Cadoret and Cadoret
[2003] FMCAfam 443
•16 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CADORET & CADORET | [2003] FMCAfam 443 |
| FAMILY LAW – Divorce – defended – date of separation disputed – long marriage. PRACTICE AND PROCEDURE – Evidence – corroboration. Family Law Act 1975, ss.48, 49. Fenech and Fenech (1976) FLC 90-035 |
| Applicant: | MR CADORET |
| Respondent: | MS CADORET |
| File No: | PAM 2465 of 2003 |
| Delivered on: | 16 September 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 16 September 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Burke |
| Solicitors for the Applicant: | Christopher M Edwards |
The Respondent appeared on her own behalf.
ORDERS
The Application is dismissed.
The Application is removed from the Pending Cases List.
I require a transcript for the reasons for my decision.
IT IS NOTED that publication of this judgment under the pseudonym Cadoret & Cadoret is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2465 of 2003
| MR CADORET |
Applicant
And
| MS CADORET |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the husband for dissolution of the marriage of the parties which was celebrated [in] 1973. There are three children of the marriage who are all over the age of eighteen (18) years.
The application was signed on 28 May 2003 and filed on 19th June. In the application the husband in answer to question 11:
“When did you and your spouse separate?”
indicates that it was some time in 1995. He does not specify either a day or a month.
The wife has filed a Response. In that Response, which was filed on 26th July, having been prepared that day, the respondent wife said that she wished to attend Court. She raised a correction about the place of the marriage but in particular she denies the date of separation alleged by the husband and says that the date of separation was 1 March 2003. In her Response, she summarised her case saying:
“Although I moved to a different bedroom around this time, I still took care of the family by cooking, cleaning, washing, shopping for them, et cetera”.
The wife explained that the reason for leaving the matrimonial bedroom was due to the sickness of their daughter. She further refers to the husband being away from home on many occasions. She specifies that in the years 1999 and 2000 the daughter commenced school in Sydney and that required her and her daughter to live in Sydney, but it is the case that the wife and the daughter returned home to where the husband remained resident on weekends.
The wife went on to say that the daughter left home in the second half of 2002. The wife says that she remained at the matrimonial home as the children had expressed a desire for the family to spend the Christmas celebration together, and it is her evidence that she had indicated her wish to separate from the husband on the 1st March 2003.
The matter came before Registrar White in this Court on 4 August 2003 and in view of the fact that a Response had been filed and was being pursued, the Registrar took the step to transfer the proceedings to me on that day and the Application was then listed for a defended hearing. On that occasion, I made an order relating to the filing and serving of any further affidavit material to be relied on by each of the parties to be filed with the Court by 4.00pm on Friday, 5th September.
The applicant filed an affidavit which was sworn on 12th August and was filed on 22nd August. The respondent filed an affidavit sworn 1st September and that was filed in this Court on 3rd September. On the morning of the hearing, the respondent attempted to file a further affidavit in reply which had been sworn this morning. The applicant’s solicitor, Mr Burke, objected to the affidavit being filed and being relied upon as further evidence in the respondent’s case, and I upheld that objection. I made orders relating to the filing and serving of the affidavit material, and the respondent ought to have complied with those directions.
The proceedings saw Mr Burke, solicitor for the husband, cross-examine the applicant extensively. The respondent did not seek to cross-examine the applicant.
The husband's affidavit deposes to a gradual deterioration of the relationship and an increasing estrangement in the 1990’s. He refers to the respondent's growing preoccupation with her religious faith and appears to regard that preoccupation as one of the sources of estrangement between them. He described how their elder daughter left home in early 1995 and how shortly after that the wife moved out of the matrimonial bedroom into another bedroom in the house. He goes on to describe a withdrawing by the wife from interaction with him between 1995 and 1999 and indicates that some time around 1995, some months after the respondent moved out of the marital bedroom, he formed the view that the marriage had irretrievably broken down and he made some alternate arrangements for payment of household debts. He described how during those four years the parties were jointly and severally involved in the preparation of meals and that they occasionally went out socially to either family functions or functions at which their children were involved.
