CARTLAND & DEAN

[2013] FCCA 1545

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARTLAND & DEAN [2013] FCCA 1545

Catchwords:
FAMILY LAW – Divorce – application to rescind divorce order - no arguable case of fraud – summary dismissal.

Legislation:  
Family Law Act 1975, ss.39(3), 55, 58

Applicant: MR CARTLAND

Respondent: MS DEAN

File Number: PAC 1622 of 2013

Judgment of: Judge Halligan

Hearing date: 11 September 2013

Date of Last Submission: 11 September 2013

Delivered at: Parramatta

Delivered on: 11 September 2013

REPRESENTATION

Solicitors for the Applicant: In Person via International Telephone Link

Solicitors for the Respondent: Harish Prasad and Associates

ORDERS

1. The wife’s application in a case filed on 26 July 2013 is summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 1622 of 2013

MR CARTLAND

Applicant

And

MS DEAN

Respondent

REASONS FOR JUDGMENT

1. On 3 July 2013, on the application of the husband, the Court pronounced a divorce order dissolving the marriage of the husband and the wife celebrated on 7 March 2011 in (country omitted). 

2. In support of the husband's divorce application there was an affidavit of service deposing to personal service of the divorce application on the wife in (country omitted) on 6 May 2013.  That affidavit, sworn by a Mr R, who swore that he knew the wife, stated that the wife refused to accept the documents for service, and that he put them down and left them in her presence and told her what they were.

3. In the normal course, under section 55(1) of the Family Law Act 1975, the divorce order pronounced on 3 July 2013 would take took effect after the expiration of one month following the day the order was made, that is, on 4 August 2013.

4. On a date that it is not entirely clear because of the way the registry filed the application, the wife filed an application in a case seeking three orders, and I quote:

   “(1) Divorce granted on 3 July 2013 be rescinded.

   (2) The proceeding be stayed until the proceedings in (country omitted) courts are decided and concluded.

   (3) Application requires to be rejected with cost.” 

5. The husband is in Australia, the wife remains in (country omitted).  She says she is in very poor financial circumstances, unemployed and with no financial support from the husband.

6. I will proceed for present purposes on the basis that the handwritten date on the application of 26 July 2013 was the date the application was filed.  That is, I will proceed on the basis that it was filed before the divorce order took effect.

7. The wife's application in a case was accompanied by a document prepared on foolscap-sized paper, being a statement affirmed by the wife.  The husband’s solicitor states that he had not seen that document before today, and nor had his client.  The affidavit of service of the wife says that the application in a case, which she says was dated

   
   

   22 August 2013, although I have no document bearing such a date before me, was served on the husband’s solicitor and on the husband by post, by email and by fax, but there is no suggestion in the affidavit of service that the affirmed statement lodged with it was also served.

8. Be that as it may, at paragraph 3 of the affirmed statement, the wife says:

   “I have been served the application of the applicant seeking divorce from this honourable Court in which the resistance/consent is sought for accordingly to be in time as per direction in notice.”

9. Paragraph 4 says:

   “I say that the copy of application served on me in which no reasons or cause of divorce is given so in providing the same reserve my right to file resistance to meet the allegations if any.”

10. The document goes on to suggest that the wife was surprised at the suggestion of a divorce or a separation.  She says at paragraph 5:

    “I am surprised that as promised instead of calling me as his wife he filed this “application of divorce is a fraud” upon me.  However, I have no complaint about our marriage life or even against applicant husband.”

11. The wife goes on to say that she herself instituted proceedings in the (country omitted) courts, including a maintenance application, on 17 July 2013.  The statement of the wife goes on to suggest that she still regards the marriage relationship as subsisting.  She suggests that the husband is not a citizen of Australia and that therefore this Court lacks jurisdiction, but of course, while this Court’s jurisdiction rests on matters inclusive of citizenship, it is not limited to citizenship (see Family Law Act 1975, s.39(3)).

12. Despite the reference in paragraph 5 of the wife’s affirmed statement “application of divorce is a fraud”, and a suggestion in paragraph 14 that the divorce application is “fraudulent”, in fact it seems the wife's complaint is that she does not regard the marriage as having broken down, and a complaint by the wife about how she regards the husband as having treated her.

13. There is nothing on the face of the application in a case to suggest that the basis of the application itself includes an assertion of a miscarriage of justice.

14. In oral submissions today the wife has sought to rely on just such an allegation, and has cited section 58 of the Family Law Act to me. Section 58 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.”

15. A critical provision of section 58 is the opening phrase, “If a divorce order has been made but has not taken effect”. An application under section 58 therefore cannot be made after the divorce order takes effect.

16. Under section 55(3) of the Family Law Act, the usual one month period before a pronounced divorce order takes effect is extended where an appeal is instituted. The word “appeal” is given a broad definition for the purposes of section 55(3) by section 55(5), paragraph (c) of which an application under section 58 in the term “appeal” for section 55(3). Thus, if an application for rescission under section 58 is filed before a divorce order takes effect, then the order taking effect is postponed until a defined period after the section 58 application is determined, rather than after one month after the divorce order is pronounced.

17. In this particular case, the registry has not regarded the wife’s application in a case as falling within the definition of the term “appeal” for section 55 and has issued the divorce order expressed to take effect from 4 August 2013. If the registry was wrong in the view it took, the fact that it issued the formal documentation suggesting the order had taken effect would be of no effect and nugatory. It does not bind me in considering the wife’s application. But I am not satisfied that the registry was wrong. As mentioned, there is nothing on the face of the application in a case to suggest that it is an application under section 58.

18. There is another section under which a party may apply to rescind a divorce order. That is section 57. An application under section 57 is also treated as an appeal for section 55(3). But section 57 is limited to an application on the ground that the parties have become reconciled. Section 57 is clearly not relevant in this case.

19. Therefore, unless the wife’s application in a case was an application under section 58, then the divorce order has taken effect, and the marriage has been dissolved at law and no longer exists.

20. For completeness, I note that the husband has filed a response seeking dismissal of the wife’s application in a case.

21. In oral submissions this morning, the wife has sought to suggest there was fraud in that she denies that she was served with the application.  She said that somebody came with a one page document, demanded that she sign it, she refused to sign it unless she could read it, and the person took the document away.  That is not evidence before the court.  But even if it were, it is directly inconsistent with statements in both paragraphs 3 and 4 of the wife’s affirmed statement.  The wife’s affirmed statement does not raise any issues of miscarriage of justice in a relevant sense for a divorce application brought in Australia under Australian law. 

22. Assuming for one moment that the wife was not properly served, and assuming for one moment that the affidavit of service is false, there remains at this day no evidence from the wife to suggest that that is the case.  So even as at today it would not be open to me to treat the wife’s application as raising an arguable case of fraud or perjury or other miscarriage of justice.

23. In those circumstances, I am satisfied there was no appeal within the definition of that term for section 55 of the Family Law Act instituted within one month after the divorce order was made. Therefore, it became final by force of section 55 on 4 August 2013.

24. I am satisfied that there is now no basis upon which the court could interfere with that order.  There is no reasonable basis or prospect of success of the wife’s application to rescind the divorce order now, and in those circumstances I will summarily dismiss her application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Date:  4 October 2013