SHIBLE & MEAD
[2010] FMCAfam 354
•20 April 2010
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 18th June 2008. The husband claims in his response that he was not informed of the separation until 1st June 2009 (1/6/2009), although he later told a Registrar of this Court that he meant to write 6th January 2009 (6/1/2009).
The date of separation is of crucial importance in this case, because the application was filed on 26th 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 26th June 2009. If the husband’s contention that the parties only separated on 6th 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 21st June 2005, the translation of the Marriage Certificate filed with the application shows a date of 1st July 2005. I take this to be the correct date for the purposes of this proceeding.
The husband is an Australian citizen by birth. The wife was born in Lebanon. The husband and wife travelled to Australia three months after the wedding and commenced living together in a suburb of Sydney. The wife obtained permanent residence in this country in about March 2008[2].
[2] Respondent’s affidavit sworn 7 September 2009 at paragraph 6
There are no children of the marriage.
It is common ground between the parties that the wife left Australia to return to Lebanon for a temporary stay on 18th June 2008. It is also common ground that she flew out on a one way airline ticket. There was some communication between the parties whilst the wife was in Lebanon but the nature of that communication is in dispute.
The wife returned to Australia on 11th November 2008 but has not resumed cohabitation with the husband.[3]
[3] Applicant’s affidavit sworn or affirmed 11 August 2009 at paragraph 1
The wife filed an Application for Divorce on 26th June 2009 in which she claimed that the parties separated on “18.6.2008”.[4]
[4] Application for Divorce paragraph 14
On 20th July 2009 the husband filed a Response to Divorce. In the Response, in answer to the question “Set out why the Application for Divorce should be dismissed” he stated:
I refuse devoice[5] on the ground of it been against my religious beliefs to devoice in a secular court system. I would like any devoice proceeding to take place in the same religious Court system the marriage took place in. I was never given the opportunity to try to reconcile the marriage through a marriage councillor that I believe we should try all avenues before granting devoice.[6]
[5] sic
[6] Response to Divorce paragraph 6
In paragraph 7 of the Response, in answer to the question “Do you disagree with any statement in the Application for Divorce?” the husband stated:
The date of which has been state of separation in documents provided is incorrect. I was only informed on the 1/6/09 making it less then 12 months. Applicate[7] state she’d wanted separation on 18/6/08 which is incorrect. Applicate was overseas on the 18/6/08 and only when she got back I was later informed.[8]
[7] sic
[8] Response to Divorce paragraph 7
The application for divorce came before Registrar Cater-Smith on
13th August 2009. The Registrar noted that the respondent appeared and told the Court that whilst he had written in the Response that he was not informed of the separation until 1/6/09 he meant to write 6/1/09.
The Registrar made directions for the filing of affidavits and adjourned the matter for mention before a Federal Magistrate on 13th October 2009. On that date Wilson FM (as he then was) made further directions and adjourned the matter for mention on 21st December 2009. On that date I listed the application for a defended hearing.
Evidence
The wife relied on the following:
a)Her application for divorce filed on 26th June 2009;
b)Her affidavit sworn or affirmed on 11th August 2009; and
c)The affidavit of Ms E sworn or affirmed on 10th November 2009.
The husband relied on the following:
a)His response filed on 20th July 2009;
b)His affidavit sworn on 7th September 2009;
c)The affidavit of Ms F sworn on 18th November 2009; and
d)The affidavit of Ms O sworn 10th November 2009.
The wife gave evidence with the assistance of an interpreter in the Arabic language. In her affidavit she deposed that she left Australia on 18th June 2008 and returned on 11th November 2008, but has never gone back to the husband and does not intend to. She attached a number of documents to her affidavit, including a copy of her passport, showing that she arrived in Australia on 11th November 2008. The passport also contains a visa showing that she is permitted to remain in Australia indefinitely.
The wife gave oral evidence and was cross-examined by the husband. She claimed that she had initially gone to Lebanon for a holiday for a week. She said that after a week she rang the husband and he said to her “We are not married”. She made further efforts to contact him, and he either did not reply or, on one occasion, said to her that they were not married and “the Devil was the one who married us”.
The wife denied receiving any documents from a court in Lebanon about divorce. She was shown a copy of a document in Arabic which forms Annexure “C” to the husband’s affidavit and she claimed that she had not seen it before.
Ms E gave evidence on the wife’s behalf. She deposed in her affidavit that she is the husband’s first cousin and the wife’s third cousin.
