Clarke, M.W.F and Clarke, W.P.J

[1986] FamCA 29

In the marriage of CLARKE, M.W.F. and CLARKE, W.P.J.

(1986) FLC ¶91-778

Other publishers' citations: (1986) 11 FamLR 364

Full Court of the Family Court of Australia at Brisbane.

Judgment delivered 10 December 1986.

Before: Fogarty, Lindenmayer and Nygh JJ.

Fogarty and Nygh JJ.: We have had the opportunity of reading the judgment of Lindenmayer J. and agree that the appeal should be allowed and with the orders he proposes.

The basic issue in this case is whether the requirement in sec. 48(2) that the parties ``lived separately and apart for a continuous period of not less than 12 months'' means that the parties should during that period maintain both the fact of separation and the intention to sever the marital relationship or whether both should come together in a resumption of cohabitation in order to end the state of separation. If the former is the right interpretation, the learned trial Judge was correct in concluding that a reconciliation of the parties, whether followed by a resumption of cohabitation or not, put an end to separation since reconciled spouses clearly no longer have an intention to sever the marital relationship. It would also follow that his Honour was correct in concluding that sec. 50(1) was inapplicable since it refers only to interruption of the period of separation by resumption of cohabitation.

In relation to desertion, it was well established that both the intention to desert and the fact of desertion had to coexist for the requisite period: Crowther v. Crowther (1951) A.C. 723. But this principle did not apply by analogy to the ground of separation as it existed under sec. 28(m) of the Matrimonial Causes Act 1959.

In Macrae v. Macrae (1967) 9 F.L.R. 441, the New South Wales Court of Appeal had to consider an unusual fact situation. The parties had separated on 14 November 1957. Thereafter the parties each desired a resumption of cohabitation, but failed to agree on a suitable residence. In 1958 they agreed on a site and plans for a house, including colour schemes, but the purchase fell through by the fault of the vendor. The parties never actually resumed cohabitation.

Herron C.J. said at p. 446:

``Once this state of living separately and apart was established nothing less than a resumption of cohabitation could put an end to it. Mere negotiation is not a substitute. Nor did the mere intention of the parties to resume cohabitation put an end to the situation.''

At p. 448 the learned Chief Justice distinguished the law relating to desertion from that of separation on the ground that the former included a notion of continuance without justification with intent which was not in his Honour's view present in the latter. See also the remarks of Sugarman J.A. at p. 457 to the effect that ``attempts by one or both of the parties to restore it (i.e. the marital relationship)'' are not sufficient, and Walsh J.A. at p. 464.

This statement of the law in relation to the repealed Act was accepted by Watson J. in its application to sec. 48(2) of the present Act, in Todd and Todd (No. 2) (1976) FLC ¶90-008 at p. 75,079; (1976) 9 A.L.R. 401 at p. 403 where he said:

``As to the second element, that of living separately and apart, this element is present and continues to be present unless there is a substantial resumption of the marital state. Casual acts of sexual intercourse do not constitute an interruption of separation. An agreement to resume cohabitation which is not carried out is insufficient. Just as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation.''

This statement was based, as his Honour acknowledged, on the cases dealing with reported cases under the former law, including Macrae. We accept it as a correct statement of the effect of sec. 48(2). This conclusion is reinforced by sec. 50(1) which, in contrast to sec. 41A(3) of the repealed Act, does not require that the resumption of cohabitation be for the purpose of effecting a reconciliation and that a reconciliation was not achieved. The clear intention of sec. 50(1) is to encourage parties to reconcile and without prejudicing their rights to relief should the reconciliation fail within three months.

Whilst reconciliation by itself will be a ground upon which the parties may jointly seek the rescission of the decree nisi and thereby terminate the proceedings in which that decree was pronounced, only a resumption of cohabitation will put an end to the state of separation. For those reasons we agree with Lindenmayer J. that his Honour was in error in holding that separation had come to an end by reason of the reconciliation of the parties.

