HENCKEN & DOW - [2019] FamCAFC 154

FAMILY COURT OF AUSTRALIA

HENCKEN & DOW

[2019] FamCAFC 154

FAMILY LAW – APPEAL – DIVORCE – Where the husband appeals the making of a divorce order on the basis that there was a reasonable likelihood of the parties’ relationship being resumed – Where the husband appeals the primary judge’s refusal to allow cross-examination of the wife to explore the possibility of reconciliation and to persuade the wife to attend marriage counselling – Where the primary judge is entitled to refuse cross-examination of a witness as it was found to be an abuse of process – Where there is nothing equivocal in the evidence of the wife as to her attitude towards reconciliation – No error is established – Whether the primary judge failed to give proper weight to the “statutory mandate” in s 43 of the Family Law Act 1975 (Cth) – Where s 43 is no more than context to the legislative intention – Where there is no merit in this ground of appeal – Where the husband contends that her Honour erred in making an order abridging the time in which the divorce order was to become final on the basis of special circumstances – Adequacy of reasons for special circumstances – Where her Honour made findings that entitled her to abridge the time – No error is established – Appeal dismissed – Order made for the divorce to become final immediately – Husband ordered to pay the wife’s costs.

Evidence Act 1995 (Cth) ss 11, 27
Family Law Act 1975 (Cth) ss 43, 48, 55

Albrighton v Royal Prince Alfred Hospital (Unreported version, New South Wales Court of Appeal, 29 September 1980)
Bates and Sawer (1977) FLC 90-249; [1977] FamCA 29
Bates and Sawyer (1977) FLC 90-319; [1977] FamCA 109
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
LGM & CAM [2008] FamCA 185
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Norbis & Norbis (1986) 161 CLR 513; [1986] HCA 17
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60

APPELLANT:

Mr Hencken

RESPONDENT:

Ms Dow

FILE NUMBER:

SYC

4803

2012

APPEAL NUMBER:

101

2018

DATE DELIVERED:

11 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Kent & Watts JJ

HEARING DATE:

25 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 July 2018

LOWER COURT MNC:

[2018] FCCA 2126 and [2018] FCCA 3047

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Duncan Holmes of
KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Christopher Othen

SOLICITOR FOR THE RESPONDENT:

Uther Webster & Evans

Orders

The appeal against the divorce order made by Judge Henderson on 5 July 2018 is dismissed.
The divorce order made on 5 July 2018 is to become final immediately.
The husband to pay the wife’s costs of and incidental to the appeal fixed in the sum of $10,000, such sum to be paid within twenty-eight (28) days of the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hencken & Dow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 101 of 2018
File Number: SYC 4803 of 2012

