Dow and Hencken

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOW & HENCKEN

[2018] FCCA 2126

Catchwords:
FAMILY LAW – Defended divorce – husband seeks further counselling on the basis there is a reasonable prospect of reconciliation – application dismissed –divorce granted.

Legislation:

Family Law Act 1975, ss.48(1), 48(2), 48(3)

Cases cited:

Bates & Sawyer (1977) FLC 90-319

Falk & Falk (1977) FLC 90-233

Quigley & Quigley (1976) FLC 90-074

Applicant:

MS DOW

Respondent:

MR HENCKEN

File Number:

SYC 4803 of 2012

Judgment of:

Judge Henderson

Hearing date:

4 July 2018

Date of Last Submission:

4 July 2018

Delivered at:

Sydney

Delivered on:

5 July 2018

REPRESENTATION

Counsel for the Applicant:

Ms Clifford

Solicitors for the Applicant:

Uther Webster & Evans

Counsel for the Respondent:

Mr Holmes

Solicitors for the Respondent:

KD Holmes Solicitors

ORDERS

The husband’s Response to Divorce filed 15 June 2018 is dismissed.
The Court grants the wife a Divorce Order to become absolute on 27 July 2018.
The wife is to file and serve her application for costs by 27 July 2018.
The husband is to file and serve his response by 7 August 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4803 of 2012