In 1999 the parties' younger daughter was granted admission to attend the [omitted] High School. In January of that year the wife and daughter moved out of the matrimonial home and moved into the wife's mother's residence at [R]. The consequence of that move, as was put by the husband, was that the wife would form a pattern of staying at the mother's home from Sunday evening until the following Thursday or Friday evening, then coming to stay back at the matrimonial home on some weekends, and on other weekends she would go to other places. It is the father’s evidence that the daughter did return home on the weekends, often without the mother.
The parties’ son remained at home and the father and he continue to reside together. The father’s evidence was that the wife ceased wearing her wedding and engagement rings after January 1999. The wife blurted an anguished response to that evidence from the bar table, seeking to explain that she suffers from arthritis which has affected her ability to keep the rings on her finger.
When the younger daughter finished school she returned to live in the former matrimonial home, but she occasionally visited and stayed at the Grandmother's home in Sydney. The husband gives a list of dates between 1999 and December 2003 when the respondent was away from the matrimonial home. He then described how he had travelled to Japan for work purposes and as he landed at Mascot on 2 March 2003 on return from Japan, there was a message on his mobile telephone from the wife saying:
“Can you come to [R], I have something urgent to discuss?”
He then said he did go to the place at [R] and the wife said to him:
“I've moved out of [K]. I want to separate from you, I want half of everything”.
The wife's affidavit presents a separate account as far as the matters in March are concerned. She concedes to the fact that she had expressed her desire to separate from the husband on the 1st March and she confirms in fact that she told the husband:
“I've left you and I'd like to remain friends. We've both been unhappy for a long time and I don't want to continue living like this”.
She describes how she received two letters from the husband in the subsequent days in which he conveys disheartenment and grief at his realisation of the marriage being over, and she annexes those letters to her affidavit.
The wife conceded that she moved to a spare bedroom in 1995. She explained that it was because one of their daughters was sick with asthma and at that time she was recovering from Ross River fever and glandular fever. It is her case, however, that apart from that the marriage continued as it had done before 1995. She indicates they attended marriage counselling that year. She refers to family functions including a 21st birthday party for their elder daughter, and also makes mention of the younger daughter commencing high school in Sydney in 1999. The wife’s evidence is that she made arrangements for herself and her daughter to live at her mother’s home in Sydney, with the intention that they would both return to their original residence where the husband remained resident on the weekends.
She describes how she continued to perform household tasks, and attend family functions, such as a 50th birthday celebration which was for the husband’s brother. She said that at no time prior to March 2003 was she aware that the husband had informed any relatives or friends of separation. She described a family Christmas together at the matrimonial home in 2002 and after a visit to a counsellor in October 2002 and she made a decision to separate in March 2003.
The date of separation between the parties is clearly an issue. To ascertain that is of course a matter of fact and it is certainly a situation where as was submitted to me by Mr Burke, it is not necessary for the Court to establish an actual date of separation as long as the Court can be satisfied that the parties separated for at least 12 months prior to the date of filing the application. Unless it can be shown that the parties have been separated for at least 12 months, the Court has no power to dissolve the marriage. Establishing that separation is a matter of fact.
The importance of establishing a separation of at least twelve (12) months is made clear by section 48 of the Family Law Act 1975, the relevant parts of which are:
(1)An application under this Act for a decree of dissolution of the marriage shall be based on the ground that the marriage has broken down irretrievably.
(2)Subject to sub-section (3), in a proceeding instituted by such an application the ground shall be held to have been established and a decree of dissolution of the marriage 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 dissolution of marriage.
The use of the words “if and only if” imposes a mandatory obligation on the Court to be satisfied that there has been a separation for no less than twelve (12) months. The Court has no power to shorten the time or to backdate the period.
Separation, which includes separation under one roof, is covered in section 49 of the Family Law Act. The section states:
(1)The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2)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.
Accordingly, physical separation is neither a necessary nor a sufficient condition to establish a separation for the purposes of sub-section 48(2). The parties to a marriage may regard themselves as being married even though they are living apart for a period of time. The obligations placed on the Members of the Australian Defence Force when they are conducting an operation or are deployed overseas or interstate, illustrates that point, and reiterated the intention of the applicable section.
