DEVINE & DEVINE

[2019] FCCA 767

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVINE & DEVINE [2019] FCCA 767

Catchwords:
FAMILY LAW – Contested divorce application – relevant principles.

Legislation:

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

Cases cited:

Anderson & Dimitrova-Boyadzhieva [2005] FMCAfam 511

Bulstrode v Trimble [1970] VR 840

Stangl & Peng [2012] FMCAfam 615

Applicant: MS DEVINE

Respondent: MR DEVINE

File Number: PAC 2661 of 2018

Judgment of: Judge Obradovic

Hearing date: 13 March 2019

Date of Last Submission: 13 March 2019

Delivered at: Parramatta

Delivered on: 3 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Haezelwood

Solicitors for the Applicant: John Spence & Associates

Counsel for the Respondent: Mr Barber

Solicitors for the Respondent: Barber Lawyers

ORDERS

1. The Application for Divorce filed on 14 June 2018 is granted to become effective one month from the date of this order.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2661 of 2018

MS DEVINE

Applicant

And

MR DEVINE

Respondent

REASONS FOR JUDGMENT

1. These are Reasons for Judgment in respect of a contested divorce application.

2. The parties agree that at the time of hearing their marriage is over. They disagree about the date of separation. The reason this is important is because the relevant legislative provisions provide that the ground of irretrievable breakdown of marriage shall be held to be 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: s48(2) Family Law Act 1975 (Cth).

3. In her Application for Divorce filed 14 June 2018, the applicant asserts that she and the respondent separated on 20 March 2017. She also asserts that the parties lived separated but under the one roof between 1 March 2017 and 7 January 2018.

4. The respondent in his Response to Divorce filed 10 September 2018, seeks an order dismissing the Application for Divorce on the basis that he asserts the “date of separation as alleged by the wife is incorrect and did not reflect the exact date of separation.” The Response is silent as to the date of separation the Respondent asserts.

5. In support of her application the applicant relied upon her affidavits filed on 11 March 2019 and 23 October 2018, as well as two affidavits of her mother filed 11 March 2019 and 25 October 2018.

6. The respondent relied upon his affidavits filed on 25 January 2019 and 10 September 2018.

7. Both parties were cross-examined as was the Applicant’s mother.

8. The applicant’s evidence is that:

   a)The parties separated in March 2017.[1]

   [1] Paragraph 6 of Affidavit of Ms Devine filed 23 October 2018 asserts the date of separation to be 20 March 2017 and the Application for Divorce asserts that the date of separation was 15 March 2017. Her oral evidence is that it was in March 2017, although she cannot state a specific date because so many things were happening at the same time. The final straw, so to speak, was after the respondent’s admission to hospital.

   b)In late 2016, the respondent purchased a boat and he would sleep on this boat a couple of nights a week.[2]

   [2] Paragraph 4(b) (page 3) of Affidavit of Ms Devine filed 23 October 2018

   c)Between January 2017 and March 2017, she told the respondent “I am leaving this relationship, we are not together anymore, I will have no more of this behaviour”[3];

   [3] Paragraphs 4-7 (commencing on page 3) of Affidavit of Ms Devine filed 23 October 2018

   d)In or about March 2017, she told the respondent “… let me be clear, we are not a couple.”[4]

   [4] Paragraph 15 (page 5) of Affidavit of Ms Devine filed 23 October 2018

   e)From about March 2017, the respondent continued to live on his boat and the applicant continued to live at her parents’ house. The parties went out together so that the applicant could supervise the respondent’s time with the children. She did not ever go anywhere with him alone.[5]

   [5] Paragraph 16 (page 5) of Affidavit of Ms Devine filed 23 October 2018

   f)The parties, together with the parties’ children, went on a pre-booked and pre-paid holiday to Country A in … 2017.

   g)In June 2017 the applicant caused to be incorporated a company by the name of Business Pty Ltd. It is a … business and the applicant holds the relevant licence and qualifications. She disagreed with the proposition that the business cards with the respondent’s details on them for the applicant’s company were printed without her consent or approval. She said that she knew her cards were printed. 

   h)“During this time”[6] the respondent would come to the applicant’s house and spend time with the children.