Mr Hencken

Appellant

and

Ms Dow

Respondent

REASONS FOR JUDGMENT

On 5 July 2018 a judge of the Federal Circuit Court made a divorce order between Mr Hencken (“the husband”) and Ms Dow (“the wife”). The husband appeals that order.
An order for divorce must be based on the ground that the marriage between the parties has irretrievably broken down (s 48(1) Family Law Act 1975 (Cth) (“the Act”)). Proof of that fact is established on the Court being satisfied that the parties have separated and thereafter lived apart for a continuous period of 12 months immediately preceding the filing of the application for divorce (s 48(2) of the Act).
However, s 48(2) is subject to s 48(3) of the Act which states:
A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Parties can be separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of them.[1] Separation can take place notwithstanding that the parties continue to reside in the same residence.[2]
[1] The Act, s 49(1).
[2] The Act, s 49(2).
While there was no dispute that the parties had lived in separate residences since at least 2015, it was the husband’s case that the primary judge erred in not finding that there existed a reasonable likelihood of cohabitation being resumed and in making the divorce order.
The parties married on … 1998. There are two children of the marriage both of whom are now over the age of 18 years.
The wife says that she and the husband separated in 2010 which was the date she said they stopped sharing a bed. At that time, the parties were living in Property A. The wife commenced proceedings for property settlement and parenting orders in August 2012 and that application asserted that the parties separated in June 2010. The husband’s response to the application did not contest the asserted date of separation. The application was listed for hearing in March 2014 and the parties reached agreement as to both property and parenting and orders were made by consent.
The wife moved out of Property A but returned to live there on two occasions between 2011 and 2014. She returned in 2011 because of the financial strain of keeping a second home and returned in 2014 in order to ensure that the property was in good order for its agreed sale. The wife maintains that in the periods when she returned to live in Property A she lived separately from the husband and gave the husband no reason to believe that her feelings about ending the marriage had changed.
The Property A finally sold in late 2014. However, the wife said that the husband refused to sign the contract for sale unless she agreed to live with him in rental accommodation for six months. Concerned not to lose the sale, the wife agreed and the sale of the house was completed in January 2015. During the period of four months that the wife resided in the rental accommodation with the husband they did not share a bedroom. The wife moved out of the rental accommodation with the children on 25 May 2015 into other accommodation and that marks the final date the parties resided in the same residence.
The wife applied for a divorce on 18 December 2017. The husband responded opposing the making of the order, asserting that there was a reasonable likelihood of cohabitation being resumed.
Thus the matter came before the primary judge who, as we have said, dismissed the husband’s response and made an order for divorce, making a further order abridging the time in which the order became final from the statutory period of one month[3] to 22 days.
[3] The Act, s 55(1)(a).
Before turning to consider the grounds of appeal, it is useful to set out the facts and circumstances of the parties’ separation and the correspondence between them to give context to the issue before the primary judge and the arguments raised on appeal.
There was little dispute as to the facts of the parties’ associations after the wife physically separated from the husband in 2015 (and, for that matter, little dispute about the circumstances before that time). What was clearly in dispute was not the facts and circumstances but the complexion or interpretation of the events to which the evidence spoke. For example it was undisputed that the wife and husband dined together without the children, albeit they differed as to the number of times that this occurred. The husband relied on this evidence and on the actions of the wife in having holidays with him and the children and coming to his house to feed the family pets as demonstrating a continuing relationship with him which, he argued, showed a likely prospect of resumption of cohabitation. The wife cast the events as being her attempt to persuade the husband that the marriage was over in a civil way and to continue as far as she could to maintain a relationship with him for the benefit of the children.
The husband contended that although he and the wife separated under the one roof in 2010 and although she later moved into separate accommodation in 2015, at no time did the wife tell him that she wanted a divorce. The wife disputed that and said that on more than three occasions after June 2010 she told him that the marriage was over and she would not return. She said on each occasion the husband said words to the effect of either “[Ms Dow], you just need to relax and learn to be a good wife and a good mother” or “[Ms Dow], you got hit up the arse by a rainbow the day I married you” (emphasis in original).[4]
