M and M - [2003] FMCAfam 130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M

[2003] FMCAfam 130

FAMILY LAW – Dissolution of marriage – living separately and apart – date of separation – resumption of cohabitation – whether Respondent moving back into home occupied by Applicant and children constitutes resumption of cohabitation – evidence of legal proceedings between parties – Interim Apprehended Violence Order obtained by Respondent restraining the Applicant from entering or residing in the Respondent’s residence.

Family Law Act 1975, ss.48; 49

Todd (No. 2) (1976) FLC 90-008
Falk (1977) FLC 90-247
Pavey (1976) FLC 90-051
Fenech (1976) FLC 90-035

Applicant:

R A M

Respondent:

F M

File No:

PAM 3436 of 2001

Delivered on:

8 April 2003

Delivered at:

Parramatta

Hearing date:

7 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Mr Shepherd, Hazelwoods

The Respondent:

In person

ORDERS

I pronounce a decree nisi for the dissolution of the parties’ marriage.
There are circumstances by reason of which I am satisfied that the decree should become absolute pursuant to the provisions of section 55A(1)(b)(ii) of the Family Law Act.
The decree is to become absolute in one month from the date of these Orders.
The Application is removed from the Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3436 of 2001

R A M

Applicant

And

F M

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the husband for a decree of dissolution of marriage that was entered into between the parties on 27 February 1988.
The applicant says that the parties separated in the year 1998 and that they have lived separately but under the one roof for certain periods of time since then. In support of his application the applicant has sworn an affidavit by himself. He has also provided an affidavit sworn by his mother on 10 March. He relies on those affidavits and two other documents, which he has tendered in evidence in support of his case.
Against this, the wife has filed a response. She says in her response that she disagrees with this statement. Her grounds are – and I quote:
"We have not separated yet plus we are still currently having sex as a husband and wife."
She also in her response denies that the arrangements for the children are proper. It is her case that she and the husband were, at the time of filing the response, currently living together at 10 W Place, E Park in the State of New South Wales as husband and wife and that, as evidence of that relationship, she and the husband had intercourse as recently as Friday, 24 January. In summary in her response she said, "We have not separated yet."
The matter was listed for a defendant hearing yesterday. At that stage the respondent sought to change her position but only slightly. What she said is that since the matter was last before the Court on

