Miller and Miller
[2009] FMCAfam 302
•16 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLER & MILLER | [2009] FMCAfam 302 |
| FAMILY LAW – Review of Registrars’ decisions – divorce application – separation under one roof – evidence of separation – whether corroboration required – sufficiency of statements in Court approved form of Divorce Application when verified on oath or affirmation by applicant. |
| Federal Magistrates Act 1999 (Cth) ss.103, 104(2), 104(3) Federal Magistrates Court Rules 2001 rr.20.00A, 20.01(1)(b), 20.03(a) Family Law Act 1975 (Cth) ss.39(3), 48, 49 Evidence Act 1995 (Cth) ss.140, 164 |
| Todd & Todd (No.2) (1976) FLC 90-008, (1976) 1 Fam LR 11,186 Pavey & Pavey (1976) FLC 90-051, (1976) 1 Fam LR 11,358 Falk & Falk (1977) FLC 90-247, (1977) 3 Fam LR 11,238 Price & Underwood, [2008] FamCAFC 46, (2008) 39 Fam LR 614 Briginshaw v Briginshaw, (1938) 60 CLR 336 Crowe & Crowe, (1988) FLC 91-983, (1988) 12 Fam LR 696 Croser & Attrill, (1990) FLC 92-100, (1989) 13 Fam LR 489 Brown & Pedersen, (1992) FLC 92-271, (1992) 15 Fam LR 173 Uniform Evidence Law, Odgers, Eighth Ed, Thomson Reuters, [1.4.2500] |
| Applicant: | MS MILLER |
| Respondent: | MR MILLER |
| File Number: | PAC 2999 of 2008 |
| Judgment of: | Halligan FM |
| Hearing date: | 16 March 2009 |
| Date of Last Submission: | 16 March 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 16 April 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Burke |
| Solicitors for the Respondent: | No Appearance |
IT IS NOTED that publication of this judgment under the pseudonym Miller & Miller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2999 of 2008
| MS MILLER |
Applicant
And
| MR MILLER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 June 2008 the applicant wife applied for a divorce from the respondent husband. She indicated in the Divorce Application a period of separation under the one roof. When the application came before Registrar Campton on 25 August 2008, the application was not opposed. The Registrar adjourned the application with a direction that the applicant file an affidavit as to separation under the one roof.
The solicitor for the applicant swore an affidavit as to what transpired on that day leading up to the adjournment of the application, there being no transcript of the proceedings. He said that the Registrar indicated she required an affidavit of corroboration before being satisfied of separation under the one roof.
When the Divorce Application next came before the Court on
10 September 2008, it was again unopposed. Registrar Cater-Smith adjourned the application with the same direction made by
Registrar Campton. The wife's solicitor stated in his affidavit as to what transpired at the two hearings that he sought to rely on the affidavit of the applicant verifying the Divorce Application and the affidavit of the corroborative witness, but the Registrar indicated she required a further affidavit of the applicant.
The applicant seeks a review of the exercise of power by both Registrars, contending that there is no requirement for corroboration of the applicant’s evidence, and that the Registrar should have been satisfied on the evidence of the applicant, namely the statements in the Court approved form of Divorce Application verified by the applicant’s affidavit forming part of that form, as to separation.
Nature of review hearing
The powers exercised by the Registrars in this case are delegated to them by r.20.00A, Federal Magistrates Court Rules 2001. That rule is made under s.103, Federal Magistrates Act 1999.
A party to proceedings in which a Registrar exercises a power delegated under s.103 may apply to the Court to review the exercise of the power within 28 days of the exercise of power sought to be reviewed, or within such further time as the Court allows
(s.104(2), r.20.01(1)(b)).
On a review of the exercise by a Registrar of a delegated power, the Court “may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised” (s.104(3)).
The hearing of a review of the exercise by a Registrar of a delegated power proceeds by way of hearing de novo (r.20.03(a)). Thus, in this case, in hearing the applicant’s review application the Court is in fact hearing the applicant’s Divorce Application.
