Callen and Callen
[2009] FMCAfam 1343
•7 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALLEN & CALLEN | [2009] FMCAfam 1343 |
| FAMILY LAW – Divorce – response to divorce alleges wife suffers severe mental impairment – medical evidence that wife suffers from epilepsy – epilepsy not a mental illness – response dismissed. |
| Family Law Act 1975, ss.48, 48(2), 48(3), 49(1) Evidence Act 1995 (Cth) |
| Harris, P. et. al. (eds.) (2006) Mosby’s Dictionary of Medicine, Nursing & Health Professions (Australian and New Zealand edition), Sydney: Mosby Elsevier Young, L. & Monahan, G. (2009) Family Law in Australia (7th edition), Chatswood, New South Wales: LexisNexis Butterworths |
| Applicant: | MS CALLEN |
| Respondent: | MR CALLEN |
| File Number: | MLC 4732 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 7 December 2009 |
| Date of Last Submission: | 7 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person via telephone link |
| Counsel for the Respondent: | Mr Hutchings |
| Solicitors for the Respondent: | Women’s Legal Service Victoria |
THE COURT FINDS THAT:
The Applicant Wife is domiciled in Australia at the date of filing of the Application For Divorce (Application For Divorce filed 29 May 2009).
The parties were married in the State of Victoria, [in] 1999.
The ground that the marriage has broken down irretrievably is proved based on a separation date not later than 1 October 2007.
THE COURT ORDERS THAT:
A divorce order be made.
THE COURT DECLARES THAT:
There are no children of the marriage to which the divorce order applies.
THE COURT FURTHER ORDERS THAT:
The divorce order will become final in one (1) months time.
There be no order as to costs.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Callen & Callen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4732 of 2009
| MS CALLEN |
Applicant
And
| MR CALLEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for divorce filed by Ms Callen (“the wife”) on 29 May 2009. This application is opposed by Mr Callen (also referred to as [Mr Callen] in the relevant marriage certificate) (“the husband”) on the basis that the wife “may not be competent in these proceedings due to severe mental impairment”.
In his Response to Divorce filed 7 July 2009, the husband describes the wife as suffering from grand mal epileptic seizures.
In support of her application, the wife relies on the following affidavits:
·her affidavit sworn and filed on 30 October 2009
·the affidavit of her father Mr T sworn on 28 October 2009 and filed on 30 October 2009
·the affidavit of her lawyer Geraldine Joyce sworn on and filed on 13 November 2009.
The husband’s response is supported by his affidavit sworn on
29 September 2009 and filed on 1 October 2009. His affidavit essentially attaches a long letter addressed to the Court.
In her affidavit filed on 30 October 2009, the wife states at paragraph 2:
“I object to the entirety of the Respondent Husband’s Affidavit filed 1 October 2009 on the basis that the material is irrelevant, mere unqualified opinion, argumentative, scandalous hearsay and or unnecessary and I seek the material be struck out”.
The Court agrees with the wife’s submissions, and I indicated when the matter came before me on 18 November 2009 that the vast majority of the material was indeed irrelevant, or contained mere unqualified opinion, or was argumentative, or contained scandalous hearsay. That having been said, I note that I directed that these proceedings continue on the basis of the husband’s allegations, that the wife’s medical condition would result, in his view, in her being unable to form the appropriate intention to separate and otherwise bring these proceedings.
On both 18 November 2009 and today the wife was represented by
Mr Hutchings of Counsel while the husband appeared in person via telephone link.
Background
The wife’s affidavit, in particular at paragraphs 4-8, provides a brief history of the relationship. There is no dispute that the parties were married in Victoria [in] 1999. There is also no dispute that the husband has four children from a previous relationship and the wife has two children from a previous relationship. Whilst the children resided with them during their relationship, none lived with either of the parties at the time the wife alleges the parties separated, that is 1 October 2007.
The parties were charged in late 2006 with various sexual assault offences against the wife’s biological children. The parties were subsequently tried and convicted in October 2007 and both are serving lengthy prison sentences, but have indicated that they are or will be appealing the severity of those sentences.
The husband has been incarcerated at [omitted] Prison since October 2007 and the wife at the [D] Centre, also since October 2007.
The wife details her medical condition in paragraphs 9-10 of her affidavit. She admits suffering from epilepsy, having been diagnosed with that complaint in 1990. It is noteworthy that Ms Joyce’s affidavit attaches as exhibit “GJ5” a medical certificate from Dr G at [omitted] Hospital, dated 5 May 2009, indicating that the wife’s condition is, in his words “well controlled”.
The husband asserts that the wife’s medical condition is a serious one, that would have affected her ability not just to bring these proceedings, but more importantly her ability to have formed an intention to separate on 1 October 2007 as she alleges, despite the fact that both had been incarcerated by that time, and subject to their appeals, likely to remain incarcerated for a number of years to come. The husband disputes
Dr G’s diagnosis and believes the wife should be psychiatrically examined.
The law
The law in relation to divorce in Australia is relatively simple. The applicant must establish, pursuant to section 48 of the Family Law Act 1975 (“the Act”), that the relevant marriage has broken down irretrievably. Pursuant to section 48(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.”
Section 48(3) states:
“A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.”
