G & G - [2003] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & G

[2003] FMCAfam 127

FAMILY LAW – Delegation of powers to deputy registrar – dissolution of marriage – decree nisi ordered after dispensation of personal service – whether decree nisi stayed pending appeal to Full Court pursuant to s.55(3) – appeal to Full Court dismissed as incompetent – in order to attract s.55(3) an appeal or review must be competent – it is necessary that the jurisdiction invoked at least had the power to grant the relief sought – decree nisi therefore absolute – application to rescind decree nisi pursuant to s.58 refused because decree absolute – court’s inherent power to set aside orders for procedural irregularity – scheme of the Act is that decree absolute is inviolate – discretion must be exercised within this context – application to set aside order refused – decree absolute to issue instanter.

Family Law Act 1975, ss.49, 55, 57, 58, 59, 65, 93, 94
Federal Magistrates Act 1999, ss.10, 102, 103, 104

Judiciary Act 1903, s.80

Matrimonial Causes Act 1899-1951, s.28

Haris v Caladine (1991) 172 CLR 84
R v Mogley (1992) 28 NSWLR 735
Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 335
Brennan and Brennan (1953) 89 CLR 12
Miller and Miller (1983) FLC 91-328
Wardal (1990) FLC 92-151
Dern (1961) 2 FLR 126
Pavey (1976) FLC 90-051
Cross (1995) FLC 92-628

Applicant:

A T G

Respondent:

D G

File No:

SYM6188 of 2002

Delivered on:

16 April 2003

Delivered at:

Parramatta

Hearing date:

14 April 2003

Judgment of:

Ryan FM

REPERSENTATION

Counsel for the Applicant:

Mr M. Broun QC

Self Represented Applicant:

Ms A. G

Solicitor Advocate for the Respondent:

Mr J. Longworth

Solicitors for the Respondent:

Dettmann & Dettmann

ORDERS

That the wife’s application filed 10 April 2003 is dismissed.
Pursuant to s.56 of the Family Law Act 1975 a certificate as to decree absolute is to issue immediately.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SYM6 88 of 2002

A T G

Applicant

And

D G

Respondent

REASONS FOR JUDGMENT

The application

A T G applied on 10 April 2003 for an order pursuant to s.58 of the Family Law Act 1975 seeking the rescission of a decree nisi of dissolution of marriage made on 4 February 2003. Additionally, she asked that the matter be given short service. Consequently her application was listed for hearing before me at 9.30 am on 14 April 2003.
At the hearing, the applicant, who is a solicitor, appeared instructing Mr Broun QC. The respondent instructed Mr Longworth, but did not attend personally.

Chronology of events

The circumstances giving rise to the application are somewhat unusual and are set out below.
The parties married at C, Western Australia on 14 February 1969.
There are two children of their marriage, both of whom have attained the age of 18 years.
It appears that some time during 2001 one of the parties made an application for orders to the Family Court at Sydney. The nature of the application is not clear. That application was allocated proceedings number SY6 of 2001.
On 16 April 2002 the parties made a joint application for consent orders pursuant to s.79 of the Act. A copy of that application is attached to the husband’s application for dissolution of marriage. Paragraph 5 of the application for consent orders declares that the date of final separation is 1 November 2001.
The husband swore that the contents of the application for consent orders were true before his solicitor and both then affixed their signatures to it on 16 April 2002. Additionally his solicitor executed the statement of independent legal advice. On 15 April 2002 the wife also swore that the contents of the application were true, that she had read and considered s.79 and s.75(2) and that she understood her rights under the Act as well as the consequences of the orders. She swore the application in the presence of her solicitor. Her solicitor affixed her signature on 18 April 2002 to the statement of independent legal advice.
On 18 April 2002 the parties executed a financial agreement made under s.90C of the Family Law Act 1975. That agreement is also attached to the husband’s divorce application. Broun Abrahams also advised the wife in relation to this agreement and a solicitor of that firm completed a certificate certifying that she had given the wife advice, independently of the husband and before Mrs G signed the agreement. The husband was similarly advised by his solicitor. Every page of the financial agreement carries the parties signature as well as that of their legal advisers. Relevantly, the agreement recites,
“5. The parties separated on 1 November 2001.
6. The husband and the wife acknowledge their marriage has irretrievably broken down.
8. The husband and wife agree that this agreement is a financial agreement as defined in s.4(1) of the Act, made under s.90C of the Act following a breakdown of their marriage.
10. The husband and the wife agree that this agreement is in respect to the maintenance of the wife as from the date of this agreement and after the dissolution of their marriage.
13. On the date of this agreement the husband and the wife have signed a minute of orders which specify how, given a breakdown of their marriage, property owned by them or in which they have an interest is to be dealt with and will seek to have orders made by the Family Court of Australia at Sydney in the proceedings in the terms of the minute of orders.”
The application for consent orders was considered on 23 April 2002. Consent orders were entered as sought.
Each and every page of the consent orders, including the preceding notations, are signed by both parties and their lawyers. At notation B the parties recite:
“The husband and the wife separated on 1 November 2001.