MS DOW

Applicant

And

MR HENCKEN

Respondent

REASONS FOR JUDGMENT

The matter of Dow & Hencken is the hearing of a contested divorce. The wife seeks a divorce. The husband opposes that occurring at this time and seeks that the parties attend marriage counselling before a decree is pronounced.
Ms Clifford of Counsel acted for the wife and Mr Holmes for the husband.
The husband’s case is, and he has asserted there is a reasonable prospect of the resumption of cohabitation and, therefore, I ought to hold off issuing the decree.
The documents I read for the hearing are as follows:
a)Wife:
i)Amended Application for Divorce filed 22 June 2018; and
ii)Affidavits of the wife of 27 April 2018 and 22 June 2018
b)Husband:
i)Amended Response to Divorce filed 15 June 2018; and
ii)Affidavit in support filed the same date.
In addition, I was asked to read the wife’s initial application for dissolution filed 18 December 2017 at the husband’s request.
There were three exhibits the husband tendered:
a)Exhibit 1, the minute of orders he sought and I will read that on to the record.
That the application is hereby dismissed.
In the alternative, if that order is not made, adjourn the wife’s application for a divorce pending the parties attending a reconciliation counselling session.
b)Exhibit 2, an email from the wife to the husband dated 16 June 2018.
c)Exhibit 3, an email from the wife to the husband dated 1 January 2015.
The wife’s initial Divorce Application stated the date of separation was 25 May 2015 and was filed on 18 December 2017.
The Amended Application says separation date is June 2010.
Therefore, the first matter that must be proven, accepted or found by me in a divorce application is that the parties were separated 12 months prior to filing the application and I am so satisfied. That test is set out in section 48(2) of the Family Law Act1975 (Cth)[1].
[1] Family Law Act 1975 (Cth), s 48(2).
The only ground for establishing a divorce order is that the marriage has irretrievably broken down and that is set out in section 48(1) of the Act[2].
[2] Family Law Act 1975 (Cth), s 48(1).
However, there is an additional subparagraph to section 48[3], namely section 48(3)[4] which is:
[3] Family Law Act 1975 (Cth), s 48.
[4] Family Law Act 1975 (Cth), 48(3).
A divorce order shall not be made
if the court is satisfied that
there is a reasonable likelihood of cohabitation being resumed.
This is the basis of the husband’s contention that I ought not to grant the divorce today as:
a)All the evidence supports a likelihood of resumption of co-habitation; or
b)I cannot be satisfied there is no likelihood of co-habitation.
However, the section says this:
The Court must be satisfied there is a reasonable likelihood of cohabitation being resumed.
So it is a positive, not a negative likelihood.
The leading case in this area is in the marriage of Bates & Sawyer[5]. The husband’s position in Bates & Sawyer[6] is very similar to the position taken by the husband in this matter. He asserted in that case that the decree should not have been granted as there was a reasonable likelihood of cohabitation being resumed.
[5] Bates & Sawyer (1977) FLC 90-319.
[6] Above, note 5.
The husband was given leave in Bates & Sawyer[7] to cross-examine the wife and the Full Court said, in their judgment, that the wife went through a harrowing ordeal in the witness box, especially when being cross-examined by the husband.
[7] Above, note 5.
As in the matter before me today, the evidence for the wife which I will refer to later, as found by the Full Court in Bates & Sawyer[8] was:
It is abundantly clear from the wife’s evidence that she is adamant in her view that there is no reasonable likelihood of cohabitation being resumed.
[8] Above, note 5.
The husband’s appeal was dismissed.
Their Honours opined that the onus to establish a reasonable likelihood of cohabitation is on the spouse who asserts that that be the case. In this matter the husband and I accept that proposition. However, as their Honours further went on to say, there need not need to be shown a bilateral intention to resume cohabitation, that is, both parties wanting it to happen and a positive finding may be based on one party’s intention to resume cohabitation. Their Honours said this:
A judge must come to his –
Interestingly they did not use the word her, but in any event.
A judge must come to his conclusion on the whole of the evidence and give full weight to the words “reasonable likelihood”.
Their Honours then gave an example of where such a bilateral intention is not proven but the test fulfilled of a “reasonable likelihood” was where one party convinces the court they wish to resume cohabitation.
Clearly, this is the husband’s position before me today.
And the other gives evidence of an equivocal nature.
Which is the wife in this case.
The example given in Bates & Sawyer[9] was even where, only one person has that intention it might be enough to invoke section 48(3) of the Act[10].
[9] Above, note 5.
[10] Above, note 4.
Such a finding could not possibly be forthcoming from the evidence of the wife in this case. I just could not make that finding and I will explain those reasons and the evidence for that later.
I refused to allow the wife to be cross-examined, admittedly by Mr Holmes, not by the husband. Cross-examination of the wife was objected to by Ms Clifford. This was on the basis of the wife’s difficulty she has evidenced in her own affidavit, of the stress and emotional difficulties she sustained in the delay in this divorce being granted, given she commenced a Divorce Application in December 2017.
Secondly, the letters and emails between herself, the husband, her lawyers and the husband’s lawyers of her clear and unequivocal statements that her marriage was ended and, to quote her lawyer’s letter of 5 June 2018, attached to her affidavit:
That she has no interest in attending and will not attend marriage or other type of counselling.
