Alizadeh & Nouri

[2021] FCCA 1705

FEDERAL CIRCUIT COURT OF AUSTRALIA

Alizadeh & Nouri [2021] FCCA 1705  

File number(s):	SYC 1997 of 2020
Judgment of:	JUDGE MONAHAN
Date of judgment:	26 July 2021
Catchwords:	FAMILY LAW – Divorce – proceedings commenced by wife – response to divorce filed by the husband – where husband disputes assertions made by wife concerning the date of separation – whether cohabitation occurred after separation and the care of the children – divorce order made – declaration made pursuant to section 55A(1)(b)(i) – substantive property and parenting proceedings remain listed before the Court.
Legislation:	Family Law Act 1975 (Cth) ss 39, 48, 55, 55A.
Cases cited:	In the Marriage of Falk (1977) FLC 90-247 In the Marriage of Pavey (1976) FLC 90-051
Number of paragraphs:	51
Date of last submission/s:	21 July 2021
Date of hearing:	21 July 2021
Place:	Sydney
Solicitor for the First Applicant:	Ms Klonis of Team Legal Group
Solicitor for the Respondent:	Self- represented litigant

ORDERS

SYC 1997 of 2020

BETWEEN:

MS ALIZADEH

Applicant

AND:

MR NOURI

Respondent

ORDER MADE BY:	JUDGE MONAHAN
DATE OF ORDER:	26 JULY 2021

THE COURT FINDS THAT:

I.The Applicant Wife was at all material times a citizen of Australia and was domiciled in Australia at the date of filing of the Application for Divorce.

II.The parties were married in City A in Country B in 2006.

III.The ground that the marriage has broken down irretrievably is proved based on a separation date not later than 5 January 2019.

THE COURT ORDERS THAT:

1.A divorce order be made today.

THE COURT DECLARES THAT:

2.There are two children of the marriage namely X, born 2015 and Y born 2017 (“the children”) to whom the divorce order applies and the Court is satisfied that proper arrangements have been made for the care, welfare and development of the children.

THE COURT FURTHER ORDERS THAT:

3.The divorce order made today become final in one (1) month and one (1) day.

4.All extant divorce applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.There are current interim parenting orders in place.

B.The Respondent husband pays child support as assessed by the Child Support Agency.

C.The substantive parenting and property proceedings are next listed before the Court on 16 August 2021 at 9.30am for directions. 

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

INTRODUCTION

1. This decision concerns divorce proceedings between MS ALIZADEH (“the wife”) and MR NOURI (“the husband”).

2. I note that the parties also have separate parenting and property proceedings that are continuing. The children of the marriage are X, born 2015 and Y born 2017. The Court has appointed an Independent Children’s Lawyer (“ICL”) in the parenting proceedings.

3. The wife filed her Application for Divorce on 15 July 2020 (“the divorce application”). I note that the wife asserts in the divorce application that that the parties separated on 5 January 2019 and that they did not resume cohabitation after that date.

4. The husband filed a Response to Divorce on 6 January 2021 (“the response application”). In the response application, the husband disputes:

   ·the date of final separation asserted by the wife in the divorce application;

   ·the wife’s assertion that the parties did not resume cohabitation following their separation on 5 January 2019; and

   ·the wife’s assertions that (at the time of the divorce application): 

   othe children were solely cared for by the wife;

   othe husband had no contact with the children unless agreed to by the wife; and that

   othe wife is the primary financial supporter of the children.

5. The applications came before me for the first time in a duty list on 21 July 2021 and, given that more than 12 months had elapsed since the filing of the divorce application, I agreed to hear the divorce dispute on a final basis that day.

6. I note that the wife was legally represented by her solicitor, Ms Klonis and the husband was self-represented.

   PROCEDURAL HISTORY

7. The wife filed the divorce application on 15 July 2020. The divorce application was made returnable to 28 September 2020.

8. On 28 September 2020, the Court wrote to the wife’s solicitors to advise that the divorce application had been adjourned to 7 December 2020 because there “was no evidence of service”. An affidavit of service was filed by the wife’s lawyers on 15 October 2020 attaching evidence of service by registered post to the husband’s post box. On 7 December 2020, the Court wrote again to the wife’s solicitors to advise that the divorce application had been further adjourned to 1 March 2021 because there “was no or inadequate evidence of service on the file”. An affidavit of personal service and an acknowledgment of service were subsequently filed on 19 December 2020.