They have continued to live separately and apart in the former matrimonial home at 12 S Close, H Island, subsequently.”
Having recited the rationale for the orders there are then fourteen orders that together finalise the adjustment of property between the parties pursuant to s.79 of the Act. Relevantly, the orders require that the parties list 12 S Close, H Island for sale within fourteen days. They also provide a mechanism whereby each party agrees to guarantee a loan (if any) taken out by the other party to purchase a property prior to settlement of the sale. Upon the husband securing new accommodation order 12 provided that he was thereafter restrained from entering the H Island property without the wife’s prior consent.
At some stage the H Island property was sold and the parties now live in different homes.
D G filed an application for divorce in the Federal Magistrates Court at Sydney on 3 December 2002. Having sworn that the parties separated on 1 November 2001 and that at that time he regarded the marriage as over, he deposed that the parties lived separately and apart under the same roof from October 2001 to May 2002. He did not file an affidavit from any person that corroborated the circumstances of separation under the same roof.
On 2 December 2002 the husband’s solicitors wrote to the wife’s previous solicitors[1], Broun Abrahams, inquiring whether they were instructed to accept service of the husbands application for dissolution of marriage. When no response was received to that letter, on

9 December 2002, the husband’s solicitors wrote again to the wife’s solicitors[2]. The second letter enquires whether the wife’s solicitors are instructed to accept service of the divorce application. The letter identified that the divorce application had been filed in the Federal Magistrates Court at Sydney and that it was listed for hearing at 2.15 pm on 28 January 2003. Again, the wife’s solicitors failed to respond to the husband’s solicitor’s inquiry.
[1] Annexure A affidavit John Longworth
[2] Annexure B affidavit John Longworth
Hence, on 15 December 2002 the husband’s solicitors engaged a process server to serve his application for divorce and “marriage, families and separation” brochure upon the wife. The process server swore an affidavit on 31 January 2003 that outlines the many attempts he made to serve the wife with the divorce application. Commencing on 27 December 2002 he attended the wife’s home on at least ten occasions. She says she was away from home over Christmas from between 27 returning 31 December 2002. Twice the process server spoke to the wife’s adult daughter. He told the daughter, after her arrival from Holland on 1 January 2003, that he had documents for her mother from the Family Court. The wife believes that the first conversation took place on 7 January 2003.
Then on 15 January 2003 the husband’s solicitors sent the divorce application and marriage, families and separation brochure to Broun Abrahams. Once again his solicitors indicate in their covering letter that the divorce application is listed for hearing at 2.15 pm on

28 January 2003[3]. The letter explains the difficulties that they have been experiencing effecting personal service on the wife and that if it is necessary to make an application for substituted service of the divorce application the letter of 15 January 2003 to Broun Abrahams would be included in the evidence relied upon. Some time between 15 and

