Easterlefa And Giannopoulos

[2013] FamCA 941

FAMILY COURT OF AUSTRALIA

EASTERLEFA AND GIANNOPOULOS [2013] FamCA 941

FAMILY LAW – DIVORCE – POWER TO SET ASIDE A DIVORCE ORDER – Where a divorce order in respect of two parties was made in the Federal Magistrates Court – Where both parties now seek to have the order set aside on the basis that it is invalid – Where the divorce order has taken effect – Where the order cannot be rescinded – Where the parties have no right of appeal – Where the only relief available to the parties is a declaration as to the validity of the order under s 113 of the Family Law Act 1975 (Cth) – Consideration of the Court’s power to set aside a divorce order

Family Law Act 1975 (Cth)

In the Marriage of Miller (1983) FLC 91-328
Price v Underwood (Divorce Order) (2009) FLC 93-408

APPLICANTS: Ms Easterlefa and Mr Giannopoulos

FILE NUMBER: SYC 6539 of 2012

DATE DELIVERED: 4 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: La Rosa Izzo & Co

ORDERS

IT IS ORDERED

1. That pursuant to its power under section 113 of the Family Law Act 1975 (Cth) the Court makes a declaration that the divorce order made by the Federal Magistrates Court on 4 April 2013 is invalid.

2. That the divorce order made by the Federal Magistrates Court on 4 April 2013 be set aside.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Easterlefa & Giannopoulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6539 of 2012

Ms Easterlefa and Mr Giannopoulos

Applicants

REASONS FOR JUDGMENT

1. Before the Court are proceedings arising out of the marriage of Mr Giannopoulos and Ms Easterlefa. The parties, who are joint applicants, were married in 2003 and separated for the first time in July 2010. Thereafter they lived separately and apart for about 18 months and at the beginning of January 2012 they resumed cohabitation as husband and wife. They continued to live together until the first week of May 2012. There is no dispute that between January and May 2012 they resumed their cohabitation and lived together as husband and wife.

2. In May 2012 their relationship again became strained and they separated, the wife moving away from their common residence.

3. In September 2012 they jointly instructed a solicitor to make an application for divorce and their joint application was filed on 1 November 2012. In the application for divorce they clearly set out the fact that between January 2012 and May 2012 they reconciled and lived together as husband and wife.

4. Section 48 of the Family Law Act 1975 (Cth) (“the Act”) sets out the basis upon which the Court may deal with an application for a divorce in the following way:

   (1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

   (2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order 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 the divorce order.

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

5. The Act contemplates a resumption of cohabitation for a period of time and s 50 provides:

   (1) For the purposes of proceedings for a divorce order, 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.

6. Thus, on the face of the application for divorce it was clear that the parties had cohabited for five months between January 2012 and May 2012 and therefore they had not been separated for 12 months on the date of the filing of the application, which was 1 November 2012. On the face of the application, the criteria set out in s 48(2) had not been satisfied.

7. In December 2012, the parties reconciled and resumed living together as husband and wife.

8. On about 3 December 2012, the parties were advised by their solicitor that a Registrar of the Court had considered the application for divorce and formed the view that the application could not proceed on the evidence which was available on the face of the application. 

9. The matter was adjourned on two occasions and ultimately listed on 4 April 2013. The parties were satisfied, on the advice of their solicitor, that the divorce application would be rejected because the evidence could not satisfy the criteria set out in s 48(2).

10. Unfortunately, on 4 April 2013, a divorce order was made, taking effect, pursuant to the provisions of s 55(1), at the expiration of one month from the making of the order. The parties were not notified until 10 May 2013 that the divorce order had been pronounced, by which time it had taken effect.

11. Section 93 provides that no appeal lies from a divorce order after the order has taken effect.

12. Section 57 provides that a rescission order, on the ground that the parties have become reconciled, cannot be made after a divorce order takes effect.

13. Section 58 provides that a rescission order, on the ground of a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstances, cannot be made once the divorce order has taken effect.

14. Thus the grounds available to the parties in these proceedings, to set aside the divorce order, are limited.

15. On 31 May 2013, the solicitor for the parties jointly filed an Application in a Case seeking the following orders:

    (a)A declaration pursuant to section 113 of the Act, that the divorce order made by the Federal Magistrates Court on 4 April 2013 is invalid.

    (b)An order that the divorce order made by the Federal Magistrates Court on 4 April 2013 be set aside.

    (c)Such other order as the Court may deem appropriate.

16. In support of that application the solicitor filed affidavits of the husband and the wife and an affidavit of the solicitor. 

17. On 5 June 2013, the solicitor was advised that the application had been rejected for filing.

18. The application now before the Court seeks the following orders:

    1.That the Court review the order made by Registrar Halbert on 4 June 2013 rejecting the filing of an application in a case in the Family Court of Australia dated 31 May, 2013 by the applicants pursuant to rule 18.08 of the Family Court Rules seeking a declaration pursuant to section 113 of the Family Law Act, 1975 that the divorce order made by the Federal Magistrates Court on 4 April 2013 is invalid and seeking an order that the divorce order be set aside.