10 February she had in fact left the home at 10 W Place and that she had left the premises on about 17 February, a week after the matter was last before the Court and what she asked was for an adjournment of the proceedings for a period of almost 12 months. She asked for an adjournment till 18 February 2004. The applicant opposes that adjournment and asked that the matter proceed.
I would comment that the issues are:
(a)Whether the husband can prove that he and the wife have been separated under the one roof.
(b)If so, whether that separation commenced more than 12 months prior to the filing of the application for divorce.
It would follow that the wife's application to adjourn the proceedings for a period of almost 12 months would not cure any defect in the application because adjourning the proceedings would not show that the parties have been separated for 12 months prior to the time when the application was filed.
The Court record shows that the application was filed on 19 December 2002. The applicant must show that the parties separated more than 12 months before 19 December 2002. Unless it can be shown that the parties have been separated for at least 12 months the Court has no power to dissolve the marriage and establishing the question of separation as a matter of fact.
The importance of establishing a separation of at least 12 months is made clear by section 48 of the Family Law Act 1975, the relevant parts of which are :
"(1) An application under this Act for a decree of dissolution of 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 grounds shall be held to have been established and a decree of dissolution of the marriage 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 dissolution of marriage."
Quite clearly, the use of the words, "if and only if", imposes a mandatory obligation on the Court to be satisfied that there has been a separation for no less than 12 months. The Court has no power to shorten the time or backdate the period.
Separation, including separation under the one roof, is covered in section 49 of the Act which says:
"(1) 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.
(2) 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."
It is clear that physical separation is neither a necessary nor a sufficient condition to establish a separation for the purposes of section 48 subsection 2. Parties to a marriage may regard themselves as being married even though they are living apart for a period of time. Members of the army on an operational deployment are an obvious example.
The authorities make it clear that there are three elements of separation:
(a)An intention to separate.
(b)Action upon that determination, and
(c)Communication of that intention to the other party.
In the decision in Todd and Todd No 2 (1976) FLC 90-008 His Honour Watson J said:
"Separation can only occur in the sense used by the Act where one or both of the spouses formed the intention to sever or not to resume the marital relationship and act on that intention or, alternatively, to act as if the marital relationship has been severed."
That was on page 75-079. The Full Court of the Family Court of Australia has made it clear that there is also a need to communicate the intention to separate to the other party. That communication can be spoken or unspoken, and I refer to the decision in Falk and Falk (1977) FLC 90-247. Where it is claimed the parties have separated whilst still living under one roof there is often a difficulty in establishing when the separation commenced or even that it has occurred at all. It is usually not sufficient to provide a list of household tasks done or not done by either of the parties.
In Pavey and Pavey (1976) FLC 90-051 the Full Court held that:
"It is not possible to apply some mathematical formula to these activities and determine whether a separation has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation."
That was at page 75-214. The law is unclear about the extent to which the breakdown of the marital relationship must be communicated to other people. In the case of Fenech and Fenech (1976) FLC 90-035 the parties lived in a strained relationship under the same roof but their separation was not apparent to outsiders. This was held not to be sufficient.
It is usually the case that some corroboration is required where the parties to a marriage is certain that their marriage has broken down but they continue to live under the same roof. The Full Court said in Pavey and Pavey again:
"Without a full explanation of the circumstances there is an inherent unlikelihood that the marriage has broken down and the common residence suggests continuing cohabitation."
That was at page 75-214. Where one party to the marriage continues to deny that a separation has taken place it is particularly important that there should be some corroboration. The case before me is indeed one where one party to the marriage denies that a separation took place until February of this year. What then is the evidence relied on by the applicant? And I make it clear it is up to the applicant to prove the necessary separation.
The background is that there are two children of the marriage, M and R. The applicant says that the parties separated in 1998 when they were living in a rented property in S Drive, E Park. He says that the wife commenced to spend increasing amounts of time away from the home. He says, which the wife denied, that they ceased to have a sexual relationship that year and that for some time in 1998 the wife resided for a period of time away from home and that they ceased performing domestic chores for each other.
He says that he moved with the boys to reside at another address in E Park at 4 Pelican Street. It appears to me that all the streets in E Park seemed to have been named after birds. He says that he moved to 4 P Street, E Park in March 2000. He says that the wife would come to the property from time to time and live there for short periods of time. He was not working. He allowed her to stay at the property because he understood that she had nowhere else to go. He said that he agreed to her staying in the property, as he was concerned she would otherwise be homeless.
He went on to say that he purchased a home in his sole name at another address in E Park at 10 W Place and that he and the boys commenced to reside there from 20 November 2001. He refers to a number of legal proceedings between the wife and himself since September 1998 and I will deal with those in some detail. He says that those proceedings culminated in the making of orders by this Court and indeed by me after the defended hearing on 21 March 2002.
The orders included an order that the wife should vacate the premises at 10 W Place within 21 days and he said that he told the respondent on numerous occasions that she had to move out. She refused to do so. He said he had concerns for her well being if she was to become homeless and accordingly he had not sought to enforce the orders. He deposed that his solicitors had written to the respondent on 12 December 2002 requiring her to vacate the premises and he annexed to his affidavit a copy of an application brought by the wife against him in which his address was shown as 4 P Street, E Park and she showed herself as residing at 43 T Terrace, B.
In the information sheet annexed to the application she describes the date of final separation as 18 October 2001, although he says in his affidavit he does not accept that to be the correct date. The husband's evidence also includes an affidavit by his mother who, in her affidavit, describes conversations from March 2002 onwards with the applicant, referring to the Court proceedings and his intention to seek divorce and, indeed, in paragraph 5 of his affidavit the husband's mother refers to a conversation with the husband in the second part of 2001 which she deposes to be saying:
"I bought a home for the boys and I. F is no longer living with us."
Both the husband and the husband's mother were cross-examined by the wife. She put that at all relevant times she was residing with the husband in a marital relationship. She was attending to the care of the boys when he was away at work. She put that the relationship included sexual intercourse, all of which the husband denied.
The husband's mother indicated that she had visited the house at 10 W Place and had inspected the place. She did not look in the main bedroom although it was put to her in cross-examination she could hardly miss the main bedroom. It was put to her which she denied that she would have seen evidence that the two of them resided together in that bedroom.
The wife elected not to give evidence but made some very strong submissions to the extent that the evidence of the husband and the husband's mother was not to be believed, that not going to show that there was a separation from 1998 or, indeed, from any other date prior to February of this year.
As I indicated earlier where there is an allegation by one party that there is a separation and the other party denies it, the Court must look at corroborating evidence. What corroborating evidence is there? The husband tendered material from the child support agency including a letter dated 5 January 2001 and a copy of a child support assessment on 23 November 2000. He also tendered a copy of an interim apprehended violence order as a result of proceedings brought by the wife against him as the defendant. That order shows the wife's then address as 5 P Street, E Park, whilst the husband's address was shown as 4 P Street, E Park.
The orders that were made included the standard orders that the husband was not to intimidate the wife nor must he stalk her. There are additional orders made restraining him from assaulting, molesting, harassing, threatening or otherwise interfering with her, restraining him from residing at the premises at which she may from time to time reside including the residence at 19 F Crescent, E Park, an order restraining him from entering the wife's residence including

