Coric & Coric
[2022] FedCFamC2F 1377
•11 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Coric & Coric [2022] FedCFamC2F 1377
File number(s): PAC 5638 of 2021 Judgment of: JUDGE STREET Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – separation under one roof – application for child maintenance in 2014 – letter re child support based on separation received by husband – changed relationship from 15 September 2014 – admission as to being separated under same roof – admission separated seven years ago- irretrievable breakdown of marriage – s48(2) criteria proved by applicant husband – no reconciliation- order for divorce Legislation: Family Law Act 1975 (Cth) ss 43, 48, 48 (3), 49, 50, 79, 117
Evidence Act 1995 (Cth) s 140
Cases cited: Morris v Morris (1972-3) ALR 893 at 896
Pavey & Pavey (1976) FLC 90-05,
In the marriage of Tye (No 1) (1976) FLC 90-028
In the marriage of Lane (No 1)(1976) FLC 90-055
Quigley & Quigley (1976) FLC 90-074
In the Marriage of Falk (1977) 29 FLC 90-247,
Batty & Batty (1986) 10 FamLR 688
Clarke and Clarke (1986) 11 Fam LR 364 at 365
Division: Division 2 Family Law Number of paragraphs: 72 Date of last submission/s: 7 October 2022 Date of hearing: 7 October 2022 Place: Sydney Counsel for the applicant Ms E Clifton Solicitor for the applicant Australian Family Lawyers Queensland Solicitor for the respondent Mr R Barwick, Grounder & Associates ORDERS
PAC 5638 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CORIC
ApplicantAND: MS CORIC
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
7 OCTOBER 2022
THE COURT ORDERS THAT:
1.There is an order for divorce of the parties to the marriage pursuant to s 48 of the Family Law Act 1975 (Cth).
THE COURT DECLARES THAT:
1.That it is satisfied that there are no children who have not attained 18 years of age.
THE COURT NOTES THAT:
1.Pursuant to s 55 of the Family Law Act 1975 (Cth) the divorce order takes effect at the expiration of one month from today.
2.The form of the order is subject to the entry in the Court’s records.
3.This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
4.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Coric & Coric has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These are proceedings as to whether the requirements of s 48 of the Family Law Act 1975 (Cth), (the Act), have been made out by the applicant, husband, so as to obtain a divorce order. The application for divorce was filed on 22 October 2021 and based on a date of separation as being 5 May 2014 albeit the parties continued to live in the same house. That date was founded upon an alleged letter from the Child Support Agency (“the Agency”) dated 5 May 2014 and that being the date on which the respondent, wife, identified the parties as having separated in the application for child support for the youngest child. The applicant treated the marriage as over as at the date of the alleged separation in that application for child support by the respondent.
The response to the application was filed on 3 May 2022. The respondent alleged the matrimonial relationship continued until 15 September 2021.
In 1989, the parties were married within the former Country B now known as Country C. The parties have three children, the youngest of which was born in 2003, being Mr D, and the child support application of 2014 related to him. Mr D’s sister; Ms E, was born in 1990 and his sister Ms F was born in 1997, so they were adults at the time of the child support application.
There has also been filed a further amended initiating application identifying that the applicant seeks relief under s 79 of the Act in relation to a property division. The property issue is not currently before this Court.
The only issue before this Court is whether the criteria under s 48 of the Act has been made out by the applicant. This involves the question of fact as to whether the marriage has broken down irretrievably by determining whether the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing of the application for the divorce order.
CHRONOLOGY
Date Event 1969 Applicant husband is born. 1969 Respondent wife is born. 1989 Parties marry in the Country G. 1990 Ms E is born (first child) 1993 Parties migrate to Australia with child 1995 Applicant husband granted Australian citizenship. 1997 Ms F is born (second child) 2003 Mr D is born (third child) 2005 Date of initial marriage breakdown alleged by applicant husband as respondent wife relocates to Country H. 2009 Respondent wife and children return to Australia having been living overseas for 5 years 5 May 2014 Date of separation in child support application by respondent alleged by applicant husband 15 September 2014
Child Support assessment Letter from the Agency to the applicant husband. 19 May 2015
Parties involved in motor vehicle accident. Applicant husband signs statement- -06 of respondent’s affidavit dated 4 May 2022.
