Maunder & Maunder

[1999] FamCA 1430

[1999] FamCA 1430

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA50 of 1999
AT MELBOURNE  File No ML3433 of 1999

BETWEEN:

ANN-MARIE MAUNDER
Appellant Wife
- and -

BARRY VICTOR MAUNDER
Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  FINN, KAY & MOORE JJ
DATE OF HEARING:  5 October 1999
DATE OF JUDGMENT:                  20 October 1999

APPEARANCES:  Ms Johns of Counsel, instructed by Rudd & Co., Solicitors, 1103 Malvern Road, Toorak, Vic  3142, appeared on behalf of the Appellant Wife.

Ms Tulloch of Counsel, instructed by Andrew P Melville, Solicitor, 51 Sanger Street, Corowa, NSW 2646, appeared on behalf of the Respondent Husband.

1.1.1.1.1       MAUNDER

SA 50 of 1999
Coram:   Finn, Kay and Moore JJ  
Date of appeal:      5 October 1999
Date of judgment:  20 October 1999

DIVORCE – Children – Absence of proper arrangements – Circumstances when decree can become absolute – Positive obligation on Court to protect children – Applicant father out of jurisdiction – No circumstances shown – Section 55A Family Law Act 1975

The parties married in Australia in 1990.  They had two children who were aged 8 and 5 at trial.  Prior to separation the family lived in Brunei where H was employed by an airline.  After separation H remained in Brunei and W and the children returned to Australia.  W then had access to $15,000 of the parties’ savings and H paid child maintenance of $750 per month.

In March 1999 H filed an application for divorce.  In April 1999 W filed applications for final and interim orders for (inter alia) property settlement, spousal maintenance and child maintenance.  On the same day W filed a response opposing the divorce application, saying that she was concerned about H’s divorce application being granted while she had applications on foot, the children were not being properly provided for, and H was not resident in Australia.  H did not file any further material.

The divorce application came before Frederico J, who indicated he did not need to hear from counsel for H. He stated that it was “not customary for the Court … to hold parties to ransom over an application for dissolution of marriage whilst other issues are under debate”, and made a declaration under s 55A(1)(b)(ii).

On appeal, W contended that the trial Judge had erred in law in finding that there were circumstances by which a decree nisi should become absolute even though the Court was not satisfied that proper arrangements had been made for the care, welfare and development of the children.  W sought to have the declaration set aside.

1.2       

1.3      Held, in allowing the appeal:

• It was abundantly clear that his Honour could not be satisfied that proper arrangements had been made for the children (Opperman (1978)). H was outside the jurisdiction and not immediately amenable to any procedural orders of the Court, despite Brunei being a reciprocating jurisdiction for the purposes of s 110 of the Family Law Act. 

• Section 55A places a positive obligation on the Court to protect the interests of children of divorcing spouses. Where the Court is not satisfied that proper arrangements have been made for the children it must not grant a decree absolute, unless there are circumstances by reason of which the decree should become absolute.

• His Honour appeared to rely on ‘circumstances’ here being that it is not customary to hold parties to ransom over divorce applications and that the respondent’s applications had been set down for hearing. These were inadequate for the purposes of s 55A(1)(b)(ii) and there was no evidence of relevant overriding circumstances.

• It was appropriate to set aside the declaration and give the parties liberty to apply to a Judge at first instance to have a fresh declaration made.

Appeal allowed
Declaration under s 55A(1)(b)(ii) set aside
Parties at liberty to apply for a declaration under s 55A(1)(b)(ii)
Costs certificates under the Federal Proceedings (Costs) Act granted to both parties for the costs of the appeal
Reportable

1. This is an appeal by the appellant wife against a declaration made by Frederico J on 17 May 1999 that there were circumstances by reason of which a decree nisi which his Honour had pronounced should become absolute even though the Court was not satisfied that proper arrangements had been made for the care, welfare and development of the children of the marriage.  Such a declaration is made by order, and so there is no question but that an appeal lies from it.

1. At the outset we would like to commend both counsel for their excellent presentation of this case.

Background

1. The parties were married on 27 August 1990.  There were two children of the marriage born 26 December 1990 and 14 February 1994.  It was common ground that by December 1996 the parties had separated and that there was no reasonable likelihood that they would resume cohabitation.

1. The husband was born in Australia and the wife in England.  The marriage had taken place in Victoria.  Immediately prior to separation the parties resided in Brunei where the husband was employed as an aircraft engineer.

1. After separation the husband remained in Brunei whilst the wife brought the children to Victoria.  In February 1997 the husband began to pay $750 per month to the wife as maintenance of the children.  Apart from being able to utilise $15,000 of the parties' savings, the wife appears to have received no other financial support from the husband after separation.

1. On 25 March 1999 the husband filed an application seeking dissolution of the marriage.  The application was returnable at Albury on 7 May 1999.  The husband deposed in the application that each of the children lived in rented accommodation and were supervised by the respondent.  He further deposed that he saw the children approximately twice per annum.  As to the issue of financial support, he said:

"The wife received the greater share of the matrimonial assets at the time of separation.  Since separation, the Applicant has paid the wife $750.00 per month by way of child maintenance."

1. In a response filed on 19 April 1999 the wife said:

"8.I oppose the husband's application being granted, whilst my applications are current and whilst the husband is paying inadequate support for the children.

9.I am concerned that if the husband's application is granted, he will leave the country and that it will make it difficult for me to proceed with my applications.  I ask that the husband's application be transferred to Melbourne and heard simultaneously with my applications."

1. The reference to "my applications" is a reference to Forms 7, 8 and 12 applications filed simultaneously on 19 April 1999 in which the wife sought orders (inter alia):

(Form 7 - application for final orders)

"that the husband pay or cause to be paid to the wife an amount which equals 70% of the property and resources of the parties held in their joint or individual names or in any trust, superannuation fund or in any entity in which they or either of them have an interest.

..."

(Form 8 - application for interim orders)

"That until further order the husband be restrained from leaving the Commonwealth of Australia unless he has provided proper security for maintenance payable to the wife and children."

(Form 12 - application for maintenance)

"INTERIM ORDERS

1.That the husband pay to the wife $800.00 per week for the general maintenance of the wife.

2.That the husband pay private health insurance for the wife.

3.That the husband pay to the wife for the support of the children of the marriage...the sum of $350.00 per week per child being a total of $700.00 per week.

4.That the husband pay private health cover for the children including extras cover to orthodontic, orthotic and psychological services cover.

5.The husband be responsible for and indemnify the wife against the gap payment between medical accounts for the children and the sum reimbursed by the medical benefit insurer.

6.That the husband pay for reasonable extra curricular activities for the children.

PERMANENT MAINTENANCE

1.That the husband pay to the wife by way of permanent maintenance such amount as the Court shall consider just and equitable having regard to the terms of the final orders for the division of property made between the parties."

1. The Form 4 (dissolution application), although returnable at Albury, came on for hearing before Frederico J at the Melbourne Registry, together with the Form 7 and 12 applications pursuant to orders made by Registrar Edney on 3 May 1999. 

The Hearing and the Judgment

1. When the matters came on for hearing before Frederico J, counsel for the wife sought some interim maintenance relief.  Counsel for the husband indicated that she was unsure whether the husband had even been served with the financial applications.  His Honour referred the Form 12 application for fixture in the Registrars' Discrete Maintenance List and the Form 7 application to the Registrars' List on the same day that the Form 12 was to be heard.  He made directions for the husband to file a Statement of Financial Circumstances and any material he sought to rely upon in opposition to the applications and further directed:

"That in the event of the husband failing to provide such material as required by this order the wife be at liberty to apply to proceed undefended in respect of both applications."

That led to the orders and directions just outlined being made.  His Honour's attention was then turned to the dissolution applications.

1. Mr St John, counsel for the wife, said:

"Well, your Honour, as to the dissolution application, I would seek to address your Honour on that.  Your Honour, the difficulty about this matter is that the husband resides in Brunei.  We know little of his financial situation.  He obviously comes to court seeking an indulgence from the court that matters be otherwise adjourned.  We are concerned, your Honour, that the husband come to Australia.  We are concerned that the court and my client be in a position to hear from the husband what his financial situation is."

Mr St John then addressed his Honour on a number of reasons why proper arrangements could not be said to have been made for the care, welfare and development of the children.

1. In the midst of Mr St John's submissions his Honour said:

"It's not normal to hold people to ransom over a divorce application."

1. Mr St John concluded his submissions by saying:

"...in my respectful submission your Honour ought not (a) proceed with the application of the dissolution or (b) if your Honour takes the view that your Honour will proceed, your Honour ought not be satisfied that there are proper arrangements with respect to the children."

1. His Honour then told counsel for the applicant husband that he did not wish to hear from her and his Honour then delivered the following judgment (emphasis added):

"In this matter there is an application for dissolution filed by the husband alleging a separation in about August 1996.  The wife alleges that the separation took place some time later.  Certainly, however, the necessary period for the granting of a decree on the application filed 25 May 1999 has been made out.

