JAMINE & JAMINE
[2010] FamCAFC 105
•15 June 2010
Family Court Of Australia
| JAMINE & JAMINE | [2010] FamCAFC 105 |
| FAMILY LAW - APPEAL – From a decision of a Federal Magistrate granting a decree nisi of dissolution of the marriage – Where there is an attack by the Husband on certain findings of fact made by the Federal Magistrate – Where it is apparent that the Federal Magistrate made findings as to the credit of each of the Husband and the Wife – The principle in Fox v Percy (2003) 214 CLR 118 – Where the Federal Magistrate preferred the evidence of the Wife to that of the Husband’s – Where the findings were clearly open to the Federal Magistrate on the evidence – Appeal dismissed FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the further evidence of the Husband does not present any new evidence of any significance – Where the further evidence seeks to attack the credibility of the Wife and the witnesses who gave evidence in support of her case, without providing an opportunity for rebuttal – Where the Husband had every opportunity to adduce before the Federal Magistrate whatever evidence he considered was relevant to his defence to the Wife’s application for a divorce – Where the evidence that the Husband has so far filed does not demonstrate that the Federal Magistrate was in error – Application dismissed FAMILY LAW - COSTS – Reserved |
| Bates & Sawyer (1977) FLC 90-319 CDJ v VAJ (No. 1) (1998) 197 CLR 172 Collu & Rinaldo [2010] FamCAFC 53 Fox v Percy (2003) 214 CLR 118 Giammona & Giammona (1985) FLC 91-600 Gronow v Gronow (1979) 144 CLR 513 |
| Family Law Act 1975 (Cth) Health Records Act 2001 (Vic) Family Law Rules 2004 |
| APPELLANT: | Mr Jamine |
| RESPONDENT: | Ms Jamine |
| FILE NUMBER: | MLC | 3286 | of | 2008 |
| APPEAL NUMBER: | SA | 108 | of | 2008 |
| DATE DELIVERED: | 15 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 15 July 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 December 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1189 |
Representation
| COUNSEL FOR THE APPELLANT: | Mr D.W. Laidlaw |
| SOLICITORS FOR THE APPELLANT: | Bowlen Dunstan & Associates Pty |
| SOLICITORS FOR THE RESPONDENT: | Mr N. Dragojlovic Lantern Hill Lawyers |
Orders
The appeal be dismissed.
The application filed on 20 May 2009 to adduce further evidence be dismissed.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.
Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.
Each party endorse on the cover sheet of any submissions filed pursuant to orders 3, 4 and 5 the date upon which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Jamine and Jamine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 108 of 2008
File Number: MLC 3286 of 2008
| MR JAMINE |
Appellant
And
| MS JAMINE |
Respondent
Reasons For Judgment
Introduction
This is an appeal by Mr Jamine (“the Husband”) from a judgment of Federal Magistrate Hartnett on 10 December 2008 granting a decree nisi of dissolution of the marriage of the Husband and Ms Jamine (“the Wife”). The Husband was the Respondent in the proceedings before the Federal Magistrate.
The Wife resides in Victoria. The Husband is a solicitor who conducts a legal practice in Malaysia and also in Victoria.
The Wife’s application for a divorce order was filed on 11 April 2008. The Wife contended that the parties separated on 1 March 2007. The Federal Magistrate was satisfied that the period of separation commenced on or before 11 April 2007.
Section 48(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that an application “for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably”. Section 48(2) of the Act provides that subject to subsection (3) the ground for a divorce “shall be held to have been established, and the divorce order shall 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”. Section 48(3) of the Act provides that a “divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed”.
Section 49(1) of the Act provides that the “parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties”. Section 49(2) provides that the “parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”.
On 12 May 2009 I granted the Husband leave to rely on an amended notice of appeal filed on 5 May 2009. The grounds of appeal from the Husband’s amended notice of appeal are as follows:
1. That there was no or no sufficient evidence for the Court to find that the marriage had irretrievably broken down.
2. That there was no or no sufficient evidence for the Court to find that there was no reasonable likelihood of cohabitation being resumed.
3. That the granting of the Decree by the Court constituted a miscarriage of justice.
4. That there was no or no sufficient evidence for the Court to find that the Respondent wife had formed an intention to separate.
5. That there was no or no sufficient evidence for the Court to find that the Respondent wife had acted upon any intention to separate.
6. That there was no or no sufficient evidence for the Court to find that the Respondent wife had communicated an intention to separate to the Appellant husband.
7. That the discretion imposed in the Court to order counselling for the parties miscarried in Law as a consequence of the Court failing to so order before hearing the application.
…
14. That the Court was unjustified in accepting the evidence or [R] having regard to his disturbed psychiatric background and his bias and prejudice against the husband.
15. That the Court was unjustified in accepting the evidence of [Mr Y] having regard to his friendship with the wife and [R] and his bias and prejudice towards the husband.
…
17. That on the evidence of the parties the Court was unjustified in accepting the wife’s evidence in preference to that of the husband.
18. That on all the evidence the Court should have dismissed the wife’s application for divorce.
19. The Applicant Husband was prejudiced by the late filing of affidavit material on behalf of the Respondent Wife and the Court failed to adjourn the proceedings to allow the Applicant Husband to file responding material.
20. The Court took into account statements allegedly made in privileged counselling.
21. There was no or sufficient weight given by the Court to the evidence of [Mr JL].
17. The Court failed to compare and contrast the marital relationship that existed between the parties in the period prior to the alleged breakdown of marriage with that which remained afterwards.
In the event that the appeal is successful the Husband seeks the following orders:
1. A Recision [sic] of the Decree Nisi made by Federal Magistrate Hartnett on 10 December 2008.
2. An order that the Respondent wife pay the husband’s costs of an incidental to these proceedings both at first instance and on appeal.
The Wife opposes the appeal.
Although there has been an inordinate delay, for which I am responsible, between the conclusion of the hearing before me and the delivery of these reasons it remains of concern that this appeal is being persisted with, in circumstances where at the date of the hearing before me the parties’ marriage had clearly broken down irretrievably and they had been living separately and apart for a continuous period of at least 12 months immediately preceding the date of the hearing. Thus, at that time either party could have filed an application for a divorce.
Background
The Husband was born in 1950 and the Wife was born in 1950. The parties were married in 1977 in England. The parties then lived in Malaysia for approximately 13 years.
The parties have three children who are now all adult, two sons and one daughter who was born in 1985 and who has Downs Syndrome.
The parties established a home in Melbourne in 1991. The Federal Magistrate observed at [4] that the Husband continued his legal practice in Malaysia and resided there most of the time. The Husband financially supported the family and stayed in Melbourne from time to time save for a period in the mid 90’s of some three years when the family resided together in Melbourne.
The Federal Magistrate observed at [5] that in the Christmas period of December 2006 the Wife confronted the Husband with allegations of infidelity which were denied by the Husband. The Wife gave evidence she told the Husband “around the end of January 2007” that she considered their marriage was over. The Wife contacted her solicitors to effect a property settlement. Her instructions included the lodging of a caveat in respect of a property. The Federal Magistrate observed at [6] that the Husband’s evidence was contrary to that of the Wife and set out at [7] what the Husband contended happened. The Federal Magistrate observed at [8] that at the hearing the Wife responded to the Husband’s assertions. The Federal Magistrate said: “I prefer the evidence of the wife which was that they did spend Christmas 2006 under the one roof but not happily and not in a marital relationship”.
The Federal Magistrate said:
18. I accept the wife’s evidence that from December 2006 she has repeatedly told the husband their marriage is over and that he has simply refused to accept it. The wife took action including removing her wedding ring from her finger in December 2006 to not place it there again and leaving the home upon the husband’s return to Australia to indicate very clearly to him that the marriage was over.
