BORRA & DOSHI

[2020] FCCA 2259

FEDERAL CIRCUIT COURT OF AUSTRALIA

BORRA & DOSHI [2020] FCCA 2259

Catchwords:
FAMILY LAW – Application for Divorce – Contested Divorce – Wife opposes making of the orders – when separation occurred – matter proceeding on submissions – inability to make findings – whether the marriage has broken down irretrievably – Wife’s failure to file written submissions – divorce granted.

Legislation:

Family Law Act 1975 (Cth), Pt. VI, ss. 39(3), 48, 48(2), 55A(1), 55A(1)(a)

Cases cited:

Clarke & Clarke [1986] FamCA 29

Falk, A.E. and Falk, E.M [1977] FamCA 46

Pavey, T.G. and Pavey, J P [1976] FamCA 36

Price & Underwood [2008] FamCAFC

Todd, R.W. and Todd, Y. D (No. 2) [1976] FamCA 12

Applicant: MR BORRA

Respondent: MS DOSHI

File Number: MLC 11033 of 2019

Judgment of: Judge Carter

Hearing date: 19 June 2020

Date of Last Submission: 31 July 2020

Delivered at: Melbourne

Delivered on: 14 August 2020

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Joshi

Solicitors for the Applicant: Joshi Lawyers

Solicitor Advocate for the Respondent: Mr Janowski

Solicitors for the Respondent: Jano Family Lawyers

ORDERS

1. Upon the Application of MR BORRA a divorce order in relation to the marriage between MR BORRA and MS DOSHI , which was solemnised in 2015, THE COURT FINDS THAT:-

   (a)the marriage is proved;

   (b)the Husband was at all material times domiciled in Australia; and

   (c)the ground for the Application for Divorce order, namely that the marriage has broken down irretrievably, is proved.

2. THE COURT DECLARES THAT:-

   (a)there are no children of the marriage to whom section 55A(3) of the Family Law Act 1975 (Cth) applies.

3. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the fifteenth day of September 2020.

4. The Wife’s Response to Divorce filed on 10 January 2020 be dismissed.

5. All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11033 of 2019

MR BORRA

Applicant

And

MS DOSHI

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the Husband’s Application for Divorce, filed on 30 September 2019. The Wife contests that divorce, stating that separation had not occurred as put by the Husband, but the marriage only came to its conclusion when she was served with the Husband’s Application for Divorce on 18 October 2019.

Background

1. The Husband was born in 1986 and is 33 years old. The Wife was born in 1990 and is 30 years old. Both parties were born in India.

2. The parties married in 2015 in City B, India. The Wife asserts that the marriage was arranged by the parties’ families.

3. The Husband appears to have returned to Australia following the wedding and the Wife arrived in Australia on a spousal visa in 2017, citing delay in Australian immigration processes as to why she had not arrived sooner.

4. The parties lived together in a rental property at C Street, Suburb D in the State of Victoria (“the former matrimonial home”).

Procedural History

1. The Husband filed his Application for Divorce on 30 September 2019, and the Wife filed her Response to Divorce, seeking to contest that application, on 10 January 2020.

2. The proceedings came before Deputy Registrar George on 14 January 2020, where orders were made for the proceedings to be listed for Final Hearing before me to commence on 25 May 2020, with orders made for the filing of material.

3. On 25 May 2020, the solicitor for the Wife made an oral application for an adjournment on the basis that the Wife was unable to proceed on medical grounds. It was submitted that she had been suffering from anxiety, depression and panic attacks, and was therefore unable to attend at Court and would not be able to give evidence.

4. The Husband opposed this request for adjournment. The solicitor for the Husband submitted that it was the Wife’s case to prove that separation had not occurred, and needed to bear that responsibility.

5. On balance, I was of the view that it was appropriate for the adjournment to be granted on the basis of the prejudice that might befall the Wife should the matter proceed that day. I note that the Wife also sought to cross-examine the Husband’s witness, Ms E (“Ms E”), a neighbour of the Husband’s sister in the home where the Husband is now residing. The matter was adjourned to 19 June 2020 for Final Hearing and the parties’ costs of 25 May 2020 were reserved.

