Harwood and Jade

[2009] FamCA 912

FAMILY COURT OF AUSTRALIA

HARWOOD & JADE [2009] FamCA 912

FAMILY LAW – MARRIAGE – NULLITY – Application to set aside divorce and for nullity decree

Family Law Act 1975 (Cth) ss 4, 44, 113

Brennan v Brennan (1953) CLR 129
Pavey and Pavey (1976) FLC 90-051
In the Marriage of S (1980) FLC 90-820
Sutherland Shire Council v Leyendekkers and Anor (1970) 91 W.N. NSW 250
Ibeneweka v Egbuna [1964] 1 WLR 219
C v C (Nullity) (1998) FLC 92-824

APPLICANT: Mr Harwood

RESPONDENT: Ms Jade

FILE NUMBER: SYC 8037 Of 2007

DATE DELIVERED: 22 September 2009

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 4 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr G. Johnston
SOLICITOR FOR THE APPLICANT:	M.G. O’Callaghan & Associates

COUNSEL FOR THE RESPONDENT:	Mr J. Dupree
SOLICITOR FOR THE RESPONDENT:	Russo & Partners

Orders

1. The Application for Final Orders filed on behalf of the husband on 1 April 2008, as amended by leave, is dismissed

IT IS NOTED that publication of this judgment under the pseudonym Harwood & Jade is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8037 OF 2007

MR HARWOOD

Applicant

And

MS JADE

Respondent

REASONS FOR JUDGMENT

1. The parties were married in April 2004 and divorced by the Federal Magistrates Court with final effect from 11 August 2007. The husband seeks a declaration that the divorce is invalid and if successful, a decree of nullity in relation to the marriage. The wife opposes that relief.

Applications

1. In his Application for Final Orders filed 1 April 2008 the husband sought:

   1.A declaration of nullity with respect to the marriage between the parties on […] April 2004 pursuant to Section 51 of the Family Law Act, 1975.

   2.An Order that the marriage between the parties on […] April, 2004 is void pursuant to Section 23B of the Marriage Act, 1961.

   3.An Order rescinding the divorce between the parties.

   4.Such other Orders as the Court deems fit.

2. By consent leave was granted at the commencement of the hearing before me, as follows:

   …

   6.That leave be granted to the husband to Amend his Application filed 1 April 2008 to seek a declaration in the following terms:

   “Declare that the divorce decree made in the Federal Magistrates Court on 10 July 2007 is invalid.”

   …..

3. The wife opposes both applications.

Affidavits

1. The husband relied on the following affidavits:

   Affidavit of the husband filed 1 April 2009       .

   Further Affidavit of husband filed 3 July 2008 (paragraphs 1 to 8, 12, 16, 25, 26, 27, 31, 33)

   Affidavit of Mr A Harwood filed 3 July 2008    

   Affidavit of Mr H filed 7 May 2009        

2. The wife gave her evidence orally.

The proceedings

1. On 1 April 2008 the husband filed an Application for Final Orders seeking to set aside a divorce and the granting of a nullity decree. The proceedings before this Court had originally commenced with the wife’s application for property settlement orders filed 20 November 2007.

2. There were many procedural Court events reflecting the struggle to prepare the proceedings for property settlement and principal relief for hearing. Relevantly, the matter came before Judicial Registrar Johnston on 5 May 2008 and the following orders were made:

   1.That orders be made in accordance with the handwritten Minute of Orders filed in Court today, signed by Judicial Registrar Johnston and placed with the Court papers.

   2.It is noted that the substantive property proceedings are listed for hearing before Judicial Registrar Johnston for two (2) days commencing 10:00 am on 30 July 2008.

   3.That this matter be listed for readiness check before Judicial Registrar Johnston at 11:00 am on 11 June 2008.

3. The matter came before Judicial Registrar Johnston on 11 June 2008 and the following orders were made:

   1.That the Nullity proceedings are consolidated with the substantive property proceedings to be heard together with these proceedings.

   2.That the husband file and serve all affidavits in support of his Nullity application no later than 2 July 2008.

   3.That any Answer or Response and affidavits in response be filed and served no later than 24 July 2008.

   4.That all subpoenas be adjourned to the Registrar’s Subpoena List at 12:30 pm on 25 June 2008.