2 July 2019 Parties establish a company in Country H together known as Company J. 24 February 2020 Respondent wife travels to Country H to manage investment properties and is unable to return to Australia due to Covid-19 health measures/travel restrictions until December 2021 2020 Applicant husband forms a relationship with Ms K 2 June 2021 Applicant husband alleges 50% intended transfer albeit 100% transferred of property interest in Country H to the respondent wife. 15 September 2021 Date of separation alleged respondent wife. 22 October 2021 Applicant husband files application for divorce. 13 December 2021 Respondent wife returns to matrimonial home and an altercation occurs. 14 January 2022 AVO Court date- fact sheet separated for seven years 31 May 2022 AVO, by consent, granted against respondent wife for the protection of the applicant husband- fact sheet separated for seven years EVIDENCE
. The applicant read and relied upon the following affidavits:
1.Applicant’s affidavit, dated 27 May 2022;
2.Applicant’s affidavit, dated 3 February 2022;
3.Applicant’s affidavit, dated 29 September 2022;
4.Ms F affidavit, dated 27 May 2022;
5.Ms E affidavit, dated 27 May 2022 ;
6.Mr D affidavit, dated 27 May 2022.
The respondent relied upon the following affidavits:
1.Respondent’s affidavit, dated 4 May 2022;
2.Ms L (translator) affidavit, dated 5 October 2022;
3.Mr M affidavit, dated 4 May 2022;
4.Ms N affidavit, dated 19 May 2022.
There was also tendered into evidence extracts from material produced on subpoena from the New South Wales Police, which was marked exhibit A.
In summary, the applicant’s evidence was that in 2014 he became aware of a letter from the Agency that advised that an assessment had been made requiring the applicant to pay child support and that in the application for child support the respondent had alleged a date of separation being 5 May 2014. The applicant identified that he acted upon that date in the realisation that the respondent had formed an intention to separate, although he believed the marriage had already broken down. The applicant identified that he had mislaid the earlier correspondence from the Agency and no letter dated 5 May 2014 or the application for child support were put into evidence. The applicant also identified he acted upon the intention of the respondent disclosed in a letter dated 15 September 2014 received by him which referred to the parties as having separated.
That letter dated 15 September 2014 enclosed a child support assessment which had full details of the assessment for the period of 22 August 2014 until 21 November 2015 and required the child support to be paid directly to the respondent. The letter dated 15 September 2014 referred in its opening to separated parents being able to apply to the Agency for child support. The letter dated 15 September 2014 is addressed to the applicant at a particular PO Box at Suburb O NSW. The letter was entitled “Child Support Assessment Application Acceptance”.
The letter dated 15 September 2014 identified that the Agency was writing to advise they had accepted a child support application from the respondent. The letter identified having undertaken a calculation of the child support to be paid and included the said assessment for the period from 22 August 2014 to 21 November 2015.
The applicant also relied upon the 2014 date of separation as being corroborated by information in a police facts sheet that, it was submitted identified separation information, which must have come from the respondent that the parties had been separated for seven years.
The applicant maintained in respect of the alleged separation that although they resided under the same roof, they did not live together as husband and wife. The applicant also referred to the relationship as having broken down in 2005 when the respondent left Australia to travel to Country H.
The affidavit of the applicant, dated 27 May 2022, identified receiving a letter from the Agency, dated 5 May 2014. The applicant gave evidence that he realised on the date of receiving the letter from the Agency that the respondent had formed the intention to separate, although the marriage had long since broken down.
The affidavit of the applicant, dated 27 May 2022, identifies the respondent as having received an earlier letter from the Agency which, as identified above, was not put into evidence and on which the applicant was cross examined. The affidavit of the applicant, dated 27 May 2022, separately identifies that a letter, dated 15 September 2014, was received by him from the Agency and referred to separation. The applicant believed he had received earlier correspondence from the Agency but has mislaid it. The cross examination about the mislaid letter and when it came to his notice did not address the obvious notice of intention to separate by the respondent from the fact of separation conveyed by the letter dated 15 September 2014.
The applicant gave evidence that after receipt of the letter, dated 15 September 2014, there was no further intimacy between the applicant and the respondent. The respondent gave evidence to the contrary.
The affidavit of Ms E, the eldest daughter, supports the relationship as having broken down before 2009 and deposes to a conversation in about May 2014 with the respondent about getting child support and an alleged admission in that regard by the respondent that the parties are separated. The affidavit of the second eldest daughter also supports the relationship as having broken down by the time of return to Australia in 2009. The affidavit of the son Mr D who is now an adult supported there being no matrimonial relationship in Country H or since. The son’s affidavit also supported the parties being separated since arriving in Australia in 2009 and living their own lives. The son identified separate support from his from his father.
The evidence of the applicant in relation to the cessation of intimate relations is on one view supported by a statement by the applicant in respect of a motor vehicle accident that occurred on 19 May 2015 involving the applicant and respondent. Another view of the statement is that it supports an ongoing married relationship. The respondent annexed this statement to her own affidavit dated 5 May 2022.
The content of paragraph 14, within the applicant’s statement, relevantly, is as follows:
I note that since the accident my relationship with my wife has diminished. We no longer enjoy the social life we once did and our intimacy has been impacted. My wife has become depressed and anxious and I am not sure if she will be able to return to performing the tasks she did prior to the accident.