The Federal Magistrate said at [20] that the parties’ son R gave evidence supportive of the Wife’s evidence and, in particular, that “commencing in December 2006 his mother was telling him that she wished to end her marriage and that she was not interested in reconciling with his father”. Further, that his evidence “as to the Christmas period of 2006 was that in essence there was unhappiness and upheaval in the household as a result of his parents disharmony and mother’s declaration to end the marriage”.
I observe that the Federal Magistrate said at [23] that the Husband “admits however the wife confronted him with allegations of infidelity in December 2006”.
The Federal Magistrate found at [23]: “Overall I accept the wife’s evidence as to matters of behaviour and stated intent between December 2006 and where it conflicts with the husband’s prefer that of the wife’s [sic]”.
On 19 February 2007, on the Wife’s instructions, a caveat was lodged on the title of a property at suburb A which was in the sole name of the Husband and this was admitted by the Husband.
In March 2007 the Husband returned to Australia and the Wife was absent from the home.
The Federal Magistrate said:
9. The parties wedding anniversary was on … March 2007. The husband returned to Melbourne to celebrate it. The wife’s evidence is that she had not communicated with the husband between late January and early March 2007 and that when he indicated his intention to return home she said again the marriage was over and there was nothing to celebrate. It is agreed the wife absented herself from the home prior to the husband’s arrival and only the parties two sons remained living in the home at that time. The husband claims his wife “returned to our home after a few days” and they celebrated their 30th anniversary as husband and wife. The wife’s evidence is that the parties did not celebrate their wedding anniversary. She had made it clear their marriage was over. She was then, and remains, not prepared to see a counsellor because “how can a man who admits no wrongdoing be counselled?”. The firm, unshakeable view expressed by her was that her husband “lied and cheated” on her most of her married life. For her, for that and other reasons which included alleged intimidation the marriage is over and was over by January 2007. She conceded that between the husband’s return to Australia on … March 2007 and his departure on 11 April 2007 that there was some time when they were both in the household. I accept her evidence that she returned to the home believing the husband had departed only to find him still present. At that time she may have cooked meals for her sons which the husband ate. Her evidence was that the husband was drinking heavily, distressed by her behaviour and in the house on and off. She was for the most part staying with her niece in order to avoid the husband.
I observe that Mr Y gave evidence on behalf of the Wife that on 17 March 2007 he assisted the Wife to leave the matrimonial home (Transcript, 8 August 2008, pp 55 to 56)
The Federal Magistrate then said:
10. The parties agree that during March 2007 they attended at the offices of [Ms JL], a solicitor and family friend. The parties arrived separately. At that meeting [Ms JL]’s husband [Mr JL] was also present, [Mr and Ms JL] being family friends. I accept at that meeting and on the wife’s evidence that most of the talking was done by [Mr JL] and that the purpose of [Mr JL]’s representations was for the wife “to forgive, forget and carry on with our future together” (meaning she and the husband’s and their children’s future). The wife responded that the marriage was over. In the course of those discussions the unsatisfactory conditions of their home, the welfare of their children and the expediting of the husband’s return to Australia were spoken of by [Mr JL]. These things were not issues for the wife. The only issue for her was that the marriage was ended and that “there was no point carrying on with this relationship”. The wife’s evidence is that the husband expressed a desire to reconcile and that she made it clear that there was no prospect of reconciliation and that the marriage was over. The husband’s denies the wife told him the marriage was over and there was no prospect of reconciliation. I accept the wife’s evidence and reject the husband’s.
At the hearing before the Federal Magistrate evidence was given on behalf of the Husband by Mr JL and he was cross-examined.
The Federal Magistrate said at [17]: “I accept the wife’s evidence that she did all she could to communicate her decision to end the marriage and acted consistently with that decision from March 2007. She informed family and friends of the separation”.
The Federal Magistrate said at [21]:
[Mr Y], a friend of the wife’s over some years, gave evidence that on 17 March 2007 he first assisted the wife to move from her home. She took up accommodation in [suburb X]. She discussed with him prior to the move the reason for her relocation. She told him her marriage was over and that she and her husband had separated. She had asked her husband not to return to Australia in March for their wedding anniversary but he insisted and so she felt compelled to move out of the home before his arrival.
At the hearing before the Federal Magistrate evidence was given on behalf of the Wife by Mr Y and he was cross-examined.
The Federal Magistrate said at [22]:
The husband’s evidence that the wife was not at the home when he arrived in March but that she returned after a few days and stayed until his return to Malaysia in April 2007 with the parties effectively resuming their married life is not supported by the evidence of the wife, the parties adult son in the household nor the wife’s friend [Mr Y]. I prefer the evidence of the wife supported by the other evidence that at no stage did she resume or indicate to the husband desire to resume, the marital relationship.
The Federal Magistrate observed at [11] that the Husband returned to Melbourne prior to his birthday in July 2007 and:
… [t]he husband stayed for approximately 3-4 weeks and during this time he claims the wife slept in the same bed as he and that the whole family had lunch together in a Chinese restaurant on [ … ] July 2007 to celebrate his birthday. The wife’s evidence is that she attended the lunch “under pressure” from her husband as he informed her that [Mr and Ms JL] had organized the lunch and would be upset if she failed to attend. It did not signify from her part a resumption of the marital relationship – rather she felt intimidated. Further I accept in this period the wife viewed two houses in the company of her husband as requested by him, this being at a time when she had vacated the matrimonial home because of the husband’s return to it. This action did not indicate a resumption or continuation of the marital relationship. The wife often acted to pacify the husband. The wife’s evidence is that she told the husband to leave the home and that he refused. She made it clear that she did not wish to resume a relationship and would not consent to sexual intercourse. Her evidence is that last occurred in December 2006.
The Federal Magistrate referred to what the Wife said in paragraph 11 of her affidavit sworn on 6 June 2008.
The Federal Magistrate said at [20] that the parties’ son R gave evidence “that the dinner attended in July 2007 was one which his mother felt compelled to attend because [Mr and Ms JL] had organized it. It was not a happy occasion but rather quite tense because of the underlying issues occurring between his parents”.
At the hearing before the Federal Magistrate evidence was given on behalf of the Wife by R and he was cross-examined.
The Federal Magistrate said at [20] that R gave evidence that:
between 7 July and 14 August 2007 when the husband says he was in Australia and in the home his mother was there also for some of the time but absent from the home for extended periods. He described the pattern as being his father would come to the house without his mother’s knowledge. She would then as a consequence leave the home but after a couple of days of them both being in the home. His mother never came to the home, when she was staying elsewhere, when the husband was in occupation.
The Federal Magistrate said at [23]: “The husband’s evidence that the parties slept together in July 2007 and that between 7 July and 3 August they lived together as husband and wife I do not accept. It is contrary to that of the wife and as to her activities which he could observe, the parties adult son also an occupant of the home”.
In her affidavit of 6 June 2008 the Wife gave evidence that during early 2007 R was attending counselling at the V Centre in Flemington to help him cope with emotional and psychological issues. The Wife said that the centre was a state-wide integrated clinical, academic and consultation agency specialising in family approaches in mental health service provision and provides a range of programs to individuals and family members. The Wife said that R felt that many of his problems “related to his deep-seated resentment of his father and the difficulties in their relationship”. R suggested to the Husband that he should attend a psychological counselling session with him as it might give the counsellor some insight into the family situation. The Wife said that in the end the Husband agreed to attend but only if the Wife would accompany them. Further, the Wife deposed that the Husband “thought that this would be an opportunity for informal marriage counselling and attempted to persuade [her] to change [her] mind and reconcile”. The Wife said that she agreed to attend the session and spoke to a psychologist regarding the marriage. The Wife said that for her it was an opportunity to ensure that what she was communicating was clearly understood by the Husband. The Wife deposed that she made it clear to the Husband, in the presence of the psychologist, that she wished to end the relationship and the Husband would not accept this. The Wife said that at the request of the psychologist the Husband and the Wife “had another session the following week” and the parties were interviewed separately as well as together. The Wife said that also present at the meeting was a psychiatrist and that she again communicated her resolve to end the marriage during the meeting and the Husband was adamant that he would not accept such a situation. The Wife contended that she was warned by the psychologist that once she initiated divorce proceedings she should be extremely careful in regard to her personal safety as the Husband’s “attitude was uncompromising and his behaviour could be unpredictable”. I observe that in his affidavit of 15 July 2008 the Husband admitted that he attended the V Centre but otherwise denied what was contended for by the Wife.