6. On 13 June 2020, my Chambers received a request from the Wife’s solicitor for a further adjournment, or that the Wife be excused from attending at the hearing. This request was supported by an attached letter from the Wife’s treating psychologist. The solicitor for the Wife sought that should the adjournment not be granted, that the matter proceed by way of written submissions. The solicitors for the Husband consented to this course and on that basis the Final Hearing on 19 June 2020 was converted to a mention to enable procedural orders to be made in relation to the filing of written submissions. Those procedural orders of 19 June 2020 allowed for the Husband and Wife to each file further affidavit material by 26 June 2020 and 10 July 2020 respectively, and that written submissions be filed and served by no later than 17 July 2020 with respect to the Husband and 31 July 2020 with respect to the Wife.

7. The matter proceeded by way of written submissions only. There was no cross-examination or testing of either parties’ evidence. Accordingly, although there are many factual disputes in relation to the date of separation and the extent to which the parties engaged with one another between December 2017 and October 2019, I am unable to make findings in relation to those matters.

The Husband’s affidavit evidence

1. The Husband filed three affidavits in these proceedings, filed on 22 April 2020, 15 June 2020 and 26 June 2020. An affidavit was also filed by Ms E on his behalf on 22 May 2020.

2. The Husband asserts that in early December 2017, he informed the Wife of his intention to separate via telephone, and in response to this, the Wife “threatened to commit suicide if I separated”. He says that around that time he moved out of the former matrimonial home in C Street, Suburb D and moved in with his sister and her husband in Suburb F, and returned to the former matrimonial home on one occasion to collect his personal belongings.

3. The Husband says in his affidavit filed on 22 April 2020 that he continued to pay the rent due over the former matrimonial home until 24 January 2020. He says this was because his name was on the lease, and despite repeated requests to the Wife to either vacate the property or have the lease transferred into her name, she refused. The Husband asserts that once he ceased paying the rent, the landlord of the property sought orders from the Victorian Civil and Administrative Tribunal for the Wife to vacate the former matrimonial home.

4. The Husband asserts that between December 2017 and 18 October 2019, he and the Wife did not have “intimate relations”, and further:-

   …we did not socialise together, we did not live as husband and wife, we both managed our finances separately, except for the rent for the matrimonial home, which I paid for the reasons stated in my affidavit dated 21April 2020.

5. He also says that following the collection of his possessions in December 2017, he did not return to the former matrimonial home.

6. The Husband sets out some of the alleged conduct of the Wife following separation. He says that upon informing the Wife of his intention to separate, she threatened to commit suicide if the parties separated. He says that following that period:-

   I started receiving threatening phone calls from the Respondent and her parents forcing me to live with the Respondent and that if I refused, they would commence false proceedings in India against me and my family.

7. In his affidavit filed on 15 June 2020, the Husband sets out some text messages sent by the Wife to him in January 2018 and March 2019. Those text messages were written in Punjabi and had not been translated by a certified translator. The Husband therefore set out those text messages again along with a certified translation in his affidavit filed on 26 June 2020. On 19 January 2018, the Wife sent the Husband a message saying “Mr Borra please pick up the phone, I cannot live without you”. The Husband responded “I am at job, cannot talk any more than this”. The Wife then sent the Husband a string of messages as follows (noting that the translator’s version of the text messages has been set out):-

   Buddy, take a break

   What is my fault, we are married we should not be staying separate like this

   Please buddy do not do this

   Please come home and take me to meet me with everyone

   I do not want to live alone

   [sic]

8. On 31 March 2019, the Husband sent the Wife a message saying “Sorry, I have nothing to say”. I am unsure what the message from the Wife was that preceded this message. The Wife sent the Husband another string of text messages, as translated by the interpreter as follows:-

   But please buddy try to understand how long it will go on like this…this is not our life living apart

   Buddy what is this that you do not have anything to say, I cannot live without you. Come back buddy there is nothing so adverse that we cannot live with each other

   Tell me one thing, are you happy living apart since last one year? I have not been happy even a single day

   [sic]

Affidavit of Ms E

1. Ms E is a neighbour of the Husband’s sister in Suburb F. The Husband has living in the home of his sister and her husband since December 2017. Ms E’s affidavit in support of the Husband was filed on 22 May 2020.

2. Ms E deposes that in around December 2017, she saw the Husband, his sister and her husband outside of their home in Suburb F with a truck. She says that the Husband’s sister informed her that the Husband had separated from the Wife, and that he was going to attend at the former matrimonial home to collect his possessions. Ms E says that “they wanted someone outside of the family to accompany them to avoid any complications with his wife”, and on that basis, she offered to attend with the Husband at the former matrimonial home.

