F and F
[2004] FMCAfam 96
•8 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2004] FMCAfam 96 |
| FAMILY LAW – Application for recision of decree nisi – whether there was a miscarriage of justice on the grounds of fraud, perjury or suppression of evidence by virtue of section 58 of the Family Law Act 1975 – order 7, rule 14 of the Family Law Rules 1984 – husband contended that the documents were improperly served and therefore he would “sit on his rights” – alleged irregularities with documents – where the husband had consistently failed to accept the wife’s unambiguous statements that the marriage was at an end and did not wish to reconcile since initial separation – husband failed to establish the matters set out under section 58 of the Act – application dismissed. |
Family Law Act 1975 (Cth), ss.55, 55(5), 55(6), 58
Family Law Rules 1984, Order 7, Rule 14
| Applicant: | R A F |
| Respondent: | M M F |
| File No: | CAM 25 of 2003 |
| Delivered on: | 8 April 2004 |
| Delivered at: | Melbourne (via telephone to Canberra) |
| Hearing date: | 9 October 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person (via telephone) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | In person (via telephone) |
| Solicitors for the Respondent: | Nil |
ORDERS
That the Application of the husband filed 23 April 2003 for recision of a Decree Nisi made on 26 March 2003 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE (via telephone) |
CAM 25 of 2003
| R A F |
Applicant
And
| M M F |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 January 2003 the wife filed an Application for Divorce. On
19 February 2003 the matter came on for hearing before a Deputy Registrar who adjourned the matter as there was no proof of service. The Application came back before the Deputy Registrar on the adjourned date being 25 February 2003. On that date a Decree Nisi was granted.
On 23 April 2003 the husband who had not filed a Response, filed an Application to rescind the Decree.
Decision of Brewster FM and Appeal before Finn J
That Application was heard by Federal Magistrate Brewster on 19 May 2003 and he dismissed the husband's Application. On 8 July 2003 the husband filed a further Application seeking to stay the order made by Federal Magistrate Brewster on 19 May 2003 and seeking to stay the Decree Nisi from becoming absolute pending an appeal to the Full Court. The Application for a stay was dismissed by Federal Magistrate Brewster on 21 July 2003.
The husband's appeal proceeded before Finn J on 16 September 2003. The wife did not appear. The orders made by Her Honour were as follows:
(1) That the appeal be allowed;
(2)That the order of Federal Magistrate Brewster made 19 May 2003 be set aside;
(3)That the Application of the husband (filed 23 April 2003) for a recision of the Decree Nisi granted on 26 March 2003 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Brewster with all possible expedition;
(4)That the Appeals Registrar for the eastern region of the Family Court of Australia forward copies of this order and of the reasons for judgment when available to the wife;
(5) That once the husband's Application for recision is relisted for re-hearing before a Federal Magistrate, the Registrar or other officer of the Federal Magistrates Court responsible for the listing of cases advise the wife of the date for the re-hearing of the husband's Application for recision;
(6) That to the extent that is necessary having regard to the provisions of s 55(6) of the Family Law Act 1975 the Decree Nisi granted on 26 March 2003 not become absolute pending the re-hearing of the husband's Application for a recision of that Decree or for determination of any appeal in relation to any order made on the re-hearing
Her Honour noted that the husband's Application filed 23 April 2003 was an Application for the recision of the Decree Nisi on the ground of miscarriage of justice pursuant to s.58 of the Family Law Act 1975 (Cth) (the Act).
Section 58 of the Act is set out in the following terms:
58 Recision of Decree Nisi on the ground of miscarriage of justice.
Where a Decree Nisi has been made but has not become absolute, the Court by which the Decree was made may, on the Application of the 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 Decree, and, if it thinks fit, order that the proceedings be re-heard.
The effect of s.55(5) of the Family Law Act is that an Application for recision (or an appeal arising out of such an Application) is to be regarded as an appeal for the purposes of s.55, with the result that in this case, the Decree Nisi would not have become absolute until the appeal which arose out of the husband's Application for recision and any order for a re-hearing as a result of the appeal had been determined.
Her Honour found that Federal Magistrate Brewster had misdirected himself in relation to the matter before him and had been of the opinion that he was being asked to set aside a Decree Absolute. Whilst the husband had a number of submissions as to irregularities he alleged had occurred, her Honour determined the appeal simply on the basis that she agreed with the submission made by the husband that what Federal Magistrate Brewster ultimately appeared to have dealt with was a review of the Registrar’s decision grant of the Decree Nisi rather than the husband's Application to rescind the Decree. Her Honour said at paragraph 37 of her Reasons for Judgment:
It is reasonably clear from the passages of the transcript, to which I earlier referred, that the Federal Magistrate became confused as to whether he was determining an Application to review the grant by the Registrar of a Decree Nisi (which would have involved a re-hearing of the Application for divorce) or whether he was dealing with an Application under s 58 of the Act to rescind the Decree. As I have indicated earlier, the Federal Magistrate referred at the commencement of the hearing to the husband's Application as being an Application to review, but he then went on to refer to the matter of a recision and a miscarriage of justice. Ultimately, however, he purported to dismiss an Application for review.