The separation was interrupted by the resumption of cohabitation which took place on 20 December 1985 and terminated on 28 January 1986, a period substantially less than three months. It was open to the husband in his fresh application to aggregate the periods before and after the period of cohabitation under sec. 50(1). There is nothing in the Act which would prevent him from relying upon any period of separation prior to reconciliation. We do not read his Honour's remarks as cited by Lindenmayer J. as implying that the husband was estopped in any way by his assertion of reconciliation but rather that the period itself was irrevocably terminated by the reconciliation.

It is not necessary for us to consider whether the Family Law Act constitutes a code. Indeed, in our view the interpretation of sec. 48(2) is not radically different from that of sec. 28(m) of the repealed Act. Whilst the separation ground has some elements in common with the old law of desertion, the earlier law, as Herron C.J. pointed out, contained some additional aspects not found in the law relating to separation.

For those reasons we would uphold the appeal and we agree with the orders proposed by Lindenmayer J.

Lindenmayer J.: The parties in this matter were married at Brisbane on 10 July 1965. On 22 May 1986, Lambert J. dismissed an application, filed by the husband on 27 February 1986, for the dissolution of that marriage. The husband now appeals to this Full Court against that dismissal.

The relevant facts and the history of the husband's attempts to obtain a dissolution of his marriage were set out at length by his Honour in his reasons for judgment and may be summarised as follows:

On 26 July 1985, the husband filed an application for dissolution of the marriage alleging that separation occurred on 22 January 1984 and that the parties thereafter lived separately and apart except for a brief resumption of cohabitation between 7 and 14 October 1984. A decree nisi of dissolution of the marriage was pronounced on that application by Bell J. on 8 November 1985.

On 4 December 1985, the husband filed an application, pursuant to sec. 57 of the Family Law Act 1975 (``the Act'') that the decree nisi of 8 November 1985 be rescinded on the ground that the parties had become reconciled. In support of that application he filed an affidavit in which he swore that whereas he believed, at the time of the decree nisi, that the marriage had broken down irretrievably, he had since spoken to the wife on several occasions and that as a result of these discussions ``we have become reconciled and we propose to resume cohabitation''.

That application was served upon the wife, and on 5 December 1985, it came before Bulley J. for hearing. The wife was represented at that hearing by her solicitors, and through them she joined with the husband in seeking the rescission of the decree. Bulley J. accordingly made the order rescinding the decree nisi as sought by the application.

On 27 February 1986, the husband filed a fresh application for dissolution of the marriage returnable before the Court on 20 May 1986. The wife was served with this application, but she neither filed an answer to it nor appeared before the Court when it came on for hearing by his Honour on the latter date.

In his fresh application the husband alleged that separation for the purposes of sec. 48(2) of the Act occurred on 14 October 1984 and that thereafter the parties lived separately and apart except for a period between 20 December 1985 and 25 January 1986. In para. 12 of that application the husband swore that ``During the period from 20 December 1985 to 28 January 1986, and following a reconciliation between them, the parties lived together in the same residence''.

Before his Honour, the husband sought a decree of dissolution either upon his original application filed on 26 July 1985 or, in the alternative, upon his fresh application filed on 27 February 1986. His Honour expressed the opinion (in my view correctly) that the proceedings instituted by the first application were concluded upon the rescission of the decree nisi, and that so long as that rescission order remains in force the husband is precluded from seeking a decree on that application.

Ground 4 of the husband's notice of appeal filed on 18 June 1986, was in the following terms:

``On the evidence his Honour the Learned Trial Judge should have determined in respect of the application filed on the 26th day of July 1985:—

(a) That the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of the filing of the application; and
(b) That there was at the date of hearing of the said application no reasonable likelihood of cohabitation between the parties being resumed.''

Thus it appeared that the husband was seeking, upon the appeal, a decree nisi based solely upon his original application. However, upon the hearing of the appeal his counsel sought and obtained leave to amend ground 4 of the notice of appeal by deleting the date ``26th day of July 1985'' and substituting therefor the date ``27th day of February 1986'', and he made it clear that the husband now seeks a decree only upon his later application.