3. Ms E says that she, along with the Husband and his brother-in-law, attended at the former matrimonial home, and she witnessed the two men load the Husband’s possessions into the truck that day. Ms E says that the Husband has been living at his sister’s home in Suburb F since that time.

The Wife’s affidavit evidence

1. The Wife filed her Response to divorce on 10 January 2020 and one further affidavit in these proceedings on 20 May 2020. There are no further affidavits in support of her positon that the parties had not separated at the relevant time.

2. The Wife sets out in her Response to Divorce that the parties’ marriage in India in 2015 “was an arranged marriage and my family paid for the expenses of the wedding and a cash dowry”. She states that she moved to Australia to live with the Husband in 2017, following some delays in relation to obtaining a spousal visa. At that time the parties commenced cohabitation in the former matrimonial home.

3. The Wife concedes that whilst there were “some difficulties in the marriage”, the Husband “had not communicated to me that the marriage was over”. She relies in part on the fact that the Husband continued to pay the rent for the former matrimonial home until the Wife was served with the Application for Divorce.

4. The Wife says that since the commencement of the parties’ cohabitation, the Husband would spend three nights per week at the former matrimonial home and would be “absent from the house for the balance of the week”. The Wife says that this pattern continued until January 2018 “when the Applicant began residing at the house less and less”. She says at this time the parties communicated mostly via text message.

5. The Wife concedes (albeit a month later than asserted by the Husband) that the Husband attended to remove “most of the household furniture” from the former matrimonial home in January 2018. She says, “However, I have been communication [sic] with him and would visit his place of work on a regular basis”. She gives no details of any communication or alleged visits.

6. The Wife asserts that both of the parties’ families have been in communication with each other and “there have been discussions between them to assist us and deal with issues in the marriage”. The Wife did not file any further material to support that assertion from any member of either extended family.

7. In her affidavit filed on 20 May 2020, the Wife again asserts that the Husband “did not inform me that he wanted to separate or that the marriage was over”. She asserts that between December 2017 and 18 October 2019 (the date on which service of the Application for Divorce was effected upon her) the Husband “continued to come home and have intimate relations with me as husband and wife”. She also says that their families in India remained in contact with the parties during this time, and that her family even contacted the Husband from time to time.

8. The Wife also says:-

   That in the period between December 2017 and 18 October 2019 my husband exercised control over me in various ways such as: asking me to provide him with financial support while continuing to pay the rent on the matrimonial home, removing the furniture in January 2018, and threatening me over my visa.

9. Clearly, this evidence is untested, as the Wife sought to proceed via written submissions and could therefore not be cross-examined in relation to same. However, in any event, the above does little to support her claim that she was unaware of the parties’ separation until 18 October 2019.

10. The Wife did not file any annexures to her affidavits in support of any of the statements made by her, nor did she file any material from other persons supporting her position that the parties continued to remain involved with one another in any sort of capacity.

Written submissions

The Husband’s submissions

1. The Husband’s written submissions were filed with the Court on 17 July 2020. Those submissions set out a brief chronology largely in line with the affidavit material of the Husband, noting that the Wife concedes that the Husband had not resided in the former matrimonial home since January 2018.

2. The Husband’s submissions set out that these proceedings come under Part VI of the Family Law Act 1975 (Cth) (“the Act”), being “proceedings for grant of divorce”. The submissions set out the principle of a no-fault divorce, and that “the only ground for divorce is that the marriage has broken down irretrievably” as there is “no reasonable likelihood that the parties will get back together”. The submissions also note that the Court must be satisfied that the parties have been separated for at least a year in order for a divorce to be granted.

3. The Husband’s arguments are summarised as follows:-

   a)that the Husband considers his marriage to the Wife as having broken down irretrievably, with no reasonable likelihood of reconciliation; and

   b)that the Husband has lived separately to the Wife for a period of over 12 months, having left the former matrimonial home in or around December 2017 and living separately from the Wife ever since.

4. In support of those two main contentions, the Husband again asserts that he did not live with the Wife following December 2017, and “vehemently denies the Respondent’s allegations that he used to live with her for three days in a week, post separation”, a pattern that the Wife asserts continued until January 2018. In support of this, the Husband relies on the text messages from the Wife in January 2018 and March 2019 as set out above. The Husband specifically relies on the message sent by the Wife on 19 January 2018 that reads “What is my fault, we are married we should not be staying separate like this” and of 31 March 2019 that says “Tell me one thing, are you happy living apart since last one year? I have not been happy even a single day”.