Relevant legal principals
Matters to be established for the grant of a divorce
For the Court to make a divorce order, it must be satisfied as to:
a)The subsistence of a valid marriage;
b)Jurisdiction over the parties (s.39(3), Family Law Act 1975); and
c)The irretrievable breakdown of the marriage (s.48, Family Law Act).
If satisfied of these matters, the Court retains no discretion and must grant the divorce, unless it is satisfied that there is a reasonable likelihood of cohabitation being resumed (s.48(2) and (3)).
The irretrievable breakdown of a marriage for the purposes of a divorce application is proved 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 filing of the application for the divorce order” (s.48(2)).
Separation
The Family Law Act refers in the context of divorce proceedings to parties having separated, and living separately and apart, but does not define the terms. It uses the term “cohabitation” as the opposite of these terms, but again without definition. It provides that 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 spouses, and notwithstanding that the spouses have continued to reside in the same residence or that one spouse has rendered some household services to the other (s.49).
As to the meaning of separation in the context of the sole ground for divorce under the Family Law Act, Watson SJ said in Todd & Todd (No.2) (1976) FLC 90-008 at 75,079, (1976) 1 Fam LR 11,186 at 11,188:
“In my view ‘separation’ means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). 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. What comprises the marital relationship for each couple will vary. 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.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.”
In Pavey & Pavey (1976) FLC 90-051, (1976) 1 Fam LR 11,358, the Full Court of the Family Court of Australia unanimously approved this statement by Watson SJ, with two qualifications. Referring to the above quoted passage, their Honours said (FLC at 75,211, 75,212, Fam LR at 11,361, 11,362):
“We are in general agreement with this statement of the law and wish to add only two qualifications to it. … (W)e do not accept the statement – ‘it involves the destruction of the marital relationship’. … What the Act speaks of is the breakdown of the marriage, so it is appropriate to use the word ‘breakdown’ instead of the word ‘destruction’. In practical terms, this may make no difference, but it is in keeping with the wording of the Act.
…
We also agree with the statement in Todd’s case that ‘what comprises the marital relationship for each couple will vary’. It is for this reason that it is difficult to formulate a satisfactory test in cases where parties live under the one roof. As s.48 is concerned with the marriage of the parties, it is the content of their marital relationship which must be examined, not a definition of what a marital relationship ought to include. This, of course, does not mean that the various statements about the content of the marital relationship are useless. They do provide valuable checklists in each case, but they cannot be applied mechanically. If, during the marriage, the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship, then that aspect of their life may be of little importance in determining whether they have separated.
The constituent elements of the marital relationship were referred to in Todd’s case in these words: ‘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.’
To this general statement we wish to add but one phrase, ‘the nurture and support of the children of the marriage’.”
Todd and Pavey explicitly establish two requirements for separation - intention and action. In addition, a third requirement of communication, only implied in those cases, was spelt out by the Full Court in Falk & Falk (1977) FLC 90-247 at 76,333, (1977) 3 Fam LR 11,238 at 11,244, thus:
“Where one party only has formed the relevant attitude and intention that should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.”
Despite being decided over 30 years ago, Todd, Pavey and Falk remain authoritative statements as to the meaning of separation in the context of a divorce application, having been unanimously cited with approval on this aspect as recently as last year by the Full Court in Price & Underwood, [2008] FamCAFC 46 at [39] - [40], (2008) 39 Fam LR 614 at 622 – 623.
Thus, there are three distinct elements to the concept of separation as used in connection with the irretrievable breakdown of a marriage under Part VI of the Family Law Act-
a)ceasing to live together as husband and wife;
b)an intention of at least one spouse to end the marital relationship; and
c)communication of an intention to end the marital relationship of one spouse to the other.
Proof of separation
“Whether there has been a separation will be a question of fact to be determined in each case” (Todd, above).