19 F Crescent, E Park, and an order restraining him from approaching, contacting or telephoning her except as agreed in writing or for any purpose permitted by an order or direction under the Family Law Act.
The proceedings between the parties included an application brought by the wife in the local Court which was filed at P Local Court on

31 October 2001 returnable on 22 November. It was in the course of that application that the date of final separation was shown as 18 October 2001. There are also proceedings brought by the husband in this Court which involved orders being made on an ex parte basis on 16 November 2001 relating to the residence of the children, relating to injunctive orders about removing the children from New South Wales and relating to the substituted service on the address in T Terrace, B appearing on the wife's application to the local Court.
On 28 November 2001 the parties were ordered to attend counselling. There were interim orders made in respect of contact in respect of the children. On 14 December 2001 there are orders made in proceedings at which the wife did not attend relating to contact, referring to the interim apprehended violence order, ordering a family report.
The matter was listed at the final hearing on Wednesday, 20 March to go to 21 March 2002. On 21 March 2002 final orders were made relating to the residence of the children of the father, the mother's contact with the children. That the mother was to vacate the premises known as 10 W Place, E Park and there are injunctive orders relating to the removing of the children from the Commonwealth of Australia and other orders of an administrative nature.
It is noteworthy that during the time when this spate of litigation had been commenced between the parties, that the husband had in fact purchased the home, 10 W Place, E Park and his evidence was that he purchased that for himself and the boys to live in it. The reality was that the wife, although she had been residing elsewhere, moved into

10 W Place and was in fact residing there when the matter was heard on a final basis on 21 March. She was ordered to vacate the premises within 21 days. As it turned out she did not do so and the husband has given an explanation for that.
The husband says that there were numerous separations following the wife moving back into the premises where he was to live at the time against his will in so far as the resumption of co-habitation was concerned for the purpose of the Family Law Act, but that he declined to enforce the order requiring her to leave because he feared for her well being if she had nowhere to go.
Does this meet the test of the parties living in a marital relationship? The wife of course says that it does. The husband says that it does not. The corroborating evidence that I find persuasive are contained in the following points:
(a)The wife commencing proceedings against the husband for orders under the Family Law Act in the P Local Court. Included in that application was a statement that the parties had separated on a final basis on 18 October.
(b)The proceedings commenced by the wife against the husband for the purpose of obtaining an apprehended violence order and indeed the obtaining of an interim apprehended violence order in such terms, not only as to, as should be necessary to protect the wife from violence or intimidation, but to restrain the husband from entering or residing at the wife's current residence or another residence being the residence in F Crescent, E Park in which she proposed to reside.
(c)The proceedings commenced by the husband in November 2001 relating to the obtaining of parenting orders. These proceedings culminated in a final hearing on 21 March 2002 including orders that required the wife to vacate the premises at 10 W Place, and
(d)The very act of purchase by the husband of the premises at 10 W Place, E Park as, he says, a home for himself and their boys.
These actions individually and together are to my mind inconsistent with the concept of parties’ cohabitating in a marital relationship. The parties to a marriage, if they intend the marriage to continue, do not usually commence litigation against each other and carry that litigation through to a final hearing. Parties to a marriage, if they intend the marital relationship to continue, do not usually obtain orders against each other requiring the other party to refrain from entering or residing in their premises.
Parties to a marriage do not usually move out of rented premises, in which they reside and purchase other premises to reside in without consulting the other party with the apparent intention of residing there to the exclusion of the other party. And finally, parties to a marriage do not usually, if they intend the relationship to continue, seek orders on a final basis from a Court requiring the other party to vacate those premises within a specified period of time.
It is for these reasons that I am satisfied that there has been shown a breakdown of the marital relationship. I am not satisfied that the date of separation has been shown to be a period as long ago as 1998 although I accept the fact that the evidence shows that the parties were residing together under strained circumstances.
I am certainly of the view, however, that this entire chain of litigation in 2001 is a very strong indication that the parties were separated as at that date and, indeed, the wife in proceedings which she filed in the Local Court at P indicated that the parties had separated on 18 October 2001.
It would appear clear to me that the parties cannot on the one hand tell the Court that they have been separated on a particular date and then deny it at a later stage saying that they were not so separated.
It is, for all of these reasons, that I propose to announce a decree. I find the parties were married on 27 February 1998 at F in the State of New South Wales, that the husband and wife were domiciled in Australia.

