FEITEIRO & FEITEIRO

[2018] FCCA 3887

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEITEIRO & FEITEIRO [2018] FCCA 3887

Catchwords:
FAMILY LAW – Ex tempore ruling on divorce application and application for costs. 

Legislation:

Family Law Act 1975, s.117

Applicant: MS FEITEIRO

Respondent: MS FEITEIRO

File Number: DGC 3222 of 2017

Judgment of: Judge Burchardt

Hearing date: 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Dandenong

Delivered on: 9 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Kanarev

Solicitors for the Applicant: Alphastream Lawyers

The Respondent: In person

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3222 of 2017

MS FEITEIRO

Applicant

And

MR FEITEIRO

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introductory

1. The matter before the Court is an application for divorce, filed on

   
   

   3 April 2018.  It is asserted in the application that the marriage took place on 27 April 1996.  So much is clear from exhibit A2, which is a copy but I have seen the original Marriage Certificate.  In the application, the date of separation is listed as 29 March 2017.  In her affidavit, filed on 31 October 2018, the wife deposes that she took out an Intervention Order first on 29 March 2017.  It is common cause that the husband was removed from the matrimonial home on that date.  There is an argument as to exactly how it occurred but it is of no moment because it is common cause that the husband moved out on that occasion and never thereafter has moved back in.  He may have attended briefly in an endeavour to collect belongings.

2. It is apparent that there are numerous issues between the parties as to matters such as the return of belongings and the like but these are not presently relevant before the Court.

3. Exhibit KF2 to the wife’s affidavit is correspondence from April 2017 entirely consistent with the wife’s assertion that by that date she had determined that the marriage was at an end.  Perhaps more importantly, exhibit KF7 is an email exchange between Ms Beard, who was then acting for the wife, and the husband.  I will read out the pertinent parts.  Ms Beard wrote on 22 February 2018:

   “Dear Mr Feiteiro,

   We confirm we hold instructions to act for Ms Feiteiro in the matter of divorce proceedings.

   I note however that to apply for divorce there is a requirement for separation of 12 months.

   We are instructed the date of separation is 29 March 2017 and, therefore, several weeks would need to pass before an application could be made for divorce.”

4. The letter goes on to observe that the question of annulment was a matter for the Catholic Church.  The response from Mr Feiteiro, also on 22 February 2018, relevantly states:

   “Yes, there is a period as stated, however your client first issued a legal separation letter on 10 February 2017 through Robinson Gill Lawyers.

   She then in your first correspondence changed that date to March 1st week so I am well within those time frames.  March 29^th she got me evicted from the house using the IVO so that she could process and illegally sell take the property.”

5. It is clear from exhibit R1 in February – which is an email exchange inter alia in February 2017, that there was some prospect, in the air at least, of a possible reconciliation but it is clear that the wife has continued with her application.  In oral evidence today the wife said in-chief that she had received a number of recent emails from the husband seeking to reconcile.  She has ignored them and moved on and she does not want to meet a priest.  Putting the matter in short form, she evinced an absolute view that the marriage is well and truly over and that she wishes nothing more to do with the husband as a husband.

6. Under cross-examination, the wife was firm that the husband had said that he wanted a divorce.  When it was put to her that he had no clue about this until 29 March, the wife responded that he had said if they separate he would do anything to get on the road and get the children on the road.  That was evidence given with conviction and I accept it.

7. The husband’s affidavit in opposition, filed on 12 October 2018, is largely irrelevant, dealing with what we have described during this hearing as ancillary matters.

8. I accept that there are a large number of such matters and I accept that they are the subject of bitter dispute between the parties but they are not matters for this Court in this instance.  I will, however, read out paragraph 9 in which Ms Feiteiro deposes:

   “The applicant needs to show with proven evidence that the marriage has irretrievably broken down.  The children should be questioned in private independently.”

9. Mr Feiteiro then goes on to deal with the supposed impropriety by which the Intervention Order was taken out.

10. The fact is that the wife has convinced me without any doubt that the marriage has well and truly irretrievably broken down.  In paragraph 12 of his affidavit, the husband refers to the sacrament of marriage in these terms:

    “According to the Catholic and Christian church Marriage is one of the sacraments which can only be annulled thru the church or widowhood.  It is not a Contract or a Commitment.  It is a COVENANT which needs to be respected and, yes there are avenues to have this annulled thru the Catholic Archdiocese of Melbourne.  Hence in the interests of the children who are grown up I object strongly to this divorce application request.”

11. While, of course, annulments may well be a matter for the Catholic church, the fact is that this Court does have power to issue a divorce order on a proper application and the objection is, while unquestionably heartfelt, beside the point.  It is well established, in my view, that divorce requires three things.  It requires intention, it requires communication of the intention, and it requires action on the intention.  In my view, all are clearly made out.  First, it is clear that the wife has intended to divorce, she has filed an application to do so.

12. Secondly, it is quite apparent the marriage has irretrievably broken down.  It is clear that by no later than 29 March 2017, and as I would find more probably than otherwise before that at a date I am not able to precisely denote but which is antecedent, the husband knew of the wife’s intention to separate because he was discussing this with her in both correspondence and orally.  Thus, it is clear that by the time the application was filed, the parties had been separated for more than one year.

13. The children are adult.  There is no question as to their circumstances.  While I can well understand Mr Feiteiro’s opposition, the fact is that the conditions for a divorce order are all made out and I am going to make that order.  I will complete the form now.

14. In this matter, the applicant wife has been successful in achieving a divorce order and she seeks costs.  It is submitted on her behalf that the opposition was always bound to fail and was indeed pursued for an ancillary and inappropriate reason.  I point out that, of course, Mr Feiteiro is self-represented.  I have already observed in the ruling I have just given that his opposition to the application is undoubtedly sincere and based at least in part on a misunderstanding of the nature of the interrelationship between the civil authorities in this country and the religious authorities.

15. However, it must be said, in fairness to him, that at least one of the documents tendered to the Court this morning shows that there was a measure of vacillation, if I could describe it, in the period immediately leading up to the separation and the question as to whether the parties had been separated for a year prior to the institution of these proceedings was, in my view, a live one on the materials as they stood, albeit that the weight of the materials is overwhelming, in my view.

16. However, that is not the end of the matter. In considering an application for costs, the Court is required to consider section 117 of the Family Law Act 1975 (“the Act”). The general rule is that each party bears their own costs but the Court may, if it considers that there are circumstances to justify doing so, make an order for costs. In having regard to such an application, the Court is required to consider the matters in section 117(2A) and the first and perhaps the most important is the financial circumstances of each of the parties to the proceedings.

17. The wife is in employment.  She is a professional.  The husband is unemployed.  The husband has also told the Court this morning of potentially very grave health difficulties that may attend him.  I am scarcely overburdened with information about the parties’ financial circumstances, which are probably in the other court files in the Court, but what I do know is that one of them has got a job and the other one hasn’t.  The two children are adult and while the mother may be supporting them and probably is, given normal maternal affection, the fact is that they’re not an immediate or obvious burden on her and, indeed, might be able to contribute to the expenses of the household.

18. Nobody is in receipt of Legal Aid.  The conduct of the parties, painting with the sort of broad brush one does in relation to self-representation, is not so marked as to require a costs order.  There has been no failure to comply with previous orders of the Court.  Certainly, the husband has been totally unsuccessful in the proceedings.  In all the circumstances and bearing in mind, particularly, the employment prospects of the parties as they are presently indicated, I think it is inappropriate for the Court to make an order for costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 7 January 2019