On about 17 December 2007 the Wife’s solicitors wrote to the Husband in respect of property settlement between the parties. The Wife then vacated the matrimonial home for the period in which she thought the Husband would be in Melbourne.
At the hearing before the Federal Magistrate the Husband contended that the intention of the Wife that the marriage was over was first conveyed to him when he received the letter of 17 December 2007 from the solicitors for the Wife (Transcript, 8 August 2008, p 7).
On 19 December 2007 the Husband returned to Australia and the Wife was absent from the matrimonial home and remained absent until the Husband’s return to Malaysia at the end of January 2008.
In February 2008 the Wife had a locksmith change the locks on the front door of the matrimonial home and also on her bedroom door.
The Federal Magistrate said at [13]: “On 8 February 2008 the husband again arrived at the home unannounced. He remained overnight causing the wife to leave the following morning and take up accommodation with a friend”.
The Federal Magistrate said at [14] that he accepted “that the husband telephoned the wife frequently in the period thereafter and that he pleaded with the wife to reconsider her position which was one of separation and divorce”.
On 28 February 2008 the Wife’s solicitors again wrote to the Husband giving notice of the Wife’s intention to seek a divorce. The Federal Magistrate observed at [15]: “The husband’s response is to ‘state there is no basis for her intention to seek divorce’ (paragraph 27 of his affidavit sworn 15 July 2008)”.
On 5 March 2008 the Wife and one of the parties sons obtained at the Magistrates Court at H an ex-parte interim intervention order against the Husband.
At the hearing before the Federal Magistrate on 8 August 2008 it was contended by the Husband that the “physical separation” of the parties occurred in February 2008 when the intervention order was made preventing him from attending the matrimonial home (Transcript, 8 August 2008, p 6).
On 9 April 2008 the interim intervention order made on 5 March 2008 was extended to 8 April 2009 and thus was no longer an interim order.
As I have already observed, on 11 April 2008 the Wife filed the application for divorce in the Federal Magistrates Court. In her application (Part D – Question 14) the Wife stated the “date of separation” as 1 March 2007. According to the application for divorce, the Wife at that time regarded the marriage as over (Question 15a). Following on from that question the Wife answered “no” to the following:
· Question 16a - Since the date of separation, have you and your spouse lived together in the same home but not as husband and wife?
· Question 17a - Since the date of separation, have you and your spouse lived together as husband and wife?
· Question 18 - Do you think it is likely that you and your spouse will live together again as husband and wife.
On 21 May 2008 the Husband filed a response to the Wife’s application for divorce and he set out the following reasons as to why the divorce should not be granted:
1. There is no separation or irretrievable marriage breakdown (I work overseas for the family).
2. Reconciliation is possible.
3. Divorce would be detrimental to my children.
4. The background is given in the attached copy of my letter dated 12.01.08.
The matter was listed before a Registrar on 10 June 2008 and the following orders were made:
1. The application for divorce filed by the wife on 11 April 2008 be adjourned for final hearing before Federal Magistrate Riethmuller on 8 August 2008 at 9.00 a.m.
2. The respondent husband do file and serve by 11 July 2008 all affidavits to be relied upon at the hearing.
3. The applicant wife do file and serve by 31 July 2008 all affidavits to be relied upon at the hearing.
4. The respondent husband do pay by 11 July 2008 the hearing fee of $365.00.
On 10 June 2008 the Wife filed an affidavit in support of her divorce application. This was a relatively comprehensive affidavit and its purpose was to clearly convey to the Husband the basis upon which the divorce application was sought. The affidavit was not filed in response to any affidavit previously filed by the Husband, as he had not filed at that stage any affidavit with his response to divorce or otherwise.
The Husband subsequently filed his affidavit on 15 July 2008. This affidavit should have been filed by 11 July 2008.
The Federal Magistrate observed at [16]:
The husband deposed in his affidavit sworn 15 July 2008 that the relationship was not irreconcilable and that he respected, admired, loved and cherished his wife. In an affidavit sworn by him on 24 July 2008 in support of his application that the parties attend counselling he stated his belief that the wife and he would be able to reconcile and resolved any issues should they be able to access counselling. He referred to the duration of their relationship of some 36 years and the need for them to remain together as husband and wife in order to provide love and support to their children in particular their daughter and son [R] who had been recently diagnosed as suffering from Borderline Personality Disorder. He claimed to have “from the very outset (on 12 January 08) requested for counselling”.
On 21 July 2008 an affidavit was sworn on behalf of the Husband by Mr JL. This affidavit should have been filed by 11 July 2008.
On 25 July 2008 the Husband filed an application in a case, together with a supporting affidavit, seeking an order that the parties attend counselling.
On 1 August 2008 an affidavit was sworn on behalf of the Wife by Ms H. On 4 August 2008 an affidavit was sworn on behalf of the Wife by R. On 4 August 2008 an affidavit was sworn on behalf of the Wife by Mr Y who is a friend of R.
On 4 August 2008 an affidavit was sworn by the Wife. The affidavit comprised only seven paragraphs. The Wife referred to the affidavit of Mr JL of 21 July 2008. The Wife attached to her affidavit of 4 August 2008 a copy of the letter dated 4 August 2008 from the V Centre. The Husband in a subsequent affidavit objected to the receipt into evidence of this letter.
On 5 August 2008 the Wife filed her affidavit of 5 August 2008 as well as the affidavits of R, Mr Y and Ms H. These affidavits should have been filed by 31 July 2008.
On 6 August 2008 the Husband’s solicitors Oakfair Lawyers filed a notice of ceasing to act in relation to the divorce proceedings and on the same day the Husband’s current solicitors Bowlen Dunstan & Associates Pty commenced to act for him.
On 7 August 2008 the Husband filed an affidavit seeking that the trial date be vacated on the basis that he required further time to obtain legal advice and respond to the affidavits filed by the Wife on 5 August 2008.
The orders made by a Registrar on 10 June 2008 did not provide for additional affidavits to be filed by the Husband or for him to adduce further evidence. The Husband had previously unsuccessfully sought to adjourn the directions hearing on 10 June 2008. On behalf of the Wife it was submitted that the Husband’s attempts to further delay proceedings was consistent with his subsequent evidence that he does not accept that the marriage has broken down. The Federal Magistrate noted that the conduct of the Husband had been oppressive to the Wife in this regard.
On 8 August 2008 the application for divorce was heard by the Federal Magistrate and at the conclusion of the hearing judgment was reserved.
It was submitted on behalf of the Wife that the decision to proceed with the trial and not grant an adjournment to the Husband cannot be said to be a denial of natural justice. Both parties were in attendance with all their witnesses on the trial date. The Federal Magistrate accepted into evidence the late affidavits of the Husband and Mr JL, who also both gave oral evidence. The Wife’s case was significantly disadvantaged in that the Federal Magistrate proceeded on the basis that the affidavits of the Wife, and others who could corroborate her evidence, filed on 5 August 2008, would not be accepted into evidence.
I accept the submissions of the Wife. In my view, for the reasons outlined above, there could hardly be any complaint by the Husband about the late receipt of the affidavits of the Wife given that the Husband did not comply with the orders of 10 June 2008. Further, the said orders did not provide for additional affidavits to be filed by the Husband or for him to adduce further evidence. At the hearing on 8 August 2008, for reasons which I need not deal with, the Wife did not rely on the affidavits filed on her behalf on 5 August 2008 and the Husband did not rely on the affidavit he swore on 7 August 2008. The hearing proceeded on the basis that affidavits filed prior to 5 August 2008 would be received into evidence and the Wife granted leave to respond orally to the affidavit of the Husband of 21 July 2008 and also call any witnesses that she wished to call to respond to that affidavit. In my view, the Federal Magistrate was entitled to refuse the Husband’s application for an adjournment of the hearing and nothing has been put that demonstrates any error by the Federal Magistrate.
