BECKER & BECKER

[2015] FCCA 2003

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKER & BECKER [2015] FCCA 2003

Catchwords:
FAMILY LAW  ̶  Divorce application  ̶  whether the parties were separated under one roof.

Legislation:

Family Law Act 1975 (Cth), ss.48, 49

Wiggins and Wiggins [1976] FLC ¶90-05
Pavey and Pavey [1976] FLC ¶75-209
Todd and Todd (No.2) [1976] FLC¶ 90-008
Falk and Falk [1977] FLC ¶ 90-247

Applicant: MR BECKER

Respondent: MS BECKER

File Number: DGC 1266 of 2015

Judgment of: Judge Phipps

Hearing date: 14 July 2015

Date of Last Submission: 14 July 2015

Delivered at: Dandenong

Delivered on: 24 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Dunlop

Solicitors for the Applicant: Jonathan Kemp & Associates

The Respondent: Appearing on their own behalf

ORDERS

1. The Application for Divorce filed 1 May 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1266 of 2015

MR BECKER

Applicant

And

MS BECKER

Respondent

REASONS FOR JUDGMENT

1. The husband filed an application for a divorce order on 1 May 2015.  He says that the parties separated on 31 March 2014 when he moved to a separate bedroom in the matrimonial home.  He says that they have lived separately and apart under the same roof since.  The wife opposes the application.  She says that the parties did not separate until 31 March 2015. She says this happened after she found compromising photographs of the husband with another woman in his emails and showed them to him wanting an explanation.  The wife says the husband then moved to a separate bedroom.

2. The husband is an Australian citizen.  The wife is originally from Jamaica.  The parties married on [date omitted] 2005 in the State of [omitted], United States of America.  Since then they have lived in Australia.  The husband has two adult daughters, both married.  The older daughter lives in Queensland and the younger daughter in Melbourne.  The husband has a sister, a witness for the wife in the proceeding.

3. The wife is a [religion omitted], something that the husband says was part of the reason for the breakdown of their relationship.  The husband says that at the time of the marriage the wife was a non-baptised [religion omitted].  He said she would only attend a brief meeting once a week.  He says that over the 10 years of marriage his wife’s religion progressed to what he would describe as an obsession.  He says he was pushed aside ignored and eventually preached to in religious terms.

4. He says that eventually he told the wife that they were separating and on 31 March 2014 he moved to a separate bedroom at one end of the house.  The house has four bedrooms and three bathrooms.  Two of the bedrooms have ensuite bathrooms.  The parties used one as the matrimonial bedroom and the husband says he moved to the other leaving the wife in the original bedroom.  He says that there was no sexual intimacy after 31 March 2014.  He says that he told the wife on 31 March 2014 that they were separating and that on many occasions after he repeated it.  He said that the phrase he used was “separation leading to divorce”.  He said that the wife kept denying it and he would say you can’t deny it.

5. The wife had stopped working some time prior to 2014 and so the husband was the sole income earner in the family.  He says that prior to 31 March 2014 he had done most of the cooking, that he would usually cook more than he needed and the wife would share it or eat it later as leftovers.  He said that this continued after 31 March 2014.  The household bills were paid some by direct debit, some by him and some by the wife from money he placed in her account for this purpose.  From this money she paid the utilities bills and medicine for her diabetes.

6. The wife says that after 31 March 2014 their marriage remained the same.  They continued to sleep in the same bedroom.  They continued to have sexual intimacy on numerous occasions.  She says that she did the house cleaning and laundry prior to 31 March 2014 and that continued after 31 March 2014.  She says they remained together as a married couple until 31 March 2015.  The separation occurred after she gained access to the husband’s emails and found compromising pictures of him with another woman.  She says this was the day the husband moved to the second bedroom.

7. In cross examination the husband acknowledged that to relatives friends and others they would have appeared to be still together as a married couple.

8. On 24 September 2014 he took the wife to the movies at [omitted] shopping centre using Gold Class tickets.  He had been given the tickets in August 2013, they were due to expire and he said he did not want to waste them.  The parties went together.  He drove the wife to and from [shopping centre omitted].  The husband says they did not buy food but he acknowledged a receipt which shows the purchase of popcorn.

