Fitzpatrick & Fitzpatrick

[2005] FamCA 497

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA34 of 2004
Appeal No. EA43 of 2004
File No. CAF 1463 of 2003

IN THE MATTER OF:

RAF

Appellant Husband

- and -

MMF

Respondent Wife

REASONS FOR JUDGMENT

BEFORE:                  Holden, Warnick and Boland JJ
HEARD:  16th day of December 2004
JUDGMENT:           17th day of June 2005

APPEARANCES: The Appellant Husband represented himself
The Respondent Wife represented herself

APPEALS - From decision of Family Court judge

APPEALS - From Federal Magistrates Court - whether the Federal Magistrate erred in deciding that the marriage had irretrievably broken down - grounds to rescind the Decree Nisi under s 58 of the Act

APPEALS - Leave to appeal - applicable principles

EVIDENCE – Application to adduce fresh evidence - applicable principles.

Before us for determination on 16 December 2004 were two Notices of Appeal filed by the husband on 1 April 2004 (EA34 of 2004) and 4 May 2004 (EA43 of 2004).
The first of these (EA34 of 2004) was an appeal against orders made by Faulks J, as he then was, on 22 March 2004. The orders appealed from were:
(a)The parties attend a conciliation conference with a Deputy Registrar of this Court to try to reach agreement about the matters in issue between them in relation to financial matters; and
(b)The husband is directed and ordered to file a financial statement on or before 4 pm on Wednesday, 31 March 2004 and a response in a form which sets out concisely and precisely the orders he seeks in the proceedings.
The second (EA43 of 2004) was against an order by Chief Federal Magistrate Bryant, as she then was, that the application of the husband filed 23 April 2003 for recision of a decree nisi made on 26 March 2003 be dismissed.
Having read the husband's written submissions and having heard his oral submissions, we dismissed both appeals indicating that we would give our reasons later. These are those reasons.
We have decided to give reasons with respect to both appeals in the one judgment, the reason being that the husband had three identical applications in respect of each of the appeals.
All three applications initially came on before Finn J on 7 December 2004. On that day, her Honour ordered as follows:
"1.That the application by the husband for an adjournment of the hearing of the appeals (as contained in the application filed by the husband on 22 November 2004 and in paragraph 8 of the orders sought in the application filed by the husband on 26 November 2004) be listed for hearing by the Full Court at the same time as the appeals are (and remain) listed for hearing by the Full Court (being 10.00am on Thursday, 16 December 2004).
2.That the respondent wife be entitled to participate in that hearing by the Full Court at 10.00am on Thursday, 16 December 2004 by video link between the Court in Sydney and the Court in Canberra.
AND IT IS NOTED IN CONNECTION WITH THIS ORDER that the husband has advised the Court that he is prepared to appear in person before the Full Court in Sydney at the hearing at 10.00am on Thursday, 16 December 2004.
3.That the application filed by the husband on 1 October 2004 seeking leave to adduce further evidence at the hearing of the appeals and the application filed by the husband on 26 November 2004 so far as it seeks leave to adduce further evidence at the hearing of the appeals be listed before the Full Court for hearing at the same time as the appeals are listed for hearing.
4.That the application by the husband to suppress (in the sense of not disclosing to the respondent wife) certain parts of the application filed by the husband on 26 November 2004 and certain passages in the affidavits of the husband in support of the applications filed 22 November 2004 and 26 November 2004, be listed before the Full Court for hearing at the same time as the applications referred to in Orders 1 and 3 of these orders are listed for hearing."
The appellant, who is a Police Officer, sought that the hearing of the appeals be adjourned because he was the subject of an internal investigation by his superiors. He felt that the investigation reflected adversely on his integrity and would prejudice his prospects of success in his appeals.
It was our view, that the internal investigation was an entirely separate matter and therefore irrelevant to the husband's appeal. Accordingly, we dismissed the application for an adjournment. This disposed of his application filed on 22 November 2004 and paragraph 8 of the orders sought in an application filed on 26 November 2004.
On 1 October 2004 the husband filed, in relation to each appeal, applications to adduce further evidence. Specifically, the husband sought the following orders:
"1.That in accordance with Family Law Rules 2004 Rule 22.51 I seek leave, or permission, for the Court to receive further evidence on the hearing of the Appeal, relative to Property settlement matter, EA 34 / 2004 and CAF 1463 /2003 and, the Divorce Appeal matter, EA 43 / 2004 and CAM 25 / 2003, involving [the wife and the husband].
2.I seek leave from the Full Court, (or other relevant Court), to admit into evidence, at the time of the hearing before the Full Court, (or other relevant Court) all such relevant evidence relating to both the said Appeal matters, that is contained in the offical (sic) Court Transcripts, including other relevant evidence submitted by me, (the husband / appellant) of the already held hearings, before the Honourable Justice Finn, relative to both the said Appeals.
3.I also seek and (sic) Order for costs and damages from the said named lawyer
The further evidence that the husband sought to adduce comprised documents contained in sealed envelopes. In order to ascertain whether or not the documents had any relevance to the appeal, it was necessary for us to read them.
Whether or not to admit further evidence on appeal is a discretionary matter. As the High Court pointed out in CDJ v VAJ (1998) FLC 92-828 one consideration in construing s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) is its remedial nature. Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedure.
Having taken the time to read and consider the documents that the husband wished to adduce into further evidence, we were firmly of the view that what the husband wanted us to have regard to would not, if accepted, demonstrate that the orders made in either appeal were erroneous. Accordingly, we dismissed the application to adduce further evidence.
The third application filed by the husband sought to suppress (in the sense of not disclosing to the respondent wife) certain parts of the application filed by him on 26 November 2004 and certain passages in the affidavits of the husband in support of the applications filed 22 November 2004 and 26 November 2004. He also sought that the documents that he sought to adduce by way of further evidence not be disclosed to the wife. As we dismissed the application to adduce further evidence it, in our view, became unnecessary for us to deal with that application.
We now turn to our reasons for dismissing each appeal.