The respondent provided in her affidavit evidence in chief no explanation about that diminished relationship, lost intimacy, nor any facts as to continuity of intimacy or attempted intimacy or other explanation such as a change of life.
The respondent in cross examination gave evidence to the effect that she did not understand the nature of the documents that were completed at Centrelink in relation to the application for child support. The respondent alleged the forms were completed by a social worker and that she didn’t understand everything. The applicant gave evidence that she accepted that the forms were filled out. The applicant in response to a question that she made an application for child support said “Maybe that’s so” but referred to the forms being sent off by the social worker. The respondent gave evidence that forms did arrive from the Agency which she put in the draw and her husband found those.
The respondent gave oral evidence that she did not pursue further applications relating to the same, or return them, and that she did not receive child support. The respondent in cross examination made a clear admission in the affirmative that she understood that a requirement for child support was that they were separated. During cross examination the respondent said, “Yes. We were having quarrels at the time but we lived in the same house.”
Immediately after this answer it was put to the respondent wife “You were separated under the same roof, weren’t you?” and the respondent wife said “Yes Yes”.
The respondent gave evidence that she continued to provide a level of homemaker contributions in relation to the children notwithstanding the making of the application for child support and that the parties continuing to live under one roof. The respondent also referred to photographs and overseas travel in support of the contention that the matrimonial relationship had continued after the application for child support. The respondent gave evidence that supported a continuing economic entity between the applicant and the respondent after the application for child support.
The Court heard evidence from a finance broker on behalf of the respondent who was cross-examined. The broker had no insight in respect of the parties’ social and personal lives. The broker’s evidence supported a continuing economic entity between the applicant and the respondent.
The Law
S 48 of the Act relevantly provides as follows:
48 Divorce
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(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.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
S 49 of the Act provides as follows:
49 Meaning of separation
(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.
S 50 of the Act provides as follows:
50 Effect of resumption of cohabitation
(1)For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.
(2)For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.
The legal principles have been usefully summarised in Pavey & Pavey (1976) FLC 90-05 and, in particular, that separation means more than a physical separation, and the Full Court of the Family Court of Australia, in that case, especially referred to separation taking place in circumstances where there still maybe an aspiration as to an improvement in their economic position.
The Court accepts the principles identified by of Evatt CJ, Demack and Watson JJ at 8-11, 15-22, 24 and 29 of Pavey & Pavey, supra, in relation to one or both spouses having to form an intention to sever and not resume the marital relationship, and must act upon that intention. The relevant paragraphs are as follows:
8.In Todd's case it was 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 the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.''
9.We are in general agreement with this statement of the law and wish to add only two qualifications to it. However, as it is a general statement about sec. 48 and 49 it is desirable that we comment upon the several propositions contained in it.
10.We agree that ``separation means more than physical separation'' because ``separation'' is the event which is used to prove the breakdown of the marriage. However, we do not accept the statement — ``it involves the destruction of the marital relationship''. Just as Mr. Bryant submitted that ``repudiation'' had the ring of fault about it, so ``destruction'' has the same ring. In any case, what the Act speaks of is the breakdown of the marriage, so it is appropriate to use the word ``breakdown'' instead of the word ``destruction''. In practical terms, this may make no difference, but it is in keeping with the wording of the Act.
11.It is important to realise that sec. 48 contemplates a very serious alteration in the marriage, which the Act calls a ``separation'', and the continuance of that state, for a period of twelve months.
15.We also agree with the statement in Todd's case that ``what comprises the marital relationship for each couple will vary''. It is for this reason that it is difficult to formulate a satisfactory test in cases where the parties live under the one roof. As sec. 48 is concerned with the marriage of the parties, it is the content of their marital relationship which must be examined, not a definition of what a marital relationship ought to include. This, of course, does not mean that the various statements about the content of the marital relationship are useless. They do provide valuable checklists in each case, but they cannot be applied mechanically. If, during the marriage, the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship, then that aspect of their life may be of little importance in determining whether they have separated.
16.The constituent elements of the marital relationship were referred to in Todd's case in these words: —
``Marriage involves many elements some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.''
17.To this general statement we wish to add but one phrase, ``the nurture and support of the children of the marriage''. This is probably implicit in the various cases to which Todd's case referred but in view of the provisions of sec. 43, 61 and 73 of the Family Law Act, it is important that it be made explicit.
18.In Russell v. Russell, (1976) FLC ¶90-039 Jacobs J. said at 75,174: —
``The recognition by society of rights and duties of husband and wife in respect of the children of their marriage and of the relationship of the children of that marriage to their parents springing from their status as children of the marriage lies not on the periphery but at the centre of the social institution of marriage.'
