Fielding and Fielding - [2009] FMCAfam 749

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FIELDING & FIELDING

[2009] FMCAfam 749

FAMILY LAW – Application for divorce – response filed – whether proceedings undefended – respondent objects to divorce on religious grounds but otherwise agrees parties have lived apart for a period greater than 12 months – proceedings regarded as undefended.

Family Law Act 1975 (Cth), s.48

Abbott & Abbott (1995) FLC 92-582

Applicant:

MS FIELDING

Respondent:

MR FIELDING

File number:

ADC 3913 of 2008

Judgment of:

Brown FM

Hearing date:

1 May 2009

Date of last submission:

1 May 2009

Delivered at:

Adelaide

Delivered on:

1 May 2009

REPRESENTATION

Counsel for the Applicant:

Ms C.M. Tucker

Solicitors for the Applicant:

C.M. Tucker and Associates

Counsel for the Respondent:

In person

ORDERS

I make an order for divorce in respect of the marriage solemnised between the parties in [S] in the Republic of Zambia on 27 October 1981.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3913 of 2008

MS FIELDING

Applicant

And

MR FIELDING

Respondent

REASONS FOR JUDGMENT

This morning I have before me an application for divorce which is filed by Ms Fielding. The respondent to the application is Mr Fielding.
The parties were married in [S], in Zambia, [in] 1981. It is the applicant wife's position that the parties finally separated on 3 March 2006.
Ms Fielding has indicated in her application that she lives at an address in [T], South Australia. She has filed a certificate which indicates that she is an Australian citizen and has been since 4 August 1983. The parties do not have any children under the age of 18 years.
The wife filed her application for divorce on 11 November 2008. It was served on the respondent, Mr Fielding, on 13 December 2008.
The application first came before the court, in the form of Registrar Scholz, on 13 January 2009. On that occasion it seems that Mr Fielding filed a response.
In his response he indicates that he wishes the court to dismiss the wife's application for divorce. The reason why he wishes the application dismissed is set out in his response as follows:
Because the marriage is until death do us part, in God's eyes, and my wife needs counselling for all the traumatic events she's had to go through in her lifetime while living in Africa.
The respondent husband also disagrees with the residential address which has been ascribed to him in the application. No doubt because of the response, the proceedings were adjourned on 13 January to 3 February 2009.
The husband did not appear on that latter occasion. Registrar Scholz, I think, noted the response and elected to refer the matter to me for hearing. I am dealing with other ancillary proceedings between the parties relating to the division of their matrimonial property and so appropriately the divorce matter has been listed before me.
There is likely to be some level of controversy between the parties as to whether the application for divorce is defended or undefended. A Registrar of the court has jurisdiction to deal with undefended proceedings for divorce but not otherwise. In any event, Registrar Scholz elected not to proceed with the matter on an undefended basis. In this I think she was undoubtedly correct.
The Full Court of the Family Court in the case of Abbott[1] noted that divorce is very often a highly personal and emotional matter and, as such, it is not uncommon for respondents in divorce applications to oppose such applications on grounds unrelated to the specific legislation pertaining to such applications.
[1] Abbot & Abbott (1995) FLC 92-582
The Full Court, in that case, indicated that registrars needed to err on the side of caution, as to the circumstances in which they regard or deem a matter to be undefended or otherwise. Accordingly, I do not think Registrar Scholz can be criticised in any way for transferring the matter to me, particularly given the sensitivity of the matter to

Mr Fielding and given that he has filed a response.
The sole ground for divorce in Australia is provided by the Family Law Act1975 and in particular section 48. An application for divorce in relation to a marriage can only be based on the ground that the marriage has broken down irretrievably.
Pursuant to subsection (2) of section 48 the ground is established and the divorce order should 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.
As I say, it is the applicant's wife's position that the marriage between the parties ended on 3 March 2006. She says that since that date she and the respondent have not lived together in the same household.
It is her evidence that she regards the marriage between the parties as over and it is her further evidence that she does not think it likely that she and Mr Fielding will live together again as husband and wife in the future.
In his response document Mr Fielding has not challenged either of these pieces of evidence: namely, that the parties have lived separately and apart since 2006 and no longer cohabit.
In Abbott, the Full Court indicated that proceedings for divorce will be treated as undefended where the respondent concerned does not challenge or put in issue any of the components of the cause of action relating to the particular divorce application, into question.
The fact that the respondent is opposed to the court making the order in question and/or wishes to defend the granting of the order, which is sought does not render the proceedings defended, if the issues raised by the respondent are irrelevant to the issues constituted in the cause of action.
The Full Court went on to say that the components of an action for dissolution of marriage are the separation of the parties for more than 12 months and the question of the likelihood or otherwise of a reconciliation.
If the respondent puts either of these issues in contest or makes it clear that the applicant is required to prove these matters, then the proceedings would be defended. However, if the respondent seeks to raise issues which are unrelated to these issues, the proceedings remain undefended and should be dealt with as such.
Today Mr Fielding has conceded that he and the applicant have lived in separate households; he does not dispute that fact. Certainly from the wife's point of view there is no prospect of a reconciliation.
As I have already indicated to Mr Fielding, there is no requirement under the law that the parties to a marriage should both agree that the marriage between them has irretrievably broken down. It is I think the legal position that it is sufficient for one party alone to form such a view.
Clearly it is the position that Ms Fielding has formed the view that the marriage between the parties has irretrievably broken down. In those circumstances, notwithstanding Mr Fielding's objection, she is entitled to pursue her wish to bring the marriage to an end between the parties.
I acknowledge that from Mr Fielding's point of view the application creates significant issues. It is his position, which I respect, that the marriage between the parties was one which can only be ended by the death of one of the parties to it.
However, in this country there is a separation of church and state. As I have already indicated, the only method of ending a marriage in this country is provided by the provisions of the Family Law Act1975.
For all of those reasons I propose to regard Ms Fielding's application as undefended and on that basis I will deal with the application today. As a result I make the following findings.
I find that the wife is an Australian citizen and therefore I have jurisdiction to deal with the application. I am satisfied that the marriage between the parties has irretrievably broken down. I further find that there are no children of the marriage under the age of 18 years to whom the provisions of the Family Law Act1975 apply.
The divorce order I have made today will become final when one month from today has passed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Williams

Date: 16 July 2009