Price & Underwood (Divorce Appeal)
[2009] FamCAFC 127
•14 July 2009
FAMILY COURT OF AUSTRALIA
| PRICE & UNDERWOOD (DIVORCE APPEAL) | [2009] FamCAFC 127 |
| FAMILY COURT – APPEAL – DIVORCE – Whether the trial Judge erred in allowing a case guardian to bring an application for a divorce order – Where the suitability of the case guardian was in question – Whether the trial Judge erred by not considering the implications of making a divorce absolute order – Whether the trial Judge erred by ordering that the time between the order nisi and absolute be abridged – Whether the trial Judge erred by not granting the wife an adjournment to respond to the divorce application – Whether the trial Judge erred in not allowing the wife’s application at trial to adduce further evidence with respect to the divorce application – Whether the trial Judge erred in his findings of fact with respect to the date of separation and the findings in relation to arrangements for the child – Whether the trial Judge erred in law by dispensing with the Family Law Rules 2004 including 1.12, 5.12 and 6.09 FAMILY LAW – APPEAL – DIVORCE – Case guardian – Whether a case guardian can bring an application for divorce on behalf of a person with a disability – Whether the case guardian was properly appointed in accordance with the Family Law Rules 2004 (“the rules”) – per Boland & Ryan JJ – Part 6.3 of the rules is of general application – A person who is a manager of the affairs of a party suffering a disability including a person so appointed for the purposes of State or Commonwealth law will qualify, subject to compliance with the rules, to be a case guardian – The rules provide a case guardian can start a case for a person under a disability - A case guardian may bring an application for divorce but such an application will be nugatory unless the case guardian can satisfy the Court that the applicant, whom the case guardian represents, had the requisite intention to bring the marriage to an end and that the marriage has irretrievably broken down – Where husband’s daughter held Power of Attorney – No error by trial Judge in permitting case guardian to bring application for divorce – Where trial Judge found requisite intention to bring marriage to an end and irretrievable breakdown of marriage proved. DIVORCE - Whether an appeal can be brought against a divorce order which has become final – per Boland & Ryan JJ – s 93 Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final – Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void. Whether the trial Judge properly exercised his discretion in making the alternate declaration under s 55A(1)(b)(ii) of the Act that the divorce should become final notwithstanding proper arrangements had not been made for a child under the age of 18 – per Boland & Ryan JJ – No error by trial Judge established. Whether the trial Judge improperly shortened time between divorce order and order becoming final - per Boland & Ryan JJ – While it is a drastic step to shorten the period in which a divorce order will take effect in the circumstances of this case the trial Judge had not erred – No error established. APPEAL – Dismissed COSTS – Appellant to pay the costs of the respondent of this appeal and the costs of the appeal from the refusal by Watts J to stay the orders made on 16 April 2008 – Costs to be assessed |
| Child Support (Assessment) Act 1989 (Cth) – s 12(3)(a) Trustee Act 1958 (Vic) – s 48 |
| Babich & Sokur & Anor [2007] FamCA 236 Australian Institute of Health and Welfare 2008, Australia’s health 2008, Cat. No. AUS 99, Canberra: AIHW at [216]. |
| APPELLANT: | MS PRICE |
| RESPONDENT: | MS UNDERWOOD AS CASE GUARDIAN FOR MR UNDERWOOD |
| FILE NUMBER: | MLC | 13425 | of | 2007 |
| APPEAL NUMBER: | SA | 28 | of | 2008 |
| DATE DELIVERED: | 14 July 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Boland & Ryan JJ |
| HEARING DATE: | 8 May 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 April 2008 |
| LOWER COURT MNC: | [2008] FamCA 260 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Molyneux QC assisted by Ms Stoikovska |
| SOLICITOR FOR THE APPELLANT: | Maria Barbayannis & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Brown SC assisted by Mr Dickson |
| SOLICITOR FOR THE RESPONDENT: | Glezer Lanteri & Associates |
Orders
The appeal is dismissed.
The appellant pay the costs of the respondent of this appeal together with the costs of the appeal from the refusal by Watts J to stay the orders made on 16 April 2008, to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Price & Underwood (Divorce Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 28 of 2008
File Number: MLC 13425 of 2007
| MS PRICE |
Appellant
And
| MS UNDERWOOD AS CASE GUARDIAN FOR MR UNDERWOOD |
Respondent
REASONS FOR JUDGMENT
May J
Introduction
On 16 April 2008 Watts J made a divorce order. In the divorce proceedings the Judge ordered that the husband’s daughter, Ms Underwood, be appointed case guardian for the husband.
The Judge also reduced the time for the order to take affect so that the marriage of the husband and the wife was dissolved immediately. The husband died the next day.
The wife appeals from all the orders made on that occasion particularly the order that the time for the divorce order to become absolute be reduced, and the appointment of the case guardian.
His Honour refused an application by the wife for a stay of those orders.
This Full Court has already dealt with the appeal from his Honour’s refusal to stay the orders. The appeal was dismissed. The costs of that appeal is an issue to be determined by us after consideration of this appeal.
Issues
I would identify the multiple and complex issues raised in this appeal as follows:
a)The appointment of Ms Underwood and in particular:
(i)The ability of a case guardian to bring an application for a divorce order;
(ii)the suitability of Ms Underwood as case guardian to appear on behalf of the husband.
b)The impact of the provisions of s.93 which provides that there be no appeal after a divorce order takes effect particularly:
(i)The inherent jurisdiction of the court to allow an order to be set aside;
(ii)Previous decisions of this court.
c)The order made pursuant to s.55(2)(b) that the time the divorce became absolute be abridged;
d)The grounds of appeal relating to procedural fairness and natural justice, in particular:
(i)The wife’s application before the trial Judge for an adjournment to respond to the divorce;
(ii)The wife’s application at trial to adduce further evidence in relation to the divorce;
e)The divorce order including considerations of:-
·The findings of the trial Judge in relation to the date of separation;
·Findings in relation to arrangements for the child (s.55A);
·Dispensing with the Family Law Rules 2004 including 1.12, 5.12 and 6.09.
Facts
The husband was born in 1952 and the wife in 1956.
The parties married in February 1986. They had two children, T Underwood born June 1989 and K Underwood born September 1991.
The husband, a divorced person when he married Ms Price, had two children from a previous marriage, J Underwood and N Underwood. The husband and the wife were professionals during their marriage and we understand that the wife continues to work in a professional occupation.
The husband first filed his Application for Divorce on 12 December 2007 in the Federal Magistrates Court. In the application the husband asserted that separation occurred in October 2005. In the wife’s response she swore that separation did not occur at that time, rather that they did not separate until 3 April 2007 when the husband communicated to her that he regarded the marriage as at an end.
The husband’s application for divorce was granted by orders made by a Federal Magistrate on 9 April 2008. The wife appealed to the Full Court in relation to that order and successfully had the divorce order set aside on 15 April 2008.
A divorce application was filed on 16 April 2008 in the Family Court of Australia. It was heard that day by Watts J.
Underpinning the argument in relation to the case guardian and to some extent all of the issues raised in this appeal are the circumstances in which the husband, as a director of a company, N Company Pty Ltd, signed a number of documents causing the transfer of a property previously held by the Investment Trust to the adult children N and J. These transactions are described in a statutory declaration signed by Mr Underwood on 13 March 2008. They form one of the exhibits to the affidavit of the wife filed by leave before us.
Stated simply, the husband was a director of N Company. The Investment Trust was created by a Deed of Settlement dated 18 September 1995 made between Mr P and N Company as Trustee. N and J are beneficiaries of the trust as children, as are the infant children of the marriage to Ms Price. Ms Price was in the category of a beneficiary while she was “a spouse”.
It is common ground that there is now little property left within the trust because on 13 March 2008 B in its capacity as trustee of the trust transferred to N and J, the matrimonial property. N Company was the registered proprietor of the property. It is also common ground that the husband transferred another home to the wife. In the wife’s financial statement filed 3 April 2008 annexed to her affidavit before us, she estimates the value of this house as $1,000,000.
The affidavit of the wife also annexed other documents including the husband’s Will dated 7 June 2007 in which he explains why he has made no further provision for Ms Price or the children.
The orders made 16 April 2008
The issues raised in the appeal relate to the order itself and its consequences. It is therefore useful to set out the order in full.
Orders
1.[Ms Underwood] be appointed as case guardian
2.Leave be granted to the solicitor for the case guardian to file an Application for Divorce in court.
3.The Family Law Rules in relation to special service of the Application for Divorce, are dispensed with, so that the divorce application may proceed before me today.
FINDINGS
4.The Husband is domiciled in Australia at the date of filing of the application for divorce.
5.I find that the parties were married at Melbourne [in] February 1986.
6.I find that the ground that the marriage has broken down irretrievably proved based on a separation date not later than 3 April 2007.
ORDER
7.I make a divorce order.
DECLARATION AND ORDER
8.I declare that there is one child of the marriage [K Underwood] born […] September 1991 and I find that there are circumstances by reasons of which the divorce order should take effect even though the court is not satisfied that proper arrangements have been made for the care, welfare and development of that child.
ORDER
9.Pursuant to s.55(2)(b) Family Law Act I reduce the period at the expiration of which the divorce order will take effect so that the divorce order takes effect at the rising of the court and for that purpose the court now rises.
As I mentioned, an application was made by the wife to stay these orders. This application was refused by Watts J on 16 April 2008. The Full Court heard an appeal by the wife in relation to the refusal to stay and made orders dismissing that appeal on 17 April 2008.
In accordance with orders made by the Full Court on 17 April 2008 the hearing of this appeal was expedited. The husband died in April 2008. The appeal was heard by the Full Court on 8 May 2008.
Grounds of Appeal
The amended Notice of Appeal filed 17 April 2008 contains the following grounds:
1. The Learned Trial Judge acted on a wrong principle.
2. The Learned Trial Judge erred in law.
3. The Learned Trial Judge acted contrary to the evidence.
4.The Learned Trial Judge acted contrary to the weight of the evidence.
5.The Learned Trial Judge failed to take into account relevant matters.
6.The Learned Trial Judge took into account irrelevant matters.
7.The Learned Trial Judge could not reasonably have concluded on the relevant material that [sic] that [Ms Underwood] was a proper person to be appointed Case Guardian.
8.The Learned Trial Judge has failed to take into account the possibility of an appeal from the order nisi.
9.The Learned Trial Judge has failed to take into account, or give due weight to the fact that the granting of a Decree Absolute may preclude the child of the marriage [K Underwood] from obtaining an order for proper arrangements for her care, welfare and development.
10.The Learned Trial Judge erred in concluding that there were special circumstances that justified reducing the period at the expiration of which the divorce order will take effect and has reached a conclusion that is manifestly unjust.
11.The Learned Trial Judge erred in proceeding to hear and determine the matter and make the orders.
12.The wife was denied natural justice in that the wife was not given the opportunity to bring an application seeking the removal of [Ms Underwood] as Case Guardian or be granted a stay to appeal the order appointing the Case Guardian.
13.The trial Judge gave no or insufficient reasons.
Reasons for Judgment of trial Judge
Although the judgment was short, no doubt because of the circumstances of the husband, it is convenient to set it out under headings relevant to the appeal.
