S and S - [2000] FMCAfam 50

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2000] FMCA fam 50

DISSOLUTION s48(2) – ‘Living separately and apart’

Applicant:

N W S

Respondent:

R M S

File No:

ZC2212 of 2000

Delivered on:

13 October 2000

Delivered at:

Canberra

Hearing Date:

18 September 2000

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:

Mr Hubert

Counsel for the Respondent:

Mr Brzostowski

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

ZC 2212 of 2000

N W S

Applicant

And

R M S

Respondent

REASONS FOR JUDGMENT

This matter concerns the husband’s application for divorce filed 27 June 2000. The wife filed a response on 30 August 2000. In that response she conceded that the parties had separated and thereafter lived separately and apart within the meaning of the meaning ascribed to that phrase by the Family Law Act but that this separation had commenced only on 19 June 2000.
As well as submissions made at the hearing each party has filed written submissions after the conclusion of the case.

Background

The parties were married on 10 June 1972. From that date until 1991 the parties lived together in Victoria. They had 2 children both of whom are now over the age of 18 years.
In 1991 the husband, who was employed with the Victorian State Electricity Commission applied for and obtained a redundancy package obtained a position with the ACT Electricity and Water Commission. The wife expected to accompany him to Canberra but the husband told her that he proposed to go alone. This he did, moving into a rented flat in H. However he regularly visited the wife and their 2 sons in Victoria.
In 1994 by agreement the wife came to live with the husband in Canberra. At first the parties’ sons remained in Victoria in boarding school but in 1995 they also came to Canberra.
In 1996 the parties purchased a house, also in H, in joint names. After renovations were completed the house was ready for occupation in about April 1997. The wife and the children moved into the house. The husband however remained in the flat.
The parties did not live together again although they continued to have contact in Canberra and had sexual intercourse on occasions in Canberra. The husband also bought gifts for the wife from time to time and continued to maintain the family. They also stayed together on a number of occasions on trips away. The wife lists brief trips away in September 1997, Christmas 1997, March 1998, September 1998, June 1999, January 2000 and March 2000. There was some confusion in her chronology, it appears for example that the trip away that she says in her affidavit occurred at Christmas 1997 may have infact been in 1996. However I am satisfied that there were several such trips. All were of short duration except in January 2000 when they went for a weeklong holiday with their sons.
After the wife moved into the H home the parties began attending counselling. The husband maintains that this ended in about April 1988. The wife says it continued until the end of 1988.
The husband stated that prior to the wife moving to the H house she accompanied him, at his invitation, to work functions where spouses were present. However he says that after she moved this did not occur. This evidence was not challenged.
The husband maintains that the marriage ended in April 1988. He says that prior to that date he had hoped that the parties might be able to improve their relationship and he says he attended counselling to attempt to achieve this end. He says that after a year of counselling he was of the opinion that nothing could be achieved and said to the wife words to the effect:
“I do not see that any further counselling would be of any benefit.”
The wife more or less agrees with this conversation although she maintains that it was later in the year and the words the husband used were to the effect that counselling wasn’t working for him.
The wife maintains that the marriage ended in June 2000. She says that as a result of reading certain documents she found in the husband’s car she formed the view that the marriage was at an end. She maintains that whilst the parties had an unconventional and to some degree dysfunctional marriage this was because the husband was a “fiercely independent person who needed his own space.” She says that until June 2000 she did not “consider or understand that we were not in a full marital relationship.”

The law

Section 48(1) the Family Law Act states
“An application under this Act for a decree of dissolution of a 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 than 12 months immediately preceding the date of the filing of the application for dissolution of marriage”
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: Paveyv. Pavey (1976) FLC 90-051.
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 that 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 fullest 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 J (at page 75,087) provided a comprehensive list of the various elements that comprise a consortium vitae. These are:
·Sexual intercourse;
·Dwelling under one roof;
·Giving society and protection to each other;
·Economical of fiscal unity or co-operation;
·Public recognition of each other as spouses;
·Private acceptance of each other as spouses;
·Communication between the parties during any separations;
·The nurture and support of the children of the marriage;
·The rendering of “marital services” by the parties.
The presence of some of these elements is not inconsistent with a breakdown of the consortium vitae. In particular the rendering of some household services is not inconsistent with such a breakdown (Section 49(2)) nor is a continuation of casual acts of sexual intercourse (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.
Once the consortium vitae has ended it will not be restored except by an unequivocal intention on the part of both parties to resume the marriage together with some overt act, such as a resumption of cohabitation. (Macrae v. Macrae (1967) 9 FLR 441, Clarke v. Clarke (1986) FLC 91-778)
An issue in this case was whether, if the husband had concluded that the marriage was at an end, he had adequately communicated that fact to the wife. The issue therefore arises as to whether or not such communication is required. In my opinion, in most cases that come before a trial court such as the Federal Magistrates Court, it is not necessary to embark on a detailed analysis of the law. In my opinion the present case is not one of the exceptions to this rule. Therefore insofar as the issue of communication is concerned I will simply set out my conclusions as to the law and indicate the cases I have had regard to in forming those conclusions.
In my opinion there is no general rule that in all cases communication to the other spouse of an intention to separate is required. What is required is an intention to separate on the part of a spouse and some overt act by which that intention is acted on.
Usually the existence of that intention and the act by which it is implemented is found in and evidenced by that party leaving the matrimonial home. However where the parties continue to share the matrimonial home, or where the physical separation occurs in circumstances that do not indicate any breakdown in the marriage (for example where it is a result of illness, imprisonment or business) some additional objective evidence of an intention to end the marriage and of the implementation of that intention is required. In practise such evidence would normally be found in the communication, whether by words or otherwise, of that intention to the other spouse.
The authorities I have relied upon in forming these conclusions are as follows:
·Santos & Santos [1972] Fam 247;
·Tye & Tye (No 1) (1976) FLC 90-028;
·Xuereb & Xuereb (1976) FLC 90-029;
·Lane & Lane (1976) FLC 90-025;
·Quigly & Quigly (1976) FLC 90-074;
·Fenech & Fenech (1976) FLC 90-035;
·Batty v. Batty (supra);
·Vaughan v. Vaughan (1990) FLC 92-135.