The Wife’s submissions

1. The Wife did not file any submissions. They were due to be filed on 31 July 2020. The Wife’s lawyers filed a Notice of Withdrawal on 21 July 2020.

2. As a result of her non-filing, the matter was listed for mention on 11 August 2020 to give the Wife an opportunity to make those further submissions. The Wife did not attend at Court on that day, which was conducted via Microsoft Teams due to the COVID-19 pandemic. An email invitation to the Teams conference had been sent by my Chambers to the Wife and no response was received, nor did she respond to the Notice of Listing sent from Chambers on 6 August 2020. The Wife has otherwise not contacted Chambers. An attempt was made to contact the Wife by telephone both shortly before the matter was called in Court, and again once Court had commenced. On both occasions the call went to voicemail. The Husband’s solicitor confirmed that he had similarly not received any communication from the Wife.

3. I am satisfied the Wife is aware that documents were due to be filed and that the matter was listed in Court on 11 August 2020. She has determined not to attend or to be represented and has determined not to file those submissions.

The law

1. Part VI of the Act relates to divorce proceedings. Pursuant to section 48 of the Act, an Application for Divorce must be “based on the ground that the marriage has broken down irretrievably”.

2. Section 48(2) of the Act sets out that:-

   Subject to subsection (3)…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. In order for a divorce order to be made, I must be satisfied that a number of grounds have been proved. Those grounds include:-

   a)service has been properly effected on the Wife;

   b)the marriage, solemnised in 2015, is proved;

   c)the parties or either of them were at all material times domiciled in Australia; and

   d)the ground, namely that the marriage has broken down irretrievably, is proved. That is, the parties must have lived separately and apart from no later than 30 September 2018.

4. The Wife takes no issue with service, the legality of the marriage, nor jurisdiction as all are uncontroversial. The Husband is an Australian citizen by grant of citizenship, is domiciled in Australia, regards Australia as his home and is ordinarily resident here and has been for over 12 months, satisfying all three jurisdictional requirements as set out in section 39(3) of the Act.

5. Pursuant to section 55A(1) of the Act, I must not make an order for divorce unless satisfied that there are either no children of the marriage under 18, or if there are, that proper arrangements have been made for them. The parties do not have any children, and on that basis, under section 55A(1)(a) of the Act, there is no impediment to me declaring that this ground is satisfied and a divorce order can be made.

6. Accordingly, it is only the ground of irretrievable breakdown of the marriage upon which the Wife takes issue. She asserts that the marriage had not irretrievably broken down on the basis that the parties had not been “separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing” as required under section 48 of the Act.

7. It is the Wife’s position that the parties had not separated until service of the Application for Divorce upon her on 18 October 2019. Whilst there are a number of factual disputes between the parties, upon which I am unable to make findings, the uncontroversial matters appear to be as follows:-

   a)the Husband continued to pay rent over the former matrimonial home until approximately January 2020;

   b)the Husband attended at the home to collect and remove furniture and personal belongings in either December 2017 or January 2018; and

   c)the Wife sent the Husband various text messages in both January 2018 and March 2019 alluding to the parties living separately.

1. The parties are in dispute in relation to the following matters:-

   a)the Wife asserts that the Husband has stayed at the former matrimonial home since January 2018, albeit less than the three nights per week she says he stayed at the former matrimonial home during the marriage. The Husband vehemently denies this allegation and says he has not stayed at the former matrimonial home since December 2017; and

   b)the Wife asserts that she and the Husband have continued to have “intimate relations” as Husband and Wife up until October 2019. The Husband strongly denies this allegation, stating that they have not socialised together or lived as Husband and Wife, and have managed their finances separately from one another (save for the rent over the former matrimonial home) since December 2017.

2. I note that the Husband asserts that the Wife’s family placed calls to him post-separation that were largely threatening in relation to him separating from the Wife. The Wife did not dispute this point, and acknowledged that members of her family had placed calls to the Husband following December 2017 “from time to time”.