Case Guardian
The trial Judge in his ex tempore reasons dealt first with the application for the appointment of a case guardian. The application was made pursuant to rule 6.10(2). The reasons in this respect were short:
1.[Ms Underwood] has made an oral application to be appointed as case guardian for the purposes of conducting an application for divorce on behalf of the husband, [Mr Underwood]. On 18 May 2007 the husband provided to [Ms Underwood] an enduring power of attorney. The power of attorney authorises [Ms Underwood] to do on behalf of the husband anything he may lawfully authorise an attorney to do. It has no condition or limitation and endures even after the husband becomes legally incapable. Senior Counsel for the wife tells me that the husband has been unconscious since Monday. I am satisfied [Ms Underwood] is a person who has been appointed to manage the affairs of the husband. Senior Counsel for the wife submits the person holding a financial enduring power of attorney does not have the required standing to make an application for divorce. I find that is not so.
2.The application for [Ms Underwood] to be appointed as case guardian is, in the first instance, based on Rule 6.10(2) Family Law Rules. [Ms Underwood] has filed an affidavit sworn 14 April 2008 and a notice of address for service. Her affidavit says that the husband is terminally ill and has, on medical advice provided to her, up to three days, to live. [Ms Underwood] consents to being appointed as case guardian. Counsel for the wife submits that the wife wishes time to make a response including to seek to have this enduring power of attorney revoked in another place. In my view it is not appropriate to delay the matter. [Ms Underwood] cannot proceed with the proposed application for divorce in the event her father dies. [Ms Underwood] has filed the necessary documents under Rule 6.10(2) Family Law Rules and accordingly is taken to be appointed as the husband’s case guardian and can pursue the husband’s application for divorce.
Divorce application
The Application for Divorce was filed by the case guardian by leave on 16 April 2008 and as his Honour explained:
3.Given the husband’s imminent death, I have granted leave for the case guardian to file an Application for Divorce in Court and I have dispensed with the Family Law Rules in relation to special service of the Application for Divorce, so that the divorce application may proceed before me today. That divorce application asserts a date of separation which is controversial. The date asserted in that application is October 2005. Senior Counsel for the wife said that the husband told the wife on 3 April 2007 that he “wished a decree nisi”. What I have been told from the bar table and is that up until 9 April the wife conceded and agreed to a date of separation which was 3 April 2007. I am told, without demur from Senior Counsel for the wife, that there was a finding previously made by the magistrate. The wife agreed to the date of 3 April 2007 and that before the Full Court yesterday that date was not put in issue by the wife.
In the application it was asserted that the separation was in October 2005 and that since separation the parties had not lived together. The trial Judge noted that the date of separation alleged by the wife may have changed from that previously stated:
4.Ms Molyneux, in preliminary discussions with me, indicated that the wife now might wish to assert some later date, being October 2007 but that was not the subject of submission by her when she was invited by me to make submissions about the ground in the Application for Divorce, in response to Mr Brown’s submissions. At that time, the only submission that Senior Counsel for the wife made that would prevent me from proceeding to make a divorce order today was on the basis that proper arrangements had not been made for the child of the marriage, [K], who was born on […] September 1991.
5.A separation can be brought about by the unilateral action or conduct of one only of the parties (s.49(1) FLA). The wife conceded before me that the husband took such an action on 3 April 2007. I consequently find that the ground that the marriage has broken down irretrievably proved based on a separation date not later than 3 April 2007.
Arrangements for the child
Apart from the question of the date of separation, counsel for the wife raised before his Honour and in the appeal the issue about the need to find that proper arrangements had been made for the child. The information provided in the application was this:
The child lives with the wife and spends time with the husband at times agreed between the child and the husband.
The husband pays private health insurance and the mobile phone accounts for [K]. [K] is otherwise supported by the wife.
[K] is in good health.
[K] is in year 10 at […] and it is the husband’s intention for her to continue with her education to the limit of her capabilities.
His Honour said:
6.The wife did not raise any issue under s.55A FLA before the Federal Magistrate or the Full Court in the proceedings relating to the previous divorce application, but seeks to do so in this application.
7.Section 55A(1) provides:
That a divorce order in relation to a marriage does not take effect unless the Court has, by order, declared that it is satisfied that either proper arrangements in all the circumstances have been made for the care, welfare and development of a child under the age of 18 or that there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that such arrangements have been made.
8.The arrangements referred to in s.55A(1) for a child of [K’s] age, would normally relate to obligations a parent had to pay child support. Those obligations terminate upon the death of a parent. The husband’s death is imminent.
9.I am told that there is a section 79 application on file that has been filed by the wife. The Court therefore already has jurisdiction to make whatever order the Court believes is just and equitable by way of alteration of property interests for the benefit of a child of the marriage. Notwithstanding that, I am told by Senior Counsel for the wife that the wife does not concede proper arrangements have been made by the husband for [K]. In those circumstances I will consider the alternate declaration.
10.The exceptional circumstances in this case are the imminent death of the husband. In my view those circumstances are a powerful reason why I should make the alternate declaration under s.55A(1)(b)(ii).
11.Accordingly, I make the following findings in this case. I find that the husband, was domiciled in Australia at the time the application was filed. I find the marriage between the husband and wife at Melbourne on […] February 1986 proved. I find that the ground for irretrievable breakdown of marriage is proved on the basis 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 this application for divorce based on a separation date of 3 April 2007. I declare that there is one child under the age of 18, [K], born on […] September 1991 and I declare that there are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that proper arrangements have been made for her welfare and development. I make a divorce order as sought.
Application to reduce time divorce order takes effect
His Honour said in relation to this application:
12.An application has been made by the case guardian under s.55, sub-s(2)(b) for an order that the ordinary time, which would be one month, for the divorce order to take effect be reduced until the rising of the Court. The one month period is, historically in the Act, to guard against collusion of the parties in relation to the date of separation, or some other fraud relating to the divorce application or to provide a last minute opportunity for reconciliation. On what I have heard today, none of those matters are of relevance. Senior Counsel for the wife asked that the one month period remain, notwithstanding the husband will die in that time and her submission is that for collateral financial reasons I should not accede to the application for shortening of time because that would affect other rights that she says the wife has in respect of other relief which the wife seeks.
13.I however am dealing with the divorce application today. It seems conceded that the husband has expressed a wish to die an unmarried man, although Senior Counsel for the wife contends that the husband’s motivation for this wish is unclear. It seems that his death is imminent. As Mr Brown points out, [Ms Underwood’s] affidavit saying her father had up to three days to live was sworn on Monday. It is now lunch time on Wednesday. If I do not accede to the application and the husband dies before the divorce order takes effect, then pursuant to s.55, sub-s(4), the divorce order that I have made has no effect. I do not accept the submission made by Senior Counsel for the wife that no appeal is possible if an order is made under s.55(2)(b). Consequently, I make an order reducing the time for the divorce order to take effect so that the effect of the divorce order will be operational upon the rising of the Court and for that purpose the Court now rises.
14.I ask the recording service to record the time that I have just made that order.
15.The time is 1.18 pm.
Preliminary matters
Before dealing with the issues I have identified there are two matters to mention first.
Application to adduce further evidence before the Full Court
Two applications were filed. The application filed on 1 May 2008 asked that we accept as further evidence in the appeal, the affidavit of the wife’s solicitor, Ms Maria Barbayannis.
In the affidavit, Ms Barbayannis explains that she was at the Family Court on 16 April 2008 when she was served by the solicitors for the husband with a number of documents including:
· an Application for Divorce sworn by Ms Underwood on 14 April 2008;
· an affidavit of Ms Underwood and a Notice of Address for Service of Ms Underwood naming a law firm as her solicitors.
All these documents were filed that day. The solicitor was advised by a Registrar that the application would be heard at 11.30am. Senior and junior counsel were provided with documents less than one hour prior to the hearing. The wife was unable to be present.
We have the transcript from the proceedings before Watts J which reveals that the hearing commenced at 11.41am. At the outset, counsel for the wife informed his Honour that the applications were opposed and that the matters should not be heard on an urgent basis. The main point made by Ms Molyneux related to the delay by the husband and the proposed case guardian, in particular that the application could have been made earlier and on more notice.
The information contained in the affidavit of the wife’s solicitor really takes the matter no further. There is no controversy as to how the application was made or the short time available to the wife’s lawyers to respond. However, as there was no objection and as this is one of the matters raised in the appeal I would admit that affidavit.
The other application is that the evidence of the wife, Ms Price, contained in her affidavit filed 4 May 2008 be admitted.
As Ms Molyneux explained, the affidavit is in two parts. The first, up to paragraph 46 was said by her to be that which would have been provided to the court in the hearing before Watts J, had such an opportunity been allowed. After paragraph 46, the evidence is directed to the assertion that the case guardian and her brother, who also held his father’s power of attorney, may have known that it was their father’s wish to remarry prior to his death. It was submitted that there was an obligation on the case guardian to disclose the husband’s wish to remarry, had that been the case. If that had been the case, and it was known at the time the divorce was granted, it is submitted that the result before the trial Judge may have been different. I would add that the evidence revealed that the husband was then unconscious and therefore unable to marry. In addition it is clear that his Honour was motivated to make the order on the basis that it was the husband’s wish to die a divorced man.
Ms Molyneux explained the submission, that the duty to disclose this information was of a general nature not that as is required in Rule 13.18, limited to documents.
In response, Mr Brown responded that there was no objection to the affidavit of the solicitor and that there was no objection to the affidavit of the wife up to paragraph 46, nor was there any objection to the annexures to that affidavit. The objection to the latter part of the affidavit is relevance. It is appropriate to set out the controversial paragraphs being from 47 to 52:
47.On Saturday […] April 2008 a family death notice by [Ms J] was published in tribute to the husband in which she described herself as the husband’s fiancée. Now produced and shown to me and marked with the letters “KP-18” is a true copy of the death notice published […] April 2008.
48.As a result of the death notice which includes [N and J Underwood] and the husband’s dog […], I believe that when [Ms Underwood] swore on 7 April 2008 that During our many discussions post October 2005 my father has often expressed to me and others in my presence, a very strong wish to be divorced from his wife, Ms [Price] she may have omitted her knowledge that in fact it was the husband’s wish to marry [Ms J].
49.It is my belief that had Justice Watts been told that the husband wished to die married to [Ms J] His Honour would not have made the Divorce Order final. My belief is based on His Honour’s response to my counsel’s submission (when hearing my stay application on 16 April 2008) that as a matter of law, without a stay the husband is able to marry before he dies. His Honour responded by dismissing the submission out of hand.
50.At no time has [Ms Underwood] or the husband’s practitioners disclosed to the court that the husband was engaged to [Ms J].
51.That on […] April 2008 at a public funeral for the husband [Ms Underwood] and [Ms J] delivered eulogies to the husband. In her eulogy, [Ms J] spoke of the honeymoon which had been planned by the husband and her to [Europe].
52.That by 16 April 2008 the only persons to benefit from a final divorce order were [N and J Underwood] as the application was made when the husband was unconscious and expected to die imminently.