Application of the facts to the law

I will commence this part of my judgment by applying the facts of the case to the elements comprising the consortium vitae listed by Wilczek J in Batty.
The first element is sexual intercourse. In this case intercourse continued during the period that the husband maintains the marriage was at an end. He admits to intercourse but limits it to having occurred only on 2 or 3 occasions after the wife moved out of his flat. The wife claims that there were more occasions than this and I accept her evidence in this respect. However even on her evidence intercourse was not a regular occurrence. It would appear from her affidavit that it occurred on 4 occasions in 1999 and once in the last 12 months. As set out in paragraph 18 above this is not inconsistent with a breakdown of the consortium vitae.
The second element is the sharing of a home. In this case the parties have not lived in the same home since about April 1998. Insofar as the husband is concerned that has been by choice.
Sharing a common home has been regarded as the most significant component of the consortium vitae. Emery J in Quigley v. Quigley (supra) described it as “the most important single component of the marital relationship” and stated that “all other components are secondary to it….” I know of no reported case where a finding has been made that the consortium vitae has remained in circumstances where the parties have lived in separate homes through choice and where that arrangement has been regarded as permanent.
The third element, that is giving society and protection to each other, can probably be considered as an aspect of sharing the one home. If it has some wider application it does not appear to play any significant part in this case.
The fourth element is economic unity and co-operation. The wife’s evidence, found in paragraph 33 of her affidavit, is that at no stage during the marriage was there any co-operation in this respect. The parties did not appear to mingle their finances in any meaningful way. The husband continued to make payments to support the wife and the children after they moved into the H house but in the context of this case this cannot be seen as any more than discharging his legal obligations. This element appears to be absent.
The fifth element is the public recognition of each other as spouses. This would normally take the form of both attending appropriate functions together and being invited as a couple to social events. As mentioned earlier in this judgment the unchallenged evidence of the husband was that insofar as work functions were concerned he attended those alone, including those where spouses were invited, after April 1997. There is no evidence of any other attendance at other functions. Since 1997 this element appears to have been absent.
The fifth element is the private acceptance of each other as spouses. The wife’s case, which I accept, is that until June 2000 she regarded the husband as her spouse. The husband’s position is more equivocal. It may be that whilst he continued to attend counselling he continued to regard the wife in some sense as his spouse. However there is no evidence that after he discontinued counselling he continued to privately regard her as such in any real sense.
The next element is communication between the parties during any separations. The wife states in paragraph 21 of her affidavit that “after the boys and I had moved in to the house at H, Nev continued to maintain a close family relationship with us. He would come to the house each morning, having prepared lunches for myself and the boys, which he had packed and brought over.” I did not understand that this continued up until June 2000. In any event however there appears to have been significant communication between the parties at all times.
The seventh and last element is the nurture and support of the children of the marriage. The statement in paragraph 21 quoted above is apposite in this respect. To some degree this element continued after April 1997. The same comment applies to the last element, that is the rendering of “marital services” by each party to the other but the comments made in paragraph 18 apply to this aspect.
As stated above the husband in his Form 4 and in his evidence stated that he regarded the marriage as having ended in April 1998, that being the date he says counselling ceased at his instigation. For my part however I would regard it as probably having ended about 12 months before this date when he declined to move into the property occupied by the wife. As stated above this was by choice. Moreover he did not regard it as being temporary. True it is that he hoped that through a process of counselling a stage might be reached whereby he could move into that house but what appears to me to have occurred was that a situation had been reached where the marriage had broken down but that the husband hoped that this breakdown might be reversed in time.
After the parties commenced to live in separate residences some of the elements of a consortium vitae continued. The most important element however, the sharing of a home, did not. On balance I am of the opinion that insufficient of the other elements remained to preserve the consortium vitae.
If I am correct in this conclusion the applicable law is as set out in Macrae (supra). After they physically separated the husband hoped that the marriage might be restored but this is not enough to maintain or restore the consortium vitae.
Whether or not the husband communicated the breakdown to the wife is uncertain. Be that as it may the fact of the husband declining to accompany the wife to the new home was, in my opinion, an overt act which sufficiently put into effect an intention to end the marriage.
However even if I had concluded that the consortium vitae had survived the physical separation of the parties in 1997 I would have been satisfied that it had ended when the husband decided to terminate the counselling process the parties had been engaged in. I am satisfied that by this time the husband had unequivocally come to regard the marriage as having come to an end. The ending of the counselling and informing the wife of that fact, whether in the terms he deposes to or in the terms she recalls, is in my opinion a sufficient overt act to put his decision to end the marriage into effect. On either version it occurred more than 12 months before the date of the filing of the husband’s Form 4.
I am satisfied that the husband is entitled to a decree nisi. I will formally pronounce that decree upon the publishing of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: