Farrell and Farrell - [2009] FMCAfam 1301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARRELL & FARRELL

[2009] FMCAfam 1301

FAMILY LAW – Divorce – whether parties separated under the one roof.

Family Law Act 1975 (Cth), ss.8(1), 48(2), 49(2), 55A(3)

Todd and Todd (No2) (1976) FLC 90-008
Pavey and Pavey (1976) FLC 90-051

Applicant:

MR FARRELL

Respondent:

MS FARRELL

File number:

MLC 2864 of 2009

Judgment of:

Phipps FM

Hearing dates:

20 & 21 August 2009

Date of last submission:

21 August 2009

Delivered at:

Melbourne

Delivered on:

11 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Robertson Hyetts

Counsel for the Respondent:

Ms Southey

Solicitors for the Respondent:

JA Middlemis

ORDERS

A divorce order be made to take affect in one months time.
The court declares that it is satisfied that there are no children of the marriage to which s.55A(3) of the Family Law Act 1975 (Cth) applies.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 2864 of 2009

MR FARRELL

Applicant

And

MS FARRELL

Respondent

REASONS FOR JUDGMENT

The husband applied for a divorce. The husband and wife remained living in their matrimonial residence. They agree that they have separated but disagree on the date. The husband says it was October 2006. The wife says separation was on 24 March 2009, less than