   i)In 2018 the respondent started to come to the applicant’s home as he pleased with or without her permission. She said to him in January 2018 “this is getting out of hand. We are not together and you keep coming in and out like we are still together.”[7]

   j)The respondent would come to the applicant’s house of an afternoon to see the children and sometimes he would stay and sleep on the couch. He would eat the food which the applicant prepared for herself and the children. 

   k)On 4 February 2018, the applicant said to the respondent “This is not working, you simply cannot carry on the way you have been – coming in and out of my house as you please. We need to work something out for the children.”[8]

   l)On 4 February 2018, the parties signed a document referred to as a parenting plan in the applicant’s evidence, which includes a sentence as follows: “I Mr Devine have been separated from Ms Devine from the 15^th of March 2017.”

   m)The respondent was in Country B between … 2018 and … 2018.

   n)Upon the respondent’s return to Australia he continued to come to the applicant’s home unannounced.

   o)On 1 June 2018, an incident occurred at the applicant’s home resulting in the police applying for an Apprehended Domestic Violence Order (“ADVO”). The respondent said to the applicant “Ms Devine, stop this, do what I fucking say if you don’t I will come there and I will kill you.”

   [6] It is unclear what period the applicant is referring to but from the balance of the affidavit, it is inferred that the reference is to the period between March 2017 and Christmas 2017. Paragraphs 16-19 (pages 5,6) of Affidavit of Ms Devine filed 23 October 2018

   [7] Paragraph 20 of Affidavit of Ms Devine filed 23 October 2018

   [8] Paragraph 29 of Affidavit of Ms Devine filed 23 October 2018

9. Exhibit ‘1’ is the applicant’s income tax return for the 2017 financial year. In that document the applicant represents that she had a spouse for the entire financial year. The applicant’s 2018 income tax return is blank in respect of her spouse for the 2018 financial year, that is, she considered that while she was legally married to the respondent they were separated and he was not her spouse. This is what she was trying to convey to the Court in annexing that tax return to her affidavit.

10. The respondent’s evidence is that:

    a)The applicant had asked him many times during the relationship to leave the family home.

    b)He signed the document dated 4 February 2018 after he came back from Country C at the end of … 2018, and it was signed “under duress” being the applicant standing over him and demanding that he sign it;

    c)He could not recall whether he signed the document dated 4 February 2018 but if he did it was under duress. The reason why this appeared in his affidavit was because there was a miscommunication to his solicitor who prepared the affidavit on his behalf;

    d)The letter from the respondent’s solicitor to the applicant’s solicitor dated 6 July 2018, asserting the date of separation being 4 February 2018, was a mistake. That is why he changed solicitors.

    e)The parties separated when the respondent left the former matrimonial home in June 2018 after the ADVO proceedings;

    f)The respondent did not concede that he made a death threat to the applicant in June 2018, but rather that he was angry.

    g)The parties attended a number of family function together in 2017 and 2018, including a christening and a house warming party.

11. The applicant’s evidence is that the respondent has asserted two different dates of separation, namely 1 May 2018 and 1 June 2018.[9]

    [9] Paragraphs 11 and 12 of Affidavit of Ms Devine filed 23 October 2018

12. It was not put to the applicant in cross-examination that the conversations she deposed to in her affidavit(s) did not occur. None of the matters contained in the letter of the respondent’s solicitors dated 6 July 2018 were put to the applicant in cross-examination. The letter finds itself into evidence in the applicant’s case. Indeed, many relevant matters were not put to the applicant in cross-examination.

13. It was submitted on behalf of the applicant that the applicant’s evidence was not challenged in cross-examination. This is correct. Much of her evidence was not challenged in cross-examination. However, this does not mean that her evidence must be accepted. [10]

    [10] See generally Byrne & Heydon, Cross on Evidence 3^rd edition at [9.66]; Bulstrode v Trimble [1970] VR 840 at 849

14. The evidence of the applicant was challenged in so far as the respondent’s evidence was to the contrary.

15. The respondent was rude and belligerent during this oral evidence. He showed no respect for the Court, Counsel for the mother or indeed his own solicitor. He stormed out of the witness box refusing to answer any more questions.

16. Be that as it may, it is for the applicant to establish on a balance of probabilities that the parties separated and remained separated for a period of not less than 12 months prior to the filing of the application for divorce. She and only she bears the onus.

