Spence & Spence
[2022] FedCFamC2F 802
•21 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spence & Spence [2022] FedCFamC2F 802
File number(s): MLC 10503 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 21 June 2022 Catchwords: FAMILY LAW – contested divorce – application for divorce filed by Husband in Australia – whether marriage has irretrievably broken down – whether separation has occurred – held separation occurred, and parties separated not less than 12 months preceding the filing for divorce – application granted. Legislation: Family Law Act 1975 (Cth) ss 39, 48, 49, 55, 55A
Marriage Act 1961 (Cth)
Division: Division 2 Family Law Number of paragraphs: 35 Date of last submission/s: 2 June 2022 Date of hearing: 2 June 2022 Place: Melbourne Advocate for the Applicant: Mr Franklin Solicitor for the Applicant: Nevett Wilkinson Frawley The Respondent: Appeared in person ORDERS
MLC 10503 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SPENCE
Applicant
AND: MS SPENCE
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
21 JUNE 2022
THE COURT ORDERS THAT:
1.Upon the application of Mr Spence for a divorce order in relation to the marriage between Mr Spence and Ms Spence which was solemnised in 2015, THE COURT FINDS THAT:
(a)the marriage is proved;
(b)the Husband was at all material times an Australian citizen and domiciled in Australia; and
(c)the ground for the Application for Divorce order, namely that the marriage has broken down irretrievably is proved.
2.A divorce order be made, such divorce to take effect and thereby terminate the marriage on the 23 July 2022.
3.The Wife’s response to Divorce filed on 17 October 2021 be dismissed
THE COURT DECLARES THAT:
4.There are no children of the marriage to whom section 55A(3) of the Family Law Act 1975 (Cth) applies.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Spence & Spence has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application by the Husband for an order for divorce. The application was sealed by the Court on 23 September 2021. The application is opposed by the Wife.
For the reasons that follow, the Court will make the order for divorce as sought by the Husband.
INTRODUCTION
The Husband relies on the application for divorce, the contents contained within the application and the attachments to it, as well as a document he tendered during the hearing. The Wife relies on her response and an affidavit sworn by her on 3 February 2022. After the hearing had concluded, the Wife sent various documents to my chambers that she sought to rely on. I have not had regard to those documents. No leave was granted to the Wife to submit documents after the hearing. The Husband had no opportunity to consider those documents and respond to them.
The Husband was born in Australia in 1991. He is an Australian citizen, lives in Australia and has done so for 12 months immediately before filing the application for divorce.
The Wife was born in China in 1988. She lives in Australia.
The parties were married in 2015 at the Location B in Melbourne.
The Husband contends that separation occurred on 30 December 2019. The Wife says that physical separation occurred following her return from a trip to visit family in February 2020. She contends inter alia, that the parties are not separated and remain financially ‘bonded’, that the parties continue to communicate, that she has told family and friends they remain married and that the Husband appears as her spouse on his tax returns.
PRINCIPLES
The principles pertinent to this application are as follows.
Section 39 of the Family Law Act 1975 (Cth) (‘Act’) sets out the jurisdiction of the Court with respect to matrimonial causes. Section 39(3) of the Act is of particular relevance. It provides, inter alia, that proceedings for divorce may be instituted under the Act if, at the date on which the application for the order is filed in the Court, either party to the marriage is an Australian citizen, is domiciled in Australia or is ordinarily a resident in Australia and has been so resident for one year immediately preceding that date.
Part VI of the Act deals with divorce and nullity of marriage. Section 48 of the Act relevantly provides:
48 Divorce
(1) 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.
(2)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 the filing of the application for the divorce order.
(3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Section 49 of the Act deals with the meaning of ‘separation’. Subsection (1) provides that the parties to a marriage may be held to have separated notwithstanding that cohabitation was brought to an end by the action or conduct of one only of the parties. Subsection (2) provides that 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 55(1) of the Act provides subject to that section, a divorce order takes effect at the expiration of a period of one month from the making of the order, or one month from the making of an order under section 55A of the Act.
Section 55A deals with a divorce order where children are concerned. Section 55A(1) of the Act provides that a divorce order in relation to a marriage does not take effect unless the Court has, by order, declared either that it is satisfied there are no children of the marriage who have not attained 18 years of age; or that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that proper arrangements in all circumstances have been made for the care, welfare and development of the children, or 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.
In summary, in order to grant the divorce, the Court must be satisfied that the Court has jurisdiction to make the order, that the marriage has been proved, that the marriage has broken down irretrievably and consider whether there are children of the marriage (or not) as contemplated by section 55A of the Act.
IS THERE JURISDICTION TO MAKE THE ORDER?