Section 93A(2) confers on the court an express power to receive further evidence upon questions of fact. In CDJ & VAJ(No 1) (1998) FLC 92-828 the High Court said of the admission of the further evidence under the heading of s 93A(2) at para 104:
In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
And in para 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
And in para 111:
… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
I would not admit paragraphs 47 to 52 of the affidavit. First, the assertions made in this affidavit are entirely speculative. Secondly, even if Ms Underwood knew that her father was “engaged” to Ms J, that did not necessarily mean that there was a possibility of marriage prior to his death. Thirdly, any statements made by Ms J at the funeral cannot be attributed to Ms Underwood. Finally, it can be seen by reference to the essential statements of the High Court’s decision in relation to the admission of further evidence, that this part of the affidavit does not qualify under any of the criteria which are necessary with the possible exception of supporting findings already made, that the husband wished to die divorced from Ms Price.
Notice of Address for Service
Also at the outset, counsel for the wife raised the question of the Notice of Address for Service of the case guardian. This apparently was controversial because the notice of address provided for the trial was a law firm who employ Ms Underwood, not the solicitor on the record for the husband. The Notice of Address for Service was filed by Ms Underwood on 16 April 2008 nominating a law firm.
Ms Molyneux told us by reference to a letter sent by her solicitors on 8 May 2008 that the firm had not agreed to accept documents from her solicitors and questioned why they were being sent. Mr Brown told us that he was instructed by Mr Glezer of Glezer Lanteri and Associates. No doubt some confusion had arisen because the Application for Divorce filed 16 April 2008 nominated Glezer Lanteri as the lawyers for the husband.
A subsequent Notice of Address for Service was filed in the appeal by Glezer Lanteri on 17 April 2008. It seems that the law firm filed a Notice of Address for Service in the case guardian proceedings but Glezer Lanteri are the solicitors for the appeal proceedings. I do not see that there is any useful point in relation to the question surrounding the Notice of Address for Service.
Submissions of the wife
Appointment of a Case Guardian
It was submitted that if the order appointing the case guardian is set aside it would then follow that the other orders should not have been made. It was suggested that the divorce order would be void ab initio. The central submission in relation to why the appeal should succeed in relation to the appointment of a case guardian, is that there was a conflict of interest between the husband and Ms Underwood as she has something to gain from the divorce.
It was submitted that should this ground fail, then the divorce order should in any event be set aside including the order that allowed the divorce to take effect immediately. The power of this court to make an order setting aside the divorce order was said to be inherent. A significant part of the oral submissions by Ms Molyneux appears at transcript page 10 commencing at line 35. It is useful to set it out in full:
[MS MOLYNEUX]: As your Honours know, I know that in form we have [Ms Underwood] as the respondent, but in substance the appeal process is one of where say the learned trial judge got it wrong, whereas section 113, we read that the learned trial judge on the information he had got it right. Our complaint would then be that [Ms Underwood], when going to court, failed to say certain things that she should be disclosed at that time. So the complaint isn’t with the learned trial judge; it’s with and solely centred on the conduct of [Ms Underwood].
MAY J: So your submission is that section 113 does not provide a remedy in these circumstances.
MS MOLYNEUX: No.
MAY J: Okay. Well, having interrupted you already, please go ahead.
MS MOLYNEUX: Thank you, your Honours.
MAY J: But understand we have very carefully read your submissions.
MS MOLYNEUX: Yes, I have. Your Honours, the first point – and I’ll touch on these points and perhaps expand a little. The first matter is in fact the very appointment of the case guardian on an application for a divorce.
BOLAND J: This is ground 7 of your amended - - -
MS MOLYNEUX: Yes, that’s correct, your Honour. As a matter of law we say a case guardian or an attorney – in this case [Ms Underwood] held two powers of attorney. Both were enduring. One was financial, one was medical. Even if there was one that was a general enduring power of attorney – and there are matters that an attorney cannot simply do. One of them is make an application for divorce, because of what is required in order to obtain a divorce order. What is required is a matter of intention and a decision that only a party to a marriage can make.
As we’ve outlined in our written submissions, an attorney for example – [Ms Underwood] could not have proposed to [Ms J] exercising the power of an attorney and then turnaround and say, “Well, now my father is engaged.” Your Honours might think, “Well, look, that’s just ridiculous,” but that’s effectively what we say an attorney bringing a divorce application is doing. It’s one of the most personal decisions and it’s not one that can be delegated or one that can be made by an attorney.
MAY J: In this case, Ms Molyneux, there was no doubt that prior to her father becoming unconscious, that he communicated to her his wish. That was a common fact, wasn’t it, that you conceded on various occasions?
MS MOLYNEUX: Yes, that’s right.
Although no persuasive authorities were provided to us to support such a proposition, it was submitted that apart from the unsuitability of Ms Underwood, “… an attorney simply cannot bring an application for a divorce”. (T/script p.12 l.12)
In written submissions counsel referred to two cases. First, an unreported decision in Jennings [1997] FamCA 29 a decision of a single Judge on 26 June 1997. This decision does not appear to be of any assistance to the present case. The other authority is Clauss v. Pir [1988] Ch. 267 at 273. In that case an order was made requiring discovery of documents and that they be verified by affidavit. One of the parties to the action was an army officer resident in Pakistan and instead of deposing to an affidavit himself, using his power of attorney his wife signed the documents. It was found that the particular English rule imposed a personal duty to swear an affidavit so that the section did not allow for a power of attorney to execute an instrument. The purpose of the rule apparently was that the affidavit could concern matters about only the defendant as principal was competent to depose, so that the defendant’s duty could not be delegated. Neither the Family Law Act nor Rules provide such personal duty in relation to divorce applications.
In addition, at the risk of stating the obvious, there were no facts deposed to by the case guardian in relation to the divorce that were controversial. The wife’s own case including her reply to the application of the husband for divorce filed in the Federal Magistrates Court makes this abundantly clear.
I would add at this point the submissions of counsel for Ms Underwood in paragraph 30:
Those submissions have no relevance in the present case. The divorce application was not signed by [Ms Underwood] as the Husband’s attorney. It was signed by her as his case guardian (she being “taken to be appointed as the Husband’s case guardian” pursuant to Rule 6.10(2)).
Section 93
The provisions of Section 93 are as follows:
An appeal does not lie from a divorce order after the order has taken effect.
In the submissions on behalf of the wife reference was made at the outset to the reliance of the respondent on Miller and Miller (1983) FLC 91-328. I will deal with Miller shortly but in summary it can be said that the submissions were that despite the provisions of s.93, the court would find that there is an inherent power such that this order can be set aside.
Secondly, it was submitted that there has been a miscarriage of justice including that the trial Judge wrongly thought that the divorce order would not prevent an appeal. Ms Molyneux referred us to the part of the transcript where she made submissions to the trial Judge (see p.24 line 28):
MS MOLYNEUX: … Your Honour is being asked to extinguish rights that my client has and your Honour there is a very good reason why there is a month between the decree nisi and the decree absolute. And as your Honour knows, under section 93 of the Act, one cannot appeal from a decree absolute. You can only appeal from a decree nisi.
… [W]hile your Honour has been told that the husband has expressed this wish, your Honour has been taken to no material and your Honour will not be taken to any material, as none exists, as to why the husband has this wish. So your Honour doesn’t know - - -
HIS HONOUR: … [Y]our point is that you’re not in a position to explore or challenge why he has said what he’s said? Is that what you’re in effect ---
MS MOLYNEUX: Correct, your Honour, yes.
The transcript does not reveal as Ms Molyneux thought that his Honour rejected her argument at that time. It can be seen that counsel did argue fully the consequences of s.93.
Certainly in the judgment, it can be seen that in considering the special circumstances of this case, his Honour observed the uncontroversial fact that if he did:
13.… [N]ot accede to the application and the husband dies before the divorce order takes effect, then pursuant to s.55, sub-s(4), the divorce order that I have made has no effect. I do not accept the submission made by Senior Counsel for the wife that no appeal is possible if an order is made under s.55(2)(b).
It is apparent to me that as the death of the husband was imminent his Honour made the order because otherwise the divorce order would have no effect after the husband’s death.
In the reasons for judgment refusing the application for a stay of the orders his Honour said as follows:
3.Counsel for the wife has submitted that not granting this stay would render any appeal nugatory. It is my view that is an incorrect proposition. If the appeal is successful, the divorce order, that is now absolute, would be void ab initio and in those circumstances not granting a stay will not render the wife’s appeal nugatory.
The facts of Miller (supra) are entirely different to the present case. I will however provide a summary to appreciate what was said in the reasons.
An order nisi for dissolution of Mr Miller’s first marriage was obtained by his wife, Vera Mellor, in 1958. The legislation in Western Australia at that time provided that after the expiry of time, fixed by the order nisi, on application being made the final order may issue. An application for a final order was never made and so the order nisi never became absolute. Unaware of this, Mr Miller purported to marry Mollie Wells in 1959. In 1967 Mr Miller purported to marry for the third time, the respondent Margaret Miller. Mollie Wells was alive at the time of this marriage and there had been no application for divorce. Vera Mellor died in 1970 after the third marriage.
An order was made dissolving the marriage with Margaret in the Family Court of Australia in 1979. In response to an application for a settlement of property before the court, the husband said the court had no jurisdiction because there had not been a valid marriage. A number of questions were referred to the Full Court under s.94A. One question of assistance in this case was whether, when the decree became absolute in the third marriage, it was valid despite the facts as described so the court had jurisdiction.
In relation to the question of jurisdiction, it was the view of Fogarty J (at 78,235) with which Asche S. J. agreed, that as there had been completed proceedings for divorce there was a sufficient connection as required by s.4(1)(ca). This opinion was despite the concession that the purported marriage between the applicant and respondent was void.
The exception to their Honours’ opinion about jurisdiction, as clearly stated by them, arose if the basis of the application was a sham. Although there was an attack on the case guardian in this case, it was not suggested that the application was a sham.
Fogarty J considered the legal effect of the decree absolute. After referring to the legislation at that time his Honour said at pp. 78,235 to 78,240:
The scheme provides support for the first submission of counsel for the applicant mainly that once a divorce decree has become absolute it may not be set aside and is valid and binding thereafter for all purposes. Obviously a divorce decree once it becomes absolute affects the status of the parties concerned and may have a significant impact on the status and circumstances of other persons.
On the other hand, para. (b) of “matrimonial cause” which provides for proceedings for a declaration as to, inter alia, the validity of a dissolution or annulment of marriage by a decree or otherwise contemplates that proceedings may be taken within the Act itself as to the validity of a divorce decree or a decree of annulment. Normally it would arise in relation to a decree granted overseas or otherwise than under the Family Law Act but the paragraph is obviously not confined to those circumstances and there is no basis for concluding that it may not be used to challenge the validity of a divorce decree granted under this Act. Section 113 provides that in any such proceeding the Court “may make such declaration as is justified”.
