West & West
[2024] FedCFamC2F 1333
•1 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
West & West [2024] FedCFamC2F 1333
File number(s): DGC 817 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 1 October 2024 Catchwords: FAMILY LAW – Divorce – application to declare divorce void – no service of divorce application – the limited circumstances where a divorce order that has become absolute may be void or voidable – application dismissed Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 48, 113
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r. 2.33, 2.42, 2.43, 2.44
Cases cited: Fox v Percy [2003] HCA 22
Miller & Miller [1983] FamCA 26
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 8 August 2024 Place: Dandenong Counsel for the Applicant: Ms Teicher Solicitor for the Applicant: Jessy Bhullar Lawyers Counsel for the Respondent: Mr McIntyre Solicitor for the Respondent: FCL Lawyers ORDERS
DGC 817 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WEST
Applicant
AND: MS WEST
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
1 OCTOBER 2024
Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 October 2024
THE COURT ORDERS THAT:
1.The husband’s applications filed 14 March 2023 and 5 April 2024 (insofar as they relate to the divorce) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This matter came before me as an application by the husband seeking to declare a divorce order as void.
A divorce order was made on 28 October 2020. The applicant husband says he was never served with the wife’s application for divorce and was unaware that the divorce order was made. Furthermore, he says the parties had not been separated for a period of 12 months when the wife filed her divorce application.
BRIEF BACKGROUND
The parties were married in City B, Country C in 2005.
They have three children together, Ms D who is now 18 years old, X who is 17 years old, and Y who is almost 15 years old.
The wife says the parties separated in 2012 but lived under the one roof between 2013 and 2016.
The husband says they separated in 2020.
The wife filed an application for divorce on 14 August 2020.
The matter came before Registrar Riddiford on 28 October 2020 who made the divorce order.
DOCUMENTS RELIED UPON
The applicant husband sought to rely on the following:
·his application for final orders filed 5 April 2024;
·his affidavit filed 5 April 2024;
·his trial affidavit filed 17 July 2024; and
·the affidavit of Mr E, friend and manager of the applicant’s business, filed 17 July 2024.
The respondent wife relied upon the following:
·her response to final orders filed 3 May 2024;
·her affidavit filed 11 July 2024;
·her trial affidavit filed 25 July 2024; and
·the affidavit of Ms D, adult daughter of the parties, affirmed 11 July 2024.
In addition, the following five exhibits were tendered in this matter:
·A1 – Letter from F School dated 9 October 2017;
·R1 – Affidavit of Service affirmed by the wife 26 October 2020;
·R2 – Email from the wife in 2020 purporting to serve the documents to the husband;
·R3 – Screenshot of the husband on a Country C matrimonial dating site; and
·R4 – Letter from G Law Firm addressed to the husband dated 11 July 2022.
THE EVIDENCE
In terms of evidence, I have taken into account the contents of each of the affidavits filed by the parties save for any parts which were determined to be objectionable. However, I have not had regard to the contents of any subpoenaed material, information provided by external agencies or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits. As the Court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
In determining these proceedings, I have had regard to the evidence l to the extent that it was relevant to each parties’ case, although it is not possible to include every aspect of the parties’ evidence in these reasons for judgment. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The husband’s credibility
This matter to a large degree turns on the credit of the parties. Unfortunately, the husband’s evidence was inconsistent, excluded key events, which were relevant to these proceedings and was otherwise inherently unbelievable. In particular the husband denies the parties separated at any time prior to 2020 but fails to mention in his evidence that there were parenting proceedings before this court in 2017 and that final parenting orders were made by consent on 2 February 2018. I note in those proceedings initiated in 2017, the wife states the parties were separated and in the husband’s affidavit filed in response, he does not deny that. In addition, in the final parenting orders the husband consented to attend a post-separation parenting course. Nor does the husband mention that the wife had approached him to file a joint application for divorce in 2019 to which he said under cross-examination, that he had “no objection”.
