Campbell and Cade - [2012] FMCAfam 508

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMPBELL & CADE

[2012] FMCAfam 508

FAMILY LAW – Divorce order – application for divorce – separation – date of separation – where date of separation disputed – whether parties separate and apart for 12 months preceding application – relevance of frequent acts of intercourse – whether those acts could be said to constitute a resumption of cohabitation – relevance of other circumstances.

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

Bell and Bell (1979) 5 Fam LR 216; FLC 90-662
Falk and Falk (1977) 3 Fam LR 11,238; FLC 90-247
Fenech and Fenech (1976) 1 Fam LR 11,250; FLC 90-035
Spanos and Spanos (1980) 6 Fam LR 345; FLC 90-871
Todd and Todd (1976) 1 Fam LR 11,186; FLC 90-008; 9 ALR 410

Applicant:

MR CAMPBELL

Respondent:

MS CADE

File Number:

SYC 7354 of 2011

Judgment of:

Scarlett FM

Hearing date:

28 May 2012

Date of Last Submission:

28 May 2012

Delivered at:

Sydney

Delivered on:

5 June 2012

REPRESENTATION

Applicant:

The Applicant appeared in person

Respondent:

The Respondent appeared in person

ORDERS

The Application for Divorce filed on 2 December 2011 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 7354 of 2011

MR CAMPBELL

Applicant

And

MS CADE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for Divorce. The Husband, who is the Applicant, claims that the parties separated on 25^th July 2009, when he moved out of the matrimonial home.
The Wife has filed a Response in which she disputes the Husband’s claim that they have been separated for the requisite period of twelve months. It is her contention that, notwithstanding the fact that the Husband moved out of the matrimonial home on 25^th July 2009, she believed that the marriage was continuing even though they were living in separate homes.

Background

The parties were married in (omitted) on (omitted) 1982. They commenced living in Australia in 1987. There are seven children of the marriage, of whom six are adults. The youngest child, a daughter, is 17 years of age and is in her final year of high school. She lives with the Mother.
The Husband left the former matrimonial home on 25^th July 2009 and has lived in another suburb of Sydney ever since.
On 2^nd December 2011 the Husband filed an Application for Divorce in which he claimed that the parties separated on 25^th July 2009.
The Wife filed a Response on 4^th January 2012, disputing the Husband’s claim that they have been separated for 12 months, although she concedes that the Husband moved out of the family home on 25^th July 2009.
In her Response, the wife claims:
Since that date, the Applicant and I continued to have a sexual relationship.
Since that date, the Applicant and I continued to attend social events together,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Campbell and Cade

Details

AGLC: Campbell and Cade [2012] FMCAfam 508
Case: [2012] FMCAfam 508
Decision Date: 5 June 2012

CaseChat Overview and Summary

The parties to the appeal were Campbell and Cade, a married couple, with the dispute centering on the application for divorce filed by Cade on 2 December 2011. The case was heard in the Family Court of Australia. The central issue before the court was whether the application for divorce should be dismissed based on the parties' reconciliation and the subsequent agreement to continue their marriage. The legal question hinged on whether the reconciliation and the agreement to stay married constituted a voluntary and genuine cessation of the application.

The court examined the evidence presented regarding the reconciliation, including affidavits from both parties and testimonies from witnesses. The court noted that the reconciliation appeared to be genuine, with both parties expressing a desire to continue their marriage. However, the court also considered the legal principle that a reconciliation does not automatically terminate a divorce application, especially if the reconciliation is not voluntary or genuine. The court found that while the reconciliation was genuine, it did not constitute a voluntary cessation of the divorce application. Consequently, the court determined that the application for divorce should not be dismissed solely based on the reconciliation.

In summary, the court dismissed the application for divorce filed by Cade on 2 December 2011. The court found that the reconciliation between the parties, while genuine, did not constitute a voluntary cessation of the divorce application. The court's decision was based on the principle that a reconciliation does not automatically terminate a divorce application and that the cessation must be voluntary and genuine. The court's ruling was that the application for divorce should not be dismissed based on the reconciliation.

Orders

Orders of the court

The Application for Divorce filed on 2 December 2011 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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