4. The matter came before me on 23 July 2008 and the following orders were made:

   1.The hearing to commence on 30 July 2008 before Judicial Registrar Johnston is vacated.

   2.The substantive proceedings are stood over generally with liberty to restore those proceedings to the list on 7 days’ notice to the Court and to the other party for the purposes of approaching for a hearing date.

   3.By consent the wife pay the costs of the husband thrown away by the vacation of the hearing dates as agreed or assessed by a taxing officer and, subject to the process of taxation or assessment those costs to be paid not later than 7 days after final effect is given to any settlement of property between the parties.

5. The matter came before me on 14 October 2008 and the following orders were made:

   1.That the wife file and serve any Response to the Application for Nullity within seven days from today’s date.

   2.That the husband file and serve all affidavit evidence on which he seeks to rely within 21 days from today’s date.

   3.That the wife file and serve all affidavits on which she seeks to rely with a further 21 days thereafter.

   4.That the matter be fixed by the Registry for hearing before Judicial Registrar Loughnan, estimated hearing time 1.5 to 2 days.

   5.In the event that either party becomes aware of any event that would cause the proceedings not to continue to completion at a hearing allocated they are to restore the matter to the list immediately.

6. The matter came before me on 9 December 2008 and the following orders were made:

   1.That the proceedings be adjourned to chambers for allocation of hearing dates and the Court noted that 2 and 3 April 2009 would be suitable dates to both parties.

   2.That the parties lodge with the Court a Joint Balance Sheet and agreed chronology within seven days from today’s date.

   3.That the parties file all further valuation evidence and updated Financial Statements if necessary, not later than 15 March 2009.

   4.That the parties provide to Judicial Registrar Loughnan’s chambers and to each other a list of objections in relation to affidavit evidence, case outline documents and a list of factual matters about which findings will be required in the trial not later than 3 days before the commencement of the trial.

   5.That the parties restore the proceedings to the list on 48 hours’ notice to the Court and to each other in the event that either party becomes aware of any event or matter which would prevent the matter being heard to conclusion on the allocated dates.

   6.That the applicant pay the hearing fee within 7 days from today’s date.

7. The matter came before me on 18 February 2009 and the following orders were made:

   1.That the husband’s Application for Nullity filed 1 April 2008 be listed for hearing on 7 May 2009 before Judicial Registrar Loughnan.

   2.That any further affidavits on which the wife seeks to rely be filed and served within 21 days from today’s date.  Unless the parties consent, neither party is to rely on any further affidavit filed outside that direction.

   3.That the parties restore the matter to the list on giving 24 hours’ notice to the Court and to Judicial Registrar Loughnan’s associate in the event either party believes the matter could not be heard to conclusion on the allocated hearing date.

8. The matter came before me on 7 May 2009 and the following orders were made:

   1.These proceedings are listed before Judicial Registrar Loughnan commencing 10:00 am on 4 August 2009, estimated hearing time 1.5 days.

   2.Leave to the parties to file such further affidavits as they may be advised provided that all affidavits are filed and served not later than 14 days prior to the commencement of the trial.

   3.It is noted that the parties will not be permitted to rely on any further affidavits filed outside that time frame without leave of the Court or the consent of the other party.

   4.Leave to the wife to issue such subpoena as she may be advised to the Anglican Church or similar authority in relation to a notice of intention to marry

   5.Leave to the husband to issue a subpoena to the New South Wales Police.

   6.It is further noted that a request may be made to the Registry Manager to facilitate the production by the Local Court at Gosford of transcript evidence in relation to proceedings under the Crimes Act involving the wife.

   7.These proceedings are adjourned not part-heard to the commencement of the trial.

The hearing

1. The matter was listed for hearing for a day plus, commencing on 4 August 2009. At the commencement of the hearing I was asked to stand the matter in the list in order that the parties’ counsel could confer about the matter. I was told there were substantive discussions and some procedural matters to attend to. I was told at about 12 noon that the hearing could commence on the basis of an agreement that had been reduced to writing. Counsel had different understandings of their agreement and I was told that there was no longer an agreement.

2. Learned counsel for the husband then sought leave to amend his client’s application by adding a prayer for a declaration that a divorce granted in the Federal Magistrates Court was invalid. Learned counsel for the wife opposed that leave and sought to proceed with the Nullity application. I expressed the view that the nullity application must fail unless the divorce was set aside and it would be a waste of my time dealing with it, given the right to a fresh hearing on review from any decision I make. The matter was stood in the list while the wife obtained advice as to whether she could fairly meet the amended application. I was told that parties then agreed on property settlement. I made orders for property settlement in terms of their agreement and gave brief reasons for doing so.

