Saliba & Saliba
[2024] FedCFamC2F 905
•15 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saliba & Saliba [2024] FedCFamC2F 905
File number(s): MLC 12510 of 2023 Judgment of: JUDGE HARLAND Date of judgment: 15 July 2024 Catchwords: FAMILY LAW – application of recission of a divorce order made before the divorce order took effect - whether the parties have been separated for 12 months prior to the divorce application being filed – the wife claims the parties are not separated – consideration of provisions dealing with recission of divorce - application dismissed Legislation: Family Law Act 1975 (Cth) ss. 55, 55(3), 57, 58 Cases cited: Bell and Bell (1979) 5 Fam LR 216
Falk and Falk (1977) 3 Fam LR 11,238
Fenech and Fenech (1976) 1 Fam LR 11,250
Pavey & Pavey [1976] FamCA 36
Todd and Todd (1976) 1 Fam LR 11,186
Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 28 June 2024 Place: Melbourne The Applicant Ms Saliba Counsel for the Respondent Mr Elishapour Solicitors for the Respondent Aston Legal Group ORDERS
MLC 12510 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SALIBA
ApplicantAND: MR SALIBA
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
15 JULY 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 11 January 2024 is dismissed.
2.Pursuant to section 55(3) of the Family Law Act 1975 (Cth), the divorce order made 14 December 2023 shall take effect on 16 August 2024.
AND THE COURT NOTES THAT:
A.The Manager Client Services is requested to amend the Court record accordingly.
B.The Application in a Proceeding filed 11 January 2024 is otherwise known as the Application in a Proceeding filed 24 January 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
The respondent wife seeks to have the divorce order made on 14 December 2023 pursuant to an application made by the husband rescinded. The wife was self-represented and needed the assistance of an interpreter. Both parties relied on multiple affidavits filed in the proceedings. The wife raised various issues in her affidavits which are not relevant to the single issue before me. The husband’s Counsel submitted that some of the contents of the wife’s affidavits are scandalous. In the interests of time, given this matter was listed before me for a half day and particularly as the wife was unrepresented, I told the parties that I would put such weight on material in the parties’ affidavits as is relevant and in accordance with the rules of evidence.
The only issue in dispute that I must determine is whether or not the parties have been living separately and apart at least 12 months before the divorce application was filed.
DOCUMENTS RELIED UPON AND RELEVANT BACKGROUND
The wife relies on the following documents:
(a)Application in a Proceeding filed 11 January 2024;
(b)Affidavit of Ms Saliba filed 24 January 2024;
(c)Affidavit of Service filed 6 February 2024;
(d)Affidavit of Ms Saliba filed 22 April 2024;
(e)Affidavit of Ms Saliba filed 21 June 2024;
(f)Response to an Application for Divorce filed 5 December 202; and
(g)Outline of Case filed 21 June 2024.
The husband relies on the following documents:
(a)Response to an Application in a Proceeding filed 29 February 2024;
(b)Certificate of Australian Citizenship filed 2023;
(c)Application for Divorce filed 2023;
(d)Certificate of Muslim Marriage filed 2023;
(e)Affidavit of Mr B, the husband’s housemate, filed 12 December 2023;
(f)Affidavit of Mr Saliba filed 12 December 2023;
(g)Notice of Discontinuance filed 14 December 2023;
(h)Orders made 14 December 2023;
(i)Affidavit of Mr Saliba filed 29 February 2024;
(j)Affidavit of Mr Saliba filed 24 May 2024; and
(k)Outline of Case filed 21 June 2024.
Both parties were cross-examined. On the morning of the defended hearing, the wife emailed my Chambers requesting to attend electronically due to the parties’ son being unwell. In the circumstances, I granted leave for the wife without objection to attend the hearing via Microsoft Teams and the wife was assisted by an interpreter.
The parties married in Country C in 2009 and relocated to Australia in 2018. They have two children together, X aged 13 and Y aged 11. The husband became an Australian citizen in 2023. The wife is not an Australian Citizen.
The husband filed his application for divorce in late 2023. In his application he says the parties separated on 21 November 2021.