During the hearing on 8 August 2008 the Husband sought an order that the parties be ordered to attend counselling prior to the hearing of the proceedings. This application was refused. In my view this was within the discretion of the Federal Magistrate. The parties had attended counselling at the V Centre and the Wife refused to attend any further counselling.
The Wife gave evidence on 8 August 2008 and she was cross-examined (Transcript, 8 August 2008, pp 18 to 46). .
I observe that before the Federal Magistrate it was contended by the Husband that “the marriage is not over” (Transcript, 8 August 2008, p 3). The Wife, however, made very clear that she was not prepared to attend any further counselling with the Husband.
R also gave evidence and he was cross-examined (Transcript, 8 August 2008, pp 47 to 54).
On 8 August 2008 Mr Y gave evidence and he was cross-examined (Transcript, 8 August 2008, pp 55 to 60).
On 8 August 2008 the Husband gave evidence and he was cross-examined (Transcript, 8 August 2008, pp 61 to 90).
On 8 August 2008 Mr JL gave evidence and he was cross-examined (Transcript, 8 August 2008, pp 91 to 95). He gave evidence in cross-examination that the Wife did make accusations about the infidelity of the Husband. The Wife alleged that the Husband was “having affairs with numerous women”. The Wife made these allegations during the meeting in March 2007. Mr JL contended that the Husband denied the allegations. Mr JL said that he advised the Wife “[j]ust put it behind you and move on” (Transcript, 8 August 2008, p 93). Mr JL also said that during the meeting the Wife “was sobbing during most of the meeting” and was fairly distraught. He was asked “did she give some indication that she would be prepared to continue with the marriage? --- She didn’t say anything in respect of that” (Transcript, 8 August 2008, pp 93 to 94).
On 12 December 2008 the Federal Magistrate delivered reasons and made the following order and declaration:
1. I find that the marriage has irretrievably broken down and I grant a divorce to take effect in one month’s time.
2. I declare there are no children to whom the Family Law Act 1975 applies.
On 23 December 2008 the Husband filed a notice of appeal.
On 5 February 2009 the Chief Justice ordered that pursuant to the provisions of subsection 94AAA(3) of the Act it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
On 24 March 2009 the matter first came before me for a directions hearing and I made the following orders:
1. On or before 4:00 pm on 7 April 2009 the Appellant Husband file and serve by an amended Notice of Appeal.
2. On or before 4.00 pm on Tuesday 14 April 2009 the Appellant Husband file and serve a list of the documents that were before the Federal Magistrate upon which the Appellant Husband seeks to rely.
3. On or before 4.00 pm on Tuesday 14 April 2009 the Appellant Husband obtain those parts of the transcript of evidence of the hearing before the Federal Magistrate which may be relevant to the appeal and provide copies of such transcript to the court and to the Respondent Wife.
4. On or before 4.00 pm on Tuesday 14 April 2009 the Appellant Husband file and serve a written summary of argument and list of authorities (if any).
5. On or before 4.00 pm on Tuesday 14 April 2009 the Appellant Husband file and serve any application to lead further evidence and any material in support thereof.
6. On or before 4.00 pm on Tuesday 5 May 2009 the Respondent Wife file and serve a list of any further documents that were before the Federal Magistrate, not included in the Appellant Father’s list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any).
7. On or before 4.00 pm on Tuesday 5 May 2009 the Respondent Wife file and serve any application to lead further evidence and any material in support.
8. The appeal be listed for hearing on a date to be arranged with the Southern Appeal Registrar.
9. The costs of today’s proceedings be reserved.
10. The matter be listed for mention before me at 10:00 am on Tuesday 12 May 2009.
On 12 May 2009 the matter came back before me for further mention. The Husband had not complied with the directions I made on 24 March 2009. The Husband sought an “indulgence” to be relieved of the consequences of failure to comply with the directions of 24 March 2009. The application was opposed by the Wife and on her behalf it was contended that it was a mere delay tactic by the Husband. Reluctantly, I granted the indulgence sought by the Husband and gave him “one last opportunity”. I made the following directions:
1. The Appellant Husband be granted leave to rely upon the Amended Notice of Appeal filed on 5 May 2009.
2. Orders 2, 3, 4 and 5 made on 24 March 2009 be amended by the deletion of “Tuesday 14 April 2009” and the insertion in lieu thereof of “Friday 29 May 2009”.
3. In the event that the Appellant Husband fails to comply with the preceding order his Notice of Appeal filed on 23 December 2008 be dismissed.
4. Orders 6 and 7 made on 24 March 2009 be amended by the deletion of “Tuesday 5 May 2009” and the insertion in lieu thereof of “Friday 12 June 2009”.
5. The Husband pay the Wife’s costs of and incidental to the appearance before me today, such costs to be assessed on an indemnity basis.
6. The hearing of the appeal to be on a date to be arranged with the Appeals Registrar.
The parties were then notified that this matter would be set down for hearing in the week beginning 13 July 2009 and that they would be notified sooner to the week the exact day it was to be listed.
On 28 May 2009 the Husband filed an application in an appeal in which he sought leave to adduce further evidence in response to the following affidavits:
· Affidavit of the wife sworn 4 August 2008 and filed 5 August 2008;
· Affidavit of R sworn 4 August 2008 and filed 5 August 2008;
· Affidavit of Mr Y sworn 4 August 2008 and filed 5 August 2008; and
· Affidavit of Ms H sworn 1 August 2008 and filed 5 August 2008.
In support of the application the Husband swore an affidavit on 20 May 2009 that was filed on 28 May 2009.
On 15 June 2009 the Wife filed a response to an application in an appeal seeking that the application of the Husband be dismissed, the decree absolute be granted and the Husband pay the Wife’s costs of this appeal.
On 2 July 2009 the Regional Appeal Registrar sent by facsimile transmission a letter to the parties notifying them of the date when the appeal was to be listed for hearing which was 15 July 2009.
By email correspondence dated 2 July 2009 by the Husband’s solicitors addressed to the “Associate to Justice O’Ryan” it was stated that the Husband lives in Malaysia and operates a legal practice there. It went on to state that “[o]ur client instructs us that he will be appearing in a criminal trial at the time of the scheduled Appeal. Our client will therefore be seeking an adjournment of the Appeal”.
On 13 July 2009 the Husband personally attended upon the Southern Appeals Registry in Melbourne and filed an affidavit he swore on the same day. In the affidavit the Husband stated that he sought an adjournment of the hearing set down for 15 July 2009 as “fresh evidence has surfaced which I urgently need to bring to the Court’s attention and for the Respondent’s response, in the interests of justice”.
The “fresh evidence” referred to by the Husband in his affidavit of 13 July 2009 was a letter from the Wife to the Husband dated 27 December 2007 and a letter from Mr S to the Wife dated 10 October 2008. The Husband stated that the letters “shocked and traumatised” him and that he “believe[s] that [his] response to [his] wife’s letter will placate her concerns and pave the way to reconciliation, preferably with the help of Counsellors”. The Husband claimed to have first seen these letters on 5 July 2009.