[4] Wife’s affidavit, affirmed 22 June 2018, page 3 – 4.
In August 2016, the wife, having asked the husband to stop calling her and calling at her house, approached the local police for their assistance. The police spoke to the husband which prompted this response from the husband in an email to the wife on 9 August 2016:[5]
… AVO is laughable – no violence, intimidation, harassment etc etc. My concern is my children. I suggest we all have dinner 3-4 nights a week at your place, my place or a restaurant. We all own the pets jointly & collectively. I expect you to attend the pets daily to feed, exercise & play with them. I will call you whenever there are matters regarding children, pets or general relevance.
[5] Annexure B to wife’s affidavit, affirmed 22 June 2018.
On 20 February 2018 the husband sent the wife an email urging her to open her “mind & heart” and release her “anger & grievances”.[6] He said “[t]omorrow is a new day – far beyond your imagination & comprehension”.[7]
[6] Annexure C to wife’s affidavit, affirmed 22 June 2018.
[7] Annexure C to wife’s affidavit, affirmed 22 June 2018.
He further said, “[a]s your husband of 20 years, I know you can do better. And I know you better than anyone else. My role has been to perfect you, and like a sculptor, to animate the stone”.[8]
[8] Annexure C to wife’s affidavit, affirmed 22 June 2018.
The wife responded in an email that day stating, “[p]lease do not ask me again as I have said I am not changing the application the first and second time you asked me”.[9]
[9] Annexure C to wife’s affidavit, affirmed 22 June 2018.
The husband responded on 8 March 2018 and said, “[d]itch the divorce and come out from under your rock”.[10] The email continued, urging her to discontinue the divorce.
[10] Annexure D to wife’s affidavit, affirmed 22 June 2018.
The wife replied on 28 March 2018 and said:[11]
… I again would like to reiterate that for me the marriage is irretrievably broken down and under no circumstances would I consider returning to the relationship or marriage. …
…
Amidst your most recent series of messages left on my voice mail and your emails requesting I withdraw my application for divorce, I have consistently, calmly and clearly refused to withdraw my application because the marriage is over. I am at a complete loss.
…
This email is my last attempt to reason with you and if you continue to contact me either by phone or email I will have no other option than to return to the [Suburb Y] Police and seek their assistance.
….
The marriage is irretrievably broken down and I do not wish to have any further contact with you.
[11] Annexure E to wife’s affidavit, affirmed 22 June 2018.
By a series of emails in April 2018 the husband told the wife he would withdraw his objection to the divorce. However, on the wife writing to thank him, the husband, in an email dated 12 April 2018, made the withdrawal of his objection subject to “revitalisation, rebalancing and renewal of the marriage”.[12]
[12] Annexure F to wife’s affidavit, affirmed 22 June 2018.
A little time later in May 2018, the husband’s solicitors wrote to the wife’s solicitor asking her to attend marriage counselling to which the wife’s solicitors responded:[13]
Our client’s position is clear and has been for many, many years: the marriage is over and she has no interest in attending, and will not attend, marriage or any other type of counselling.
It would resolve this matter were your client to accept the reality of this situation and to withdraw his Response to our client’s Divorce Application.
[13] Annexure H to wife’s affidavit, affirmed 22 June 2018.
It is against this factual background that we turn to consider the husband’s arguments on appeal the thrust of which was that the wife’s evidence before the primary judge was “equivocal” as to the prospect of reconciliation and that in those circumstances, it was not open to the primary judge to find that the husband had failed to establish that there was a reasonable prospect of a resumption of cohabitation.
At the appeal hearing, and without objection, the husband was granted leave to amend the grounds of appeal by adding a further ground of appeal, Ground 6, which was expressed to be in the alternate to Ground 4. Ground 5 was abandoned. The husband’s grounds therefore were:
1.That her Honour erred in law in prohibiting cross examination in these proceedings for principal relief.
2.That her Honour erred in fact in finding that there was no reasonable likelihood of cohabitation being resumed.
3.That her Honour erred in law in failing to consider, or failing to adequately consider, or give sufficient weight to the statutory mandate contained within section 43 of the Act.
4.That her Honour erred in law and in fact in finding that there were special circumstances warranting the shortening of the period in which the Divorce Order was to become final.
…
6.That Her Honour failed to give any, or any adequate, reasons for the abridgment of time in relation to the Divorce Decree becoming Absolute
(As per the original)

