Sanchez and Sanchez
[2009] FMCAfam 625
•7 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANCHEZ & SANCHEZ | [2009] FMCAfam 625 |
| FAMILY LAW – Contested Divorce – separation not less than twelve months prior to the filing of the application – application dismissed. |
| Family Law Act 1975, ss.48, 49 & 55A |
| Todd v Todd (No.2) (1976) FLC 90-008 Pavey v Pavey (1976) FLC 90-051 |
| Applicant: | MS SANCHEZ |
| Respondent: | MR SANCHEZ |
| File Number: | ADC602 of 2009 |
| Judgment of: | Cole FM |
| Hearing date: | 4 June 2009 |
| Date of Last Submission: | 4 June 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 7 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondent: | Self-represented |
ORDERS
The Application for Divorce filed on 19 February 2009 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sanchez & Sanchez is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE
ADC602 of 2009
| MS SANCHEZ |
Applicant
And
| MR SANCHEZ |
Respondent
REASONS FOR JUDGMENT
This is a contested application for divorce, the applicant being the wife, Ms Sanchez. The application is opposed by the husband, Mr Sanchez.
The law
2.[NJ1]The law in respect of an application for divorce is set out in s.48 of the Family Law Act 1975 (“the Act”).
Section 48(1) of the Act states:
An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
Section 48(2) of Act states:
… in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, 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 the divorce order.
Section 49(2) of the Act states:
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.
Section 55A(1) of the Act states:
A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
(a)that there are no children of the marriage who have not attained 18 years of age; or
(b)that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
The evidence
7.[NJ2]The applicant relies on:
a)her Application filed on 19 February 2009;
b)her Affidavit filed on 19 February 2009;
c)the Affidavit of Ms K filed on 19 February 2009;
d)the Affidavit of Ms G filed on 19 February 2009; and
e)her further Affidavit filed on 21 April 2009.
The respondent relies on his Response to the Divorce and his Affidavit filed on 7 April 2009.
Both parties attended at the Court and gave evidence.
The wife did not call evidence from Ms K or Ms G.
[NJ3]Background
It is agreed that the parties were married in 1996.
They have one child of their relationship, namely [X] born in 1996, who currently resides with the wife.
The wife alleges that they separated in January 1997.
The husband disputes this and says that they separated at some time in 2008.
It is agreed that the parties ceased living in the same residence on 20 December 2008.
Arrangements for the child
Neither party took issue with the arrangements for their daughter [X]. In the circumstances, it is appropriate to find that proper arrangements have been made for the child.
Date of separation
The wife
The wife’s application is based on the parties having separated under the one roof in January 1997.
Her evidence is that shortly after their daughter was born the husband moved into a separate bedroom and the parties have slept separately and apart since that date.
In addition, she says that since that time they attended events separately and, in effect, led separate lives from one another.
It is her submission that they had separate meals and were each responsible for their own washing and cleaning.
She said that they had separate social lives and separate friends and did not socialise as husband and wife.
In contrast to this, however, she gave evidence that she asked the husband to see a counsellor in “the early years” (her words). However, he refused to do so.
She also gave evidence that she told him in 2000 that they should split up because the relationship had ended although in 2007 she sought counselling and tried to fix the marriage.
She advises that she did not make any further attempt in 2008 because the marriage was “so over”.
Her evidence was specifically that the husband did his own washing but that she would often cook a pot meal for herself and the daughter from which the husband could help himself on his return from soccer.
Her evidence was also that the parties attended school events together for the sake of their daughter and the last school event that they attended was in 2006.
Her evidence was that she did not advise Centrelink that the parties had separated until 2008 and yet she was in receipt of the pension for some years prior to that date.
She also did not advise the Australian Taxation Office that they had separated until such time as the parties had ceased living together under the one roof.
The husband
The husband in his Response denies that the parties separated in 1997.
He gave evidence of a joint trip to the United States in the last 1990s, being 1998/1999, when the parties stayed together with the daughter.
His evidence was clear that the first thing he knew about the parties being separated was when the wife told him in December 2008, when she changed the locks.
He advised that he had been on a disability pension since 2000.
He confirmed that he had been contributing $280 per fortnight to the household expenses whilst he had been on the pension.
He conceded that the parties had argued like every other married couple.