A response has been filed by the wife.  She raises serious concerns about the adequacy of the support provided for herself and the children, and as to her claim for settlement of property, and indicates that thus I should not declare that proper arrangements have been made for the children. 

I have indicated to the parties that I will require the wife's maintenance application to be fixed in the Registrar's discrete maintenance list on a date which they should discuss, and hopefully that will be a date when the husband will be in Australia.  Certainly I will provide that, in the event of the husband failing to file proper financial material in relation to the maintenance issue and in relation to the property issue, the wife be at liberty to proceed on an undefended basis.  It appears to me that that should satisfy the situation. 

It is not customary for the Court, as I indicated in the course of argument, to hold parties to ransom over an application for dissolution of marriage whilst other issues are under debate.  In those circumstances I am prepared to find on the application filed 25 March 1999 that the applicant and respondent were lawfully married on 27 August 1999 at Trafalgar.  I find the wife at the date upon which the application was filed domiciled in Australia.  I find the ground established, grant a decree nisi for dissolution to become absolute in one month.  I declare there are two children to whom the provisions of the Act apply.  I declare that there are circumstances by reason of which the decree should become absolute, notwithstanding that the Court is not satisfied that proper arrangements have been made for their welfare.

On the form 12 application, I refer that matter to the Listings Registrar for a fixture in the Registrar's discrete maintenance list.  The form 7 application is adjourned to the Registrar's list on the same date as is fixed on the Registrar's maintenance list.  It is ordered that the husband file and serve statements of financial circumstances and any material upon which he may seek to rely in opposition to the applications not less than 14 days prior to the date fixed for hearing.

I direct that in the event of the husband failing to provide such material as required by this order, the wife be at liberty to apply to proceed undefended in respect of both applications.

I reserve all questions of costs, and certify for counsel."

The Appeal

1. Whilst the Notice of Appeal formally sought to appeal against the granting of a decree nisi for dissolution of marriage and the reservation of costs, it was common ground in the appeal before us that the appeal was directed at the declaration made under s 55A(1)(b)(ii) of the Family Law Act 1975, being to the effect that there were circumstances by reason of which the decree nisi should become absolute even though the Court is not satisfied that proper arrangements have been made for the children of the marriage. What was sought from us was an order setting aside that declaration and either remitting the matter for rehearing or simply allowing the matter to remain in limbo with liberty to either party to apply if they sought the making of any declaration under s 55A. The issue of the reservation of costs by the trial Judge was not pursued before us.

The relevant provisions of the Family Law Act 1975

S 48 Dissolution of marriage

(1)     An application under this Act for a decree of dissolution of a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2)     Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.

(3)     A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

S 54 Decree nisi in first instance

A decree of dissolution of marriage under this Act shall, in the first instance, be a decree nisi.

S 55 When decree becomes absolute

(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.

...

(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 sub-section (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 sub-section (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;

...

S 55A Decree absolute where children

(1)     A decree nisi of dissolution of marriage does not become absolute unless the court has, by order, declared that it is satisfied:

(a)that there are no children of the marriage who have not attained 18 years of age; or

(b)that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:

(i)proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or

(ii)there are circumstances by reason of which the decree nisi should become absolute even though the court is not satisfied that such arrangements have been made.

Case Law

1. The relevant provisions of s 55A were originally enacted in s 63 of the Family Law Act 1975. In 1987 there was a renumbering of the section. There have, however, been no relevant substantive amendments to the section since it was initially enacted.

1. The provisions of s 63 were extensively examined by the Full Court in The Marriage of Opperman (1978) FLC 90-432; 4 Fam LR 135. Mrs Opperman was the mother of five children. Mr Opperman was the father of two of them. All five children had been members of the Opperman household. In the proceedings the wife contended that no s 63 declaration should have been made unless proper arrangements were made for the step-children as well as the Opperman children.

1. Watson SJ and Murray J held that a party seeking relief under s 63 had an onus of presenting to the Court sufficient evidence to satisfy the Court that either proper arrangements existed or that there were circumstances which would justify a declaration under s 63(1)(b)(ii). They concluded that Mr Opperman had failed to discharge that onus and remitted the matter for a rehearing.