There have been a number of cases in England and a lesser number in Australia relating to this overall issue, that is, the circumstances in which a decree absolute may be treated as a nullity or impeached in later proceedings. It is not easy to extract, in my view, clear or consistent principles from those cases. There appears to me to be some difference in approach or emphasis between the Courts in England and in Australia. In England there seems to have been a greater readiness to interfere with a decree absolute and set it aside, whereas in Australia a more restrictive view appears to me to have been adopted. If this is so then an explanation of that may lie in a different structure of the Acts in question. In Australian legislation both before and since 1975, the legislative emphasis (as illustrated above) has been upon the inviolability of decrees once they became absolute, whereas in England the continued connection between decree nisi and ancillary proceedings and the general prohibition against a decree nisi becoming absolute until ancillary matters are finalised may have led to a different emphasis. Certainly the recent decision of the Court of Appeal in the case of Purse v. Purse (1981) 2 All E.R. 465 may lend support to this view. Also, the English equivalent to sec. 59 of the Family Law Act, namely sec. 8(1) of the Matrimonial Causes Act 1965 was repealed by the Matrimonial Causes Act of 1973. Nevertheless it does appear to me that the following principles may be extracted:
1.Once a decree nisi has become absolute no appeal lies against that decree – see sec. 93.
2. Section 56 is an administrative and evidentiary provision and makes the certificate of decree absolute admissible (but not conclusive) evidence of the matters stated in that certificate: Dern v. Dern (1961) 2 F.L.R. 126 at p. 129.
3. In limited circumstance a Court may set aside a decree of divorce nothwithstanding that it has become absolute or it may be treated or acted upon by the parties as a nullity.
4. The fundamental problem is the circumstances in which that is so. This is because there is a basic conflict between:
(a)the policy that a decree absolute should be inviolate and not open to subsequent challenge; and
(b)the right of a Court of record to set aside its orders where there has been a fundamental miscarriage of justice.
…
As to (a) above, this finds its strongest base in the provisions of the Act itself which clearly spell out a legislative intention that there shall be a period between decree nisi and decree absolute during which the decree nisi may be challenged but that once the decree has become absolute no appeal shall lie therefrom and the parties are free to contract a further marriage. Further it is based upon the circumstance that such a decree is a decree in rem and the parties and third parties may substantially alter their status or circumstances in reliance upon such a decree. The subsequent setting aside of the decree may seriously infringe upon the rights and circumstances of those persons. This principle is strongly emphasised in the decision of the High Court in Brennan v. Brennan (1953) 89 C.L.R. 129 and see also the other Australian cases of Spooner v. Spooner (1956) 73 W.N. (N.S.W.) 353; Essex v. Essex (1952) 59 W.N. (N.S.W.) 234; the Spratley cases No. 1 & 2 (1977) FLC ¶90-222 and (1978) FLC ¶90-414 respectively; and see also Skinner v. Carter (1948) Ch. 387.
In Brennan’s case at p. 135, in relation to sec. 28 of the Matrimonial Causes Act 1889-1959 (N.S.W.) (as to which now see sec. 59 of the Family Law Act), the High Court 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.”
At p. 136, the Court said:
“After the conditions of the section have been satisfied the decree, however fundamentally impeachable it may theretofore have been, becomes unassailable.”
On the other hand, the reference in that case to the line of English cases such as Wolfenden v. Wolfenden (1948) P. 27; Everitt v. Everitt (1949) 1 ALL E.R. 908; and Wiseman v. Wiseman (1953) P. 79 and the distinguishing of those cases for the circumstances in Brennan’s case suggest that these emphatic statements of the High Court were intended to be read subject to some reservations.
As to (b) above, a superior court of record has an inherent right to set aside an order or decree obtained in circumstances where there has been a fundamental miscarriage of justice. That is based upon what Sir Owen Dixon in Wollongong Corporation case (1955) 93 C.L.R. 435 at p. 444 described as “the incessant demands of justice”: see also N. and N. (1981) FLC ¶91-111 at pp. 76,823-76,824; Craig v. Kanssen (1943) K.B. 256; Everitt's case (supra); and the comments of Scott L.J. in Meier’s case referred to above.
…
6. The conflict becomes acute however where one is concerned with the case where a decree has become absolute and is made by a Court having jurisdiction to grant that decree and is valid on its face. It appears to me that notwithstanding the legislative scheme in the Family Law Act there are limited circumstances in which such a decree is void or may be impeached upon that basis. For relevant purposes the authorities suggest those circumstances may fall into three categories:
(a) A failure to comply with legislative requirements which are conditions precedent to the decree nisi becoming absolute. This is a particularly apt category in England because of the legislative scheme by which, in effect, the decree nisi is not to become absolute save on application to the Registrar (or Court) and upon satisfaction that certain legislative conditions precedent relating to financial provision and welfare of children have been completed. A number of English cases need to be understood in this context.
It seems to me that the only equivalent provision in the Family Law Act is the necessity for there to be a declaration under sec. 63 before a decree nisi may become absolute.
(b) Where there was the absence of an element fundamental to the granting of the decree. For example, the absence of any marriage to dissolve, the absence of any jurisdictional connection by either of the parties to the Court which granted the decree, or constitutional limits in Australia. This category has obvious limits which it is unnecessary to explore in this case. For example, where there has been a conscious finding of a particular element by the Court granting the decree that may be challenged by an appeal but there are obvious limits to a subsequent challenge to the validity of the decree upon that ground.
(c) Where there has been a procedural irregularity which has caused a denial of natural justice. For example, where there has been no service of the proceeding and no order dispensing with service (as distinct from some defect in service or where there was an order dispensing with service which is later treated as having been inappropriately made). Examples of the former include the well known English cases of Edwards v. Edwards (1951) 1 All E.R. 63 and Wolfenden's case (supra).
The distinction between the two can be a matter of degree and this can give rise to difficulties in individual cases. It has been said that the distinction is between the decree or order being treated as ''void'' or ''voidable''. A void decree is a nullity once the facts relied upon have been demonstrated and will be set aside as of right. However, there is no unanimity as to what is understood by the term ''voidable'' in this context. It appears to mean either (a) that it may as a matter of discretion be set aside at any time and even after the decree has become absolute and a party remarried, or (b) it may as a matter of discretion be set aside until but not after the decree becomes absolute and/or a party remarries.
In Re F. (1977) 2 W.L.R. 488 at pp. 493-494 Ormrod L.J. referred to this in the following terms:
“When the word 'void' is used in relation to orders which are good on their face it must, therefore, have a more restricted meaning than it has in relation to marriages, contracts, and other transactions inter partes. It can only mean that when an application is made to a court to set it aside the court has no option or discretion in the matter and must do so. The most obvious examples are provided by cases where, in Sir George Baker P.'s phrase in Dryden v. Dryden (1973) Fam. 217, 237: '... the irregularity is such that it undermines the adversary procedure for the entire proceedings,' e.g., where there has been a total failure to comply with the rules relating to service: see also Craig v. Kanssen (1943) K.B. 256 and Wolfenden v. Wolfenden (1948) P. 27. In such cases, the applicant is entitled ex debito justitiae to have the order set aside, but it is not accurate to say that the order is a nullity, because it is good on its face and valid until set aside. There are other classes of case in which the court is bound to set aside the order in question, i.e., the relevant provision is 'imperative', either because Parliament has expressly so provided as in section 41(3) of the Act of 1973 or because, as a matter of construction, the court so holds. In other cases, of which P. v. P. (1971) P. 217 and F. v. F. (1971) P. 1 and Dryden v. Dryden (1973) Fam. 217 are examples, the court has held, as a matter of construction, that it is not bound to set aside the order and may, if the interests of justice so require, decline to do so. In such cases, the order is described as 'voidable', although this word, too, is not used in the same sense as it is in contract or in other transactions inter partes. In the present context, the option to 'avoid' the order or not lies with the court and not with one of the parties. The court, therefore, has a judicial discretion in the matter.''
It appears to me that English cases have tended to adopt the former view whilst Australian cases and the two cases of the Privy Council have adopted the latter view.
As to the latter view this seems to me to be the rationale of Brennan's case. The suggested irregularity there (a reading by the Judge of part of the evidence in chambers rather than in open court) at most rendered the proceeding voidable but, the decree having become absolute and a party having remarried, the High Court regarded the decree as ''unassailable'' . In the case of McPherson v. McPherson (1936) A.C. 177 the Privy Council was concerned with a case where the evidence on a divorce petition had been taken in chambers rather than in open court. In relation to this the Privy Council said at p. 204:
“To say that such a decree is void would seem to be out of the question. If the law were so treated, the remedy would be far worse than the disease it was designed to cure. To say that it is voidable states a result which, their Lordships think, entirely meets the case.''
The Privy Council went on to hold that as the time for appealing against the decree had expired before the proceedings had been instituted and as the petitioner had remarried, the decree absolute, although originally voidable, had become ''unassailable'' . In the later decision of the Privy Council in Marsh v. Marsh (1945) A.C. 71 the Board at p. 84 emphasised this distinction when it said:
“But it does not necessarily follow that because there has not been a literal compliance with the rules the decree is a nullity. A considerable number of cases were cited to their Lordships on the question as to what irregularities will render a judgment or order void or only voidable ... The practical difference between the two is that if the order is void the party whom it purports to affect can ignore it, and he who has obtained it will proceed thereon at his peril, while if it be voidable only the party affected must get it set aside. No court has ever attempted to lay down a decisive test for distinguishing between the two classes of irregularities, nor will their Lordships attempt to do so here, beyond saying that one test that may be applied is to inquire whether the irregularity has caused a failure of natural justice. There is, for instance, an obvious distinction between obtaining judgment on a writ which has never been served and one in which, ... there has been a defect in the service but the writ had come to the knowledge of the defendant.''
As to the former of the two views relating to a ''voidable'' decree, the recent decision of the Court of Appeal in Purse v. Purse (1981) 2 All E.R. 465 is a striking example. There, divorce proceedings had been instituted by the husband and an order made dispensing with service. Subsequently the decree nisi was granted and in due course became absolute. Subsequently to that the husband died. The wife thereafter applied for a widow's pension and learned for the first time of the divorce proceedings and decree. She applied in effect to have the order dispensing with service and the decree absolute set aside. She would have suffered financial hardship if she were treated as a divorcee rather than a widow. The Court of Appeal considered that the enquiries upon which the order dispensing with service was based had not been sufficient although it was not suggested there had been any fraudulent conduct. The Court of Appeal set aside the order dispensing with service and the decree absolute, treating the decree as voidable due to an irregularity in service. The judgment of the Court is largely concerned with the question whether the proceeding had abated as a consequence of the death of the husband but, dealing with the aspect of the case relevant here, Ormrod L.J. said at pp. 471-472:
“Counsel for Mrs. Purse made it clear that she was challenging the validity of the decree absolute on the ground of irregularity of service. Non-service, simpliciter, could not be relied on because the husband obtained an order of the registrar dated 20th September 1977, under r. 14(11) of the Matrimonial Causes Rules 1977. Fraud on the part of the husband is not relied on because there is no evidence at all to support such an allegation, but it is alleged that this order was obtained or granted irregularly. The case, therefore, falls within the decision of this court in Wiseman v. Wiseman (1953) 1 All E.R. 601, (1953) P. 79, which is authority for two propositions, namely that in such circumstances the decree absolute is voidable but not void, and that the Court of Appeal has jurisdiction to inquire into, make the necessary findings of fact in relation to the validity of, and set aside, a decree absolute, notwithstanding that an application to set aside such a decree may also be made to a judge at first instance: see Wolfenden v. Wolfenden (1947) 2 All E.R. 653, (1948) P. 27 and Dryden v. Dryden (1973) 3 All E.R. 526, (1973) Fam. 217.''
