LINDEN & TEMPLEMAN
[2016] FamCAFC 28
•29 February 2016
FAMILY COURT OF AUSTRALIA
| LINDEN & TEMPLEMAN | [2016] FamCAFC 28 |
| FAMILY LAW – APPEAL – DIVORCE – Where the wife argued that the parties’ relationship had continued notwithstanding they no longer lived together – Where the court was satisfied that the parties had separated pursuant to s 48(2) of the Family Law Act 1975 (Cth) – Appeal dismissed. |
| Family Law Act 1975 (Cth): s 48(2) |
| CDJ v VAJ (1998) 197 CLR 172 Clarke & Clarke (1986) FLC 91-778 Price & Underwood (2008) 39 Fam LR 614 Todd & Todd(No. 2) (1976) FLC 92-008 |
| APPELLANT: | Ms Linden |
| RESPONDENT: | Mr Templeman |
| FILE NUMBER: | ADC | 4324 | of | 2012 |
| APPEAL NUMBER: | SOA | 51 | of | 2015 |
| DATE DELIVERED: | 29 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Strickland J sitting in Adelaide and Ainslie-Wallace and Ryan JJ in Sydney by video link |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Ryan JJ |
| HEARING DATE: | 29 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2015 |
| LOWER COURT MNC: | [2015] FamCA 528 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The Application in an Appeal filed on 9 February 2016 is dismissed.
The appeal against the divorce order made by McClelland J on 30 June 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Linden & Templeman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SOA 51 of 2015
File Number: ADC 4324 of 2012
| Ms Linden |
Appellant
and
| Mr Templeman |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ainslie-Wallace J
Introduction
By an Amended Notice of Appeal filed on 31 August 2015, Ms Linden (“the wife”) appeals against a divorce order made by McClelland J on 30 June 2015 as between her and Mr Templeman (“the husband”). The husband opposes the appeal.
The parties were married in 2004. There are no children of the marriage.
The husband commenced divorce proceedings on 14 November 2012 but discontinued those proceedings on 31 December 2012.
The husband filed a fresh application for divorce on 31 March 2015 in which he asserted the parties had separated on 23 September 2010. By a response filed on 12 June 2015, the wife opposed the husband’s application and sought that it be dismissed. The wife asserted that separation had not taken place until
10 March 2015.
The husband’s application for divorce was heard by McClelland J on 30 June 2015. Both the husband and wife had filed affidavits in relation to the issue of separation and each gave evidence before his Honour.
His Honour dismissed the wife’s response and granted a divorce order as sought by the husband.
The reasons for judgment of the trial judge
His Honour noted the wife’s assertion that she had not been properly served with the husband’s application for divorce and that she opposed the making of the divorce order because she and the husband had not been separated for a period of twelve months before the application for divorce was filed. As to the issue of service, his Honour noted that despite the matters the wife put to the court, she nonetheless appeared before the court on the application and was heard in relation to it [7].
His Honour thus identified the issue for determination before him as being:
8. …whether the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of filing the application for divorce.
His Honour noted that the husband contended that he and the wife separated in September 2010 and, although he conceded that he had maintained contact with the wife during the time since 23 September 2010, he said that that contact had been on the basis of a “friendship/religious or obligation basis”. His Honour further noted the husband’s evidence that he had made it abundantly clear to the wife that he would not live with her again nor remain in a marriage relationship with her [14] [15].
As to the wife’s position, his Honour noted that she contended that she and the husband only separated on 10 March 2015 and that until that time there was regular contact between them and there was sexual intimacy between them as recently as 10 March 2015 [17].
His Honour set out the wife’s evidence which she said demonstrated that the parties had not separated before March 2015 [23].
It was uncontentious that the wife and husband had not lived in the same residence since 2010. While the wife, when asked, could not recall when she had last stayed the night at the husband’s residence, her friend, who gave evidence on the application said that in the four to five years she had known the wife, she had not known her to stay at the husband’s residence [18].
After setting out the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), and in relation to the issue of determining whether there had been a separation his Honour said:
28.The authorities make it clear that there are three elements to consider in determining whether there has been a separation. Those are:
a) an intention to separate;
b) acting upon that determination; and
c) communication of that intention to the other party.
29.The husband asserted that on a number of occasions he made the intention to separate clear by words and by actions to the wife and, as I have indicated, in 2012 the husband commenced proceedings for a divorce which the wife became aware of at least in late 2012.
30.In the case of Todd & Todd (No. 2) (1976) FLC 90-008, Watson J referred to the meaning of “separation” and said that separation occurs 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. Watson J also said that what comprises a marital relationship for each couple will vary. He said marriage involves many elements, some or all of which may be present in a particular marriage. Elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships may be relevant.