He denied being asked to see a counsellor, although confirmed that he had left the matrimonial bed in 1996 (or thereabouts) to give the wife more comfort whilst she was pregnant. He advised that the parties’ daughter had slept in the bed with the wife until she was nine years of age.
He also advised that the last physical relations between the wife and him had occurred prior to 2000.
Whilst he did not oppose the divorce, he denied that the parties had been separated in 1997 and was quite clear that he did not consider that the separation had occurred until late 2008.
Corroborating evidence
Ms Sanchez has filed two affidavits from Ms G and from Ms K.
Both confirmed that they were advised by the wife that she had separated from the husband in or about January 1997. Both also say that they have observed the husband and wife eating separately, doing their own shopping and laundry separately and not socialising as husband and wife.
The difficulty with their evidence is that they were not called and were not available for cross-examination and therefore it is not appropriate that I give their evidence any significant weight.
Irretrievable break-down / separation
Section 48(2) of the Act requires me to find that there has been an effective break-down of the matrimonial relationship for twelve months preceding the date of the filing of the date of the application.
The Application was filed on 19 February 2009.
I am therefore required to find that the parties have been separated not less than twelve months prior to that date, meaning they separated no later than 18 February 2008.
There is no question that parties can separate under the one roof. For me to find that this has occurred, however, I must find that the matrimonial relationship has effectively been severed.
In Todd v Todd (No.2) (1976) FLC 90-008 at 75,079 Watson J said:
In my view, “separation” means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in a sense used by the Act when one or both of the spouses forms the intention to sever or not resume the marital relationship and act on an intention or alternatively act as if the marital relationship has been severed.
He went on to say:
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 and public and private relationships.
Later in the matter of Pavey v Pavey (1976) FLC 90-051 the Full Court added to the elements set by Watson J:
“The nurture and support of the children of the marriage.”
From the above and for the purposes of this case it is important to find that:
a)one of the parties has formed the intention to sever or not to resume the marital relationship; and
b)acted on the intention; or
c)alternatively, acted as if the marital relationship has been severed.
It is the evidence of the wife that she formed the intention in or about 1997.
It also the evidence of the wife that she acted upon that intention by informing the husband of her position in advising him that the marriage was over. Her evidence is not consistent and it contrasts with evidence that she sought counselling in later years - up to and including 2007 - where she sought to “fix the marriage”.
Both parties agreed that physical relations ceased prior to 2000. However that in itself is not sufficient to find that the marriage was over.
Furthermore, it is the husband’s evidence that it was his decision to move from the matrimonial bed; the daughter continuing to sleep with the wife until she was some nine years of age.
It is conceded that the parties continued to attend bible classes together. However, it is not conceded that they attended in the same car.
It is also conceded that the parties continued to attend their daughter’s school functions together. However, this of itself, will not decide the matter.
In Pavey v Pavey (supra) the Full Court said that:
If the parties to a marriage say that they have stayed together for the sake of the children then they are saying that they are endeavouring to fulfil the responsibilities that the law … casts upon them both. The relative significance of this will vary from marriage to marriage but it is always an important element of a marriage.
It appears conceded that the joint activities in respect of the parties’ daughter ceased in 2006.
The wife’s evidence is that she acted upon her intention to sever the marriage and continued to reside separately and apart under the one roof. The husband did not concede this and it was not possible to make any finding that the wife had informed the husband that the marriage was over prior to 2008.
Whilst there is abundant evidence to find the marriage was in trouble, there is not enough to find that the relationship had severed until the wife acted on her intention and locked the husband out of the home in December 2008.
In addition, the wife further acted on her intention to sever the marital relationship or, alternatively, acted as if the marital relationship had been severed when she filled out forms for Centrelink and for the Australian Taxation Office advising those institutions of her changed marital status.
As stated above, this did not occur until she and the husband ceased residing under the one roof in December 2008.
In the circumstances, I am not able to find that the parties were living separately and apart under the one roof for not less than twelve months prior to the date of the filing of the application.
I must therefore dismiss the application and do so order.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Cole FM
Associate: H Priest
Date: 7 July 2009
[NJ1]Moved this section to here.
[NJ2]Added this hearing.
[NJ3]I’m not sure if this is appropriate?
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