9. On 24 September 2014 his two daughters and their families attended a barbecue at the parties’ home in [suburb omitted].  The elder daughter was visiting from Queensland with her new baby.  The daughter was staying with her mother.  The husband cooked the barbecue and each daughter brought food.  The husband acknowledged that this was a normal family barbecue.

10. The elder daughter invited the husband and wife to come to Queensland for a holiday. She could make a reservation at a resort.  The husband said he said at this stage yes, we will see how things develop.  The husband’s evidence is they could not have gone together because they were separated, but he did not give that as a reason to his daughter.

11. Only the husband went to Queensland in January 2015.  The wife says this was because the husband said they could not afford airfares for both.  The husband denies this and says it was because the wife had an appointment for a telephone interview with the American Embassy in Manila in relation to her claim for a United States pension.  The wife says that she did have that appointment.  She says the husband’s daughter and then she, the wife, suggested to the husband they could come home a couple of days earlier but the husband rejected the suggestion.  The husband says this is not the case.

12. The husband’s daughter did not give evidence so it is not known what she thought about her father’s marriage when he stayed with her and her family in January 2015.  However the husband said he became interested in another woman whom he said he met in Queensland. On the husband’s evidence, his daughter when she invited both husband and wife to holiday in Queensland believed that the husband and wife were still together in a normal married relationship. 

13. In 2014, probably in the latter part of the year, although this is not clear from the evidence, but after 31 March 2014 the husband learnt of a relative, Ms S, living in England, whom he had not known about.  This was because his sister was researching family history.  He had communication by Facebook text message with the relative, Ms S, and her father.  Among other things he told Ms S he was married, his wife’s name and that she was Jamaican.  This led to the response that her father’s wife was a Bahaman.  He did not say that he and his wife were separated and the inference is that Ms S and her father would have accepted that the husband and his wife were living as a married couple.  At Christmas 2014 Ms S and her family sent a Christmas card addressed to both husband and wife.

14. The wife is a [religion omitted].  The husband drove the wife to evening meetings because she did not drive in the dark.  He drove the wife and two others to a meeting or convention at Ethiad Stadium in August 2014.  He did not attend but waited and then drove them home.  He drove the wife to other weekend events.  The husband says this did not occur after 31 March 2014.  The wife says it did.

15. The husband returned home from Queensland on 9 January 2015.  The wife says she and the husband watched a film called Bad Boss.  She says there was a passage in it which included one of the characters saying to another “you’re just using her hole for your dick”.  She said she and her husband were sexually intimate that evening and she used the same expression in jest while they were being intimate.  The husband said he did not watch the film but said that the wife did recite some of the dialogue to him.  He denied that they were sexually intimate.

16. The wife says that after coming back from Queensland the husband talked about a woman he had met.  She said to him do you want to endanger your marriage. She obtained access to his telephone records and his email.  She found compromising pictures of him and another woman.  That led to the separation and the husband moving to a separate bedroom on 31 March 2015.

17. The husband’s sister, Ms W filed an affidavit on behalf of the wife and she gave oral evidence.  Her evidence is that she learnt of the husband and wife’s separation when the wife rang her in late March or early April 2015.  The sister said that the wife told her that she had found compromising photographs of the husband on the computer and they had separated.  She considered that the parties had not been separate and apart prior to that.

18. The sister has a family dinner every Good Friday and the husband and wife attended.  They did so on 18 April 2014.  On Sunday, 20 April 2014 the husband and wife attended a family picnic.  Other occasions the sister described were dinner on Friday night in August 2014 after the sister and her husband had been on holidays.  They brought a souvenir as a gift. The sister described it as a “normal Friday night thing”.  At the end of September they had a slide night.  In October the sister and her husband and the husband and the wife drove together to look at a retirement village and then to Rosebud and had lunch.

19. The sister had her 2015 Good Friday dinner after the wife had told her of the separation.  She said she noticed no change in the behaviour of the husband and the wife.  [Date omitted] 2015 was the wife’s birthday.  A few days before she rang to ask if they could come over for afternoon tea and she would bring something.  She and her husband had afternoon tea with the husband and wife and again she noticed no difference in their behaviour towards each other.