In her affidavit, Ms E deposed (relevantly):
In late October 2008, [Ms Shible] called me from Lebanon and told me she needed a place to stay in Australia for a while. When I asked her why, [Ms Shible] replied that she had tried to file a divorce application through the court and had been told that it is almost impossible for a woman to grant divorce if the husband is not consent to it. The husband put unjust conditions to sign the divorce papers there, [Ms Shible] had to waive her legal, financial and marital rights in writing in the Lebanese local court.
As a result [Ms Shible] has chosen not to give in there and came here to solve her problem and divorce. [Ms Shible] arrived to my place on the 11th November 2008 and told me that she went to Lebanon by one way ticket in June 2008 because there her relationship was not working. She tried to call and email her husband with no reply other than submitting to his unfair will which was giving in all her rights. [Ms Shible] understood clearly that her husband doesn’t want her anymore in July 2008 when the husband said that she can stay in Lebanon for ever without divorce and asked her not to come back to Australia.[9]
[9] Affidavit of Ms E sworn or affirmed 10 November 2009 paragraphs 1 and 2
Ms E gave oral evidence and was cross-examined by the husband. She agreed that there were bad relations between her and the husband’s family, which had involved court proceedings. The husband asked her about a conversation that they had had in October 2009 (referred to in her affidavit) on the subject of the divorce. The husband asked her if he had said that he did not wish to be divorced. Her evidence was that the husband had said:
We were married in Lebanon and I want the divorce to happen there.
Ms E also said that the husband had said:
We will have an Australian divorce after the Lebanese divorce.
The husband deposed in his affidavit that the wife had told him in about March 2008, after she had obtained her permanent residence visa, that she wished to return to Lebanon to visit her family and complete her religious studies. As she did not know how long she would be away, she proposed to buy a one way airline ticket. He agreed.
The husband claimed that he and the wife communicated by telephone or email whilst she was away. Some emails from the wife to him were sent to his sister’s email address and passed on to him by his sister. Annexed to his affidavit is a printout of an email that the husband says is from the wife to him via his sister’s email address. It is in a mixture of Arabic and English, which the husband has translated into
English.
The email has the words “hi [Mr Mead]” in the subject line and is dated “Thu, 3 Jul 2008 00:31:56 + 0300”. The mixed Arabic and English text says:
hello [Mr Mead] kifak sho lash ma am thaki ma3i shobak habibi i miss you ktir sho sayar ma3ak lash ma badak thakini hakini plzz[10]
[10] Husband’s affidavit 7.9.2009 Annexure “A”
The husband has translated that message as follows:
Hello [Mr Mead] how are you, hey why aren’t you talking to me, whats wrong with you my love. I miss you a lot, hey whats happened with you. Why don’t you want to talk to me, talk to me please.[11]
[11] ibid
The husband also deposed that in late December 2008 he received a letter from his wife’s Sheikh, Sheikh S. A copy of that letter, written in both Arabic and English, is annexed to the husband’s affidavit. The English wording says:
Dear brother [Mr Mead]. Alsalam Alikum Brother; your wife Ms Shible state she dose not want to continua her marriage life with you and also she is willing to helping you to discus any matter to find ways to come over this difficult problem. So please we would like to see you on Tuesday 61112009[12] at [address omitted] at 6.30 pm and this is the first letter for you. So please let us know if you want to come than we will let your wife know so she can be with us 221112009.[13]
[12] sic
[13] Husband’s affidavit 7.9.2009 Annexure “B”
The letter is dated “2008/12/22” which I take to mean 22nd December 2008.
The husband also claims that in late December 2008 he received a letter and court documents from the Islamic Shairia Court in Tripoli, Lebanon, advising him that the wife had made application to the court for divorce. He annexes a copy of a document in Arabic to his affidavit. It is entirely in Arabic without an English translation, except for a very short certificate on the letterhead of one Dr S, of the [medical centre omitted], New South Wales.
The husband goes on to depose in his affidavit that:
I have instructed a lawyer in Lebanon to represent me in relation to the Lebanese proceedings. My lawyer is Osama Essa in Tripoli, Lebanon. My wife’s lawyer is Fedet Alqasa.[14]
[14] Husband’s affidavit at paragraph 14
The balance of the affidavit refers to an agreement entered into by the husband and wife in Lebanon prior to the marriage, and to issues about whether the marriage was consummated or not. Those matters are not relevant to these proceedings.
