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

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

These are Reasons for Judgment in respect of a contested divorce application.
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).
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.
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.
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.
The respondent relied upon his affidavits filed on 25 January 2019 and 10 September 2018.
Both parties were cross-examined as was the Applicant’s mother.
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…

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 DEVINE & DEVINE

Details

AGLC: DEVINE & DEVINE [2019] FCCA 767
Case: [2019] FCCA 767
Decision Date: 3 May 2019

CaseChat Overview and Summary

In the matter of DEVINE & DEVINE, Judge Obradovic of the Family Court of Australia considered a contested application for divorce. The dispute concerned the applicant's request for a divorce order, which was opposed by the respondent.

The central legal issue before the Court was whether the applicant had satisfied the requirements for a divorce order under the relevant family law legislation, notwithstanding the respondent's opposition. This involved determining if the marriage had irretrievably broken down, as evidenced by the grounds provided in the application.

Judge Obradovic granted the application for divorce. The Court found that the statutory grounds for divorce had been met, and the opposition raised by the respondent did not prevent the Court from making the order. The divorce order was made effective one month from the date of the Court's decision.

Orders

Orders of the court

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

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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