17. To ascertain the date of separation is a matter of fact.  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. The Court has no power to shorten the time or to backdate the period.[11]

    [11] See also Stangl & Peng [2012] FMCAfam 615 at 23

18. Separation, which includes separation under one roof, is covered in section 49 of the Family Law Act.  That 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 at the same residence or that either party has rendered some household services to the other.

19. The Court adopts the useful summary in an earlier decision of this Court[12]:

    [12] Stangl & Peng [2012] FMCAfam 615

    [24] Accordingly, physical separation is neither a necessary nor a sufficient condition to establish a separation for the purposes of subsection 48(2).  The parties to a marriage may regard themselves as being married even though they are living apart for a period of time… 

    [25] The authorities make it clear that there are three elements which constitute the finding that separation has occurred.  These elements are:

    An intention to separate.

    Action upon that determination.

    Communication of that intention to the other party.

    [26] In Todd & Todd (No. 2)^[13] 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 marital relationship and act on that intention or, alternatively, act as if the marital relationship has been severed.

    [27] 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 (see Falk & Falk[14]).  Where it is claimed that parties have separated while 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.

    [28] In Pavey & Pavey[15], 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.

    [13] (1976) FLC 90-008; 9 ALR 410

    [14] (1977) FLC 90-247

    [15] (1976) FLC 90-051; 10 ALR 259

    [29] 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 & Fenech[16], 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 it is not mandatory whether parties to a marriage assert that their marriage has broken down, but they continue to live under the same roof.

    [16] (1976) FLC 90-035

    …

    [31] In … Lane and Lane (No. 1)[17] her Honour Murray J dismissed the application and said:

    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 the 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.[18]

    [17] (1976) FLC 90-055

    [18] (1976) FLC 90-055 at 75,225-75,226

20. It has been held[19] that:

    [9] For very good reason it is the practice of the court in cases where separation under the one roof is alleged to require some corroborative evidence.  In my mind this is not a case where I should dispense with the need for corroboration.  In relation to corroboration, I refer to the decision of Pavey & Pavey (1976) FLC 90-051 in which the Full Court of the Family Court observed -

    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.

    [10] The Full Court then went on to indicate that because of this inherent unlikelihood of a marital breakdown the applicant for dissolution should always be ready to corroborate his or her assertion of separation.  At page 75,214 the Full Court said:

    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 of their relationship, gradual or sudden, constituting a separation.  For this reason many 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. 

    [19] Anderson & Dimitrova-Boyadzhieva [2005] FMCAfam 511

21. The only corroborative evidence in the applicant’s case was that of her mother. Many of the matters she deposed to about in her affidavit were not matters which she had the opportunity to personally observe or hear, but rather what the applicant and the parties’ children told her. She otherwise gives evidence that the applicant told her that she and the respondent were separated shortly after the respondent’s admission to hospital in March 2017. The applicant’s mother gives limited evidence of observation, for example, her evidence is that that she did not see the applicant iron the respondent’s clothes after March 2017 whereas prior to March 2017 she did make such observation.

22. In order to grant the divorce, the Court must be satisfied that the parties were separated for a period of not less than 12 months prior to 14 June 2018, namely that they were separated as at 14 June 2017. For the Court to make the requisite finding sought there needs to be an intention to separate, a separation and a communication in unequivocal terms of the wish to end the marital relationship. 

23. The Court is satisfied that the applicant has established that there has been action upon her determination to separate. The evidence is sufficient to show that there was an intention to end the marital relationship as at March 2017, that same was communicated to the respondent and that the applicant acted in accordance with that determination. This is notwithstanding the messy tail end of the separation, the holiday which the parties took in May 2017 and the respondent’s refusal to accept that the marriage was over until about May or June 2018. While the parties may not have severed their ties completely[20] until sometime in mid-2018, on the balance of probabilities the Court is satisfied that the marriage was irretrievably broken down 12 months prior to the filing of the Application for Divorce.

    [20] There was a suggestion by the respondent that he was involved in the company which the applicant incorporated after she asserts the parties separated. Her evidence is that he was not a shareholder nor an employee of that business, although there was a business card with his details on it. The respondent’s evidence in the divorce proceedings is silent as to the issue.

24. As such, the application for divorce must be granted.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 3 May 2019