KAPOOR & KAPOOR
[2015] FamCAFC 238
•16 December 2015
FAMILY COURT OF AUSTRALIA
| KAPOOR & KAPOOR | [2015] FamCAFC 238 |
| FAMILY LAW – APPEAL – Appeal from divorce order – Where the husband conceded the relevant statutory requirements for divorce had been met – Where the husband argued that as he had not willingly separated from the wife, the court should not find that the parties’ marriage had broken down irretrievably – Appeal dismissed. |
| Family Law Act 1975 (Cth): s 48 Todd & Todd (No 2) (1976) FLC 92-008 |
| APPELLANT: | Mr Kapoor |
| RESPONDENT: | Ms Kapoor |
| FILE NUMBER: | SYC | 2198 | of | 2014 |
| APPEAL NUMBER: | EA | 149 | of | 2015 |
| DATE DELIVERED: | 16 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 15 December 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 September 2015 |
| LOWER COURT MNC: | [2015] FCCA 2524 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Order of 15 December 2015
The appeal against the orders made by Judge Monahan on 3 September 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kapoor & Kapoor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 149 of 2015
File Number: SYC 2198 of 2014
| Mr Kapoor |
Appellant
and
| Ms Kapoor |
Respondent
REASONS FOR JUDGMENT
Introduction
By a Notice of Appeal filed on 8 September 2015, Mr Kapoor (“the husband”) appeals against a divorce order made by Judge Monahan on
3 September 2015 as between him and Ms Kapoor (“the wife”).
On 15 December 2015 the appeal was heard and dismissed. These are the reasons for the decision.
So as to give context to this appeal it is necessary to provide some brief background facts.
The parties were married in India in 1995.
There are two children of the marriage, the younger is 17 years of age.
The wife previously commenced divorce proceedings on 11 April 2014 however as the parties had at that time apparently not been separated for the requisite 12 months, the application could not proceed.
The wife filed a fresh application for divorce on 30 March 2015. By a response filed on 25 May 2015, the husband opposed the wife’s application and sought that it be dismissed.
The wife’s application was heard by Judge Monahan on 3 September 2015. His Honour summarily dismissed the husband’s application and his Honour then heard the wife’s application and granted a divorce order as she sought.
His Honour’s reasons
His Honour outlined the relevant law in relation to summary dismissal and at [8] identified the issues for determination before him as being:
·Whether the husband’s response had no reasonable prospect of success or should otherwise be dismissed because it was doomed to fail; and
·Whether a divorce order should be made.
The husband argued that the wife’s application ought to be dismissed because, as he did not leave the matrimonial home willingly, the marriage could not be considered to be at an end.
Before his Honour the husband agreed that he and the wife had been validly married, that the wife is an Australian citizen and that he left the former matrimonial home on 9 March 2014. Thus his Honour indicated that the husband’s opposition to the divorce as contained in his response to the wife’s application “had no reasonable prospects of success and was, unfortunately, doomed to fail…”. The husband’s application was accordingly dismissed.
His Honour then proceeded to determine the wife’s application for divorce. He found that the wife had, in accordance with the requirements of the Family Law Act 1975 (Cth) (“the Act”), established that there was a valid marriage, that she was an Australian citizen and that the parties had separated for 12 months or more.
When considering the issue of separation, his Honour noted that for there to be separation for the purposes of s 48 of the Act more than mere physical separation was required and; “there must be a complete separation from the marriage relationship itself” [25]. In relation to the issue of separation as it was contemplated by both parties, his Honour said:
18.In this dispute, the husband’s response is largely reflective of his view that he does not consider that the marriage to the wife is over. While he acknowledges that he left the former matrimonial home (in his view “under duress”) more than 12 months before the filing of the wife’s application, he desires an opportunity to reconcile with the wife. In contrast, the wife’s application clearly states that she thinks it unlikely that she will resume any cohabitation with the husband. The wife’s application asserts that the parties resided together, albeit separated under the one roof from 30 June 2012 until 9 March 2014, and that the parties have not “lived together as husband and wife” since the date of separation. As stated, the parties agree that the husband left the former matrimonial home on 9 March 2014.
His Honour therefore made a divorce order as sought by the wife.
The Appeal
The ground of challenge to his Honour’s order was not so much an articulation of error as a submission.
On 03/09/2015 Judge Monahan granted divorce to my wife [Ms Kapoor] and informed me to apply for a nullity if I had a valid reason. Since I do have a valid reason I will initiate an application to this effect.
Since I had no lawyer during the hearing (a part time MBA student at [university] holding health care card), I couldn’t provide the legal evidence for stopping this divorce attached herewith is a statement listing the points I could not present clearly.
The orders sought on the appeal were:
1. Please stop the divorce go through
2. Please approve nullity initiating application filed separately
3. Please grant de facto relationship.
During the hearing before the trial judge, as part of his Honour’s explanation to the husband of the legal requirements necessary to found an order for divorce, his Honour said that while the material before him demonstrated that the husband and the wife were legally married, if the husband wished to challenge that, he would need to bring an application for nullity in the Family Court. This was the genesis of the husband’s order sought on the appeal.
On the hearing of the appeal it was clear that the husband did not challenge the validity of his marriage to the wife, and in any event the husband conceded before the trial judge that the marriage was valid.
The husband was not able to explain what was intended by the third order sought on appeal and, it seems, that it was not ultimately pressed.
Attached to the notice of appeal was a short statement of the husband to which he referred in the grounds of appeal and which he indicated he wished to be taken into account. Further, attached to his submissions were letters which attest to his attendance at various counselling services, which he said demonstrated that he had made significant efforts to address what he said were difficulties caused in the marriage.
Further he attached documents which showed his attempts to secure employment and to show that he had at the time of swearing the document obtained some part time work. Again, these documents are intended to show that, although apparently a point of contention between him and the wife, he had now taken up work again.
The material in the statement and attached to the filed summary of argument to a large degree repeats what was in evidence before the trial judge, going principally to the husband’s attendances at counselling which he said was in order that he “not repeat the mistakes of the past” and to efforts he has made to improve his prospects for work, including his enrolment in a part time course at university. To the extent that the contents of the statements fall outside what was before the trial judge, I will treat it as if it was further evidence that the husband wished to adduce on appeal.
It is entirely clear from the statement and the material filed before the trial judge that the husband does not want to be divorced from the wife, hoping, in effect, for a “second chance”.
In written submissions he stated:
…In my Hindu […] culture marriage is an eternal state of mind.
I trust that the above evidence will support my stand [sic] that the 12 month separation should not be misconstrued as willing separation on my part.
Section 48 of the Act provides that an order for divorce will be made on the basis that the marriage of the parties has broken down irretrievably. Proof of that is demonstrated in the parties having lived separately for a continuous period of twelve months. Of course, mere physical separation is insufficient proof of the irretrievable breakdown of a marriage.
In the marriage of Todd & Todd(No 2) (1976) FLC 92-008 Watson J referred to the meaning of separation and said at 75,079
… Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. …
The law is well settled, the determination to sever or not resume the marital relationship can be the decision of one party and where that one party is of the view that the marital relationship is irretrievably broken down, after twelve months of continuous separation in this sense, that party may apply for an order for divorce.
It is not a defence to an application for a divorce to assert, as the husband does here, that he does not regard the marriage to be at an end.
His Honour was entirely correct in his application of the law and in dismissing the husband’s application opposing the wife’s application for a divorce.
For this reason the appeal must fail and the divorce order will stand.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Justice Ainslie-Wallace delivered on 16 December 2015.
Associate:
Date: 16 December 2015
0
0
2