Further, at paragraph 38 of the Reasons, Her Honour said:
Again as I earlier mentioned, the Federal Magistrate seems also to have misled himself, or misdirected himself, into believing that he would be rescinding a Decree absolute rather than a Decree Nisi, whereas s 58 only provides for a recision of a Decree Nisi, not of a Decree absolute. Moreover in this case, the Federal Magistrate was mistaken as to the fact, in that at the time the husband filed his Application for recision, the Decree had not yet become absolute.
Her Honour thus concluded that the husband's Application to recision remained undetermined and allowed the appeal.
The present Application
I am dealing with the husband's Application for recision of the Decree Nisi on the ground of miscarriage of justice pursuant to s.58 of the Act. His Application filed 23 April 2003 addresses the Application. The husband must establish to the satisfaction of the Court that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance. The husband supported his Application with an affidavit filed 23 April 2003.
The original proceedings
The Application for a Divorce filed by the wife indicates that the husband is a police officer and she is a bank teller. The husband was born on 28 January 1948 and the wife was born on 30 July 1951. Domicile of the parties in Australia was relied upon as founding the jurisdiction of the Court. The parties were married on 22 March 1969 and the wife swore to the separation having taken place on 2 February 2001.
In paragraph 13(b) of the Application the wife deposed to the fact that for a period of two weeks between 13 December 2001 and 1 January 2002 the parties lived under the same roof. The wife deposed to the fact that after separation the parties had not lived as husband and wife[1] and that there was no likelihood of reconciliation[2]. There are no children under the age of 18 to whom the Act applies.
[1] See question 14(a) of the Application for Divorce.
[2] See paragraph 15.
I have indicated that when the matter first came before the Court it was adjourned for proof of service. The wife had by then filed an affidavit by a process server who deposed to her efforts to serve the husband. She deposed to the following:
On or about 9th of the 1st 2003 I spoke on the telephone to the respondent husband, an officer, at his place of employment.
I identified myself to the respondent, and advised him that I had been given the within list of documents for personal service on him. I explained that it was a courtesy call from an ex member of the police service to a serving member and asked when would be a suitable time to deliver the documents to him. The respondent replied that next Monday (13th of the 1st 2003) after 5 pm would be all right. I thanked the respondent, and the call terminated.
At 5.15 pm on the 13th of the 1st 2003, I called at the respondents place of resident. The purpose of my visit was to effect personal service of the Application for divorce and allied documentation upon him. My ringing of the front door bell was unanswered. Believing that the respondent was delayed in his return home, I decided to wait in my car parked on the opposite western side of the road, a short distance from the respondent's home. At about 6.05pm on the 13th of the 1st 2003, I received a call on my mobile telephone from a male person who identified himself. He asked whether I still had the documents for service upon him. I replied that I did. He then stated that he was not going to accept personal service of the documents.
I explained to him that if he refused to accept them they could be served by 'putting them down in his presence' in accordance with the rules of service of the Act. He stated that he would not make himself available for such service. I then said that an Application might be made to the Court for an order for substituted service of the documents, by example serving them on his employer, at his place of work, or perhaps leaving them in his mail box. He said that would be okay and asked whether I would put them in his mail box. I replied that I would not, and he then terminated the call.
Under the circumstances, as it seems unlikely that personal service (sic) Application, set down for hearing on the 19th of the 2nd 2003 will be effected within the prescribed period prior to that date, perhaps consideration may be given for the reissue of an order of substituted service of the documents.
On 21 February 2003 an affidavit of a self employed engineer was filed. The relevant parts of his affidavit sworn 21 February 2003 say as follows:
On or about 19 February 2003 Ms M M F Banks, ACT, delivered to my office the following documents:
a)copy of the Application for divorce stamped with the Court seal and filed on the 7th of the 1st 2003;
b)copy of a certificate of marriage between R A F and M M H;
c)copy of notice of Application - divorce stamped with the Court seal; and
d)a pamphlet and order 25, rule 3 titled "marriage, family from separation."
M M F, the applicant wife in these proceedings requested that I personally serve the above listed Application for divorce (and other listed documentation) on the respondent husband named therein, Mr R A F at his usual place of residence, being premises known as, and situated in the Australian Capital Territory.
On or about 20 February 2003 at about 1815, I called at the respondent's place of residence. The purpose of my visit was to effect personal service of the Application for divorce and the allied documentation upon him. My ringing of the door bell resulted in a person coming to the door whom I recognised as Mr R F. I asked the person 'are you Mr R F?' he replied, 'yeah'. I said 'I have some documents that I have to give you,' he replied, 'yeah.' I said, 'will you accept these documents?' and he replied, 'yeah.' In his presence I left the documents on the doormat and left the residence.