The questions raised for consideration and determination in this appeal involve the application and/or interpretation of a number of sections of the Act, and I therefore think it appropriate, before proceeding to examine his Honour's reasons for dismissing the husband's application, that I set out those sections in full. The relevant sections appear to me to be sec. 48, 49, 50, 57 and, to a lesser degree, sec. 54 and 55(1). Those sections provide as follows:

``48(1) An application under this Act for a decree of dissolution of a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2) Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied 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.

(3) A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

49(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

50(1) For the purposes of proceedings for a decree of dissolution of marriage, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.

(2) For the purposes of sub-section (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

54. A decree of dissolution of marriage under this Act shall, in the first instance, be a decree nisi.

55(1) Subject to this section, a decree nisi made under this Act becomes absolute by force of this section at the expiration of a period of 1 month from the making of the decree or from the making of an order under section 63, whichever is the later.

57. Notwithstanding anything contained in this Part, where a decree nisi has been made in proceedings for a decree of dissolution of marriage, the court may, at any time before the decree becomes absolute, upon the application of the parties to the marriage, rescind the decree on the ground that the parties have become reconciled.''

His Honour the learned trial Judge, after reciting the facts and the history of the proceedings which I have summarised above, proceeded to state his reasons for dismissing the husband's applications, and he said this:

``In my view that allegation [i.e. the allegation by the husband, in para. 12 of his application of 27 February 1986, that the parties lived together in the same residence from 20 August 1985 to 28 January 1986 `following a reconciliation between them'] is fatal to the husband's claim for relief under either application. I would have thought that the same result flowed from the rescission made on his first application which, if valid, constitutes conclusive proof that the parties had become reconciled so that any prior separation could no longer be relied upon.''

His Honour then proceeded to set out his reasons for concluding that the husband could not rely upon his first application. As previously indicated, I think that his Honour was correct in so concluding, but in any event that part of his Honour's decision is not now the subject of appeal and it is therefore unnecessary for me to refer further to this aspect of his Honour's judgment.

His Honour then concluded his statement of reasons for the dismissal of the husband's second application as follows:

``It is not open to the court to pronounce a decree nisi on the husband's fresh application as it conclusively establishes that the parties were reconciled so that their marriage was restored between 20 December 1985 and 28 January 1986.

The husband cannot in those circumstances rely upon any prior separation and the requisite period of 12 months continuous separation required by sec. 48(2) of the Act could not be established from the first available separation, that is 28 January 1986, and the date of filing of his fresh application.

A reconciliation brings a separation period to an end. A period of cohabitation with which sec. 50(1) deals, and which does not interrupt the continuity of separation, should not be confused with a reconciliation which brings it to an end. Accordingly, I am bound to dismiss the husband's application for dissolution of marriage that he filed on 27 February 1986.''

It appears to me from a reading of the above passages that his Honour found two bases for dismissing the husband's application of 27 February 1986, namely:

(1) That the husband having himself asserted, in para. 12 of that application, that there was a ``reconciliation'' of the parties, followed by a resumption of cohabitation from 20 August 1985 to 28 January 1986, he could not rely in support of that application upon the separation of the parties from 14 October 1984 which preceded that ``reconciliation''; and
(2) that the husband having obtained on 5 December 1985, the rescission of the earlier decree of 8 November 1985 on the ground that the parties had ``become reconciled'' he was precluded from relying in support of his fresh application upon any separation which preceded that reconciliation.

Both those bases depend for their validity upon his Honour's assertions that: ``A reconciliation brings a separation period to an end'' and that ``A period of cohabitation with which sec. 50(1) deals, and which does not interrupt the continuity of separation, should not be confused with a reconciliation which brings it to an end''. It is essentially the correctness or otherwise of these assertions upon which the outcome of this appeal depends.