The wife filed a response to the divorce application in late 2023. In her response, the wife says the parties separated on or around 2 October 2023. The husband filed another supporting affidavit and an affidavit by Mr B, his housemate on 12 December 2014 to further support his claim. The wife filed a notice of discontinuance with respect to her response to the divorce application in late 2023 and the divorce was granted in 2023 with the divorce order to take effect in early 2024. The wife had the assistance of a solicitor with respect to the preparation and filing of the response to the divorce application and the notice of discontinuance.
The wife filed an application in a proceeding seeking to rescind the divorce in early 2024. The filing date for the application is not entirely clear on the Court file, but upon further review of the matter, the Melbourne Registry confirmed that the application in a proceeding was filed on 11 January 2024 and not 24 January 2024 which is the date the application is marked. Therefore, the application was filed before the divorce order was to take effect as defined in s.55 of Family Law Act 1975 ("The Act").
LEGAL PRINCIPLES
In order to obtain a divorce, the parties to the divorces must in part be separated at least 12 months prior to filing the application for divorce. There are other jurisdictional requirements, but none of those were challenged in this matter. If the Court accepts the husband’s evidence that the parties separated on 21 November 2021, the husband filed the application a little over two years after the parties separated and the divorce should be granted. If the wife’s evidence is accepted, then the 12-month period has not yet expired and the divorce application should be dismissed and the divorce order rescinded.
For the reasons I shall detail below, I accept the husband’s evidence that the parties separated on 21 November 2021 and will dismiss the application in a proceeding.
The wife’s application in a proceeding is treated as an appeal from the divorce order pursuant to s.55(3) of the Act:
(3) If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section:
(a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or
(b) on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted;
Section 55 of the Act deals with when a divorce order takes effect. By reason of the wife filing her application in a proceeding, unless the divorce order is reversed or rescinded, the divorce order will take effect at the expiration of a period of one month from the date upon which the appeal is determined or discontinued on the day on which the divorce order would have taken effect if not for the appeal, whichever is the latter.
The Full Court in Pavey & Pavey [1976] FamCA 36 recognised the marital relationship has irretrievably broken down even when there is not a physical separation and parties remain living under the same roof. A martial breakdown occurs when one or both parties have formed the intention to end the relationship, communicate that intention and act on it. What constitutes elements of the marital relationship will vary and whether there has been a breakdown of the relationship is determined on a case by case basis. For example, there may be separations where one party continues to perform some household duties for the other. I am satisfied that the husband formed the intention to end the relationship, communicated that intention to the wife and acted on it in September 2021.
Section 57 of the Act deals with rescission of a divorce order due to the parties reconciling. This section does not apply. The other provision dealing with rescission of a divorce order is s.58 of the Act whereby the Court may rescind the divorce order on the grounds of miscarriage of justice if the divorce order has not taken place at the time of the application.
In the husband’s case outline filed 21 June 2024, the husband refers to several authorities.[1] In Falk and Falk (1977) 3 Fam LR 11,238, the Full Court held that the parties can be found to have separated, even though the parties remained under the one roof, as the separation meant a departure from the state of things rather than a particular place. It is necessary to consider the facts of the particular case. Parties may be separated despite continuing to provide some household services to the other and remain living under the same roof.
[1] See Bell and Bell (1979) 5 Fam LR 216, Falk and Falk (1977) 3 Fam LR 11,238; Fenech and Fenech (1976) 1 Fam LR 11,250, Todd and Todd (1976) 1 Fam LR 11,186.
The husband also relied on Bell and Bell (1979) 5 Fam LR 216,where the Court had to consider whether or not the resumption of sexual relations, when the parents did not return to living together, constituted a resumption of the relationship. Separation is more than physical separation, it is the destruction of the marital relationship. Sexual relations is just one of several elements cumulatively making up the resumption of the martial relationship.