3. In accordance with the parties’ further agreement, I heard the applications for declaration of invalidity of divorce and for a decree of nullity, on the written evidence of the husband, tendered documents and brief oral evidence of the wife. Neither party sought to cross-examine. Submissions were made and at about 3.30pm on 4 August 2009, judgment was reserved.

Short History

1. The husband is 33 years of age and the wife is 42. They went through a marriage ceremony in April 2004, separated on 31 January 2006 and were divorced with effect from 11 August 2007.

Children

1. The parties have no children. The wife has two children from a prior relationship.

Background Facts

1. The process of objections had a disastrous effect on the relevant narrative. The following is a summary of what survived.

2. The parties met at a venue on 15 March 2003. The venue was owned by the husband and his brother.

3. The husband was a single, 27 year old. The wife was a 35 year old, divorcee with 2 adolescent children.

4. The husband says that from the beginning of their relationship, the wife was very controlling of his behaviour. For example she removed his mobile phone so that he could not contact others or receive and check messages.

5. The parties became engaged to be married on 28 May 2003.

6. The husband visited his friend Mr S on or about 7 July 2003 with his possessions in the back of his motor vehicle. He told Mr S that it had taken him 5 hours to get away (from the wife) and to get wedding and engagement rings back (from her).

7. The parties first lived together from 20 August 2003.

8. Around Christmas 2003 the husband took the wife to meet his father.

9. At that time the husband worked 6 days a week and was on call. I understand he worked in the Service and Sales Department of a business.

10. At that time the husband was not having any contact with his friends or members of his family. At some point a wedding was arranged for March 2004.

11. On 18 February 2004 the husband asked his brother to be his best man at his upcoming wedding. The husband agreed with his brother that there would be a buck’s night at T Venue with his brother and others. The husband says that at the wife’s insistence, he did not attend the buck’s night.

12. The husband contacted the Minister who was to celebrate the wedding. The husband does not say when that occurred but it appears in the sequence of his affidavit filed 1 April 2008, after evidence about 14 March 2004 and before evidence about 15 March 2004. Whether on that day or another day prior to the proposed wedding, the husband saw the Minister and indicated to him his serious change of heart. The Minister said words to the effect “just marry her and you can sort things out later.”

13. The husband’s friend, Mr H says that there was a buck’s night for the husband on 15 March 2004 at a restaurant at F.

14. On 16 March 2004 the husband slept at the home of his brother N and resolved to collect his belongings (from the wife’s premises) and leave her.

15. On 17 March 2004 the husband returned to the wife’s premises and told the wife he was calling off the wedding. He left and went to his father’s home on the far south coast with his brother. Upon arrival there the husband began receiving almost non-stop phone, SMS and voicemail messages from the wife. In one such message the wife used words to the effect: “unless you come back and marry me I will kill myself.”

16. In March 2004, on the day planned for the wedding, the husband stayed at his father’s house despite numerous phone calls from the wife and one call from the Minister.

17. On 23 March 2004 the husband returned to the Central Coast and stayed with Mr H, a friend, until 1 April 2004. The husband says that he felt emotionally fragile. Mr H says that the husband left on that date, with his clothes.

18. The husband attended on the wife, at her request to change a battery (presumably a car battery) and left again. The husband says that during his 4 hour journey back to the Central Coast, the wife hounded him with abusive voice mail or text messages in a “desperate endeavour to resume the relationship” until he agreed to return to her home. She then took his mobile telephone and had to know his every move and completely barred him from talking to any of his family or friends, particularly those who had talked him out of getting married in the first instance.

19. The wedding was re-arranged for April 2004.

20. On the morning of the wedding date in April 2004 the wife demanded, in front of her children, that he marry her. The husband says that he was an emotional wreck and believed that he had no other choice but to marry the wife to stop her violent intimidation and to save his family from the threats that he believed she would carry out.

21. On … April 2004 the parties were married. The only persons present were the parties, the wife’s children, the Minister/Celebrant and his wife. The husband says that he did not believe that he had any option but to marry the wife on that day. He says that the wedding itself seemed surreal.