It is apparent to me that this affidavit satisfied the Deputy Registrar who dealt with the matter on 26 March 2003 that personal service had been effected in accordance with the provisions of the Family Law Act. On that date the wife appeared in person and there was no appearance by the husband. The husband did not then, nor has he at any subsequent time filed a Response to the proceedings. As a consequence of being satisfied as to service and the other matters in the Application for divorce which were of course unchallenged, the Deputy Registrar granted the Decree Nisi.
The proceedings
The husband appeared before me but the wife did not initially appear. From a perusal of the documents on the Court file namely the Application and the affidavit of service it did not initially appear to me that the husband had any ground for asserting that there had been a miscarriage of justice. It appeared to me from a perusal of the Court documents that he was served with the Application, was aware of the hearing date and chose to do nothing about it. In particular he chose not to file a Response and to allow the matter to proceed. However after some exchange with the husband about my preliminary views it emerged that the husband had chosen not to file a Response because he took the view that the documents were invalidly served and that he would "sit on his rights" and then subsequently apply for recision which is precisely what he did.
The husband alleges a number of matters he contends invalidate the granting of the Decree and constitute a miscarriage of justice.
The husband complains that the documents were not handed to him personally, he had no idea of the process server's name or identity, did not know the process server and was not asked whether he was the husband. There is no legitimate basis for the complaints made by the husband. Suffice it is to say, as a matter of logic, that his complaints as to form, carry an implicit acknowledgment that he was served with documents, and received them on 20 February 2003.
He asserts that there was no time stated within which he should return the acknowledgment of service. This is not a matter which would invalidate the Decree and in any event the husband could have made an inquiry or simply filed it before the hearing date.
The husband asserts on page 1 of the Application in a section headed “place of hearing” the date appears. In fact there is nothing opposite the “date of hearing” but the Court stamp which appears above that makes it apparent that the document says “Canberra filed on 7 January 2003”. Whilst the juxtaposition of the seal is slightly high on the page in my view there is no doubt that the Application was to be heard at Canberra. The husband is a police officer and familiar with Court processes and procedures and in any event could have inquired had he been under any misapprehension. The juxtaposition of the words do not invalidate the Application, and there is no likelihood of being misled as to the location in which it would be heard.
The husband asserts that there is no seal on the change of date on the Application. The document is clear and there is no requirement for it to contain a seal over the change of date. If the husband was in any doubt he could have made an inquiry. I do not regard this as invalidating the process or creating a miscarriage of justice.
The husband asserts there is no indication as to whether any of the parties wish to attend Court or not and that section B question 9 was not completed in accordance with the Rules. Section B, Question 9 headed ‘Request Not to Attend Proceedings’ asks the question “Do you want to attend Court when it decides your Application? There is a box for ‘yes’ and ‘no’ which can be ticked. The original document filed does indicate that the wife did not intend to appear in Court when the matter was heard, however, the copy served on the husband has nothing completed in this section.
Rule 14 of the Family Law Rules (1984) provides for hearing in the absence of parties where, inter alia "14(b)" both:
i)at the date of the hearing there are no children of the marriage, within the meaning given in subsection 55A(3) of the Act under the age of 18;
ii) the respondent has been served with a request in accordance with part B of form 4 not less than 28 days before the date of hearing unless a response opposing the Application is filed, the Court or a Registrar may determine the proceeding even if neither of the parties to the proceedings nor their lawyers are present.
It appears in this case however from the record of proceedings that notwithstanding the notation on the Court's document the wife did appear at the hearing and accordingly the Court was entitled to proceed with her Application. The document provided to the husband did not have a request on it at all. All that it means is that the husband would not have been aware whether or not the wife intended to attend Court. In my view however this is not a miscarriage which would invalidate the proceedings. The husband chose not to appear. He did not know whether the wife would appear or not.
Order 7 Rule 14 of the Family Law Rules deals with a hearing in the absence of the parties. It provides for a hearing in the absence of the parties if, the respondent has been served with a request in accordance with part B. As part B was not completed on his document the respondent was not served with the request under part B to have a hearing in the absence of the parties and he was not therefore entitled to assume anything from the absence of such a request. The wife did attend consistently with the non completion of part B and there is no miscarriage of justice occasioned on this ground.
