred to as Black and Black.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number:  SA 6 of 2007
File Number: MLM 6758 OF 2006

MS BLACK

Appellant

And

MR BLACK

Respondent

REASONS FOR JUDGMENT

1. This is an appeal against the dismissal of an application by Burchardt FM on 15 December 2006.  That was the appellant wife's application seeking to rescind the divorce decree that had been granted by Riethmuller FM on 17 November 2006. 

2. At both sets of proceedings the parties were self-represented. Burchardt FM indicated that he was not satisfied that the appellant had demonstrated any of the bases upon which he could rescind a decree those matters being contained in s 58 of the Family Law Act 1975 (Cth) (“the Act”) that provides

   If a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney-General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re-heard. 

   Burchardt FM indicated that he was not so satisfied and accordingly dismissed the application.

3. The appellant asserts in her notice of appeal in the general sense, that there has been an error based on the following five grounds. 

   1The Federal Magistrate erred in law in that he held the Application for Rescission of Divorce, which was filed 12 December 2006 be dismissed. 

   I would comment that on the face of it, that ground does not disclose what it is that the complaint is about and is not a basis of itself a ground of appeal.

   2The Federal Magistrate should have held that the Application for Rescission of Divorce be granted. 

   Again on the face of it that of itself does not assist me in determining what the basis of the appeal is.

   3The Federal Magistrate erred in law in that he failed to take into account relevant considerations. 

   They are not particularised in the grounds of appeal and I have asked counsel appearing for the appellant this morning to enlarge on those and I will return to that shortly.

   4The Federal Magistrate erred in law in that he took into account irrelevant considerations. 

   There has been no attempt to demonstrate to me what those irrelevant considerations were in these proceedings.

   5The Federal Magistrate erred in law in that he failed to hear viva voce evidence from the Appellant concerning the grounds for her Application for Rescission and in so doing denied the Appellant natural justice. 

   I should comment that no application was made by her to hear viva voce evidence.  She sought to rely on affidavit material before the Federal Magistrate and he indicated that the affidavit material did not on the face of it disclose a basis for rescinding the divorce order.

4. I think it is important by way of background to understand what had occurred before Riethmuller FM to determine whether there is some substantive issue here that needs to be determined between the parties, whether somewhere in the process there has been some miscarriage of justice. 

5. The proceedings before Riethmuller FM commenced with the magistrate asking the husband, "What is the issue between the two of you?"  The husband responded, "I just wanted a divorce for a long time and she is rejecting it all the time.  Time to put in something." 

6. The Federal Magistrate then turned to the wife and said, "Ms [Black], why is it that he is not entitled to a divorce?"  She then answered complaining about some financial issues between the parties and some litigation in the Supreme Court concerning moneys that the husband had received from some settlement through the professional bodies - said to be the professional standards.  To which the Federal Magistrate responded, "All right.  So there’s no dispute you have been separated for divorce; it’s about whether or not he should pay you the money in the other court case.  Is that right?"  Ms Black then went on to discuss the issue of the money without responding directly to the question.

7. Subsequently the issue was returned to, with the magistrate asking the following:

   HIS HONOUR:          Ms [Black], how long since the two of you have lived together as man and wife? 

   MS [BLACK]: We have been separated, but the case was going from ‑ ‑ ‑

   HIS HONOUR:          But how long have you been separated?

   MS [BLACK]: 92. 

   HIS HONOUR:          92. 

   MS [BLACK]: Yes.  We have common interests in the (indistinct) proceeding which we were proceeding, your Honour.

   HIS HONOUR:          Just listen to me for a moment,

   MS [BLACK]: Sorry.

   HIS HONOUR:          For the purpose of granting a divorce, all he has to show is that he has been separated from you for more than 12 months.  On everybody's version you have been separated a lot longer than a year.

   MS [BLACK]: Yes.

   HIS HONOUR:          So he is entitled to a divorce, unless I exercise some discretion not to grant a divorce.  I’m not aware of any cases where a judge or federal magistrate has refused a divorce because there’s money issues.  It’s open to you to bring claims for money issues on property issues and proceedings in this court, and we will deal with that.  There is a duty lawyer across the corridor, if you want to see the duty lawyer about that.

   MS [BLACK]: Yes, your Honour.

   HIS HONOUR:          But if that's the only issue about what happens about the money, I would be inclined to grant the divorce now.

   MS [BLACK]: No, he has slept with me on - I have written the date - end of May this year, four days.  He used me last year badly, because the solicitor had paid the money all to him because he had given all false information and documents to the solicitor, and then the solicitor gave back to him for his proceeding. According to his affidavits, what he has said here, is not true.

   HIS HONOUR:          But you haven't lived together as man and wife.

   MS [BLACK]: Yes, four days I have.  Many times I have last year, but four days, that's the last I am giving you. 

8. Then his Honour returns to this discussion saying,

   HIS HONOUR:          If you’re going to dispute the divorce, I will have to hear your evidence and his evidence about these periods when you were together and what they consisted of and make a decision about whether it seems to me you have in substance been separated over a year or whether you’ve actually reconciled as man and wife for periods that would stop you getting a divorce.  I will stand it down while you go and see the duty lawyer about it, because there's really often not a lot to be gained about delaying a divorce.  If he doesn't want to live with you as your husband any more, well, you can't make him move back with you.