    2.That the application dated 31 May, 2013 be filed in the Family Court of Australia together with supporting affidavits.

    3.Such other orders as may appear appropriate to the Court.

19. It is this joint application which falls for determination before me.

20. The power of the Court to make a declaration is found in s 113 of the Act (“Proceedings for declarations”) which provides:

    In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.

21. Section 4(1)(b) (the definition of “matrimonial cause”) includes:

    (b) proceedings for a declaration as to the validity of:

    (i) a marriage; or

    (ii) a divorce; or

    (iii) the annulment of a marriage;

    by decree or otherwise;

22. Thus, the Court has power to make a declaration as to the validity of a divorce.

23. The Court’s power to set aside a divorce order has been considered on relatively few occasions.

24. In In the Marriage of Miller (1983) FLC 91-328 (“Miller”), the Full Court of the Family Court (per Evatt CJ, Asche J and Fogarty J) considered, inter alia, the circumstances in which a decree of dissolution of marriage could be set aside. In the context of property settlement proceedings, one of the issues for the Full Court to determine was whether a purported marriage between the parties was void and, therefore, whether the decree to dissolve their marriage was void. After considering a number of English and Australian authorities which had dealt with the question of when a decree absolute of dissolution of marriage may be treated as a nullity, Fogarty J, with whom Evatt CJ and Ashe J agreed, said at 78,236-37 that the following six principles could be extracted:

    1. Once a decree nisi has become absolute no appeal lies against that decree — see sec. 93.

    2. Section 56 is an administrative and evidentiary provision and makes the certificate of decree absolute admissible (but not conclusive) evidence of the matters stated in that certificate: Dern v. Dern (1961) 2 F.L.R. 126 at p. 129.

    3. In limited circumstances a Court may set aside a decree of divorce notwithstanding that it has become absolute or it may be treated or acted upon by the parties as a nullity.

    4. The fundamental problem is the circumstances in which that is so. This is because there is a basic conflict between:

    (a) the policy that a decree absolute should be inviolate and not open to subsequent challenge; and

    (b) the right of a Court of record to set aside its orders where there has been a fundamental miscarriage of justice.

    This policy conflict is illustrated in the remarks of Scott L.J. in Meier v. Meier (1948) 1 All E.R. 161 at p. 162 where his Lordship said:

    ''The policy of Parliament requires that a decree absolute should be protected unless there is some ground on which the Court could reasonably exercise its inherent jurisdiction to vary the order in the interests of justice. In this case, in my opinion, there is none. The principle on which Parliament has treated a decree absolute as sacrosanct is one on which this Court must act.''

    ….

    5. No problem is experienced where the decree in question is a nullity on its face; for example, a decree of a court of summary jurisdiction purporting to grant a decree of dissolution of marriage. As Latham C.J. said in Parisienne Basket Shoes Pty. Ltd. v. White (1937) 59 C.L.R. 369 at p. 375:

    ''It cannot be said, whenever a Court makes an erroneous decision, it acts without jurisdiction. An order made without jurisdiction — as if a court of petty sessions purported to make a decree of divorce — is not an order at all. It is completely void and has no force or effect. The persons who make the order will, for example, if any action by way of interference with person or property is taken under the authority of the order, be liable in action of trespass.''

    6. The conflict becomes acute however where one is concerned with the case where a decree has become absolute and is made by a Court having jurisdiction to grant that decree and is valid on its face. It appears to me that notwithstanding the legislative scheme in the Family Law Act there are limited circumstances in which such a decree is void or may be impeached upon that basis. For relevant purposes the authorities suggest those circumstances may fall into three categories:

    (a) A failure to comply with legislative requirements which are conditions precedent to the decree nisi becoming absolute. This is a particularly apt category in England because of the legislative scheme by which, in effect, the decree nisi is not to become absolute save on application to the Registrar (or Court) and upon satisfaction that certain legislative conditions precedent relating to financial provision and welfare of children have been completed. A number of English cases need to be understood in this context. It seems to me that the only equivalent provision in the Family Law Act is the necessity for there to be a declaration under sec. 63 before a decree nisi may become absolute.

    (b) Where there was the absence of an element fundamental to the granting of the decree. For example, the absence of any marriage to dissolve, the absence of any jurisdictional connection by either of the parties to the Court which granted the decree, or constitutional limits in Australia. This category has obvious limits which it is unnecessary to explore in this case. For example, where there has been a conscious finding of a particular element by the Court granting the decree that may be challenged by an appeal but there are obvious limits to a subsequent challenge to the validity of the decree upon that ground.