19.If the parties to a marriage say that they have stayed together for the sake of the children then they are saying that they are endeavouring to fulfil the responsibilities that the law, by sec. 61 and 73, casts upon them both. The relative significance of this will vary from marriage to marriage, but it is always an important element of a marriage.
20.It is also important to recognise that the significance of residing in the same residence will vary from case to case. If the residence has been a ``family home'' in which the parties have lived with their children for many years, to reside there is to continue an observable constant factor which has continued throughout the marriage. Certainly sec. 49(2) does not require the Court to disregard the fact that the parties are residing in the same residence, as was submitted by Mr. Bryant. It simply allows the Court to make a finding in the terms of sec. 48(2) notwithstanding the fact that the parties are residing under the one roof. In that way it removes any possible uncertainty about the use of the phrase ``separately and apart'' in sec. 48(2).
21.Section 72 of the Family Law Act establishes a mutual obligation upon spouses in respect of maintenance, and this aspect of ``mutual society and protection'' is the only one which finds statutory expression. Because of this the failure to maintain or the withdrawal of maintenance, whether by the action of one party or by agreement, may be a significant indication that the parties have separated
22.We adopt the view expressed in Todd's case that: —
``When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
24.There is one other comment upon sec. 49(2) which should be made because it arises directly in this case. The words ``have continued to reside'' used in conjunction with the words ``may be held'' suggest that the residing in the same residence may continue up to the time the Court makes its finding of irretrievable breakdown of the marriage. In other words sec. 49(2) does not require the parties to have moved into separate residences before the decree nisi is pronounced. Of course, if it appears at the hearing that the parties may continue in the same residence indefinitely this may well raise possibilities of reconciliation which must be considered under sec. 48(3).
29.The words underlined are particularly significant in cases where the parties to a marriage continue to live in the same residence, and yet assert that the marriage has irretrievably broken down. In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefor require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the Court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation. For this reason many of the Judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant's evidence in cases where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence. Whether the Judge will require such evidence will depend on the circumstances of each case.
In considering whether there had been a real breakdown in the matrimonial relationship or the consortium vitae, the normal elements a married relationship, the presence of some or all of which would indicate the marriage has not broken down and the absence of any one of which would be some evidence to the contrary are identified by Wilczek J at 12 in Batty & Batty (1986) 10 FamLR 688 as follows:
•Sexual intercourse;
•Dwelling under the one roof;
•Giving society and protection to each other;
•Economical or fiscal unity or co-operation;
•Public recognition of each other as spouses;
•Private acceptance of each other as spouses;
•Communication between the parties during any separations;
•The nurture and support of the children of the marriage;
•The extent of what martial services are still rendered by the parties to each other, etc.
The Court is also mindful of the observation in Batty & Batty (1986) 10 FamLR 688 supra that the parties can be physically separated, even for extended periods without the consortium vitae having come to an end where the reasons for the separation are consistent with the continuation of the matrimonial relationship.
The Court has also taken into account the principles identified by Murray J at 13 and 16 in Marriage of Lane (No 1) (1976) FLC 90-055:
13. I am conscious that a number of authorities decide that a party's state of mind need not be communicated to the other spouse, and in particular I refer to Santos v. Santos (C.A.) [1972] EWCA Civ 9; (1972) FAM. 247. This case however dealt specifically with the question of whether, if the parties be living apart, there is an element required additional to physical separation, and if so whether that element can depend on a unilateral decision or attitude of mind. The Court of Appeal in that case held that there had to be an element additional to physical separation, and that communication by word or conduct was not a necessary ingredient of the additional element. I am of the opinion however, that a different consideration applies when in fact both parties continue to reside in the same residence. Where the latter situation exists, and one party intends to bring the marriage to an end, that party must carry out that intention overtly, unequivocally and specifically. If it were otherwise, this sole ground for dissolution, one year's separation evidencing irretrievable breakdown of marriage, could be grossly abused by one spouse who ``wants the cake and eat it too'', viz. enjoying certain aspects of marital cohabitation, rejecting others as it suits, and then divorcing the other spouse when expedient. That, as I read it, is not the legislature's intention at all
16. This case is very much close to the border, and perhaps if evidence had been given by the older children, I may have heard something further which may have tipped the scales the other way. The authorities say over and over again that where the parties are living together under the same roof, great caution must be exercised in determining whether the consortium vitae has in fact been destroyed. It usually involves considering attitudes of mind, and the difficulty of judicially determining that attitude in any particular case may be great — as it has been in this case. My own belief is that when both parties are residing together, the Court should err on the side of caution on the question of the destruction of the consortium vitae, as otherwise, as I have already said, it could lead to abuse and to injustice.