Dunn L.J. at p. 475 said:
“If the husband were still alive there is no dispute that the court would have had the power to set the decree aside if it thought fit: see Wiseman v. Wiseman (1953) 1 All E.R. 601, (1953) P. 79 and Balloqui v. Balloqui (1963) 3 All E.R. 989, (1964) 1 W.L.R. 82. The inadequacy of the steps taken by the husband and his solicitors to trace the wife should have put the registrar on inquiry, and the lack of inquiry by the registrar as to her whereabouts provides strong grounds for setting aside the order for dispensing with service. If that were done, there being no evidence of fraud by the petitioner, the decree absolute would be voidable, that is to say it would be valid until such time as it was set aside.''
It is unnecessary to be concerned in this case with the correctness or otherwise of the decision in Purse's case but it does seem to me to go a very long way to bring into challenge decrees absolute otherwise validly obtained and seems out of line with such cases as there have been in Australia.
Turning to the facts stated in this proceeding, and on the assumption of the correctness of those facts, the decree is void. That is because there was no marriage to dissolve. There was an absence of a fundamental element in the proceeding. Notwithstanding that the decree was regularly entered and valid on its face, on the assumption that the facts agreed to in this case are so and can be demonstrated to be so in subsequent relevant proceedings, the parties are entitled to treat the decree as a nullity and to act accordingly. However, in order to do so it may subsequently be necessary to demonstrate the correctness of that assumption. The appropriate course may then be for a party to seek to have the decree set aside or a declaration made under para. (b) as to the validity of that decree.
This view might be thought to be inconsistent with the following passage at p. 134 of the judgment of the High Court in Brennan's case (1953) 89 C.L.R. 129:
“But a judgment or order of a superior court having authority to determine its own jurisdiction, however fundamentally impeachable it may be, is not void but voidable and is valid and effective unless and until it is set aside. In a superior court the question is not whether the judgment or order is void or voidable but whether the flaw complained of is a mere irregularity which leaves the court with a discretion whether to set aside the judgment or order or not or is a fundamental miscarriage which prevents the trial being a real trial at all so that the person prejudiced is entitled ex debito justitiae to have the judgment or order set aside. A judgment or order effected by fundamental miscarriage is often referred to as a nullity, but if it is a judgment or order of a superior court that does not mean that it is void but only that it can be disregarded by the person against whom it operates in the sense that if the person in whose favour it has been made seeks to enforce it the former is entitled, as we have said, to have it set aside ex debito justitiae: Ex parte Williams (1934) 51 C.L.R. 545 at p. 550 ; Cameron v. Cole (1944) 68 C.L.R. 571 at pp. 585, 590-591, 598, 604, 605 .''
Although the Family Court is a superior court of record, it is not such a Court ''having authority to determine its own jurisdiction''. Its jurisdiction is fundamentally the statutory jurisdiction given to it by the Family Law Act and other relevant legislation. This distinction seems to be emphasised in the introductory words of the above quotation and also in the two authorities to which it refers.
The decision in Woodlands (1928) P. 169, to the extent that it suggests that a finding of a marriage in proceedings between the parties to that alleged marriage creates an estoppel inter partes so that neither party may thereafter allege the non-existence of the marriage, appears to me to be incorrect: see Hayward v. Hayward (1961) P. 152.
Evatt CJ agreed with the judgment of Fogarty J and added in relation to the question of the effect of the decree absolute, the following at p. 78-229
The main effect of a decree absolute of dissolution is to change the status of the parties from that of marriage to that of divorced and to enable them to remarry. In the present case, on the facts as stated, the parties were never validly married to each other. Therefore neither the original marriage ceremony nor the decree had any legal effect upon the marital status of the parties. In that regard the decree is a nullity.
The circumstances that the decree has no effect on the parties' status has nothing to do with the validity of the proceedings for dissolution or with the validity of or jurisdiction in respect of property proceedings in relation to those proceedings. Those are quite separate issues.
For the reasons given it is not, in my view, necessary to enquire into the question whether the decree itself can be set aside as a void or voidable decree. The important issues which would normally arise when a Court is asked to set aside a decree absolute are not present in this case, since neither the decree nor its setting aside could affect anyone's status or rights. The cases which point to the inviolability of a decree which has had the effect of dissolving a marriage and changing the parties' status are not relevant to a situation where the decree has had no such effect (see, e.g. Brennan v. Brennan (1953) 89 C.L.R. 129).
I would, nevertheless, agree that there are limited circumstances in which a Court may set aside a decree of divorce notwithstanding that it has become absolute and also circumstances in which a decree may be treated or acted upon by the parties or by a Court as a nullity even though it has not been formally set aside.
There seem to be two possible situations. The first would arise when there is a fundamental flaw in the exercise of jurisdiction, a flaw which is fatal to the validity of the decree. When such a matter is established, the decree must fail, and must be treated by the Court and for all purposes as a nullity, void ab initio. The dissolution of a non-existent marriage would obviously come into this category.
The other and more common situations arise when there is some failure to comply with procedural or other requirements which failure may render the decree voidable, but not necessarily void. Failure to comply with rules as to service or with the provisions of sec. 63 may fall into this category (see Wright v. Wright (1976) Fam. 114 ). The decision whether to set aside the decree in these cases is exercisable on a discretionary basis taking into account the consequences for the status of the parties of altering a status established by the decree, and weighing these against the results flowing from a miscarriage of justice.
The distinction between decrees which are void and voidable was referred to in the passages quoted from Inre F. (1977) 2 W.L.R. 488 at pp. 493-494; Marsh v. Marsh (1945) A.C. 71 at p. 84 and the powers of the Court to set aside a voidable decree on discretionary grounds have been discussed in numerous authorities, and most recently in Purse v. Purse (1981) 2 All E.R. 465. It is not necessary to explore these questions in the present case as on the facts stated the decree is of no effect. There is no point in pursuing the issue whether the decree itself is void or voidable. As it is without effect, no immediate rights depend on whether it remains standing or whether it is set aside. For the same reason it can be disregarded and there is no need for its validity to be brought into issue.
(emphasis added)
I have set out these excerpts from the judgment of Miller and Miller (supra) at length because I am of the view that the statements contained within them correctly state the law. I can do no better than repeat what was said, especially by Fogarty J.
Before leaving the authorities on this topic I also mention a single Judge decision of Kay J in Cross and Cross (1995) FLC 92-628. In that matter the decree absolute was set aside because there were two fundamental errors. First, there was no request by the wife to deal with the application for dissolution in the absence of the parties and secondly, there were children under the age of 18 and the Registrar declared that there were no children. As there were children, there should not have been a hearing in the absence of the parties. After the decree became absolute, the parties reconciled. His Honour ultimately said in the judgment at pp. 82,305 to 82,306:
It is clear that in this matter there were serious procedural irregularities. The Registrar proceeded as if there had been a request made that the matter be dealt with in the absence of the parties when no such request was or could have properly been made. The Registrar made a declaration that there were no children of the marriage who had not attained the age of 18 years, when the only evidence before him was that there were two children of the marriage who had not attained the age of 18 years.
In my view the procedural irregularities were significant. In my view they tainted the decree which was pronounced to such a degree that I should now set it aside.
Accepting that the divorce order in this case, having become absolute may be set aside if a miscarriage of justice can be demonstrated, I now turn to the wife’s arguments in that respect.
Following the reasoning in Miller and Miller (supra) these are as follows:
(a)A procedural irregularity which has caused a denial of natural justice;
(b)The absence of a necessary element fundamental to the decree;
(c)A failure to comply with the legislative requirements which are conditions precedent to the decree nisi becoming absolute in particular s.55A – the declaration in relation to children;
Miscarriage of Justice
Denial of natural justice – Procedural unfairness
Counsel submitted that the wife had been denied natural justice by the trial Judge hearing the application for divorce without proper notice being given to the wife. Counsel submitted that the trial Judge did not allow relevant material to be put before the court and wrongly refused the wife time to file a response to the divorce.
Counsel submitted that the trial Judge failed to consider the possibility that the application amounted to an abuse of process in that it was, as the wife submits, for a collateral purpose.
It is necessary to consider then what matters might have been canvassed more fully or evidence provided had an adjournment been granted. One issue which emerged during oral argument before his Honour was in relation to the issue of the date of separation. The following exchange took place between counsel for the wife and the trial Judge:
MS MOLYNEUX: My instructions are that the parties – that the husband told the wife he wished a decree nisi on 3 April 2007.
HIS HONOUR: Right. So from your client’s point of view, this marriage was irretrievably broken down on 3 April 2007, is that correct?
MS MOLYNEUX: My client’s evidence is that she was told by the husband - --
HIS HONOUR: No, answer my question please, Ms Molyneux? It’s a simple question.
MS MOLYNEUX: Yes, your Honour. Your Honour - - -
HIS HONOUR: Is the answer yes? Sorry, did you say yes to the answer to my question?
MS MOLYNEUX: Your Honour, I’ve asked for time - - -
HIS HONOUR: Ms Molyneux, I’ve asked you to answer a simple question. Can you answer it please?
MS MOLYNEUX: Your Honour my client’s response says the husband told her he wished to have a divorce on 3 April 2007.
HIS HONOUR: Ms Molyneux, are your instructions that this marriage irretrievably broke down at a time no later than 3 April 2007?
MS MOLYNEUX: In my client’s response she says she concluded the marriage had broken down irretrievably in October 2007 when she determined or was told of the husband’s new relationship with another woman.
HIS HONOUR: So your instructions are this marriage did not break down until October 2007? Is that what you’re saying to me?
MS MOLYNEUX: That’s correct, your Honour.
HIS HONOUR: And has that been your position throughout this matter?
MS MOLYNEUX: Your Honour, the – no, the position when we ran the application – the issue for determination before the learned federal magistrate was – when was the date of separation, irretrievable breakdown of the marriage? And that was run on the basis that the federal magistrate could not find it was any earlier than 3 April 2007.
HIS HONOUR: So when you ran your case before the federal magistrate, your case was that it couldn’t be any earlier than 3 April 2007?
…
HIS HONOUR: Mr Brown, have you been in this matter all the way through?
MR BROWN: I have, your Honour.
HIS HONOUR: Do you want to say anything to me about what Ms Molyneux has just said to me?
MR BROWN: I can tell your Honour that my learned friend, during the course of submissions before the magistrate, indicating that as far as her instructions were concerned, the marriage was irretrievably broken down as at 3 April 2007 and we don’t have the benefit of a transcript in these proceedings with respect to those proceedings but more importantly, your Honour, I would like to refer your Honour to exhibit one to the affidavit of my learned friend’s client. That’s an affidavit, your Honour, sworn on 8 April 2008.