That letter is in response to a letter from the husband’s lawyer asking her to consider attending marriage counselling, and is set out at pages 35 and 34 of her affidavit. I accepted the position put by Ms Clifford and I refused cross-examination. I could see no utility in cross examination, it was an abuse of process, unduly prolonging the matter and cause the wife stress which need not be caused, given the clear evidence each party has filed.
As I see it on the evidence, as a whole, the wife has clearly established the ground of irretrievable breakdown of the marriage. That is clearly her view and has been for some time. Consistent with the decision of Falk & Falk[11], I do not have, having so found, any discretion other than to pronounce a decree.
[11] Falk & Falk (1977) FLC 90-233.
However, the question then is where does section 48(3)[12] sit in all of this?
[12] Above, note 4.
Going to the decision of Falk & Falk[13], the trial Judge had determined that although the marriage had irretrievably broken down, and the parties had not lived separately and apart for the requisite period and dismissed the wife’s application for dissolution. That was a decision of Judge Lindenmeyer. The wife appealed that decision.
[13] Above, note 11.
The Full Court stated on appeal that the Act[14] did not require parties to depart living in the same home as at the date of an application for divorce. Thus you can be separated and live under the one roof. That is not even the case here. These parties physically separated in May 2015. That separation was a term used in contrast to cohabitation. That parties were separated when cohabitation ceased. That these words are different terms and different meanings.
[14] Family Law Act 1975 (Cth).
His Honour had applied an old-fashioned and preconceived notion to the decision he made, based upon a decision of Quigley[15], which has been roundly criticised and is no longer good law, fortunately, which was:
Where one or both parties are irrevocably determined that the marriage has come to an end, then in anything but the most extraordinary circumstances would one expect very soon thereafter steps would be taken to live in different establishments.
[15] Quigley & Quigley (1976) FLC 90-074.
That obiter is totally out of step with the modern world and the soaring costs of rental accommodation and is not good law. The Full Court dismissed that proposition and said it was an old-fashioned notion, which clearly it is.
However, at page 11-2 point 9 of that decision the Full Court said this:
We agree with his Honour’s decision (a decision of Gun J) that once it is clear that a marriage has broken down irretrievably and that the parties have separated without any prospect of reconciliation, it would be unrealistic for the court to withhold a decree because of any regard for the need to preserve and protect either the marriage in question or the institution of marriage per se.
These are the key words for me are, “without any prospect of reconciliation”. The Full Court went on to say further:
Neither the direction contained in section 43 nor any question of public policy require or permit the court to adopt such a course.
Which was the course Lindenmeyer J adopted, which is that they had not been physically separated and so the wife could not get her decree.
And this is so despite the principles set out in section 43 of the Act.
So as I read the cases and the case law, where section 43[16] sits in relation to the only ground for divorce is as expressed by the Full Court in Falk, is where parties have separated “without any prospect of reconciliation”.
[16] Above, note 3.
Thus the question for me is what is the prospect of reconciliation in this matter? That seems to me to be the distillation of the case law.
The husband’s case, as I see it, is this, and it is set out in his affidavit paragraph 10:
“Ms Dow never raised the issue of divorce with me during the initial proceedings. She never said to me words to the effect I want a divorce or I’m getting a divorce.
There is no magic in the words divorce but this is, perhaps, is a correct statement.
Paragraph 11:
Whilst we had separated during the proceedings, I had never considered Ms Dow and I would divorce. I never saw our relationship as being irretrievably broken down. She never said she wanted a divorce.
Paragraph 12:
I’ve always thought there was a reasonable likelihood we would resume cohabitation.
I look in the husband’s affidavit for the basis of this belief he has and that starts at paragraph 13 again, a statement by the husband:
The relationship had not irretrievably broken down at that time, being separation on 25 May 2015.
What is that based upon? I look to the affidavit.
Paragraph 14:
We have lived at all times separately but we remained as husband and wife. There was never any intention by Ms Dow until these current proceedings to get divorced.
I am not sure what that statement means and whether she wanted to get divorced is not the issue. The issue is whether she wanted to separate from her husband and whether she regarded the marriage as over. That is the intention to be communicated, not that she wanted a divorce. That is a term of art. It is whether the marriage is over and you intend to live a separate life.
The parties remained together at a property at Property A, but the husband concedes the wife moved out of the matrimonial bedroom and she slept in the spare room.
The husband says:
She never said to me I want a divorce.
I do not see that that is a relevant fact. There is no requirement to say I want a divorce under the Family Law Act[17].
[17] Above, note 14.
Paragraph 17 the husband says:
In 2014 we put our home on the market. We were cohabitating and everything was amicable.
This is confirmed by the wife in her affidavit evidence and that they are amicable and civil.
Paragraph 18, that the parties signed a six month lease when they were selling their home at Property A for another property.
The wife agrees with that. She has her reasons, which I will read out later.
Paragraph 20, caring for the family pets, the children residing in the home in Suburb N, amicably.
Paragraph 20, they had amicable conversations, regularly went out to dinner with the children.
The husband says they went out to dinner once or twice a month without the children. This is disputed by the wife.