The authorities make it clear that there are three elements which constitute the finding that separation has occurred. These elements are:
a)an intention to separate;
b)action upon that determination; and
c)communication of that intention to the other party.
In Todd and Todd (No.2) (1976) FLC 90-008; 9 ALR 410, Watson J said:
“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 martial relationship and act on that intention or alternatively, act as if the marital relationship has been severed”.
The Full Court of the Family Court of Australia has made it clear that there is also a need to communicate the intention to separate to the other party. That communication can be spoken or unspoken: Falk and Falk (1977) FLC 90-247.
Where it is claimed that parties have separated whilst still living under one roof, there is often difficulty in establishing when the separation commenced, or even that it has occurred at all. It is usually not sufficient to provide a list of household tasks done or not done by either of the parties. In Pavey and Pavey (1976) FLC 90-051; 10 ALR 259, the Full Court of the Family Court held that
“…it is not possible to apply some mathematical formula to these activities and determine whether a separation has occurred. Rather, the evidence should examine and contrast the state of the marital relationship before and after the alleged separation”.
The law is unclear about the extent to which the breakdown of the marital relationship must be communicated to other people. In the case of Fenech and Fenech (1976) FLC 90-035, the parties lived in a strained relationship under the same roof but the separation was not apparent to outsiders. This was held not to be sufficient.
It is usually the case that some corroboration is required, but is not mandatory where the parties to a marriage assert that there marriage has broken down but they continue to live under the same roof. I am referred by Mr Burke to section 164 of the Evidence Act 1995 (Cth). Sub-section (1), which is the relevant subsection, says:
“It is not necessary that evidence on which a party relies be corroborated”.
Now, looking at the decision of the Full Court in Pavey (supra), their Honours did say that without a full explanation of the circumstances there is an inherent unlikelihood that the marriage has broken down if the common residence suggests continuing cohabitation. Where one party to the marriage continues to deny that a separation has taken place it can be important that there should be some corroboration, notwithstanding the fact that corroboration to establish a matter is not mandatory. It can be the situation where the strength of the evidence on each side is such that the Court is unable to prefer the evidence of one party over another on a particular point. That corroborative evidence, one way or another, would assist the Court in deciding whether it can be satisfied ‘on the balance of probability’ that the parties had in fact been separated for the requisite length of time.
It is incumbent on an applicant to establish the matters required for the application to succeed.
In the proceedings before me, the respondent was cross-examined at some length. She maintained her view that whilst the relationship between the parties was at an unsatisfactory stage since 1995, it was her belief that the marriage was still continuing. She was certainly of the view that she was continuing to provide household services and she indicated that she had prepared meals when she was there, although at times the husband rejected the meal that was prepared and sought to prepare his own. She maintained her assertion that the move from the marital bedroom was brought about by health reasons for herself and her daughter rather than for any desire to end the marriage.
She maintained that the moving of herself and the parties' younger daughter to the child's maternal grandmother's home in Sydney was for the purposes of facilitating the child's education at the [omitted] High School, and would also allow her and the daughter to assist her mother who was not in good health. The wife maintained that she returned to the matrimonial home on all weekends and for all of the school holidays. She did admit that from time to time she would go away on other activities, especially those involving her church.
She indicated that she had commenced a university course. In cross-examination, the wife was astounded to learn that the husband was not aware, until the day of the hearing, of the fact that she had been undertaking the university course. Her surprise was reflected in her response:
“You're kidding?”
It was put to her that communication between the parties had ceased years ago and she responded to that by saying:
“Not for my part it hadn't”.
She indicated that she was still optimistic that the marital situation would improve, and that would be qualified by the fact that she had been attending her own counselling in October of 2002.
The evidence of each party is not corroborated by the evidence of anyone else. It may well have been that the parties' children, who are now all adults, could have thrown some light on to the question of the separation of their parents, and as to when that took place. Neither party, however, was keen to involve their children in this and that particular decision is obviously to the credit of the parties themselves. There was no corroborating evidence from any other family member on one side or the other, or of friends as to the outside appearance of relationship. It is for that reason that I look at the evidence of the parties themselves to ascertain and be satisfied as to when the separation can be said to have taken place.
