W and L

[2007] FMCAfam 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & L [2007] FMCAfam 996

FAMILY LAW – Application to rescind divorce order – whether parties ‘reconciled’ – Respondent serving period of imprisonment at all relevant times of relationship and marriage – relevant evidence of reconciliation - application granted.

Family Law Act 1975, s.57

Applicant: S J W

Respondent: D A L

File number: MLC 8988 of 2007

Judgment of: McInnis FM

Hearing date: 20 November 2007

Delivered at: Melbourne

Delivered on: 20 November 2007

REPRESENTATION

Applicant: In person (assisted by Ms Billeam Duty Solicitor)

Respondent: No appearance

ORDERS

The divorce order made by the court on 23 October 2007 be rescinded pursuant to s.57 of the Family Law Act 1975.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 8988 of 2007

S J W

Applicant

And

D A L

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The application before the court is an application by S J W, also known by her birth name as J S W, who seeks effectively to rescind a divorce order of her marriage on the ground that she has reconciled with the Respondent, D A L. The application is made pursuant to s.57 of the Family Law Act 1975 (the Family Law Act) as follows:-

   “57.  Despite anything contained in this Part, if a divorce order has been made in relation to a marriage, the court may, at any time before the order takes effect, upon the application of the parties to the marriage, rescind the divorce order on the ground that the parties have become reconciled.”

2. Fortunately, the Applicant, who has in the past attended a special school and has indicated that she has a difficulty with reading and writing, has this day been assisted in her application by the duty solicitor who has had an opportunity to obtain instructions.  The court has had the advantage of hearing the evidence of the Applicant.  When the matter was called on this day, I was concerned that oral evidence should be provided from the Applicant before I was prepared to consider the application further.  I shall return to the oral evidence presently. 

3. By way of background, it is noted that the parties were married on 14 July 2000.  The circumstances of the marriage are somewhat unusual.  They were married at the Ararat prison where the Respondent was an inmate serving a period of imprisonment for a significant offence described as a ‘sexual assault offence’.  It appears from the affidavit material that the Respondent is serving an eight-year term of imprisonment, which indicates to this court the serious and significant nature of that offence for which imprisonment was imposed. 

4. The background includes a reference to separation occurring on or about 1 November 2004.  On 10 August 2007, the Applicant filed an application for divorce.  There is an error in the application which had been revealed in the affidavit by the Applicant; namely, that the answer in question 16(a) in part D of the application of "Yes" should in fact have been ticked "No."

5. To understand the nature of the relationship, it is relevant to note that in the Applicant's affidavit sworn 20 September 2007, after referring to her marriage to the Respondent, the Applicant reveals that she had first met him in what she describes as ‘early 2000’.  She was a friend of her husband's sister, who I take it would regularly visit her brother, who is the Respondent to these proceedings.  The Applicant deposes in her affidavit that she started to visit him “… on my own on or around April 2000 the relationship blossomed.  D then proposed to me and we decided to get married.” (sic)

6. The Applicant then deposes that she “continued to visit Dean in prison after they were married for a period of approximately 2 years”.  She deposes that after that she stopped seeing him because they had “an argument and he became verbally abusive towards me on or around July 2002". (sic)  In her affidavit and in evidence before me today, the Applicant confirmed that she continued to live in A for a short period but then moved to Melbourne.  She indicates she moved as a result of the illness of her mother, though I gained the impression that she did not fully explain that to the Respondent.  However, in her affidavit she deposes that:

   “5.    … I consider that I had separated from D on or around July 2002 as this was the last time that I have had anything to do with him.”

7. In the same affidavit the Applicant then deposes as follows:

   “8.    … My husband is currently in …. serving a term of eight years for a sexual assault offence.  Since my separation, I have never lived with my husband in any capacity, as deposed to in paragraph 7, nor do I intend to resume any relations with him.  I do not want anything to do with my husband, that is why I have lodged an application for Divorce.  I have had no contact with my husband since the separation.  I do not want my husband to know my whereabouts as I am fearful of him.”

8. In the same affidavit, rather than refer to her mother's illness, the Applicant specifically deposes that she -

   “9.    … moved from Arrarat to get away from my husband and avoid any possibility of him finding where I live.  I am very fearful of my husband and want nothing to do with him.”

9. It should be noted when considering the chronology of events that the court became aware that on the file a document entitled “Notice of Discontinuance” had apparently been filed on 24 August 2007.  I note in passing that that document appears to have been filed by a firm of solicitors or at least a Community Legal Centre purportedly acting for and on behalf of the Applicant. 

10. A number of observations need to be made about the Notice of Discontinuance.  The first and most significant is that the Applicant in her evidence before this court has denied any knowledge of the document and denied giving instructions to solicitors in or about August 2007 to file the document.  The second observation to be made is that it would appear clear that the document, although stamped "Filed on 24 August 2007," bears a folio number 7 in the court file which postdates other material, and it would appear that the notice itself was not brought to the attention of the court which granted the divorce order on 23 October 2007.

11. Having regard to the evidence from the Applicant, not a great deal now turns upon the force and effect of the Notice of Discontinuance, and in my view it is not relevant in this application.  I am strengthened in that conclusion by the fact that the court file reveals that after 24 August 2007, that is, the date of filing of the Notice of Discontinuance, it appears that the Applicant has forwarded to the Respondent the divorce papers.  So much is clear from the affidavit of service of the Applicant which appears on the court file and which appears to reveal that the application for divorce and other documents were posted by the Applicant to the Respondent on or about 3 September 2007. 