Paragraph 21, the wife moved out to her own accommodation on 29 May 2015 and the husband says:
She did not tell me on that occasion she wanted a divorce.
That may be correct.
Paragraph 23 being amicable:
She would come to my home and feed the animals.
The wife has her reasons for that. The husband says they dined out. The wife agrees they did, but not as frequently as the husband asserts. Private dinners the wife denies.
Paragraph 25, and the husband goes through when they stayed together, when they went out. That they went on a cruise in 2015 for nine days, that they went on a cruise in 2017 with the children and together for some 10 days and that the wife continued to care for animals and the like when he was not there and they went out to dinner and the like.
Paragraph 44, the husband says:
Apart from these current proceedings, Ms Dow has never raised the issue of divorce with me.
I would have thought filling an application for dissolution of marriage might give you an indication, but you do not have to raise the issue of divorce. There seems to be an obsession about the word divorce in the husband’s affidavit. The word separation is not used by him. It is just not there, that I can see.
The filing by the wife of the proceedings for a dissolution of the marriage – a divorce, is clearly an indication by her of her intention to divorce the husband and no longer remain as a married couple.
The husband says at paragraph 52 and 53 of his affidavit:
I believe there is a reasonable likelihood of cohabitation and I believe with the assistance of marriage counselling we could resume cohabitation.
The basis of that belief is set out in his affidavit.
The evidence in the husband’s affidavit speaks of a gentle, caring woman who was courteous and polite, as perhaps the husband was as well, who facilitated family times with herself and her husband, including holidays. It is not, as I see it, strong evidence or evidence, capable of supporting any reasonable person believing that there is now a prospect of reconciliation as the husband sets out in paragraph 52 and 53. When you read what the husband says with the wife’s evidence in her affidavit and letters sent on her behalf by solicitors, it is clear that the wife has clearly indicated that the marriage has irretrievably broken down for some time.
What I now look at is the evidence in the wife’s affidavit, what her words are, what her conduct and behaviour is and what her intention is to determine whether, after I reading the wife’s evidence and with the husband’s evidence, I could form the view that there is a reasonable likelihood of the resumption of cohabitation.
As I read the wife’s material, it is as strong as it can be that there is no likelihood of the resumption of cohabitation. My reason for that finding is in the wife’s affidavit as follows.
The parties last had a physical relationship on 31 January 2010. The wife told the husband in June 2010:
I cannot continue with this marriage any longer. I have tried but we are too different. I cannot do it anymore. I’m moving to the spare bedroom.
That is an indication of the breakdown of the marital relationship. You do not need to use the word divorce for that to be conveyed.
Paragraph 6, the wife says she has not discussed since 2010 with the husband that she would ever return to a form of relationship with him other than co-parenting the children, [Y] and [X]. This is an intention the wife has carried out.
The wife’s evidence at paragraph 11 is that the husband has refused to accept the breakdown of the marriage since June 2010. That is clear, he does not accept it – his affidavit tells me that. That is why we are here today.
This the wife says, this is difficult. As she says in paragraph 11, she moved out of the marital bedroom at Property A, she commenced legal proceedings for property settlement in 2012, had a final hearing in 2014, verbal and written communications to him that the marriage was over, her conduct in distancing herself from him, and her communications to him that she wanted a divorce yet still the husband is of the view that the marriage has not broken down. That is clear and is his view today.
The wife says, in paragraph 13, that she said the following words to the husband from June 2010:
Mr Hencken, it is over. I will not be returning to this marriage. Mr Hencken, we are seeing solicitors, we are in court. Aside from co‑parenting our children, the relationship is over. You have to accept that because it’s a reality.
The husband would respond:
Ms Dow, you just need to relax and learn to be a good wife and mother.
One comment the wife says he said to her was:
Ms Dow, you got hit up the arse by a rainbow the day I married you.
The wife says, in paragraph 14, she moved out of Property A with the children on two occasions between 2011 and 2014. She had to return because she was working part-time and had limited funds. As always, money is the very important matter that the court must have regard to in terms of accommodation for people.
The first time she moved back to Property A was because she was not able to make ends meet. The second time because she and the husband, she said, had reached an agreement in relation to parenting the children and property on a final basis. She wanted to make sure Property A was in a good state for sale so they could maximise their sale price.
The wife says she did attend the home and care for the animals because she was required to do that. The animals were causing a problem in the home and the home had to have, by orders of the court, works effected to bring it up to the best state possible. This is the reason why the wife remained at Property A, cared for animals so that they could sell the home for the maximum price. That, she says, was the sole reason she returned to Property A.
She says that they lived in separate bedrooms during that time in paragraph 15, and:
I did my best to behave politely to Mr Hencken, particularly in front of the children. I say my behaviour is no more than simply civil.
The wife has given her explanation why she returned to live at Property A and that has the ring of truth about it. Given what the orders say, that is clearly what happened.