Appeal against order of Faulks J - 22 March 2004
Background - This background relates to both appeals.

The husband was born in January 1948 and the wife was born in July 1951. The parties were married in March 1969 and the wife swore to the separation having taken place in February 2001. They remained separated except for a period of 2 weeks between December 2001 and January 2002. During those 2 weeks they lived under the same roof.
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 for proof of service. The application came back before the Deputy Registrar on 25 February 2003 and on that date a decree nisi of dissolution of marriage was granted.
The husband did not file a Response, nor did he attend when the decree nisi was pronounced. On 23 April 2003, he filed an application to rescind the decree. That application was heard by a Federal Magistrate on 19 May 2003 and was dismissed. On 8 July 2003, the husband filed a further application seeking to stay the order and seeking to stay the decree nisi from becoming absolute pending an appeal to the Full Court. That application was dismissed on 21 July 2003.
The husband appealed the order dismissing the husband's application for recision and that appeal was heard by Finn J on 16 September 2003. On that date, her Honour ordered, inter alia:
1. That the appeal be allowed.
2.That the order of Federal Magistrate Brewster made on 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.
The matter was heard by Bryant CFM, on 8 April 2004. Reasons for judgment were delivered on 8 April 2004 and made an order on that date dismissing the husband's application, filed 23 April 2003 for recision of the decree nisi.
In the meantime, on 5 December 2003, the wife filed a Form 3 application instituting proceedings for settlement of property.
On 12 February 2004, the husband filed what purported to be a Form 3A Response. That document essentially accused the wife's solicitors of improper conduct in that they were promoting the proceedings contrary to the wishes of the wife. It was further asserted that the Court had no jurisdiction to determine property proceedings between the parties. Reading between the lines it is quite apparent that the husband did not accept that the marriage had broken down irretrievably.
The matter came before a Deputy Registrar on 2 March 2004 and was adjourned to 22 March 2004.
It came on before Faulks J on that date. The wife was represented by counsel. The husband did not appear, nor was he represented. At the conclusion of a brief hearing, his Honour made the orders now appealed from.

