Moreau & Moreau (No 4)
[2023] FedCFamC2F 1473
•21 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moreau & Moreau (No 4) [2023] FedCFamC2F 1473
File number(s): NCC 602 of 2022 Judgment of: JUDGE CARTY Date of judgment: 21 November 2023 Catchwords: FAMILY LAW – APPLICATION FOR RESCISSION OF DIVORCE ORDER – whether the Divorce Order may be rescinded on the ground that the parties have become reconciled by virtue of s.57 of the Family Law Act 1975 – whether the Divorce Order may be rescinded on the ground that there was a miscarriage of justice by reason of fraud, perjury or suppression of evidence or any other reason by virtue of section 58 of the Family Law Act 1975 – where the wife has refused to accept the husband’s unambiguous statements that the marriage is at an end and that he does not wish to reconcile – where wife has failed to establish the matters under ss 57 and 58 of the Family Law Act 1975 – application dismissed.
FAMILY LAW – COSTS – where the Court is of the opinion that there are circumstances which justify making an order that the wife pay the husband’s costs in a fixed amount.
Legislation: Evidence Act 1995 s 131
Family Law Act 1975 (Cth) ss 13, 55, 57, 58, 117, Part IIIB
Cases cited: Moreau & Moreau [2023] FedCFamC2F 807
Moreau & Moreau(No 2) [2023] FedCFamC2F 1301
In the Marriage of Clarke [1986] FamCA 29; (1986) FLC-91-778; (1986) 11 Fam LR 364, 75,667
Todd R W and Todd Y D (No.2) [1975] FamCA 12; (1976) FLC 90-008 (12 March 1976)
Division: Division 2 Family Law Number of paragraphs: 82 Date of last submission/s: 2 November 2023 Date of hearing: 18 August 2023, 22 August 2023 and 2 November 2023 Place: Newcastle The Applicant: Self-represented Solicitor for the Respondent: Watson McNamara & Watt ORDERS
NCC 602 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOREAU
Applicant
AND: MR MOREAU
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
21 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 28 July 2023 is dismissed.
2.The applicant wife is ordered to pay the costs of the respondent husband in the sum of $1,100.00 by 4.00pm on 19 December 2023.
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
JUDGE CARTY
INTRODUCTION
Ms Moreau is the applicant (“the wife”) and Mr Moreau is the respondent (“the husband”) in proceedings for rescission of a Divorce Order made in mid-2023.
The wife has sought an order that the Divorce Order be rescinded due to her belief that if the husband is ordered to “engage in appropriate counselling to deal with past traumatic events” and if the parties “engage in appropriate counselling together…including aspects related to reconciliation” then there is a possibility that they will reconcile.
Although it was not clear on the face of the wife’s application, or from reading her affidavit filed in support, at the hearing on 18 August 2023 the wife accepted that her application for rescission is brought under section 58 of Family Law Act 1975 (Cth) (“the Act”).
The husband opposes the wife’s application for rescission and he seeks an order that it be dismissed, and that the wife pay his costs on an indemnity basis.
BACKGROUND
In mid-2023, upon the husband’s application, the Court made a Divorce Order dissolving the marriage celebrated between the husband and the wife in 1975 in Suburb B, New South Wales. The wife opposed the husband’s application on the basis that the parties had not separated under the one roof, and that the parties had not lived separately and apart for a continuous period of twelve months immediately preceding the filing of the application.
On 28 July 2023 the wife filed an Application in a Proceeding in which she seeks orders that:
(1)The divorce order shall be rescinded.
(2)The husband shall engage in appropriate counselling to deal with past traumatic events.
(3)The parties shall engage in appropriate counselling together to meaningfully discuss the current situation and ascertain possible future directions, including aspects related to reconciliation.
On 18 August 2023 the Court heard the submissions of each of the parties in relation to the wife’s rescission application. In support of her proposal that the Court make an order that the parties attend counselling, the wife directed the Court’s attention to s.13C of the Act. The Court reserved the decision on the rescission application.