    (c) Where there has been a procedural irregularity which has caused a denial of natural justice. For example, where there has been no service of the proceeding and no order dispensing with service (as distinct from some defect in service or where there was an order dispensing with service which is later treated as having been inappropriately made). Examples of the former include the well known English cases of Edwards v. Edwards (1951) 1 All E.R. 63 and Wolfenden's case (supra). (Emphasis added)

25. While Evatt CJ agreed with the judgment of Fogarty J, her Honour made some additional comments in relation to the effect of a decree absolute of dissolution of marriage at 78,229-30:

    I would, nevertheless, agree that there are limited circumstances in which a Court may set aside a decree of divorce notwithstanding that it has become absolute and also circumstances in which a decree may be treated or acted upon by the parties or by a Court as a nullity even though it has not been formally set aside.

    There seem to be two possible situations. The first would arise when there is a fundamental flaw in the exercise of jurisdiction, a flaw which is fatal to the validity of the decree. When such a matter is established, the decree must fail, and must be treated by the Court and for all purposes as a nullity, void ab initio. The dissolution of a non-existent marriage would obviously come into this category.

    The distinction between decrees which are void and voidable was referred to in the passages quoted from In re F. (1977) 2 W.L.R. 488 at pp. 493-494; Marsh v. Marsh (1945) A.C. 71 at p. 84 and the powers of the Court to set aside a voidable decree on discretionary grounds have been discussed in numerous authorities, and most recently in Purse v. Purse (1981) 2 All E.R. 465. It is not necessary to explore these questions in the present case as on the facts stated the decree is of no effect. There is no point in pursuing the issue whether the decree itself is void or voidable. As it is without effect, no immediate rights depend on whether it remains standing or whether it is set aside. For the same reason it can be disregarded and there is no need for its validity to be brought into issue. (Emphasis added)

26. For present purposes it is not necessary to determine whether the divorce order is void or voidable.

27. In Price v Underwood (Divorce Order) (2009) FLC 93-408 (“Price v Underwood”), the Full Court (per May, Boland and Ryan JJ) considered an appeal in relation to a divorce order. There were a number of issues before the Full Court, one of which was the question of whether an appeal can be brought against a divorce order which is final, or whether the only relief available is a declaration that the divorce order is void.

28. In the joint judgment of Boland and Ryan JJ, their Honours undertook an extensive examination of the existing authorities on the topic at [186]–[208], including portions of the judgments of Fogarty J and Evatt CJ in Miller (supra) with apparent approval. At [205], following their discussion of Miller (supra), their Honours noted that:           

    Subsequent decisions of the Court have determined that decrees which had become absolute could be set aside under s 113 (Wardale & Wardale (1990) 92-151; Hodgens & Hodgens (1984) FLC 91-502; Cross & Cross (1995) FLC 92-628).

29. Boland and Ryan JJ summarised their overall findings at [209]:

    Thus we would summarise the effect of the legislation and the authorities as follows:

    ·    A divorce order which has taken effect (“a final divorce order”) is generally to be regarded as inviolate particularly if relied upon by third parties.

    ·    Section 4(1) provides specific power to make a declaration in respect of a divorce order. The provision is not limited to overseas divorce orders or decrees.

    · If a final divorce order has been made, a declaration as to its validity may be sought under s 113.

    · Section 113 does not itself enable the Court to make consequential orders if the Court finds a final divorce order invalid, but the Court, albeit a creature of statute, may make necessary consequential orders (to set aside the divorce order) as part of its implied powers to control its own processes.

    ·    The ratio in Brennan should be read in context of the facts which pertained in that case, the specific legislation (s 28) and with some reservation, because of the High Court’s discussion of the English Authorities.

    ·    A final divorce order will be void if there is a fundamental flaw in the exercise of jurisdiction – where the flaw is fatal to the validity of the decree.

    ·    If the facts on which a party seeks a declaration that a final divorce order should be set aside suggest the divorce order is voidable, the divorce order may, in the exercise of discretion, be set aside.

30. In their concluding statements, Boland and Ryan JJ shed further light on the process of obtaining a remedy under s 113 for persons adversely affected by a divorce order when there has been a fundamental flaw in the judicial process. At [212] their Honours said:

    A divorce order is an order which must be capable of certifying to many public institutions, but particularly persons who wish to remarry, the status of persons who were formerly married without the need to go behind the order. Persons who are adversely affected, when there is a fundamental flaw in the judicial process, have a remedy in s 113 which may be exercised in the discretion of a judicial officer if appropriate to do so. As a divorce order is now generally made by a Registrar exercising delegated power, an application may be first made to a Judge or Federal Magistrate to review that decision de novo (see Grayden & Grayden (2003) FLC 93-146).

31. In the present case I am satisfied that, on the face of the application for divorce, there was no basis upon which the divorce order could have been made.

32. Accordingly, the applicants have a remedy in s 113 and I have granted leave to the applicants to file the application seeking declaratory relief.

33. The matter was made returnable before me on 3 December 2013 and the applicants and their legal representative were excused from further appearance.

34. For the reasons that I have set out above, there being demonstrated a fundamental flaw in the exercise of discretion in granting the order, the flaw going to the absence of an element fundamental to the granting of the order, the order will be set aside.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 December 2013.

Associate: 

Date: 4 December 2013