A preliminary point

Section 94AA(1) of the Act provides:
"FAMILY LAW ACT 1975 - SECT 94AA
Leave to appeal needed in some cases
(1)An appeal does not lie to a Full Court of the Family Court from a prescribed decree of a court other than the Federal Magistrates Court, except by leave of a Full Court of that Court.
(2)An application for leave under subsection (1) is to be determined by a Full Court of the Family Court.
(2A)An appeal does not lie to the Family Court from a prescribed decree of the Federal Magistrates Court, except by leave of the Family Court.
(2B)An application for leave under subsection (2A) is to be determined by a single Judge or by a Full Court.
(2C) The single Judge referred to in subsection (2B) need not be a member of the Appeal Division.
(3) The standard Rules of Court may make provision for enabling applications for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing."
Regulation 15(A) provides:
"FAMILY LAW REGULATIONS 1984 - REG 15A
Leave to appeal - prescribed decrees (Act s 94AA)
(1) For subsection 94AA(1) of the Act, a decree of the kind mentioned in subsection 94(1) of the Act that is an interlocutory decree (other than a decree in relation to a child welfare matter) is prescribed.
(2) For subsection 94AA(2A) of the Act, a decree of the kind mentioned in paragraph 94AAA(1)(a) of the Act that is an interlocutory decree (other than a decree in relation to a child welfare matter is prescribed.
(3)      In this regulation:
"child welfare matter" means a matter relating to:
           (a)      the person or persons with whom a child is to live; or
           (b)      contact between a child and another person or persons; or
(c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child."
The orders made by Faulks J were clearly interlocutory. Because the husband was representing himself and the wife was not taking part in the appeal except to be present (by way of video), we indicated that we would proceed as if there were an application for leave to appeal and explained to the husband what he would have to demonstrate for such an application to succeed.

Applicable law

The principles governing an application for leave under s 94AA(1) of the Act are well known. In order to succeed in such an application the applicant must satisfy this Court that there has been an error of principle by the trial Judge and/or that the orders made caused a substantial injustice to the applicant: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Rutherford and Rutherford (1991) FLC 92-255. Leave may also be granted in cases where the applicant demonstrates that the case raises issues of general importance: Aarons v Knowles (1995) FLC 92-627.
There has been some debate about whether the twin criteria of error of principle and substantial injustice should be applied disjunctively or conjunctively. The Full Court in Rutherford (supra) restated with approval, the statement of the majority (Gibbs CJ, Aickin, Wilson and Brennan JJ at 177) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra), at 78,715:
“Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:
`. . . I am of the opinion that, . . . there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.'
See also Brambles Holdings Ltd. v. Trade Practices Commission [(1979) 28 ALR 191 at 193]; Dougherty v. Chandler [(1946) 46 SR (NSW) 370 at 374]. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration."
This approach has continued to be affirmed by the Full Court in subsequent cases (see Gilmore v Gilmore (1993) FLC 92-353; Smith v Grey (1993) FLC 92-366; Emamy and Marino (1994) FLC 92-487; Reed CJ and Reed RD and Draper MJ (Intervener) (1995) FLC 92-649; Brott and Joachim (2001) FLC 93-071).
Having read the husband's grounds of appeal and his written submissions we were readily able to conclude that there had been no error of principle by the trial Judge and/or that the orders made caused a substantial injustice to the applicant. This is particularly so when one considers that the thrust of one of his arguments is that he and his wife are perfectly able to reach agreement over financial matters without the intervention of the Court. If that is the case, then an order that the parties attend a conciliation conference can hardly be said that there has been an error of principle by the trial Judge or that the orders caused a substantial injustice. We were further satisfied that the case did not raise any issue of general importance and for those reasons we dismissed the appeal.