As was previously alluded to, there needs to be evidence ‘of an intention to separate’ and I must be satisfied that the parties were ‘acting in a way that indicates separation’, whether it is spoken or unspoken. There is certainly evidence that the respondent wife communicated her view that the marriage was over on the 1st March this year. The husband says the 2nd March, although I note in his letter dated 3rd March, which is annexure A of the wife's affidavit, he refers to, in the fifth paragraph, the words:
“After talking to you on Saturday morning”.
which clearly refers to the Saturday before the letter was written, which was, as the wife said, 1st March.
Mr Burke for the husband tells me that I should not attach any particular weight to the two letters from the husband that are annexed to the wife's affidavit. There was certainly no challenge to the letters. The letters, he submits, do not go to establish a date. There is no doubt that the discussion that took place between the wife and the husband on 1st March was significant. It in fact led to the physical separation which is, on the wife's account, the commencement of the separation of the parties for the purpose of section 48 of the Family Law Act, or the conclusion of the period of separation under the one roof which the applicant's case would imply.
The letter of 3rd March is a poignant letter, as indeed is the one of
7th March which is annexure B to the wife’s affidavit. One cannot fail to be impressed by the depth of the emotion that is contained in the letters and it may well cause some pain for the parties for me to quote some passages of the letters but I feel that it is necessary for me to do so for the purpose of considering the evidence in this matter. The husband's letter of 3rd March begins:
“Dearest [Ms Cadoret – (first name omitted)],
I am deeply sorry the situation has now come to this. I have for the past years earnestly hoped and wished that once the trials and tribulations of raising and educating the kids had passed and the pressures had been removed from our marriage, we could at least live out the later years of our lives together as friends”.
He goes on later in the letter to say:
“Once again, I had hoped that when this time had arrived we could live out what remains of our lives together as friends in a reasonable amount of comfort”.
He further says:
“After talking to you on Saturday morning it is now obvious to even an idiot like me that these hopes will never be realised”.
In his letter of 7th March, Mr Burke for the husband refers me to the final paragraphs. The penultimate paragraph says:
“The ball is entirely in your court now. I've had enough and can no longer live the life I have for past years”.
Earlier in the letter, in the second paragraph, he says:
“It would be great if on Sunday you could tell me what exactly your needs and desires are and how I could help you to achieve these so we can then see if it is at all possible for these to be met without going down the track of divorce, with all the emotive and physical costs that this would bring down on us and our family”.
The third last paragraph of the letter says:
“As I said in my previous correspondence to you, I have always hoped that once you are relieved of the pressures that you have had over the past years and still have, that there would at least be the possibility of us living together again, at least as friends. It has been this wish that has kept me going”.
I reiterate, the letters are poignant, they are written from the heart and they illustrate the emotional pain that the husband was undergoing. He still addresses the wife in terms of affection in the heading of each letter as:
“Dearest [Ms Cadoret – (first name omitted)]”
I am of a view that the letters have weight. They do not, to my mind, suggest letters written by one party to a marriage that had effectively ended in 1995, some eight years before. The tone, the language, the wording, the references to the earlier conversation, all have the raw emotional freshness of a recent emotional wound.
I am satisfied on the evidence before me that for a number of years the parties lived together in a state of distance and unhappiness and that the marital relationship was slowly deteriorating. I am not satisfied that the evidence allows me to find that in 1995, when the wife moved into another bedroom, or in 1999 when the wife and the younger child went to live in the grandmother's home during the week when the child started school, are sufficient for me to find that the marriage had ended effectively on either of those dates. I am certainly of a view that there was a gradual and ongoing deterioration. I would comment that the wife was unshaken in her cross-examination. She was not aware of, she says, any communication by the husband to her or to anyone else that the marriage was over. It was not asked of her that she had communicated an intention to end the marriage prior to the time when she did. It is a matter of great sadness and emotional pain to both parties.
In order to ascertain a date of separation, I must be satisfied that the parties had separated for a period of 12 months prior to the filing of the application, and that in turn would require me to be convinced, on the balance of probabilities, that the parties had been separated for a period of twelve (12) months prior to the filing of the divorce application on 26 July 2003. I am not satisfied that is the case.
It is for these reasons that I make the Orders set out at the commencement of this judgement.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 30 September 2003
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