The wife says that in therapeutic interventions that she and the husband had with a Ms J and Dr C she has told him:
Mr Hencken, it’s over. The marriage is over. I’m here because we have to develop a working relationship in relation to the children, given we are separated. This is about moving forward.
The husband:
There’s always hope, Ms Dow. There’s always hope.
The wife said counselling sessions, were occurring in the period 2010 to 2015. The parties have attended counselling in relation to these issues.
The wife said the husband caused her great difficulty by not carrying out his obligations under consent orders to sell the Property A property. That he would not move out, took protracted time. That she was required to commence enforcement proceedings in the Family Court in relation to the husband’s refusal to sign the contract for sale and that is clear on the court file. That she had a hearing date in January 2015 and was most concerned that the home be sold. She was desperate not to lose the buyer as she had taken some time to get one.
That the husband said to her, in early January 2015 a difficult time for her:
If you and the children live with me in rental accommodation for six months, then I will agree to sign the contract.
The wife said she acceded to that because she wanted that home sold. That is the wife’s explanation why they both moved into the property in Suburb N and why both their names were on the contract. The wife said the husband would:
Overbore on her.
That she was still in financial difficulty:
I lived in this property on the basis of my agreement with Mr Hencken, leading to his execution of the contract for sale.
On 25 May 2015 she moved out. Thus as soon as that six months was up, out she went consistent with her story. This is the important date the rest is history.
Looking at paragraph 22 it is clear that she has, throughout this very difficult marriage breakup and separation put the needs of her children to the forefront. That is as clear as a bell to me from the material. The wife has put her children’s needs to have a safe relationship with their father before her own needs. That was very important to her. She wanted her children to have a relationship with their father. Her affidavit is replete with difficulties she said the children had in spending time with their father and this has caused her some concern.
There were family dinners, yes. One of the cruises was for their daughter’s 16^th birthday. The husband did not tell me in his affidavit this was why they went on the cruise. All designed to make sure the children spent time with their father as much as could be accommodated. That she ensured this relationship continued, because her evidence in the affidavit is that the children were at times resistant to spending time with their father.
The second cruise was [X]’s 16^th birthday present, which was a gift she asked from her dad and he did that for her. The wife had separate accommodation to the father on those cruises. The husband on did not tell me that in his affidavit.
The mother said often she would go to these meetings with the children for dinner and the like, because otherwise the children would not have attended with their father.
The father has accused her of poisoning the children against him. In her affidavit, paragraph 30, she says she received an email from him on 29 March 2018:
At every turn you have sought to frustrate my involvement with them (the children). The rare and occasional meal, no interaction at even the most basic level, threatened AVOs should I seek to meet with them, moving to Suburb O from Suburb N, so as to make it that much harder for me to have any connection with them.
This email supports the wife’s evidence that she and the children had a difficult relationship with the father and she did her best to encourage it.
[Y] is 19 and [X] is 17 at present and she is currently doing the HSC. The children are old enough now and were so in March 2018, to make their own arrangements for time with their father. [X] was confident enough to ask her father to arrange for a cruise, a holiday for the family for her 16^th birthday. I am not quite sure how that confidence is consistent with the husband’s email to the wife on 29 March 2018, but there it is.
The wife said she did go to the home that the husband rented in Suburb N, to attend to the pets. She missed the pets, she loved the pets and she wanted to make sure that they were being cared for.
The wife describes and annexes an email from the husband of 8 August 2016. This is after she had attended Suburb M Police Station to get an AVO because she said the husband was coming to her home and contacting her, despite her requests that he not do that, calling her on the mobile every day:
AVO is laughable. No violence, intimidation, harassment, etcetera. My concern is my children. I suggest we all have dinner three to four nights a week at your place, my place or a restaurant. We all own the pets jointly and collectively. I expect you to attend the pets daily to feed, exercise and play with them. I’ll call you whenever there are matters regarding the children, pets or general relevance.
All evidence consistent with the wife’s case as to the reason she looked after the pets. It is consistent that the husband took a rather authoritative tone with her at times.