The appeal against the order of Bryant CFM of 8 April 2004
Reasons for Judgment of Bryant CFM

Her Honour described the somewhat tortuous history as set out earlier in these reasons for judgment. She then noted:
"17.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 a recision which is precisely what he did."
Her Honour then dealt with a number of matters which the husband contended invalidated the granting of the decree nisi and which constituted a miscarriage of justice. In summary, those complaints were:
(a)insofar as service of the documents was concerned, he complained that they were not handed to him personally, he had no idea of the process servers name or identity, did not know the process server and was not asked whether he was the husband;
(b)no time was stated in which he should return the acknowledgment of service;
(c)that the filing date and place of hearing were juxtaposed;
(d)there was no seal on the change of date on the application;
(e)there was no indication as to whether any of the parties wished to attend court or not in that section B, question 9 of the divorce application was not completed in accordance with the Rules;
(f)the notice of application attached to the application for divorce whilst bearing the Court's seal did not bear the signature of the Registry officer or the date in the box provided for that purpose;
(g)the application for divorce served upon him had the original hearing date of 19 February 2003 crossed out and a new date of 26 March 2003 inserted. However, the acknowledgement of service and the cover sheet of the marriage certificate bore the original date of 19 February 2003 which he claimed confused him.
Her Honour regarded all of the above as "silly technical objections" but, nevertheless, dealt with each one in turn. Her Honour found that there was a lack of bona fides on the part of the husband but went on to say:
"32.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.
33.I allowed the wife to give evidence by telephone and she was extensively cross-examined by the husband.
34.As a result of the evidence I am satisfied of the following and making the following findings:-
(a)that the parties separated [in February 2001] when the wife left the former matrimonial home in Canberra;
(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 [February] according to her evidence or (sic) [February] 2002 according to the evidence of the husband;
(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.
- - - 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.
35.From the evidence I am satisfied that the parties separated in [February] 2001, that cohabitation was not thereafter resumed although the wife lived in the house with the husband between [December] 2001 and [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.
36.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." [footnotes omitted]