Ground 1

At the commencement of the hearing before the primary judge, the solicitor appearing for the husband indicated he wished to cross-examine the wife. Her Honour refused the application and in reasons delivered at the time in Dow & Hencken (No. 2) [2018] FCCA 3047 said:
8. I see no justification for cross-examining the wife on her position in relation to her marriage. It would be an abuse of process of the Court and given the wife’s evidence contained in her affidavit, in addition to her clear as a bell statement in her letters, that the cost to her mentally, physically, emotionally and financially of dealing with the father is so great that she now fears for her wellbeing and she continues to worry about her children and the attitude this is having upon her, on the children, and it is an imperative that the divorce be granted.
9. That is clearly a factor I take into account and to the utility, the forensic value of any cross-examination. The fact that the husband is of the view that there is some prospect of reconciliation does not persuade me that I would allow this lady, who has made out clearly a ground of irretrievable breakdown of marriage, communicated to the husband on many occasions, no less than by filing the application for divorce, which the husband refuses to accept, as the law permits him to do, that there would be no utility or forensic value. Indeed counting the cost to the wife emotionally of cross-examination on this very difficult topic for her, which she has communicated to the husband, would not assist the Court and I refuse any leave for the wife to be cross-examined in this defended divorce.
Her Honour returned to the refusal to allow cross-examination in her final reasons for determination in Dow & Hencken [2018] FCCA 2126 and said:
26. I refused to allow the wife to be cross-examined, admittedly by Mr Holmes, not by the husband. Cross-examination of the wife was objected to by Ms Clifford. This was on the basis of the wife’s difficultly she has evidenced in her own affidavit, of the stress and emotional difficulties she sustained in the delay in this divorce being granted, given she commenced a Divorce Application in December 2017.
27.Secondly, the letters and emails between herself, the husband, her lawyers and the husband’s lawyers of her clear and unequivocal statements that her marriage was ended and, to quote her lawyer’s letter of 5 June 2018, attached to her affidavit:
That she has no interest in attending and will not attend marriage or other type of counselling.
28.That letter is in response to a letter from the husband’s lawyer asking her to consider attending marriage counselling, and is set out at pages 35 and 34 of her affidavit. I accepted the position put by Ms Clifford and I refused cross-examination. I could see no utility in
cross-examination, it was an abuse of process, unduly prolonging the matter and cause the wife stress which need not be caused, given the clear evidence each party has filed.
29.As I see it on the evidence, as a whole, the wife has clearly established the ground of irretrievable breakdown of the marriage. That is clearly her view and has been for some time. Consistent with the decision of Falk & Falk, I do not have, having so found, any discretion other than to pronounce a decree.
(Footnotes omitted) (Emphasis in original)
On appeal it was contended that her Honour’s refusal to permit

cross-examination deprived the husband’s solicitor of the opportunity to question the wife to attempt to demonstrate that her conduct since separation showed she was equivocal about exploring the possibility of a reconciliation or to persuade her to agree to attending one session of marriage counselling with the husband to see whether the marriage really was at an end.
The husband cast his arguments on this ground in several ways:
·The primary judge failed to afford the husband a fair trial in not permitting cross-examination on the “live” issue and thus prejudged that issue in that it would have allowed the parties to present their case;
·The primary judge erred in finding that there was no “utility” in cross-examination;
·
That the proposed cross-examination would not “unduly prolong” the matter given the limited nature of the proposed

cross-examination on the one issue that is the prospect of reconciliation (s 48(3) of the Act), nor would it delay the resolution of the matter;
·Her Honour’s finding that cross-examination “was an abuse of process” was not reasonably open to her Honour and in any event the Court has the power to prevent the processes from being used as instruments of oppression;
·There was no evidence that that cross-examination limited to the “live issue” would cause the wife stress, or that the primary judge could not have managed the cross-examination in such a way as to avoid any possible stress to the wife; and
·
Her Honour erred in considering Bates and Sawyer (1977) FLC

90-319 (“Bates No. 2”) when the principle of law is found in the relevant earlier authority (Bates and Sawer (1977) FLC 90-249) (“Bates No. 1”) and had her Honour considered that authority, her Honour “ought to have permitted cross-examination of the wife”.
There is no doubt that the primary judge had the power to refuse to allow

cross-examination of a witness that has sworn an affidavit.[14] To refuse

cross-examination is an exercise of discretion and, as is well established, the bar to appellate intervention in a challenge to the exercise of discretion is a high one.[15]
[14]Evidence Act 1995 (Cth) ss 11, 27.
[15]House v The King (1936) 55 CLR 499; Norbis & Norbis (1986) 161 CLR 513 particularly at 539 (Brennan J).