1. Their Honours noted that the origins of s 63 could be traced back through s 71 of the Matrimonial Causes Act 1959-1966 to the Report of the English Royal Commission on Marriage and Divorce (1956) (CMD 9678) - the Morton Commission. Their Honours said, at FLC 77,191; Fam LR145-6:

"Part V (para. 360 et seq.) deals with children, stating (para. 360) that no problem resulting from the dissolution of marriage is more serious than that of trying to ensure the future well-being of the children. The Report pointed out (para. 361) that where family life breaks down, there is always the risk of a failure to meet fully the child’s need for security and affection. If in fact there is such failure, the child may become so emotionally disturbed as to reject the influences of the family and this may result in anti-social behaviour. It was stated (para. 362) that where divorce takes place it is therefore essential that everything which is possible in the circumstances should be done to mitigate the effects upon the child of the disruption of family life.

The Commissioners made a series of recommendations which can be found in para. 373 to 377, 393 and 394 of the Report.

Subsequently the British Parliament gave effect to these proposals. See sec. 2 of the Matrimonial Proceedings (Children) Act 1958 re-enacted (in various forms) in sec. 33 of the Matrimonial Causes Act 1965, sec. 17 of the Matrimonial Proceedings and Property Act 1970, and now in sec. 41 of the Matrimonial Causes Act 1973."

1. Their Honours then examined a number of first instance judgments made under s 71 of the Matrimonial Causes Act (Cth) 1959-66, including Woolley (1961) 2 FLR 114, Gund (1961) 2 FLR 267, Morton John (1961) 2 FLR 273, Paul (1963) 4 FLR 366, Bass (1963) 5 FLR 466, and Viney (1965) FLR 417. Their Honours then noted that while s 71 of the Matrimonial Causes Act required the court to be satisfied that "special" circumstances existed if proper arrangements were not made, the Family Law Act only required that there be "circumstances".  Their Honours said that this difference allowed a wider discretion to the Court where it was not satisfied that proper arrangements had been made. 

1. Their Honours then said at FLC 77,195-196; Fam LR 151 (emphasis added):

"We would not wish to define 'circumstances' so as to fetter the discretion of the court under sec. 63. The court will have to balance on the one hand the termination of a marriage which has no social utility, as Barry J. put it in Howe v Howe 2 F.L.R. 2 at p. 5, as against the protection of the children of the broken family unit enjoined upon the court by sec. 43(c); but if indeed a question arises as to which aspect requires the more weight and attention, there is no doubt that the court should exercise its discretion so as to give more weight to the latter.

There must however be evidence before the court to enable it to make findings as to satisfaction, or lack of it, or as to circumstances under the second limb, and it appears to us that what little evidence there was before the learned trial Judge did not contain any circumstances that would enable him to found any sort of declaration under sec. 63. Our sympathies lie with his Honour, pressured as he doubtless was by a very busy circuit list and indeed diverted by the argument of Counsel over the quantum of maintenance followed by a consent order; but a consent order as to maintenance relating to two children only, without any evidence relating to the matters of welfare generally which we have previously mentioned, does not discharge the court from the stringent duty cast upon it by sec. 63 to exercise so far as is practicable the protective role cast upon it by the Act.

This does not necessarily mean that the court has power to substitute other arrangements for those made by the parties or either of them, nor that an obstructive or greedy spouse should be able to frustrate a dissolution for no good purpose. It does mean however that the party seeking the relief has the onus of presenting to the court sufficient evidence to satisfy the court that the arrangements, material and emotional, are the best that he or she can make in the circumstances.

Without wishing in any way to specify too precisely the areas of arrangement which an application should present to the court, it appears to us that arrangements as to financial support, education and supervision (especially if the custodial parent is working) should be canvassed by the applicant to the best of his or her knowledge.

On that evidence the court should be able either to:—

(a)      express satisfaction;

(b)specify the circumstances which justify the dissolution notwithstanding the lack of satisfaction; or

(c)       adjourn the question of a declaration until:

(i)        proper arrangements have been made (as was, for example, most properly done in Warne and Warne (1977) FLC 90-242; [(1977) 1 Fam LR 11,602)]; or

(ii)       circumstances arise justifying a declaration under the second limb of the section."

1. Strauss J, in dissent, was of the view that the institution of proceedings by the wife against the husband for maintenance for all of the children constituted arrangements which were proper in the circumstances.  He said that a court should not allow the section to be used as a means of coercing an applicant for dissolution of marriage into accepting financial obligations which the law did not impose or which were likely to be more onerous than those which would be imposed as a result of an appropriate curial determination.

