Heathcote and Abrahams

[2018] FCCA 1014

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEATHCOTE & ABRAHAMS [2018] FCCA 1014

Catchwords:
FAMILY LAW – Contested divorce – whether the parties were living separately and apart for 12 months prior to the husband’s application – factual findings – evidence from father’s daughter – contradictory evidence from family friend – search for reliable and objectively maintainable evidence – parties not living separately and apart – application refused.

Applicant: MR HEATHCOTE

Respondent: MS ABRAHAMS

File Number: MLC 4315 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 22 February 2018

Date of Last Submission: 22 February 2018

Delivered at: Melbourne

Delivered on: 22 February 2018

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: In Person

ORDERS

The application for divorce filed on 5 May 2017 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4315 of 2017

MR HEATHCOTE

Applicant

And

MS ABRAHAMS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. In this case, the husband has applied for an order that he is divorced. He filed this application on 5 May 2017 in which he said that for 12 full months prior to that date, he and the respondent had been separated which on his version brought the date of separation to May 2016

2. The respondent contended that their marital relationship came to an end on 24 May 2017. The very considerable differences between the separation dates seemed to have been accounted for on the basis that the parties disagreed about what the indicators of a valid marriage were.

3. Mr Heathcote was strong in his evidence that for a very long period of time he had no sexual contact with Ms Abrahams and that for 12 months prior to the date upon which he filed the application to commence this proceeding, they lived separately and apart.

4. On the other hand, Ms Abrahams said that she and the applicant behaved as husband and wife in every sense of the word right up to and including 24 May 2017 including all matters of physical intimacy as between husband and wife. She said they pooled their money, they undertook domestic tasks together, they behaved as husband and wife in public and they maintained a home jointly thereby together sharing domestic tasks.

5. She was questioned by Mr Heathcote about the date of separation. She was firm in saying that they lived as husband and wife up until 24 May 2017. It is unusual in litigation in this court for parties to dispute the date of separation or that they contest a divorce. Most people who come before this court are only too happy to end their marital relationship. They generally agree that a divorce should be granted, there being no dispute about the date of separation. It therefore became necessary for me to search for objective evidence which might support one of the two competing versions in this case.

6. Two witnesses were capable of giving evidence about the date of separation, both saying different things. Mr Heathcote’s daughter gave evidence that Mr Heathcote and Ms Abrahams had not slept together in the same room for more than 12 months prior to May 2017. She said that for a sustained period Mr Heathcote and Ms Abrahams did not undertake joint activities as a family. She said they had not been living together as husband and wife as at the date of her affidavit namely 24 May 2017, a date which curiously coincided with the date which Ms Abrahams said was their date of separation.

7. As against that, a neutral unrelated party, Ms D gave evidence of a different nature. She said Mr Heathcote and Ms Abrahams attended two events, one in (omitted) 2016 being her daughter’s engagement and another in the mid-year of 2017, both of which she said Mr Heathcote and Ms Abrahams attended as a family. At the daughter’s engagement she said the parties jointly offered a gift of money, significant in her culture. She also said in mid-2017, Ms Abrahams and Mr Heathcote attended at her home for a reason connected with Mr Heathcote’s car and they came as husband and wife.

8. Of course, I accept that both witnesses were telling the truth. That is to say, I have no reason to think Mr Heathcote’s daughter was doing anything but being truthful. However, her construction of events may not be entirely accurate especially so far as she can depose to a physical relationship between her father and his wife. Moreover, she is after all her father’s daughter, with an interest in this case in giving evidence consistent with and in support of her father. I therefore place less weight on her evidence than I do on the evidence of Ms D.

9. Ms D was firm in her evidence that in (omitted) 2016 Mr Heathcote and Ms Abrahams attended at her daughter’s wedding and that they came as a family. She was equally firm in her evidence that in mid-2017 Ms Abrahams and Mr Heathcote attended at Ms D’s house and that they came as a family. That evidence is entirely inconsistent with the evidence given by the applicant in this case who asserted that for 12 months prior to May 2017, he and Ms Abrahams were separated. It seemed to me that the evidence most likely to be correct, true and accurate was that given by the neutral, unconnected witness Ms D.

10. I therefore find that in mid-2017 (most likely May), as given by Ms Abrahams, Mr Heathcote and Ms Abrahams were living together as husband and wife, albeit that their physical relationship had diminished. In those circumstances, this case is incompetent because when the application for divorce was filed, the parties had not separated in law. In those circumstances, I dismiss this proceeding. It follows I must refuse to grant the divorce.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Date:  24 April 2018