S and S
[2003] FMCAfam 104
•3 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2003] FMCAfam 104 |
| DISSOLUTION OF MARRIAGE – Separation – husband living and working overseas away from the wife – whether separation proved in the circumstances following the husband’s departure – application for rescission of decree nisi. Family Law Act 1975, ss.48, 49, 58 Todd and Todd (No. 2) 1976 FLC 90-008 |
| Applicant: | K E S |
| Respondent: | P D S |
| File No: | DNM2645 of 2002 |
| Delivered on: | 3 April 2003 |
| Delivered at: | Darwin |
| Hearing date: | 1 April 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms D Elliott |
| Solicitors for the Applicant: | Diana Elliott |
| Counsel for the Respondent: | Mr V Close |
| Solicitors for the Respondent: | Jones King Lawyers |
ORDERS
That pursuant to section 58 of the Family Law Act 1975 the decree nisi made on the 3rd of February 2003 is rescinded.
The wife’s application for divorce filed the 8th of October, 2002 be
re-heard.The wife’s application filed the 8th of October, 2002 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM2645 of 2002
| K E S |
Applicant
And
| P D S |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for dissolution of marriage brought by K E S (the wife). The respondent to the application is P D S (the husband).
The parties married in the Borough of St Helens, Merseyside in the United Kingdom on the 22nd of July, 1995. They have no children.
The wife commenced these proceedings on the 8th of October, 2002. In her application for divorce, the wife indicated that the date of separation between her and the husband was the 20th of April, 2001 and this was the date on which she regarded the marriage between herself and the husband as being over.
The husband does not accept this date. It is his position that the marriage between the parties ended on the 27th of June, 2002. This being the date on which he asserts the wife first told him that the marriage between the parties was over.
The date of the separation between the parties is the central issue in this case. If the wife’s position is accepted, the decree nisi pronounced on the 3rd of February 2003 can become absolute. If the husband’s position is correct, pursuant to section 58 of the Family Law Act 1975, the Court will be obliged to rescind the decree nisi and dismiss the wife’s application.
Evidence
The wife relies on the following material:
i)Application for Divorce filed the 8th of October 2002;
ii)Affidavit of herself filed the 5th of March 2003.
The husband relies on the following material:
i)Response filed the 24th of March 2003;
ii)Two affidavits of himself filed on the 28th of February and 24th of March 2003 respectively.
Both parties were represented by their solicitors at the hearing of the matter and each of them was cross-examined by counsel for the other party.
Background
There is no dispute between the parties that they have lived physically apart for extended periods of time since April of 2001, when the husband took up a position as general manager of Phoenix Fuels at Comoro, Dili and the wife remained living at their jointly owned property situated at 1/34 S Court, C G.
It will be necessary for me to make findings of fact in respect of the nature of that separation and whether the wife directly communicated to the husband her intention to end the marriage between them in April of 2001 or by her actions, between April of 2001 and June of 2002, behaved in such a way that, objectively, the husband could have reached no conclusion other than that it was the wife’s intention that the marital relationship between the two of them be ended.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties. In what follows statements of fact constitute findings of fact.
Chronology and findings of fact
On the 18th of April 2001 the husband left Darwin to take up his position in Dili. He has continued to work in Dili until the present time. He works six weeks in Dili and then has a week off. Usually he returns to Darwin in his week off.
Between April 2001 and June 2002, the wife remained living in the former matrimonial home. The parties had interaction with one another after April of 2001 and spent time in each other’s company. They spoke on the telephone at regular intervals and each initiated calls to the other.
In her affidavit the wife deposed that she expressed concern to the husband about the amount of time he would be spending in East Timor and that if he did go there, the marriage between them would not be a “real one”.
The husband’s evidence is that the opportunity to work in East Timor was, from a financial point of view, an offer too good to refuse. However, he was determined to maintain the marriage between the parties by frequent communication on the telephone and by spending all his available leave time with the wife. It is his position that it was understood between the parties that he would keep the job for two years, to minimise disruption to the marriage but at the same time allowing the parties to take full advantage of the financial opportunities the position offered.
The wife put the matter more starkly. She said in her oral evidence that she did not want the husband to take the job in East Timor and that she bluntly gave the husband a choice between remaining in the marriage or taking the job. The husband refutes that he was given such an ultimatum by the wife, or that she conveyed to him unequivocally, by word or deed between April 2001 and June the 27th 2002 that she regarded the marriage between them as being at an end.
