MCKENZIE & MCKENZIE

[2013] FCCA 1013

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCKENZIE & MCKENZIE [2013] FCCA 1013

Catchwords:
FAMILY LAW – Divorce – has marriage broken down irretrievably – can a litigation guardian make an application.

Legislation:

Family Law Act 1975, s.48

In the marriage of D & D [2001] FMCA fam 46
Price & Underwood (Divorce Appeal) (2009) FLC 93-408

Applicant:

MS MCKENZIE

BY HER LITIGATION GUARDIAN
MS D

Respondent: MR MCKENZIE

File Number: BRC 7328 of 2012

Judgment of: Judge Cassidy

Hearing date: 10 May 2013

Date of Last Submission: 10 May 2013

Delivered at: Brisbane

Delivered on: 15 August 2013

REPRESENTATION

Solicitors for the Applicant: Michael Lynch Family Lawyers

Solicitors for the Respondent: No appearance

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7328 of 2012

MS MCKENZIE
BY HER LITIGATION GUARDIAN
MS D

Applicant

And

MR MCKENZIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms McKenzie for divorce.  The husband, Mr McKenzie, was not able to be served personally and an order was made for substituted service on his mother.  He has failed to attend any of the mentions or the hearing of this matter in Court. 

2. A divorce is normally dealt with by a Registrar of this Court.  This matter was transferred to my docket because the applicant wife sustained a severe brain injury prior to filing for a divorce and has lost her capacity to understand the nature and effect of a divorce.  The divorce was filed by her case guardian. 

The Materials

1. The material relied upon by the applicant are:

   a)The application in a case filed on 16 August 2012;

   b)The affidavit of Ms D filed on 16 August 2012;

   c)The order of Federal Magistrate Purdon-Sully dated 30 October 2012;

   d)The application for divorce filed on 1 November 2012;

   e)The marriage certificate filed on 1 November 2012;

   f)The affidavit of Ms D filed on 1 November 2012;

   g)The affidavit of Mr W filed on 1 November 2012;

   h)The order of Registrar Spink dated 29 January 2013;

   i)The affidavit of Ms D filed on 12 March 2013;

   j)The affidavit of service of Mr R filed by leave on 19 March 2013;

   k)The order of Registrar Sturgess dated 19 March 2013;

   l)The affidavit of Dr H filed on 12 April 2013;

   m)The affidavit of Ms M filed on 12 April 2013;

   n)The Affidavit of Ms T on filed 12 April 2013; and

   o)The order of Judge Cassidy dated 16 April 2013.

The Law

1. The law in relation to divorce is set out in s.48 of the Family Law Act 1975 (as amended) (hereinafter referred to as “the Act”) and it provides:

   “Divorce

   (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.”

2. Two authorities that were of assistance in coming to a decision in this matter were Price & Underwood (Divorce Appeal) (2009) FLC 93-408 and In the marriage of D & D [2001] FMCA fam 46.  In the case of Price & Underwood (Divorce Appeal) (supra) the Court said:

   “145. We conclude therefore that the rules permit a case guardian to bring an application for divorce. But such an application will be nugatory unless the case guardian can satisfy the Court that the marriage has irretrievably broken down by demonstrating that the applicant, whom the case guardian represents, had the requisite intention to bring the marriage to an end and had lived separately and apart for 12 months prior to the filing of the application. Further, if the case guardian can lead evidence which proves the respondent has demonstrated the requisite intent, and lived separately and apart for the requisite period, that evidence can be relied on by the case guardian acting on behalf of the applicant disabled person for a divorce order. (see Pavey and Pavey (1976) FLC ¶90-051, Todd and Todd (No 2) (1976) FLC ¶90-008 and Falk and Falk (1977) FLC ¶90-247).”

3. In the case of In the marriage of D & D (supra), Judge McInnis decided on the facts of that case that he would not allow the application because the application, when it was commenced:

   “[16]…was an application purportedly being made by the husband who, at the date when he made the application, was already the subject of an order whereby State Trustees Ltd had been appointed administrator of the legal and financial affairs of the applicant husband, that indeed had occurred on 24 February 1999…”

4. His Honour went on to say:

   “[18]…Ultimately, however, he [the husband] cannot place before the court any material which would persuade the court that it should do otherwise than accept the respondent's submission that this application should be dismissed on the grounds that the applicant husband at the time of the filing of the application, and indeed currently, does not have the appropriate capacity.

Background Facts

1. The wife, Ms McKenzie, was born on (omitted) 1967 and she is 45 years old.  The husband, Mr McKenzie, was born on (omitted) 1966.  He is now 47. 

2. The parties married on (omitted) 2003 and separated on 1 May 2011.  The wife vacated the former matrimonial home on that day and began residing with her sister from that date.  There is no contest that the parties have lived separately and apart since that day.  There have been no periods of reconciliation.  Indeed, the parties have had no contact whatsoever from that date.  It was a situation where the Court had to order substituted service to attempt to bring this application to the notice of the husband. 

3. The husband, it appears, vacated the former matrimonial home (a rental property) in around June 2011.  His whereabouts have been unknown since that time. 

