Kinsella and Harper

[2015] FCCA 3162

FEDERAL CIRCUIT COURT OF AUSTRALIA

KINSELLA & HARPER [2015] FCCA 3162

Catchwords:
FAMILY LAW − Divorce application − applicant husband alleges separation in February 2013 − respondent wife alleges separation in February 2015 − whether husband’s case proved on balance of probabilities.

Legislation:

Family Law Act 1975 (Cth), s.48
Evidence Act 1995 (Cth), s.140(1)

Applicant: MR KINSELLA

Respondent: MS HARPER

File Number: DGC 1033 of 2015

Judgment of: Judge Phipps

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Dandenong

Delivered on: 27 November 2015

REPRESENTATION

The Applicant: Appearing on their own behalf

The Respondent: Appearing on their own behalf

ORDERS

1. The application for divorce filed 14 April 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1033 of 2015

MR KINSELLA

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

1. The applicant husband filed an application for divorce on 14 April 2015.  The parties married on (omitted) 2012.  The husband says they separated in February 2013. The wife opposes the application.  She says separation was on 3 February 2015.

2. The ground for divorce is set out in s.48 of the Family Law Act 1975 (Cth).

   (1)  An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

   (2)  Subject to subsection (3), in a proceeding instituted by such an application, the ground 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.

   (3)  A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

3. Both parties were born in (country omitted).  Both were self represented and the husband required the assistance of an interpreter.  The wife cross examined the husband briefly.  The husband did not cross-examine the wife.  Both parties filed affidavits from others supporting their claim.  None of the makers of those affidavits were available for cross-examination.

4. The husband was born in (country omitted) on (omitted) 1981.  He commenced living in Australia in 2003. The wife was born in (country omitted) on (omitted) 1989 and commenced living in Victoria on 28 September 2011.  The husband is an Australian citizen.  The wife lives in Australia.  She has a spouse visa by reason of her marriage to the husband.

5. The affidavits were prepared without legal assistance.  Neither parties’ affidavit sets out a clear chronology.  The clearest account of the wife’s case is given in the supporting affidavit of Ms T.  She says she has known the wife since 2012 and they became very close friends.  She says she witnessed the parties falling in love during their dating period in 2012 and that she was one of the two witnesses present at their wedding in (omitted) 2012.

6. Ms T says that she visited them at their home, located at (omitted), two months after she gave birth to her daughter in (omitted) 2013.  She describes them as living a happy and healthy relationship.  She says that on 1 June 2013 the couple insisted she let out one of her spare rooms to them.  They wanted to save so she agreed and she annexes a tenant agreement signed by all three.  She says they moved into her house.

7. Ms T says on 10 October 2014 she was their supporting witness in relation to their marriage visa application.  She says she accompanied the parties on a shopping spree at (omitted).  She says that the wife paid for items one of which was (omitted) sunglasses from (omitted). Ms T says this was a gift to the husband before he visited his mother in (country omitted).  She annexes the picture of the husband and wife in (omitted).  She says that on 7 October 2014 she joined the husband and wife on a day trip to the (omitted) and annexes a picture of the husband and wife in the gardens.

8. Ms T says that to the best of her knowledge she believes the husband and wife were a happy couple from 2012 to 2014.  She says that after the husband’s trip overseas in November or December 2014 things between the husband and wife were not the same.  They did not have a very happy relationship.  Ms T then says that the wife filed for an Intervention Order against her husband in March 2015.

9. The wife has two affidavits which each refer to documents and events which support her claim that the parties remained together until 2015.  She says that on 7 November 2014 she and the husband purchased (omitted) car insurance together.  She annexes a certificate of registration for a Toyota in the name of the husband and a (omitted) certificate of insurance for the same Toyota for 2014/2015 in the husband’s and wife’s names.  She annexes the receipt for payment.  She says that in February 2015 when she called up the insurance company to change the policy she was told that the husband had already cancelled it and the $485 cheque sent to another address.

10. The wife says that at a Christmas event she and the husband went together and took some pictures and she annexes them.  They show the husband and wife sitting at a table, standing together beside a motor vehicle and sitting together in a bed.  The latter is obviously not at the event but the inference is it is the same day or close to it. The photographs are consistent with an affectionate relationship.  The wife annexes an electricity bill in the name of the husband and wife for (omitted) for the period 6 December 2014 to March 2015 with an issue date of 16 March 2015.

11. The wife says that in March 2015 she lost her job.  She said the husband was losing control of his gambling and came home drunk.  She was angry because she had lost her job and she had no more money to give him for gambling.  She says later on she met his ex-wife and found out he did the same to her and on 21 March 2015 she obtained an interim intervention order.  She says she believes the husband applied for divorce because she did this.

12. In a second affidavit the wife says that on 11 November 2014 she and the husband signed the documents for a Partner Visa (subclass 820).  The application was lodged in November 2014.  She annexes a number of documents which include a joint Relationship Statement which the husband acknowledges he signed. The statement describes their relationship.

13. The Statement says they married on (omitted) 2012.  It commences:

    We, Mr KINSELLA (DOB: (omitted) 1981) and Ms Harper (DOB (omitted) 1989) of (omitted) wish to provide the following statement in supporting a marital relationship.