9. The husband filed the response application on 6 January 2021.

10. On 1 March 2020, the Court wrote again to the wife’s solicitors to advise that the divorce application had been further adjourned to 27 April 2021 because the “divorce application is disputed”. On 27 April 2021, a Registrar made directions listing both applications as returnable before me on 21 July 2021. The Registrar did so because Registrars lack the delegated power to hear and determine a contested divorce application.

11. As stated, the divorce dispute came before me on 21 July 2021 and, given that more than 12 months had elapsed since the filing of the divorce application, I agreed to hear the divorce dispute on a final basis that day.

12. Following the divorce hearing the Court reserved its decision.

    AGREED FACTS

13. Unless otherwise stated, there is no dispute between the parties in relation to the following facts, namely that:

    ·The parties were married in City A in Country B in 2006 (as evidenced by a copy of the relevant certificate of marriage and the affidavit of translation which can both be admitted into evidence and marked Exhibit ‘A’). 

    ·The wife is domiciled in Australia and is an Australian citizen (as evidenced by a copy of the Certificate of Australian Citizenship dated 26 January 2017, which can also be admitted into evidence and marked Exhibit ‘B’). I note that the husband gave evidence that he is also domiciled in Australia and has Australian Citizenship.

    ·The divorce application was filed more than 12 months after the date of separation being alleged by the wife (that is, on 5 January 2019). While the husband agrees that the parties initially separated on that date, he asserts that the parties subsequently cohabited from March 2019 until September 2020 and, consequently, he disputes that the divorce application was filed more than 12 months after the date of final separation. 

    ·As previously stated, there are two children of the marriage; X, born 2015 and Y born 2017 (“the children”). The children live with the wife and spend time with the husband as agreed between the parties in writing, pursuant to interim parenting Orders made by me on 17 June 2020. That said, the father asserts that the children have been living with both parties either under the one roof (until September 2020), or separately, since the date the interim parenting Orders were made.

    ·Although the husband disputes some aspects of the arrangements for the children as asserted by the wife in the divorce application, he indicated that, should the Court make a divorce order, he would not oppose a declaration being made that proper arrangements in all the circumstances have been made for the welfare of the children in circumstances where the parenting proceedings are still before the Court and an ICL has been appointed.

    ISSUES IN DISPUTE

14. As stated, the parties dispute the date of final separation and, consequently, are in dispute as to whether the divorce application was filed more than 12 months after the date of final separation.

    EVIDENCE

15. The wife relies on the following documents:

    ·Application for Divorce filed on 15 July 2020; and

    ·Her affidavit filed on 20 July 2021.

16. As stated, the wife also relies on the following documents:

    ·Copy of relevant certificate of marriage dated 2006 and copy of the affidavit of translation filed 15 July 2020 (Exhibit ‘A’).

    ·Copy of her Certificate of Australian Citizenship dated 26 January 2017 (Exhibit ‘B’). 

17. The husband relied on the following documents at the hearing:

    ·Response to Divorce filed on 6 January 2021; and

    ·His affidavit filed on 26 April 2021.

18. I allowed the husband to also give some oral evidence to enable him to respond to the late filed affidavit of the wife.

    RELEVANT LAW

19. The relevant provisions relating to divorce applications are found in Part VI of the Family Law Act 1975 (Cth) (the “Act”). Pursuant to section 39(1A) of the Act, divorce applications may be filed in this Court.

    Jurisdiction

20. Pursuant to section 39(3) of the Act, the Court must be satisfied that it has jurisdiction to deal with the divorce application. The burden of proof rests upon the applicant (i.e. the wife in this case).

21. Firstly, the applicant must establish that either party was either ‘domiciled’ in Australia, ordinarily resident in Australia for a period of not less than 12 months prior to the filing of the application, or is an Australian citizen. The mere assertion by an applicant that he or she is an Australian citizen does not constitute evidence for the purposes of section 39(3) of the Act. Documentary evidence such as the tender of a birth certificate, passport or citizenship papers will assist the Court in making the necessary finding. Domicile is proved by ‘intention’ and the intention to remain in Australia must be evidenced by a statement to that effect in the application. In this case I note that the wife has filed a copy of her Certificate of Australian Citizenship dated 26 January 2017 (see Exhibit ‘B’). She also asserts a domicile in this country.

