Giannis & Giannis
[2024] FedCFamC1A 43
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Giannis & Giannis [2024] FedCFamC1A 43
Appeal from: Giannis & Giannis [2023] FedCFamC2F 1482 Appeal number: NAA 329 of 2023 File number: MLC 1394 of 2023 Judgment of: TREE, GILL & STRUM JJ Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – APPEAL – Divorce – Where the husband appeals from a declaration that a divorce order was final – Where the respondent wife originally sought to appeal the divorce order below, but later consented to the dismissal of that appeal – Where pursuant to s 55(3) of the Family Law Act 1975 (Cth) (“the Act”) the divorce order came into effect one month after her appeal was dismissed – Where none of the husband’s grounds of appeal challenge the effect of s 55(3) of the Act, nor are they recognisable grounds of appeal – No error identified – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 55
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Number of paragraphs: 17 Date of hearing: 21 March 2024 Place: Heard in Brisbane (via video link), delivered in Cairns The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 329 of 2023
MLC 1394 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GIANNIS
Appellant
AND: MS GIANNIS
Respondent
ORDER MADE BY:
TREE, GILL & STRUM JJ
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Giannis & Giannis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, GILL & STRUM JJ:
On 9 November 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) declared that “the divorce order [involving the parties] became absolute on 4 August 2023” but otherwise dismissed all extant applications.
By Notice of Appeal filed 29 November 2023, Mr Giannis (“the husband”) appeals against that declaration. Ms Giannis (“the wife”) opposes the appeal.
For the short form reasons which follow (Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)) the appeal will be dismissed.
The husband is 53 years old and the wife 52. They were married in Country B in 2001 and separated on 22 October 2021, thereby concluding a relationship of slightly in excess of 20 years.
There are two children born to their marriage. The eldest is now 20 years old and the youngest is 12 years old.
On 1 October 2021 the wife first filed an Application for Divorce, asserting that the parties had separated on 19 March 2020, however by his response filed 18 November 2021 the husband claimed, in effect, that the separation was only on 22 October 2021, when he was served with the divorce application.
On 6 December 2021 a Registrar gave the wife leave to discontinue her Application for Divorce.
Next, on 14 February 2023, the wife filed a second Application for Divorce. On 31 May 2023 a Deputy Registrar granted the divorce, and ordered it to come into effect on 1 July 2023. However, on 27 June 2023 the wife filed an Application in a Proceeding purporting to “rescind” that application, and said she no longer wanted to divorce the husband. On 4 July 2023, both parties attended the hearing of the 27 June 2023 Application in a Proceeding before a Judicial Registrar, and consented to its dismissal, it being noted that the wife wished to proceed with her divorce application, and adjourned the matter to 13 July 2023.
On 10 July 2023 the husband filed a Response to Divorce, seeking that the wife’s 14 February 2023 Application for Divorce be dismissed. Many alleged grounds for that dismissal were advanced in that response.
In due course on 9 November 2023, the contested divorce hearing came on before the primary judge. However correctly her Honour noted that pursuant to s 55 of the Family Law Act 1975 (Cth) (“the Act”), the wife’s 27 June 2023 Application in a Proceeding was an appeal against the 31 May 2023 divorce order (at [6]), but since that appeal was dismissed by consent on 4 July 2023, under s 55(3) of the Act, the divorce order came into effect one month later on 4 August 2023 (at [9]).
The order adjourning the wife’s divorce application until 13 July 2023 was therefore legally ineffectual to delay the divorce becoming absolute on 4 August 2023, as it could do nothing to displace the effect of s 55(3) of the Act.
Notwithstanding that, the matter inexplicably proceeded to hearing before the primary judge on 9 November 2023. At [13]–[19] of her ex tempore reasons delivered that day, her Honour said:
13.Nonetheless, as I have already stated, upon the dismissal of the application to rescind, the decree nisi was to become absolute on 4 August 2023. This was unless one of the parties filed a further appeal under ss 55, noting such an appeal could include an actual appeal, but also an application for a rehearing, an intervention or rehearing of the application for divorce, an application for recission, or an application for review of the orders of the registrar. The time that the decree absolute came into effect could also be extended by order of the court or, indeed, the time reduced. Furthermore, it would not become absolute if one of the parties were to pass away (see s 55(4)).
14.However, none of these events occurred. The only thing that occurred prior to 4 August 2023 is that the husband filed a response to the divorce application on 10 July 2023. However, the divorce application had already been dealt with.
15.I appreciate the husband may have been misled by the court’s order adjourning the wife’s application for divorce to another day. He would have been entitled to think it was a live application and that, as such, he may not have considered the need to apply to rescind the divorce order before it became absolute on 4 August 2023. (It is clear that pursuant to s 58 of the Act and cases such as In the Marriage of Taylor (1977) 15 ALR 266, the application for recission must be filed prior to the divorce order becoming absolute). Consequently, the husband may seek to argue that the Court’s processes lead to a miscarriage of justice. In this respect, see Gilpin & Gilpin (1969) 17 FLR 131.
16.However, I am not familiar with the authorities in relation to setting aside a divorce order, once absolute. I am aware that there are some limited circumstances in which a divorce order made absolute may be declared void. For example, s 55A(1) sets out that a divorce order does not take effect unless the court has made certain declarations with respect to the children of the marriage. Pursuant to cases such as In the Marriage of Wardale (1990) 14 FamLR 195, if such a declaration is not made, then the decree absolute would be void. However, I understand that Deputy Registrar Evans made the appropriate declarations pursuant to s 55A(1)(b) with respect to the children of the marriage, prior to making the decree nisi on 31 May 2023.
17.Nonetheless, in the end, this is all academic as there is no application before me to set aside the decree absolute.
18.The only application before the court is a response to an application for a divorce that has already been heard and determined.
19.Therefore, for completion I declare that the divorce order became absolute on 4 August 2023 and, otherwise, I will dismiss all extant applications.
The Notice of Appeal filed 29 November 2023 purports to run to 3 grounds, but the first is a formal introduction only. Ground 2 lists 8 “Factors that affect the validity or enforceability of the order.” None are proper grounds of appeal, and none grapple with the inflexible and incontestable application of s 55(3) of the Act.
Ground 3 appears to be a complaint that the wife gave false information in support of her Application for Divorce. Again, none of the 7 particularised complaints is a valid ground of appeal, nor do any even attempt to come to grips with the clear effect of s 55(3) of the Act.
We have separately considered whether there is any error in the reasoning or orders of the primary judge, but cannot detect any.
The appeal will be dismissed.
The wife, who like the husband self-represented, incurred no costs in successfully opposing the appeal.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill & Strum. Associate:
Dated: 28 March 2024
0
2
2