The Court reflected further on the Objects of Part IIIB of the Act. The objects include facilitating access to family counselling to help married couples considering separation or divorce to reconcile, and to help people adjust to separation or divorce, and to assist a party to adjust to orders made under the Act.[1]
[1] S. 13A (1) of the Act
Having regard to the Court’s obligation to accommodate possible reconciliations when exercising jurisdiction in relation to a divorce order,[2] and noting the Court’s power to make an order that the parties attend family counselling,[3] the Court sought the advice of a senior family consultant about services appropriate to the parties’ needs.
[2] S. 13B of the Act
[3] S. 13C (1) (a) of the Act
On 22 August 2023, the Court invited further submissions from each of the parties and, after hearing those submissions, made an Order vacating the reservation of judgment in the rescission application, and made an Order which required the parties to attend upon a counsellor, and orders to facilitate the parties participating in the counselling. The Court delivered brief oral reasons for making those Orders.[4] The rescission proceedings were adjourned to allow for further brief submissions on 2 November 2023, once the family counselling was completed.
[4] Moreau & Moreau (No 2) [2023] FedCFamC2F 1301
In late 2023 the parties attended one extended session of family counselling in person at City C.
On 2 November 2023 the wife informed the Court that she held firmly to her view that a reconciliation is possible, and that the divorce order ought to be rescinded. The wife submitted that her positive attitude towards maintaining the marriage is not deterred by any of the events, comments, or behaviour that occurred on the date of the family counselling session.
The husband’s solicitor informed the Court that the husband is more satisfied than ever that there is no possible chance of the parties reconciling their marriage, and he maintains his position that the wife’s application to rescind the divorce order should be dismissed.
Documents upon which each party relies
In support of her case for rescission of the Divorce Order the wife relies upon:
(a)Application in a Proceeding filed 2 August 2023;
(b)Her Affidavit affirmed on 27 July 2023; and
(c)Her Affidavit of Service affirmed on 2 August 2023.
The husband relies upon:
(d)Response to an Application in a Proceeding filed 17 August 2023; and
(e)His Affidavit affirmed 17 August 2023.
LEGAL PRINCIPLES
There are two circumstances in which a court may rescind a Divorce Order before it takes effect.
Pursuant to s.57 of the Act the Court may rescind a Divorce Order if the parties have become reconciled.
Pursuant to s.58 of the Act the Court may rescind a Divorce Order if satisfied that the order was made because of a “miscarriage of justice” by reason of fraud, perjury, suppression of evidence or any other circumstance.
Absent an appeal, or an order pursuant to s.55(2) of the Act, the Divorce Order made in mid‑2023 would have taken effect after the expiration of one month following the date the order was made.[5] The filing of the wife’s application for rescission has automatically extended the date upon which the divorce order will take effect.[6]
THE EVIDENCE AND SUBMISSIONS
[5] Section 55 (1) of the Act
[6] Section 55(3) of the Act
THE WIFE’S CASE FOR RESCISSION
In summary the wife asserts that:
(a)A significant portion of information which the husband provided in his affidavit filed in support of the application for divorce “was false or distorted” and there were “errors and distortions” in the oral evidence given by the husband.
(b)The Court and the husband’s barrister “colluded” in commenting about a particular event, that is the wife attempting to explain to the husband in early 2020 about her developing situation concerning her work.
(c)The wife has new evidence which she says supports her version of events and contradicts the evidence which the husband gave at the hearing, including drawings which she says he made in 2004, which inferentially the wife believes lends support to her contention that the husband’s childhood trauma has caused him to react “…in a very strong manner to difficulties”.
(d)The Court demonstrated a dismissive attitude towards the wife, and disallowed certain questions which she wanted to ask the husband in cross examination, thereby denying her natural justice.
(e)The Court described the husband in “glowing terms” in the Reasons for Decision to grant the Divorce.
