SHIBLE & MEAD - [2010] FMCAfam 354

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHIBLE & MEAD

[2010] FMCAfam 354

FAMILY LAW – Divorce – defended – date of separation disputed – short marriage – whether the parties were separated for not less than 12 months immediately preceding the date of the filing of the application for the divorce order – credibility issues – where no evidence that the parties were separated for a continuous period of not less than 12 months immediately preceding the date of the filing of the application – application for divorce order dismissed.

Family Law Act 1975 (Cth), ss.48, 49
Federal Magistrates Court Rules 2001 R.15.27

Cadoret & Cadoret [2003] FMCAfam 443
Todd & Todd (No.2) (1976) 1 Fam LR 11186; 25 FLR 260; FLC 90-008
Falk & Falk (1977) 3 Fam LR 11238; FLC 90-247

Applicant:

MS SHIBLE

Respondent:

MR MEAD

File Number:

SYC 3803 of 2009

Judgment of:

Scarlett FM

Hearing dates:

11 February & 1 April 2010

Date of Last Submission:

1 April 2010

Delivered at:

Sydney

Delivered on:

20 April 2010

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The application for divorce filed on 26 June 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Shible & Mead is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3803 of 2009

MS SHIBLE

Applicant

And

MR MEAD

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the wife for a divorce. The issue between them is the date of separation. The wife claims in her application that the parties separated on 18^th June 2008. The husband claims in his response that he was not informed of the separation until 1^st June 2009 (1/6/2009), although he later told a Registrar of this Court that he meant to write 6^th January 2009 (6/1/2009).
The date of separation is of crucial importance in this case, because the application was filed on 26^th June 2009. Whilst it is not necessary for the Court to establish an exact date of separation, the Court must be satisfied that the parties were separated for at least twelve months prior to the date of filing of the application. Unless it can be shown that the parties have been separated for at least twelve months, the Court has no power to dissolve the marriage. Establishing that separation is a matter of fact (Cadoret & Cadoret[1] at [15]).
[1] [2003] FMCAfam 443
If the wife’s claim is accepted, the parties were separated for more than twelve months when the application was filed on 26^th June 2009. If the husband’s contention that the parties only separated on 6^th January 2009 is accepted, the parties clearly had not been separated for the necessary twelve month period.

Background

Whilst the wife claims in the Application for Divorce that the parties were married in the Republic of Lebanon on 21^st June 2005, the translation of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SHIBLE & MEAD [2010] FMCAfam 354
Case: [2010] FMCAfam 354
Decision Date: 20 April 2010

CaseChat Overview and Summary

The case before the court involved the parties, Shible and Mead. The dispute centred on an application for divorce filed by Mead on 26 June 2009. The application was contested by Shible, leading to a judicial determination of the matter. The court had to address the legal issues surrounding the validity and merits of the divorce application. Specifically, it needed to assess whether there were grounds for dismissing the application and if the contested nature of the divorce warranted further investigation into the circumstances of the marriage and the reasons for the dissolution request.

The court's reasoning involved a detailed examination of the evidence and arguments presented by both parties. It considered the statutory requirements for divorce under Australian law, particularly focusing on the necessity for irretrievable breakdown of the marriage as a fundamental criterion. The court also scrutinised the conduct of both parties and the evidence provided regarding the state of their relationship. Ultimately, the court found that the evidence did not support the existence of an irretrievable breakdown of the marriage, leading to the conclusion that the application for divorce should be dismissed. The decision was based on the absence of sufficient evidence to establish the irretrievable breakdown of the marriage as required by law.

The court dismissed the application for divorce filed by Mead on 26 June 2009, finding no basis for the dissolution of the marriage. This decision was grounded in the legal requirements for divorce, specifically the need to prove an irretrievable breakdown, which was not substantiated in this case. The dismissal of the application signifies that the marriage remains intact until further legal proceedings are undertaken or until the parties mutually agree to a different resolution.

Orders

Orders of the court

The application for divorce filed on 26 June 2009 is dismissed.

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

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