In this regard I prefer the evidence of the husband. In my view, the evidence of what occurred after April of 2001 causes me to have doubts that the wife put her position so strongly, although I accept that she was discontent at the husband’s decision to take the job in East Timor.
There is no dispute that the wife visited the husband in Dili around Christmas of 2001 and again in February in 2002 when the husband had his birthday. Further, there is no dispute that they went on holiday together in Queensland in March 2002. They shared the same bed.
The wife agrees that she gave the husband a photograph of the parties in a heart shaped frame at the time he left for Dili in April of 2001 and a pocket knife engraved with his name for his birthday in February of 2002. The parties had dinner the night prior to the husband’s departure for Dili. The parties also agree that they communicated regularly by telephone during the initial period the husband was in Dili, although this communication grew less as time went on. The parties each made calls to the other.
When the husband returned to Darwin on leave between May 2001 and June 2002, he would stay at the parties’ home in C G.
In May of 2001, the wife started a business. The husband did some plumbing work on the business premises in Parap. In conjunction with the wife, he borrowed some money from a person to use as start up capital for the business.
The parties maintained a joint bank account until July of 2002. The husband deposited some of his wages into the parties’ joint mortgage account to maintain the mortgage on the former matrimonial home. Both parties paid some of the necessary outgoings in respect of the property at S Court.
The wife continued to wear her wedding ring until September of 2001. She acknowledges that between April 2001 and September of 2001, during periods when the husband was in Darwin on leave, guests visited the former matrimonial home on at least two occasions for social events, when both she and the husband were present.
The wife vacated the former matrimonial home on the 3rd of June 2002. The husband returned to Darwin for one of his regular periods of leave on the 27th of June 2002. It is his position that on this occasion the wife unequivocally informed him the marriage between them was over from her point of view. He accepts this date – the 27th of June 2002 – as being the relevant date of separation from which the necessary calculations for the purpose of section 48(2) of the Family Law Act 1975 must be made.
The wife acknowledges that between April 2001 and June 2002, she had sexual intercourse with the husband on several occasions.
In the husband’s expression, the parties “had a good time together” in his periods of leave between April 2001 and June 2002. There were nine such periods of leave. In my view, the evidence indicates that notwithstanding the geographical separation of the parties between April 2001 and June of 2002, they maintained a marriage type relationship with one another, although the wife was unhappy and dissatisfied with the state of affairs that resulted from the husband being away from her for long periods of time. I do not believe that the husband would have continued to act in the way that he did and, in particular, arrange for the wife to have holidays with him in East Timor and in Queensland, if he believed that the marriage, from the wife’s point of view, was definitely over.
Neither party has called any evidence, independent of either of them, as to another person’s perception of the nature of the relationship between the parties and the period between April 2001 and June of 2002 and as to whether or not the parties appeared to hold themselves out as being married.
Certainly, the way in which the parties have behaved after the 27th of June, 2002 was markedly different from the way in which they behaved previously. I have no doubt that after the 27th of June 2002 they each regarded the marriage as being at an end. They negotiated an informal settlement of their matrimonial property and each signed an agreement, which they themselves had drawn, dividing their furniture and other chattels and their bank accounts, which they signed before a Justice of the Peace on the 12th of July 2002.
The wife began another relationship in August of 2002 and became engaged in September of 2002. Depending on the outcome of these proceedings, she plans to remarry on the 29th of June 2003.
Although the parties had agreed, to a large extent, as to the division of their property, the transfer of the mortgage and the necessary documentation in relation to that, prove problematic. As a result, the husband consulted a solicitor, Mr Close, some time around mid-July. Mr Close subsequently prepared an application for consent orders on behalf of the husband, incorporating the parties’ earlier agreement. These consent orders have proved to be a bone of contention between the parties, containing as they do on their cover sheet, a hand written response of “20.4.01” in respect of the question box entitled “date of final separation”. It is the wife’s contention that as the document originated in the husband’s solicitor’s office, the husband himself can be the only source of this information regarding the date of separation.
I do not accept this contention. The application for consent orders was neither executed by the parties nor filed. To a large extent, it is a draft document.
The wife commenced these proceedings on the 8th of October, 2002. They were given a return date of the 16th of December 2002. The wife had difficulty personally serving the husband. He was in East Timor. The proceedings were adjourned to the 3rd of February 2003. In an affidavit filed on the 3rd of February 2003, the wife deposed that she had posted the divorce application to Mr Close’s office on the 2nd of December 2002. The wife deposed as follows in her affidavit:
“I posted the documents required for divorce to P D S’s solicitor, Vincent Michael Close, on or about the 2nd December 2002.