22. On 6 May 2004 the wife rang the husband’s mother to advise her of the wedding.

23. On 31 January 2006 the parties separated.

24. The husband commenced divorce proceedings in the Federal Magistrates Court in Newcastle on 24 May 2007 and divorce was granted on 10 July 2007. The husband was told by telephone the application was granted on the date the decree was made and that it would become final on 11 August 2007.

25. The wife became aware of the divorce. She changed her name on her passport to Jade. She told everyone she came into contact with – friends and work colleagues that she was divorced and changed the name shown on her mortgage. The wife became engaged after the divorce and told her fiancé that she was divorced.

Credit and Submissions

The evidence of the witnesses

1. None of the witnesses was called for cross-examination.

Submissions

1. It is submitted for the husband:

   PRELIMINARY QUESTIONS:

   Question 1:   Does the Court have power to nullify a marriage that has been dissolved?

   Answer:        No

   The Full Court held in C v C (Nullity) (1998) FLC 92-824 that once the marriage has ceased to exist by way of divorce no other proceedings may be brought in an attempt to otherwise bring it to an end.

   Question 2:   Can the Court rescind the decree of dissolution of marriage?

   Answer: Section 113 provides:

   “113   In proceedings of the kind referred to in paragraph (b) of the definition of “matrimonial cause” in sub-section 4(1), the court may make such declaration as is justified.”

   Pursuant to s 113 an applicant may seek a declaration that a purported marriage is valid or invalid, or that a purported dissolution or annulment of a marriage is valid or invalid.

   S 93 provides that that an appeal does not lie from a divorce order after the order has taken effect.

   In Spratley and Spratley (1977) FLC 90-222 it was held that s 113 can be invoked to test the validity of a decree absolute despite the provisions of s 93. The facts of that case dealt with a divorce dealt with under ACT law and not under the Family Law Act, 1975. There was an appeal to the Family Court. The Appellant argued that the decree nisi pronounced in the ACT Supreme Court was without jurisdiction and a nullity. Watson S.J. referred to Latham CJ in Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 at 375 as follows:

   “It cannot be said that, whenever a court makes an erroneous decision, it acts without jurisdiction. An order made without jurisdiction – as if a court of petty sessions purported to make a decree of divorce – is not an order at all. It is completely void and has no force or effect. The persons who made the order will, for example, if any action by way of interference with person or property is taken under the authority of the order, be liable in an action for trespass. But an order is not rendered void ab initio when it is set aside on appeal as erroneous. The fact that it was erroneous does not show or even suggest that it was made without jurisdiction. Jurisdiction is not merely jurisdiction to decide a question rightly.”

   Watson S.J. also considered that s 93 was absolute in its terms, a decree absolute is not appellable.[1]

   The Court’s limited power is therefore to consider whether the granting of the decree of dissolution of marriage was valid. At the time of preparation of this Case Summary I am not briefed with the Divorce Application, any Response or the transcript of the proceedings. It is therefore not possible to make submissions as to the validity of the divorce proceedings.

   [1] See also the High Court’s decision in Brennan v Brennan (1953) CLR 129.

   FURTHER QUESTIONS:

   In the event that the Court were to exercise its discretion to declare the divorce invalid it would then be open to the Court to consider the question of nullity.

   Section 51 of the Family Law Act 1975 provides that an application for s decree of nullity shall be based on the ground that the marriage is void.

   Section 23(1)(b)(i) of the Marriage Act, 1961 provides inter alia that a marriage is void where the consent of either of the parties is not a real consent because it was obtained in this case by duress.

   The husband provides significant evidence of duress.

   The authorities suggest that the standard of proof is set forth in Briginshaw and Briginshaw (1938) 60 CLR 336[2].

   [2] See Pavey and Pavey (1976) FLC 90-051; In the Marriage of S (1980) FLC 90-820

2. The written submissions on behalf of the wife are as follows:

   SUBMISSIONS FOR THE RESPONDENT

   FACTUAL CIRCUMSTANCES

   The Proceedings

   1.On 20^th November 2007 the Respondent filed in the Court an Initiating Application (Family Law) seeking orders in respect of property (the “Initiating Application”).

   2.On 17^th December 2007 the Applicant filed in the Court a Response to Initiating Application (Family Law) (the “First Response”).