Whatever may have been the position under the law as it stood prior to the commencement of the Act in relation to the effect of a ``reconciliation'' upon the continuity of a separation of spouses, I am of the opinion that if a ``reconciliation'' is to be now held to have the effect of bringing such a separation to an end it can be so only because the Act so provides, either expressly or by necessary implication. This is so because, in my opinion, the Act provides a complete code for Australia of the law in relation to divorce, and it does not provide for the preservation of any general principles of matrimonial law which may have existed prior to its enactment, whether under the Matrimonial Causes Act 1959 (which it repealed and replaced) or under any pre-existing law, statutory or otherwise.

No doubt the decisions of the courts made in the interpretation or judicial exposition of earlier matrimonial law are of relevance in the interpretation of the Act, particularly in relation to the meaning of expressions used therein such as ``co-habitation'', ``separated'' and ``lived separately and apart'' which are not defined by the Act but which had come to have an accepted and settled meaning in the matrimonial context immediately prior to its commencement. In the absence of a clear indication in the Act to the contrary, the framers of the Act may be presumed to have intended such expressions to have the same meaning in the Act as they had come to have immediately antecedent thereto. However, any such presumption must always yield to the clear and unequivocal meaning of the words of the Act itself.

In relation to his Honour's assertions to which I have referred, it must at once be noted that nowhere in the relevant sections of the Act which I have set out above is it expressly provided that a ``reconciliation'' effected by the parties to a marriage following a period of separation brings that separation to an end. His Honour did not expressly state his reasons for concluding that it does, and I can therefore only assume that he was of the opinion that the Act impliedly so provides.

Section 48(1) of the Act establishes a single non-fault ground for divorce, namely ``that the marriage has broken down irretrievably''. By sec. 48(2), that ground itself may be held to have been established ``if and only if the court is satisfied 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 filing of the application for dissolution of marriage''. The Act makes no provision for absolute or discretionary bars to the granting of a decree of dissolution, such as condonation, connivance or collusion, which existed under previous law.

Although the expression ``the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months'' used in sec. 48(2), is nowhere defined by the Act, it is clear from a reading of that subsec. with sec. 49(1) that what that expression requires is a cessation of cohabitation and a continuation of that state of non-cohabitation for the requisite period. It is also clear from many reported judicial pronouncements on the subject, that what is involved in a cessation of cohabitation is a severance of the marital relationship or the consortium vitae. Such a severance involves both a physical element (i.e. a physical separation) and a mental element (i.e. an intention on the part of at least one of the parties to terminate the marital relationship): Todd and Todd (No. 2) (1976) FLC ¶90-008; Pavey and Pavey (1976) FLC ¶90-051; and Falk and Falk (1977) FLC ¶90-247. However, it is also clear from sec. 49(2) that a separation (i.e. a cessation of cohabitation or a severance of the marital relationship) may be found to exist notwithstanding that the parties continue to occupy the same residence or to perform household duties, one for the other. Conversely the absence of residence under one roof and/or the performance by either party for the other of household duties do not necessarily establish a separation or a state of non-cohabitation.

It follows, in my view, that once a state of ``separation'' (i.e. non-cohabitation) is shown to have existed between spouses, it must continue until brought to an end by acts of the spouses sufficient to constitute a restoration of the marital relationship, i.e. a resumption of cohabitation. As a cessation of cohabitation involves both a physical and mental element, a resumption of cohabitation must also involve both of those elements, i.e. an intention to resume the marital relationship and a physical coming together of the parties, or at least some overt action on their part to carry their intention into effect: Todd and Todd (No. 2) (1976) FLC ¶90-008 at p. 75,079; (1976) 1 Fam. L.R. 11,186 at p. 11,188.

The word ``reconciliation'' is used in several places in the Act and in the Family Law Rules (e.g. sec. 14(1), (2) and (2A); 15(2); 43(d); 44(1B); and 44(1C); and O. 25 r. 1). However, it is not defined either in the Act or the Rules, nor is the expression ``become reconciled'' in sec. 57. Futhermore, my researches do not indicate that those expressions have come to have any clearly defined or universally accepted usage in matrimonial law whether statutory or judicially enunciated. Their precise meaning in any given context must therefore depend upon their ordinary grammatical meaning in that context.

