FAMILY COURT OF AUSTRALIA
| PRICE & UNDERWOOD | [2008] FamCAFC 46 |
| FAMILY LAW - APPEAL – DIVORCE ORDER – LIVING SEPARATELY AND APART – Whether Federal Magistrate erred in finding that the parties’ marriage had irretrievably broken down at date of filing of the divorce application – Where s 48(2) of the Family Law Act 1975 (Cth) requires the parties to have lived separately and apart for not less than 12 months immediately preceding the date of filing of the application for the divorce order – Amendment of an application does not alter date upon which it was filed - Discussion of “separation” and “irretrievable breakdown of marriage”- Importance of communication of intention to separate – Where in the circumstances of this case, there had been no communication of a desire to end the marriage – Appeal allowed – Divorce order set aside. FAMILY LAW - APPEAL - COSTS – Where Federal Magistrate erred in law – Where appropriate for costs certificates to be granted – Costs certificates granted pursuant to Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth), s 48, s 56 |
Clarke & Clarke (1986) FLC 91-778
Falk & Falk (1977) FLC 90-247
G v H (1994) 181 CLR 387
Pavey & Pavey (1976) FLC 90-051
Todd & Todd(No 2) (1976) FLC 92-008
Whiteoak & Whiteoak (1980) FLC 90-837
| APPELLANT: | Ms Price |
| RESPONDENT: | Mr Underwood |
| FILE NUMBER: | MLC | 13425 | of | 2007 |
| FIRST APPEAL NUMBER: | SA | 25 | of | 2008 |
| SECOND APPEAL NUMBER: | SA | 26 | of | 2008 |
| DATE DELIVERED: | 22 April 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane, Sydney and Melbourne via video link |
| JUDGMENT OF: | May, Boland & Ryan JJ |
| HEARING DATE: | 15 April 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 April 2008 and 11 April 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 325 and [2008] 3 FMCAfam 340 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Molyneux QC assisted by Ms Stoikovksa |
| SOLICITOR FOR THE APPELLANT: | Maria Barbayannis & Co for the wife |
| COUNSEL FOR THE RESPONDENT: | Mr Brown SC assisted by Mr Dickson |
| SOLICITOR FOR THE RESPONDENT: | Glezer Lanteri & Associates Pty Ltd for the husband |
Orders
15 April 2008:
The wife’s appeal against the order 1 of Federal Magistrate Turner of 9 April 2008 is allowed.
The divorce order made 9 April 2008 be set aside.
The husband’s appeal against orders 2 and 3 of the orders of Federal Magistrate Turner is dismissed.
22 April 2008:
That orders 2 and 3 of the orders of Federal Magistrate Turner of 11 April 2008 be set aside.
That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of…
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- Price & Underwood [2008] FamCAFC 46
- Case
- [2008] FamCAFC 46
- Decision Date
CaseChat Overview and Summary
The court found that the wife had not communicated her intention to separate to the husband prior to the date of the divorce application, as required by section 48(2) of the Family Law Act 1975 (Cth). The court noted that the wife's affidavit stated she did not believe the marriage was over until October 2007, after learning of the husband's affair. The court concluded that there had been no communication of a desire to end the marriage prior to the divorce application, and thus the marriage had not irretrievably broken down as of the date of the application. The appeal was allowed, and the divorce order was set aside.
The court also addressed the issue of costs, finding that the Federal Magistrate had erred in law and that it was appropriate for costs certificates to be granted. Accordingly, the court granted costs certificates to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
15 April 2008:
1.
The wife’s appeal against the order 1 of Federal Magistrate Turner of 9 April 2008 is allowed.
2.
The divorce order made 9 April 2008 be set aside.
3.
The husband’s appeal against orders 2 and 3 of the orders of Federal Magistrate Turner is dismissed.
22 April 2008:
1.
That orders 2 and 3 of the orders of Federal Magistrate Turner of 11 April 2008 be set aside.
2.
That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.
3.
That the Court grants to the respondent husband a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of such part as the Attorney-General considers appropriate of the costs incurred by the respondent in relation to the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The husband completed paragraphs 15a, 16a and 17a as follows:15a. At the date of separation, did you Husband T Yes £ Noregard the marriage as over? Wife £ Yes £ No16a. Since the date of separation, have you and your spouse £ Yes T No lived together in the same homebut not as husband and wife?17a. Since the date of separation, have you and your spouse £ Yes T No lived together as husband andwife? On 11 January 2008 the wife swore an affidavit in which she deposed that the facts stated by her in a Response to Divorce were true to the best of her knowledge, information and belief. We now reproduce paragraph 6 of the Response as completed by the wife: In paragraph 7 of the Response the wife said she disagreed with the date of separation asserted by the husband. The wife deposed:…The applicant asked me for a divorce on the 3rd April 2007 in the carpark of Victoria Gardens, after a dispute about my attendance at a [professional dinner].I believed he was angry and being spiteful as he was suffering from ill health.Prior to that date I was not aware that the Applicant wanted to end our marriage.… The wife also deposed:…The Applicant and I did not separate in October 2005 as alleged by him and although our marital relationship changed from the 3rd of April 2007, I realised our marriage had finally ended in October 2007 when the husband of [Ms J] advised me of the affair between her and the Applicant.… In correspondence annexed to the wife’s affidavit sworn 8 April 2008 to which we will refer to shortly, the wife said in a letter dated 29 January 2008 to the Federal Magistrates Court:The Husband filed his Application on the 12th December 2007 and it is my assertion that the separation occurred at the earliest, on the 3rd April 2007, making the filing of the Husband’s Application premature in accordance with the provisions of the Act. That being the case the Husband’s current Application has to be determined by way of a contested hearing and as we are both [engaged in professional occupations], the Husband now retired, a suitable Federal Magistrate will have to be assigned the matter. In the Response the wife deposed to matters relevant to the parties’ relationship between October 2005 to April 2007. These included:· from April 2007 cessation of payment of housekeeping, or the children’s school fees and expenses, other than K’s mobile phone bill by the husband; · cessation of marital relations at the end of March 2007;· use of the husband’s office by the wife until March 2007;· very frequent telephone communication between the parties until 3 April 2007;· attendance by the husband at B Street for dinner with the children several times each week;· an overnight stay by the husband on Christmas Eve 2006 at B Street;· lunching with the wife to celebrate the parties’ wedding anniversary in February 2006, and having coffee together to celebrate their wedding anniversary in February 2007;· lunching or have coffee with the husband on a regular basis when the parties were working and when the wife came to be with the husband when he was at work;· joint purchase of new mobile phones in December 2005 with the account for the phones placed in the wife’s sole name; · jointly arranged sale of real property;· attendance of the parties at school functions for the children;· attendance of the parties at professional functions;· attendance at social functions as a family;· family dinners to celebrate the wife’s birthday and father’s day.