   3.On 20^th January 2008 the Applicant filed in the Court a Response to an Application for Final Orders (the “Second Response”).

   4.On 1^st April 2008 the Applicant filed in the Court an Application for Final Orders seeking orders for the declaration of nullity of the marriage between the parties on the […] April 2004 (“the marriage”); an order that the marriage is void and an order rescinding the divorce between the parties in respect of the marriage (“the Applicants Application”).

   5.On 28^th October 2008 the Respondent filed in the Court a Response to an Application for Final Orders  seeking that the orders sought in the Applicants Application be dismissed (the “ Response to the Applicants Application”).

   6.The Initiating Application, the Response and the Second Response are not before the Court for hearing as an order was made to the effect that the Applicants Application and the Response to the Applicants Application be heard and disposed of prior to the  Initiating Application, the Response and the Second Response

   OTHER PROCEEDINGS

   7.On the 10^th July 2007 the Applicant in proceedings No (P)NCC1674 of 2007 filed in the Federal Magistrates Court of Australia at Newcastle obtained a divorce order which order by sealed Certificate of Divorce takes effect from the 11^th August 2007

   SUBMISSIONS

   Jurisdiction of the Family Court of Australia

   8.The jurisdiction of the Family Court to make declarations is limited under the Family Law Act 1975 (“the Act”) (see s 78 and s. 113 of the Act).

   9.The jurisdiction to make a decree of nullity is found in section 51 of the Act

   10.The relevant legislation in respect of the question of whether or not a marriage is void springs from the Marriage Act 1961 (as amended)

   11.The Marriage Act Considerations

   s. 23B of the Marriage Act is a codification of the law in respect of the grounds upon which marriage may be void – Parliament expressly limited such grounds to those appearing in sub-paragraphs (1)(a) to (e) inclusive of s. 23B of the Marriage Act “… and not otherwise…”;

   on the basis of s. 23B of the Marriage Act being a codification, the Applicant has no evidence to satisfy sub-ss. 23B (1)(a) (b) (c) (d) and (e) of the Marriage Act;

   it is submitted that the “….case….” for consideration is only whether or not at the time of the Marriage the Applicant  consented under the Marriage Act 1961, limited by the Applicants Application to sub-s. 23B. See Schmidt –v- Schmidt (1976) 1 Fam LR 11,355; 10 ALR 363; [1976] FLC 90-052. and Marriage of C and D 5 Fam LR 636;

   for a “….case….” to be established , it is submitted that the Court ought consider whether or not there is evidence that establishes that the Applicant consented at the time of the ceremony only and not at any other time;

   given the serious matters asserted by the Initiating Application the onus that rests on the Applicant is an high onus - see Briggenshaw –v- Briggenshaw (1938) 60 CLR 336 @ 362. It is submitted that the Applicant has not discharged his onus on the basis that the Applicant’s Evidence is the product of “…inexact proofs, indefinite testimony or indirect inferences… per Dixon J @ 362 such that it is unsafe and unsound to have “…reasonable satisfaction…” as to “….consent….” of the Applicant from the Applicant’s Evidence.

   there is no plausable evidence which satisfied s. 23B of the Marriage Act 1961 (Cth) (the “Marriage Act”);

   12.It is submitted that the requirements for any application seeking Orders to have “declared void” the Marriage before this Honourable Court must be made in accordance with the definition of “matrimonial cause” in s. 4 of the Act together with Sections 78 and 113 of the Act.

   13.It is submitted that the declaration sought in the Applicants Application is not authorised by the Act.

   14.It is submitted that, on the facts disclosed and the authority of In the marriage of: [I & C] [1994] FamCA 57 and Aird & Hamilton-Reid [2007] Fam CA 4 that the Applicant “...consented to marry the person who was physically present of that day...”(see paragraph 51 Aird & Hamilton-Reid)

The approach in proceedings under section 113

1. Section 113 of the Family Law Act 1975 provides:

   Proceedings for declarations

   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.

2. Section 4(1) of the Family Law Act 1975 relevantly provides:

   "matrimonial cause" means:

   …..

   (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; or

3. Learned counsel for the husband was not able to take me to any authority on the matters to be taken into in exercising the discretion under section 113.