I was contacted on or about the 15 January 2003 by P D S in relation to the loan payment of a vehicle. During this conversation I asked P D S if he had received the divorce papers mentioned in paragraph 1. P D S told me he had been informed by his solicitor, Vincent Michael Close, that the divorce papers had been received. P D S then said “yes” he was happy to go ahead with the divorce.
I contacted Vincent Michael Close on Friday 24th January to organise a meeting to finalise the signing of the divorce papers. We organised to meet on Tuesday 28th January at 0900 to sign the divorce papers and for Vincent Michael Close to present me with other documents relating to our assets that he wanted signed by me. I did not attend this meeting due to illness, however another appointment was made for 1500 on Friday 31st January which I did attend.
I told Vincent Michael Close at this meeting that I would get the documents concerning financial assets signed by a Justice of the Peace. Vincent Michael Close told me that when I had these documents signed and returned to him, he would give me the “Application for Divorcee stamped with the Court seal”, signed by him on behalf of P D S.”
Neither the husband nor Mr Close attended on the hearing of the wife’s application on the 2nd of February 2003. In light of the circumstances as deposed to by the wife, an order was made dispensing with the strict requirements of personal service on the husband and the decree nisi was granted.
On the 28th of February 2003, the husband filed an application seeking orders extending the time in which the decree nisi would become absolute and seeking a re-hearing of the application for divorce.
In support of his application, the husband deposed as follows:
“In October 2002 whilst in Darwin I gave instructions to Vincent Michael Close, Solicitor in regard to proposed Consent Orders relating to settlement of matrimonial property and financial matters.
I am now informed that in January 2003 K E S sent a copy of the divorce application to my said solicitor and that he sent the same by facsimile transmission to me on 22 January 2003.
Although I received the divorce application I did not read the same until 3 February 2003 and then telephoned my solicitor to inform him that I did not agree with the date of separation as appearing on the divorce application.”
On the 28th of February 2003, I made Orders extending the period of time in which the decree nisi in this matter was to become absolute, until the 7th of March 2003. Ultimately, I determined to hear the husband’s application for re-hearing on the 1st of August 2003.
In the light of what has happened, on balance, I believe it is highly probable that someone within Mr Close’s office has added the date of separation to the consent orders, by reference to the wife’s application for divorce. Certainly the wife’s application was in Mr Close’s office around the time it seems the consent orders were prepared. I do not believe that I can infer that the information contained on the cover sheet of the consent orders could have only come from the husband and is therefore an indication that, at an earlier stage, he accepted that the date of separation between the parties was the 20th of April, 2001.
The applicable law
Section 48(1) of the Family Law Act states as follows:
An application under this Act for a decree of dissolution of marriage shall be based on the ground that the marriage has broken down irretrievably.
Section 48(2) further provides that the ground will be established 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 that 12 months immediately proceeding the date of the filing of the application of dissolution of marriage.
The meaning of separation in the context of the dissolution of marriage pursuant to the Family Law Act is defined in section 49 of the Act. Section 49(1) provides:
The parties to a marriage are held to have separated notwithstanding the cohabitation was brought to an end by the action or conduct of only one of the parties.
The Family Law Act also recognises the parties to a marriage may be separated under the one roof. Section 49(2) of the Act provides as follows:
The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
Accordingly it is clear that separation may be proved, notwithstanding that the cohabitation of the parties was brought to an end by the actions or conduct of one party only and notwithstanding the parties have continued to reside in the same residence or that either party has rendered some household services to the other. The Act specifically provides for such matters in subsections (1) and (2) of section 49.
Separation has been defined in the cases and I refer specifically to Todd and Todd (No. 2) 1976 FLC 90-008. The definition of separation in that case was varied by the Full Court of the Family Court. In Pavey v Pavey (1976) FLC 90-051. In that case it was said as follows:
… “Separation” means more than physical separation – it involves the breakdown 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 and the nurture and support of the children of the marriage.
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 addition to that requirement, it is sometimes said there is a further requirement and that is a requirement of communication. This was referred to by the Full Court in the matter of Falk v Falk (1977) FLC 90-247 at 76,333 as follows:
“The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation. Where one party only has formed the relevant attitude and intention they 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.”