31.It is clear that the issue as to whether there has been a separation will be a question of fact to be determined according to the circumstances of each case (Price & Underwood (2008) 39 Fam LR 614). In Clarke & Clarke (1986) FLC 91-778, Fogarty and Nygh JJ said that cessation of cohabitation is prima facie an indication of severance of the marital relationship, but their Honours stressed the importance of both physical separation and severance of the marital relationship. In that respect, communication of the intention to separate can be communicated whether it is spoken or unspoken.
32.I find that intention to separate has been communicated to the wife by word and by action. Specifically, I find that it was communicated in September 2010 when the husband asked the wife to leave the house and on several occasions since that time, but most specifically by way of filing of an application for divorce in 2012.
His Honour found that even accepting the wife’s evidence of social contact and occasional sexual relations, he was not persuaded that the parties have not been separated since September 2010 [34]. His Honour further found that there was no financial dependence or interdependence, nor any arrangement for financial support between the husband and the wife [35].
His Honour said:
37.There may have been regular or semi-regular meetings within the twelve month period prior to 31 March 2015, but they do not, in my view, reflect a mutual commitment to a shared married life.
Application in an appeal
By application filed on 9 February 2016 the wife seeks leave to adduce further evidence on the appeal. The affidavit of the evidence that she would adduce in the appeal goes to her activities for and with the husband which, it seems is to supplement by the addition of greater detail, the evidence given before the trial judge. Attached to the affidavit are emails from and to the husband dating from 2013 to 2014 and other documents and invoices.
On the hearing of the appeal, the wife said that the reasons why the court should accept the further evidence was because:
·She had not fully prepared for the hearing because she believed that the application would be dismissed on the basis of a failure of service;
·She wanted to give more details about her evidence that were before his Honour and in particular that she now had dates on which photos were taken
·And it would be an injustice for the husband’s evidence to be accepted when, she said, it was false.
The capacity of the Full Court to receive further evidence on an appeal is constrained and will only be permitted in limited circumstances. No relevant circumstances exist in this case which would warrant the admission of this evidence and in my view the application in an appeal will be dismissed (CDJ v VAJ (1998) 197 CLR 172).
The appeal
It is appropriate, before dealing with the issues raised on the appeal to set out the relevant provisions of s 48 of the Act.
48.(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.
In the Amended Notice of Appeal, the wife relies on eight grounds of appeal. She also filed a summary of argument. The wife appeared for herself before his Honour and in the Full Court, and she had clearly prepared the Notice of Appeal and argument herself.
The grounds of appeal broadly contend as follows:
a)the wife was denied procedural fairness in that she was unaware that it was a final hearing, she was not represented legally, and she was denied an adjournment to adduce further evidence (Grounds 5, 6 and 7);
b)his Honour erred in his consideration of the evidence in that he failed to take into account relevant matters, he erred in the weight he attributed to the evidence before the court, he mistook the facts, and he came to his determination based only on the husband’s evidence (Grounds 2, 3, 4 and 8); and
c)his Honour made an error of principle (Ground 1).
Although not contained in any ground, the wife further argues that she was not properly served with the husband’s divorce application.
Before his Honour was an affidavit of service by a process server who deposed to attending the wife’s address on three occasions for the purpose of service on her which was eventually effected on 1 June 2015. In that affidavit the process server said:
I saw the subject in the kitchen/dining room on the phone and identified her by the picture provided. As soon as she saw me she ran out of the room. Her vehicle was there and her hand back [sic] was seen in the sitting room. I knocked on the door and the windows calling out her name and saying “I have seen you and know you are home and I have papers for you”. I did this for about 5 minutes and finally yelled out “[Ms Linden] you have been served and I am leaving the papers under the front door”.
The wife does not deny that she found the service papers outside her house, but contended that the papers were left there “without even knowing it was me that lived there”.
Clearly she is incorrect. The process server had her address and a photograph of her and she received the papers. In any event she came to court on the relevant date.
Procedural fairness - Grounds 5, 6, and 7
The husband’s application was listed for hearing on 29 June 2015, it came before a registrar and was stood over until 2.30 pm the next day for hearing before his Honour. Both the husband and the wife were present before the registrar on 29 June 2015. Whatever the wife may have anticipated, I note that she had filed a response opposing the husband’s application, an affidavit in support of her response and an affidavit of a witness, Ms T. Further, Ms T was present on 30 June 2015 and gave evidence before his Honour. At the hearing before the trial judge, the wife had documents with her which she tendered to demonstrate that she and the husband had not been separated as he had asserted. Finally, and perhaps most importantly, she did not complain to his Honour about the nature of the hearing, nor did she seek to adjourn the matter or seek to clarify the nature of the hearing. In my view there is no substance in this complaint.