What this section tells us is five things:
“(a) to establish irretrievable breakdown, it is necessary to show that the parties have separated and lived separately and apart for not less than 12 months [prior to the filing of the application]; (b) separation for 12 months is the only method of proving irretrievable breakdown; (c) if 12 months’ separation is proved, a divorce order must be made unless (d) the court is satisfied that there is a reasonable likelihood of cohabitation being resumed; and, (e) if so, but only in that case, a divorce order must be refused.”[1]
[1] Young, L. and Monahan, G. (2009) Family Law in Australia (7th edition), Chatswood, New South Wales: LexisNexis, Butterworths, p.191.
Section 48 is further qualified by section 49(1) which states:
“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.”
As to matters of evidence, Mr Hutchings for the wife is correct when he states that the rules of evidence and more specifically the Evidence Act 1995 (Cth) applies in respect of divorce proceedings.
Although separation is not specifically defined in the Act, there is a wealth of judicial authority dated back to 1976 that separation in substance, not just in a physical fact, is required. In other words, one or both of the parties must have the necessary intention to separate and must act upon that intention. There also needs to be evidence that the required intention was communicated to the other party by words or conduct.
The decision
In this case, I am satisfied that the parties were physically separated in October 2007. The wife asserts she formed an intention and remained separated at that time by her decision to cut off any association with the husband. Her affidavit evidence supports this. Her intention seems crystallized in her decision to ask the prison authorities to return the husband’s correspondence. I refer in particular to Ms Joyce’s affidavit. In addition I am satisfied that the husband was aware of this significant change in their relationship.
Exhibit “GJ3” annexed to Ms Joyce’s affidavit supports this view. Consequently, I am satisfied that subject to one further matter relating to the wife’s mental capacity to form an intention to separate, that the sole ground for divorce is established.
The wife’s medical condition is alleged by the husband to act against her forming the intention to separate, and consequently bringing these proceedings. His view is based on the long history he has shared with the wife. It is a view not shared by the wife and, more objectively, not shared by the available medical expert, Dr G. Dr G’s certificate does speak for itself.
Epilepsy is not a mental illness; epilepsy is a neurological disorder. According to the 2006 Mosby’s Dictionary of Medicine, Nursing & Health Professions (“the Dictionary”):
“Epilepsy is a group of neurological disorders characterised by recurrent episodes of convulsive seizures, sensory disturbances, abnormal behaviour, loss of conscious or all of these. Common to all types of epilepsy is an uncontrolled electrical discharge from the nerve cells of the cerebral cortex. Although the cause of the epilepsy is often unknown, in children it more frequently has a genetic detrimental basis, and in adulthood, it is associated with cerebral trauma, intracranial infection, brain tumour, vascular disturbances, intoxication or metabolic disturbances.”[2]
[2] Harris, P. et. al. (eds.) (2006) Mosby’s Dictionary of Medicine, Nursing & Health Professions (Australian and New Zealand edition), Sydney: Mosby Elsevier, p.623.
The Dictionary goes on to provide the following definition of what it describes as “epileptic dementia”:
“Epileptic dementia [is] a loss of cognitive and intellectual functions that develops in some cases of incompletely controlled epilepsy. Symptoms include slowness and circumstantiality of speech and narrowed attention span.”[3]
[3] ibid, p.624.
As I have indicated, Dr G’s medical certificate dated 5 May 2009 states:
“She has been well since I last saw her in October 2008 apart from a single cluster of brief seizures, minor and partial in nature without generalized convulsions, which were in the context of some stress related to her daughter’s birthday, this was on [date omitted]. As noted, she was seizure free until April 2008, about 12 months beforehand. The cluster of seizures was probably since you [the letter being addressed to the Medical or Nursing Officer in Charge at the [D] Centre and copied to Prof C and Dr M] last saw her in February.
…
“She is currently on Topiramate and sodium valproate. I have not made any alterations to her medication regime. I have recommended that she should come back in about 6 months time for our next scheduled review. She does not need any further EEG or MRI at the moment if her seizures remain quite simple.”
In other words, the medical report is evidence that the wife’s neurological disorder is receiving treatment and that she is taking the appropriate medication for the regulation of that disorder.
If one speculates for a moment and accepts the husband’s argument, it would equally apply as to whether the wife had the necessary intention to marry. The onus in such circumstances also rests upon the party alleging such. The husband does not allege that she was suffering such incapacity in 1999, yet she was diagnosed with this neurological disorder in 1990.
I understand the husband is disappointed with the wife’s decision to pursue these proceedings, particularly whilst they are both in jail, but she has that right.
Given all the circumstances, I am satisfied that the sole ground for divorce has been established and I make the following findings, declarations and orders:
“THE COURT FINDS THAT:
1. The Applicant Wife is domiciled in Australia at the date of filing of the Application For Divorce (Application For Divorce filed 29 May 2009).
2. The parties were married in the State of Victoria, on [in] 1999.
3. The ground that the marriage has broken down irretrievably is proved based on a separation date not later than 1 October 2007.
THE COURT ORDERS THAT:
4. A divorce order be made.
THE COURT DECLARES THAT:
5. There are no children of the marriage to which the divorce order applies.
THE COURT FURTHER ORDERS THAT:
6. The divorce order will become final in one (1) months time.
7. There be no order as to costs.
8. All extant applications be otherwise dismissed.”
I reserve my right to settle the reasons for this decision.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Monahan FM
Deputy Associate: M. Raggatt
Date: 15 February 2010
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