Grounds of Appeal

The husband's Notice of Appeal contains 42 grounds which are as follows:
"1.       Miscarriage of justice
2.       Supression (sic) of evidence
3.       Denial of natural justice
4.       Questions of fact
5.       Questions of law
6.       Matters of significant public interest
7. Failure of Federal & Family Court to comply with certain provisions of Family Law Act and other associated legislation and guidelines
8.       Prejudice, contempt and bias displayed by Court with Sworn evidence from Husband
9. Bias, inequity, displayed by Court with granting Decree Nisi to Applicant wife, in absence of, real evidence and, respondent husband. Therefore, I submit, the Court failed in its mandatory duty and jurisdiction, to comply with and adhere to, the Principles, that 'shall' be applied by the Family Court, in accordance with section 43(a) (b) (c) and (d) of the Family Law Act 1975, in preserving and protecting the institution of marriage, when it had a very clear, lawful and proper opportunity to do so.
10.      Failure of Court to conduct proper hearing
11.      Failure of Court to consider all the evidence
12.      Inadmissible evidence
13.      Submission of unsubstantiated and or, false, misleading, incomplete evidence
14.      unreasonablessness (sic) and injustice
15.      Invalid Divorce Notice documents left for respondent husband
16.      Failure to comply with proper process for, 'service' of Divorce notice
17.      Evidence of, 'confused' bias and prejudicial manner in which Federal Magistrate Brewster conducted hearings.
18.      Alleged derogatory and prejudical (sic) comments made
19.      Alleged provision of bias, false, misleading, incomplete information by Court staff to wife
20.      Alleged certain actions undertaken and information provided by Court to wife, alleged to have resulted in further confusion and acts of betrayal
21.      Failure of Federal Magistrate Bryant to fully comply with, 'Order' issued by The Honourable Justice FINN, dated 16 September 2003, in a proper manner. In particular Order point 1 to 5 and Reasons for Judgement point 40 ; Orders 47 1 to 6.
22.      Evidence of, pre-empting and alleged contempt, of Appeal Hearing decision and Orders ; Reasons for Judgements made by The Honourable Justice Finn, by Court and, wife's Solicitor, with allowing the submission and filing of, Property Settlement and Financial settlement documents filed on the 8^th December 2003 ref: CAF 1463/2003
23.      Alleged exagerated (sic) statements, findings and assumptions
24.      Alleged false, misleading, incomplete information and, selective recording of evidence associated with findings and decisions made without supporting evidence
25.      Alleged discrimination, contempt, ignorance, insult and offence, displayed for evidence submitted by husband
26.      Offensive, insulting comments made in regard to husband and wife relationship, marriage, children, grandchildren and family as a whole
27.      Improper and offensive title used by Court, to refer to wife as; "Ms"
28.      Breach of privacy and alleged breaches with lawyer disseminating highly personal, senstitive (sic) information, involving this whole matter, to a member/s of the public, without lawful excuse, consent and or right.
29.      Alleged improper and inappropriate actions undertaken by lawyer, acting for wife.
30.      I further submit, with all due respect, that the Judge has applied the wrong principle of law, in regard to her making of such Orders, under the circumstances and, has also made a finding of facts, on an important issues/s, which could not be supported by evidence and, has also exercised her discretion to arrive at a decision, which is clearly wrong.
31.      Unsafe findings and judgement made on evidence sought out and submitted
32.      Applied wrong principle of law
33.      making (sic) a finding of facts, on an important issue/s, which could not be supported by the evidence indicated
34       incorrect (sic) exercise of discretion to arrive at a decision which was clearly wrong.
35.      Find of, 'facts' which did not occur and or which were totally incorrect, misleading and or incomplete
36.      Errors in law and fact
37.      Assumptions relied on rather than truth
38.      Failure to pursue and or seek out the truth.
39.      Decisions and assumptions of such significance, that the decision/s so made, should be set aside struck out and dismissed, due to insufficient and or no evidence.
40.      Mockery made of the institution of marriage and the family.
41.      Alleged gender bias
42.      Attack and offence on true Christian beliefs, values held by wife and husband in regard to marriage, family and the Bible"
In the event that his appeal is successful the husband seeks the following orders:
"1.       Rescind and or dismiss the Order made on 26^th March 2003 : Rescind Pronounce Decree Nisi Disollution (sic) of marriage. Decision / Order made by Deputy Registrar Morrissey.
2.        Dismiss the Orders made by Federal Magistrate Brewster, realtive (sic) to this matter.
3.        Dismiss the Order made by Chief Federal Magistrate Bryant, dated 8^th April 2004.
4.        Dismiss the Order made by The Honourable Justice Faulks, dated 22^nd March 2004.
5.        Rescind the Decree nisi, on the ground of a miscarriage of justice, due to suppression of evidence; alleged fraudulent in nature evidence; and other relevant circumstances, to support the ‘rescind’, as given under oath, by respondent husband.
6. The Court exercise its jurisdication (sic), in regard to this matter, in accordance with the provisions of Section 43 of the Family Law Act 1975.
7.        Order for costs to be paid to Respondent husband, for pain, suffering, insult, injury, offence, slur on character, physological (sic) truma, (sic) slur and inslut (sic) to relationship, marriage and family.
8.        If these sought Orders, from myself, (respondent husband) are so rejected by the Court, I seek the previously (sic) Orders so sought, by myself, to be granted.
9.        That the Court desist from referring to and using the incorrect title of, “Ms” for my wife, for which I submit is offensive, insulting, prejudical (sic) and a slur on our relationship, marriage, children and grandchildren and, to the institution of marriage."

Discussion of Grounds of Appeal

We have listed the grounds of appeal in full. It is apparent that a number of the “grounds” as drafted are not proper grounds of appeal. We would include in this category grounds 6, 19, 20, 27, 28, 29, 38 and 42. We do not intend to address those grounds. Other grounds are stated in such general terms they are incapable of meaningful consideration. Many of the other grounds as drafted are imprecise or overlap other grounds. It appears to us that the husband’s grounds may be summarised to fall into four broad categories. First, grounds directed to alleged bias by the CFM. Grounds 8, 9, 18, 23, 24, 25, 26, 40 and 41 appear to fall into this category. Second, grounds asserting a denial of natural justice (Grounds 3, 9, 10, 11, 17 and 24). Third, assertions of failure to properly comply with practice and procedure (Grounds 7, 15, 16, 21 and 22) and fourth, grounds attacking the exercise of discretion by the CFM including assertions that her discretion miscarried because of erroneous findings of fact (Grounds 7, 30, 31, 32, 33, 35, 36, 37 and 39).
We propose to address, albeit briefly, having regard to appropriate proportionality to the issues raised, the husband’s grounds of appeal under the following categories.