Similar conclusions arise in relation to her contention that she was disadvantaged because she was unrepresented. Again, no application for an adjournment was made to enable her to seek legal advice. Equally, as to her complaint that because she did not know that the hearing would be final, she did not seek an adjournment to gather further evidence although she did indicate to his Honour that she had a neighbour who would give evidence that she saw the wife and the husband “out together having tea” which the wife said proves that she and the husband “were actually relational right up until March this year.” (Transcript 30 June 2015, page 19, line 31). His Honour indicated that he would be unlikely to be assisted by the neighbour’s evidence but did tell the wife that she herself could give that evidence.
In my view there has been no denial of procedural fairness, and none of these grounds can succeed.
Errors in his Honour’s consideration of the evidence (Grounds 2,3 4 and 8)
Ground 8 is readily disposed of. As is apparent from reading the reasons and the transcript of the hearing before his Honour, he was alert to the competing evidentiary contentions of the parties. However, far from basing his decision on the husband’s evidence alone, his Honour, accepted the wife’s evidence in its entirety as part of his consideration of whether the parties had been separated for twelve months preceding the filing of the application. His Honour said:
19. … The approach I have taken is to consider whether, even if the wife’s evidence is accepted in totality, it establishes that the parties have not lived separately and apart for a continuous period of not less than twelve months immediately prior to 31 March 2015.
At [23], his Honour set out in summary form the wife’s evidence on the issue of separation and, finally, said:
34.Again, even accepting the evidence of the wife that the parties have, since September 2010, continued to be in contact with each other and to spend time in the social context together, including having a “weekly date day” and even, from time to time, having sexual relations, does not, on the evidence before me, lead to the conclusion that the parties have been other than separated since September 2010.
Clearly then, his Honour not only considered the wife’s evidence, but accepted it in coming to his determination that notwithstanding her evidence, he was satisfied that the parties had separated as the husband asserted.
The wife argues in Ground 2 that his Honour failed to give proper weight to the exhibits tendered by her, in particular, the invoices from a fertility clinic charging for the retention of frozen semen. It was uncontentious that the husband donated semen in 2012 for “treatment … agreed to in 2012”, but the semen had been ultimately destroyed. (Transcript 30 June 2015, page 17, line 42.)
The wife made no submission to the trial judge on what finding his Honour could make based on these documents, even in the context of the rest of her evidence. His Honour referred to this exhibit at [20] and concluded that it cast no light on the issue that he had to decide. I agree with that conclusion.
The wife further contends that the trial judge failed to give proper weight to her assertions that the husband had “mental health issues” which, she said were the reason why the parties lived separately.
The wife submitted to his Honour:
We have lived in separate dwellings due to [the husband’s] mental health and episodes that have been unable to manage, and we’ve regularly maintained a marriage relationship, living separate, but he has regularly spent time with me, and I’ve regularly spent time with him and his children.
(Transcript 30 June 2015, page 12, line 12)
The husband’s account of the reason for their separation was different, namely, the wife’s conduct.
As to the ground that asserts his Honour gave inappropriate weight to certain evidence, (Ground 3), the wife’s summary of argument provides no particulars of the ground and does not identify to what evidence his Honour gave inappropriate weight although it is tolerably clear that this is a reference to the husband’s evidence. I have dealt with that complaint in addressing Ground 8.
The mistaken fact is said to be his Honour’s finding that the parties had separated for the twelve months before the filing of the application for divorce (Ground 4). However, that goes to the ultimate issue and I am not persuaded that his Honour erred in his findings on the facts.
It is sufficient to dispose of these challenges to point out that what facts are established by the evidence, and the weight to be accorded to the evidence are matters for the trial judge, and an appeal will only lie therefrom when the finding of fact is not reasonably open on the evidence or the weight given to the evidence results in a decision that is plainly wrong. That is not established here.
Error of principle - Ground 1
The wife’s summary contends that his Honour applied the “wrong case law” and further that his Honour “applied the area of law that suited his decision”. I was unassisted by the wife as to what is the “correct case law”. In any event, his Honour correctly referred to the relevant authority and statute in setting the framework for his determination.
During the discussion on the appeal it became clear that the wife’s challenge was that rather than applying the wrong principle his Honour made the wrong finding of fact.
In my view no error is established.
Conclusion
The appeal will be dismissed.
Strickland J
I agree with the Reasons of Ainslie-Wallace J and agree that the application in an appeal and the appeal should be dismissed.
Ryan J
I, too, would dismiss the application in an appeal and the appeal for the reasons given by Ainslie-Wallace J and I would join in making that order.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 29 February 2016.
Associate:
Date: 29 February 2016
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