…
MR BROWN: It says the following; it’s a letter from Ms [Price] to my learned instructing solicitor, Mr Gleizer(?) dated 29 January 2008:
Your client will have to decide therefore whether to pursue his current application and provide evidence of his alleged date of separation and have the matter determined in a contested hearing or withdraw the current application and re-issue after 3 April 2008 when the matter can proceed undefended.
That has been her position since 29 January 2008 and might I indicate to your Honour; when this matter commenced before the magistrate on 9 April I made that application which was the subject of lengthy and heated opposition by my learned friend and the setting that we found ourselves in, your Honour, with the urgency, we decided to not proceed with it in light of the opposition. It’s clearly going to take an enormous amount of time if we proceeded with the material. That’s the chronology of that event. The wife’s position unequivocally your Honour has been that the relevant separation date for the purpose of any application, which includes the application before you this day, is 3 April 2008 – 2007, not – we are staggered to hear the submission which has been put to you.
…
HIS HONOUR: Up until 9 April 2008, asserted the date of separation was 3 April 2007? Is that correct?
MS MOLYNEUX: Correct
HIS HONOUR: And since 9 April she has reassessed her position and she now says it was October 2007, is that a correct statement of your position?
MS MOLYNEUX: Well, your Honour – no. That – in her response which she filed on 12 January she reports – swears to a number of incidences and occurrences that occurred as from 3 April 2007. And she says that in October 2007 she was told for the first time that the husband had a relationship.
It can be seen from this interchange that there would have been no utility in granting an adjournment to deal with the question of the date of separation.
Submissions were also made in relation to a number of Family Law Rules. As this was a final hearing, as opposed to an interim or procedural hearing, it was submitted that the principles allowing for an application to be heard, in effect without notice, should have been strictly applied. We were not referred to any authorities to support this proposition. Rather, reference was made to rule 5.12, especially sub-paragraph (vi) by way of analogy. These rules are in relation to applications for interim or procedural orders.
It was submitted that if the answer to this submission is that the circumstances required a “robust and pragmatic approach” the response would be that the court knew that the wife wished to appeal and time should have been allowed for material to be filed.
Apart from raising the question about whether the application for divorce was made for a collateral purpose, submissions were made about the ability of the wife to proceed against the adult children and the trust.
In response to paragraph 28 of the written submissions of the respondent to the appeal, it was submitted for the wife that the suggestion that the wife, even if she remained a beneficiary would have difficulties pursuing any interest in the trust was incorrect. Ms Molyneux submitted that this ignored the provisions of s 48 of the Trustee Act 1958 (Vic) allowing the removal of a trustee who is obliged to keep records and proper accounts. Further, she submitted that the wife had the right when a beneficiary to insist that the trustee exercise his or her discretion properly. It was submitted that this was an important consideration because without the status of beneficiary the wife’s ability to seek relief would be limited to the Family Court.
Section 55(2)(b) (Reduction of Time)
Reference has already been made to the submissions by counsel for the wife relating to the order that the divorce order become effective immediately. Before leaving this topic, I would mention the decision of Hodgens (1983) 10 FamLR 538. The Judge granted a decree nisi for dissolution of marriage and ordered that it became absolute forthwith. The husband had resisted the application for divorce on the basis that he sought an opportunity for a reconciliation with the wife. The Judge found that the wife was absolutely certain in her own mind that the marriage was at an end and accepted her evidence. The husband applied to the Court for a declaration under section 113 of the Act that the decree nisi and order that it become absolute forthwith was invalid because it denied to him the right of appeal under the Act. Strauss J outlined the submissions made on behalf of the husband under section 55(2)(b) and referred to the case of Miller (supra). His Honour was of the view that there should be an appeal to the Full Court. The Court in Hodgens (supra) focussed on two questions described at p.541:
“… First, whether there is power to abridge the time to such an extent as to make a decree absolute forthwith and, second, whether the court’s discretion to abridge such time was properly exercised in the present case.”
After setting out the provisions of section 55(2), their Honours concluded:
“In the absence of any limit on the power conferred by para (b) it cannot be concluded that the court is precluded from reducing the period of time to nil, in other words, from deciding that the decree should become absolute immediately. In the practice of the court such a step is generally taken by consent or in the absence of opposition from the other party, that party being present in court. The step is a drastic one because it precludes a party from any right of appeal against the decree nisi or against any of the findings necessary to be made for the purposes of the decree. Nevertheless, though a drastic step it is one which the court may take in the proper exercise of its discretion. The question in this present case is therefore, not one of power but whether the court’s discretion was exercised in a manner which resulted in a miscarriage of justice.
Turning to the actual exercise of discretion the complaint by the husband is that he was precluded from any right to appeal by her Honour’s action. This he submits was a denial of natural justice to him. It would, however, be inappropriate in this case to regard the denial of any right of appeal as a miscarriage of justice irrespective of the grounds of appeal and the merits of any appeal which the husband could have brought. He was and is not challenging any of the basic grounds of jurisdiction or findings of fact upon which the decree was founded. To that extent it is doubtful whether this case could fall within the Miller guidelines. The miscarriage of justice alleged is the denial of any right to challenge the exercise of discretion.
The husband’s case was that the decree should not have been granted as it precluded any prospect of reconciliation.
Section 48(3) of the Act provides: “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.”
In the proceedings before Strauss J the husband also relied on s 43. Her Honour Lusink J was, however, far from being satisfied as to any prospect of resumption of cohabitation. On the contrary, she was emphatic that there was no prospect of reconciliation, a view which was clearly open to her on the material. Whether we consider the issue as if there had been an appeal on that point, or in connection with the application to set aside the decree, the answer it the same – there was no prospect of an appeal succeeding. No other ground was put forward.”
The appeal was dismissed.
submissions of the respondent
The oral submissions of Mr Brown were of relatively short duration. We also have his written submissions. The matters he particularly emphasised were in relation to the case guardian argument and the submission that natural justice was not accorded to the wife in these proceedings.
In relation to the submissions about the appointment of Ms Underwood, reference was made to the Family Law Rules. It was submitted that in this case as Ms Underwood was “taken to be appointed” (Rule 6.10(2)) and that a Notice of Address for Service was filed together with an affidavit being all that is necessary to comply with the rule, then the appointment is unassailable. Reference was made also to the definition which appears in rule 6.08A of a “manager of the affairs of a party”. The documents providing Ms Underwood with a power of attorney for her father were annexed to the affidavit. It was dated 18 May 2007, not proximate in time to the Application for Divorce.
As submitted by Mr Brown, the only possible questions could relate to rule 6.09 sub-paragraph (b) and (c) as follows:
(b)has no interest in the case that is adverse to the interest of the person needing the case guardian; and
(c)can fairly and competently conduct the case for the person needing the case guardian.
As to (b), I accept the submission that there was no basis, even on the wife’s evidence, that Ms Underwood’s interests were adverse to the interests of the husband. It is a separate question as to whether they might be adverse to the interests of Ms Price or the children. Such a consideration could only affect a question of discretion, to the extent that one exists beyond compliance with the rules. Mr Brown did not deal with this question, unsurprisingly, because no authority was provided by Ms Molyneux suggesting that this is a valid consideration.
In relation to sub-paragraph (c), it could hardly be suggested that Ms Underwood was not competent. The only question arising would be one of fairness. In my view as correctly, Mr Brown emphasised, it is necessary to look at the nature of the application, in this case, the divorce. The question is, what were the possible issues arising from the application. As previously mentioned, in effect it was conceded that the separation took place no earlier than April 2007 and that the marriage irretrievably had broken down. This was the fundamental basis of the divorce.
In relation to the date of separation, some emphasis was correctly placed on the submissions made on behalf of the wife before the Federal Magistrate who previously made the divorce order, to Watts J and to us on several occasions that the date of separation was 3 April 2007 (at the earliest). Reference should also be made to the Response filed by the wife in the Federal Magistrates Court sworn on 11 January 2008 and annexed to the affidavit placed before us on appeal. In that document the wife said inter alia “The applicant asked me for a divorce on the 3rd April, 2007 in the carpark of […]…”
As the declaration made under s 55A(1)(b)(ii) is squarely raised in the context of this matter it is appropriate that we set out s 55A(1) and (2). They provide:
(1)A divorce order in relation to a marriage does not take effect 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 divorce order should take effect even though the court is not satisfied that such arrangements have been made.
(2)Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.
Section 55(2) provides an appeal may be made against a divorce order which has not taken effect.
Section 56 provides for the taking out of a divorce order which has taken effect by the Registry Manager.
Section 58 provides for a divorce order to be rescinded before it takes effect if there has been a miscarriage of justice. It provides as follows:
If a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney‑General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be re‑heard.
Section 59 provides that a party may remarry after a divorce order has taken effect.
Section 93 provides:
An appeal does not lie from a divorce order after the order has taken effect.
Section 113 provides as follows:
In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
Section 4(1)(b) (the definition of “matrimonial cause”) provides as follows:
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise;
Academic writings and the authorities considering an appeal from a final divorce order.
Professor Nygh in Guide to the Family Law Act at [628] and [629] explains that while no appeal lies from the granting of a divorce order (then described in accordance with the former legalisation as a decree absolute), the final order may still be challenged:
After the decree has become absolute no appeal or rescission is possible: s 93, and the parties to the marriage may re-marry: s 59. …
The fact that a decree nisi has become absolute does not mean that it is beyond all challenge. Certainly no appeal can lie from a decree absolute even if it is alleged that it was made without jurisdiction: In the Marriage of Spratley (1977) 3 Fam LR 11, 131. But the Family Court has an inherent jurisdiction to set aside its orders and that includes decrees absolute: Hodgens and Hodgens. A discussion of the circumstances in which the court may do so is found in the decision of the Full Court in In the Marriage of Miller (1983) 9 Fam LR 10, especially at 20-3 per Fogarty J.
In H & H [2000] FamCA 1673 (unreported, Family Court of Australia, 15 December 2000) in determining whether declaration should be made under s 113 that a decree nisi which had become absolute should be set aside (on the basis the decree was void or voidable), Boland J referred to a number of authorities, including Brennan v Brennan (1953) 89 CLR 129. Boland J summarised the relevant background leading to the proceedings in the High Court in Brennan in paragraphs 33 to 36 of her reasons as follows:
In that case the wife filed a petition in October 1948 seeking the dissolution of the marriage on the ground of desertion, such desertion exceeding three years.
The husband filed an answer to the petition on 28 January 1949 denying desertion and seeking a decree for restitution of conjugal rights.
On 22 November 1950 the husband filed a supplementary answer in which he petitioned for the dissolution of the marriage on the basis of the wife’s adultery.
The matter was first listed for hearing before Edwards J. After the hearing of the oral evidence the learned trial judge died. The matter was then listed before Clancy J and because of the wife’s illness and to save expense Clancy J was requested not to hear the oral evidence de novo, but to have the transcript of the previous oral evidence before Edwards J tendered as an Exhibit. Clancy J read the evidence in chambers and had two witnesses recalled. Clancy J dismissed the wife’s petition and the husband’s petition for restitution of conjugal rights and granted a decree nisi on the ground of the wife’s adultery. The question before the High Court was whether there had been a proper hearing before Clancy J and if not, whether the decree nisi pronounced was void or voidable and if void, whether the decree absolute would be also void.
