Curmi & Curmi - [2021] FedCFamC2F 172

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: 79

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
Applicant

AND:
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…

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 Curmi & Curmi

Details

AGLC: Curmi & Curmi [2022] FedCFamC2F 1377
Case: [2021] FedCFamC2F 172
Decision Date: 11 November 2022

CaseChat Overview and Summary

The matter before the court involved Mr. Coric, the applicant, who applied for a divorce from Ms. Coric, the respondent. The court was also tasked with determining the issue of child maintenance, which had arisen in the context of the parties' separation under one roof. The dispute was heard and determined in the Federal Circuit and Family Court of Australia, Division 2.

The primary legal issues before the court were whether the marriage between the parties had irretrievably broken down and whether the applicant had satisfied the criteria set out in section 48(2) of the Family Law Act 1975 (Cth). The court had to consider the evidence provided by both parties regarding their separation and the length of time they had been living apart. The court also had to determine whether there was a possibility of reconciliation between the parties.

The court found that the applicant had met the criteria for an order of divorce under section 48(2) of the Family Law Act 1975 (Cth). The evidence demonstrated that the relationship between the parties had irretrievably broken down, and there was no realistic possibility of reconciliation. The court noted that the parties had been living separately for seven years, which was a significant period of time. The court was satisfied that the applicant had proved the necessary criteria for a divorce, and the parties were no longer living together as husband and wife. The court made an order for divorce of the parties to the marriage and declared that there were no children who had not attained 18 years of age. The divorce order would take effect at the expiration of one month from the date of the order.

Orders

Orders of the court

PAC 5638 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CORIC

Applicant

AND:

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.

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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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:	79
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

PAC 5638 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CORIC Applicant
AND:	MS CORIC Respondent

order made by:	JUDGE STREET
DATE OF ORDER:	7 OCTOBER 2022