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In re an application by the Secretary for Justice for an Order of Certiorari and an Order of Mandamus [1979] NRSC 2; [1969-1982] NLR (A) 150 (23 May 1979)

[1969-1982] NLR (A) 150

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 1 of 1979

IN THE MATTER OF AN APPLICATION BY THE SECRETARY FOR JUSTICE FOR AN ORDER OF CERTIORARI AND AN ORDER OF MANDAMUS

and

IN THE MATTER OF A MATRIMONIAL CAUSE IN THE FAMILY COURT BETWEEN KATHERINE DABWADOUW PETITIONER AND DANIEL AUWOK DABWADOUW RESPONDENT.

23rd May, 1979.

Family Court - divorce proceedings commenced and evidence heard on some issues - proceedings then adjourned - resumed and divorce granted by Court differently constituted - decision invalid in so far as dependent on issues in respect of which evidence heard before adjournment.'

Application by the Secretary for Justice certiorari and mandamus. Divorce proceedings were brought in the Family Court on the ground of irretrievable breakdown of the marriage, first because the conduct of the respondent had been such that it was unreasonable to expect the petitioner to continue to live with him and second because of consensual separation for two years. The Court began hearing evidence of the respondent's conduct; before adjourning the proceedings it expressed itself as satisfied that the conduct of the respondent was such that it was unreasonable to expect the petitioner to-continue to live with him. However, it made no finding that the marriage had irretrievably broken down. The proceedings were not resumed for eight months; in the meantime the person who was Chairman at the first hearing had ceased to be the Resident Magistrate; so there was a new Chairman. One of the other members who constituted the Court on the first hearing was also not sitting when the proceedings were resumed; her place had been taken by another member. Nevertheless, without hearing any further evidence on the first ground the Court found as fact that there had been an irretrievable breakdown of the marriage on the ground of the respondent's conduct. However, the parties admitted that there had been two years' consensual separation before the petition was brought, and on that basis also the Court found that there had been an irretrievable breakdown of the marriage.

Held: Where evidence has been heard by a Court and after an adjournment the Court is differently constituted, the Court as so constituted cannot properly make any finding of fact based on the evidence heard before the adjournment. It can properly base its decisions only on evidence which it has heard and admissions made to it while it is constituted as at the time of making those decisions.

Application refused.

D.G. Lang for the applicant
The respondents in person

Thompson, CJ:

These proceedings concern Matrimonial Cause No. 7 of 1978 in the Family Court. Those were proceedings upon a petition for divorce; a decree nisi was granted by the Family Court on 2nd March, 1979. There having been no appeal, that decree became absolute 21 days later. The application in the present proceedings is for an order of certiorari to remove those proceedings into this Court and to set aside the decree and for an order of mandamus directing the Family Court to hear the petition and determine it afresh.

In Matrimonial Cause No. 7 of 1978 irretrievable breakdown of the marriage was alleged on two grounds, first that the respondent had behaved in such a manner that the petitioner could not reasonably be expected to live with him and second that the parties had lived apart for a continuous period of not less than two years prior to presentation of the petition. The case came on for hearing in the Family Court on 21st July, 1978. The Chairman was then Mr. K.P. Whitcombe. The other members were Mr. S. Akaruwo and Mrs. M. Kaierua. The respondent disputed the first ground. But there was no dispute between the parties as to the period of separation preceding the petition; if the respondent had been willing on that day to consent to a decree being granted, there would have been no need for the Court to hear evidence to enable it to make a decision on the first ground and the decree could have been granted forthwith. But the respondent expressed doubt whether his church would regard it as proper for him to give the consent; he did not positively refuse to give consent but asked to be allowed to defer to a later date his decision whether to do so or not.

The Court decided to hear evidence relevant to the first ground. It heard evidence from both parties and, having done so, it expressed itself as satisfied that the conduct of the respondent was such that it was unreasonable to expect the petitioner to continue to live with him. However, it made no finding that, as a result, the marriage had irretrievably broken down. If it had done so, it could have granted the decree nisi then and there. Instead, it decided to adjourn the proceedings sine die to enable the respondent to ascertain the views of his church on his consenting to the decree being granted on the second ground.

The hearing was not resumed until 2nd March, 1979. On that date the Chairman was Mr. K. Moore and the members Mr. S. Akaruwo and Mr. A. Deiye. No more evidence was adduced but the respondent made a brief statement which amounted to consent to the granting of the decree. Custody of the child of the marriage was then discussed and agreed by the parties. After that the Court gave judgment. It decided that the marriage had broken down irretrievably on both the-grounds alleged in the petition. Having done so, it granted the petitioner a decree nisi dissolving the marriage.

It is a well-established principle of law that the persons who make judicial determinations must be those who hear the totality of the evidence. (Fulker v. Fulker (1936) 3 All E.R. 636) In at least one early case (R. v. Browne (1878) 4 V.L.R. 138) it was held that, if the parties acquiesce in persons who have not heard the whole of the evidence joining in the process of determination, the proceedings are valid. But in a recent case in the Supreme Court of Western Australia the Full Court held that even though the parties had expressly consented to that being dine, the proceedings were void and the decision a nullity. (Re Justis, Justis v. Barristers' Board, heard in December, 1978, and not yet reported except briefly in (1979) A.C.L.D. 050). Possibly there is some merit in the reasoning of the Supreme Court of Victoria in R. v. Browne in a case where there is shown to have been what may be called "conscious acquiescence". I express no concluded view on the question. But in Matrimonial Cause No. 7 of 1978 the respondent was unrepresented and 8 months had elapsed since the first hearing. There is nothing to indicate that the respondent was conscious of the change in the membership of the Court. There probably was no conscious acquiescence by the respondent.

As no evidence was heard at the hearing on 2nd March, 1979, the determination that the marriage had irretrievably broken down on the first ground alleged in the petition could have been reached only on the basis of the evidence heard on 21st July, 1978. That evidence had not been heard by Mr. Moore r Mr. Deiye. The determination of the Court in respect of the first ground was, therefore, void. If the decision that the marriage had broken down irretrievably had been made on that ground only, it would have been necessary for this Court to grant the application for orders of certiorari and mandamus.

However, the Family Court decided also that the marriage had irretrievably broken down on the second ground. There was o dispute over the fact that the parties had lived apart for more than two years before the petition was presented; no evidence was required to establish that. The consent of the respondent in those proceedings to the granting of the decree was given on 2nd March, 1979. So the Court, as constituted on that day, did not have to rely on anything done or said, r on any evidence given, at the earlier hearing to be able properly to make its decision that the marriage had broken down on the second ground. That decision was, therefore, made validly. Upon the basis of it the petitioner was entitled the decree granted to her.

Accordingly the application for orders of certiorari and mandamus are refused.