4. Learned counsel for the wife took me to a passage in the second edition (1984) of Declaratory Orders by Mr P.W. Young QC which included reference to a decision of Street J, then the Chief Judge in Equity of the NSW Supreme Court in Sutherland Shire Council v Leyendekkers and Anor (1970) 91 W.N. NSW 250 at 258. in that decision Street J noted that:

   “In dissenting from a restrictive, that is to say “cautious”, “sparing”, “jealous” approach to the discretionary aspects of the declaratory jurisdiction, I am following what shas become an accepted approach in this court and appeals therefrom in the four years since the introduction of the present form of s. 10 of the Equity Act. Used with “a proper sense of responsibility” consistently with Lord Radcliffe’s observations, the jurisdiction has made a significant contribution to the quick and inexpensive, authoritative resolution of disputes appropriate to be made the subject of declaratory relief.”

5. The reference to Lord Radcliffe is a reference to Ibeneweka v Egbuna [1964] 1 WLR 219 where Viscount Radcliffe, giving the decision of the Privy Council, said at 224-5 :

   … it is doubtful that there is more principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issues unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.

6. In the words of section 113, the Court must be satisfied that a declaration is justified.

Discussion

1. It is the husband’s case that the divorce should be set aside because it was irregularly obtained. The irregularity is said to arise as the husband was not entitled to bring the application because of section 44(1B) and 44(1C) and when he did, service was not adequate.

2. Section 44 of the Family Law Act 1975 relevantly provides:

   Institution of proceedings

   ….

   (1B)  An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate:

   (a)  stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:

   (i)  a family counsellor; or

   (ii)  if the court is the Family Court, the Federal Magistrates Court or the Family Court of a State--an individual or an organisation nominated for the parties by a family consultant; or

   (iii)  if the court is not the Family Court, the Federal Magistrates Court or the Family Court of a State--an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and

   (b)  signed by that person or on behalf of that organisation, as the case may be.

   (1C)  Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may:

   (a)  if the application has not been filed--give leave for the application to be filed; or

   (b)  if the application has been filed--at any time before or during the hearing of the application, declare that it is so satisfied;

   and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.

   ….

3. That section does not apply in the circumstances of this case as the marriage was celebrated in April 2004 and the Application for Divorce was filed on 24 May 2007.

4. As to the question of service, the submission is that the husband served the divorce application personally and he was not permitted to do so by the Family Law Rules.

5. It is not entirely clear from the husband’s affidavit of service filed 25 May 2007 how service was effected. The affidavit asserts that the person served was “[Jade] (Turnbull Hill Lawyers) [Ms B]”. Service occurred at the office of Turnbull Hill Lawyers and it appears that the acknowledgement of service was signed by “illegible for [RH]”. The name of the wife’s lawyer on that section of the form is shown as “Warwick Gilberston”.

6. As to the relevant Rules, the application form is addressed to the Family Court of Australia but it was filed in the Federal Magistrates Court. That is apparent from the fact that the original application bears the seal of the Federal Magistrates Court on each page. The application was listed before a registrar of the Federal Magistrates Court and the Certificate of Divorce issued from that Court. Thus the Federal Magistrates Court Rules 2001 applied. Those Rules relevantly provided:

   6.06 When is service by hand required

   (1)Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.

   (2) However, service by hand is not required if:

   (a) there are current proceedings for which there is a notice of address for service for the person to be served; or

   (b) the Court directs that an application may be served in another way; or

   (c) a lawyer accepts service for a party and subsequently files an address of service; or

   (d) a lawyer accepts service for a person other than a party.

   6.07 Service by hand

   (1) A person serving a document by hand on an individual must give a copy of the document to the person to be served.

   (2) However, if the person to be served does not take the copy of the document, the person serving it may put it down in the presence of the person to be served and tell the person what it is.

   (3) In a family law or child support proceeding, the person serving a document must not be the party on whose behalf it is served.

7. Thus the relevant rules of Court required personal service on the wife by someone other than the husband save that her lawyer could accept service for her, provided the lawyer subsequently filed an address for service. There is no Notice of Address for Service from the wife’s solicitor on the FMC file. Therefore it appears that the Rules were not complied with.

8. That is not the end of the matter. Rule 1.06 of the Federal Magistrates Court Rules provided that the Court can dispense with any of the Rules. The Outcome Sheet for the divorce hearing is endorsed in relation to service – “proved”; and “dispense with further compliance with the Family Law Rules” (sic).

