Giannis & Giannis
[2023] FedCFamC2F 1482
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Giannis & Giannis [2023] FedCFamC2F 1482
File number(s): MLC 1394 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 9 November 2023 Catchwords: FAMILY LAW – ex tempore – contested divorce – decree nisi previously ordered – application to rescind previously dismissed – divorce order had become absolute prior to hearing – no application to set aside decree absolute Legislation: Family Law Act 1975 (Cth) ss 55, 55A Cases cited: Gilpin & Gilpin (1969) 17 FLR 131
In the Marriage of Taylor (1977) 15 ALR 266
In the Marriage of Wardale (1990) 14 FamLR 195
Division: Division 2 Family Law Number of paragraphs: 20 Date of last submission/s: 9 November 2023 Date of hearing: 9 November 2023 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS
MLC 1394 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GIANNIS
Applicant
AND: MR GIANNIS
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.It is declared that the divorce order became absolute on 4 August 2023.
2.All extant applications are otherwise 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations, and generally make my oral reasons easier to read.
The matter comes before me as a contested divorce hearing.
The wife filed her application for divorce on 14 February 2023.
On 31 May this year, a Deputy Registrar granted the divorce order – the decree nisi, to come into effect on 1 July 2023.
On 27 June this year, the wife filed an application in a proceeding seeking to rescind the divorce order made on 31 May 2023.
An application to rescind constitutes an appeal under s 55(5) of the Family Law Act1975 (Cth) (“the Act”):
55 When divorce order takes effect
(5) In this section:
appeal, in relation to a divorce order, means:
(a) an appeal, or an application for leave to appeal, against:
(i) the divorce order; or
(ii)an order under section 55A in relation to the proceedings in which the divorce order was made; or
(b) an intervention, or an application for a re‑hearing, relating to:
(i) the divorce order; or
(ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or
(c)an application under section 57 or 58 for rescission of the divorce order, or an appeal or application for leave to appeal arising out of such an application; or
(d)a review by the Federal Circuit and Family Court of Australia (Division 1) of the making, by the Chief Executive Officer, or a Senior Registrar or Registrar of that Court, of:
(i) the divorce order; or
(ii)an order under section 55A in relation to the proceedings in which the divorce order was made; or
(iii)an order determining an application under section 57 or 58 for rescission of the divorce order; or
(e)a review by the Federal Circuit and Family Court of Australia (Division 2) of the making, by the Chief Executive Officer, or a Senior Registrar or Registrar of that Court, of:
(i) the divorce order; or
(ii)an order under section 55A in relation to the proceedings in which the divorce order was made; or
(iii)an order determining an application under section 57 or 58 for rescission of the divorce order; or
(f)a review by the Family Court of Western Australia of the making, by the Principal Registrar, a Registrar, or a Deputy Registrar, of that Court of:
(i) the divorce order; or
(ii)an order under section 55A in relation to the proceedings in which the divorce order was made; or
(iii)an order determining an application under section 57 or 58 for rescission of the divorce order.
Pursuant to s 55(3), the time for the divorce order to come into effect if somebody files an appeal is:
(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 divorce order would have taken effect if no appeal had been filed,
whichever is the later of those days.
On 4 July this year, a Judicial Registrar dismissed the wife’s application in a proceeding to rescind the divorce order with the consent of both parties.
The effect of this order, pursuant to s 55(3)(a), was that the decree absolute would come into effect one month after that date, on 4 August this year (being later than 1 July 2023).
However, despite the wife’s application for divorce having been determined on 4 July 2023, for reasons that are unclear, the Judicial Registrar made an order adjourning the wife’s divorce application to a deputy registrar on 13 July 2023.
Presumably, as a consequence, the husband filed his response to the divorce application on 10 July 2023.
On 13 July 2023, the application for divorce was further adjourned for a compliance and readiness hearing. At that hearing on 3 November this year, it was listed as a contested divorce before myself, today, being 9 November 2023.
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)).
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.
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.
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 the Deputy Registrar 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.
Nonetheless, in the end, this is all academic as there is no application before me to set aside the decree absolute.
The only application before the court is a response to an application for a divorce that has already been heard and determined.
Therefore, for completion I declare that the divorce order became absolute on 4 August 2023 and, otherwise, I will dismiss all extant applications.
For all of the foregoing reasons, I make the orders as are set out at the commencement of these reasons for judgment.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 17 November 2023
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