The correspondence attached to the Husband’s affidavit of 13 July 2009, which is described in the preceding paragraph, is quite extensive. I observe, however, that in the attachment which is a typed letter of 27 December 2007 written by the Wife, at the conclusion of the document the Wife stated “I now end this marriage on my own free will”. In his affidavit the Husband contended that this letter is materially relevant in establishing if the parties separated and that the non-production or disclosure to him by the Wife of the letter “casts grave doubts on the date or even the question of ‘separation’”. The Husband contended that in any event if the “reasons” for separation are as indicated in the letter he “must be given the opportunity to rebut and dispute them, as the contents of my wife’s letter are not true or sadly mistaken in any material aspects and are unjustified and based on unfounded suspicions which are pure heresay”. The Husband appeared to be concerned to be able to put what I would describe as his side of the story as to why the marriage broke down. I observe that in the document written by the Wife, she made a number of complaints against the Husband about his infidelity. I also observe that the Wife contended that she sent the letter to the Husband and thus he had it at the time of the hearing in August 2008.
The Reasons of the Federal Magistrate
In her reasons the Federal Magistrate at [1] to [3] gave a brief introduction of the history of the marriage and the issues. The Federal Magistrate said: “The issues for the court are whether the marriage has irretrievably broken down and whether the parties were separated for a period of 12 months prior to 11 April 2008”.
Given what I have set out above in relation to the “Background” it is not necessary for me to deal with what the Federal Magistrate said in her reasons. It is clear that she accepted the evidence of the Wife and thus on the evidence was satisfied that the Husband and the Wife had lived separately and apart from at least March 2007.
General Principles
I am mindful of the position of the Federal Magistrate particularly given the findings in relation to credit and assessment of each of the Husband and the Wife. The advantage of the Federal Magistrate in seeing and hearing the parties has been dealt with in a number of authorities including by Stephen J in Gronow v Gronow (1979) 144 CLR 513 and in Collu & Rinaldo [2010] FamCAFC 53 (unreported, May, O’Ryan & Strickland JJ, 25 March 2010).
In this case there is an attack by the Husband on certain findings of fact by the Federal Magistrate and it is apparent that the Federal Magistrate made findings as to the credit of each of the Husband and the Wife. In the head note of Fox v Percy (2003) 214 CLR 118 it is said: “A finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case”: per Gleeson CJ, Gummow and Kirby JJ, Callinan J contra. It is also said: “An appellate court is entitled to set aside a trial judge’s finding based expressly or inferentially on demeanour if there is something that points decisively and not merely persuasively to error on the part of the judge in acting on his or her impressions of a witness or witnesses”: per McHugh J.
Applications To Adduce Further Evidence
General Principles
The approach to be taken in relation to an application to adduce further evidence at the hearing of an appeal is well settled. Section 93A(2) of the Act provides:
Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a) by affidavit; or
(b) by oral examination before the Family Court or a Judge; or
(c) as provided for in Division 2 of Part XI.
Rule 22.39 of the Family Law Rules 2004 (“the Rules”) provides:
(1) A party to an appeal, other than an appeal that is a hearing de novo , who seeks to apply for an order that the court receive further evidence on the hearing of the appeal, must file the application at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing.
(2) The affidavit filed with the application must either describe the nature of the further evidence or include the further evidence that the applicant wants the court to admit at the hearing of the appeal.
(3) Any other party to the appeal may file an affidavit in response to the application at least 7 days before the date of commencement of the sittings in which the appeal is listed for hearing.
(4) The hearing date for an application to adduce further evidence will be the same as the date fixed for hearing of the appeal or application for leave to appeal.
Note 1 For the rules on how to make an application, the procedure and by whom the application will be heard, see Division 22.7.1.
Note 2 Documents relating to further evidence should not be included in the appeal books.
In CDJ v VAJ (No. 1) (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ, who were in the majority, discussed at [104] to [116] the “scope of s 93A(2)” and in so doing explained the difference between admission of fresh evidence in an appeal at common law and appeals under statutes like the Act which contain provisions such as s 93A(2). Their Honours said:
104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion. (endnotes omitted)
Their Honours said:
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111. … The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
Their Honours said at [107] that: “The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way”. However, they also said at [108] that the discretion is not unfettered and at [113] that the discretion is not “so wide that the Full Court can admit further evidence merely because it is useful” (emphasis in original). Their Honours said at [115] that it “must be exercised judicially”.
Conclusion – Applications to Adduce Further Evidence
As I have already observed on 28 May 2009 the Husband filed an application in an appeal in which he sought leave to adduce further evidence in response to the affidavit of the Wife sworn on 4 August 2008; the affidavit of R sworn on 4 August 2008; the affidavit of Mr Y sworn on 4 August 2008 and the affidavit of Ms H sworn on 1 August 2008. In support of the application the Husband swore an affidavit on 20 May 2009.
It was submitted on behalf of the Wife that I should not grant leave to the Husband to adduce further evidence in response to the affidavits filed by the Wife, R, Mr Y and Ms H on 5 August 2008. It was submitted that the affidavit sworn by the Husband on 20 May 2009 did not present any new evidence of any significance. It was submitted that the affidavit simply seeks to attack the credibility of the Wife and the witnesses who gave evidence in support of her case, without providing an opportunity for rebuttal.
As I have also observed, at the commencement of the hearing before the Federal Magistrate on 8 August 2008, the Husband sought an adjournment of the hearing on the basis that he required further time to obtain legal advice and reply to the affidavits filed on behalf of the Wife on 5 August 2008. This application was refused and consideration of the transcript of the hearing reveals that the Federal Magistrate was mindful that the Husband had not filed his affidavit of 15 July 2008 and the affidavit of Mr JL of 21 July 2008 in accordance with the orders of 10 June 2008. Further and importantly, the transcript reveals that the Federal Magistrate said that the matter would proceed on the basis that the Wife would not rely on the affidavits filed on her behalf on 5 August 2008 but the Wife would have leave to respond orally to the affidavit of the Husband of 21 July 2008 and “call any witnesses that she wishes to respond to the contents of that affidavit it being out of time” (Transcript, 8 August 2008, p 14). I observe that there was no objection by counsel for the Husband to what the Federal Magistrate proposed.
For my part I have some difficulty with this ruling of the Federal Magistrate. Surely if her Honour gave leave to the Wife to respond to the affidavit of the Husband she could have allowed the affidavits filed on 5 August 2008 to be read. For example, in the affidavit of the Wife sworn 4 August 2008 she gave evidence in reply to the affidavit of Mr JL. In any event, I also observe that in discussion before the Federal Magistrate the Husband did not point to any prejudice he would suffer if the affidavits of 5 August 2008 were read. The Husband did not refer to any particular matter raised in those affidavits in respect of which he demonstrated why he would need time to respond to what was said.
In her reasons the Federal Magistrate at [20] set out a deal of what was contained in the affidavit of R and in particular at paragraphs 8, 9, 10, 11, 12, 15, 16 and 17 of the affidavit. However, in her reasons the Federal Magistrate did not refer to the affidavits of Mr Y and Ms H. In fact, the Federal Magistrate made no mention of Ms H.
In any event, as I have observed, the Wife then gave oral evidence. The Wife gave evidence in chief and in the course of doing so gave evidence in reply to the affidavit of Mr JL of 21 July 2008 which, frankly, should also have been rejected by the Federal Magistrate, or the Wife’s affidavit sworn 4 August 2008 allowed to be read (Transcript, 8 August 2008, pp 18 to 32).
On 8 August 2008 R also gave evidence in chief (Transcript, 8 August 2008, pp 47 to 50). He gave evidence about what happened at the luncheon on … July 2007 (Transcript, 8 August 2008, pp 47 to 48). In my view, what the Federal Magistrate said at [20(a)] of her reasons is in accordance with this evidence. R also gave evidence (Transcript, 8 August 2008, p 49) about what the Wife said to him about her wish to end the marriage and that she was not interested in reconciling with the Husband and again what the Federal Magistrate said at [20(b)] is in accordance with this evidence. Then, in cross-examination, R gave evidence about the absence of either the Husband and the Wife from the matrimonial home in Victoria (Transcript, 8 August 2008, p 51) and, in particular, between “7 July until 14 August” (Transcript, 8 August 2008, pp 52 to 53). It is clear that what the Federal Magistrate said at [20(c)] is in accordance with this evidence that R gave during cross-examination.