In some contexts, the expression ``to be reconciled'' has been held to be used as the antithesis of ``living apart'', and in that sense as equivalent to a resumption of co-habitation: McRostie v. McRostie (1955) N.Z.L.R. 631 at p. 635 per Adams J. In other contexts, ``reconciliation'' in relation to spouses who have been separated seems to have been used in the sense of their arrival at a bilateral intention to set up a matrimonial home together, as distinct from the acts giving effect to that intention: Cook v. Cook (1949) 1 All E.R. 384 at p. 388 per Pearce J.

The Shorter Oxford Dictionary (3rd ed.) defines ``reconcile'' (relevantly) as follows:

``To bring (a person) again into friendly relations to or with (oneself or another) after estrangement; to set (estranged persons or parties) at one again; to bring back into accord, to reunite (persons or things) in harmony.''

The same dictionary defines ``reconciliation'' (relevantly) as:

``The action of reconciling persons, or the result of this; the fact of being reconciled.''

The Macquarie Dictionary defines ``reconcile'' (relevantly) as:

``to compose or settle (a quarrel, difference etc); to bring into agreement or harmony.''

It appears to me, therefore, that to assert or find that spouses who have been separated (i.e. not cohabiting) have ``become reconciled'' or have ``effected a reconciliation'' does not necessarily involve an assertion or finding that they have resumed cohabitation, although it may do so. It may mean no more than that they have settled their differences or been brought back into friendly relations with each other, no doubt as a necessary preliminary to a resumption of cohabitation. If used only in the latter sense, then in my view such a reconciliation does not bring their existing separation to an end because, as I have demonstrated above, only a resumption of cohabitation (involving both the intention to resume and acts to give effect to that intention) can have that effect.

In my opinion, the allegation by the husband, in para. 12 of his application of 27 February 1986 that ``[d]uring the period from the 20th December 1985 to the 28th January 1986 and following a reconciliation between them the parties lived together in the same residence'' is not an allegation of a resumption of cohabitation prior to 20 December 1985, but only that prior to that date they settled their differences and on that date began to live together again. This interpretation is confirmed by para. 11 wherein the husband alleges that ``the husband and wife resumed co-habitation on or about the 20th day of December 1985''. Thus, for the reasons outlined above, the ``reconciliation'' alleged by the husband in that paragraph did not and could not interrupt the state of separation which then existed. That interruption was brought about only by the resumption of cohabitation which occurred on 20 December by the parties giving effect to their previous ``reconciliation'' by taking up residence together at the address referred to in the application.

Were it not for sec. 50 of the Act, that resumption of cohabitation would not only have interrupted the pre-existing separation of the parties, it would have terminated it, in the sense that neither party would thereafter have been able to rely upon it in support of an application for dissolution of their marriage. However, the effect of sec. 50 was to hold the previous period of separation in suspense (so to speak) for a period of three months from the date of the resumption, so that, if the parties again separated (i.e. ceased to cohabit) within that period, and their subsequent separation continued without further interruption up to the date of filing of an application for dissolution of marriage, then the initial period of separation (which itself exceeded 12 months) would become available to the parties as part of an aggregated and therefore notionally continuous separation of ``not less than 12 months'' duration sufficient to found that application.

According to the husband's evidence, contained in his application, that is precisely what happened. In those circumstances I do not think that it was open to his Honour to conclude, by implication from any of the provisions of the Act that, on the husband's own evidence, the benefit of sec. 50 was not available to him. In my opinion it was. On that evidence, and applying that section, the husband had established the requisite period of continuous separation and (subject to the question of the effect of the rescission of the earlier decree to which I shall turn below) unless his Honour was satisfied, under sec. 48(3), that there was ``a reasonable likelihood of cohabitation being resumed'', the husband was entitled to a decree nisi as sought. There is no suggestion, in his Honour's reasons, that he was so satisfied, or that the existence of such a likelihood was even considered by him. In my view there is no evidence upon which his Honour could have been so satisfied. Consequently, subject to the question of the effect of the rescission of the earlier decree, to which I now turn, I would allow the appeal and grant the decree nisi.