The Court must take into account the onus of proof on the applicant in being satisfied as to the requirements under s 48 of the Act and the caution given in the authorities against inexact proofs, indefinite testimony and indirect inferences. In applying the requirements of s 48 of the Act, the Court must also have regard to the principles identified in s 43 of the Act.
s 43 of the Act provides as follows:
43 Principles to be applied by courts
(1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure protection from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
(2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.
The present case is not one where there has been a court order for maintenance of the kind referred to in Pavey & Pavey (1976) FLC 90-05. Therefore, the Court must take into account and examine the content of the marital relationship in determining the question of fact as to whether in all the circumstances the marriage has broken down.
APPLICANT’S SUBMISSIONS
The applicant submitted that the respondent plainly approached the Agency in 2014. It was submitted that the Court should not accept the respondent’s evidence that she did not know or understand what the child support application was or what was to happen with it. It was submitted by the applicant that the respondent understood that she has to be separated and understood what she was applying for.
It was submitted that the application for child support was an act identifying the taking of a step by the respondent of an irretrievable breakdown of marriage and that the respondent provided the communication and contact details of the applicant, by reason of which it was communicate to the applicant.
As to how the relationship was different prior to and after that time, Mr Burwick, solicitor for the applicant, submitted that the applicant had been working in Adelaide at the time of the application to the Agency. It was submitted that the GPO box number must have been provided by the respondent. It was submitted that the relationship was different because there was no intimacy. It was also submitted that social interaction had deteriorated and that there was diminished communication.
Mr Burwick, solicitor for the applicant, relied upon the proposition that the intention to separate may be communicated directly or indirectly by words or conduct, In the Marriage of Falk (1977) 29 FLC 90-247. Reference was also made to the decision of Emery J In the marriage of Tye (No 1) (1976) FLC 90-028 that “separation may be brought about by unilateral acts and the relevant date ….. was when the husband decided the marriage was over”. Reference was also made to Morris v Morris (1972-3) ALR 893 at 896 “If all essential qualities of a common life are gone, the parties can be said to have separated”. Reference was also made to Pavey & Pavey (1976) FLC 90-05, supra, as to the need to examine and contrast the state of the marriage or relationship before and after the alleged separation.
It was submitted that it is common knowledge that there must be a declaration in support of the child support application and that the statements in the same are true and correct. It was submitted that the motor vehicle accident statement by the applicant in 2015 corroborates the loss of intimacy. It was submitted, by the applicant, that the source of the police statement of facts regarding the alleged seven years separation must have been conveyed by respondent and it was highlighted that the respondent was in Court when these facts were handed up to the presiding magistrate. It was also submitted by the applicant that the respondent was an unreliable witness.
RESPONDENT”S SUBMISSIONS
Counsel for the respondent referred to the alleged letter with reference to 5 May 2014 that was not produced and to the evidence that he didn’t find the document until at least 2017. Reference was made to the evidence given in cross examination that it was in 2017. It was suggested that there was not the requisite intention if not communicated to him until 2017.
The respondent submitted the date of separation was 15 September 2019 after discovering an extra marital affair. The respondent submitted that a fresh application of divorce will need to be filed. The respondent submitted that her evidence contradicted the applicant’s purported date of separation. Reference was made to s 79 proceedings being on foot and the making of spousal maintenance orders on 5 May 2022.
It was submitted, that whilst there may have been difficulties, there was no irretrievable breakdown of marriage. It was submitted that the consortium vitae of the marriage was very much intact and that the parties continued to live under one roof in the matrimonial home, shared intimate relations and shared a bed. It was submitted that the applicant had not expressed to the respondent an intention to end the marriage. Reference was made to the decision of Evett CJ, Fogarty and Bulley JJ at 21 in the marriage of Falk (1977) FLC 91-778.
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 communicating an intention or change of attitude.
It was further submitted that the applicant had not satisfied the mental component by the applicant failing to express to the respondent his intention to end the marriage with reference to Lindenmayer J at 370 in Clarke & Clarke (1986) 11 Fam LR 364.
Mental element (that is an intention on the part of at least one of the parties to terminate the martial relationship)
It was submitted that the parties continued to raise the children together, take joint holidays, share meals, share expenses and were very much financially interwoven.
It was submitted that there was no dispute that the respondent went to Centrelink and that forms were filled out by a social worker. Reference was made to the respondent not returning documents received from the Agency. It was submitted that this occurred over a 2-3 week period and that the respondent didn’t return the forms because the applicant came back and the parties had reconciled. It was submitted that the evidence was that there were arguments between the parties for 2 weeks.
It was submitted that it was open to the Court to find that the respondent may well have gone down to Centrelink and with the social worker assistance completed the form, but that the respondent did not pursue the same and had reconciled and that the applicant had come back. Reference was made to s 48(3) of the Act. It was submitted that cohabitation resumed in 2014.