20 January 2003 Broun Abrahams took instructions from the wife about whether or not they were instructed to accept service of the divorce application on her behalf. They wrote to the husband’s solicitors on 20 January 2003 saying, “We have instructions not to accept service of the documents enclosed with that letter. Returned herewith are the enclosures.”[4] I infer that when the solicitors took instructions from the wife they would have disclosed the nature of the application enclosed and its essential details. Including, at least, the date upon which the application was to be heard. The fact that there is no suggestion about how the wife would prefer service to be effected suggests that she did not want it to be. For example she did not suggest a convenient time or place that she would co-operate with service of the application.
[3] Annexure C affidavit John Longworth
[4] Annexure D affidavit John Longworth
Thus in addition to the information from her solicitors, by 20 January 2003 the wife had information via her daughter that a process server was attempting to effect service upon her of an application filed by her husband, that she would reasonably conclude was his divorce application. At the same time as the process server was attempting to effect personal service he telephoned the wife on her landline and mobile phone number asking that she contact him. The calls were diverted to a message bank. While the wife received the calls she did not return them.
When the divorce application was called on for hearing on 28 January 2003 the wife did not appear. Apparently, the divorce application was adjourned until 4 February 2003 at 3.15 pm. The Deputy Registrar directed “That the applicant’s solicitor have leave to amend the return date and time on the copy of the application to accord with the adjournment.”
On 30 January 2003 the husband’s solicitor forwarded a letter to the wife by registered post that enclosed the divorce application and other relevant documents.[5] The wife agrees that a card from the post office was delivered to her address on Friday 31 January 2003. She says that during the week following she had other commitments and did not collect the documents from the post office until 10 February 2003. The documents collected were those sent by the husband’s solicitor on

30 January 2003.
[5] Exhibit B
When the divorce application was called on for hearing on 4 February 2003 the wife did not appear. That day the husband applied ex parte to dispense with personal service of the divorce application upon the wife. He asked that if the court was satisfied that it should dispense with service that the decree nisi become absolute within seven days. The Deputy Registrar granted his application to dispense with service of the divorce application and heard it immediately thereafter. The Deputy Registrar ordered a decree nisi and that the decree become absolute in one month.
Before she collected the registered letter from the post office the wife received further correspondence from the husband’s solicitors, namely a letter of 5 February 2003 advising that the decree nisi was ordered on 4 February 2003.
The wife then inspected the court file.
On 24 February 2003 the wife filed a notice of appeal in the Full Court of the Family Court against both the order for dispensation of service and the decree nisi. Because the husband is dying the hearing of her appeal was expedited. It was heard on 10 April 2003 and judgment delivered on 11 April 2003.
The Full Court ordered “That the appeal filed 24 February 2003 be dismissed”. In its decision Their Honours held “… no appeal lies from the exercise of power to this court and the appeal is incompetent”.[6]
[6] Paragraph 21
Apparently having anticipated this outcome, the applicant filed her application for a s.58 rescission in the Federal Magistrates Court on

10 April 2003. When her rescission application was called on for hearing before me I was advised that the parties had reached agreement in relation to it. Counsel proffered proposed consent orders[7] signed by both parties and their legal representatives. The consent orders are set out below:
[7] Exhibit A
1.
That pursuant to Section 58 the Decree Nisi pronounced on

4 February 2003 be rescinded.
2.That leave be granted to the husband to withdraw the Application for divorce which the court notes is hereby withdrawn and discontinued
3.That there be no order for costs.
These consent orders are in similar terms to proposed minutes of orders submitted by counsel to the Full Court[8]. The Full Court declined to make the consent orders.
[8] Paragraph 6 Full Court judgment dated 11 April 2003
When the consent orders were proffered I indicated to counsel that my preliminary view was that the decree nisi had become absolute. Hence the relief sought, whether or not pursuant to the consent orders, was not available. Counsel disagreed.