9. There is then some further discussion.  Then the matter is stood down for an hour and a half.  Ms Black indicates that she is still contesting the divorce.  She is invited to address the magistrate on anything else she wanted to tell him beyond the papers.  She says in response to that, "Would you like me to read it again?"  "Yes…if you could…in a big voice."  Then there's a judgment delivered on the dissolution application.  And that's the end of the matter.

10. When the matter comes on before Burchardt FM, the wife was invited to indicate the material that she wants to rely upon.  Both parties were then invited - there is nothing referred to.  Ms Black says, "I would like the decree nisi to be rescinded because there are no proper grounds for same.” 

11. She was invited to address the Federal Magistrate after he has adjourned to read the material that's before him.  She repeated the statement:

    I'm applying for the decree nisi to be rescinded as I believe there are no proper grounds for same.

12. The magistrate said:

    Probably the best way forward is if you just tell me what you’d like to tell me and I’ll hear from Mr [Black], and then we’ll see where we go.  Fire away.  I've read the affidavits.

13. She said she disagreed with what was in the application.  "I've read, I disagree" she said, "with paragraph 16, 17 and [18] of the principal application" [which is the form used for divorce in which it is asserted separation took place on 24 June 1992 and that they had lived under the one roof from 24 June 1992 to 1 April 1997.  That's what those three paragraphs relate to and she said, "I disagree"]. 

14. She said that:

    I saw him…

    …

    …I've been to his house, he's been coming to my house. 

    [We had a] sexual relationship [which] ended in May…I…disagree with the [earlier] affidavit.

15. These were all matters, as Burchardt FM indicated in his reasons for judgment that, were properly before the Riethmuller FM. 

16. Ms Black then enlarged upon her grounds repeating material that was in the affidavit material and saying:

    …I was shocked and surprised to have been served with the divorce application in view of our continuing sexual relationship right up to May.  I therefore apply for the decree nisi to be rescinded as I believe there are no proper grounds for same…

17. That was the end of the submissions.

18. Now, counsel on behalf of the appellant before me suggested that there had been a procedural irregularity and a procedural unfairness because in some way the Federal Magistrate had not offered assistance to guide the appellant through her application.  This is Burchardt FM presumably.  She sought to rely upon the guidelines for litigants in person that were established by the Full Court in the decision of Johnson and refined in the decision of Re F Litigants in Person Guidelines (2001) FLC 93 072.

19. It is not particularly asserted as to which of the guidelines has not been complied with.  The relevant guidelines would indicate that a judge should ensure as far as possible procedural fairness is afforded and it seems to be that Burchardt FM invited the parties to address him on what the issues were and read the material they sought to rely upon.  The second guideline is that the litigant should be informed of the manner in which the trial is to proceed.  In a sense that was done when the magistrate said:

    Well, I will hear from you and I will read the material and I will hear from the other side and then I will make a decision.

20. The guidelines also talks about a right to cross‑examine witnesses but having regard to the nature of the application the evidence was all coming from the wife she asserting that a state of facts existed that would have made it inappropriate for the decree to have been granted in the first place.  There was no conflicting material being filed by the husband in response to her rescission application. 

21. The next guideline is that there should be an explanation of the procedures relevant to the litigation and that has been subsumed in the matters I have already talked about and no particular complaint is made about it.  The guideline of taking the basic information seems to have been met.  There was no procedural change. 

22. There was a suggestion put that guideline 6 may have been breached:

    The judge may provide general advice to a litigant as he has a right to object to inadmissible evidence.

    But nothing has been demonstrated to indicate that Burchardt FM in any sense relied on any inadmissible evidence.

23. Guideline 8 is that:

    The judge should attempt to clarify the substance of submissions of a litigant, especially in cases where because of garrulous or misconceived advocacy, substantive issues are either ignored, given little attention to, or obfuscated.

    There was an attempt to do that by Burchardt FM and he has invited the wife to explain her case as best she could.  But he was not sitting in any sense as an appellate judge.  He was looking to see whether there is a ground under
    s 58 available and made out on the material.

24. Having carefully perused the material in light of the manner in which the process had taken place both before Riethmuller FM and Burchardt FM it is difficult for me to be persuaded that there was any appropriate basis for demonstrating a ground under s 58 that there had been some miscarriage of justice that had occurred before Riethmuller FM that now needed to be repaired by the rescission of the decree in the matter had then be sent back for another trial.

25. I am not satisfied that there has been any error demonstrated in the manner in which Burchardt FM dealt with the matter procedurally or the conclusion that he reached as a matter of law.  Accordingly the appeal will be dismissed. 

26. I have an oral application before me that in the circumstances the divorce order that was pronounced by Riethmuller FM on 17 November should now take effect.  The provisions of the legislation mean that the divorce order becomes effective one month from the day on which any appeal relating to it or an appeal relating to a rescission application is dismissed unless there is a variation on that by court reducing the period in which the expiration order will take effect.

27. It seems to me that there are special circumstances present that would enable the appropriate exercise of that power.  This divorce order should have taken effect as at 18 December.  There is no substance in my view in the appeal in relation to the dismissal of the rescission application and I see no prejudice to the wife by the grant of the application for the order as sought.  She is free and able to bring proceedings within a year from today in relation to any property or maintenance aspects which she feels are unresolved without any leave of the court and at the expiration of a year from today she will be free to bring those applications with leave from the court.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Kay J  

Associate: 

Date:  23 May 2007