Miller and Miller - [2009] FMCAfam 302

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miller and Miller

Details

AGLC: Miller and Miller [2009] FMCAfam 302
Case: [2009] FMCAfam 302
Decision Date: 16 April 2009

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms. Miller applied for a divorce from Mr. Miller, asserting a period of separation under the same roof. The application was initially adjourned by Registrars for additional affidavits of corroboration, which the applicant did not provide. The applicant now seeks a review of the Registrars' exercise of power, arguing there was no requirement for corroboration and that her statements in the Court-approved Divorce Application, verified on oath, should suffice.

The court considered the legal principles relevant to proving separation for divorce purposes. Separation involves ceasing to live together as husband and wife, an intention to end the marital relationship, and communication of this intention. The standard of proof required is reasonable satisfaction, which can be difficult to achieve when spouses continue to live under the same roof. While corroboration is not strictly required, it is often sought to address the inherent unlikelihood of separation under such circumstances.

The court found that the statements in the Divorce Application alone were insufficient to prove separation under the one roof, as they did not provide an explanation for why the spouses continued to live together despite separation. The approved form of the Divorce Application and the accompanying divorce kit did not clearly delineate the elements of separation and could be misleading. While the Court's approval of the application form does not change the law, the divorce kit correctly states that more evidence is needed in cases of separation under the one roof.

The court concluded that the applicant had not proved the requisite separation for the divorce to be granted. The applicant was given an opportunity to provide further evidence of separation if she wished to do so. If the previously filed affidavit of corroboration was deemed sufficient, further adjournments might be unnecessary.

The court's final order was that the applicant be given an opportunity to provide additional evidence to prove the requisite separation before a divorce order could be made.

Orders