Reference was made to elements in Batty & Batty (1986) 10 FamLR 688 and that the alleged absence of sexual relations should not be given too much weight. It was submitted that there may be a variety of reasons why a couple may not be engaging in sexual relations, especially as they get older.
Reference was made to the photographic evidence which it was submitted depicted acts of intimacy. Reference was made to the family travel and the element of sharing a home. Reference was made to the sharing of the matrimonial home as being the most important single component of the marital relationship and that all other components are secondary to it, Quigley & Quigley (1976) FLC 90-074. Reference was also made to In the marriage of Lane (No 1) (1976) FLC 90-055 that if one party intends to bring the marriage to an end that party must carry out that intention overtly, unequivocally and specifically. In the marriage of Tye (No 1) (1976) FLC 90-028 was said to be distinguishable as the couple were not living together. Reference was made to Pavey & Pavey (1976) FLC 90-051 where the Full Court observed that if there is continuing cohabitation the evidence must go beyond inexact proofs, indefinite testimony and indirect inferences.
The Court was reminded of the evidentiary standard as to the balance of probabilities and explaining why the parties continued to live under the same roof and showing that there has been a change in their relationship, gradual or sudden, constituting separation. In submissions the respondent accepted the fact that there was a child support application, but it was submitted that this was only in relation to a 2 week period and the relationship continued after the applicant returned. It was submitted that the respondent did not act upon the requisite intention and that he did not communicate the same to the respondent.
Reference was also made to the decision of Murray J in the Marriage of Lane (No 1)(1976) FLC 90-055 at 13 above and the carrying out of the intention overtly, unequivocally and specifically.
It was submitted that the applicant was enjoying aspects of the marital relationship and rejecting others for the sake of expediency to obtain a divorce. Counsel for the respondent relied upon the continuing economic unity and referred to the joint bank accounts, the respondent controlling the applicant’s bank account, the acquisition of properties since 2014, borrowing of funds, attending a mortgage broker together, establishing a company together. Reference was made to the description by the applicant of the respondent as his wife, the content of the accident compensation form, the translated document 2 June 2021, presenting to the world as a married couple. Reference was made to the evidence of Mr M and the description in the applicant’s affidavit to “my wife” and “the husband”.
It was submitted that significant weight should not be put on the affidavits of the children and there was an assertion of alleged parental pressure. Criticism was made of the applicant’s testimony about why he didn’t initiate divorce proceedings in 2014 or 2017. It was submitted that the protection of the children explanation didn’t accord with the alleged instances of family violence. Reference was made to the applicant’s alleged intimate relationship with a third party, cheating, altercation and having an affair. Reference was made to December 2021 and the altercation resulting in an AVO. It was alleged that the respondent’s actions were the normal reaction of a wife being stuck overseas because of the COVID-19 pandemic and discovering an affair. It was submitted that the alleged instances of infidelity by the applicant was supported by the evidence of the daughter.
It was submitted that if the respondent had an intention to separate in 2014 that was withdrawn and it was submitted that the parties reconciled. Reference was made to the parties cohabiting and the respondent’s assertion of a sexual relationship. It was submitted that the letter dated 5 May 2014 was unlikely to be the date that the respondent attended Centrelink. It was submitted that the Court should not accept the applicant as being a credible witness. Further reference was made to Lane, supra, specifically to the caution to be excised by the Court on the question of destruction of consortium vitae where both parties are residing together.
FINDINGS AND CONCLUSION
It is clear that the applicant identified a document he could not produce, and also the Agency letter dated 15 September 2014 that he did produce. The applicant was not cross-examined to challenge the receipt and notice of the content of the Agency letter dated 15 September 2014 that conveyed the respondent’s intention to separate. More materially the respondent did not offer any explanation in her affidavit evidence in chief concerning the application for child support or the Agency letter dated 15 September 2014. The respondent, in that regard, was on notice of the Agency letter 15 September 2014, its content as to the parties having been a separated, her knowledge as to child support depending on separation, her knowledge or explanation as to the sending Agency 15 September 2014, her knowledge of its receipt by the applicant and had the opportunity to identify acts of alleged reconciliation after the receipt of that letter. These were all matters within the knowledge of the respondent and her failure to properly address the same in her affidavit evidence in chief in answering to the applicant’s evidence supports the Court making the findings open on the applicant’s case. The Court finds that the letter in fact received by the applicant in 2014 from the Agency is the letter dated `5 September 2014 and that it was this letter that came to his notice in 2014.
The application for child support must have identified a date of separation and the Court is satisfied that although the application may have been earlier completed there is an express intention to convey the fact of separation by the respondent acted upon, authorised and communicated by the respondent through the letter dated 15 September 2014 to the applicant. The cross examination on behalf of the respondent adopted a broad reference to 2014 and there is no unfairness in this case in treating the relevant date of separation as being 15 September 2014, rather than 5 May 2014. The Court finds that the date of separation in the present case is 15 September 2014. The Court finds that there was no reconciliation in terms of sexual relations and intimacy between the parties after that date. The Court finds that there was no resumption of cohabitation or of the matrimonial relationship after that date.
The Court does not accept that the respondent did not know that she had applied for child support and did not know that that would be the subject of an assessment, and the Court finds that the respondent provided the GPO Box number of the applicant to the Agency for the purpose and intention of facilitating the communication of the child support assessment to the applicant.
The respondent asserted that their intimate relations continued after the application for child support. The respondent was not an impressive witness as she repeatedly sought to advocate her cause beyond a responsive answer, even after direction by the Court not to do so. Further, beyond generalised assertion, there were no evidentiary particulars or detail given by the respondent in respect of alleged continuing intimacy between the applicant and the respondent after the making of the child support application. It was submitted on behalf of the respondent that the intimacy was only one of a number of factors to be considered in determining whether the criteria under s 48 of the Act had been made out, and that the Court should err on the side of caution where co-habitation continues. The Court has taken this caution into account, however the evidence of the making of the child support application based on separation is in this case compelling and persuasive as to the irretrievable breakdown of the marriage. It is a clear overt act in respect of the respondent’s intention and was authorised to be conveyed to the applicant and was so conveyed.
It was submitted that the marital union had continued as an economic entity in relation to the control of accounts, purchasing of properties, borrowing of funds and establishing a corporate entity. The mutual fiscal benefit from the continuing economic entity in this case does not displace the compelling evidence of an irretrievable breakdown of marriage. The submission that the applicant’s explanation for why he had not earlier applied for a divorce as not being credible, is rejected by this Court. The applicant’s evidence in relation to the explanation for not moving earlier for divorce, referred to his son not yet having obtained the age of 18. The Court finds that that is a credible and corroborated explanation for the continuation of the separated couple remaining under one roof, but not moving for divorce. The Court does not accept that this was mutual maintenance of the child as a couple.
The Court accepts the applicant’s evidence that the matrimonial relationship was not good from 2005 onwards. Following the letter dated 15 September 2014 from the Agency, the Court accepts the applicant’s evidence as to a material change consistent with the communicated intention of irretrievable breakdown by the respondent in the making of the application for child support. The respondent acted upon that intention by the making of the application for child support and the provision of the contact details for communicating the same to the applicant. The Court finds that the continuity of the economic unit from 2014, did not reflect a reconciliation by rather a continued hope of improving the parties’ economic or fiscal position. In this case, the continued residence under one roof and continued economic unit, without the previous intimacy, diminished communication and deteriorated social interaction was a fundamentally different relationship consistent with the applicant acting on the basis that the matrimonial relationship having ceased in 2014. The civility displayed in the photographic evidence, provided by the respondent, and the parties participating in overseas travel does, use of married terms and provision of some household services does not dissuade the Court from accepting that the applicant’s evidence was credible and compelling as to the cessation of the matrimonial relationship in 2014. The applicant’s evidence as to the irretrievable breakdown is also supported by the evidence of all three children, who are now adults.
The communication by the Agency to the applicant on behalf of the respondent is not an inexact proof of the cessation of the matrimonial relationship and supports the finding of separation notwithstanding the caution applicable in respect of continued residence under the same roof.
The Court accepts that, notwithstanding that the parties continued to reside under the same roof, there was a physical separation and cessation of intimacy between the parties from the time of the child support application and the Court also finds that the parties had the necessary intention to separate, as evidenced by the child support application, and finds that the parties acted upon that intention by the respondent making the application for child support and providing the information to communicate the same to the applicant. It was suggested by Counsel for the respondent that the Court should find that the parties had reconciled after the communication of that intention. The Court does not accept that there is any such reconciliation.
The Court finds that it was the letter of 15 September 2014 that conveyed to the applicant the realisation that the respondent had formed the intention to separate, although he believed the marriage had long since broken down. The Court finds that the respondent provided to the Agency the applicant’s GPO Box and finds that the respondent knew that the application for child support required separation for the making of the application for child support. The Court finds the respondent also knew and intended that the application for child support, based on separation of the husband and wife, was to be communicated to the applicant by the Agency. The Court rejects the denial by the respondent that she was not the source of the GPO Box information for the act of conveying the information in respect of the child support application to the applicant. The Court finds that the respondent knew, in 2014, that the Agency had sent a letter to the applicant in respect of the respondent’s application for child support based on separation and that there was no recanting from that communicated intention by the respondent, notwithstanding the absence of collection or enforcement steps.