12 months prior to the husband's application for divorce being filed.
The parties married [in] 1978. There are two adult children of the marriage. Since 1980 they have lived at Property M. Next to the house is a large shed where the husband conducts the parties business, [G]. The parties own a small farm or piece of land consisting of 290 acres at [omitted] near Bendigo.
The husband applied for a divorce. He said that the separation occurred in October 2006. He said that the relationship had been deteriorating for a number of years. The wife was diagnosed with breast cancer in 2004. Since shortly after that time she has slept on a couch in the living room of the house while the husband remained sleeping in the bedroom. The wife said because of her treatment she was getting up in the night and she did not want to disturb the husband. The husband said that sleeping apart was one aspect of a deteriorating relationship.
In October 2006 the husband wished to purchase a piece of land. $130,000 was the asking price. He intended to pay cash, because he did not like borrowing money. He said that when he told the wife she said you don't have any money. He asked where it had gone and she said she had it in a personal bank account and he couldn't have it. He said that he decided then that the marriage was at an end and he told the wife so.
The wife said separation did not occur until 24 March 2009. On that day the husband handed her a letter dated 11 March 2009 from his solicitors saying that the husband wanted occupation of the premises and termination of their relationship. He opened a bank account in his own name, transferred money out of the parties’ joint bank account to his new account and has since conducted the business using this new account. The wife said that the marriage had never been a very good one but that it had continued until 24 March 2009.
The husband said that in January 2004 the wife and he went to a party at a mutual friend’s house. When they arrived home they had sex, and that was the last time. The wife says they had sex again in late 2008, something the husband denies. He said that the wife approached him in January 2009 but he rebuffed her by swearing at her.
Shortly after January 2004 the wife was diagnosed with breast cancer. The parties commenced sleeping apart, the wife on a couch in a living room while the husband remained in the bedroom.
The parties had a single joint business cheque account used for both the business and personal expenses. The accounts and books of the business were kept by an outside accountant and bookkeeper. The wife had free use of the cheque book. Sometimes it was kept in the office of the business and sometimes in the house.
The business cheque account was with the Bendigo Bank. The wife also had two small accounts in her own name. The husband had no other account apart from the business cheque account.
In early 2006 the wife opened a bank account in her own name with the Bendigo Bank called a V5 account. On 14 February 2006 she transferred $90,000 into this account. She said this came from term deposits held in the names of both parties with the Bendigo Bank. She said the husband did some [occupation omitted] and that the term deposits were used for guarantees the husband needed for [occupation omitted] licenses. She also said that the bank told her and the husband to place money into term deposit and earn interest rather than leave it in the cheque account. The wife transferred more money into the V5 account increased so that in May 2008 there was $306,000.
The wife said that she commenced the account because the husband told her that if she saved $100,000 he would take her on a holiday to Western Australia. She said she opened it in her own name because the husband would not attend at the bank to sign the necessary documents. The husband denies any such conversation.
The husband did go on a holiday to Western Australia in 2006 but with a friend not with the wife.
The husband said he did not know of an account in the wife's name until October 2006, and did not know of the existence of the V5 account until after court proceedings had started.
He said he learnt of an account in the wife's name when, as already described, he told her he intended to purchase another piece of farm land with an asking price of $130,000. The husband said that was when the wife told him he did not have any money, that she had it in a personal bank account and that it could not be touched. He said in his oral evidence that he told her that this was the end. He said in his affidavit that the wife said to him that they could get a divorce and she would take a lot more from him.
The wife denies that this was said. She said that she told him that the land was not a good purchase and did not provide the money.
The events in October 2006 are significant. If what the husband said is correct the trust in the marital relationship had broken down, the husband had decided that the marriage was over and he communicated that to the wife.
The trust in the marital relationship had broken down because integral to their relationship was the [omitted] business and the manner in which they organized their finances. They had only one bank account which was used for both business and personal payments. It was used for their mutual benefit. The funds in that bank account were not divided between the parties but used jointly.
If what the husband said is correct the wife, without his knowledge, transferred substantial sums into her own name and told him that he could not have the use of it.
I accept that the husband's version is correct. The wife's version is improbable. The parties last had a holiday together in about 2003 when the husband purchased a new Toyota and they travelled to Queensland. That the husband should say to the wife that if she saved $100,000 he would take her on a holiday to Western Australia makes no sense. Clearly the business was profitable and enabled the wife to take the balance in the V5 account up to over $300,000. To save money for a holiday the wife did not need to open a separate account. The money could have stayed in the cheque account or remained in term deposit. The wife’s explanation does not account for the money she subsequently transferred into the V5 account.
The wife said that the bank wanted the husband to sign documents for the money to go into a joint account but he would not go to the bank. The wife does not say that she told the husband he needed to sign for any bank account to save the holiday money, nor does she say that she wanted him to go to the bank. The husband said he did not know about the wife’s separate bank account until October 2006 and I accept that is correct.
The wife acknowledges that the husband told her he wanted to purchase land for $130,000. She does not say that she told the husband the money she had was for a holiday. She said she told him the land was not a good purchase so she would not provide the money. Overall the wife’s version lacks credibility.
The probable explanation is that by early 2006 the wife had decided that she wanted to hold money in her own name. She did not tell the husband. When she had to tell the husband what she had done because he wanted to spend the money on land she did tell him precisely what had happened, that is, that she transferred the money into her own name, he could not have it and if they were divorced she would take a lot more from him. I accept that the husband told the wife the relationship was over.
The husband said he did nothing about the situation because of the business. He had three people employed and he was thinking of them. He stayed living in the house and working in the business in the circumstances which existed.
Section 48(1) the Family Law Act 1975 (Cth) provides that an application for a divorce order shall be based on the ground that the marriage is broken down irretrievably. Section 48(2) provides that the ground shall be held to be established 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 filing of the application for a divorce order. By s.49(2) the parties may be held to have lived separately and apart notwithstanding that they continued to reside in the same residence and either party has rendered some household services to the other.
The application for divorce order was filed on 3 April 2009. Therefore the twelve months of separation must have occurred prior to that date.
Throughout 2008 the wife had a number of periods away from home. The husband said it was about 20 weeks. The wife said it was less. She had two periods in hospital. She spent time at her sister’s home and at her mother’s home.
The parties slept separately since before 2008, indeed commencing in 2004. Neither alleges that they ate a meal together regularly if at all. The wife prepared some meals which the husband consumed but not on a regular basis. The husband said, and I accept his evidence, that he had eaten only one meal prepared by the wife between November 2008 and March 2009.
The husband got up in the morning at 6.00am or 6.15am and got his own breakfast. For lunch he made a sandwich or sometimes purchased lunch. Since the shed for the business was next to the residence returning to make lunch took little time.
Work finished at 4.30pm and most weekdays one or two friends would come to the shed for a drink. They would leave by 5.30pm and the husband said he would remain there drinking until about 7.00pm. He would mostly prepare his own evening meal. Two friends provided him with a meal on a reasonably regular basis. From October 2008 a friend had been buying groceries for him at the supermarket and he had been preparing his own meals. Prior to that when he made his own meals he used groceries purchased by the wife. Occasionally he had meals prepared by the wife.
Two friends who attended regularly at the shed of an evening gave evidence. They said they knew that the parties were sleeping separately. They described providing the husband with meals, mostly when the wife was away but sometimes when she was not. They said the wife up until March would come out to the shed most evenings and engage in conversation. They saw no affection between husband and wife.
The wife paid the household and some business bills. The money came out of the joint cheque account. She wrote cash cheques and collected the money for the husband. She did some of the husband's clothes washing. The husband said he did much of his own clothes washing and sometimes he put his in with his son’s. One of the parties sons worked in the business. The wife said she cleaned the house. The husband said his son did some cleaning.
The wife had collected the husband's prescription medicine on at least one occasion. She went with the son to purchase the husband a mobile phone. The husband said she went because she had to sign a cheque.
The wife used to cut the husband's hair. He said that he now has it done elsewhere, but the wife has cut his hair recently.
The husband attended family Christmas gatherings at either the wife's mother’s house or the wife’s sister's house. The wife's sister gave evidence to this effect. The parties did not travel together. On each occasion the wife was already at the home. The husband travelled there and back on the day. He said he attended at the invitation of the wife's sister. He attended because one or both of his sons were there. He said he spent the time outside with the men until called in to lunch. He ate lunch and left. His behaviour is consistent with separation and it is not contradicted by the wife's sister or the wife.
“Separation” means the destruction of the marital relationship. Watson J said in Todd and Todd (No2) (1976) FLC 90-008 at 75,079 (approved by the Full Court of the Family Court in Pavey and Pavey (1976) FLC 90-051 at 75, 211):
In my view, “separation” means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae) Separation can any occur in the sense used by the Act where one of both spouses form the intention to sever or not to resume the marital relationship and act on the intention, alternatively act as if marital relationship has been severed.
I consider that separation has occurred and that the parties have lived separately and apart since October 2006. Prior to the discussion about the purchase of land and money in October 2006 the relationship had deteriorated but neither had formed the intention of bringing it to an end. Once the husband knew of the transfer of money into the wife's name alone the consortium vitae was destroyed, the husband formed the intention to sever the relationship and acted on that intention by telling the wife.
The behaviour of both parties after that time is consistent with this happening. The husband could have moved out of the home and returned each day to work in the business, but the fact that he did not does not mean that the marital relationship continued. The wife has rendered some household, domestic and business services after October 2006 but that is consistent with the marital relationship coming to an end in 2006.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 7 December 2009