The husband asserts that in the Notice of Application attached to the Application for Divorce, whilst the notice bears the Court seal it does not bear the signature of the registry officer or the date in the box provided for that purpose. As to the non-signature by the Registrar on the Notice of Application this document is not a prescribed form but part of the divorce kit provided to litigants filing their Application for Divorce. It carries information to the respondent as to what they must do if they wish to oppose or not oppose the Application. Whilst the document contained a box for signature of a Registry Officer there is no legislative requirement that the document be signed and it is merely a document providing notice to the respondent. In this case the notice was received by the respondent husband who was well able to read the contents. It is not a prescribed document and I would not regard the non-signature by the Registrar as creating any miscarriage of justice of these or invalidating the proceedings. The document merely contains the information as to what a respondent should do and that information was conveyed to the husband by service of the notice upon him. The information contained therein could not be in any sense said to be misleading merely because it did not bear the signature of the registry officer.
The husband had various complaints about the dates in the acknowledgment of service, namely that it referred to January 2003. However the husband did not sign an Acknowledgment of Service and therefore it could not be said that anything in the acknowledgment of service misled him. He had clearly been served.
It is the husband's submission that there are legislative provisions to the effect that a Decree Nisi may not be granted on the first hearing date. No further explanation of this ground was advanced by the husband and it is clearly wrong.
The husband asserts that the Application for Divorce served upon him had the original hearing date of 19 February 2003 crossed out and the new date 26 March 2003 filled in. However, the Acknowledgment of Service attached thereto (which the husband did not sign) and the cover sheet of the marriage certificate, bore the original date of 19 February 2003. The miscarriage alleged is that the husband asserted that he was confused as to the date upon which the Application would proceed.
He claims to have been confused by the date of 19 January on the cover sheet of the marriage certificate and on the acknowledgment of service served with the Application for divorce, although, the Application for Divorce itself had 19 February crossed out and 26 March inserted. There is however one significant problem with the husband's submission. He was served on 20 February 2003 which was the day after the original hearing date. It would have been obvious to him that he was not being served with a document requiring him to be at Court on the previous day and that the date written in above the crossed out date (26 March) was the new hearing date. I regard, in addition the husband's attitude to the proceedings as indicating a lack of bona fides on his part for the following reasons.
a)the first difficulties with service upon him;
b)the number of what I regard as silly technical objections; and
c)more importantly if he was genuinely in doubt as to the date of hearing, his lack of inquiry from the Court about the listing date preferring rather to wait until the Divorce had been granted and then to raise what he alleged to be matters invalidating it.
However, I am conscious that an Application for Divorce is a matter which effects status and which is a serious matter. In an abundance of caution and because the husband had raised in his material matters which went to the factual basis upon which the Decree was granted I allowed evidence from each of the parties to be given and cross-examination to take place so that I could determine whether there was any merit in the husband's assertion that if he had been properly served and notified of the proceedings he would have responded and that his Response would have been based upon his assertion that the parties had not been separated for a period in excess of 12 months prior to the institution of proceedings or that the marriage had irretrievably broken down.
I allowed the wife to give evidence by telephone and she was extensively cross-examined by the husband.
As a result of the evidence I am satisfied of the following and make the following findings:-
a)that the parties separated on 2 February 2001 when the wife left the former matrimonial home in Canberra[3];
b)that in December 2001 the wife moved back into the house on the basis that the husband would move out. I am satisfied that the husband did not immediately move out as promised that the parties lived in separate parts of the house and did not resume cohabitation. She remained until 7 February according to her evidence[4] or 13 February 2002 according to the evidence of the husband[5];
c)thereafter the parties did not live together; and
d)I find that notwithstanding the husband's evidence the wife does not wish to reconcile with him and has not indicated a wish to reconcile with him since their initial separation. I find that the husband has consistently refused to accept the wife's clear and unambiguous statements that the marriage is at an end and continues to refuse to accept them. His refusal to do so is exemplified in the following passage:
Mr F can I ask you now, having heard what Ms F has now said under oath - - -?---Yes.
[3] See Transcript, page 8, lines 35 to 40.
[4] See Transcript, page 24, line 35.
[5] See Transcript, page 24, line 36.
- - - do you now accept that the marriage is irretrievably broken down?---No I don't.
Thank you?--- And I'll continue - I'll appeal it and I'll take it to the High Court your Honour[6].
[6] See Transcript, page 30, lines 40 to 46.
From the evidence I am satisfied that the parties separated on
2 February 2001, that cohabitation was not thereafter resumed although the wife lived in the house with the husband between 13 December 2001 and early February 2002. I am therefore satisfied that the parties separated for a period of 12 months prior to the filing of the Divorce Application. I am further satisfied that the marriage has irretrievably broken down and there is no likelihood of a reconciliation.
Accordingly it follows that I find that there is ultimately no merit to the husband's opposition to the Divorce. I am not therefore satisfied that there has been a miscarriage of justice pursuant to s.58 of the Act to warrant a recision of the Decree Nisi and the husband's Application filed 23 April 2003 seeking recision of the Decree Nisi granted on
26 March 2003 must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 27 April 2004
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