In Brennan Williams ACJ, Webb and Kitto JJ explained at p 134:
A decree absolute for divorce is a judgment in rem. It affects the status of the parties. Since the decree is at most voidable and not void subsequent events may make it unassailable. …
Thereafter, having regard to the provisions of the Matrimonial Causes Act 1899-1951 (N.S.W.), their Honours determined at 134-135:
Section 28 provides that the respective parties to a suit for dissolution of marriage may marry again as if the marriage had been dissolved by death where but not before--(a) the time limited for appealing against a decree absolute has expired and no appeal has been presented; or, (b) any such appeal is dismissed; or, (c) in the result of any appeal the marriage is declared to be dissolved. 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. …
Later, at 136, their Honours said:
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 theretofore have been, becomes unassailable.
Since the introduction of the Act, the question of whether a decree can be set aside under s 113 has been considered in both Full Court and single Judge decisions. In Spratley & Spratley (1977) FLC 90-222 Watson SJ considered the question - could there be an appeal from a dissolution decree which had become absolute? Having referred to the provisions of the Act then in force as to when a decree nisi was pronounced (s 54) and when such decree became absolute (s 55) his Honour said at 76,169:
It seems to me that the appellant has confused whatever rights of appeal he may have under sec. 94 and his right to seek a declaration as to the validity of the dissolution of his marriage under sec. 113. If he is of the opinion that the error of Connor J. is so fundamental that the decree pronounced on 13 May, 1976 was a nullity his remedy lies under sec. 113. …
Having noted there was no application under s 113 before him, his Honour went on to say at 76,170:
In my opinion sec. 93 means precisely what it says — a decree absolute is not appealable. If it came about because of a fundamental absence of jurisdiction, it may be a nullity and the proper way to test it is under sec. 113. Otherwise once the decree has become absolute that is the end of the matter and the parties are free to marry again. This is the spirit of the conclusion reached by the High Court in Brennanv.Brennan (1953) 89 C.L.R. 129 where sec. 28 of the New South Wales Matrimonial Causes Act 1899-1951 was considered.
The Full Court in Miller & Miller (1983) FLC 91-328 dealt with a case stated by a trial Judge under s 94A of the Act. At the time of the hearing it was necessary for the institution of property proceedings that there be either concurrent, pending or completed proceedings for principal relief. Amongst the facts stated was that the husband had contracted a marriage to the wife whilst he remained a married person. The Court had granted a decree nisi of the bigamous marriage between the husband and wife which decree had become absolute.
The Full Court was asked to determine whether the bigamous marriage was void, and what was the effect, if any, of the decree of dissolution which had become absolute. It was argued on behalf of the husband that the decree, having become absolute, could not be set aside, or in the alternate, was valid until set side, or a declaration as to its invalidity was made. Fogarty J noted because of the argument about whether property proceedings could be instituted that those advising the wife had not sought a declaration as to the validity of the marriage.
Evatt CJ determined that the marriage was void, and that it was unnecessary to determine whether the decree should be set aside. Her Honour explained however in her view the Court could, in limited circumstances, set aside a decree of divorce notwithstanding it had become absolute. Her Honour said at 78,229 – 78,230:
There seem to be two possible situations. The first would arise when there is a fundamental flaw in the exercise of jurisdiction, a flaw which is fatal to the validity of the decree. When such a matter is established, the decree must fail, and must be treated by the Court and for all purposes as a nullity, void ab initio. The dissolution of a non-existent marriage would obviously come into this category.
The other and more common situations arise when there is some failure to comply with procedural or other requirements which failure may render the decree voidable, but not necessarily void. Failure to comply with rules as to service or with the provisions of sec. 63 may fall into this category (see Wright v. Wright (1976) Fam. 114). The decision whether to set aside the decree in these cases is exercisable on a discretionary basis taking into account the consequences for the status of the parties of altering a status established by the decree, and weighing these against the results flowing from a miscarriage of justice.
Fogarty J, with whom Asche SJ agreed, delivered separate reasons for judgment. Fogarty J commenced his discussion by reviewing the provisions of Part VI of the Act and noted a scheme which, prima facie, supported the proposition that once a divorce decree had become absolute it could not be set aside and was valid and binding thereafter for all purposes. However he also discussed para (b) of the definition of “matrimonial cause” (see s 4(1) of the Act), noting the definition provides for a declaration as to the validity of a dissolution or annulment and which itself contemplates that proceedings may be taken under the Act to test the validity of a divorce decree or a decree of annulment. He explained that such applications would normally arise in relation to the validity of an overseas decree but said “the paragraph is obviously not confined to those circumstances and there is no basis for concluding that it may not be used to challenge the validity of a divorce decree granted under this Act”.
His Honour then discussed a number of English and a smaller number of Australian cases dealing with the issue and said “it is not easy to extract, in my view, clear or consistent principles from those cases”. He noted the difference between the English and Australian approach with the former indicating a greater readiness to interfere with a decree which had become absolute and the more restrictive view adopted in Australia. He said:
If this is so then an explanation may lie in the different structure of the Acts in question. In Australian legislation both before and since 1975, the legislative emphasis … has been upon the inviolability of decrees once they became absolute, whereas in England the continued connection between the decree nisi and ancillary proceedings and the general prohibition against the decree nisi becoming absolute until ancillary proceedings are finalised may have lead to a different emphasis. …
His Honour summarised the principles extracted from the cases discussed:
1.Once a decree nisi has become absolute no appeal lies against that decree – see sec. 93.
2Section 56 is an administrative and evidentiary provision and makes the certificate of the decree absolute admissible (but not conclusive) evidence of the matters stated in that certificate …
3In limited circumstances a court may set aside a decree of divorce notwithstanding that it has become absolute or it may be treated or acted upon by the parties as a nullity.
4The fundamental problem is the circumstances in which that is so. This is because there is a basic conflict between:
(a)the policy that a decree absolute should be inviolate and not open to subsequent challenge; and
(b)the right of a Court of record to set aside its orders where there has been a fundamental miscarriage of justice.
His Honour considered the reasoning behind the decision in Brennan was that the setting aside of the decree may seriously infringe upon the rights and circumstances of third parties who had altered their status or circumstances in reliance on the decree. His Honour, after referring to the pronouncement of the High Court in Brennan about a decree absolute being “unassailable”, also noted the High Court’s reference to the English cases and said “…the distinguishing of those cases from the circumstances in Brennan’s case suggest that these emphatic statements of the High Court were intended to be read subject to some reservations”.
Fogarty J went on to explain the limitations on relief available when a decree had become absolute:
As to (b) above, a superior court of record has an inherent right to set aside an order or decree obtained in circumstances where there has been be a fundamental miscarriage of justice. …
5.No problem is experienced when the decree in question is a nullity on its face; for example a decree of a court of summary jurisdiction purporting to grant a decree of dissolution of marriage …
6.The conflict becomes acute however where one is concerned with the case where a decree has become absolute and is made by a Court having jurisdiction to grant that decree and is valid on its face. It appears to me that notwithstanding the legislative scheme in the Family Law Act there are limited circumstances in which such a decree is void or may be impeached upon that basis. ...”
His Honour then set out suggested circumstances where a decree may be set aside:-
(a)A failure to comply with legislative requirements which are conditions precedent to the decree nisi becoming absolute. …
(His Honour noted the only relevant provision under the Act was the then s 63 (now s 55A(1)) for a declaration that proper arrangements had been made for the care and welfare of the children of the marriage.)
(b)Where there was an absence of an element fundamental to the granting of the decree. ...
(His Honour said an attempt to dissolve a marriage which had not in fact occurred was a relevant example.)
(c)Where there has been a procedural irregularity which has caused a denial of natural justice. …
(His Honour gave the examples of non service of the proceedings and no order dispensing with service.)
Fogarty J noted the distinction between a “void” and “voidable” decree as follows:
It has been said that the distinction is between the decree or order being treated as “void” or “voidable”. A void decree is a nullity once the facts relied upon have been demonstrated and will be set aside as of right. However, there is no unanimity as to what is understood by the term ‘voidable’ in this context. It appears to mean either (a) that it may as a matter of discretion be set aside at any time and even after the decree has become absolute and a party remarried, or (b) it may as matter of discretion be set aside until but not after the decree becomes absolute and/or a party remarries.”
His Honour then discussed the difference between the interpretation in the English authorities and the Australian authorities, particularly Brennan as to whether or not a decree could or should be set aside as being void or voidable. He noted that the “defect” alleged in Brennan was that the trial Judge had read part of the evidence in chambers rendering the proceedings potentially voidable, but because the decree had become absolute and a party had remarried, the High Court regarded the decree as “unassailable”.
His Honour concluded, in answer to the questions stated, first, that the marriage was void, and second, that it was unnecessary to answer the next question posed - what was the effect, if any, of the decree of dissolution of marriage which had become absolute.
Subsequent decisions of the Court have determined that decrees which had become absolute could be set aside under s 113 (Wardale & Wardale (1990) FLC 92-151; Hodgens & Hodgens (1984) FLC 91-502; Cross & Cross (1995) FLC 92-628).
In Hodgens the trial Judge pronounced a decree nisi, and having invited submissions from counsel, made a declaration under the then s 63 of the Act, and ordered the decree to be absolute forthwith. The husband subsequently sought before another Judge, Strauss J, a declaration under s 113 that the decree absolute was invalid because the trial Judge’s order denied him the right of appeal. Strauss J noted that the discretion under s 113 had to be exercised judicially, and said he did not think it appropriate for one Judge to be pronouncing upon the validity of acts of another judicial officer, but rather that was a function of the Full Court. Accordingly he declined to exercise jurisdiction. The husband appealed to the Full Court. Evatt CJ, Pawley and Bulley JJ held:
Under sec. 93 of the Family Law Act no appeal can be brought against a decree absolute. However, under sec. 4(1)(b), “matrimonial cause” is defined to include proceedings for a declaration of the validity of the dissolution of a marriage by decree or otherwise. Under sec. 113 the Court is empowered in proceedings falling within para. (b) to make such declaration as is justified. Section 113 does not provide for any consequential orders to be made. Nevertheless, it does seem that if the result of an application under sec. 113 is that a decree absolute of the Family Court of Australia is held to be void for any reason there must reside an inherent power in the Court to set aside this decree (cf. Taylor v. Taylor(1979) FLC ¶90-674).
Their Honours went on to discuss how proceedings for a declaration should be instituted, and noted that the dilemma faced by Strauss J could have been avoided by reference to the Chief Justice for directions to list the matter before a Full Court. Their Honours determined nothing precluded the original trial Judge from pronouncing a decree nisi which became absolute immediately, although they described it as a “drastic step” which should not be taken lightly because it precluded a right of appeal against the order nisi (or divorce order before it had taken effect). However, their Honours then said such a step could be made in an appropriate exercise of the discretion.
