Family Proceedings Act 1980, s 27 – appeal from Family Court – application for declaration that dissolution order invalid – order for substituted service obtained by deception – undefended proceeding – inviolacy of dissolution orders – statutory context – independent jurisdiction of s 27 –discretionary jurisdiction – relief declaratory with potential for collateral order quashing dissolution – jurisdiction not exercised in this case.

G v G [2023] NZHC 166 (Duffy J) 

Please note:

• This appears to be the first High Court case directly considering whether a dissolution order might be declared invalid under s 27 of the Family Proceedings Act 1980 (FPA).
• The parties’ names are anonymised in this judgment.
• This decision refers to MAS v SAE (2007) 26 FRNZ 671 (FC) and In the Marriage of Miller (1983) 49 ALR 689.

Mr G filed a unilateral application for an order dissolving his marriage to Ms G. Dissolution is available only under s 39 of the FPA where the marriage has broken down irreconcilably. Irreconcilable breakdown is established where the parties have lived apart for the two years preceding filing. Mr G successfully applied for substituted service, deposing he could not locate Ms G.  The dissolution order was granted following an undefended proceeding.

Ms G made an unsuccessful application for recall. She then applied to the Family Court for a declaration under s 27(1)(b) of the FPA that the marriage was not validly dissolved.

Cross-examination elicited that much of Mr G’s application for substituted service was “inaccurate, misleading, or wrong”; he had frequent contact with Ms G.

Judge Goodwin doubted the order for substituted service would have been made if Mr G’s supporting affidavit reflected the true position. As it was, Ms G was denied the opportunity to be heard and Mr G obtained his order by deception.  Notwithstanding the unfairness, Judge Goodwin concluded he had no jurisdiction to alter the order, directing Parliament to address the lack of clear legislative options for those in Ms G’s situation.  Ms G appealed to the High Court.

Discussion – the statutory context promotes the finality of a dissolution order – the rationale behind finality articulated in MAS v SAE – s 27 provides its own independent jurisdiction – interpretation of s 27 informed by the Australian courts’ approach to the Australian statutory scheme, particularly the decision of the Full Court of the Family Court of Australia in In the Marriage of Miller.

Held: Section 27(1)(b) provides discretionary jurisdiction for the Family Court to declare a dissolution order invalid.  It may do so in a variety of circumstances, including upon a miscarriage of justice arising from failure to comply with procedural requirements. However, “likely that, given the principle of certainty as to status, the discretion will be exercised sparingly”.

Obiter: the jurisdiction might extend to making a collateral order quashing the dissolution if necessary to prevent abuse of process. Otherwise, relief merely declaratory. Jurisdiction not exercised in this case.

Comment: The court concluded the “fundamental problem with Ms G’s case is that the dissolution of her marriage was inevitable”.  Certainly, by the very nature of the joint enterprise, a marriage does appear prime for unilateral termination. But I would make explicit a further qualification to the court’s note. It was not just that the dissolution of the marriage was inevitable, but that the dissolution of the marriage at the time it was in fact dissolved was inevitable. For even if a marriage is destined for dissolution, the timing of its end continues to have financial consequences; see for example, s 24 Property (Relationships) Act 2007 and s 19 Wills Act 2007.