DISCUSSION
In her response to the application for divorce, the wife accepts that the husband moved out of the former matrimonial home on 21 November 2021, but maintains that they continued their relationship. She claims that the husband would attend the home several times a week, they continued to have sex and do things together as family. The wife’s view was that those arrangements stopped only when the final family violence intervention order (“FVIO”) was made in late 2023. She says that she does not believe she is separated. The response to application for divorce was prepared with the assistance of a solicitor.
The wife claims in her affidavit filed 24 January 2024, that the husband told her that he rented the separate house for privacy whilst he worked. She feels that he has tricked her by then using it to say they had separated. Whilst it is not stated by either party, I assume that there may be cultural reasons as to why the wife does not want to accept the divorce. Nonetheless, it appears from the evidence before me that the parties had lived together in Australia for several years. The documents do not reveal what the husband does for work.
She filed a further affidavit on 22 April 2024. The wife refers to the Registrar instructing her to obtain legal advice and says that her attempts to obtain legal assistance have been unsuccessful in that she cannot afford a solicitor. The wife also claims that the parties had sex as recently as a month ago.
The wife filed a further affidavit on 21 June 2024. The wife says she discovered in the last week that the husband had told the Australian Tax Department that they had been separated since 21 November 2021, and that the husband did that so that she would not continue to receive child welfare benefits. This does not make any sense and is inconsistent with her previous evidence.
She makes further serious allegations of misconduct by the husband, which include allegations of family violence and abuse. She alleges that she recorded the husband claiming that he is married to someone else and also accuses the husband of making her a slave. The wife’s allegations are more extreme with each affidavit she files. She annexes a few documents to her latest affidavit filed 21 June 2024 which do not assist in the determination of the sole issue before me.
The wife also maintained under cross-examination that the husband and herself during this time continued their relationship including sexual relations and the husband was not just visiting the home to see the children.
The husband denies the wife’s allegations of family violence. He maintains that the parties separated on a final basis on 21 November 2021. The husband signed a lease for a share house in late 2021. On 21 November 2021, the husband moved out of the former matrimonial home. He annexes to his affidavit filed 29 February 2024, the complaint and summons taken out on the wife’s behalf in late 2021. The wife attended Suburb D police station and the summary in support of the complaint refers to the husband moving his belongings out of the house on 21 November 2021 and that the husband picked up his car from the house. The summary also refers to the wife asking the husband why he is moving out and the husband saying that he did not want to live with her anymore. The wife was cross-examined about this summary and referred to not speaking English very well and claims to not know where the police got this information from. I do not accept the wife’s evidence on this point. It is relatively common for parties in an ongoing relationship to seek an intervention order including when they remain living together under the same roof. The police could have only gotten that information from her. An ex-parte, no contact interim FVIO was made on in late 2021. In early 2022, the FVIO was reduced to a safe contact order and a final order was made listing the wife and children as protected persons. The husband says that despite the change of conditions of the FVIO, he did not at any stage move back into the former matrimonial home and did not seek to rekindle the relationship with the wife or have sex with her.
In mid-2023, the wife attended Suburb E police station and sought a further FVIO. In that application, the summary again refers to the parties separating in November 2021, and not living together. In late 2023, the husband consented to a final FVIO, on a without admissions basis, listing the wife and the children as protected persons which expired in early 2024. I note that the police records of when the wife attended the police station do not indicate the wife needing an interpreter and I assume that the wife did not have an interpreter to assist her. The wife was cross-examined about the summary in the complaint and summons. She said she gave a statement in English, and it may not have been translated properly and that she had not seen it properly before. I do not accept the wife’s evidence about this. She may not have looked at it closely, but I do not accept that the first time she saw the document was when it was annexed to the husband’s affidavit. The wife again reiterated that she did not have an interpreter which I accept. However, I do not accept that somehow the police have misunderstood what she said when she refers to the parties separating in November 2021 and the husband moving out of the former matrimonial home.
The wife insisted that the husband continued to see her during the no contact order and that she did not report breaches of the FVIO as the husband had told her that she might be fined or jailed. I accept that it is common that victims of violence do not report breaches to police, particularly when English is not their first language. However, this is a case where the evidence shows the wife attended different police stations to make complaints of violence against the husband including physical assaults.