22. Secondly, the Applicant must establish the existence of a valid marriage. This is generally established by the tender of a copy of the relevant certificate of marriage.  In this case, the wife has filed a copy of the certificate of marriage dated 2006 and copy of the affidavit of translation filed 15 July 2020 (see Exhibit ‘A’).

23. I note again that the husband does not dispute jurisdiction.  

    Sole ground for divorce

24. Pursuant to section 48(1) of the Act, the applicant must also establish that “the marriage has broken down irretrievably.” This is sometimes referred to as ‘the sole ground for divorce’ under Australian law.  The only way in which the sole ground for divorce can be established is to satisfy the Court “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.”

25. The Court is not concerned about the reasons for the breakdown of the marriage; the Court need only satisfy itself that a separation took place. Obviously it is the date of filing of the application which is crucial, and it must be one year or more after separation has occurred. 

26. Separation may be initiated by one party alone and does not require the consent of the other party. 

27. The notion of separation is more than mere physical separation. There must be a complete separation from the marriage relationship itself. This is often referred to as the loss of “consortium vitae” or the partnership for life. This view was supported by the Full Court of the Family Court in the case of In the Marriage of Pavey (1976) FLC 90-051.

28. In the case of In the Marriage of Falk (1977) FLC 90-247, the Full Court held that for separation to occur there also needs to be communication of the necessary intention to separate which may be direct or indirect.

29. If the Court finds that the abovementioned is satisfied then it may pronounce a divorce order.  As stated, the final separation date is in dispute in this case.

    Section 55A declaration

30. Section 55(1) of the Act provides that a divorce order takes place one month after the making of either a divorce order or the section 55A declaration, whichever is later in time. The Court is empowered to extend or reduce the statutory period.

31. Section 55A(1) of the Act provides that a divorce order does not take effect unless the Court is satisfied in relation to one of two matters involving children of the marriage. Firstly, that there are no children of the marriage who have not obtained the age of 18 years or, secondly, that the only children of the marriage and that who have obtained the age of 18 years are the children specified in the order and that:

    ·proper arrangements in all the circumstances have been made for the welfare of these children;  or

    ·there are circumstances by reason of which the divorce order should take effect, notwithstanding that the Court is not satisfied that such arrangements have been made. 

32. Where the Court has doubts about whether the arrangements for children are proper in all the circumstances, it may adjourn the divorce proceedings until a report has been obtained from family consultant regarding those arrangements.

33. In this case I note again that while the husband disputes some aspects of the arrangements for the children as asserted by the wife in the divorce application, he indicated that, should the Court make a divorce order, he would not oppose a declaration being made that proper arrangements in all the circumstances have been made for the welfare of the children in circumstances where the parenting proceedings are still before the Court and an ICL has been appointed.

34. I will now consider the evidence and submissions in light of the abovementioned considerations. 

    DISCUSSION AND FINDINGS

    Jurisdiction

35. I note again that the parties agree that the Court has jurisdiction to determine the applications.

36. I am satisfied and find that:

    ·the parties were married in City A in Country B in 2006; and

    ·the wife is an Australian citizen and domiciled in Australia and was so at the time of the filing of the divorce application.

    Sole ground for divorce

37. As stated, the parties dispute whether the divorce application was filed more than 12 months after the date of final separation.

38. The wife argues that the divorce application was filed more than 12 months after the date of separation, being 5 January 2019, and that the parties did not subsequently resume cohabitation or otherwise live together as husband and wife under the one roof or otherwise since the date of separation. That said, the wife admits that the parties travelled together and stayed in the same accommodation with the children during a visit to C City in late January/early February 2020.