The argument that in preventing cross-examination the primary judge “prejudged the issues” is, in our opinion, founded on a misconception. In the Summary of Argument it was contended for by the husband:
5. The Appellant, through his pleading and his affidavit material, discharged the evidentiary burden on him, to make the likelihood of a resumption of cohabitation a live issue, calling for a judicial determination of that contested issue. …
The submissions continue and contend that in the circumstances the husband was denied procedural fairness in not being able to cross-examine the wife on the “likelihood of a resumption of cohabitation”.
What the husband’s filed evidence had done was raise the controversy, that is, what conclusion or conclusions arose from the evidence both of the husband and that of the wife. The misconception as we see it is the husband’s view that there being a controversy, he was thus entitled to cross-examine.
The purpose of cross-examination is well established and to the extent that it needs authority for its articulation, in LGM & CAM [2008] FamCA 185 at [207] O’Ryan J said:
… Cross examination is the testing of a witness as to the facts in issue or credit. There is no right of cross-examination and it is permitted by a Judge in the exercise of his or her discretion to ensure that parties have a fair trial...
To this we add what was said by Hope JA in Albrighton v Royal Prince Alfred Hospital (Unreported version, New South Wales Court of Appeal,

29 September 1980) at page 7:
The purpose of cross-examination is to elicit facts or opinions, to test facts or opinions, and to test credibility.
As we have said, when asked by the primary judge to identify on what the husband’s solicitor proposed to cross-examine, the solicitor said: “[t]he prospect of a reconciliation. … The reasonable prospect of reconciliation”.[16]
[16] Transcript 4 July 2018, p.7 lines 3-7.
Based on that indication it was well open to the primary judge to conclude there would be no utility in the cross-examination and we find no support for the husband’s argument that in refusing to allow the cross-examination, her Honour “prejudged” the principal issue.
As did the primary judge, we see nothing equivocal in the wife’s attitude as expressed through the emails and other correspondence with the husband.
Her Honour’s conclusion that the husband’s desire to cross-examine the wife on this issue was an abuse of process was available to her on the evidence. She said that the wife’s evidence was “clear and unequivocal” that the marriage was ended and at [113] of Dow & Hencken [2018] FCCA 2126:
I do not know how much clearer the wife could have made it to the husband. There is clearly no prospect at any level of a resumption of cohabitation. The husband’s submissions that he wanted one more one [sic] counselling session and if that did not work then the divorce would probably go ahead, is consistent with his disregard of the wife’s clear and oft-stated position since 2010 – she wanted to move on with her life, her marriage was over and she did not want to remain as a married person. The husband has not heard it and has simply disregarded it.
Having found that it would be an abuse of process it was open to the primary judge to refuse to allow the wife to be cross-examined.
The other issues raised in support of the challenge, such as her Honour’s capacity to control the cross-examination are, in our view beside the point when the husband’s solicitor did not establish any proper forensic purpose for the proposed cross-examination.
Equally, the wife’s affidavit as to her distress at the husband’s refusal to accept her position that the marriage was at an end, her seeking help from a counsellor and her priest and having the local police ask the husband to stop contacting her, well entitled her Honour to conclude that cross-examination of any kind would be distressing for the wife.
Finally, it was argued that her Honour misdirected her consideration of the issue of cross-examination by reference to wrong authority. The husband argues that the primary judge was misled by the wife’s written submission which referred to Bates No. 2 rather than Bates No. 1.
The primary judge correctly referred to Bates No. 2 as authority for the test as to when s 48(3) of the Act is enlivened. The wife opposing the divorce must establish an intention to resume living together and establish that the applicant for divorce has “an equivocal nature indicating that he or she is interested in exploring the possibility of a reconciliation” (at 76,695).
In Bates No. 2, the primary judge had allowed cross-examination of the wife which the Full Court described as allowing “very considerable licence” (although the Full Court did not criticise the primary judge for doing so) but observed that it resulted in the wife going “through a harrowing ordeal in the witness box especially under cross-examination by the husband” (at 76,694).
There is no basis to suggest that the primary judge misdirected herself in relation to the applicability of Bates No. 2.
As to the applicability of Bates No. 1, the husband did not refer the primary judge to this case during the hearing. In Bates No. 1, the wife was asked whether there was a reasonable likelihood of cohabitation between the parties being resumed and she answered “No”. The Full Court upheld an appeal in part because the husband had not been given the opportunity of asking any questions about or exploring what the Full Court described as “a bald answer, ‘No’”. In this case the position is quite different. The wife has consistently and forcibly over a long period of time expressed an unequivocal attitude that she has no interest in exploring the possibility of reconciliation. We do not accept that her Honour misdirected herself as to the applicable law.
In any event, even if there had been a failure to afford the husband procedural fairness, that does not automatically entitle the aggrieved party to a new trial. It is then necessary to consider if it would be futile to order a new hearing because to do so would inevitably result in the same outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (“Stead”). In the circumstances of this case, we consider cross-examination would have been futile and accordingly the husband was not deprived of the “possibility of a successful outcome”.[17]
[17]Stead at 147; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341-343.
This challenge to her Honour’s orders is not made out.