On the other hand, the wife for the most part gave evidence in a straightforward and credible manner. For that reason, where the parties’ evidence differs and is not otherwise corroborated, I prefer the evidence of the wife. Having said that, as expounded in Fox v Percy [2003] HCA 22 at [31] findings will be made “as far as possible, on the basis of contemporary materials, objectively established facts, and the apparent logic of events.”
The only other witness called was the parties’ now adult daughter, Ms D. Ms D prepared an affidavit in support of her mother which was not filed separately but was annexed to the wife’s affidavit. Nonetheless, she was permitted to rely on that as her evidence in chief.
It was most unfortunate that Ms D had to attend at all, but given her evidence went to the heart of the issue, it was unavoidable. Although Ms D has been living with her mother and appears to have a strained relationship with her father, she appeared to be a credible witness, and her evidence not overly impacted by the difficult situation in which she had been placed. Although Ms D acknowledged preparing her affidavit with her mother, I accept her evidence that the contents were from her own knowledge.
THE LAW
The power of the court to make a declaration as to a matrimonial cause is set out in section 113 of the Family Law Act 1975 (Cth) (“the Act”)
“Matrimonial cause” is defined in section 4 of the Act inter alia as:
(a)proceedings between the parties to a marriage, or by the parties to a marriage, for
(i)a divorce order in relation to the marriage; or
(ii)a decree of nullity of marriage; or
(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
(emphasis added)
VOID OR VOIDABLE?
The full court in Miller & Miller [1983] FamCA 26 (“Miller”) set out the limited circumstances where a divorce order that has become absolute may be void or voidable:
…The first would arise when there is a fundamental flaw in the exercise of jurisdiction, a flaw which is fatal to the validity to 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 other and more common situations arise where 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 might 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 or altering a status established by the decree, and weighing these against the results flowing from a miscarriage of justice.[1]
[1] Miller & Miller [1983] FamCA 26 at p. 2, 3.
Pursuant to section 48 of the Act:
(1)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(emphasis added)
I conclude from the authorities that if I find that the parties were not separated for 12 months prior to the filing of the application for divorce pursuant to section 48 of the Act, that this would be a fundamental flaw, and the decree absolute would be void.
However pursuant to Miller, failure to serve may render the decision voidable subject to the discretion of the court taking into account whether there would be a miscarriage of justice.
Date of separation
Although the husband asserts the divorce is void because the parties were not separated when the wife filed her divorce application in 2020, he has various dates of separation throughout these and the previous proceedings including 2006, May 2016, and January 2020.
The wife says the parties separated in 2012, when she left the home in Town H and moved to Suburb J. The wife says she moved back into the Town H home in 2013 with the children and remained there until 2016 but only for the children’s sake, and that the parties were separated under the one roof that entire time.
However, it is difficult on the wife’s evidence to see any significant difference between the way the parties conducted their lives before 2012 when she first moved out and when she moved back into the home in 2013. The parties continued to share their finances and although she complains that the husband was financially controlling, on her evidence, this appears to have always been the case. The only possible exception is that they slept in separate rooms and were no longer intimate, however, I note the wife asserts that the husband was having other intimate relationships as far back as 2006. Although the wife says she was motivated to move back for the children this motivation does not mean that the parties did not thereafter resume a genuine de facto relationship.
Doing the best I can on the limited evidence before me, I find that the parties separated in February 2017.
I am not persuaded that just because the wife attended the husband’s father’s funeral in 2020 and may have stayed in the home of the extended family in Country C at that time, or that they continued to attend social events with the children after 2017, that indicates they were still in a relationship.
Service
The Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) in relation to service for divorce are as follows:
2.42 Service of application
An Application for Divorce must be served on the respondent by:
(a) personal service in accordance with rule 2.35; or
(b) sending it by pre-paid post in a sealed envelope addressed to the respondent at the respondent’s last known address.