4. In around October of 2011, the applicant wife approached her mother and sought her assistance in preparing an application for divorce.  There is no doubt that she needed her mother’s assistance with respect to that application because the evidence is that the she suffered from a mild disability at that time.  It is noted in the medical report annexed to the affidavit of Ms T that was prepared at the (omitted) Hospital by Dr C that:

   “In relation to her premorbid functioning, collateral information noted Ring Chromosome 15 deletion with mild Intellectual Impairment.  Her prior occupational functioning included work as a (omitted).  Collateral in her PAH chart indicated that Ms McKenzie was able to function independently in the community with some assistance prior to her MCA stroke.”

5. So it is not surprising that the wife needed to approach her mother for assistance with making an application for divorce given her pre-existing condition. 

6. I note that the wife communicated to a gentleman, Mr W, that she intended to file an application for divorce at the earliest opportunity. 

7. Annexure RH-1 to the affidavit of Dr H set out that:

   “…on 14^th March 2012 she [the wife] was admitted to the (omitted) Hospital with a massive upper gastrointestinal bleed secondary to an oesophago-aortic fistula.”

8. The applicant wife underwent surgery on 15 March 2012 and sustained a significant hypoxic brain injury.  I note that her assessment by Dr C, in terms of general intellectual functioning, was that her ability in relation to of memory was that:

   “Functional observation of Ms McKenzie’s memory indicated that across the three assessments she was able to retain some basic day-to-day general information.  For example, she was able to consistently remember my name and occupation when asked to recognize this information from a four choice format.  She was also able to remember me seeing her previously in each subsequent assessment.  Collateral from multiple staff on the ward and my observations support that Ms McKenzie was/is able to retain some basic one or two word facts, but her ability to understand, learn and encode more complex information appears impaired.” 

9. In terms of Communication, Dr C assessed:

   “Ms McKenzie has been communicating on the ward using hand signals in response to questions.  Speech Pathology has observed that Ms McKenzie is able to give reliable yes/no responses to short, non-complex questions (thumbs up/thumbs down as mentioned above).  Speech Pathology advised Ms McKenzie’s ability to read was impaired.”

10. I note the conclusion that Dr C came to was that :

    “Overall, while Ms McKenzie consistently communicated a desire to seek a divorce, even with specific coaching where Ms McKenzie was told the correct answers several times, she could not demonstrate adequate understanding of the nature and effect of the divorce processes or proceedings.”

11. As a consequence of her injury, the wife has been undergoing rehabilitation at the (omitted) Hospital since 20 April 2012.  In an affidavit of Dr H, filed 12 April 2013, the applicant has been assessed as no longer in need of inpatient rehabilitation and is waiting a placement in a group home through Disability Services Queensland. 

12. The applicant’s mother, Ms D, the applicant’s sister, Ms H, and Mr D, the applicant’s brother, were jointly and severally appointed as Guardians and Administrators on behalf of the applicant on 13 June 2012 pursuant to an order of the Queensland Civil and Administrative Tribunal.  On 16 August 2012 the applicant’s mother, Ms D filed an application in a case seeking to be appointed as a litigation guardian for the applicant wife.  On 30 October 2012 an order was made appointing the applicant’s mother as litigation guardian for the applicant. 

13. On 1 November 2012 the litigation guardian filed an application for divorce and an application in a case seeking that service on the husband be dispensed with.  I note that the service issue was resolved and an order for substituted service was made.

The Application of the Law to these Facts

1. I accept in this matter that the parties physically separated on 1 May 2011.  None of the evidence in this case has been challenged due to the absence of the respondent.  I accept that the applicant, at that time, formed an intention to separate and acted on that intention by vacating the former matrimonial home.  I further accept that she stayed apart from the respondent up until her injury on 14 March 2012.  In effect, the wife had been separated for approximately nine months. 

2. Once she had the significant hypoxic brain injury, I accept the evidence of Dr C that:

   “Overall, while Ms McKenzie consistently communicated a desire to seek a divorce, even with specific coaching where Ms McKenzie was told the correct answers several times, she could not demonstrate adequate understanding of the nature and effect of the divorce processes or proceedings.”

3. I find that the wife was no longer able to manifest, through her cognitive ability, a desire to separate.  However she had, over that preceding nine month period, clearly demonstrated a desire to separate from her husband. 

4. The Act requires that the marriage be irretrievably broken down and that the Court be satisfied that the parties have lived separately and apart for a period of not less than twelve months immediately prior to the date.  In my view, the nine months that the wife lived separately and apart when she had the cognitive capacity to understand her actions, satisfies the requirement that the marriage has broken down irretrievably.  On the basis of the nine month separation, I am satisfied of that. 

5. I am satisfied that the parties did live separately and apart for a continuous period of not less than twelve months immediately preceding the date of filing of the application.  They have lived separately and apart since 1 May 2011. 

6. I consider that I can distinguish In the Marriage of D & D (supra) from the present case because:

   a)Firstly, in that case the husband had no capacity during relevant periods of separation.  Here the wife had capacity for the first nine months of separation and expressed her desire to divorce her husband to both her mother and a friend during that period; and

   b)Secondly, the husband’s application was opposed in In the marriage of D & D (supra).  Here the application proceeded in the absence of the husband.

Conclusion

1. I am satisfied as to service of this application.

2. I find the parties were married on (omitted) 2003. 

3. I find that the wife is an Australian citizen and is ordinarily resident in Australia.

4. I find that the parties separated on 1 May 2011 and have lived separately and apart since that date.

5. I find that the marriage has broken down irretrievably and I grant a divorce order to take effect in one months’ time. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  15 August 2013