(f)The Court decided to proceed with the hearing of the Divorce without an affidavit of an independent witness.
(g)The Court made errors and gave inadequate reasons.
The evidence and submissions of the wife were not specifically directed to any of the matters which are set out s.58 of the Act. By and large, the complaints of the wife set out in her affidavit, and reiterated in her submissions, are bare assertions, and challenge the Court’s findings of relevant fact, and challenge the manner in which the Court exercised discretion, including the weight which the Court attributed to certain events.
During submissions the wife reiterated that the parties’ relationship endured for fifty years including a marriage of forty-seven years’ duration. She asserted that the parties experienced many more difficulties in their marriage than in “normal” marriages.
The wife asserts that the husband had “adverse childhood experiences” and that evidence of such experiences was suppressed by the Court, and by the husband’s Learned Counsel, in the divorce hearing. She asserts that the husband’s “childhood trauma” causes him to react “…in a very strong manner to difficulties” and she believes that the husband reacted in such manner to the letter which the wife received from her employer in early 2020, which purported to suspend the wife from her from duties without pay. She asserts, without providing any cogent evidence, that the way the husband grew up causes him to respond in a reactive manner when he is afraid.
The wife asserts that, during her cross-examination of the husband about his experience of childhood trauma, the husband’s barrister suppressed evidence when he objected to the relevance of that line of questioning. The wife asserts that this caused the husband to suppress evidence. She further asserts that the husband perjured himself because he was not given the opportunity to tell the truth, and she asserts that he was instructed by his lawyers not to tell the truth in his evidence. She asserts that the husband did not tell the whole truth when he said, under cross examination, that his childhood was “amazing”.
The wife asserts that the Court suppressed evidence by not permitting her to question the husband at greater length about, what she assumes, was a misplaced digit in a telephone number, which she assumes the husband misdialled on an occasion back in 2009, when she assumes he was trying to dial her mobile telephone number to speak with her. The wife alleges that when he misdialled the wife’s telephone number the husband may have spoken to a person called “Mr D”. The wife says that she discovered in 2018 that a person called “Mr D” has a mobile number which has one digit which is different from her number. This discovery led the wife, in hindsight, to assume that by misplacing one digit when he dialled her number in 2009, and by being connected instead to the number belonging to a fellow called Mr D, the husband thereafter formed a false believe that Mr D had answered the wife’s phone, and that therefore the wife was having an affair with Mr D. The wife further assumes that this false belief which she assumes the husband held, led him to stew for fourteen years, and this is highly relevant to the “marital tragedy” which has since unfolded.
In addition to asserting that the Court “suppressed evidence” the wife also asserts that the Court has been “contemptuous of…[the parties’]… marriage” and has “refused to consider very real aspects that have been relevant to this situation… if I showed you the things that my husband wrote in 2004.”
The wife submits that the Court should have required the husband to engage in counselling with her before a divorce order was granted. She asserts that the husband’s solicitor suppressed evidence by encouraging the husband to not attend mediation to discuss the situation. The wife says that she is certain that if the husband had been encouraged to attend mediation to discuss the situation, then that could possibly have led to a reconciliation.
The wife asserts that the husband has not yet developed the understanding required to deal with all sorts of things that are happening. She said he lacks emotional stability to cope and goes from one thing to another, and she posited the rhetorical question “If he can’t even talk about this, how can he talk about property settlement?”
The wife perceives that the husband’s expressions of love for her demonstrate the possibility of a reconciliation, and she is of the view that the husband has not received the support and guidance he needs to deal with the situation.
The wife expressed the view that the husband has not had appropriate legal advice, and that she doesn’t know whether he has any agency in this divorce proceeding. She considers that as his wife for 47 years, she knows how he has dealt with things, and she believes that he is in emotional distress.
The wife submits that, during the counselling which occurred in late 2023, the husband was under the misapprehension that the Divorce Order made in mid-2023 had already taken effect, and that the parties had been divorced for three months by that time. The wife feels that the husband’s misapprehension affected his attitude to the counselling, especially in relation to any consideration of reconciliation.