39. As stated, while the husband agrees that the parties initially separated on 5 January 2019,[1] he alleges that the parties subsequently resumed cohabitation from March 2019 until September 2020 and, consequently, he disputes that the divorce application was filed more than 12 months after the date of final separation.[2] That said, the husband gave evidence that the parties did not continuously live under the one roof from March 2019 until September 2020 although the parties did so more often than not.[3] He acknowledges that he spend some overnight periods in a “CBD hotel”[4] or the wife would “stay with her friend, [D], or stay overnight at a hotel”[5]. The husband also pointed to his evidence that he, the wife and children all stayed together at Location E, Queensland between 29 January 2020 and 2 February 2020. The husband’s evidence was that he and the wife slept in the larger bed (and engaged in sexual activity) and the children slept in the smaller bed.[6]

    [1] Transcript, 21 July 2021, page 6; also see husband’s affidavit filed 18 August 2020, paragraph 6.

    [2] Transcript, 21 July 2021, page 7; also see husband’s affidavit filed 26 April 2021.

    [3] Transcript, 21 July 2021, page 8.

    [4] Transcript, 21 July 2021, page 21.

    [5] Transcript, 21 July 2021, page 23.

    [6] Transcript, 21 July 2021, pages 27 – 29.

40. Notwithstanding his evidence, I note that the husband acknowledged that if the Court finds that parties did indeed separate September 2020, this was a date:[7]

    ·after the substantive property and parenting proceedings were commenced;

    ·after interim parenting orders had been made; and,

    ·after the wife had filed the divorce application.

    [7] Transcript, 21 July 2021, page 9.

41. The husband also acknowledged that there had been a child support assessment made “in 2019”,[8] although as stated, he asserts that he was, and remains, primarily responsible for the children’s financial needs. 

    [8] Transcript, 21 July 2021, page 14.

42. As stated, while the wife admits that the parties travelled together and stayed in the same accommodation with the children during a visit to C City in late January/early February 2020, she denies that the parties resumed cohabitation or otherwise engaged in sexual relations or even slept in the same bed.[9] It is the wife’s evidence that she has not lived under the one roof or lived with husband in a marriage since the parties separated on 5 January 2019.[10]

    [9] Wife’s affidavit filed 20 July 2020, paragraph 16.

    [10] Wife’s affidavit filed 20 July 2020, paragraph 4.

43. Having considered the evidence I am satisfied and find that the parties separated on 5 January 2019 and did not resume cohabitation as a married couple after that date. While the parties may have remained in contact with one another following separation, and indeed travelled on a holiday together with the children on at least one occasion, I accept the wife’s evidence that she had separated from the husband in accordance with the Act and did not intend to resume cohabitation with him. I am also satisfied that the husband knew that the parties had separated. While the Court accepts the possibility that the husband may have viewed the mother’s interactions with him post separation as a resumption of their marriage, objectively no resumption had occurred, particularly in circumstances where the parties were before this judge for substantive parenting and property proceedings well following the date of final separation as alleged by the wife and well before the date of separation as alleged by the husband.

44. Given the findings the Court also finds that the divorce application was filed more than 12 months after the date of final separation. 

45. Consequently, the Court will make a divorce order.

    Section 55A declaration

46. As I stated previously, while the husband disputes some aspects of the arrangements for the children as asserted by the wife in the divorce application, he indicated that, should the Court make a divorce order, he would not oppose a declaration being made that proper arrangements in all the circumstances have been made for the welfare of the children in circumstances.[11]

    [11] Transcript, 21 July 2021, page 31.

47. In this case I find that there are circumstances to enable the Court to make a declaration under section 55A(1)(b)(i) that proper arrangements in all the circumstances have been made for the welfare of X and Y.

48. Consequently, the divorce order will become final in one month’s time.

    CONCLUSION

49. The Court’s findings have now been stated.

50. The Court has found that:

    ·the parties were married in City A in Country B in 2006;

    ·the wife is an Australian citizen and domiciled in Australia and was so at the time of the filing of the divorce application;

    ·the ground that the marriage has broken down irretrievably proved based on a separation date not later than 5 January 2019;

    ·a divorce order should be pronounced;

    ·there are two children of the marriage being X, born 2015 and Y born 2017 and the Court is satisfied that proper arrangements have been made for the care, welfare and development of the children; and that

    ·the divorce order should become final in one month and one day’s time.

1. There will be Orders and Declarations of the Court to reflect this decision.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan.

Associate:

Dated:       26 July 2021