The husband says the wife attended Suburb D police station in early 2022 and made allegations that the husband physically assaulted her on five occasions, and he was charged with unlawful assault. A few weeks later, the police withdrew the charges as there was insufficient evidence. The husband says that this caused him great stress and that he in no way wanted to rekindle the relationship with the wife particularly after this incident.
The husband says he was planning to move out of the home for some time and signed a lease for the property at F Street, Suburb G (“the Suburb G property”) where he remains living today. The husband’s housemate, Mr B, affirmed an affidavit in support of the husband’s application for divorce filed in late 2023 and was briefly cross-examined. Mr B says in his affidavit that he has been living with the husband at the Suburb G property for approximately two years and that he has been living in the property since late 2018. He says the property is a share house and other people have also lived there, but currently it is only himself and the husband. He says they have separate bedrooms but share a bathroom, kitchen and living room and other amenities and that he sees the husband most days. As a result of sharing these areas, Mr B says since moving into the Suburb G property, the husband has not been absent from the property for extended periods of time. Mr B, was frank in his evidence during cross-examination and stated that he did not know anything about the state of the parties’ relationship and could only say that the husband has been living in the share house since November 2021, up until two weeks before this hearing when they had to vacate the house as the property is being sold.
The husband denies the increasingly serious allegations made by the wife in her affidavits and refers to the representations the wife made to the police about the parties separating in November 2021.The husband says that between 19 April 2022 and 5 August 2023, he would attend the home to see the children and attend parent teacher interviews and would also take the children to school on occasion as during that period, there was a safe no contact FVIO in place. Having had the full no contact FVIO in place previously, he had been very restricted in being able to see the children. The husband says that on occasions he would dine at a restaurant with the children and the wife and took some grocery shopping. He says he did that to give the children a sense of normality and at no stage rekindle his relationship with the wife. He denies that the wife cooked for him during the period when he was allowed to see the children at the home in the wife’s presence.
He says during this period he would also attend parent teacher interviews with the wife when necessary and take the children to school on some occasions. The husband also refers to continuing to provide financial support for the wife and children. This was not referred to in the hearing, but the husband annexes to his affidavit filed 24 May 2024 a letter from Centrelink addressed to him at the former matrimonial home dated late 2021. This letter refers to the family tax benefit for the children and the family tax benefit part B being cancelled as he does not have care of the children. This is also consistent with the parties having separated and the children being in the mother’s care. The husband says that the wife informed Services Australia of their separation and it states that she was issued a pension card in her sole name in November 2021 which the husband annexes a copy to his affidavit. These documents are also consistent with the parties having separated in November 2021.
The wife cross-examined the husband. During cross-examination, he denied resuming sexual relations with her after he moved out of the home. I prefer the husband’s evidence with respect to the parties separating. His evidence is consistent. It does not make sense to move out of the home but maintain the relationship as the wife alleges as some form of deception. The wife’s evidence has been inconsistence and is contradicted by the documentary evidence including the applications for FVIOs, Services Australia and the Centrelink documents.
CONCLUSION
I am satisfied that the parties have been living separately and apart since November 2021, and will dismiss the application in a proceeding filed by the wife on 11 January 2024. If not for the application filed by the wife, the divorce would have become final in early 2024. In his response to an application in a proceeding, the husband asked for the divorce order of early 2024 to be reinstated. The divorce order would have taken effect in early 2024 except for the application being filed. I will order that the divorce order take effect from mid-2024.
During the defended hearing, I explained to the wife that once the divorce order becomes final, she has 12 months to bring a claim for property adjustment and/or maintenance. The husband has indicated an intention to commence proceedings with respect to parenting orders. In the event the wife seeks to obtain legal advice with respect to these issues, H Law Firm gives assistance to migrant and refugee communities and may be able to assist the wife. H Law Firm can be contacted by phone or complete the self-referral form online. The wife may also contact Legal Aid Victoria.
I otherwise make the orders as they appear at the beginning of these reasons.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Dated: 15 July 2024
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