In each case, the question of whether a separation has occurred, is a question of fact.
Living separately and apart for the purposes of section 48 (2) involves more than just physical separation. It involves the breakdown of the marital relationship, what is usually known by the latin phrase consortium vitae.
In Crabtree v Crabtree (No. 2) (1964) ALR 820 Selby, J. discussed the meaning of this phrase in the following terms:
“…the question of consortium is … a different matter from that of physical separation. Consortium has been defined as a partnership or association; but in the matrimonial sense it implies much more than these rather cold words suggest. It involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fuller sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse – all those elements which, when combined, justify the old common law dictum that a man and his wife are one person. It is not necessary that all these elements should be present to establish the existence of matrimonial consortium; one or very few may exist and they may show that the matrimonial consortium has not been destroyed; that it is still alive, although in a maimed and attenuated form.”
In Batty v Batty (1986) FLC 91-703 Wilczek (75,087) provided a comprehensive list of the various elements that comprised a consortium vitae. These are:
·Sexual intercourse;
·Dwelling under the same roof;
·Giving society and protection to each other;
·Economical or fiscal unity or cooperation;
·Public recognition of each other as spouses;
·Private acceptance of each other as spouses;
·Communication between the parties sharing any separation;
·The nurture and support of the children of the marriage;
·The extent of what marital services are still rendered by the parties to each other.
The presence of some of these elements is not inconsistent with a breakdown of a consortium vitae. In particular the rendering of some household services is not inconsistent with such a breakdown (see section 49(2)) nor is a continuation of casual acts of sexual intercourse (see Todd v Todd (No. 2) (1976) FLC 90-008). Moreover it is not necessary in order that the consortium continue for all the above elements to be present. However, depending on the circumstances, the absence of any of them might be evidence of marital breakdown and the greater the number that are absent the stronger the evidence is of that breakdown. Again it is a question of fact in the context of the evidence in each case.
Conclusions
It is the wife’s position that she clearly communicated to the husband that the marriage between was at an end in April of 2001, prior to the husband’s departure for East Timor. For reasons already provided, I do not accept this evidence. Clearly she was unhappy at the prospect of the husband being away for extended periods of time and that she and the husband would not have “a real marriage” to use her phrase. However, I do not believe that she communicated this intention clearly and unequivocally to the husband. Indeed, I do not believe that she had reached the concluded position that the marriage was at an end. The marriage may have been in trouble – it clearly was as subsequent events showed – however it is one thing to acknowledge that a marriage is in trouble and another to assert that it is clearly over. The wife’s behaviour following April of 2001, when taken in conjunction with the husband’s behaviour, indicates that the wife was clearly ambivalent about the marriage.
In my view, the conduct of the parties between April of 2001 and June of 2002 indicates that very many elements consistent with consortium vitae persisting between them, are present. These include the continuation of their financial relationship; the fact that the wife visited the husband in East Timor on two occasions to see him and spent other times on holidays with him; the frequency of their telephone communications with one another; the continuation of sexual relations between them; the maintenance of their joint residence until June of 2002 and the husband’s occupation of it during his periods of leave; the joint borrowing of funds to establish the wife’s business; the wife’s wearing of her wedding ring until September of 2001. Finally, the way in which the husband behaved in and after June of 2002, when the wife had moved out of the former matrimonial home, is markedly different to what transpired prior to that period. I accept his evidence that prior to June 2002 he did not believe the marriage between the parties was at an end.
A marriage between parties does not come to an end merely because of forced geographical separation. Solo round-the-world sailors and prisoners may remain married although they have no or little communication with their spouses. In this case, I am satisfied that the marriage between the parties came to an end in June of 2002, when the wife moved out of the former matrimonial home and later that month informed the husband that the marriage between the parties was at an end. That being the case the wife’s application for divorce has failed to establish that she separated from the husband on the date pleaded by her in her application. Accordingly, it must fail on the re-hearing.
Section 58 of the Family Law Act (1975) reads as follows:
Where a decree nisi has been made but has not become absolute, the court by which the decree was made may, on the application of a party to the proceedings, or on the intervention of the Attorney-General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the decree and, if it thinks fit, order that the proceedings be re-heard.
I am satisfied that there are circumstances in this case that make it appropriate that I rescind the decree nisi that was made on the 3rd of February 2003. The husband’s application for a re-hearing has been granted and as a result of that the wife’s application must be dismissed.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Brown FM
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