Referring to the degree of satisfaction required of separation where the spouses continue to reside under the one roof, their Honours in Pavey, above, having referred to the standard of proof under the Matrimonial Causes Act as found by the High Court in Briginshaw v Briginshaw, (1938) 60 CLR 336, said that the same standard applied to the Family Law Act, and referred to the following passage from the judgment of Dixon J in Briginshaw (at 362)-
“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
In relation to the underlined phrase from the preceding quotation, the Full Court in Pavey said (FLC at 75,213-4, Fam LR at 11,364):
“The words (underlined) are particularly significant in cases where the parties to a marriage continue to live in the same residence, and yet assert that the marriage has irretrievably broken down. In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases, therefore, require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the Court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation. For this reason many of the judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant’s evidence in cases where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to the marriage must be given, but an applicant should always be ready to call such evidence. Whether the judge will require such evidence will depend in the circumstances of each case.
In the light of what we have said, it is important that in cases where the parties have spent all or portion of the period between the ‘separation’ and the presentation of the application for dissolution of marriage under the one roof this should be stated clearly in par 9 of the application. That paragraph should also state concisely the facts which it is said show that the marital relationship broke down, and which show that that state of things continued for a period of not less than 12 months immediately preceding the date of filing the application.”
The standard of proof of the fact of separation is now governed by the Evidence Act 1995 (Cth) (s.140), but in terms that do not render what the High Court said in Brigginshaw or what the Full Court said in Pavey inapt. Further, s.140(2) does not limit the matters a Court may take into account in deciding whether it is satisfied to the requisite standard. Thus, comments quoted above from Pavey about the relevance of the inherent improbability of spouses living under the one roof being separated to the fact finding task of the Court in divorce proceedings in my view remain applicable.
In relation to any suggestion that corroboration of separation under the one roof is always required on a divorce application, as it is said Registrar Campton suggested, two observations are apposite.
First, the Full Court in Pavey did not suggest there was a rule or requirement that corroboration was necessary before a Court could make a finding of separation under the one roof. The Full Court noted that a practice of requiring corroboration before being satisfied of separation under the one roof had been adopted by “many of the judges of the Family Court of Australia” and explicitly said that it did “not wish to lay down an inflexible rule that evidence from a witness other than the parties to the marriage must be given, but an applicant should always be ready to call such evidence”. Thus, their Honours were clearly approving a practice of seeking corroboration without imposing an obligation on judicial officers to require corroboration.
Second, it was submitted on behalf of the applicant that the Evidence Act is relevant when considering any suggestion that corroboration may be required to support a finding of separation under the one roof, s.164 providing:
“164 Corroboration requirements abolished
(1) It is not necessary that evidence on which a party relies be corroborated.
(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.
(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:
(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.”
This section abolishes common law requirements of corroboration of certain categories of evidence (Uniform Evidence Law, Odgers, Eighth Ed, Thomson Reuters, at [1.4.2500]). But as already mentioned, there was no requirement of corroboration of separation under the one roof. In my view, therefore, the section is not relevant.
In divorce proceedings, separation being an issue of fact, a court must consider such evidence as is adduced by an applicant for divorce and determine whether the applicant, who bears the onus of proof, has proved the fact of separation to the requisite standard. If a judicial officer hearing a divorce application is not satisfied of separation on the evidence adduced by the applicant, he or she may refuse to grant the divorce order and may either dismiss the application or, more appropriately in undefended proceedings, give the applicant the opportunity to adduce further evidence.
That further evidence may be further evidence from the applicant him or herself, or it may be from a separate witness who corroborates the evidence of the applicant, or it may be both. However, it is not correct to say that the judicial officer may require an applicant to adduce evidence of a particular type. Particularly in undefended proceedings, and especially if the applicant is unrepresented, if the judicial officer hearing the application is not satisfied on the evidence before him or her of the fact of separation, it is entirely appropriate that he or she indicate the nature of the evidence he or she would expect to see before being satisfied of the fact of separation. If the judicial officer has reasons to entertain reservations about the credibility of the applicant, he or she may indicate a preliminary view that he or she may be unlikely to be satisfied of separation on the uncorroborated evidence of the applicant. Absent a basis for doubting the credibility of the applicant, a judicial officer is entitled to accept the uncorroborated evidence of the applicant, especially in undefended proceedings. But ultimately it is for the applicant to present such evidence as the applicant wishes and it is for the judicial officer to rule on whether he or she is satisfied of the fact of separation on that evidence.