Finally, the wife submits that any further progression to divorce would be unnecessary, and a further miscarriage of justice. She reiterated her position that the marriage was based and commenced on Christian principles. She asserts that “initial failures have so damaged any sense of fairness and justice in these proceedings” that she is “…compelled to submit that the entire matter must be abandoned at this time and … the divorce be rescinded”. She submits that a rescission “may allow for some sense of settling and may encourage both parties to meaningfully engage in future communication and activities for the benefit of our final years of our lives and our children and grandchildren.”
The husband’s case
The husband’s solicitor submits that the wife has not demonstrated that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance. She submits that there is no basis for the wife to assert that the husband has been coached or encouraged to commit perjury, including noting that the Court found that the husband gave his evidence in the divorce proceedings in an honest and forthcoming manner.[7]
[7] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 32
The husband’s solicitor submits that the husband remains firm in his instructions that he does not wish to reconcile with the wife and says that he is adamant that there is no prospect of a reconciliation, and that the counselling which the parties have recently attended has further solidified his view that the marriage is over.
Those submissions are consistent with the husband’s evidence in his affidavit, wherein he deposes that the parties have not reconciled, that the marriage has broken down irretrievably and that there is no possibility of reconciliation.[8]
[8] Husband’s affidavit filed 17 August 2023 paragraphs 2 and 3
DISPOSITION
I am unable to find that the parties have become reconciled, even in the sense of having restored “friendly relations.”[9] After an extended period of counselling in late 2023 the husband maintains his position as stated above, and I accept that the recent family counselling has further cemented his position, which has remained consistent throughout the entire course of the proceedings to date.
[9] In the Marriage of Clarke [1986] FamCA 29; (1986) FLC-91-778; (1986) 11 Fam LR 364, 75,667
I accept the wife’s submission that the husband was under the misapprehension that the Divorce Order came into effect in mid-2023. I have already noted that the wife’s application to rescind the order has, by operation of s.55(3) of the Act, automatically extended the date upon which the divorce order will take effect.
I do not accept the wife’s submission that the husband’s misapprehension materially affected his attitude to the counselling. The husband has consistently expressed his opposition to being ordered to engage in counselling or mediation with the wife, and the wife’s assertion that the husband’s attitude to reconciliation was affected is mere conjecture, given that the husband has consistently expressed and maintained his position that there is no prospect of reconciliation.
I am not satisfied that the divorce order ought to be rescinded under s.57 of the Act.
The Court turns now to the power to rescind the divorce order under s.58 of the Act and whether there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance.
Fraud
Fraud involves an intentional dishonest act or omission done with the purpose of deceiving.
The wife has provided no evidence that either party in this matter has done anything intentionally dishonest. Further the wife has provided no cogent evidence in support of her contention that the husband was advised by his lawyers to omit information about his alleged childhood trauma, with the purpose of deceiving the Court.
It is a serious matter for the wife to allege that a Solicitor, who is an Officer of the Court, has advised the husband to do anything at all to deceive the Court. The wife’s bald assertion has no proper foundation and is scandalous and offensive. The wife’s allegation is rejected as false.
There is no evidence that either party has done anything intentionally, or omitted anything intentionally, which is dishonest with the purpose of deceiving. There has been no miscarriage of justice due to fraud.
Perjury
Perjury is the offence of making a false statement on oath in a judicial proceeding while knowing that the statement is false, or not believing it to be true.
The wife has provided no cogent evidence that there has been any perjury in the divorce hearing.
Evidence about a party’s childhood experiences, or about the nature of the parties’ relationship over the course of half a century, is highly personal and very subjective. Each party naturally has their own perception of events, and each party has feelings which remain true and valid for that party, even when the other party struggles to appreciate or to accept the other’s feelings.