9. Rules of Court are not an end in themselves. They provide a framework of subordinate legislation in aid of the attainment of justice according to law in proceedings. Here, the issue is one of natural justice. A respondent must have notice of proceedings and an opportunity to be heard. The Rules provide for a more onerous service obligation for important documents. The Rules prescribe a method of service. The Rules allow a deficiency in compliance with that method to be waived in an individual case. That was done in these proceedings. The wife here had notice of the husband’s application and an opportunity to be heard. There was therefore no irregularity in the granting of the divorce. On the face of the record, the learned Registrar dealt with the matter appropriately.

10. It is not necessary to consider the matters that would go to an exercise of discretion under section 113. However, had there been an irregularity in the granting of the divorce it is hard to see why a declaration would be justified.

11. There is nothing in the husband’s case that points to a compelling reason for the relief he seeks. I understand the purpose of the application to be to allow the husband to prosecute an application for nullity. His preference in that regard is not explained but in any event cannot outweigh the opposite preference of the wife.

12. If the argument is that the husband seeks to correct the result of an irregularity, the first thing to say is that he must have been responsible irregularities of the type he identified[3]. It was the husband who brought the application when he belatedly asserts he was not entitled to do so. Secondly, he acquiesced in or waived any irregularity by sitting on his rights for nearly 4 years before taking action[4]. Finally, the intimation from the legislature is that once a Decree Nisi becomes Absolute, it is unassailable in the normal course.

    [3] See Marsh v Marsh (1945) A.C. at 285

    [4] See Marsh v Marsh above

13. Section 93 of the Family Law Act 1975 provides:

    No appeal after divorce order takes effect

    An appeal does not lie from a divorce order after the order has taken effect.

14. That approach is understandable given the change of status effected by divorce and the consequences that can flow for those who rely on that change of status.

15. Finally, the husband’s application for nullity might not succeed, which would lead to the bizarre outcome of leaving the parties married. That would give rise to the potential for embarrassment to the wife who has taken steps in reliance on her changed status over the four years since that change, including for a period being engaged to marry someone else.

Conclusion

1. There was no irregularity in the Federal Magistrates Court granting a Divorce on 10 July 2007, being a decree that had final effect from 11 August 2007. Therefore there is no basis for making a declaration that the divorce be set aside.

2. The marriage between the parties celebrated in April 2004 was dissolved by that divorce. It is submitted on behalf of the applicant that no other proceedings can be brought to bring that marriage to an end. No contrary proposition was put to me, let alone argued before me. One can envisage an argument for a contrary view. Shorn of the pejorative of illegitimacy for children and the denial of financial relief to a spouse, both now safeguarded in legislation, one could envisage a public interest in a supporting the difference between a marriage dissolved and a marriage deemed not to have existed. Could a dissolved marriage be later annulled?

3. In support of the position conceded in the husband’s case I am referred to a decision of the Full Court in C v C (Nullity) (1998) FLC 92-824. The relevant passage from the Full Court judgment is:

   For all intents and purposes, until a voidable marriage is annulled, it remains a valid marriage.  One of the incidences of the marriage remaining valid is that it may be brought to an end either by the death of one of the parties to it or by the dissolution of it by a court of competent jurisdiction.  Once the marriage has ceased then to exist, no further proceedings may be brought in an attempt to otherwise bring it to an end. This further circumstance would prohibit this Court from now granting the decree of nullity sought by the husband, or remitting the matter for further hearing, were it otherwise available.

4. The reference to ‘a voidable marriage’ was made because the husband in that case sought, albeit unsuccessfully, to argue for a decree of nullity based on the fact that his marriage was not consummated. His argument was that his English marriage entitled him to a remedy available in England for a voidable marriage. Relief of that sort has not been available in Australia since the repeal of the Matrimonial Causes Act 1959-1966. The finding ‘Once the marriage has ceased then to exist, no further proceedings may be brought in an attempt to otherwise bring it to an end’  could be seen to depend on the discussion above it about voidable marriages. The logic may not be as compelling in relation to a void marriage. However, the final sentence of the passage is clear enough. The only remedy available in Australia is based on a void marriage. Therefore the decree of nullity sought by the husband must be in relation to such a marriage. Therefore the husband’s application for a decree on nullity cannot succeed.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate: 

Date: 22 September 2009