1. In Evans (1990) FLC 92-150; 14 Fam LR 136, Mullane J refused to make any declaration under s 55A in circumstances where the applicant wife was receiving what his Honour thought was an inadequate amount of child support. His Honour concluded, at FLC 78,045; Fam LR 138:

"There are no circumstances disclosed on the evidence justifying a declaration under sec. 55A(1)(b)(ii), and I therefore I make no declaration under sec. 55A and I stand the matter over generally with leave to approach the Registrar for the matter to be relisted at a later date."

Conclusions

1. There being no challenge to the finding by Frederico J that the Court could not be satisfied that proper arrangements had been made for the welfare of the children, what then were the circumstances relied upon by his Honour which gave rise to the declaration made under s 55A(1)(b)(ii)?

1. Further, it was submitted to us that even if any circumstances existed, the Court would be unable to discern from his Honour's Reasons for Judgment, either expressly or by implication, what the circumstances were that were relied upon by his Honour and, as such, the principles discussed in decisions such as Bennett and Bennett (1991) FLC 92-191; 14 Fam LR 397 and A v J (1995) FLC 92-619; 19 Fam LR 260 need to be applied. It was further submitted that that would lead the Court to setting aside the order made and either remitting the matter or re-exercising his Honour's discretion afresh if there was sufficient material upon which the discretion could be re-exercised.

1. As already set out, his Honour's reasons for judgment were very short.  Having indicated that he would make directions to enable the wife's maintenance and property proceedings to be dealt with in due course, and if appropriate on an undefended basis, his Honour said:

"It appears to me that that should satisfy the situation".

It is not immediately apparent to us what "the situation" was that his Honour thought such orders would satisfy.  Having regard to his subsequent findings, it clearly did not satisfy the test of "proper arrangements".

1. His Honour then went on to say:

"It is not customary for the Court, as I indicated in the course of argument, to hold parties to ransom over an application for dissolution of marriage whilst other issues are under debate."

1. Whilst we agree with the sentiments expressed by Strauss J in Opperman (supra) where his Honour said at FLC 77,201; Fam LR 143:

"...sec. 63(1)(b) should not be used, and the Court should not allow it to be used, as a means of coercing an applicant for dissolution of marriage into accepting financial obligations which the law does not impose or which are likely to be more onerous than those which would be imposed as the result of an appropriate curial determination."

In our view, that observation has little application to the present case.  Frederico J was asked to deal with an application for dissolution in circumstances where the applicant was outside the jurisdiction of the Court and not immediately amenable to any procedural orders, such as discovery and the making of a full and frank disclosure of his financial affairs, which would then lead to proper child maintenance orders being made. 

1. Australia is a signatory to the Convention on the Recovery Abroad of Maintenance. Brunei is not a signatory to that Convention (see s 111 of the Family Law Act 1975 and Part IV of the Family Law Regulations). Brunei is, however, a reciprocating jurisdiction for the purpose of s 110 of the Family Law Act 1975, which provides for the making of regulations for procedures for (inter alia):

"(2)(b) the transmission to appropriate courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity of maintenance orders made by courts having jurisdiction under this Act for the purpose of securing the enforcement of those orders in those jurisdictions; 

and

(ba) the making of provisional maintenance orders, and the transmission of such orders to appropriate courts of reciprocating jurisdictions or jurisdictions with restricted reciprocity, for the purpose of obtaining the confirmation, and securing the enforcement, of those orders in those jurisdictions..."

1. Regulation 27 of the Family Law Regulations makes provision for the transmission of Australian maintenance orders to an overseas reciprocating jurisdiction with the request that the Australian order be made enforceable in that overseas jurisdiction.

1. It was abundantly clear before his Honour that his Honour could not be satisfied that proper arrangements in all the circumstances had been made for the care, welfare and development of the parties' children.  When counsel for the applicant husband sought to address his Honour in respect to the application for dissolution, his Honour indicated he wished to hear no submissions and then proceeded to deliver the judgment in which, as far as we can establish, the only circumstance which his Honour sought to rely upon was that it was not customary for courts to hold parties to ransom over an application for dissolution for marriage while other issues were under debate.

1. We do not feel that the categorisation of the wife's conduct in this case can properly be said to be seen to hold the husband to ransom.  She was appropriately concerned to ensure that proper arrangements had been made for the welfare of the children.  There was a positive obligation on the Court to not allow the decree nisi to become absolute unless it was so satisfied as to the arrangements or unless it was satisfied that there were circumstances by reason of which it should become absolute notwithstanding it was not so satisfied. 