The issues

The key issues that require determination are as follows.
a)Did s.55(3) operate to extend the period upon which the decree nisi became absolute?
b)If the decree has become absolute can the wife apply to rescind the decree nisi relying upon s.58?
c)Does the court have an implied power to set the decree nisi aside?
d)If the court does have an implied power to set the order aside, should it do so?
Because it is pivotal to determination of the issue I have set s.55 out in full below:
(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 55A, whichever is the later.
(2)Where a decree nisi has been made in any proceedings, the court of first instance (whether or not it made the decree), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection:
(a ) having regard to the possibility of an appeal or further appeal, make an order extending the period at the expiration of which the decree nisi will become absolute; or
(b) if it is satisfied that there are special circumstances that justify its so doing, make an order reducing the period at the expiration of which the decree nisi will become absolute.
(3)Where an appeal is instituted (whether or not it is the first appeal) before a decree nisi has become absolute, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the decree nisi, unless reversed or rescinded, becomes absolute by force of this section:
(a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or
(b) on the day on which the decree would have become absolute under subsection (1) if no appeal had been instituted;
whichever is the later.
(4)A decree nisi shall not become absolute by force of this section where either of the parties to the marriage has died.
(5) In this section, appeal , in relation to a decree nisi , means:
(a) an appeal or application for leave to appeal against, or an intervention or application for a re-hearing relating to:
(i) the decree nisi; or
(ii) an order under section 55A in relation to the proceedings in which the decree nisi was made; or
(b) an application under Section 57 or 58 for rescission of the decree or an appeal or application for leave to appeal arising out of such an application.
(6)For the purposes of this section, where an application for leave to appeal, or for a re-hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as:
(a) the leave granted remains capable of being exercised; or
(b) an appeal or re-hearing instituted in pursuance of the leave is pending.
The wife’s counsel submitted that the wife needed to do nothing more than lodge a notice of appeal or an application for a re-hearing in order to obtain a s.55(3) stay. An application for a re-hearing includes an application for a review of power delegated to a deputy registrar exercising delegated power: s.55(5).
When the Deputy Registrar determined the application to dispense with service and ordered the decree nisi the Deputy Registrar exercised powers delegated pursuant to s103(1) Federal Magistrates Act 1999 and Part 1.42 of the Federal Magistrates Court (Delegation to Registrars) Rules 2000.
Section 104(2) Federal Magistrates Act 1999 provides, “A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under sub-section 102(2) or under delegation under sub-section 103(1) may: a) within the time prescribed by the rules of court; or b) within any further time allowed in accordance with the Rules of court; apply to the Federal Magistrates Court for a review of that exercise of power”. The time within which an application for review must be filed is twenty-eight days: Part 20.01(b) Federal Magistrate Court Rules 2001 (FMCR). An application for review must be listed for hearing as soon as possible and, unless impractical to do so, within fourteen days after the date of filing: Part 20.02(3) FMCR. Unless the court otherwise orders an application for a review does not operate as a stay of the exercise of power under review : Part 20.02(4) FMCR .
An application for review of a registrar’s decision is an application for a re-hearing. Haris v Caladine (1991) 172 CLR 84. Thus had the wife filed an application for review within twenty eight days of the decree nisi she could have had a re-hearing of the application and the decree nisi would have been stayed in accordance with s.55(3)(a). I am satisfied that any review application would have been heard within the timeframe required in the FMCR, hence no later than 10 March 2003. In the Full Court the husband’s counsel submitted in written submissions “.. the point need to be necessary (sic) as on any view it is submitted that the appeal must fail anyway”.[9] It seems apparent that at that stage the husband opposed the wife’s appeal and I infer that had a review come on for hearing in early March 2003 the husband would have pressed his divorce application.
[9] Paragraph 5 Full Court judgment dated 11 April 2003
In order to attract the jurisdiction of the Full Court the wife needed to establish that she appealed “A decree of the Federal Magistrates Court exercising original jurisdiction under this Act”. Section 94(AAA)(1)(a) Family Law Act 1975. The Full Court decided that “The Deputy Registrar was not exercising original jurisdiction under the Family Law Act 1975”.[10] Having reached this conclusion, Their Honours dismissed the appeal as incompetent.
[10] Paragraph 20 Full Court judgment dated 11 April 2003

Is an incompetent appeal an appeal for the purpose of s.55?

