Vaccaro & Vaccaro [2025] FedCFamC1A 172 (18 September 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaccaro & Vaccaro has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of an appeal brought by the wife from a divorce order made on 18 June 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2).

1. The husband filed for divorce from the wife in October 2024.
2. For reasons it is unnecessary to discuss, the divorce application was not listed before the Court for hearing until 16 June 2025. The wife appeared and opposed the application. She told the primary judge she was then unready to contest the divorce application and so it was adjourned for two days until 18 June 2025, when she again appeared to oppose it.
3. The husband relied upon his affidavit filed on 19 May 2025 in support of the divorce application. The wife told the primary judge she did not object to the evidence adduced by the husband and she did not wish to cross-examine him. She confirmed her reliance upon her Amended Response and supporting affidavit, both filed on 2 June 2025. She was not cross-examined either.
4. The wife contended this in her Response filed in March 2025:

The application for divorce should be dismissed because I don't believe there are irreconcilable differences ...

(Part C, p.6)

1. The wife additionally contended this in her Amended Response filed in June 2025:

Further to this, the law appears to prioritise [the husband's] right to end the marriage over my right to remain committed to the vows we both made. Although I recognise that he cannot be forced to stay married, I am nonetheless being placed in a position where I must break solemn vows that the law itself once recognised and allowed me to make.

(Part C, p.2)

[The wife]: Okay. Well, your Honour, I acknowledge the structure of the Family Law Act 1975, particularly section 48(2), which permits the dissolution of a marriage where the parties have been separated for at least 12 months, and there is no reasonable likelihood of reconciliation. I understand this provision. However, I respectfully submit that the legal presumption of irretrievable breakdown does not reflect the full reality of this matter. I am specifically challenging section 48(3), as I do not believe the marriage has irretrievably broken down. I remain committed to restoring the relationship, and am willing to engage in communication and healing. My position is not based on sentimentality, but on a sincere and ongoing willingness to restore the marital relationship. Restoration is not an event; it is a process. The law does not require mutual desire for reconciliation. It requires only a - - -

...

[The wife]: ... reasonable possibility of reconciliation. That possibility remains alive as long as one party earnestly seeks it - well. It should not be dismissed merely because the other party is unwilling. To do so risks reducing a legal standard to a matter of preference, effectively nullifying the rights of the spouse who remains committed.

(Transcript 18 June 2025, p.5 lines 29-39; p.6 lines 30-33)

1. In response to those submissions, the primary judge had this exchange with the wife:

HIS HONOUR: So [wife named], the corollary of all of this is that [the husband] would be required to remain in a marriage that he does not consent to remain in.

[The wife]: I understand.

HIS HONOUR: You yourself acknowledge in the documents that you can't compel him, nor should the law compel him to remain in a marriage that he does not wish to be in.

[The wife]: Yes, I understand. But equally so, I'm being compelled to have the marriage dissolved against my consent. So both of us are - - -

HIS HONOUR: You're not being required to. I'm making the decision about whether the marriage is dissolved.

(Transcript 18 June 2025, p.7 lines 10-23)

1. The wife was not deterred. She continued with her submissions, which were patiently received. Her submissions finished in this way:

HIS HONOUR: Yes. Is there anything else, [wife named]?

[The wife]: No, your Honour.

HIS HONOUR: Thank you.

[The wife]: Thank you.

(Transcript 18 June 2025, p.11 lines 26-32)

1. Having heard the parties, the primary judge gave ex tempore judgment.
2. His Honour found the factual elements of the divorce application proven - recorded as formal findings and declarations within the orders (at paragraphs 1-5) - and then made this operative order:
   1. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the nineteenth day of July 2025.
3. The wife appealed. She was self-represented and relied upon the Amended Notice of Appeal she filed on 23 August 2025. She spoke intelligently to the arguments advanced in her Summary of Argument.
4. The husband appeared at the appeal hearing but did not file a Summary of Argument. He was permitted to make oral submissions with the wife's consent.

1. The wife sought leave to appeal from the divorce order, but it is unnecessary. She has an absolute right of appeal from the divorce order as it is not a "prescribed judgment" (s 26(1)(c), 28(1)(b) and 132(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
2. The wife is self-represented and her four grounds of appeal, rather than being formulated to expose some form of appealable error, are a repetitive narrative of discontent. All grounds, in one way or another, assert the wife was unfairly deprived of sufficient time within which to be ready to contest the divorce application. Each ground alleges she was only given "46 hours preparation time" and it is contended such a "compressed timeframe" precluded her from being ready to oppose the divorce application.
3. Advertence to the chronology exposes the fallacy of the wife's position.
4. The husband filed for divorce in October 2024. According to an Affidavit of Service filed on 26 February 2025, the wife was served with the application by hand on 25 January 2025. She then filed a Response on 4 March 2025. Consequently, by the time of the hearing before the primary judge in June 2025, the wife had many months within which to prepare to resist the divorce sought by the husband.
5. To facilitate the contested divorce hearing, procedural orders were made in March 2025, pursuant to which the wife filed an Amended Response and supporting affidavit in June 2025, so she evidently gave plenty of thought to the content of her filed documents.
6. The hearing before the primary judge was listed on 16 June 2025. The wife told the primary judge she was not ready and so the hearing was adjourned until 18 June 2025 to give her more time to formulate her submissions.
7. Not only was the wife given sufficient time within which to be ready, she was allowed to say all she could at the hearing.
8. The wife contends there was a "reasonable prospect of a different outcome" had she been given more time within which to prepare, but the contention is rejected because her opposition to the divorce application was misconceived. Her subjective belief that there existed a reasonable likelihood of reconciliation (s 48(3) of the Family Law Act 1975 (Cth) ("the Act")) was not objective proof of the fact, much less so if her belief only rose to the level of a reasonable possibility, as she submitted to the primary judge.
9. The husband deposed he regarded the marriage as being over at the date of final separation more than 12 months before, acceptance of which unchallenged evidence was dispositive of the issue. There could be no reasonable likelihood of reconciliation if one spouse is staunchly opposed to it. Acceptance of the wife's submissions would mean no divorce could ever be granted if one spouse resolutely maintained, from his or her personal perspective, there was a reasonable likelihood the spouses would reconcile. Reconciliation of a marriage requires the spouses' mutual commitment, as the wife was impelled to concede, but the sworn evidence of one spouse there would be no reconciliation eradicates such mutual commitment, regardless of the evidence given by the other spouse.
10. His Honour was satisfied jurisdiction existed, proven by the parties' marriage and their citizenship, and satisfied of the available power to grant the divorce order, proven by the husband's belief the marriage had broken down irretrievably and that proper arrangements had been made for the care, welfare and development of the parties' minor child.
11. Although not embraced by the grounds of appeal, the wife submitted the primary judge did not separately consider s 48(3) of the Act, but the submission is rejected. His Honour found the marriage had broken down irretrievably (s 48(1)) because the husband's evidence proved his belief the marriage was over and the parties had been separated for more than 12 months, which finding implicitly encompassed satisfaction there was no reasonable likelihood of cohabitation being resumed.
12. Once those facts were established, the primary judge was obliged to grant the divorce application, which relief could not be withheld in an exercise of discretion. The decision was entirely factual (Diamond & Diamond [2024] FedCFamC1A 201; (2024) FLC 94-223 at [35] and [41]-[42]). There was no legal or factual error.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.