The evidence
The evidence relied on in the applicant’s case is the affidavit verifying the Divorce Application, the Marriage Certificate (Ex A), and the affidavit of the applicant’s solicitor as to what occurred before the Registrars.
The applicant’s solicitor confirmed several times that despite his affidavit evidence of having complied with the direction of
Registrar Campton to file an affidavit of a corroborative witness, the applicant did not rely on that affidavit in support of her application. Thus, if the evidence in fact relied on does not support the findings necessary to pronounce a divorce order, a divorce order cannot be made even if the affidavit of the corroborative witness contained evidence that would support the granting of the divorce (Crowe & Crowe, (1988) FLC 91-983, (1988) 12 Fam LR 696, Croser & Attrill, (1990) FLC 92-100, (1989) 13 Fam LR 489, Brown & Pedersen, (1992) FLC 92-271, (1992) 15 Fam LR 173).
I am satisfied the parties married [in] 1996 in Jamaica. I am satisfied that the applicant is domiciled in Australia.
The evidence as to separation is contained in information supplied in the Court approved form of divorce application verified on the wife's oath by the affidavit forming part of the application form. The relevant parts of the applicant’s divorce application are as follows:
14. Date of separation (day/month/year)
17/6/07
15a. At the time of separation, did you regard the marriage as over?
Husband Yes No
Wife Yes No
15b. If you answered no to question 15(a), on what date did you regard the marriage as over? (day, month/year)
Husband Date
Wife Date
16a. Since the date of separation, have you and your spouse lived together in the same home but not as husband and wife?
Yes No
16b. If you answered yes to question 16(a), give dates of each period you and your spouse lived together in the same home after separation. (day/month/year)
From 17/6/7 (sic)
to 15/8/07
From
To
17a. Since the date of separation, have you and your spouse lived together as husband and wife?
Yes No
The applicant answered in the negative to the question at item 18 of the divorce application “Do you think it is likely that you and your spouse will live together again as husband and wife?”, and also to the questions at item 22 whether there are any children under 18 who are children of the spouses or who were treated as members of the spouses’ family when the spouses separated.
Sufficiency of application form as evidence of separation
It was submitted on behalf of the applicant that the statements in the divorce application, being verified on the applicant’s oath, were evidence sufficient for the Court to be satisfied that the ground for divorce had been proved. It was submitted in effect that the approval of the divorce application form by the Court indicated that all an applicant had to do to prove the ground for divorce was correctly complete the form, citing a date of separation more than 12 months before filing the application. It was submitted that the assertion of a date of “separation” at item 14 in the divorce application form was all the proof an applicant had to provide of the fact of separation for the purposes of proving the separation component of the ground of irretrievable breakdown of marriage, including where there was a period of separation under the one roof as is the case in the present application.
As set out earlier, separation involves three distinct elements-
a)ceasing to live together as husband and wife;
b)an intention of at least one spouse to end the marital relationship; and
c)communication of an intention to end the marital relationship by one spouse to the other.
The approved form of divorce application, and the instructions as to completion of the form contained in the divorce kit produced by the Court, fail to clearly identify these separate elements, and in fact are capable of creating some confusion about them.
As set out above, at question 14 of the divorce application form, the applicant is required to state a date of “separation” while at question 15(b) the form provides for the possibility of a different, later date for a party to have formed the intention necessary for there to be a separation. Where a date is inserted at question 15(a) that is later than the date at question 14, the date at question 14 cannot be the date of separation. Of course, it is possible for a spouse to form the intention to sever the marital relationship prior to ceasing to live with the other spouse as husband and wife, and in those circumstances a date earlier than the date at question 14 may properly be inserted at question 15(b). But nowhere in the application form or the divorce kit is it made plain that the date at question 14 must be no later than any date entered at question 15(b).