On 8 August 2008 Mr Y gave evidence and he was cross-examined (Transcript, 8 August 2008, pp 55 to 60). I observe that in the submissions of the Husband it is stated that objection was taken to the affidavit of Mr Y and the Wife proceeded on the basis that she would not rely on the materia1. It was submitted that the witness gave evidence as to assisting the Wife to move home on 17 March 2007 and as to the Wife's stated reasons. The Federal Magistrate, in her reasons, did not refer to the affidavit of Mr Y and in my view what the Federal Magistrate said at [21] is in accordance with the oral evidence that Mr Y gave on 8 August 2008.
I observe that the Federal Magistrate must have obtained a copy of the transcript of the hearing on 8 August 2008 because at [8] her Honour set out part of the evidence given by the Wife during cross-examination (Transcript, 8 August 2008, p 35).
In the result, in my view, insofar as the Federal Magistrate included in her reasons part of the affidavit of R which was not in evidence, this is of no relevance. The findings of the Federal Magistrate at [20] about the evidence of R were consistent with the oral evidence given by R on 8 August 2008.
I also observe that on 8 August 2008 the Husband gave evidence in chief (Transcript, 8 August 2008, pp 61 to 72) and he was able, without objection, to give evidence in reply to the evidence of the Wife and R. In fact, I observe that, without objection, the Husband gave evidence in relation to the evidence of his witness Mr JL.
In my opinion the situation worsens because I now have before me an application by the Husband to adduce further evidence in reply to the affidavits filed on behalf of the Wife on 5 August 2008 which were not in evidence before the Federal Magistrate. This is in circumstances where the Husband also complains about the reference in the reasons of the Federal Magistrate to the affidavit evidence of R. During discussion before me counsel for the Husband conceded that the situation was “obscure”.
As well, counsel for the Husband made clear in discussion that what the Husband said in his affidavit of 20 May 2009 was not the totality of the evidence the Husband would seek to adduce. The Husband was seeking the opportunity to put further evidence before me which evidence has not been filed in answer to the affidavits filed on behalf of the Wife on 5 August 2008 (Transcript, 15 July 2009, pp 4 to 5).
I also agree with the submissions of the Wife. The affidavit of the Husband seeks to attack the credibility of the Wife and the witnesses who gave evidence in support of her case, without providing an opportunity for rebuttal.
In conclusion, I propose to dismiss the application by the Husband. In my view, the Husband had every opportunity to adduce before the Federal Magistrate whatever evidence he considered was relevant to his defence to the Wife’s application for a divorce. Further, the evidence that the Husband has so far filed does not demonstrate that the Federal Magistrate was in error.
There is then perhaps a second application by the Husband to adduce further evidence which is contained in his affidavit of 13 July 2009. This is the evidence I have already described as the correspondence dated 27 December 2007 and 10 October 2008. I also propose to reject this evidence. Again, it does not demonstrate that the Federal Magistrate was in error.
Grounds Of Appeal
Introduction
In the amended notice of appeal filed on 5 May 2009 there are 15 grounds of appeal. In the outline of argument filed on 29 May 2009 on behalf of the Husband the grounds are grouped into the following four categories:
1. Grounds relating to a finding of irretrievable breakdown of the marriage. Grounds 1, 4, 5, 6, 18 and 22 are said to relate to the issue of a finding of fact as to the irretrievable breakdown of the marriage.
2. Grounds relating to the prospect of cohabitation being resumed. Grounds 2, 7 and 20 are said to relate to the issue of a finding of fact as to the prospect of cohabitation being resumed.
3. Grounds related to natural justice. Grounds 3 and 19 are said to relate to issues of natural justice.
4. Grounds related to proper basis or weight supporting findings of fact. Grounds 14, 17 and 21 are said to relate to a proper basis or weight supporting findings of fact.
I note that in the Husband’s outline of submissions no reference was made to ground 15 and nor was it referred to in the oral submission before me on behalf of the Husband. However, it is my understanding that ground 15 was not abandoned. As I have already observed, ground 15 concerns the acceptance by the Federal Magistrate of the evidence of Mr Y and is perhaps related to the fourth category which challenges the proper basis or weight supporting findings of fact.
I received extensive written summaries of argument and what I propose to do is deal with the complaints as they are articulated in the written summaries rather than deal seriatim with the grounds of appeal. In fact in the submissions in the written summary of argument of the Husband and also in the oral submissions no reference was made to any of the fifteen grounds of appeal.
First Area of Complaint
The first area of complaint encompasses six grounds of appeal. On behalf of the Husband it was submitted that the Wife's evidence leaves open the matter of the precise dates of cohabitation up to 11 April 2007. It was submitted that the Husband’s evidence was clear. It was submitted that to the extent that the Wife’s evidence is to that effect, in any event during that period the parties were separated under one roof, it falls short of establishing separate households existed. It was submitted that the only corroboration of the Wife’s evidence comes from the affidavit of R, upon which the Wife did not rely “and therefore the husband did not cross-examine”. It was submitted that the Federal Magistrate clearly took this evidence into account and she ought not to have done so. It was submitted that it is not possible to separate out of the reasoning any conclusion the Federal Magistrate might otherwise have reached. It was submitted that, additionally, the nature of the marriage in the period before and after 1 March 2007 or any other date up to 11 April 2007 was not sufficiently different so as to say that there was an unequivocal act of separation. It was submitted that in all the circumstances, there was no or no proper basis for the findings reached as to separation.
Before proceeding I observe that the submission that R was not cross-examined is clearly wrong (Transcript, 8 August 2008, pp 50 to 53).
In the written summary of argument of the Husband it was stated that the Federal Magistrate did not expressly make a finding as to the happening of the irretrievable breakdown of the marriage, nor as to its date. Rather that the finding is to be inferred from a series of findings, which appear at [8], [10], [17], [18], [19], [20], [22] and [23] of the reasons for judgment.
In the written summary of argument of the Husband it was stated that the evidence of the Wife in relation to the issue of the breakdown of the marriage and separation in or about March 2007 is contained in paras 7, 8 and 10 of her affidavit sworn on 6 June 2008. It was said that similar evidence was led during examination in chief of the Wife (Transcript, 8 August 2008, p 19).
On behalf of the Wife it was submitted that the Federal Magistrate properly considered all the relevant evidence concerning the breakdown of the marriage and found that the marriage had irretrievably broken down and that the parties had separated prior to 11 April 2007.
On behalf of the Wife it was submitted that the Husband’s submission is that the evidence of the Wife and Husband is in conflict and that the Wife's evidence leaves open the precise dates of cohabitation up to 11 April 2007, whilst the Husband’s evidence is clear on the point. It was submitted that clearly, where the evidence of the Husband and the Wife was in conflict, the Federal Magistrate indicated that she preferred and accepted the evidence of the Wife. It was submitted that the Federal Magistrate was in a position to assess the evidence being given by the parties on oath in the witness box and make appropriate conclusions as to the credibility of the witnesses and the veracity of their evidence.
On behalf of the Wife it was submitted that the vital issue is whether there was cohabitation or a resumption of the marital relationship beyond 11 April 2007. The Federal Magistrate did not accept the evidence of the Husband in this regard.
On behalf of the Wife it was also submitted that corroborating evidence was not limited to the affidavit of R. R also gave evidence at the trial regarding the relevant issues in the period prior to 11 April 2007. Further evidence was elicited in cross-examination and re-examination. Further corroborating evidence was available from Mr Y.
I accept the submissions on behalf of the Wife. In my view, it is clear that where there was conflict between the evidence of the Wife and that of the Husband, the Federal Magistrate accepted the evidence of the Wife. The evidence of the Wife very clearly demonstrated that in December 2006 she told the Husband that the marriage was over and thereafter she continued to make clear to the Husband that the marriage had ceased and there was no prospect of a reconciliation. The evidence of the Wife made clear that the cohabitation of the parties ceased from at least December 2006. The Federal Magistrate in her reasons and in particular at [23] made findings that she accepted the evidence of the Wife “as to matters of behaviour and stated intent”.
