LJB and CB - [2004] FMCAfam 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LJB & CB

[2004] FMCAfam 374

FAMILY LAW – Divorce – husband died after decree was pronounced, but before decree absolute – decree absolute a nullity – decree nisi set aside.

Brennan v Brennan (1953) 89 CLR 129
Cross (1995) FLC 92-628
Dern (1961) 2 FLR 126
Miller (1983) FLC 91-328
R v Mogley (1992) 28 NSWLR 735
Tregally v Stuartson Stubbs and Collete Limited (1966) 66 SR 335
Wardal (1990) FLC 92-151

Applicant:

L J B

Respondent:

C B

File No:

SYM15 of 2004

Delivered on:

4 August 2004

Delivered at:

Wollongong

Hearing date:

30 July 2004

Judgment of:

Ryan FM

REPRESENTATION

Applicant:

In person

Respondent:

Deceased

ORDERS

The decree absolute ordered 12 April 2004 is a nullity.
The decree nisi ordered 11 March 2004 is rescinded.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM15 of 2004

L J B

Applicant

And

C B

Respondent

REASONS FOR JUDGMENT

L J B (“the applicant”) asks the court to set aside a Decree Nisi ordered 11 March 2004 in relation to which a Decree Absolute issued 12 April 2004.
The applicant filed a divorce application in this court on 7 January 2004. In it she revealed that the parties married on 25 April 1970 and separated in February 2002. The parties lived separately under the one roof between February 2002 and 20 September 2002, thereafter they lived in different homes..
The divorce application was served on the respondent, C B on

15 January 2004.
On 11 March 2004 the applicant appeared before the court and a sessional registrar granted her application for divorce.
On 12 April 2004 the applicant was contacted by police who informed her that the respondent was found deceased in his home near Camden. She immediately went to his home where police and the Coroner were in attendance. She understood that her attendance was required so that she could identify the body as the respondent. However, on her arrival the applicant was advised that the body was too decomposed for her to see.
The following day she contacted the court and was advised that her divorce had been granted. As a consequence she understood that there was nothing she could do about the divorce becoming absolute.
On 28 April 2004 a death certificate issued that records the respondent’s date of death as “between 15 March 2004 and 12 April 2004”. Relevantly, the cause of death is not recorded and the certificate notes, “the finding of the coroner has not yet been received. In response to a special request, this certificate copy is issued without particulars of cause of death”.
Apparently it will be at least another one or two months before proceedings are concluded in the Coroner’s Court.
Dr Neil Langlois, Forensic Pathologist attached to the Department of Forensic Medicine and the Westmead Coroner’s Court prepared a report for the Deputy State Coroner in which he concludes, “I have made further inquiries regarding the situation of the body and temperature of the house when the deceased was found. Given the degree of decomposition of the body, I am certain the death of Mr C B occurred before 12 April 2004”.
I am satisfied that the respondent died prior to 12 April 2004.
By s.55(4) of the Family Law Act 1975 a Decree Nisi shall not become absolute by force of this section where either of the parties to the marriage has died.
This section is mandatory and, although a certificate of divorce issued, because it was reliant upon s.55 in order to do so, the certificate of divorce is a nullity.
Because the decree is a nullity s.58 enables the court to rescind the Decree Nisi, “If it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance”. There is no basis upon which the court could conclude that there has been a miscarriage of justice in ordering the decree nisi and the application pursuant to s.58 fails.
However, the court has an implied power to set aside a decree nisi on the basis that it is 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, (ss.55 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[1] “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.
[1] Family Law - Cases, Material and Commentary at 206
This is a clear case for the court exercising its power favourably to the applicant. Without the Decree Nisi being set aside the wife lingers in a legal limbo subject to a Decree Nisi, but without completion in a sense of the decree being absolute. Leaving her in such a situation is untenable and the relief sought is granted.
For these reasons I make the orders as set out at the start of the judgment.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 4 August 2004