We regard their Honours’ discussion concerning a challenge to a decree which had become absolute made by a Judge being listed before a Full Court for a declaration as to the validity of the order to be obiter dicta. As a matter of practical reality it is unlikely to occur as divorce applications are now generally heard by a Registrar. It is noteworthy that their Honours did not conclude that a single Judge lacked jurisdiction to determine such an application. Nor did their Honours consider the practical difficulties which may arise for a Full Court in the fact finding process on a defended s 113 application or the consequences in the event a party sought to appeal a Full Court’s determination. It seems to us the decision as whether the s 113 application would be determined by a single Judge rather than a Full Court would be strongly influenced by the extent of the additional evidence sought to be introduced and/or whether the essential challenge to the decree is alleged to be a defect of the type discussed in Miller.
Thus we would summarise the effect of the legislation and the authorities as follows:
·A divorce order which has taken effect (“a final divorce order”) is generally to be regarded as inviolate particularly if relied upon by third parties.
·Section 4(1) provides specific power to make a declaration in respect of a divorce order. The provision is not limited to overseas divorce orders or decrees.
·If a final divorce order has been made, a declaration as to its validity may be sought under s 113.
·Section 113 does not itself enable the Court to make consequential orders if the Court finds a final divorce order invalid, but the Court, albeit a creature of statute, may make necessary consequential orders (to set aside the divorce order) as part of its implied powers to control its own processes.
·The ratio in Brennan should be read in context of the facts which pertained in that case, the specific legislation (s 28) and with some reservation, because of the High Court’s discussion of the English Authorities.
·A final divorce order will be void if there is a fundamental flaw in the exercise of jurisdiction – where the flaw is fatal to the validity of the decree.
·If the facts on which a party seeks a declaration that a final divorce order should be set aside suggest the divorce order is voidable, the divorce order may, in the exercise of discretion, be set aside.
Conclusions - Section 93
The language in s 93 is clear and unambiguous. Further, in our view there are clear public policy reasons why a divorce order once it has taken effect should not be subject to an appeal under s 94.
Divorce, like bankruptcy, changes the status of a person in the community.
A divorce order is an order which must be capable of certifying to many public institutions, but particularly persons who wish to remarry, the status of persons who were formerly married without the need to go behind the order. Persons who are adversely affected, when there is a fundamental flaw in the judicial process, have a remedy in s 113 which may be exercised in the discretion of a judicial officer if appropriate to do so. As a divorce order is now generally made by a Registrar exercising delegated power, an application may be first made to a Judge or Federal Magistrate to review that decision de novo (see Grayden & Grayden (2003) FLC 93-146).
Did his Honour’s reference to a “right of appeal” vitiate his discretion in determining the divorce order should become final on the rising of the Court, and/or in refusing to stay the final divorce order?
In some respects the question posed above may be considered academic as no application, on a preliminary basis was made by the case guardian’s senior counsel to dismiss this appeal as being incompetent. No prejudice in being able to agitate claims before the Full Court has been suffered by the wife who brought this appeal. Rather the parties were afforded the opportunity to fully ventilate all matters in issue before the Full Court including challenges to the validity of the appointment of Ms U, but more fundamentally to argue the “appeal” and raise issues of procedural fairness which, (notwithstanding an application was not brought under s 113) if established could result in finding the final divorce order was voidable, and in the exercise of discretion should be declared void and consequential orders made that it be set aside. Likewise the challenges to the trial Judge’s determination to make the declaration he was not satisfied proper provisions for K had been made, were fully ventilated before us.
As we explain below, we conclude that the references by his Honour to a “right of appeal” did not vitiate the exercise of his discretion in making the alternate declaration under s 55A(1)(b)(ii), and thereafter determining the divorce order should become final on the rising of the Court.
As we have earlier discussed, the special arrangements which a judicial officer making a declaration under s 55A(1) would normally wish to be satisfied about could not have been implemented in this case because of the husband’s terminal illness. No delay in making the order final could have changed that situation. The ordering of a report under s 55A(2) would have been a futile exercise. No error by the trial Judge in determining he was not satisfied the arrangements for K were proper was demonstrated by senior counsel for the wife. In fact, although she sought to convince us that proper arrangements for K were not in place at the time the divorce order was made, senior counsel for the wife did not suggest any arrangements which could have been made either in the period between the hearing and the husband’s anticipated time of death, or the usual one month period. In these circumstances the trial Judge’s reference to a “right of appeal” was irrelevant.
Insofar as his Honour referred to an appeal not being rendered nugatory if the final divorce order was void ab initio we do not consider this statement in his Honour’s ex tempore stay reasons, published in the quite extraordinary circumstances of this case, constitutes appealable error. His Honour clearly recognised that if the judicial process was fundamentally flawed and the divorce order was void ab initio it would be set aside, and thus a refusal of a stay of his orders did not constitute an injustice to the wife.
We are satisfied that there was no error in the exercise of discretion by the trial Judge in the most unusual circumstances of this case in making the declaration under s 55A(1)(b)(ii) or shortening the period in which the divorce order would take effect from one month to the rising of the Court.
Did the trial Judge afford procedural fairness to the wife, or did the hearing result in the final divorce order being voidable?
In her Outline of Submissions senior counsel for the wife asserted that there had been a denial of natural justice and, in paragraph 2 of her written submissions, particularised the assertions made on behalf of the wife including that the trial Judge:
· allowed the Divorce Application to proceed without proper notice to the wife;
· denied the wife the right to put material before the Court relevant to the exercise of the trial Judge’s discretion;
· refused an opportunity for the wife to file a Response to the divorce;
· refused the wife the right to consider and properly respond to the application of Ms U that she be appointed the husband’s case guardian;
· refused the wife the right to put before the Court material in response to the application of Ms U; and
· refused the wife the right to put before the Court material relevant to the exercise of discretion (“to the respondent’s application that the time for the Decree Nisi to be made absolute be reduced to nil”).
The thrust of the submissions made on behalf of the wife was that the trial Judge’s asserted failure to afford procedural fairness to her resulted in his Honour giving inappropriate weight to the husband’s wish to die a divorced man and insufficient weight to “the Court’s duty to the child [K]” (Wife’s submissions, p 9, para 49(c)) and “to consider the appellant as a party to the marriage by putting her in a position which may result in the appellant receiving no settlement of property because she has ceased to be a beneficiary of the […] Investment Trust…” (Wife’s submissions, p 9, para 49(e)).
The circumstances which faced the trial Judge were compelling and unusual. On 9 April 2008 the husband’s Application for Divorce had been heard by Federal Magistrate Turner and a divorce order was pronounced on that day. The husband’s application that the divorce order be made final was before the Federal Magistrate on 10 and 11 April 2008. The wife was legally represented on that occasion by her senior counsel, who also appeared for her in the subsequent appeal against the Federal Magistrate’s order, and before the trial Judge.
At the commencement of the hearing before the trial Judge senior counsel for the wife conceded that the divorce application could not be dealt with if the husband died. His Honour referred to Ms U’s affidavit which disclosed the husband’s illness was terminal and he was expected to die within three days.
The wife’s senior counsel complained that the husband’s legal representatives were “effectively seeking an application which they knew they could have made, they chose not to make on 9 April” (Transcript, 16 April 2008, p 3). Senior counsel for the wife then agreed there was nothing further she wished to say in respect of the question of urgency. Essentially the complaint of the wife was that the application should have been filed sooner.
The trial Judge was, pursuant to r 1.12, able to dispense with compliance with any of the rules and in so doing had to have regard to r 1.12(3). That rule provides:
(3) In considering whether to make an order under this rule, the court may consider:
(a) the main purpose of these Rules (see rule 1.04);
(b) the administration of justice;
(c) whether the application has been promptly made;
(d) whether non-compliance was intentional; and
(e) the effect that granting relief would have on each party and parties to other cases in the court.
Senior counsel for the wife conceded before the trial Judge she was familiar with the matter (Transcript, 16 April 2008, p 4) and, as we have earlier set out, told the trial Judge “[m]y instructions are that the parties – that the husband told the wife he wished a decree nisi on 3 April 2007” (Transcript, 16 April 2008, p 5). The trial Judge afforded senior counsel for the wife the opportunity to make submissions in opposition to the appointment of Ms U as case guardian. Those submissions were directed to assertions that there was a conflict of interest between Ms U and the wife. We have already determined there was no appealable error by his Honour in rejecting those submissions. Senior counsel for the wife was afforded the opportunity to make extensive submissions to the trial Judge relevant to the provisions of r 6.9 of the rules, as well as r 6.10(2).
Senior counsel for the wife’s submissions before us essentially focussed on asserted financial detriments which could flow to the wife in the proceedings for property settlement which she had filed under s 79 of the Act if the divorce order was not set aside. Particular emphasis was placed on the assertion that the wife’s change of status as a result of the divorce meant she would no longer be the spouse of the husband, and therefore no longer a beneficiary of the Investment Trust.
Whilst many issues have been raised on behalf of the wife, in our view, the core opposition to the divorce was not focussed on whether the ground for a divorce order was established (see s 48(1) and s 48(3)), including whether separation was established under s 49, but financial considerations which may be relevant in the property proceedings instituted by the wife.
The proceedings before the trial Judge have to be viewed in the context of the history of the divorce proceedings, the husband’s imminent death and the concessions made by the wife’s senior counsel that the husband’s intention to bring the marriage to an end was, on 3 April 2007, clearly made known to the wife, and that the husband had expressed the wish to die a divorced man.
Experienced senior counsel, who had appeared for the wife over the previous weeks in divorce proceedings in the Federal Magistrates Court, the appeal against the Federal Magistrate’s order, and the stay appeal, was thoroughly familiar with the matter. Senior counsel for the wife had the opportunity to put extensive submissions to his Honour in opposition to the appointment or removal of Ms U as case guardian. In the most unusual circumstances of this case, we are satisfied that the procedure followed by the trial Judge, including dispensation of the rules for service, was within the proper exercise of his discretion. We are further satisfied that given the wife’s concession about the husband’s expressed intention on 3 April 2007 the wife was not prejudiced by having no opportunity to file a Response in opposition to the Application for Divorce.
We consider the grounds directed to procedural fairness and/or lack of natural justice have not been established.
Whether the trial Judge properly exercised his discretion in making the alternate declaration under s 55A(1)(b)(ii)?
We have already discussed the arguments agitated by senior counsel for the wife in respect of his Honour’s determination to make the alternate declaration under s 55A(1)(b)(ii).
As explained by the Full Court in Hodgens it is a drastic step to shorten the period in which a divorce order will take effect. But these were extraordinary circumstances which called for such a drastic step.
The trial Judge made an order he was not satisfied appropriate arrangements had been made for K. The practical reality which faced the trial Judge was the imminent death of the husband. Allowing the usual period of one month for the divorce order to take effect would have rendered the application for divorce nugatory. There was no practical arrangement which his Honour could have put into place for K’s benefit if he allowed the usual time for the divorce order to become final. The alternate declaration was available to him, and adopted in the exercise of his discretion. No matter was overlooked by the trial Judge nor did his discretion miscarry by giving inappropriate weight to any factor favouring the case guardian. This challenge therefore has no merit.
Conclusion
As we indicated at the commencement of these reasons, we agree with the orders proposed by May J, including the order that the wife pay the costs of the appeal.
I certify that the preceding two hundred and thirty-three (233) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 14 July 2009
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