3. In the matter of Todd, R.W. and Todd, Y. D (No. 2) [1976] FamCA 12 (“Todd”), his Honour Justice Watson determined that separation may occur “notwithstanding that cohabitation was brought to an end by the action or conduct of only one spouse”. His Honour was of the view that there were three concepts to consider in relation to determining whether separation had occurred; separation, living separately and apart, and resumption of cohabitation. His Honour said:-

   In my view “separation” means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form 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. What comprises that marital relationship for each couple will vary.

   [emphasis added]

4. This concept as highlight above was endorsed by the Full Court of the Family Court of Australia in the matter of Pavey, T.G. and Pavey, J P [1976] FamCA 36 (“Pavey”) at paragraph 13.

5. The Full Court in Falk, A.E. and Falk, E.M [1977] FamCA 46 established that the breakdown of the marital relationship must be substantial. The Full Court at paragraph 19 set out a number of propositions established in the earlier decision of Pavey, including:-

   a)separation can only occur “where one party forms an intention to sever or not to resume the marital relationship and acts upon that intention”, or alternatively, “acts as if the marital relationship has been severed”

   b)in determining whether separation has occurred, “it is necessary to examine and contrast the state of the marital relationship before and after the alleged separation”;

   c)the “constituent elements of the marriage relationship and the significance of each element vary from couple to couple”; and

   d)where the parties “continue to reside in the same residence this must be explained”.

6. The Full Court continued at paragraph 21:-

   The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation. Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communication an intention or change of attitude.

7. Their Honours in Clarke & Clarke [1986] FamCA 29 cited with approval his Honour Justice Watson’s principles as set out in Todd. This was discussed by the Full Court in Price & Underwood [2008] FamCAFC  46 at paragraph 41:-

   In Clarke & Clarke, Fogarty and Nygh JJ cited with approval the further statement of principle set out by Watson J in Todd (No 2) relevant to separation, that is, of living separately and apart. Lindenmayer J, with whom Fogarty and Nygh JJ agreed, explained, citing with approval Todd (No 2), Pavey and Falk, that the cessation of cohabitation involves a severance of the marital relationship, and stressed the importance of both physical separation and severance of the marital relationship. His Honour said:

   However, it is also clear from sec. 49(2) that a separation (i.e. a cessation of cohabitation or a severance of the marital relationship) may be found to exist notwithstanding that the parties continue to occupy the same residence or to perform household duties, one for the other. Conversely the absence of residence under one roof and/or the performance by either party for the other of household duties do not necessarily establish a separation or a state of non-cohabitation.

   The point made here is that parties may lie apart and regard their marriage as continuing.

   [citations omitted]

8. I am satisfied that the Husband moved out of the home in December 2017 or January 2018. That is corroborated by a third party, and is similarly corroborated by the Wife who deposed that the Husband removed the furniture from the home in January 2018. That the parties lived separately from then is similarly corroborated by the Wife’s own text messages, as she refers to the parties’ separation and living apart from that time. The separation was not a secret intention harboured by the Husband. He acted on that intention and moved out of the home. The unchallenged evidence of Ms E corroborates the Husband’s evidence that he has lived at the home of his sister since December 2017.

9. There is no persuasive evidence before me that the parties continued their marriage after that time, or ever resumed it. There was no evidence from the Wife, for instance, that she had continued to undertake duties for the Husband, or that they had continued to socialise together, entertain together or hold themselves out to the public as a couple. At its highest, she says they had “intimate relations” until late 2019. She does not give any details as to the frequency with which she says this occurred.

10. The Husband vehemently denies they parties continued an intimate relationship. He also denies that the parties maintained any relationship after he moved out of the home. Beyond paying the rent, there is no evidence that the Husband continued to provide financial support to the Wife. I accept that he paid rent as his name was on the lease.

11. Taking the evidence as a whole, I am satisfied that the marital relationship was severed when the Husband moved out of the former matrimonial home.

12. It is clear that the Wife was unhappy that the parties had separated, and I accept she does not want to be divorced. However, I am satisfied that each of the grounds has been made out and according, the divorce can be granted.

13. I find:-

    a)the marriage is proved;

    b)the Husband was at all material times domiciled in Australia; and

    c)the grounds for Application for Divorce order, namely that the marriage has broken down irretrievably, is proved.

14. For all of the foregoing reasons, I therefore order that a divorce order be made, with such order to take effect on 15 September 2020.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Carter

Associate: 

Date: 14 August 2020