2.43 Additional requirements for service by post
A person serving an Application for Divorce by post must include with the document:
(a) a form of acknowledgment of service in accordance with the approved form; and
(b) an envelope that:
(i) is addressed to the address for service of the person on whose behalf the Application for Divorce is served; and
(ii) if the Application for Divorce is to be sent to an address in Australia—bears the correct postage for the return by post of the acknowledgement of service.
The wife’s evidence is that she endeavoured to serve the husband in three ways, by post, by email and in person.
The wife’s evidence is that she completed an affidavit of service by post (“the affidavit of service”) which she affirmed in front of a justice of the peace in October 2020. Whilst she could not specifically recall filing that document (and no such document is currently on the court file) she said she “followed all of the instructions” on the court’s website. The wife produced an unsealed affidavit of service which became exhibit R1 in this matter (“the affidavit of service.”) It was not put to the wife that she created this document at another time or that it was in anyway fraudulent. I therefore accept that it was affirmed in October 2020.
In the affidavit of service, the wife says:
I affirm that I tried my best to knowledge the documents to [Mr West]. I sent him via all modes. I sent him electronic copy on dated [09/2020] and by hand as well beside by post. However I can’t compel him to acknowledge the documents.
(Errors as per original)
The husband says he never received the posted documents nor the emails, and that he was never given the documents by hand.
Service by post
The wife’s evidence is she served the husband with her application for divorce by registered post in late 2020. Her evidence is that pursuant to rule 2.43 she included with her application an acknowledgment of service and an envelope complying with rule 2.43(b). The wife also says she included “the marriage, families & separation brochure.”
Although the wife was not sure which post-office she mailed the documents from I accept her evidence that she did in fact mail them. Counsel for the husband argued that service had not been affected because it was mandatory that if documents had been sent by post that the acknowledgement of service was completed, and in this matter, it was not. I do not accept that this is necessarily the case, if the court can be otherwise satisfied as to service. I note further that rule 2.44 of the rules says that the person may acknowledge service, not that they must.
Nonetheless, I note the documents were mailed to the husband’s work address and because it was 2020 and there were ongoing lockdowns in Victoria due to the COVID pandemic, I accept the husband may not have received the documents mailed to that address prior to the divorce order being made.
Service by email
The wife’s evidence is that she also sent the required documents to the husband’s email in late 2020 at his regular email address. The husband says he did not receive this email not withstanding he has since checked his spam and junk folders. It is also curious that on his evidence he did not receive the other significant email from the wife’s solicitor in mid-2022, referencing the divorce order in 2020 and proposing property negotiations.
Service in person
The wife says that she also tried to physically serve the husband with the documents in late 2020 when the husband attended her home to pick up the children pursuant to the final parenting orders. Her evidence is that when he refused to accept the documents, their daughter, Ms D, also attempted to serve them.
Ms D confirmed under cross-examination that in late 2020, the husband attended her home and that her mother gave her the “divorce documents” and asked her to hand them to her father but he “refused to accept them.” Ms D says she then placed them into a plastic bag the husband was carrying. Ms D conceded she did not actually look at the documents, but she understood what they were from discussions between her parents at the time.
The husband denied this service by Ms D ever happened. For reasons already stated I prefer the evidence of the wife and Ms D to that of the husband.
It was argued that the daughter, being a minor at the time of service, was unable to serve documents to the husband. Although there would be strong policy grounds for this, I am unable to locate a rule or authority that provides for same.
Nonetheless, the court, according to the rules, has discretion pursuant to rule 2.33 in relation to service. Although the court must be cautious when accepting service where documents are placed in front of a person, I am satisfied the husband would likely have located the documents in the plastic bag. This is consistent with his own evidence that he attended the wife’s home in in or about late 2020 and throwing a ring either at or towards the wife and saying, “this is fake like you”.
I find that service was effected in or about late 2020.
As the parties were separated for twelve months prior to the wife filing her application for divorce and because the husband was served with the application, the divorce order is neither void nor voidable. Accordingly, the husband’s application will be dismissed. As the parties remain divorced the husband’s application for divorce will also be dismissed.
Therefore, for all the aforementioned reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 1 October 2024
0
4
3