NM & ZM - [2005] FMCAfam 381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NM & ZM

[2005] FMCAfam 381

FAMILY LAW – Divorce – date of separation – decree nisi pronounced.

Family Law Act 1975

Applicant:

Respondent:

File Number:

PAM799 of 2005

Judgment of:

FM Ryan

Hearing date:

4 July 2005

Delivered at:

Parramatta

Delivered on:

4 July 2005

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr S. Stojanovic

Solicitors for the Applicant:

Stojanovic Solicitors

Solicitor Advocate for the Respondent:

Mr D. Sissini

Solicitors for the Respondent:

Sissini Solicitors

ORDERS

I order a decree nisi of the marriage entered into on 21 September 1996.
The decree nisi will become absolute one month and one day from today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
parramatta

PAM799 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The application

This is an application for dissolution of marriage filed by ZM on 24 February 2005.
The only contentious issue is whether the parties reconciled between June 2003 and 26 September 2004. If they did reconcile, the wife's divorce application must fail because she does not establish the irretrievable breakdown of the parties' marriage. (Section 48(2). If, as she alleges, the parties were not reconciled during this period, the wife establishes all the elements needed for divorce.

Did the parties live separately?

There is no dispute that the parties separated on 1 April 2003, when the wife left the parties' home unit at Chipping Norton. At separation the wife moved to a rental unit at Heckenberg. After the wife left the husband remained living in the Chipping Norton unit. The wife says the husband stayed at Chipping Norton until the unit was sold in mid-August 2003, at which time she says he moved into his brother's home at Miller. The parties agree settlement of the sale of the unit occurred on 25 August 2003. The husband says prior to settlement of the sale of the Chipping Norton unit the parties reconciled, and he moved into the wife's rented unit at Heckenberg.
The wife carries the onus of proving on the balance of probabilities that the parties had separated.
In addition to her own evidence, the wife relies on the evidence of three witnesses. TG, JM and DP. Each of these witnesses swore affidavits and was cross-examined. Other than his own testimony the husband did not call any other witnesses.
Dealing with the witnesses in turn.
TG has known the parties for at least seven years. She assisted the wife to move out of the Chipping Norton unit on 1 April, 2003. Thereafter she regularly visited the wife at her Heckenberg unit. She visited most weeks at least once. Most of these visits occurred during the day. Other than during A’s birthday party, which the parties agree the husband attended, at no time during these visits was the husband present. Nor did she see any of his belongings or signs the husband had moved into the unit. This witness says, in relation to the parties 2004 trip to Yugoslavia, the wife spoke to her and said: "I have to go to Yugoslavia with NM because he will not sign the passport for A." This is consistent with the wife’s evidence that in order to obtain the husband’s permission to take their daughter to Yugoslavia, the husband insisted on travelling with them.
TG conceded that her visits to the home were made during the day. Thus, the husband submits it is not surprising that as he was working, he did not see TG, or she him. However when questioned about his failure to pay child support, the husband said he was not a regular salaried employee. During the period he worked as a sub-contractor working piece work. He also worked for himself. During the period his work was irregular and he did not have a regular salary. With irregular working hours and running his business from home, even if only on a part time basis, if living at Heckenberg, I would have expected TG to see the husband on at least one of her many visits to the home. Similarly, if the husband’s possessions were at the home, even if he was not there, I would have expected her to see them. I accept TG’s evidence that she neither saw the husband, nor any of his possessions.
JM has known the husband since 1992 and the wife since 1997. JM was also involved in the wife’s departure from the Chipping Norton unit on 1 April 2003. Subsequently, she visited the wife on regular occasions at the Heckenberg unit. She says that during those visits she neither saw the husband, nor any of his possessions. It was plain to her the wife and child lived there alone. Again, for the reasons that I have already given in relation to TG’s observations, even though this witness predominantly visited during the day, I would have expected her to at least have an occasional sighting of the husband, or certainly his possessions, if, as he says, he was also living at the unit. Although this witness previously swore the parties separated on 2 April 2003 rather than 1 April 2003, this mistake is of no moment in terms of the weight I give her evidence. She quite clearly recalls the circumstances of the wife’s departure and the error is inconsequential. I accept her evidence as to her observations at the unit and the wife’s living arrangements.