20. The wife says that on her birthday [date omitted], 2015 the husband brought flowers and a carrot cake.  The husband says this did not happen.

21. The husband went to Thailand in May.  The wife believed he had gone to Darwin.  The wife was served with the divorce application while he was away.  The wife says that before he left he said to her that she would receive divorce papers but it didn’t really mean that.  The husband denies that he said this.

22. The sister says she discussed the separation with her brother.  She said she did a lot of yelling.  She now has no contact with her brother.  She first knew that the husband was saying that he and the wife had separated on 31 March 2014 was when she saw his affidavit for the divorce.

23. The ground for divorce is set out in s.48 of the Family Law Act 1975 (Cth).

    (1)  An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

    (2)  Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied 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.

    (3)  A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

24. Section 49(2) provides:

    The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

25. There is no corroboration of the husband’s claim that the parties lived separately and apart from 31 March 2014.  Cases decided soon after the commencement of the Family Law Act  1975 (Cth) say corroboration should generally be required when parties assert there is separation under one roof – Wiggins and Wiggins [1976] FLC ¶90-05, Pavey and Pavey [1976] FLC ¶75-209.However it is not a compulsory requirement and in this case the consideration that parties might be acting together to assert that they have separated yet remained living under one roof in order to obtain a divorce when they are not entitled to it does not exist.

26. The husband acknowledges that nobody knowing the parties would be aware that they had separated.  While this is a consideration it is not decisive but it is a factor in determining which parties’ version should be accepted for the purpose of determining the application.

27. On the husband’s evidence the test laid down by Watson J in Todd and Todd (No.2) [1976] FLC¶ 90-008 is satisfied:

    Separation can only incur in the sense used by the Act where one or both of the spouses formed the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.

28. Communication of the intention to sever to the other party is necessary – Falk and Falk [1977] FLC ¶ 90-247 at 76, 333.

29. The husband’s evidence is that at the end of March 2014 he told the wife that they were separated and then moved to a separate bedroom.  Despite the interaction between the parties and the common attendance at social occasions the husband says that he continued to say to the wife that there was separation leading to divorce.

30. Only one party can be telling the truth about the circumstances of their marriage after 31 March 2014.  While assertions by each party about the extent to which each undertook domestic chores might be a matter of impression by each party about what occurred, that cannot be the case with use of bedroom and engaging in sexual intimacy.

31. There are several reasons why I prefer the evidence of the wife.  The husband’s explanation for the lack of communication to members of his family is unconvincing.  He says it was a private matter.  His relationship with his sister was good and the two families shared normal family social occasions.  His sister’s description of the family events is not challenged. 

32. When his sister, researching the family history, found the unknown relative, Ms S, the husband said he had considerable conversation with his sister.  He said his sister and the wife discussed it and there was particular interest in the common Caribbean connection of the wife being Jamaican and Ms S’s father’s wife being Bahaman.  The husband communicated with both Ms S and her father and told them he was married to a Jamaican.  If the parties were separated it would be remarkable if in these communications and discussions no hint of the parties being separated became apparent. 

33. The family occasions went to the extent of the husband and his sister and their spouses spending the day driving together to inspect a retirement village and then on to have lunch.

34. The evidence of both the wife and the husband’s sister is that the wife told the husband’s sister of the separation occurring in March 2015 in late March or early April 2015.  There were two family occasions after that, the sisters Good Friday dinner at her house and the wife’s birthday afternoon tea on [date omitted] 2015 at the husband and wife’s house.  The sister said she noticed no difference in the husband and wife’s relationship on those occasions to the earlier occasions.  The husband and wife came together in the same car to the Good Friday dinner and the sister said she did not think they were separated because if they were they would have come in separate cars.  On the second occasion, the afternoon tea, she said she was surprised that they were together and she thought they were patching things up.

35. The sister has not spoken to the husband since early May 2015, and so soon after the birthday afternoon tea on [date omitted] 2015. She spoke to the husband about the separation sometime after the wife told her of it.  The husband’s explanation for the separation was that it was coming for a long time.  He referred to the wife’s practice as a [religion omitted] and that she was not working.  The sister said he did not tell her that he and the wife had been separated since March 2014.  The sister said that she learned the husband was saying he separated in March 2014 when she saw his affidavit.  This was mid May 2015 at the earliest.

36. The sister’s credibility is not challenged.  She was a convincing witness and I accept what she says is true.  The wife told the sister that the wife and the husband had separated on the 31 March 2015 shortly after it had happened.  This could be a self-serving statement but in the context of the other evidence it is significant and relevant in determining whether they were living separately and apart.  How married couples present themselves to those outside the marriage, particularly close family members is significant in determining whether there is separation under the one roof.  If the parties separated on 31 March 2014 and the husband told the wife this was leading to divorce, as the husband alleges, then neither the husband nor the wife told the husband’s sister.  Immediately after 31 March 2015 the wife told the sister of the separation.

37. The wife told the sister the separation under the one roof was on 31 March 2015.  I consider it improbable that the wife did not tell the sister of the “separation leading to divorce”, the husband’s evidence of what he said many times to the wife, well prior to March 2015 if what the husband says is true.  I consider it improbable that on all the occasions the husband and his sister were together or conversing between 31 March 2014 and 31 March 2015 that something was not said or done which would have alerted the sister to the changed relationship between her brother and her sister-in-law.

38. This is reinforced by the sister’s description of the discussion she had with him about the separation.  The sister believed that the separation had only just occurred.  The husband said to her that it had been coming for a long time but did not say the husband and wife had been separated since 31 March 2014.  The husband and his sister were close.  Obviously she was letting the husband know that she disapproved of his behaviour.  He told her it had been coming for a long time yet did not say that they had been separated since 31 March 2014.  The sister was critical of the husband’s behaviour, she did a lot of yelling, which presumably included his relationship with another woman.  If the husband was attempting to justify his behaviour logic suggests he should tell his sister that he and the wife had been separated, sleeping in separate bedrooms, since 31 March 2014.

39. The elder daughter invited both the husband and wife to share a holiday with them in accommodation booked by the daughter in Queensland.  The husband says that when the invitation was initially given at the barbecue on 24 September 2014 he said at this stage yes and see how things develop.  He did not tell the daughter that he and the wife were separated notwithstanding that he claims that he knew then they could not go because they were separated.

40. The wife did not attend and the husband says the explanation he gave his daughter was the wife’s appointment for a telephone interview with the American Embassy in Manila.  The younger daughter was with the rest of the family at the accommodation.  The husband says he told both his daughters he was interested in another woman.  He did not give evidence that he told his daughters or either of them that he and the wife were already separated.  Neither daughter gave evidence which reinforces the conclusion I draw that the husband did not tell his daughters he was already separated.

1. Upon being told he was interested in another woman, the obvious conclusion the daughters would come to is that the husband was contemplating separation from the wife.  The probability is that if he was already separated and this was leading to divorce he would tell his daughter’s when he told them he was interested in another woman.  The explanation for not telling the daughters of the separation is that he was not separated.

2. If the husband was close enough to his daughters to tell them that he was interested in a woman other than his wife and he was in fact already separated from his wife, he could be expected to tell his daughters.  He does not say that he did and I conclude that he did not.

3. The wife’s description of the evening of 9 January when the husband returned from Queensland is the sort of thing which is unlikely to have been made up.  The husband acknowledges some of it that is that the wife repeated the phrase from the film.  He denies the rest.  Given that I accept that other evidence corroborates the wife, I accept what she says is correct, and that includes that the parties in January 2015 were still living together in the same bedroom and engaging in sexual intimacy.

4. The husband acknowledges behaviour which gave no hint to relatives, particularly his sister, and others that they were separated.  In this context the husband’s evidence of living separately and apart and telling the wife that they were separated leading to divorce lacks credibility.  Overall I am satisfied that what the wife is saying is correct and what the husband is saying is incorrect.

5. I find that the parties separated no earlier than 31 March 2015.  The divorce application was filed by the husband on 1 May 2015.  The parties have not “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”, the requirement of s.48(2) of the Family Law Act 1975 (Cth).

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  24 July 2015