In conclusion, the Federal Magistrate was satisfied that the parties had separated from at least March 2007 and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the commencement of divorce proceedings in April 2008. These findings were clearly open to the Federal Magistrate on the evidence and nothing has been put that demonstrates to my satisfaction that the decision “was glaringly improbable or contrary to compelling inferences in the case”. I therefore reject the first area of complaint.
Second Area of Complaint
As I have already observed, there are three grounds relating to the second area of complaint which is said to relate to issues with respect to a finding of fact as to the prospect of cohabitation being resumed.
On behalf of the Husband it was submitted that s 14C of the Act required the Federal Magistrate to consider the possibility of reconciliation. It was submitted that s 43(a) required regard to the need to preserve and protect the institution of marriage and s 43(d) required regard to the means available for assisting parties to consider reconciliation. It was submitted that s 48(3) requires that a divorce order shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed. It was submitted that the question of the reasonable likelihood of a resumption of cohabitation does not require that both parties intended resumption and it is sufficient that one party does so intend and the other is interested: Bates & Sawyer (1977) FLC 90-319.
On behalf of the Husband it was submitted that no specific finding was made by the Federal Magistrate in the face of the Husband’s clear desire to seek reconciliation and resume cohabitation. It was submitted that the Federal Magistrate erred in refusing an application for a counselling order on the basis that it could not be enforced. Further, the Federal Magistrate erred in relying on the affidavit of the Wife sworn on 5 August 2008 deposing as to the attendance at the V Centre as the material was objected to and the Wife expressly elected not to rely upon that affidavit. Next it was submitted that the nature of the counselling at the V Centre was confidential and it was contrary to public policy and s 27 of the Health Records Act 2001 (Vic) for that evidence to be produced or relied upon.
On behalf of the Wife it was submitted that s 48(3) of the Act requires that a divorce order shall not be made if the Court is satisfied that there is reasonable likelihood of cohabitation being resumed. It was submitted that in granting the divorce the Federal Magistrate was satisfied as to that fact. The Federal Magistrate noted that the Wife had obtained an intervention order against the Husband. This order, which was in force at the time of the trial, prohibited the Husband from contacting the Wife or attending at her premises. It was submitted that the evidence of the Wife on this point was unequivocal – there was no likelihood of cohabitation being resumed. The Federal Magistrate stated at [19]: “I accept that the marriage for [the Wife] has irretrievably broken down.”It was submitted that clearly, the Wife did not express an ‘interest’ in the resumption of cohabitation, as required in Bates & Sawyer.
On behalf of the Wife it was submitted that in circumstances where the Federal Magistrate found that the marriage had irretrievably broken down, where the Wife had expressly stated that she did not want to participate in any counselling proposed by the Husband, and where the Wife had obtained an intervention order against the Husband to protect herself from alleged harassment and intimidation, the granting of the Husband’s application for a counselling order would have been “grossly inappropriate”.
As to the submission of the Husband that the counselling at the V Centre was confidential and the deposing of such evidence by the Wife was contrary to s 27 of the Health Records Act, on behalf of the Wife it was submitted that ss 13 and 14 of that act provide a general exemption which permits the use and production of health information in matters before a Court. No submissions were made on behalf of the Husband in reply to these submissions of the Wife. However, I have looked at the extract from this legislation that was included in the bundle of cases and materials provided by the Husband and I observe that the provisions of ss 13 and 14 of that act were not included. Next, the term “health information” is defined in s 2 of the act and if the contention is that there was some prohibition on the publication or use of “health information” then I have grave doubts that counselling about a marriage breakdown would be covered.
I observe that there is no s 14C of the Act. Section 14 of the Act was repealed by Family Law Amendment (Shared Parental Responsibility) Act 2006 (No. 46, 2006).
Next, s 43(1) of the Act provides that “in the exercise of its jurisdiction under [the] Act, and any other court exercising jurisdiction under [the] Act [the Court] shall, in the exercise of that jurisdiction, have regard to” the matters set out in paragraphs (a) to (d) which include:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
…
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
Section 43 requires the Court to consider a number of general principles when making a decision in proceedings under the Act. However, the section is not a head of power and is simply an exhortation to the Court as to how it should exercise a power: Giammona & Giammona (1985) FLC 91-600. I do not propose to engage in any further consideration of this provision. There were no submissions made on behalf of the Husband.
As I have observed s 48(3) of the Act provides that a “divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed”. This section does not require that both parties desire a resumption of cohabitation, only that there is a reasonable likelihood that cohabitation will be resumed. It has been observed that it does not require an evaluation of the desirability or propriety of making a decree for dissolution of marriage. It requires the court to make a prediction: Australian Family Law, LexisNexis Butterworths at [s48.10].
In Bates & Sawyer the Full Court (Marshall and Pawley S.JJ and Ellis J) said at 76,695:
We agree with his Honour's observations regarding the onus of establishing that there is a reasonable likelihood of cohabitation being resumed “is on the spouse who asserts it” but with due respect to his Honour we do not agree that it must be shown that there is “a bilateral intention on the part of both spouses to resume living together”. In our view a spouse who seeks to invoke the provisions of sec. 48(3) may succeed by relying on evidence that falls short of a demonstrated intention on the part of both parties to resume cohabitation. In our opinion a Judge who is required to rule on an assertion by one spouse that sec. 48(3) applies must come to his conclusion on the whole of the evidence and give full weight to the words reasonable likelihood in the subsection. It is not difficult to visualize a situation where one spouse convinces the Court that he or she wishes to resume cohabitation and the other gives evidence of an equivocal nature indicating that he or she is interested in exploring the possibility of a reconciliation. Such evidence could not be classified as a “bilateral intention” but depending on the Court’s opinion based on the whole of the evidence it may be sufficient to justify a finding by the Court that there is a reasonable likelihood of cohabitation being resumed. (emphasis in original)
In the case before us it is abundantly clear from the wife’s evidence before Judge Ferrier that she is adamant in her view that there is no reasonable likelihood of cohabitation being resumed, and the appellant having been given every reasonable opportunity to put his case under sec. 48(3), it has not been shown that the trial Judge came to an incorrect decision (House v. the King (1936) 55 C.L.R. 499 at 504, 505) and we dismiss the appeal.
In her reasons the Federal Magistrate said:
19. I accept that the wife has remained firm in her view that the marriage is over in the past nearly 2 years. At the husband’s request she has attended a meeting with family friends who attempted to persuade her to continue the marriage. She and the husband attended the [V] Centre in early 2007 as their son [R] was attending counselling there in respect of his difficulties. When asked about this attendance by Counsel for the husband the wife gave evidence that during the meeting she conveyed her desire for her husband to understand that the marriage was over and that “the counsellors tried to tell him that but he kept refusing to accept that”. She wants no counselling as proposed by the husband. I shall not order the parties to attend any form of counselling. They have been married a long time and are experienced adults. The wife I find to have been consistent and adamant in her expression and desire to end the marriage. She has had to go through a defended divorce proceeding because the husband refuses to accept her oft-stated view and conduct in support of it, since December 2006, that the marriage is over. His actions have been oppressive to her. I accept that the marriage for her has irretrievably broken down.
To adopt what the Full Court said in Bates & Sawyer, in this case “it is abundantly clear from the wife’s evidence before [the Federal Magistrate] that she [was] adamant in her view that there [was] no reasonable likelihood of cohabitation being resumed, and the [Husband] having been given every reasonable opportunity to put his case”. I accept the submission on behalf of the Wife and reject the second area of complaint.