12. Attached to the affidavit of service is an acknowledgment of service where the Respondent, whose signature has been verified, claims that the documents were served on 6 September 2007.  The acknowledgment of service bears the date 12 September 2007.  Hence it appears clear to me that even though a Notice of Discontinuance was apparently filed on or about 24 August 2007, the conduct of the Applicant, combined with her evidence before me today, demonstrates to my satisfaction that at least during the month of August, the Applicant had no intention to discontinue the proceedings, and hence it is appropriate that I disregard the Notice of Discontinuance.

13. What is relevant, however, is that whilst the Applicant may not have then formed the intention to discontinue the proceedings, it appears that she has formed the view now that both she and her husband have reconciled for the purposes of s.57 of the Family Law Act. The Applicant indicates, and it is clear from the file, that the divorce order was granted by a Registrar of the court on 23 October 2007. This matter has become urgent clearly as a result of the prospect of the divorce order taking effect in a matter of days. Indeed, on my calculations the divorce order will take effect on 24 November 2007.

14. The Applicant has given evidence that on the day that the divorce order was granted, her husband, by means of a gaol order, attended court.  The divorce order having been made, the parties thereafter had some contact.  They spoke briefly.  Apparently, according to the Applicant, on or about that date there was a telephone conversation between her and the Respondent which lasted for approximately two hours.  They then exchanged between them what the Applicant has described as an expression of love for each other. 

15. The parties then managed to meet face-to-face during two periods of day leave from prison by the Respondent.  As I understand it, one meeting occurred sometime between the end of October and the first two weeks in November, in Geelong.  A second visit occurred in or about November 2007 and, it would appear from the evidence, that on the day that the Respondent had sworn an affidavit in support of the current application; namely, 12 November 2007. 

16. It is relevant at this point to refer to the affidavits in support, despite the fact that both affidavits are brief, handwritten and, I conclude, prepared without the assistance of legal advice.  It is also relevant to note, before referring to the contents of each affidavit, that the applicant has already indicated her own difficulty with reading and writing and has given evidence that her husband likewise has some difficulty reading and writing.  In any event, in her affidavit sworn 5 November 2007, the Applicant relevantly deposes as follows:

    “… MY HUSBAND AND MYSELF HAVE DECIDED THAT WE DO NOT WANT THE DIVORCE BECAUSE OF OUR LOVE FOR EACH OTHER AND Our STRONG FEELING for EACH OTHER.” (Sic)

17. In the affidavit of the Respondent, which I have indicated was sworn 12 November 2007 at Ballarat, he relevantly deposes the following: 

    “That The order Be Dismissed and That Both Parties have Desided To ReConcile and that We Poth Relized that we Both still love one other.” (Sic)

18. It will not be surprising at all in the circumstances that the court decided to hear oral evidence from the Applicant, given the brevity of the affidavits and what clearly is the somewhat unusual nature of a courtship leading to marriage and the circumstances deposed to in the earlier affidavit in support of the application for divorce.  I was concerned, upon reading the material, that the views expressed by the Applicant may not be views freely and genuinely held by her but rather, having heard evidence that the husband is due for a meeting of the Parole Board on 22 November 2007, that there may be some degree of undue influence exercised by the Respondent over the Applicant, who clearly has limited intellectual ability. 

19. Nevertheless, the Applicant, when directly confronted with the prospect that the Respondent may be seeking to take advantage of her, expressly denied that that was the case.  She appeared, in answer to questions from the duty solicitor, to recognise that at the very least it may be a possibility.  I conclude on the evidence before me, however, that the Applicant genuinely believes that the decision she is making in relation to this application is a decision she has made of her own free will.  I further am prepared to accept, in the absence of direct evidence to the contrary, that her will has not been overborne or that her decision could be described as a decision which is not voluntary or a decision which has otherwise been imposed upon her by the Respondent.  Only time will tell whether that assessment is correct. 

20. For present purposes, however, on the evidence before me, I am prepared to accept that the parties, through both the affidavit and oral evidence of the Applicant and the affidavit evidence of the Respondent, have provided sufficient evidence of a kind which would persuade me that it is appropriate to make an order pursuant to s.57 of the Family Law Act. That section does not provide any further assistance as to what may or may not constitute reconciliation for the purpose of the section.

21. Given the unusual nature of the relationship and the circumstances of the Respondent, currently serving a long prison sentence, it would hardly be likely that reconciliation would take the form that it might take in other circumstances.  In this case the Applicant has given clear evidence of her intention to reconcile, has indicated her ongoing love for the Respondent and a desire on their part to continue the relationship of man and wife. 

22. Where parties are married, as in this case, in prison, it would be artificial and unrealistic in my view to superimpose on that relationship what might otherwise be the ‘norm’ of reconciliation which would be found in other circumstances. The Act certainly does not provide any guidance as to the appropriate test I should apply to the concept of reconciliation in an application of this kind. Having regard to the evidence, I am satisfied that for the purpose of s.57, there is sufficient to persuade the court that the parties have indeed reconciled.

23. Having made that finding, it is appropriate that I make the appropriate orders in relation to the divorce order which was made on 23 October 2007 namely that the divorce order of 23 October 2007 be rescinded pursuant to s.57 of the Family Law Act.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  20 November 2007