I consider that in the Divorce hearing the husband gave evidence in his affidavit, and under cross examination, which he genuinely believes is the truth, and I consider that the wife gave evidence in her affidavit which she genuinely believes to be the truth.
The wife was not required for cross examination, so her evidence was unchallenged, but nevertheless the Court was required to carefully consider and weigh up the whole of the relevant evidence to come to its conclusion. Much of each party’s evidence went to historical matters which, while clearly important to each of them, was not relevant to the findings of fact required to deal with the husband’s application for divorce. Much of the wife’s evidence consisted of her “assumptions” about what the husband might have done or felt, for example in relation to the misdialled digit and “Mr D”.
Even if those events did occur in the manner which the wife has assumed they did, the husband has expressly disavowed that his application for divorce has anything to do with Mr D.[10] It is evident that, in the context of struggling to come to terms with the marriage breakdown, the wife has clung to her beliefs, and in her search for answers has fixed on aspects of the parties lives which, rightly or wrongly, she believes help her understand or explain what may have happened.
[10] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 44
The wife feels offended that the Court described the husband in “glowing terms”. The relevance of the Court commenting on the husband’s demeanour as a witness in the divorce hearing is that, in circumstances where he was cross examined at length by the wife, the husband politely but firmly held to his position that he considered himself to be separated from her, and that he did not intend to reconcile with her. The Court was always alive to the possibility that the wife’s cross examination of the husband may have elicited from him a concession that there was a prospect of reconciliation, in which case the Court would properly have dismissed his application for divorce. But the husband’s evidence was not shaken in cross examination, and because the Court formed the view that, just as the wife is telling the truth when she says that she loves the husband and wants to stay married, the husband is telling the truth when he says that the parties have been living separately and apart, and that the marriage has broken down irretrievably, and where the husband bore the onus of proof, then it was important to reflect upon his demeanour when assessing his evidence.
The wife deposed in her evidence that she does not consider that the circumstances of the marriage after early 2020 were any different to the circumstances that prevailed prior to early 2020. That evidence is at odds with the incontrovertible fact that, after early 2020, on no less than three separate occasions, the husband’s solicitors have written to the wife and told her that the husband considers that the parties had separated and are living separately and apart from each other under the one roof.[11] The husband has written a plain letter to the wife, which is dated 20 July 2020, wherein he gives her written notice that he wishes to separate and bring the marriage to an end.[12] The circumstances of the marriage are distinctly different to those which prevailed prior to early 2020.
[11] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 51
[12] Reasons paragraph 17
As previously noted, the wife was not the party seeking to persuade the Court to grant a Divorce. That was the husband’s case, and he bore the onus of proving the facts required to be proven before the Court may grant a divorce. It was relevant to consider whether the husband’s evidence was credible, and the Court found that it was.
The Court has had no reason at all to question the wife’s integrity or her honesty. There is no doubt that she is a very genuine person, in a very difficult circumstance. She is desperate to avoid a divorce, and during the divorce hearing she begged the Court to dismiss the husband’s application.
The Court is not able to find that either party has committed perjury in the divorce proceedings. There has been no miscarriage of justice due to perjury.
Suppression of evidence
Suppression of evidence occurs when evidence, relevant to the proceedings, is purposely not provided to the Court.
The wife refers to the Court not requiring the husband, during cross examination by the wife, to answer a question about his childhood as “a suppression of evidence”. I reject the wife’s assertion, for the reasons which are explained below.
In the divorce proceedings, the totality of the wife’s evidence in relation to the husband’s alleged adverse childhood experiences is limited to two paragraphs in her affidavit filed on 11 April 2023.[13] The wife deposes that:
·The husband was relinquished for adoption as an infant by his unwed mother.
·He grew up in a large family of children who were fostered or adopted.
·The husband told her that he never knew if he would be taken away by welfare, and that if he saw the welfare man’s car, he would hide in the bushes so as not to be removed.[14]
·In the 1980s, when the husband was in his thirties, the parties met his biological parents and siblings.