The Court finds that the making of the application for child support by the respondent reflected an intention to severe and not resume the matrimonial relationship. The Court finds that this intention by the respondent was communicated to the applicant in 2014. The Court finds the respondent was aware of the communication of that intention to the applicant and that the intention was not revoked, nor was there a resumption of the matrimonial relationship.
The Court has examined the content of the marital relationship and in this particular marriage with a 5 year break from 2005 to 2009 and prefers the evidence of the applicant as to the commencement of the breakdown effectively in 2005 and complete breakdown in 2014 upon communication of the intention to separate by the respondent through the communication from the Agency. The Court prefers the applicant’s evidence as to the destruction of the consortium vitae upon this communication and prefers the applicant’s evidence as to cessation of intimacy, diminished communication, limited society and protection, limited public recognition, absence of private acceptance of each other as spouses, the limited home maker services provided to the applicant, and effectively the separate nurture of the children.
The Court does not accept that the intimacy of the parties in the present case was something of little importance pertaining to the issue of whether they were separated. The Court does accept that there was nurturing and support of the children by finds that was separate nurturing and support after the communication from the Agency in 2014. The Court finds that the significance of the continuing residing in the same address to be one where the Court accepts the applicant’s evidence that it was due to their son not having attained the age of 18. The Court finds that each were thereafter nurturing him separately and that the relationship had irretrievably broken down and that there had been a separation since the communication of the child support application in 2014. The making of the application for child support by the respondent, albeit not enforced or pursued, is also objectively reflective of there having been a withdrawal of mutual society and protection of the kind identified by Murray J in Pavey & Pavey (1976) FLC 90-05.
The Court has taken into account the onus of proof, under s140 of the Evidence Act 1995 (Cth), in being satisfied as to the requirements under s 48 of the Act and the caution given in the authorities against inexact proofs, indefinite testimony and indirect inferences. The present case is not of that kind. The letter dated 15 September 2014 is unequivocal as to the intention of the respondent by reason of the assertion of the parties being separated. The admission of living separated under one roof by the respondent is also unequivocal. The admission by the respondent to the police that they had been separated for 7 years is also unequivocal.
The making of the child support application in this case in 2014 communicated by the letter dated 15 September 2014 strongly supports the applicant’s case of an irretrievable breakdown of marriage communicated and acted upon in 2014. Whilst it is not a court order for maintenance of the kind referred to in Pavey & Pavey (1976) FLC 90-05, it is, nonetheless, an application for child maintenance, a requirement of which, as the respondent knew, was that the parties had separated. As the Court finds that the respondent knew and intended the claim for child support based on separation was to be communicated to the applicant and as the Court finds that it was so communicated in this case there is strong, compelling and exact evidence to support the finding that marriage broke down irretrievably in 2014. The Court has found that the parties separated on 15 September 2014 and notwithstanding being under the same roof, thereafter lived separately and apart for a continuous period up to the filing of the application for the divorce. The Court finds there was no resumption of cohabitation after separation on 15 September 2014.
The Court is mindful of the principles referred to in s 43 of the Act, and in particular the importance of living under one roof in considering whether the parties have in fact separated. This relationship, however, is one where there was a very substantial period of time being five years where the parties were living in different countries and the evidence from the two adult children adduced by the applicant supported a relationship that had broken down, the respondent admitted being separated under the same roof, the respondent told the police that the parties had separated 7 years earlier and materially the Court finds the respondent knew that she had made an application for child maintenance that was dependent upon separation, intended the same to be communicated to the applicant and knew in 2014 that the child support application had been communicate to the applicant.
The Court finds that the applicant has discharged the onus that the parties separated in 2014 and that the separation was an irretrievable break down of the married relationship in 2014, the intention to separate was communicated and acted upon between the parties in 2014 and the matrimonial relationship had been severed in 2014. The Court has found that there was no resumption of the matrimonial relationship after communication of the respondent’s intention to severe the relationship via the applicant receiving the letter dated 15 September 2014. It is in these circumstances that the Court finds that this is a case where an order for divorce under s 48 of the Act should be made. The Court has taken into account that there is no child who has not attained the age of 18 years.
The Court notes that the applicant’s solicitor did not seek costs if successful in the circumstances and, given s 117 of the Family Law Act 1975 (Cth), the Court is satisfied that, notwithstanding the success of the applicant, this is not a case where any costs order should be made against the respondent, and there will be no order for costs in respect of this part of the proceedings. The court notes that the parties have liberty to apply for directions in respect of the property proceedings on three days’ notice, and grants leave to the parties to provide consent orders to be made in chambers, if appropriate, in respect of the advancement of the property proceedings.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 11 November 2022
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