As noted earlier in these reasons, his Honour's decision to dismiss the husband's application of 27 February 1976 was also based upon his opinion that the rescission of the earlier decree, pursuant to sec. 57 of the Act, precluded the husband from relying upon the period of separation from 14 October 1984 to 20 December 1985 as part of a continuous period of separation of ``not less than 12 months immediately preceding the date of the filing of the application'', notwithstanding sec. 50.

As I understand his Honour's reasoning in relation to this aspect of his decision, it proceeded by way of the following steps:

(1) The rescission of a decree nisi for dissolution of the marriage pursuant to sec. 57 of the Act can be granted only on the ground that the parties ``have become reconciled''.
(2) The husband (and wife) obtained on 5 December 1985, rescission of the decree nisi of 8 November 1985 pursuant to sec. 57.
(3) The grant of that rescission therefore involved a finding by the Court that the parties had ``become reconciled'' on or before 5 December 1985.
(4) The husband is therefore precluded, as a matter of law (i.e. estopped) from denying that there was a ``reconciliation'' of the parties on or before 5 December 1985.
(5) That reconciliation brought the previous period of separation to an end, and ``restored'' the marriage.
(6) That period of separation, so ended, could not be revived or resurrected by the operation of sec. 50(1) of the Act so as to form part of a continuous period of separation of not less than 12 months immediately preceding the filing of the application of 27 February 1986.
(7) Therefore the parties had not been separated for such a continuous period, and the decree could not be granted.

I have no difficulty in accepting the first four of those steps, but find the remaining three less convincing. I have already expressed the view that only a resumption of cohabitation can interrupt or terminate a period of separation and that whilst a ``reconciliation'' may involve a resumption of cohabitation it does not necessarily do so. In my view there is no basis for regarding the words ``become reconciled'' in sec. 57 as equivalent to ``resumed co-habitation'', because if the legislature had meant the latter it would have used that expression rather than the former.

The policy of the Act, as expressed in many places (e.g. sec. 14-19, 43(d), and 44(1B) and (1C)) is to encourage spouses to attempt to reconcile their differences and, specifically, to give consideration to the possibilities of effecting a reconciliation before instituting or proceeding with proceedings for dissolution of their marriage. It would therefore be a remarkable result, and in my opinion an absurd and unjust one, if the parties to a marriage which had broken down were to be held to have automatically lost the right to seek a dissolution of their marriage by effecting a reconciliation however short-lived that reconciliation may have been.

Moreover, in view of sec. 50(1), this strange result would occur only if there were a ``reconciliation'', but not if there were a mere resumption of cohabitation. Indeed, the couple who were foolish enough to say that they were ``reconciled'', would have to wait the additional 12 months, but a shrewder couple who said only that they had ``resumed cohabitation'' would not have to do so.

In the instant case, the husband having obtained a decree nisi for the dissolution of the marriage on 8 November 1985, that decree, unless rescinded, would become absolute by force of sec. 55(1) on 9 December 1985. (I have presumed that a declaration under sec. 63 was made at the same time as the decree, as there is no evidence or suggestion to the contrary.) The parties having then attempted, as the policy of the Act suggests that they should, to effect a reconciliation, with apparent success, they had no option but to seek a rescission of the decree before 9 December 1985 if they wished to prevent their marriage from being finally dissolved by the decree becoming absolute. In these circumstances it appears to me to be contrary to the policy of the Act that, having obtained a rescission, and their reconciliation having broken down within a period of less than three months, they should be denied the benefit of sec. 50(1), which is itself clearly designed to encourage possibilities of reconciliation between separated spouses. I am unable to conclude that it was the intention of the Act that such a manifestly unjust result should flow from the parties' apparently bona fide attempt to save their marriage at the eleventh hour, and there is nothing in the Act which compels such a conclusion.