[13] Paragraph 2 and 9
[14] The husband agreed with the wife in cross examination that the evidence she gives in her affidavit about him hiding in the bushes as a child is correct
Apart from the evidence set out immediately above, the wife did not detail any other alleged adverse childhood experience, and her affidavit is silent as to the impact of the above experiences on the husband, except that he hid in bushes to avoid being removed as a child. The relevance of the husband’s alleged adverse childhood experiences to the issues in dispute in the divorce proceeding was not made plain anywhere in the wife’s material filed in opposition to the divorce application.
Some of the wife’s questions to the husband were disallowed because the Court considered that such questions were irrelevant to the issues in dispute in the divorce application. The husband gave credible evidence, during the wife’s cross examination of him, that during his discussion with her about her employment issues in early 2020 he had felt “very seriously rejected” when she told him “It is nothing to do with you.”[15] The husband was clear to say in his evidence that the marriage had deteriorated over a period of many years, before he initiated the separation in early 2020.[16]
[15] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 34
[16] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 35
The Court ruled against the wife, during her cross examination of the husband, in relation to a question concerning her evidence[17] that the marriage had suffered because, she assumes, the husband “might have stewed” on his assumed false belief that she was having an affair with a person called “Mr D”. I have already dealt with the wife’s evidence on this aspect earlier in these Reasons. The husband credibly rejected any such proposition during the wife’s searching cross examination of him in the divorce hearing.[18] Even if Mr D was the reason why the husband decided to separate from the wife, as noted in the Reasons for granting the divorce, the husband is not required to justify his decision to separate, nor is he required to provide any reason for it,[19] so the wife seeking to explore that issue was not relevant to the Court’s determination of the contested divorce application.
[17] Wife’s affidavit filed 11 April 2023 paragraphs 29, 49, 50 and 51
[18] Reasons paragraph 44
[19] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 53
In the current rescission application it appears that the wife considers that the Court should simply infer that the alleged adverse childhood experiences of the husband impacts on his capacity to deal with issues that have arisen in the parties’ marriage, and that the Court should infer that the husband lacks capacity to make proper decisions, or at least decisions which are in his own best interests, because he reacts in a “knee-jerk” way, rather than in a considered way, or because his reactions are based on false assumption or false belief.
The wife presents herself as the only person in the marriage who has capacity to make a sound decision and she says that she is “doing all she can to advocate for the husband and his needs.”[20] She commented to the Court that she does not know whether the husband has had any agency in these proceedings, and she accuses the husband’s lawyers of failing to provide him with proper advice and guidance. It appears that the wife may have adopted a patronising approach to the husband. The wife is not able to know what legal advice the husband has received, so her criticisms of his lawyers are without proper foundation. There is no cogent evidence before the Court of any impairment in the husband’s capacity to form an intention to bring the marriage to an end. The wife invites the Court to find that it is only she who knows what is good for the husband, and that the wife’s response is the only appropriate one. The Court is not persuaded by any evidence before it that such a finding would be soundly based.
[20] Wife’s affidavit affirmed 27 July 2023
During her submissions in the present application the wife said that she can point to drawings which she says the husband did in 2004, and unspecified things she says that the husband has said. The wife has not produced the drawings, nor has she specified what additional things the husband may have said which would have any bearing on the matter. If the wife has evidence of the husband drawings in 2004, which she considers to be relevant to the Court’s decision whether to grant a divorce or not in 2023, then it was incumbent upon her to adduce this evidence, which was available to the wife at the time of the trial, but she has chosen not to do so.
I reject the wife’s submission that there has been a suppression of evidence by either the Court or by the husband’s solicitor, or by his Counsel. There has been no miscarriage of justice due to suppression of evidence.
ANY OTHER CIRCUMSTANCE
The wife was unable to point to any other circumstance which has caused a miscarriage of justice, other than to say that if the husband had mediation or counselling with her then he may have been willing to reconcile.