Alleged bias by CFM

The husband relies on his pre-argument statement and his summary of argument. Without traversing all of the extensive material in those documents we note, for example, the husband relies on some statements made by the CFM during the course of the hearing including her statement “…I could take the view that you were just being completely recalcitrant…”. He further refers to the expression in the CFM’s judgment at paragraph 31 of the judgment where her Honour notes “the number of what I regard as silly technical objections” [our emphasis].
The principles applied in Australian courts in respect of actual or apprehended bias are set out in the majority judgment of the High Court of Australia in Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041:
“the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias…is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
Applying those principles to our examination of the transcript and her Honour’s judgment we find no evidence of bias or apprehended bias.

Natural Justice

The thrust of the husband’s argument that he was denied natural justice appears from his submissions to relate, in part, to the conduct of the original hearing before Brewster FM rather than the proceedings the subject of this appeal. We discern the gravamen of his submissions directed to natural justice grounds in this appeal is that the wife was permitted to give evidence by telephone, and that the husband did not have notice that her evidence would be given in this manner.

The Federal Magistrates Act 1999 (Cth) s 42 provides:
“In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
We are satisfied that the practical course adopted by her Honour, which enabled the hearing to be completed in a timely manner, and in which she afforded the husband the opportunity to cross examine the wife was an appropriate one. We are unable to discern any breach of the rules of natural justice. Accordingly we find the grounds directed to such breach of no merit or substance.

Practice and Procedure Grounds

The husband raises a number of technical issues which were recorded in her Honour’s judgment and which we have referred to in paragraph 32. We have already set out in paragraphs 33 to 36 her Honour’s findings in respect of each of the allegations made by the husband. We are satisfied that her Honour carefully dealt with the matters raised by the husband, and concluded, notwithstanding some technical irregularities, that the matters which were essential to enable the hearing to proceed had occurred. In particular, she established that the husband had been served with the original application, but had chosen not to appear, that he was present in Court on the hearing of the application under s 58 of the Act, that the Court had evidence of the irretrievable breakdown of the marriage from the wife, and the husband had the opportunity to cross-examine the wife on that evidence. We find no substance to the husband’s assertion that matters of non compliance with practice and procedure vitiated the hearing and findings of the CFM.