Third Area of Complaint
In relation to the two grounds of appeal that are said to relate to the complaint about natural justice it was submitted that the Husband sought but was refused an adjournment in order that he might adduce further evidence. It was submitted that there was no specific submission at all as to detriment or serious injustice that the Wife would suffer by virtue of an adjournment and the Federal Magistrate erred by refusing the application in the circumstances.
On behalf of the Wife it was pointed out that the pre-trial orders made in this matter by a Registrar on 10 June 2008 were that the application for divorce filed by the Wife on 11 April 2008 be adjourned for final hearing before Federal Magistrate Reithmuller on 8 August 2008 at 9.00 a.m.; that the Husband file and serve by 11 July 2008 all affidavits to be relied upon at the hearing; that the Wife do file and serve by 31 July 2008 all affidavits to be relied upon at the hearing and that the Husband pay by 11 July 2008 the hearing fee of $365.00.
Thereafter in the submissions of the Wife reference was made to the chronology of events leading up to the trial which I have set out above.
The Wife filed her affidavit in response, as well as the affidavits of R, Mr Y and Ms H on 5 August 2008 (5 days late). On 7 August 2008 the Husband filed an affidavit seeking an adjournment of the trial date on the basis that he required further time to obtain legal advice and respond to the affidavits filed by the Wife and others on 5 August 2008.
As I have already observed the orders made by a Registrar on 10 June 2008 did not provide for additional affidavits to be filed by the Husband or for him to adduce further evidence. The Husband had previously unsuccessfully sought to adjourn the directions hearing on 10 June 2008. It was submitted on behalf of the Wife that the Husband’s attempts to further delay proceedings was consistent with his subsequent evidence that he does not accept that the marriage has broken down. The Federal Magistrate noted that the conduct of the Husband had been oppressive to the Wife in this regard.
On behalf of the Wife it was submitted that the decision to proceed with the trial and not grant an adjournment to the Husband cannot be said to be a denial of natural justice in these circumstances. Both parties were in attendance with all their witnesses on the trial date. The Federal Magistrate accepted into evidence both late affidavits of the Husband and Mr JL, who both gave oral evidence. The Wife’s case was disadvantaged in that the Federal Magistrate proceeded on the basis that the affidavits of the Wife, and others who could corroborate her evidence, filed on 5 August 2008, would not be accepted into evidence.
I accept the submissions of the Wife. The affidavits filed on behalf of the Wife which the Husband sought an opportunity to reply to were not put into evidence. Further, consideration of the transcript of the hearing does not suggest that the legal representatives for the Husband were unable to adequately represent him. In my view, the matters contended for in this third complaint are without any merit and I reject the complaint.
Fourth Area of Complaint
According to the Husband’s outline of submissions, the fourth area of complaint deals with three grounds which are said to relate “to a proper basis or weight supporting findings of fact”. As I have already observed, ground 15 was not addressed in either the oral or written submissions for the Husband and yet it was not abandoned. In these circumstances, I will consider ground 15 under the fourth area of complaint.
The matters raised in this fourth area of complaint are a miscellaneous group which overlap with other areas of complaint. New matters appear to be complaints that the Federal Magistrate did not address that R was biased towards the Husband and what was alleged to be a conflict between the evidence of the Wife and that of Mr JL as to what the Wife said at the meeting in March 2007. Next that the Federal Magistrate did not address that because of Mr Y’s friendship with the Wife and R, Mr Y’s evidence was biased towards the Husband.
On behalf of the Husband it was submitted that the affidavit of R sworn on 4 August 2008 was objected to and the Wife commenced the case expressly on the basis of an election not to rely on the affidavit. The Husband did not therefore cross-examine on the material in the affidavit. It was submitted that the Federal Magistrate erred in taking that evidence into account. It was submitted that additionally, the evidence of the witness generally ought to have been viewed in the light of the uncontested evidence of the parties that the witness suffered psychological difficulties. It was submitted that the witness had over time developed a bias against the Husband. I have already dealt with some of what was put in these submissions.
On behalf of the Wife it was submitted that the submission on behalf of the Husband suggests that the Federal Magistrate erred in taking into account the affidavit evidence of R. Further, that less weight should have been given to his oral evidence because of alleged bias against the Husband and the suggestion he was suffering psychological difficulties. It was submitted that counsel for the Husband made a submission at trial suggesting R may be biased (Transcript, 8 August 2008, p 100). Counsel for the Husband said to the Federal Magistrate: “I’m simply saying that he was more partial to his mother than his father” (Transcript, 8 August 2008, p 101). The Federal Magistrate noted that there was nothing concerning about R in the manner he gave evidence. The Federal Magistrate’s observation was that he gave straightforward responses and his evidence appeared to be even handed (Transcript, 8 August 2008, pp 100 to 101).
I have read the cross-examination of R and at no point was anything put to him to suggest that he was biased towards the Husband (Transcript, 8 August 2008, pp 50 to 53). In fact, in my view, there is nothing to suggest that the observation of the Federal Magistrate that R gave straightforward responses and his evidence appeared to be even handed was in error.
On behalf of the Husband it was submitted that the evidence of the Husband on significant matters such as dates of cohabitation was clear and unequivocal. It was submitted that by contrast, the Wife’s evidence was uncertain as to dates and details and in all the circumstances ought not to have been accepted in preference to that of the Husband. Again, I have already dealt with some of what was put in these submissions.
On behalf of the Husband it was submitted that the evidence of Mr JL included his denial that the Wife said that the marriage was over in the course of the 20 March 2007 meeting. It was submitted that the Wife noted in her evidence that she respected the witness. It was submitted that the Federal Magistrate erred in that no assessment of the competing evidence of the Wife and Mr JL was made on this point. It was submitted that in all the circumstances, the evidence of Mr JL supported the evidence of the Husband and ought to have been taken into account and preferred.
I have already set out above some of the evidence given by Mr JL in cross-examination and I repeat that he was asked: “Did she give some indication that she would be prepared to continue with the marriage? --- She didn’t say anything in respect of that” (Transcript, 8 August 2008, p 94). I also observe that in examination in chief he said: “Then I did dominate the discussion” (Transcript, 8 August 2008, p 91). In my view, the fact that there was a meeting at which there was discussion about the infidelity of the Husband corroborates that by March 2007 there was a breakdown in the marriage of the Husband and the Wife.
As to ground 15, I note that counsel for the Husband in cross-examination put to Mr Y that there were periods of time where the Wife had returned to the matrimonial home, that he could not have known and that he was “relying basically on what [the Wife] has told [him], in the evidence that [he] was giving to the court” (Transcript, 8 August 2008, p 59).
I also observe that in re-examination Mr Y said that although he had been the Wife’s friend for nine years, he was not merely basing his evidence on what she had told him but it was also based on what he saw. He then gave a brief account of an incident in March 2007 when he observed the Husband enter the home (Transcript, 8 August 2008, p 60). I have already observed that Mr Y gave evidence that on 17 March 2007 he assisted the Wife leave the matrimonial home.
Close consideration of the oral evidence of Mr Y, in my view, illustrates that although it was put to him that he was “relying basically on what [the Wife] was telling [him]” and that he was “her friend” and that he has “known her for nine years”, his evidence was in fact straight forward. Other than his friendship with the Wife, there was nothing put to him to suggest that he was biased.
I am of the view that the fourth complaint should be rejected.
Conclusion
For reasons I have given I propose to dismiss the appeal. In my view, no appealable error on the part of the Federal Magistrate has been demonstrated.
I am concerned about the way this litigation has been conducted. My observation is that the Husband may be endeavouring to put pressure on the Wife by the avenue of litigation. This view is in part founded on the applications by the Husband for adjournments, his failure to comply with orders and his applications to adduce further evidence.
Although I accept that given the delay in the delivery of these reasons, I must bear some of the responsibility for the waste of public resources in my view, regrettably, this litigation has become a waste of public and private resources.
Costs
I will make directions for the filing of written submissions.
I certify that the preceding one-hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Ryan
Associate:
Date: 15 June 2010
0
3
6