It is common place that a court cannot assume jurisdiction over subject matter that it has not otherwise been invested with. Is the wife’s incompetent appeal an appeal for the purpose of s.55 of the Family Law Act (“the Act”)? In arguendo I inquired of the wife’s counsel whether an application, for example, to the Workers Compensation Commission that purported to be an appeal against a decision of a deputy registrar exercising delegated Family Law Act power could attract s.55(3). Counsel deftly sidestepped my inquiry. He submitted that the point was that the wife had made an application that was made proceedurally, albeit not within jurisdiction, correctly. That is on a family law form to a court invested with jurisdiction under the Family Law Act. He emphasised that s.55 operated even if an appeal was discontinued or dismissed:s.55(6). In my opinion an appeal that attracts s.55(3) must be an appeal that invokes the appropriate jurisdiction. It does not matter that ultimately the appeal is determined to be unmeritorious. The pivotal issue is whether the court appealed to has the power to grant the relief sought. If the jurisdiction sought to be invoked cannot be invoked then the process, hence the appeal, is incompetent or a nullity.
Counsel submitted, in essence, that because the Full Court had dismissed the wife’s appeal it had exercised it’s jurisdiction as an appellate court under the Family Law Act. In my opinion the Full Court did no more than exercise its jurisdiction to determine the jurisdictional facts in the case presented to it. Having done so it then determined it did not have jurisdiction. Consequently I am satisfied that the wife’s purported appeal is not an appeal that attracts s.55(3)(a).
I am satisfied that the decree nisi ordered on 4 February 2003 became absolute on 5 March 2003: s.55(1).

Can the court rescind a decree nisi that has become absolute pursuant to s.58?

The wife’s counsel submitted that s.58 applies even if a decree nisi has become absolute. The husband’s solicitor disagreed. The section itself specifically identifies that it does not. Section 58 is as follows:
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 a party to the proceedings, or on the intervention of the Attorney-General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the decree and, if it thinks fit, order that the proceedings be re-heard.
The clear purport of the section deprives the wife of relief under s.58 in circumstances where I am satisfied that the decree is absolute.

Does the court have an implied power to set a decree nisi that has become absolute aside?