Exercise of discretion and errors of law

A number of the husband’s grounds of appeal are directed to alleged errors of fact by the trial Judge and his assertion that these errors have caused the trial Judge’s discretion to miscarry.
Gibbs J in De Winter v De Winter (1979) 23 ALR 211, (1979) FLC 90-605; (1979) 4 Fam LR 583 said:
“The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding unsoundness of some of its foundations.”
It appears to us that the central thrust of the husband’s submission is that the factual basis of physical separation on which the wife relied, and which the CFM accepted, was incorrect. The wife’s evidence was unequivocal, as shown in the following extract from the transcript (AB 98):
“HUSBAND: I’m just wondering, could I ask my wife what she understands about an irretrievable breakdown?
FEDERAL MAGISTRATE: All right.
Mrs F, you’re being asked what you understand by irretrievable breakdown of the marriage?---It means that I don’t want to live with him any more. I don’t love him any more. I haven’t loved the way he’s treated me or my children any more, as it happens – it happened then. It’s a big story and he knows everything and I don’t need really to go into detail. It’s the same as an irretrievable breakdown, and that’s what we’ve got. I mean, it’s been nearly 3 years. You know, if I was going to go back, I would have gone back. There is no chance I’m going to go back, that is why I won’t (indistinct) the divorce.
Can you tell me when you formed the view that the marriage had irretrievably broken down?---When I left. I decided I wasn’t – I was leaving him, and that was it, and I wasn’t going back.
When you left, is that the last time?---Yes.
Anything else?
HUSBAND: Can I just clarify that that point you just made there about when you decided to leave, and you weren’t going back. Which date was that? The second time you left me or the first time?---I left – I left you [in February] with no intentions of going back, and it was only through a lot of your thoughtfulness and your carrying on the way you did, saying you wanted me to go back to the house because you weren’t looking after it, all right, so I went back to the house, otherwise I wouldn’t leave. I would have left completely, Canberra. You just promised me to look at the house and you said you’d move out and you wouldn’t come back, and that was it, but no, that’s not what happened, is it?
So what you’re saying is that you came back---?---Not you – you forced me to.
Because I forced you to?---Yes.”
Further answers were given by the wife in response to a question by the CFM about the parties short period of joint occupation of the matrimonial home as follows:
“FEDERAL MAGISTRATE: Mrs F, hang on, I do, because there’s an issue – a potential issue about whether – about the resumption of cohabitation, I do actually need to make some findings of fact about whether you were reconciled during that period and whether the marriage irretrievably broke down at the end of that period you lived together, okay?---There was never any sex together at all.
You’re going to need to tell me a little more about that, I’m afraid. What actually happened? You moved back into the house?---I moved back into the house in December. He said that he needed – that was December 2001. 2001 I moved back in the house, and he – the reasoning then was, he wanted me to come home, to look after the house and he would move out. He would move out as soon as I got there. The reason he didn’t do that immediately was because he was working out in the sun and that, he was too tired and sleepy, and he wouldn’t be able to move out, could he stay there for a few days while he got over, and I said, “Yes, you live in one half of the house, I’ll live in the other”. Now, all right, we were pleasant to each other, but that was all. I mean, I shouldn’t really have to go and explain it anyway, that is not what I’m about. I want a divorce and I’m not going to stop until I get one.
So, are you saying that, just so I understand, that when you moved back into the house, you---?---I’m sorry, I didn’t hear that?
Sorry. You’re saying that when you moved back into the house in December 2001, that you didn’t actually resume cohabitation?---No.
Did you sleep in the same room together?---No.
Did you have sex at all together?---Not at all, not since February – well, January 2001 was the last time we had any contact whatsoever.
Did you do anything together as a couple during that period in December/January 2001?---Only Christmas Day, the kids came over, that’s probably all (indistinct) together, (indistinct) always the kids were around. He worked most of the time, anyway
I think I understand that now.”
We also discern that the husband asserts the CFM failed to have regard to the requirements of s 43 of the Act. That section provides:
“The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure safety from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.”
Those principles must be applied by a court in the particular circumstances of the case before it. There are from time to time cases where both parties to a marriage may be uncertain as to their marital relationship. In such circumstances the Court may refer the parties to appropriately skilled professionals such as are to be found in the community sector and particularly those organisations accredited by the Department of Family and Community Services.
In Falk and Falk (1977) FLC 90-233 the Full Court of Evatt CJ, Fogarty and Bulley JJ said:
“We agree…that once it is clear that a marriage has broken down irretrievably and that the parties have separated and continued to live separately and apart without any prospect of reconciliation it would be unrealistic for the Court to withhold a decree because of any regard for the need to preserve and protect either the marriage in question or the institution of marriage.
In our view neither the direction contained in sec. 43 nor any question of public policy require or indeed permit the Court to adopt any such course.”
The wife’s evidence in this case was unequivocal. She had regarded the marriage at an end at the date of separation and wished to pursue her own separate life. With this factual background we do not find any error by the CFM in proceeding to hear and determine the husband’s application under s 58 of the Act.
It was plainly open to the CFM to accept and prefer the evidence of the wife to the evidence given by the husband about the parties’ separation, a lack of resumption of cohabitation in February 2001 notwithstanding the short joint occupation of the matrimonial home, and to be satisfied that the parties’ remarriage was irretrievably broken down, and on the evidence before her in the exercise of her discretion to find no grounds to rescind the Decree Nisi under s 58 of the Act .

Conclusion

This appeal did not, in our view, involve any important principles of law. Our reasons are therefore fairly general and succinct.
In a nutshell, we were not satisfied that it had been established that there was any error of principle on the part of her Honour. We were not satisfied that she made any findings that were not open to her on the evidence, nor were we satisfied that it had been demonstrated that her Honour exhibited bias or denied natural justice. The husband did not establish to our satisfaction that her Honour proceeded inappropriately in any of the ways complained of in the grounds of appeal.
We were comfortably satisfied that the appeal was entirely without merit and it was for that reason that we dismissed it.

I certify that the preceding 55 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate

[2005] FamCA 497

17 June 2005

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