The wife describes various times that the police spoke to the husband, asking him to refrain from contacting her, because she did not want to be contacted, but he had not respected that wish. He would not contact her for a while however, it would not continue. This is a current theme in the wife’s material, particularly from 2016 onward.
The wife says, at paragraph 40:
I had been managing Mr Hencken’s behaviour and his attitude towards me and my desire to be free of him for eight years and I am exhausted by it.
The husband’s persistent contempt of her and her wishes. The contempt of her wishes is fairly clear, because the husband simply does not hear what the wife is saying. He has never heard her and he continues not to hear it, despite it being as clear as it can possibly be said. The marriage is over. The wife wants to move on with her life.
One of the husband’s emails to the wife is set out in annexure D to her affidavit. The husband is asking her to ditch the divorce and is annexed to her affidavit. The husband writes to the wife:
My role has been perfect to you and like a sculpture to animate the stone.
The wife’s response was she found the email disturbing and, again, the husband had not listened to her words.
On 12 April 2018 she received an email from him to withdraw his objection to application to divorce and she said thank you to that. That has not happened, it has continued. The email that the husband wrote her then went on to say:
Withdrawal is subject to revitalisation, rebalancing and renewal of the marriage.
Marriage is very important.
The wife said:
The responses from Mr Hencken repulsed me.
They are concerning to her and they are inappropriate and similar to:
I’ll sign the contract for sale of our matrimonial home, if you move into Suburb N with me. I’ll withdraw my objection to the divorce going ahead, if you do this.
That theme is consistent.
The word the wife used in paragraph 58 of her affidavit – that the husband’s email to her repulsed her is not a word used by a person, I would find, who is equivocal in them wishing to be separated from their spouse or has some prospect of looking at reconciliation and an attempt.
To suggest that this wife, would possibly consider a reconciliation after one counselling session and to suggest that the evidence I have read out in the wife’s material is consistent with a person who is equivocal about the separation is utterly without merit.
I do not know how much clearer the wife could have made it to the husband. There is clearly no prospect at any level of a resumption of cohabitation. The husband’s submissions that he wanted one more counselling session and if that did not work then the divorce would probably go ahead, is consistent with his disregard of the wife’s clear and oft-stated position since 2010 – she wanted to move on with her life, her marriage was over and she did not want to remain as a married person. The husband has not heard it and has simply disregarded it.
The wife’s clear desire to support her children’s relationship with their father has now been used by their father – the husband, to support his campaign that his wife may want to resume cohabitation with him, when she has not physically done so since May 2015 – a period of three years. At one level the husband’s conduct could be seen as coercive and controlling or delusional or narcissistic or whatever. Whatever it is, he is not listening to what his wife has been saying to him.
His attempt to use a principle set out in section 43(1) of the Act[18], being the principle of protecting the institution of marriage as a further means of controlling his former wife and pursuing his campaign that this divorce not be granted is most concerning.
[18] Above, note 2.
A man who emails his wife, as he did as the wife says in paragraph 30, 37, 50, 56 of the affidavit – that she has done everything she can to drive a wedge between him and the children, my role has been perfect to you like a sculpture to animate the stone, withdrawal is subject to revitalisation, rebalancing and renewal of the marriage – is not a person who respects marriage or another party’s dignity. Rather, it could well bespeak a man who simply does not accept another person’s perfectly valid position if it conflicts with his own.
At every level the husband has failed to establish that there is any prospect of a resumption of cohabitation. On a review of all of the evidence as I have done, he has indeed cemented in my mind firmly, that there is absolutely no prospect of a resumption of cohabitation.

ORDERS DELIVERED

Therefore I am now free to proceed with granting a divorce in this matter, which I will propose to do now.
I will pronounce the decree nisi today and it will become absolute on 27 July so that there is no doubt what the date is.
I am satisfied the arrangements for the child, [X], are proper.
I am satisfied that the marriage entered into between the parties on 1998 has irretrievably broken down.
I am satisfied that there is one child of the marriage, [X], age 17. I am satisfied the arrangements for her are appropriate, given her age. She arranges time with her father as she deems appropriate.
I am satisfied the wife is domiciled in Australia.

I certify that the preceding one-hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 10 August 2018

[2018] FCCA 2126

5 July 2018

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Family Law

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