Ground 2

This ground argues that the primary judge erred in finding that there was no reasonable likelihood of cohabitation being resumed.
The argument supporting this ground is that, by denying the husband the right to cross-examine the wife, the conclusion as to the resumption of cohabitation was not reasonably open to the primary judge.
It is unnecessary to discuss this ground at length because the solicitor for the husband acknowledged that if the argument that to prevent cross-examination was a denial of procedural fairness failed, as it has, then this ground too will fail.
Before however moving from this ground, it is appropriate to point out that a challenge to fact finding by a primary judge, much like challenges to the exercise of discretion, faces significant hurdles to appellate intervention. The husband must show that the finding was not reasonably open on the evidence. In this case, the impugned finding was an inference drawn from the uncontested facts and circumstances in the evidence. Further, the ultimate contention of the husband was that based on those facts and circumstances, the wife’s assertion that there was no reasonable prospect of resumption of cohabitation was “equivocal”. We see no force in the contention that her Honour’s conclusion based on that evidence, that the wife’s view was clearly expressed was not open on the evidence.[18]
[18]Edwards v Noble (1971) 125 CLR 296 at 304.
This ground will fail.

Ground 3

This ground asserts that the primary judge failed to give proper weight to the “statutory mandate” articulated in s 43 of the Act. Whilst the term “statutory mandate” might merely be infelicity of language, it is important to understand that s 43 of the Act articulates the principles to be applied in the exercise of the Court’s jurisdiction under that part and does not provide a “statutory mandate”.
The proper role of object clauses, statements of principles and preambles in legislation was considered in Wacando v The Commonwealth (1981) 148 CLR 1 where at page 23 Mason J (as his Honour then was) said:
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say “that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it”.
(Footnote omitted)
Thus, the articulation of principles in s 43 of the Act does no more than provide context to the legislative intention. The submissions on this ground contend that in light of the husband’s evidence and his opinion that the wife’s views about resumption of cohabitation are equivocal, her Honour was bound to consider the section and, in particular the provision of s 43(1)(d) of the Act, which speaks of having regard to “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”.
To contend that her Honour was bound to consider and act on those principles mistakes their purpose. However, based upon the wife’s response to the husband’s overtures to her, which included seeking the assistance of the police, sending an email in which she said to him “[t]his email is my last attempt to request that you cease coming to D Street so as to avoid leaving me with no other option than to apply for an AVO”,[19] sentiments which were repeated by the wife in an email sent to the husband on 28 March 2018 and the most emphatic response from the wife’s solicitor in relation to the husband’s request for counselling, namely that “the marriage is over and she [the wife] has no interest in attending, and will not attend, marriage or any other type of counselling”,[20] her Honour would have been well entitled to find, as she did that there were no reasonable prospects of resumption of cohabitation.
[19] Annexure B to wife’s affidavit, affirmed 22 June 2018.
[20] Annexure H to wife’s affidavit, affirmed 22 June 2018.
The submission while asserting that her Honour was obliged to assist the parties to consider reconciliation or improving their relationship did not indicate what steps she ought to have taken and we observe no such submission was made to her Honour in the trial. It seems the steps that her Honour ought to have taken was to refuse to make an order for divorce because the husband believed the wife was equivocal in her view that there was no prospect of reconciliation. For her Honour to consider assisting the parties to reconcile in light of the unchallenged evidence simply on the basis of the husband’s refusal to accept the wife’s view, would have been an affront to the evidence.
Again the solicitor for the husband acknowledged that if the argument that to prevent cross-examination was a denial of procedural fairness failed, as it has, then this ground too will fail.
There is no merit in this ground.