DP met the wife in June 2003. Since then they have become close friends. DP has stayed overnight at the wife’s unit on a number of occasions since June 2003 and has visited her at the unit at least weekly, sometimes more frequently. This witness says she met the husband on a few occasions when he came to the wife’s unit to see their daughter. Otherwise she did not see the husband, he was not present on the nights she slept over and she did not see any male clothing or possessions at the unit. DP explains that she knew the wife went overseas in June 2004 for about three months, and she says: “I am also aware that NM went overseas at the same time, but I am not aware as to the circumstances of such travel.” Cross-examination did not detract from the integrity of this witness’s evidence. Other than the period the parties were in Yugoslavia the husband says he slept at the Heckenberg unit every night between June 2003 and 26 September 2004. It follows, if he was sleeping at the unit, DP would have seen him. The fact that she did not see him detracts from his claim that he was living there.
These three witnesses significantly corroborate the wife’s evidence that the parties were separated between the relevant dates and that they had not reconciled in the manner the husband claims. It is of no moment that they were unaware that the wife was contemplating reconciliation. The real value of their evidence is their observations of the living arrangements at the Heckenberg unit made during their frequent visits to the unit. As far as the last witness is concerned, the fact that she was sleeping at the unit overnight at the time when the husband says he was as well and she did not see him is particularly compelling.
The husband, in support of his response, relies on his evidence alone. This is notwithstanding he says his father visited the unit at Heckenberg on almost a daily basis. Nor that his brother was aware of the parties' living arrangements. He explains he did not call these people because they are family. Although his brother is in Perth he could have given evidence by telephone. Indeed the husband’s father was at court during the hearing. I accept the submission made by the wife’s solicitor that in relation to both of these witnesses I should draw a Jones v Dunkel (1959) 101 CLR 298 inference, and am satisfied that these witness's evidence would not have assisted the husband’s case.
The husband provided[1] a statement relating to the purchase of a Mercedes Benz in October 2003. Attached to the foot of exhibit B is the husband’s handwritten statement on which he identifies his residential address as the Miller address. That is, his brother's address. The husband says that when contemplating moving to his brother's home, he completed relevant documents to note the change of address with the Roads and Transport Authority. In the event he did not move to Miller but for some reason did not rectify the RTA records. People are often slow in making these notifications, and it is credible that having changed the address once, the husband did not change it a second time. Thus he says when he needed to give his address in October 2003 to Pickles Car Auctions he gave the address on his driver’s licence, namely the Miller address. On the whole, this explanation appears credible. But so too is the wife’s allegation that the husband was living in Miller, and the reason the notation in exhibit B is as it is, is because the husband was actually living there. Exhibit B demonstrates that documents can be misleading, and that in some cases of which this appears to be one, over-reliance on documents can lead to an artificial re-construction of events.
[1] Exhibit B
This is a case where I am satisfied the more credible record of events is the evidence given orally.
In support of his assertion that the parties had reconciled, the husband produces a St George Bank statement of an account which the parties jointly established in August 2003. On 16 August 2003 they opened a joint account using the wife’s Heckenberg address. The purpose of this account was to receive the sale proceeds from the Chipping Norton unit. At that time the parties had not reached agreement as to the division of the sale each would receive. As settlement was fast approaching and absent another person establishing a trust account to hold the moneys on their respective behalf they needed an account into which the monies could be deposited. Obviously each needed to be certain the other could not use the sale proceeds before agreement was reached. Thus it appears the parties decided to open a joint account that they jointly controlled pending agreement. Thus withdrawals could only be made if both parties authorised it. In these circumstances the establishment of the account does nothing to corroborate the husband’s assertion that the parties had reconciled. Its existence does not contribute to determination of the date of separation.
However, the transactions in the account are interesting. If, as the husband alleges, the parties had reconciled, it is difficult to understand why the moneys effectively remained frozen until the parties agreed on a fifty-fifty distribution implemented on 27 January 2004. If the parties were reconciled one would have expected that the funds may have been used by one or other of them in order to meet necessary expenses. If the parties were reconciled I would not have expected to see that the proceeds held jointly until divided equally months later. The accounts operation suggests more strongly that the parties were separated, rather than reconciled.