I find the parties separated on 18 October 2001 and thereafter lived separately and apart. I find that the marriage has irretrievably broken down and I pronounce a decree nisi for the dissolution of the marriage.
There are two children of the marriage under the age of 18 years. M T, born on 23 February 1989 and R A, born on 5 November 1992. I note that it is alleged by the wife that proper arrangements have not been made for the welfare of the children. I note that no evidence has been provided in respect of that fact except the evidence that appears in the application the father alleges that he is the sole financial supporter of the children and he alleges the mother provides no financial support at all. No evidence was brought by the wife to counter that.

I am mindful of the fact that this Court on 21 March 2002 did in fact make parenting orders in respect of the children's contact with the wife and that those orders remain in force. I do have concerns about the situation of the support of the children but I am of a view that there are circumstances that would satisfy me that a decree, should I pronounce one, should become absolute pursuant to the provisions of section

55A (i)(b) subparagraph 2 of the Family Law Act.
I am satisfied, and I find that the marriage has irretrievably broken down, I pronounce a decree nisi for the dissolution of the parties' marriage. I find there are circumstances by reason of which I am satisfied that the decree should become absolute pursuant to the provisions of section 55A (i)(b)(2) of the Family Law Act. The decree is to become absolute in one month from the date of these orders and I remove the application from the pending cases list.
There is an application by the husband that the wife should pay the legal costs put on the basis that she has been wholly unsuccessful in her application or that he indeed has been wholly successful.
I look at the matters contained in section 117 of the Family Law Act. It says that as a general rule parties should pay their own costs and Mrs M has submitted to me that that should be the situation there. Although subsection 2 says that if the Court is of the opinion that there are circumstances that justify from doing so, the Court may make such order as to costs as the Court considers just. Subsection 2A of section 117 sets out the matters that the Court should have regard to.
They include the financial circumstances of each of the parties of the proceedings, whether any party to the proceedings is in receipt of assistance by way of Legal Aid, the conduct of the parties in relation to the proceedings. Whether the proceedings were necessitated by the failure of the party to comply with previous orders of the Court. That does not apply here. Whether any party has been wholly unsuccessful and whether any party has made an offer of settlement.
It has been put here that the respondent has been wholly unsuccessful in the proceedings. There is no evidence that either party is in receipt of a grant of Legal Aid. The husband, is working, the wife is unemployed. In respect of the financial circumstances the husband in fact is solely supporting the boys and he says that he wife is not.
Costs do not follow the event but this is a situation where the wife has been unsuccessful and, indeed, matters where the wife was unsuccessful were that she was unsuccessful as a result of her own actions. I am of the belief that there should be some sanction of costs in respect of the time that is involved.
I calculate the costs, according to Part I of Schedule I of the Federal Magistrates Court Rules, I note that there is a lump sum that is provided together with a daily hearing fee on an hourly basis in respect of 10 February and 7 April I would allow an hour each time. That would get up to $1015. I am of the view, however, that – and I note that $1000 was sought – I am of the view, however, that the respondent just does not have the capacity or has not been shown to have the capacity to pay a sum of $1015 or indeed $1000 within a reasonable period of time. It does not mean that there should be no costs.

I propose to make a substantial discount. The respondent is to pay the applicant's costs of these proceedings of the sum of $507.50. I allow four months to pay. I propose to order a transcript of my reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 April 2003