14. The statement then describes how they met and then introduced each other to their parents who were all in (country omitted).  The statement says they first lived at (omitted) and then moved to another address at (omitted) in June 2013 “where we were sharing a room with other friends (refer to the attached printed agreement).  The statement attaches a copy of the rental agreement described by Ms T.

15. The statement describes housework and outings and says they are committed to a shared life and to the mutual commitment together as husband and wife. The statement says they set up a joint (omitted) Bank account and had planned to save up in the future to buy a house together.  It describes their marriage relationship as genuine and continuing.

16. The wife has another supporting affidavit by Ms M.  It says in general terms that she saw them as a married couple.

17. In his affidavit the husband says he never lived with the wife at (omitted) and has never slept at that place.  He annexes a report from VicRoads setting out the addresses of his driver’s licence.  It has (omitted) for only a few days from 16 October 2014 to 21 October 2014.  He says that about 16 October 2014 the wife tried to convince him that she would be genuine and honest with him.  She took him out to the pictures, he says she convinced him to put his signature on a number of documents and put his name to joint personal documents such as bank, residential lease and VicRoads.  He said she tried to fabricate a relationship with him and manufacture documents for her Australian resident visa application for migration purposes.  He says he knew this within days and ended the communication and relationship immediately again.  He says he informed VicRoads within a few days.

18. He says the pictures in her affidavit which she says were taken at Christmas were not.  They were taken on the same day she fabricated all the other documents.  He says that in the morning she invited him to her place at (omitted) and took a picture in the bedroom.  She took him to lunch in (omitted) and took a picture and then took him into Melbourne including Crown Casino taking pictures again.  He said he was not aware about joint names on utilities.

19. The husband claims that the wife stole a number of his personal documents.  He says, he reported this to the Department of Immigration and Citizenship and withdrew his visa sponsorship.  Confusingly, he says he instructed his migration agent to notify the immigration department who drafted the letter for him to sign on 24 May 2013.  He says he has now discovered that the migration agent might not have sent this instruction to the immigration department.  The next document appears to be instruction to the agent rather than a letter to the Immigration Department.

20. The husband says he has lived at (omitted) and he rents one-bedroom from Ms O.  He denies that he lost control of gambling and says that on that day the wife came to the house at (omitted) and was screaming.  He says she was asking him why he reported her to immigration.  He asked her to leave.

21. The husband has a supporting affidavit from Ms O.  She says she had known the husband since October 2013 when he rented a bungalow where she and her husband were living at (omitted).  She says the husband came with them when they moved to (omitted). He rented one-bedroom.  She says on 5 March 2015 at about 8.00pm the wife attended at her house looking for the husband.  She started arguing with the husband.  She says the wife was extremely aggressive.  She says the wife was angry with the husband because he informed the immigration department and withdrew sponsorship for her visa application.  Ms O says she asked the wife to leave.

22. The standard of proof is set out in s.140(1) of the Evidence Act 1995 (Cth).

    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

23. To find the case proved I would have to be satisfied on the balance of probabilities that both parties, and possibly others, had agreed to participate in a fraudulent claim to the Department of Immigration and Border Protection that the parties were living together as husband and wife in November 2014.  I would have to be satisfied on the balance of probabilities that the husband had knowingly signed a false statement, an action which carries criminal penalties.

24. The record of residential addresses for the husband’s drivers licence are consistent with his evidence and that of Ms O that the husband since October 2013 lived at (omitted) and then (omitted) not with the wife at (omitted).  Otherwise the documents support the wife’s case.  One of these documents is the rental agreement for (omitted) signed by both the husband and wife.  The husband says that while it looks like his signature he did not sign on the “Tenant Agreement”.

25. There is no expert evidence about the signature and there was minimal cross examination.  I have to do the best I can with the evidence in the circumstances.

26. The husband’s explanation for his signature on documents and the photographs of what appear to be a happy and affectionate couple is puzzling.  He says that the parties had been separated since early 2013 and he went out with the wife at her invitation in October 2014 saying he thought she had changed.  If that is so the photographs described above show a remarkably quick reconciliation if the parties had been separated for 20 months.  In particular the photograph of the husband and wife sitting under the covers in bed, the wife in front of and against the husband, does not look like a couple who have been separated for 20 months and have just come together again on the invitation of one to take the other out.  It would be more consistent if the photograph was part of the scheme to deceive the Department of Immigration and Border Protection but that is not what the husband alleges.  It is more consistent with the wife’s claim that in the latter part of 2014 the parties were still happily married and living together and that the causes of the separation and the separation did not occur until 2015.

27. The husband acknowledges he signed the Relationship Statement in November 2014.  To find that that it is a deliberately fabricated document to deceive the Department of Immigration and Border Protection would be a very serious finding.  The husband did not cross examine the wife.  The wife’s cross examination of the husband was minimal.  The state of the evidence does not permit me to make such a serious finding.

28. I am not satisfied on the balance of probabilities that the husband has proved his case that the parties separated in February 2013 and had been living separately and apart for a period of 12 months on the date the application was filed, 14 April 2015.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  27 November 2015