During submissions I gave the wife’s counsel leave to make an oral application for an order setting aside the order nisi on the basis that it was voidable. In Miller (1983) FLC 91-328 and Cross (1995) FLC 92-628 the Family Court exercised power to make such an order relying primarily upon s.113 of the Family Law Act 1975. That power has not been vested in the Federal Magistrate’s Court. See s.39(4) Family Law Act 1975.
This means that the wife must rely on the Federal Magistrate’s Court inherent power to redress a miscarriage of justice. This issue of inherent or implied power most commonly arises when the power is exercised by a superior court of record. The Federal Magistrates Court is, by virtue of s.10 of the Federal Magistrates Act 1999 a court established by Chapter III of the Constitution. Federal Magistrates are appointed as Justices pursuant to Chapter III of the Constitution. The court is a court of law and equity. It is a court of record that exercises power given to it pursuant to the Family Law Act 1975 inter alia.
Section 80 of Judiciary Act 1903 (Cth) incorporates the common law jurisprudence on implied powers. It states, “So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in a state or a territory in which the jurisdiction is exercised is held shall, so far as is applicable and not inconsistent with the Constitution and the laws of the Commonwealth govern all courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters”.
In R v Mogley (1992) 28 NSWLR 735 at 735 the Court of Appeal when considering the power of a state magistrates court held, “Where a court has jurisdiction under a statute and no provision was made in the statute for the making of an order which is necessary to carry the court’s statutory power into effect, the court, although it does not have an inherent power, has an implied power”. Although those comments related to a state magistrates court, and in spite of the differences between state magistrates courts and the Federal Magistrate Court the comments are apposite. R v Mogley (supra) is consistent the New South Wales Court of Appeal’s earlier decision in Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 335. At p.344 their Honours said “The power of each court over its own process is unlimited: it is a power incident to all courts, inferior as well as superior; was it not so the court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful consideration”.
Thus I am satisfied that the Federal Magistrate’s Court has the power, as an incident of its function as a court of justice and equity, to make an order discharging the order nisi. Whether I should do so is a separate question.
In Brennan v Brennan (1953) 89 CLR 129 the High Court when considering s.28 of the Matrimonial Causes Act 1899 - 1951, (ss55 and 59 Family Law Act 1975 are its equivalent) said “In view of the very explicit terms of this section it is, in our opinion, beyond doubt that when the conditions of the section have been fulfilled a decree absolute for divorce, however irregularly it may have been obtained, is valid and effective to dissolve the marriage and cannot be set aside”. Having reviewed conflicting English authorities at p136 their Honours said “With respect, no other view could be taken of the express provisions of the sections. We are of opinion that s.28 applies to every decree absolute of the Supreme Court of New South Wales in its matrimonial causes jurisdiction however irregularly it may have been obtained. After the conditions of the section have been satisfied the decree, however fundamentally impeachable it may theretofor have been, becomes unassailable”.
Subsequently, there are a number of decisions in which the Family Court has distinguished Brennan’s case saying that where there has been a procedural irregularity, which has caused a denial of natural justice, the order nisi may be set aside. See Miller (1983) FLC 91-328; Wardal (1990) FLC 92-151; Dern (1961) 2 FLR 126; Cross (1995) FLC 92-628.
In Cross (supra) Kay J notes s.93 of the Family Law Act 1975 which provides “An appeal does not lie from a decree of dissolution of marriage after the decree has become absolute”.
The effect of ss 55, 57, 58, 59 and 93 signifies the clearest possible statutory intent that a decree absolute is inviolate. I agree with the learned author Findlay[11] “Consequently it would seem that the statement of the High Court in Brennan’s case applies, a fortiori, to a case under the Family Law Act.” Hence, it is only in the clearest case that a court would exercise its discretion in favour of an order setting aside a decree nisi once the decree nisi has become absolute. This is so irrespective of whether either of the parties has remarried. That factor is a relevant consideration. It does not mean that if neither party has done so that the court should exercise its discretion favourably to set aside the order nisi.
[11] Family Law - Cases, Material and Commentary at 206
The wife complains that she was denied natural justice in the sense that she was denied any opportunity of defending the divorce. She says she is desirous of raising a defence. She does not reveal what her defence may be. It is clear for example, clearly both parties are domiciled in Australia and are Australian citizens by birth. They have been married for longer than two years. There is no suggestion that their marriage was not a valid marriage at the time the decree was pronounced. The Deputy Registrar had their marriage certificate. There are no children to whom the provisions of s.55A apply. These is no suggestion that there was a reasonable likelihood of cohabitation being resumed.
In her affidavit the wife asserts procedural irregularities in that:
a)there was no affidavit by the husband giving evidence of the circumstances he describes as separation under the one roof;
b)he does not give details of the period of separation under the one roof, and
c)there was no corroborative affidavit supporting evidence of the alleged separation.
There is no rule of law that the court must have corroborative evidence from an independent witness detailing the circumstances of separation under the one roof. By section 49(2), “The parties to a marriage may be held to have separated and to have lived separately and apart not withstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”. It is sufficient that one party form the intention to separate and then act upon it. Whether or not parties have separated, including living separately and apart under the one roof is a question of fact to be determined in a particular case. Pavey (1976) FLC 90-051. In this matter the Deputy Registrar had available to her numerous documents filed in the Family Court, some of which were sworn by both parties, that attested final separation as at 1 November 2001. Additionally that both parties regarded their marriage as irretrievably broken down. Also that although they lived in the same house at H Island they lived separately and apart. In those circumstances it was reasonable that the Deputy Registrar concluded that the marriage had irretrievably broken down. The absence of corroborative evidence is not sufficient in this case to be categorised as a procedural irregularity. The wife’s affidavit does not suggest that the parties reconciled at any time after

