C and C-M
[2001] FMCAfam 52
•25 May 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
C & C-M [2001] FMCA fam 52
DISSOLUTION OF MARRIAGE – Separation – Application filed before expiration of 12 months separation – Application dismissed.
COSTS – Application without merit – Applicant ordered to pay costs – Family Law Act 1975 s 117 (2)(2A).
| Applicant: | R D C |
| Respondent: | E C-M |
| File No: | ZM3493 of 2001 |
| Delivered on: | 25 May 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 25 May 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| The Applicant | In Person |
| Counsel for the Respondent: | Mr A Crozier-Durham |
| Solicitors for the Respondent: | Calleas Le Brun & Burke |
ORDERS
The application for divorce is dismissed.
The applicant pay the legal costs of the respondent, to be taxed in default.
I direct that the reasons for this judgment be transcribed and that upon revision, stand as the reasons for judgment.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
ZM3493 of 2001
R D C
Applicant
And
E C-M
Respondent
REASONS FOR JUDGMENT
Application for divorce
This is an application for divorce filed by the applicant on 18 March 2001. In the application as filed on that date the applicant has indicated that the date of separation was 17 July 1999. A response has been filed on behalf of the respondent contesting, amongst other things, the date of separation and indicating that the correct date should be 20 November 2000. I have received in relation to the application, affidavit material from both parties. In particular, I have received the affidavit which of course forms part of the application for divorce of the applicant and I have also received, drawn on behalf of the applicant, an affidavit which was sworn 6 March 2001 by C T.
I further received and relied upon an affidavit sworn or affirmed by the applicant on 25 May 2001.
As noted I have received affidavits filed and relied upon by the respondent and in particular, affidavits of E C, the respondent sworn 21 May 2001 and an affidavit of C Y sworn 21 May 2001, together with reliance upon an earlier affidavit which the respondent had filed in other proceedings sworn 26 March 2001 and the response which has been relied upon by the respondent.
Before me today I have heard evidence-in-chief and part cross‑examination of the applicant. It became apparent to me during the course of that cross‑examination that in his evidence the applicant confirmed what he had said in his affidavit sworn 25 May 2001, namely in paragraph 14 where he states:
“We have not been as a married couple since May 2000 and I have had to survive on my own. The respondent is never around and the daughter cleans the house now and then, but not for me”.
In his evidence before this court today, the applicant said: “I thought the marriage was going all right until then” which on the evidence meant until May 2000.
In the circumstances, a submission has been made by counsel for the respondent that there is a fatal flaw in the application for divorce, namely that at the time when it was filed, that is 18 March 2001, the date of separation of May 2000 could not have entitled the applicant to make application for divorce, because obviously there was insufficient time for the 12 months' separation period to have occurred. In those circumstances, counsel urges me to dismiss the application.
In my view, the submission is irresistible. I do not believe it is appropriate for a court to retrospectively amend an application for divorce. The grounds for divorce, the irretrievable breakdown, require separation for 12 months. That requirement could not possibly be met, on the evidence, I have heard at the time of filing this application for divorce. That does not preclude the applicant from making a further application for divorce, relying upon another date of separation, nor does it preclude the respondent from challenging any date of separation which may be asserted.
I make no finding at all in relation to the response whereby the respondent has asserted the date of separation to be 20 November 2000. I simply rely upon the evidence as given by the applicant, referred to by me in this judgment, indicating that separation had occurred in May 2000. In all the circumstances, it is appropriate in my view to accede to the submission made by counsel for the respondent and dismiss this application. I order that the application for divorce be dismissed.
Costs
In this application I have ordered the application be dismissed. Counsel for the Respondent seeks costs. The power to award costs is found in section 117 of the Family Law Act and in that section it is clear that the court may in circumstances where it thinks it is appropriate, award costs. What the section does is to at least create an opportunity for the court to award costs and in subsection (2)(A) of section 117 sets out the matters that I shall have regard to in considering what order is to be made.
I have heard by way of submissions from counsel for the respondent that the financial circumstances of the respondent are set out in material before the court. I have also heard the financial circumstances of the applicant to the extent at least he is gainfully employed as a shift worker and continues to be so gainfully employed. The court obviously can take note of that and note of the asset positions of the respective parties.
I have been urged to exercise my discretion in this matter and reliance was placed upon subsection 117(2)(A) part (c) and reference has been made to the conduct of the party in the proceeding, that is the applicant's conduct and it has been submitted that I should take that into account. In particular, it has been submitted that there is no real attempt in the affidavit material or otherwise to justify the date of separation referred to in the application for divorce, namely 17 July 1999 and indeed, as I noted in my judgment in this matter, the affidavit material filed today by the applicant and particularly in paragraph 14 suggests an alternative date consistent with the evidence which I accept from the applicant that up until May 2000 the situation was, as he put it, he thought the marriage was going all right.
In those circumstances it is clear in my view that the respondent has been brought before this court and engaged the services of legal advice and representation at her own expense. I have noted that it is asserted that the respondent is not a person in receipt of legal aid and I otherwise have regard to the other factors which I take into account in considering the exercise of my discretion on the issue of costs. It does seem to me that sub-sections 117(2)(a)(d) and (f) do not apply. Sub-section 117(2)A(e) clearly does apply, because the proceedings were wholly unsuccessful. I don't think there are any other factors that I need to take into account.
On the material before me, I propose exercising my discretion and make an order that the applicant pay the respondent's legal costs and I do so on the basis that in my view, having heard the evidence, this application was misconceived from the start, the date of separation is not the date referred to as being 17 July 1999, at the very best it was May 2000 and hence at the time the application was filed, the prospects of the application succeeding were indeed not only just remote, but hopeless. In those circumstances it seems to me, having regard to all those other matters that I have referred to, I should accept the submission made on behalf of counsel for the respondent and order costs and I so order. The order of the court will be that the applicant pay the respondent's legal costs of this application.
The orders are:
(1)The application for divorce is dismissed.
(2)The applicant pay the legal costs of the respondent, to be taxed in default.
(3)I direct that the reasons for this judgment be transcribed and that upon revision, stand as the reasons for judgment.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 29 May 2001
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