T & C - [2002] FMCAfam 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & C

[2002] FMCAfam 94

FAMILY LAW – Dissolution of marriage – decree nisi granted – based on incorrect affidavit of service – correct service documents filed after decree nisi absolute – respondent properly served – request to withdraw application not before court when decree granted – request to withdraw on mistaken belief that service not effected – court’s discretion – irregularity not sufficient to set aside decree nisi.

Miller v Miller (1983) FLC 91,328

Applicant:

J T

Respondent:

C C

File No:

ZM 8336 of 2001

Delivered on:

5 April 2002

Delivered at:

Melbourne

Hearing Date:

5 April 2002

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr P Carlei

Solicitors for the Applicant:

Russo Pellicano Carlei

Respondent

Ms C C in person

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 8336 of 2001

J T

Applicant

And

C C

Respondent

REASONS FOR JUDGMENT

This mention hearing arises from an application for divorce which was filed by J T with the Federal Magistrates Court of Australia on

9 October 2001. On the application for divorce the hearing date was set for 29 November 2001 at 10.30 am. The application related to a marriage between the applicant and the respondent, C C, who were married, according to the marriage certificate, on 29 May 1999 and who separated in May 2000. There are no children of the marriage.
When the matter was before the court on 29 November 2001 there was no appearance by either party. In the circumstances where there are no children of course the matter could have proceeded on that day despite there being no appearance. However, on that day, when the matter was before the Sessional Registrar Harold, it was found that there were no service documents which would indicate that the application for divorce and associated papers had not been served upon the respondent. Accordingly, the matter was adjourned until 31 January 2002.
A letter was forwarded to the applicant's solicitors by the court on

3 December 2001 indicating that the application had been listed on
29 November 2001 and the divorce was not granted and the hearing was adjourned by the Sessional Registrar because there was no proof of service on the court file.
When the matter was then before the Sessional Registrar again on

31 January 2002, it appeared on that day that there was a document that had been placed on the court file in error. It was an affidavit by the applicant for service by post in application number ZM8395 of 2001. It was clear that that affidavit of service did not relate to this current application, which is application ZM8336.
The Sessional Registrar then proceeded to be satisfied that there had been appropriate service and that service had been proved. He did so erroneously on the basis of the misfiled affidavit of service to which I have referred. A decree nisi was granted. That decree nisi became absolute on 1 March 2002 and both parties were notified.
After 31 January 2002 there was in fact a further letter forwarded by the applicant's solicitors dated 19 February 2002 which referred to this matter and said:
“We advise that our client does not wish to proceed with his Application and he does not know the whereabouts of the Respondent Wife. As previously advised, all attempts to contact her have been unsuccessful.
Accordingly, in light of the above, our client requests the matter be discontinued or struck out and our client requests that the original Marriage Certificate, which has been filed with the Court be returned to our office.”
It would appear that from that date certain inquiries were made or at least investigations revealed that firstly there had been an error in the misfiling of the affidavit of service to which I have referred and the decree nisi granted in error. For reasons which I do not fully understand, that letter dated 19 February 2002 has a date stamp on it of 2 April 2002 which would mean that its receipt postdated the date when the decree nisi became absolute.
The problems on this file do not end there. It would then appear, although a copy of the original is not on file, that prior to February 2002 other correspondence had been forwarded by the applicant's solicitors to the court. The court has had provided to it by facsimile transmission dated 8 March 2002 the following copy item of correspondence namely a letter dated 6 December 2002 which I note has a ‘Federal Magistrates Service’ date stamp of 7 December 2001.
The letter dated 6 December 2001 states:
“We advise that our client has instructed us that he no longer wishes to proceed with his application for a divorce and has requested that the said application which has been adjourned to the 31^st January 2002 be withdrawn.”
I have already referred to the contents of the letter dated 19 February 2001 which bears the receipt dated 2 April 2002.
It is clear at least then up until 19 February 2002, that correspondence had been forwarded to the court indicating a desire on the part of the applicant to withdraw and that desire, it is clear from the correspondence and from submissions now made to me by Mr Carlei who appears by audiolink for the applicant, appears to be based solely upon what was perceived mistakenly to be the view that the respondent had not been served with the appropriate documents.
What then transpired is that after the decree absolute had been forwarded to the parties, further searches of the files I am told – and I accept – by Mr Carlei, had been made in his office and documents which were usually placed on the inside of the file in relation to this matter had apparently not found their way to that part of the file. They were however discovered and those documents included an affidavit of service sworn by Scott Clifford Babbington on 5 November 2001 and an acknowledgment of service signed by the respondent dated 26 October 2001. I granted leave to file these documents in court.
When the matter was listed before me for mention today the respondent, C C, gave evidence on oath and when shown the acknowledgment of service agreed that it was her signature and that the document was correctly dated. She further agreed that she had received the documents referred to in that acknowledgment of service and agreed that she consents to and did consent to the decree nisi being granted, that is, she has no objection to it being granted.
I was further advised and accept that Mr Carlei has indicated that the only reason his client gave him instructions to withdraw was based on the erroneous belief that the documents could not be served upon the respondent. Hence, there appears to be what might be described in theatrical terms as “a comedy of errors” but the errors are not errors which can be simply overlooked by a court when considering a decree nisi for a dissolution of marriage which alters significantly the status of the parties. Mercifully both parties have not remarried during the course of what I could describe as the debacle to which I have referred. I do not in any way wish to criticise any person involved in this proceeding but it is clear that there have been a series of errors which have led to this court requiring, quite properly, the parties to attend for a hearing by way of mention.
Had I been satisfied that the irregularity in the granting of the decree nisi was such as to require me to the exercise of the discretion which I undoubtedly have to set aside the decree nisi, then I would have done so. In doing so I would have applied the law as set out in the unreported decision delivered by His Honour Kaye J on 21 July 1995 in the matter of Cross v Cross, application number 2014 of 1994, when in deciding a matter about discretion the court has to set aside a decree nisi, His Honour correctly referred to the leading authority in the marriage of Miller v Miller (1983) FLC 91,328. I do not need to say anything more than as a result of those decisions the court clearly has a discretion, particularly in circumstances where there has been a mistaken belief as to service, to find that there is an irregularity and notwithstanding the fact that the decree nisi has become absolute, to set aside that decree.
In the circumstances of this case however, I am satisfied, having heard the evidence of the respondent and having received the helpful submissions for and on behalf of the applicant that both parties indeed have at all times consented to the decree nisi being granted. I am further satisfied that although not the subject of then available proof to the Sessional Registrar, that service had in truth and in fact been effected of the relevant documents and that had occurred quite properly by way of personal service effected on the respondent on 26 October 2001. It is appropriate therefore that I make no further order in this matter and that the decree nisi, which became absolute on 1 March 2002, should stand.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 5 April 2002