The wife’s evidence in the divorce proceeding is that she offered the husband, via his solicitor, to attend mediation and that he declined. The husband has made it plain that he does not want to mediate, and he provided a reason for his refusal during the wife’s cross examination of him, which is noted in the Reasons.[21]
[21] Moreau & Moreau [2023] FedCFamC2F 807 paragraph 38
In the Divorce proceedings the wife made no application for an order for family counselling. In her Amended Response to the Application for Divorce, filed on 11 April 2023, the wife sought an order that the husband’s application be dismissed. In the Minute of Order which was contained within her Case Outline Document filed on 24 October 2022, the wife did not seek an order for counselling.
The first and only time that the wife has sought an order for family counselling was in her Application in a Proceeding, relating to the rescission application. That application was ultimately granted, over the opposition by the husband. It has been noted already that the parties attended an extended family counselling session in late 2023, which did not result in any reconciliation and, according to the husband, has further solidified his position to end the marriage.
The wife has not established that there has been a miscarriage of justice due to any circumstance.
CONCLUSION
The Court is mindful of the sad and difficult position in which both parties find themselves.
The wife is clearly very upset and alarmed that her marriage, which she holds most dear, has broken down, and that the husband has decided, for whatever reason, that he wants to bring the marriage to an end. As noted already the Court is satisfied that the husband discharged the onus of proving that the marriage has irretrievably broken down.
I am not satisfied that any of the circumstances set out in s.58 of the Act have been proven, and therefore the wife has not discharged the onus of proving that the divorce order made in mid‑2023 should be rescinded on the basis that there has been a miscarriage of justice, and I find that that there is no circumstance which would justify a rescission of the divorce order.
Accordingly, the Court will order that the wife’s Application in a Proceeding is dismissed.
COSTS
At the hearing on 18 August 2023 the husband sought an order that the wife pay his costs in the sum of $1,000 plus GST, on the basis that if the Court dismisses the wife’s application to rescind then she has been wholly unsuccessful, and the husband has been put to unnecessary expense of defending the application. Since the hearing on 18 August 2023 there have been two further brief appearances and the husband has been ordered to attend counselling with the wife, pursuant to s.13C of the Act.
The wife submits that, back in early 2020, the husband told her that he wanted to protect the little bit he had, and that this is why he began the separation, but she says that her work situation at that time did not impact his assets. The wife submits that the divorce proceedings have impacted her resources, and she says that she has little money left. The wife submits that she will have to look at what she can sell if a costs order is made against her. She says that she cannot access the pension, and that she is living on her superannuation and has had no work for the past three years. The wife submits that it is “almost unbelievable” that the husband has applied for costs, and she is “just at a loss to understand how a lawyer can say those things”.
The wife appeared in person at the hearing of the husband’s divorce application, and at the three court events in respect of her application for rescission, and she has generally been self‑represented in these proceedings, although she has sought advice and assistance from lawyers at various stages of these proceedings.
The husband lawyers have acted for him throughout the course of the proceedings to date. He has been put to the additional expense in the current proceedings in circumstances where, particularly after the extended counselling session in late 2023, the wife ought to have appreciated that the husband remains firmly committed to his decision to bring the marriage to an end, and he has consistently maintained that there is no prospect of reconciliation with the wife.
Impecuniosity is no bar to a costs order being made against a party. The wife has been wholly unsuccessful in her endeavours to make out a case for a rescission of the divorce order.
The Court is of the view that, properly advised, the wife ought to have realised that the prospects of success of her application to rescind the divorce order were poor, and that the husband would be put to the additional expense of defending the application, particularly after the husband made it plain during the extended counselling session that he has no intention of reconciling the marriage relationship.
Pursuant to s.117(2) of the Act the Court is of the opinion that there are circumstances which justify the making of an order that the wife pay the husband’s costs.
The amount sought by the husband is modest in all the circumstances. The wife will be ordered to pay the husband’s costs in the sum of $1,100.00 within 30 days of the date of these orders.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 21 November 2023
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