In October 2003 the husband points out he attended a car auction and purchased a Mercedes Benz initially registered in his name and subsequently transferred to the wife's name. The insurance papers noted the husband was a person also insured on the vehicle. The wife agrees this transaction took place. She says she needed somebody else to be involved in the transaction, as her English language skills are insufficient for the task of purchasing a car at auction. She says that notwithstanding their disagreements, the parties were able to cooperate in relation to their daughter, and that they were trying to be civil towards each other. Also at different times contemplating reconciliation. It is in this spirit of cooperation that the transaction relating to the car purchase took place. It corroborates a degree of cooperation between the parties. In itself it is insufficient to establish that the parties had reconciled.
The parties attended the husband’s brother's wedding in January 2004. At the wedding it appears that they related well and happily with each other, and that all attended saw the parties and their daughter united in this happy occasion. The wife explained that she has known the husband’s brother since she was nine. After separation she hoped to remain on good terms with the husband’s family, and was pleased to have been invited to the wedding. She suspects, and it may well be the case, that the husband’s brother invited the parties as a couple in an attempt to try and foster a mood of reconciliation. Mr Stojanovic somewhat whimsically said that one wedding does not a reconciliation make. That depends on whose wedding it is. The point, though, is that this is not one of those separations where having separated, the wife says that she refused to cooperate with the husband, or refused to contemplate the notion that the parties may reconcile. Discussing the prospect of reconciliation, and being open minded concerning the possibility for reconciliation does not mean that parties reconciled. It requires more than mere contemplation and possibility.
On 18 June 2004, the parties and their young daughter went overseas flying via Frankfurt, spending time with family in Germany and then on to Serbia. They returned to Australia on 26 September 2004. The husband says this trip is proof positive the parties had reconciled. And that by reference to photographs[2], one can see the parties attended family functions, and appear to be relating happily with each other, their daughter and other family members. However, the photographs are small in number. There are photographs of A's birthday, which the wife agrees she has always tried to ensure their daughter celebrates with both of her parents. Thus, the husband and members of his family are always invited to attend A's birthday parties, irrespective of whether the parties were separated or cohabiting. I accept her evidence. When one takes A's birthday photographs out of the equation there are two other photographs. For a three-month family holiday, when the holiday involves overseas relatives seeing their niece or granddaughter for the first time, while there might not be thousands of photographs, I would have expected to see considerably more than has been produced. The paucity of other photographs suggests quite strongly that the parties spent some time together overseas, but far from all of it. The wife’s evidence that the only way she could obtain the husband’s consent for travelling overseas with A, is if the parties travelled at least in and out of Europe together and spent some time with the husband’s mother, has the ring of truth. It is corroborated to an extent by TG.
[2] Exhibit C
The husband points out that the insurance cover for the Mercedes Benz refers to him. The wife says the court would accept that she does not speak English, and she was unaware that the husband included these details on the car at its purchase. I found this aspect of the evidence troubling, because even though the wife does not manage oral or written English, it is plain, looking at the document, that the husband’s name is present. I do not accept that the wife did not at least recognise reference to the husband on the insurance documents, and inclusion of his name corroborates to an extent the husband’s evidence the parties' dealings with each other were more substantial than they would be if they were truly separated.
The husband emphasised that in 2004 the parties applied to borrow funds in order to purchase a new family home. The wife agrees that a loan in the sum of $200,000 was approved. However, the loan was never taken up and the home was not purchased. This suggests, no more than while there were some discussions about the possibility of reconciliation, the reconciliation itself did not occur.
If this was a case where the onus the wife needed to meet was proof beyond reasonable doubt, then she may not have made out her case. But the standard of proof, as I have already mentioned, is the balance of probabilities and on this basis her evidence is sufficiently persuasive.
On the balance of probabilities, I am satisfied that the parties separated on 1 April 2003 and that they have not resumed cohabitation or reconciled their marriage subsequently.
As a consequence of this, the applicant is entitled to her divorce.
The findings I make therefore are these.
The applicant is domiciled in Australia and thus the court has jurisdiction.
I am satisfied as to service.
The parties separated on 1 April 2003 and the ground of irretrievable breakdown of the marriage is proved.
I pronounce a decree nisi of the marriage entered into on 21 September 1996.
There is one child to whom the provisions of the Act applies. I am satisfied proper arrangements have been made for the child’s care.
The decree will become absolute one month from today.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 27 July 2005