In short, I am of the opinion that his Honour erred in law in reaching that conclusion, and that he ought to have granted the decree nisi upon the husband's application of 27 February 1986. The appeal against the dismissal of that application must therefore succeed.

The next question that arises is what order this Court should make other than to set aside his Honour's order dismissing the husband's application.

By sec. 94(2) of the Act it is provided that, upon an appeal to the Full Court ``the Full Court may... make such decree as, in the opinion of the court ought to have been made in the first instance, or may, if it thinks fit order a re-hearing, on such terms and conditions, if any, as it thinks fit''.

As I have concluded that, upon the evidence before him, his Honour ought to have granted a decree nisi for dissolution of the marriage upon the husband's application of 27 February 1986, it is clearly open to this Full Court, in terms of that section, to make that decree, and I consider it proper to do so.

However, upon the hearing of an application for dissolution of marriage the Court has an important function additional to the pronouncement of the decree nisi, namely the consideration of the arrangements for the welfare of the children of the marriage who have not attained the age of 18 years and the making (or withholding) of a declaration under sec. 63 in relation to those arrangements. Subsection (1) of that section provides that a decree nisi does not become absolute unless the Court, by order, has made one of the three possible declarations in that respect provided for by that subsection.

In the present case there is now only one child of the marriage to whom the provisions of sec. 63 apply, and there is no evidence before this Full Court (other than that contained in para. 17 of the application) as to the arrangements made or proposed for the welfare of that child. There may have been additional evidence upon that topic before his Honour, but if so it has not been included in the Appeal Book. In any event, it is now five months since the matter was before his Honour, and before any declaration could be made under that section up to date material would need to be placed before the Court to satisfy it that the current arrangements are satisfactory.

In those circumstances, it is not possible for this Full Court to make the necessary declaration, and it will be necessary for the matter to be remitted to a single judge of the Court to consider the arrangements now proposed and, if he thinks fit, make the appropriate declaration. I would order accordingly. However, as the granting of the decree has already been very substantially delayed, I think it appropriate to give special directions to enable the matter to be brought on speedily, rather than that the husband should be obliged to obtain a listing in the ordinary way by application to the Registrar. I would include those directions in the formal orders which I propose at the end of these reasons. Those directions should include a requirement that the husband give reasonable notice to the wife of the date upon which the matter is relisted.

The husband's counsel asked that, in the event of our allowing the appeal, we grant to the husband a ``costs certificate'' under the Federal Proceedings (Costs) Act 1981, in respect of his costs of the appeal. The appeal has certainly succeeded ``on a question of law''; and in my opinion, this is an appropriate case for the granting of such a certificate under sec. 9 of that Act. I therefore propose that we accede to that request.

The orders which I propose, therefore, are as follows:

1. that the appeal be allowed;

2. that the order of the Honourable Mr Justice Lambert made herein on 22 May 1986, be set aside;

3. that in lieu thereof, the Court being satisfied that the applicant husband is domiciled in Australia and that the marriage has broken down irretrievably, the Court decrees that upon and subject to the decree of the Court decrees that upon and subject to the decree of the Court becoming absolute, the marriage solemnised at Brisbane in the State of Queensland on the 10th day of July 1965 between the abovenamed husband and wife be dissolved;

4. that the proceedings be remitted to a single judge of the Brisbane Registry of this Court for consideration of the arrangements proposed for the welfare of the child of the marriage under the age of 18 years and, if the said Judge thinks fit, the making of a declaration under sec. 63 of the Family Law Act 1975;

AND IT IS DIRECTED:

5. that the Registrar fix an early date for the hearing of the said remitted proceedings forthwith upon request by the applicant, and that the applicant give to the respondent seven (7) days notice in writing of the said date by ordinary pre-paid post addressed to her at her address for service (if any) or, if she has no such address, then at her address last known to the applicant.

AND THE COURT FURTHER ORDERS that the appellant husband be granted a costs certificate in respect of the appeal, pursuant to sec. 9 of the Federal Proceedings (Costs) Act 1981, being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the said Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.