It is therefore unclear whether the date sought at question 14 of the divorce application form is the date of separation in the legal sense or in some other, and if so, what sense.
This need not prevent the Court granting a divorce if satisfied on the totality of the information in the application form that the parties have been separated for the requisite period. However, it is significant in addressing the submission on behalf of the applicant that the Court cannot go beyond the information required by the Court approved application form.
This submission is clearly wrong. The approval of a form of application by the Court does not, and cannot, change the law or fetter the exercise of judicial power by the Court or a delegate of the Court, such as the Registrars who dealt with the applicant’s divorce application. In fact, that an applicant must be ready to provide evidence beyond the contents of the divorce application to prove separation to the Court’s satisfaction is made plain in the divorce kit issued by the Court. The notes about completing question 15 include the following:
“You should be prepared to provide the Court with information about what happened or what was said on the date of separation to show that one or both of you intended to end the marriage.”
And of particular relevance in this case, the divorce kit states in relation to answering question 16:
“It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time.
If you are applying for a divorce on your own, you must file an affidavit yourself. You should also file an affidavit by an independent person; such as, a family member, friend or neighbour.
In you affidavit, you need to prove that there has been a change in the relationship, gradual or sudden, demonstrating you and your spouse have separated.”
Where, reading the divorce application as a whole, an applicant asserts on his or her oath that the spouses have been separated with an intention to end the marital relationship for the requisite period, and there is no period of separation under the one roof, it is open to the Court to be satisfied that the ground has been proved. That is because it is inherently more likely than not that when spouses cease to live in the same home and one has formed the intention to sever the marital relationship that the marital relationship has broken down.
However, where, as here, an applicant asserts separation while still living under the one roof with the other spouse, the divorce kit makes clear that an applicant should provide more information than in the application form. The divorce kit in fact states that the applicant must file an affidavit of his or her own and should also file an affidavit of a corroborating witness. The divorce kit might usefully make it explicit that the affidavit referred to is in addition to the affidavit forming part of the divorce application. It might also qualify the reference to an affidavit of a corroborative witness to more accurately reflect the law.
But as already mentioned neither the material in the divorce kit issued by the Court nor the Court approved form of divorce application can change the law or fetter the discharge of the Court’s judicial function. Regardless of the content of the divorce kit, the Court may, and in my view should, require more evidence than the bald assertions in the divorce application before being satisfied of separation under the one roof because “without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation” (Pavey, above). The information in the divorce application does not provide such an explanation and in my view is insufficient to prove separation under the one roof.
This is not to suggest that the court will in every case require evidence beyond the content of the divorce application where there is a period of separation under the one roof before granting a divorce. Where there has been a period of separation under the one roof but not within the period of 12 months immediately preceding the filing of the application, there would seem little point in requiring further evidence, as it would be open to find, as explained previously, that the necessary intent to end the marital relationship together with living in separate residences for twelve months before filing the application is sufficient to support a finding of twelve months separation and hence that the ground of irretrievable breakdown of the marriage has been proved.
Decision
In this case, the applicant contends “separation” on 17 June 2007, one year and eight days before filing the divorce application. However, she says the spouses continued to live under the one roof from the date of “separation” until 15 August 2007, less than twelve months before filing the divorce application. I am not satisfied, based on the applicant’s bald assertion in her application of “separation” under the one roof, without any evidence as to the basis on which she concluded that the spouses had separated, that it is more likely than not that the spouses were separated before 15 August 2007, which is less than twelve months before the application was filed.
I am therefore not satisfied that the applicant has proved the ground for a divorce. I will give the applicant an opportunity to provide evidence to prove separation from the date she contends, if that is her wish. If, despite her solicitor having declined to do so several times before me previously, the applicant wishes to rely on the affidavit filed in compliance with Registrar Campton’s directions, and if that evidence is sufficient to satisfy me that the spouses were separated for the requisite period, it may not be necessary to further adjourn the proceedings.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 16 April 2009
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