1. No opportunity was given to the husband's counsel to address his Honour on what such circumstances might be. There was no material before the Court as to the husband's personal circumstances which might make it appropriate that a dissolution be granted, such as the desire to remarry or some form of foreign citizenship requirement. Nothing effectively appeared in the material which from it could be said that "circumstances" existed to justify the declaration under s 55A, other than the fact that the parties had been separated for over two years by the time the matter came on for hearing before the trial Judge.

1. Whilst it is arguable that his Honour considered the fact of the listing for hearing (if necessary on an undefended basis) of the wife's applications for financial relief, as a circumstance for permitting the decree to become absolute notwithstanding the lack of proper arrangements for the children, given the factors peculiar to this family of an off-shore applicant not readily amenable to the jurisdiction, the mere setting down of the respondent's applications was not sufficient to amount to such a circumstance.

1. The provisions of s 55A are mandatory and express a firm policy not to allow parties to be divorced without giving appropriate consideration to the arrangements that have been made for the welfare of the children to the marriage. In our view, nothing in the material raised any circumstance which could be said to make it appropriate in this case that a s 55A declaration be granted. That is not to say that such circumstances may not exist.

1. In her written submissions on appeal, counsel for the respondent identified as such circumstances the following:

• the relatively short period of the marriage

• the period of separation (in excess of two years)

• the distance between the respective residences of the wife and the husband

• the lack of contact between the husband and the children

• the clear indication that the marriage had broken down irretrievably and there was little hope of reconciliation

• the voluntary payment of maintenance by the husband

• the existence of the applications for maintenance, spousal maintenance and property settlement, and

• the absence of any attempts prior to the issue of the application for dissolution to obtain any higher amount of maintenance than that which was being voluntarily paid.

1. However, none of those matters would lead us, on a re-exercise of the discretion which the trial Judge failed to properly exercise, to conclude that there are circumstances by reason of which this decree should become absolute, notwithstanding that proper arrangements have not been made for the welfare of the children.

1. The section is designed to protect children who are frequently the innocent victims of the breakdown of their parents' marriage.  It seeks to balance the right of the parents to get on with their lives as separate entities from each other with the need to ensure that the best circumstances can be created for their children.  None of the matters urged upon us would outweigh the stringent duty identified in Opperman's case (supra) so as to tip the scales in favour of the husband.

1. There may well exist circumstances by reason of which it is appropriate to grant this decree. They are, however, not apparent from the material before us. The fact that this was a comparatively short marriage which has irretrievably broken down cannot be sufficient. Otherwise s 55A would have no practical effect. Similarly the geographical separation of the parties cannot justify the making of the declaration. The lack of earlier proceedings by the wife to remedy what she asserts was the payment of inadequate maintenance, and the present existence of such proceedings might ordinarily be matters that are relevant to the exercise of discretion, but they need to be viewed in light of the husband's absence from Australia and the attendant difficulties faced by the wife in obtaining an appropriate maintenance order.

1. Absent some personal circumstance of the husband, or the willingness of the wife to consent to the granting of the decree absolute, we are unable to be satisfied that there are circumstances by reason of which this decree should become absolute. It is our intention to allow the appeal and set aside the declaration made by the trial Judge. The effect of that will mean that the decree nisi remains intact but it cannot become absolute until a s 55A declaration is made. If at any time either party wishes to have such a declaration made, then a fresh application can be made to a judicial officer sitting at first instance supported by appropriate material outlining either the proper arrangements that have been made for the welfare of the children or the circumstances by reason of which a decree should become absolute notwithstanding such proper arrangements.

Costs

1. Counsel for each party sought a certificate under the Federal Proceedings (Costs) Act in the event that the appeal was to succeed.  In our view, it would be appropriate to grant such a certificate to the wife.  She sought to oppose the granting of the divorce at first instance and has succeeded in achieving that end by reason of this appeal. 

1. Given that the husband was not given the opportunity to address the trial Judge in respect of the proper exercise of the discretion, on balance in the circumstances we would also grant the husband a certificate.

Orders

1. That the appeal be allowed.

1. That the declaration made by Frederico J on 17 May 1999 pursuant to

   
   

   s 55A(1)(b)(ii) of the Family Law Act 1975 that there were circumstances by reason of which the decree nisi for the dissolution of the parties' marriage pronounced 17 May 1999 should become absolute even though the Court was not satisfied that proper arrangements in all the circumstances had been made for the care, welfare and development of the children of the marriage, be set aside.

1. That either party be at liberty to apply to a judicial officer sitting at first instance for a declaration under s 55A(1).

1. That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

1. That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.