1 November 2001 or that the finding made by the Deputy Registrar as to separation was factually erroneous.
The wife complains that the decree nisi was pronounced when personal service of the application had not been effected in accordance with Part 25.02 FMCR. By the time the Deputy Registrar decided to dispense with personal service of the husband’s divorce application I am satisfied the Deputy Registrar could reasonably have decided that the wife knew that the husband had filed an application for dissolution of their marriage in the Federal Magistrates Court and the date upon which it was initially and later listed for hearing. It would have been reasonable for the Deputy Registrar to conclude that the wife had embarked on a course of conduct designed to avoid service of the divorce application.
In her affidavit, the wife reveals the reasons why she does not want to be divorced. Should her husband die whilst they are still married she is eligible to receive a lifetime pension from State Superannuation at $430 per week and a war service widows pension of $220 per week. Apparently once a decree has become absolute she loses her entitlement. The wife, in my opinion, does not come to this court with clean hands. Rather, she set out to create a set of circumstances aimed at thwarting her husband’s desire and legitimate entitlement to divorce her. Her affidavit evidence is revealing not only because of the evidence it provides but also for the absence of relevant evidence. It does not disclose important information that the court should have given the indulgence the wife seeks. For example, her asserted defence to the divorce application and the facts that would support it.
What effect does the husband’s current consent to the order she now seeks have? There is no suggestion that the parties have reconciled. Rather, it appears that both agree that the wife may as well have the benefit of his pension entitlements after his death. The binding financial agreement specifically reveals that it is intended to operate after the parties’ divorce. In both the agreement and the consent orders the husband discloses his superannuation and pension entitlements. The parties both attest in each of these documents that the agreement and orders are intended to finalise their financial relationship. Having accepted their assertions to this effect the Family Court gave effect to their agreement.
In my opinion, the husband having properly and successfully invoked the court’s jurisdiction for a divorce which is absolute, there are strong policy reasons why the order should not be interfered with. His belated change of heart cannot determine the fate of the wife’s application. The time between a decree nisi and a decree absolute is intended to give both parties some breathing space before the divorce is final. Hence ss.57 and 58 enable a decree nisi to be rescinded. In my opinion the Act establishes a reasonable time frame sufficient to enable an applicant to reconsider a divorce application and to resile from it should he or she wish to do so. Thereafter if, for example, the parties wished to reconcile and live as a married couple they must re-marry.
Although the cases following involve the exercise of power pursuant to s.113 of the Act, the principles applicable to the exercise of implied power are similar subject only to the clear obligation that these powers are exercised sparingly. In Cross (supra) Kay J was satisfied that he should exercise his discretion and order that a decree nisi that had become absolute be set aside. In that case the applicant had indicated she wished to withdraw her divorce application yet the Registrar proceeded on the basis that a request had been made to deal with the application in the absence of the parties. It had not been and there were children to whom the provisions of s.55A applied. The Registrar did not make an order pursuant to s.55A and in those circumstances there was a statutory prerequisite that had not been addressed.
In Miller (supra) the marriage was void. There the Full Court addressed itself to the types of circumstances that would be able to be categorised as a procedural irregularity sufficient to cause a denial of natural justice. They said:
“… 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).
I am satisfied that the exercise of discretion by the Deputy Registrar to dispense with service was reasonable in all of the circumstances of this case. I am satisfied it was not inappropriately made. It is no answer that the wife says that she did not have actual notice of the application until after the hearing took place. Or that even with imputed knowledge she was entitled to expect personal service of the application and to stand back until personal service was effected. The issue is whether at the time the Deputy Registrar exercised her power to dispense with service she did so appropriately. Even with the benefit of hindsight and with all the information I currently have, I am satisfied that the Deputy Registrar acted appropriately and properly exercised the power delegated to her. Asked to exercise my discretion on the basis of all the information I now have I would decide as the Deputy Registrar did. Had I been asked to consider a review of her decision in March 2003 and re-hear the husband’s application I would have made the same order/s the Deputy Registrar did.
I am conscious that the effect of my decision will be to deprive the wife of the opportunity to claim a potentially significant financial benefit. In the regrettable circumstances in this case I am satisfied on balance the wife tried to avoid service and construct a lack of knowledge of the application and its hearing date/s. The combined efforts of the process server, the correspondence to her solicitors upon which they took instructions and information given to her daughter satisfies that she was highly likely to have been aware of the application and the date that it was initially heard and ultimately determined.
There is no suggestion that these parties want to resume their married life such that the principles in s.43 might apply to outweigh the conclusion I have reached. I am invited to exercise my discretion in favour of a collateral financial purpose, which I consider on balance is inconsistent with the clear legislative intent that a decree absolute is final. I am not satisfied that in all the circumstances of the case I should exercise my discretion in favour of the application.
For these reasons I make the orders set out at the start of this judgment.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 16 April 2003