In cross-examination by the wife, the husband was challenged about a statement in his affidavit that said:
I last spoke with my wife whilst she was in Lebanon in December 2008. I telephoned her on my mobile phone and said words to the effect:
‘I have received a letter from the bank that says that your account is overdrawn’.
She said: ‘I see’
The conversation was very brief as the connection was poor.[15]
[15] Ibid at paragraph 10
The wife put to the husband that this was not true, because she was no longer in Lebanon in December 2008. The husband replied:
I left a message.
Later, in re-examination, the husband told the Court:
I did try to contact my wife. I think the date’s probably wrong.
Ms F, the husband’s aunt, gave oral evidence with the assistance of the Arabic interpreter. Her affidavit is very brief and in English. Ms F speaks very little English and reads even less. Although it shows in the jurat that it was sworn on 18 November 2009 before one John Izzo, solicitor, it does not give any indication that a translation of the affidavit and oath or affirmation were read or given in writing to her in the Arabic language and does not contain the certification by the translator that he or she has done so. Accordingly, it does not comply with Rule 15.27.
In answer to a question from the Bench, Ms F said that the solicitor got an interpreter to assist. On that basis, I have decided to allow the affidavit into evidence, notwithstanding the failure to comply with the Rules. The affidavit is very brief and says only that on 17th June 2008, the day before the wife left for Lebanon, the wife said to her:
I am going to Lebanon on a holiday tomorrow to visit my parents.[16]
[16] Affidavit of Ms F sworn 18 November 2009 at paragraph 2
In cross-examination by the wife as to who told her that she was going to Lebanon, Ms F said that her sister told her.
Ms O gave evidence on behalf of the husband. She deposed in her affidavit that she is employed as a personal carer for the husband’s sister, who lives with him. Her duties as a carer involved her attending the husband’s home for two hours a day, six days a week. She deposed that she would se the wife and husband interacting together in a friendly way. She referred to the wife’s impending trip to Lebanon in June and stated that she last saw her the night before the wife left. She deposed:
15.I do not recall at any time [Ms Shible] saying words to the effect that she was leaving [Mr Mead][17] and that their marriage had ended.
16.I recall at the time immediately prior to [Ms Shible] leaving that she appeared happy.
17.I last saw [Ms Shible] in [Mr Mead]’s house the night before she left Australia.[18]
[17] The husband
[18] Affidavit of Ms O sworn 10.11.2009 paragraphs 15-17
Ms O’s evidence was not shaken by the wife’s brief cross-examination of her.
The Relevant Law
Unless it can be shown that the parties have been separated for at least 12 months, the court has no power to dissolve the marriage. Establishing the separation is a matter of fact. The importance of establishing a separation of at least 12 months is made clear by s.48 of the Family Law Act, which was amended on 3rd August 2005:
48(1) [Ground] 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.
48(2) [Establishment of ground] Subject to subsection (3), 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 filing of the application for the divorce order.
48(3) [Likelihood of resumption of cohabitation] A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Quite clearly, the use of the words “if and only if” imposes a mandatory obligation on the Court to be satisfied that there has been a separation of not less than 12 months. The Court has no power to shorten the time or backdate the period.
Separation is covered by s.49 of the Act:
49(1) [Cohabitation ended by one party’s conduct] The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
49(2) [Separation under one roof] 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 party has rendered some household services to the other.
It is clear that physical separation is neither a necessary nor a sufficient condition to establish a separation for the purposes of subsection 48(2). The parties to a marriage may regard themselves as being married even though they are living apart for a period of time. The authorities make it clear that there are three elements of separation:
a)An intention to separate;
b)An action upon that intention; and
c)Communication of that intention to the other party.
In Todd & Todd (No. 2)[19] Watson J held:
Separation can only occur in the sense used by the Act where one or both of the spouses formed 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.
[19] (1976) 1 Fam LR 11186; 25 FLR 260; FLC 90-008
The Full Court of the Family Court of Australia has made it clear that there is a need to communicate the intention to separate to the other party. That communication can be either spoken or unspoken (see Falk & Falk[20]).
[20] (1977) 3 Fam LR 11238; FLC 90-247
This is not a case where the wife asserts that there was a separation under the one roof and there is no evidence of one.
Conclusions
Establishing a date of separation is essentially a matter of fact. The matter has not been made any easier by the fact that neither party has been legally represented at any stage of the proceedings, although it is clear that the husband had assistance from a solicitor in preparing his own affidavit. The wife’s English skills are minimal, and she has required the assistance of an interpreter throughout the proceedings.