The evidence before the Court from the Husband is that he is an Australian citizen who lives in Australia. The Wife did not challenge that evidence or the issue of jurisdiction generally. There is jurisdiction to make the order.
IS THE MARRIAGE PROVED?
The Husband annexed to the application for divorce, a copy of the marriage certificate. The certificate records the marriage being solemnised under the Marriage Act 1961 (Cth) in 2015. The certificate also records the date of registration of the marriage as being in 2015. The Wife did not contend the parties were not married. The marriage is proved.
HAS THE MARRIAGE BROKEN DOWN IRRETRIVEABLY?
The Wife contends that the parties are not separated. Consideration of that contention commences with an examination of the evidence of the Wife.
While the Wife contends that separation has not occurred, she makes what can only be described as a number of significant concessions or admissions. She agrees that when she returned from an overseas trip to China in February 2020, the Husband had moved his belongings out of the marital home. She agrees that when she returned from the overseas trip, the Husband told her that ‘he didn’t want to live at home and didn’t want to continue [the] relationship’. She also agrees that the parties have not lived together since she returned from overseas in February 2020.
There is a further, significant, difficulty that the Wife confronts. She has stated prior to the present proceeding that the parties separated on 4 February 2020. She communicated this to the Husband in an email on 15 March 2020 when she stated ‘With regards to the separation date, my understanding would be after I came back from China and when we first met on 4 February 2020’. This communication appears to have been sent in the course of the parties preparing an application for property orders from the Family Court. Perhaps more significantly, the Wife along with the Husband then completed and filed a joint application for consent orders in relation to property matters in the Family Court of Australia on 31 March 2020. Item 8 of the application required the parties to state the date on which they ‘finally’ separated. In answer to that question, the Wife stated that separation occurred around 4 – 5 February 2020. Under cross examination, the Wife agreed she signed the document. She also agreed she signed the ‘Statement of Truth’ attesting to the truth of the contents of the application. I also observe that a notation to the consent order records that ‘the parties intend that these Orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them’.
During cross examination in the present matter, the Wife stated that she did not agree that the separation date was 4 February 2020, notwithstanding what is contained in the documents to which I have referred. She contended, instead that 4 February 2020 was the date she returned from China. I do not accept the Wife’s explanation. It was given most unconvincingly. While the Wife speaks with a noticeable accent, she clearly understands English. She is educated, and according to the Application for Consent Orders is an accountant.
It is concerning that during the hearing before me, the Wife sought to distance herself from previous statements she had made, including in documents filed in the Family Court. The statement made by the Wife in the Application for Consent Orders was certified by the Wife as being true. The Wife was giving evidence in the witness box before me at the time she sought to distance herself from her earlier statements that 4 February 2020 was the separation date. Clearly, one of the statements is not correct and in my view, it is the statement the Wife made during the hearing in the witness box. That fact causes me to have serious concerns about both the truthfulness of the evidence given by the Wife in the hearing before me and her credibility overall.
I also have concerns about the Wife’s characterisation or understanding of certain events. The Wife was shown an email from the Husband dated 23 November 2020. In the email, the Husband expresses, among other things, his pain at what occurred during the relationship. In the email, he says to the Wife, among other things, that ‘you only want to see me and chat for your own selfish needs’ and ‘the last thing I need is a visit and a chat about my exercise. Now is not the time to catch up nor a time to chat. I will need years to heal my wounds but one day we will chat, just one day when… Thanks Mr Spence. It is plain from reading that email in its entirety that the Husband does not wish to see the Wife, much less reconcile with her. Yet in the witness box, the Wife maintained that the email is evidence of the Husband wishing to see her.
It is very clear to me having reviewed the evidence and watched the Wife in the hearing before me that she still loves the Husband and refuses to accept that the marriage is over. I have a great deal of sympathy for the pain that the Wife is obviously going through. It is apparent, however, that that pain has affected the Wife’s ability to see things clearly, and to accept the truth that now confronts her.
In one email to the Husband dated 2 October 2021, the Wife appears to be trying to engage with the Husband. She states clearly in that email that ‘I’ll never agree to the application’ (being the application for divorce). It is evident from what I have seen that the Wife has carried through with that statement in the application before me and is seeking to delay or protract the divorce proceedings.
The Wife otherwise advanced a number of other reasons as to why separation did not occur. The most significant of these was that the parties were ‘financially bonded’. Matters the wife pointed to in support of that contention were that the parties have joint bank accounts (including an account with Westpac ending in the number #...38) and loan accounts and that she has only just refinanced a loan account to her own name in accordance with the consent property orders. The Wife also contended that over the last two years, the Husband has transferred funds in and out of the joint accounts on multiple occasions; and that she has continued to use the Husband’s credit card until very recently.