Ground 4 and Ground 6

Her Honour as we have said made an order for a divorce and made an order abridging the time in which the divorce order would become final. The abridgment had the effect of reducing the time from one month to 22 days.
This, it was argued, was an error.
Ground 4 asserts that her Honour erred in law in finding there were special circumstances which warranted the shortening of time in which the divorce could become final. Ground 6, in the alternative, contends that her Honour gave no or no adequate reasons for finding those special circumstances.
After her Honour rejected the husband’s argument that there was a reasonable likelihood of resumption of cohabitation, the wife’s solicitor applied for the divorce order to become final immediately. That was opposed by the husband’s solicitor who said that to do so would deprive his client of the capacity to appeal and “to … consider it”.[21] It was further argued that there were no special circumstances which would warrant the abridging of the time.
[21] Transcript 5 July 2018, p.26 lines 32-38.
For the wife it was argued to her Honour that there existed special circumstances (sic exceptional) to justify the shortening of time.
Whilst her Honour gave no explicit reasons for the decision to abridge the time she did make findings that well entitled her to abridge the time. She found that the wife had paid a cost mentally, physically, emotionally and financially in dealing with the husband’s attitude to the divorce and that the wife feared for her wellbeing and continued to worry about her children.
It was also uncontroversial that the separation had taken place years before and there had been delay in finalising the dissolution because the matter had to be referred to a judge after the husband had filed his Response.
The solicitor for the husband argued that it was important to retain the statutory period of one month before a divorce order became final because it allows time for parties to reconsider their position and to reconcile if they do. Her Honour’s ordered abridgment, from one month to 22 days, provided the parties with time to reflect on the finding and provided the husband with time to lodge an appeal against the orders.
This ground is not made out.
The appeal will be dismissed.

Disposition of the matter

The orders sought by the wife on the appeal asked that in the event the appeal failed, the Full Court make an order that the divorce becomes final forthwith.
Section 55 of the Act provides for the time when a divorce order takes effect.
Section 55(2)(b) of the Act allows a court in which an appeal has been instituted, before or after it has disposed of the appeal, to make an order reducing the period at the expiration of which the divorce order will take effect, if it is satisfied that there are special circumstances that justify its so doing. Subsection 55(3) of the Act, whilst on its face appearing to provide for a minimum period of one month to expire before a divorce order becomes final, is expressed to be subject to any order under s 55(2) of the Act.
We are satisfied in this case that special circumstances exist to justify reducing the period at the expiration of which the divorce order will take effect, so that the divorce order becomes final immediately, for the following reasons:
·the wife filed an Application for Divorce on 18 December 2017 and then an Amended Application for Divorce on 22 June 2018;
·the primary judge made a divorce order on 5 July 2018 which was to take effect on 27 July 2018;
·the husband appealed the primary judge’s order which, because of the provisions of s 55(3) of the Act effectively stayed the finalisation of the divorce order pending the appeal;
·we have found there is no merit in that appeal and the finalisation of the wife’s Application for Divorce has accordingly been delayed; and
·we accept the primary judge’s findings that the wife paid a cost mentally, physically, emotionally and financially in dealing with the husband’s attitude to the divorce and that the wife feared for her wellbeing and continued to worry about her children whilst the matter remained unresolved.

COSTS

At the conclusion of the appeal hearing the parties agreed that if the appeal was unsuccessful, the husband could not contest an order for costs being made and a sum of $10,000 was agreed. We will therefore order that the husband pay the wife’s costs of and incidental to the appeal in that sum.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent & Watts JJ) delivered on 11 September 2019.

Associate:
Date: 11 September 2019