A significant amount of the evidence in this matter has been either inadmissible or irrelevant. However, since neither party has, understandably, made any objections to any evidence on the ground that it is inadmissible, I have taken a lenient approach in this regard.
There is no direct evidence from either the wife or the husband going to an intention to separate. Each one has blamed the other for repudiating the marriage.
There are credibility issues with the evidence of both the wife and the husband, arising from significant inconsistencies and discrepancies in their evidence. I am reluctant to accept their evidence on various key issues without corroboration.
The evidence of both Ms F and Ms O provides very little assistance in establishing when the parties separated. The evidence of both of them only shows that there were no signs that the parties had separated up to 17th June 2008, the day before the wife left for Lebanon. She may have had an intention to separate from the husband
The evidence of Ms E was more reliable. Notwithstanding the evidence of bad relations between her and the husband’s family, I am satisfied that her evidence was credible, although not all of it assists the wife.
In establishing a date of separation, it is not necessary to pinpoint an exact date when the separation took place. The task of the Court is to decide whether it is satisfied that the parties had lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing the application.
The wife claims that the parties separated on 18th June 2008, the day she left Australia for Lebanon. On her own evidence, she left on that day with the intention of going on a holiday. Her evidence is that she initially went to Lebanon for one week and that at some later stage her husband told her the marriage was over.
Although it is agreed that the parties physically separated on 18th June 2008, there is no evidence that either party communicated an intention to the other on that day that the marital relationship was over.
The husband’s affidavit evidence, which the wife did not challenge on this point, was that on 3rd July 2008 the wife sent him an email via his sister a printout of which was annexed to the husband’s affidavit. The contents of that email do not lead to the inference that the wife was informing the husband of an intention to separate. Rather, it is couched in terms of a woman away from her husband wondering why he is not communicating with her.
Whilst the husband claims that he was not made aware of his wife’s intention to end the marriage until 6th January 2009, his own affidavit evidence contradicts that claim. He deposed that in late December 2008 he received the court documents from Lebanon and the letter from Sheikh S, informing him that the wife wished to end the marriage.
There is evidence that the wife returned to Australia on 11th November 2008 without informing the husband, let alone resuming cohabitation with him.
The husband’s evidence that he telephoned her in Lebanon on his mobile telephone in December 2008 cannot be believed. The wife was back in Australia by then. In cross-examination, the husband contradicted his earlier evidence by saying that he only left a message for her. Later, he conceded that he might have got the date wrong.
It seems extraordinary that the wife had been out of Australia for some months and the husband never contacted her to ask when she was planning to return.
The evidence of Ms E that the wife telephoned her from Lebanon in late October 2008 and asked for a place to stay in Australia goes a long way towards establishing the circumstances of the parties’ separation. Whilst her evidence of the conversation with the wife is hearsay, it was not challenged by the husband.
Ms E’s evidence is that the wife had attempted to commence divorce proceedings in Lebanon some time prior to late October 2008. The husband corroborates the fact that the wife commenced court proceedings in Lebanon at some time in 2008, but his failure to have the court documents, if that is what they are, translated from Arabic to English does not allow the Court to find when those proceedings were commenced.
It is the evidence of the wife’s witness, Ms E, that provides the only evidence of when one party communicated to the other that the marriage was at an end. She deposed in her affidavit:
[Ms Shible] understood clearly that her husband doesn’t want her anymore in July 2008 when the husband said that she can stay in Lebanon for ever without divorce and asked her not come back to Australia.[21]
[21] Affidavit of Ms E sworn or affirmed 10.11.2009 at paragraph 2
Ms E was not challenged in cross-examination on that evidence. Having heard her evidence and observed her demeanour in the witness box I am satisfied that she is a witness of truth and I prefer her evidence on this point to the evidence of either the wife or the husband.
Whilst the parties separated physically on 18th June 2008, the only evidence of an intention to separate and communication of that intention is that of Ms E, namely that the husband told the wife in July 2008 that the marriage was over.
As the Application for Divorce was filed on 26th June 2009, I am not satisfied that there is evidence 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 filing of the application for the divorce order.
It follows that the ground that the marriage has broken down irretrievably, which is required by s.48(1) of the Family Law Act, has not been established.
Because the ground has not been established, the court has no power to grant the application for a divorce order. The application will be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 20 April 2010