There are a number of observations to be made about the contentions above, in particular the assertions that the parties are financially bonded. First, while the Wife advanced these contentions, no corroborating evidence (for example, in the form of complete bank account numbers, bank statements or transaction records) was tendered before the Court. The Court was left to grapple with general assertions about amounts transacted, without supporting documentary evidence, from a person whose credibility is seriously in issue and whose motives are questionable.
Second, the parties entered into consent property orders to finalise the property matters between them. Orders were made by Registrar George on 3 July 2020. Those orders provided that the Wife had until 1 June 2021 to discharge the mortgage over a property located at Suburb C. Correspondence attached to the Wife’s affidavit discloses that the Wife failed to comply with the order made by Registrar George. The Husband threatened and subsequently commenced proceedings to enforce the orders. It appears that following the commencement of those proceedings, the parties at least partially resolved the matter on the basis that the Husband would retain $46,000 of the parties funds and the initial hearing in relation to the property enforcement proceedings would be adjourned. The email records show that the Wife accepted the Husband’s offer that he, among other things, retain $46,000.
When the above matters are considered, I do not accept the Wife’s submission that the Husband has continually taken funds from joint accounts such that it amounts to evidence that the parties have remained in a relationship. The Wife has produced no corroborating documentary evidence to support the assertion she makes in her affidavit. What documentary evidence there is before me supports the position of the Husband that while he did retain or take funds, those funds were retained as part of an agreement between the parties to resolve the enforcement proceedings that he commenced.
The Wife also asserted that she has continued to use the Husband’s credit card until recently. The Husband confirmed this under cross examination, but stated that the Wife always repaid the amounts incurred herself. Quite why this arrangement has continued until recently is not clear to me. Arguably this may be a factor pointing toward some type of continuing financial relationship. On the other hand, the evidence is the Wife always paid the amounts she incurred herself, and the debts incurred by the Wife did not become the joint debts of the parties.
In assessing the Wife’s contention as to whether the parties have remained financially bonded, I have considered not only the specific matters to which the Wife makes reference, but all of the evidence and events in context. It is clear the parties agreed to resolve property matters between them and separate their financial arrangements. So much may be seen from the terms of the orders made by Registrar George. After those orders were made, the evidence points towards the parties seeking to give effect to the orders and to disentangle their finances. There were transfers of funds between them, as I have noted above. The Wife did use the Husband’s credit card for a period. The weight of the evidence, however, considered in context, points to and is supportive of a conclusion that these parties were disentangling and separating their finances and financial affairs.
The other matters raised by the Wife can be dealt with quickly. Her tax returns for the 2020 and 2021 financial years do not advance a case that the parties have remained in a relationship. They are her tax returns and she has stated that the Husband is her spouse. It is not surprising she would say that given what I have noted about her attitude above and in any event, it is correct to say that they remained married at the time the returns were lodged. A similar observation can be made about the Wife’s statements that she has communicated to family and friends that she and the Husband remained married. These are her statements made in the context of her attitude I have described above, and it is correct to say they have remained married up to this point. The fact that there had been no discussions about separation between the parties prior to the Wife’s return from China is a matter of little significance in circumstances where the Husband had moved out of the home and where he told her on return from China that they were separated. Also, I give little weight to the Wife’s evidence that the parties have remained in contact. There has clearly been contact as evidenced in the emails which the Wife attaches to her affidavit. None of that material, however, supports a conclusion that the parties have reconciled or remained in a relationship after February 2020
In assessing this issue, the final matter to consider is the actual date of separation. The Husband says it is 30 December 2019, because as I understand him that is the day he moved out of the matrimonial home. The Wife, clearly, only found out about separation on her return on 4-5 February 2020. In my view, physical separation occurred on 30 December 2019, but final separation occurred on 4-5 February 2020 when the Wife returned and the Husband told her the marriage was over.
In my view, when the evidence is weighed, it is clear that the marriage between these parties has irretrievably broken down. Separation, in my view, occurred on 4 or 5 February 2020 when the Wife returned from China. The parties did not reconcile thereafter and there is no prospect of reconciliation occurring. That being the case, the parties have been separated for more than 12 months at the time the application for divorce was filed.
ARE THERE CHILDREN OF THE MARRIAGE?
In his application, the Husband deposes that there are no children of the marriage. The Wife does not contest that assertion. The Court is satisfied that there are not any children of the marriage. A declaration will issue to that effect.
CONCLUSION
The requirements of the Act have been satisfied. A divorce order will be issued along with the appropriate declarations.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 21 June 2022
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