T and N
[2002] FMCAfam 92
•4 April 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & N | [2002] FMCAfam 92 |
| FAMILY LAW – Divorce – service of documents – Federal Magistrates Court Rules 2001 – date of separation – separation under the one roof – Federal Magistrate Court Rules 2001 – application not identifying the court – documents bearing the heading of the wrong court – irregularity of service of application. |
| Applicant: | T L H T |
| Respondent: | B C N |
| File No: | ZP4178 of 2001 |
| Delivered on: | 4 April 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 27 March 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared in person |
| Solicitors for the Respondent: | Mr Quy, Karl Quy Lawyers DX 25084 Fairfield. |
ORDERS
The Application for Divorce filed by the wife on 4 December 2001 is dismissed.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP4178 of 2001
| T L H T |
Applicant
And
| B C N |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for a decree of dissolution of marriage. In her Application, filed on 4th December 2001, the wife claims that the parties separated on 3rd October 2000, although they have lived under the one roof since then. The husband has filed a Response, disputing that the parties separated on that date. He claims that the parties were not separated then, and were certainly not separated for a period of twelve months prior to the filing of the Application by the wife.
Background
The husband was born on 24th December 1949, in Vietnam. The wife was also born in Vietnam, on 25th December 1951. The wife is an Australian citizen, and has filed a copy of her certificate of citizenship. She states in her application that the husband is also an Australian citizen.
The parties met in Australia in 1983. They commenced cohabitation later that year. On 22nd June 1984 their first son was born. The parties were married on 9th October 1987. Their second son was born on 25th February 1988.
They purchased a home in the Sydney suburb of M P in about 1989, and they have both resided there ever since. The wife says that her mother came to Australia in 1991 and resided with the husband and wife until 1995. She says that she moved back in with her daughter and son in law in 1999.
Issues
The issues in this matter are:
(a)whether the wife can prove that she and the husband have been separated under the one roof; and
(b)if so, whether that separation commenced more than twelve months prior to the filing of the Application for Divorce.
Evidence
The wife has filed two affidavits. In the first, which is undated, but apparently filed on 29th November 2001, and bearing a stamp showing it to have been first received in the mail by the Registry on 9th October 2001, the wife says:
“I am writing this statement to confirm that my husband and I have been living separately even though we share the same house. We do not socialize together.”
The wife’s second affidavit was prepared for her by a solicitor, who did not appear for her in these proceedings. In that affidavit, sworn on the 20th February 2002, the wife claimed that she and the husband had suffered from matrimonial problems since 1996. The husband had commenced sleeping in a separate bedroom. She also claimed that she and the husband operated separate bank accounts, and she would buy groceries for her mother, the children and herself. She said, “The Respondent would pay for the house loan and he would buy his own personal items and clothing (although he would often eat with the children food prepared by me).”
The wife goes on to say that she and her husband continued to argue even though they had little contact. They have not socialised for a long time. She says, “I have confided in my mother and told her on 3 October, 2001 that I was going to file for a divorce. I no longer considered myself married. I had decided that enough was enough and I would file for a divorce.”
In paragraph 10 of her affidavit, the wife says, “I was told by a friend that I needed twelve (12) months separation before I filed for a divorce. In about November 2001 I attended personally at Parramatta Family Court and picked up the Divorce application.”
The wife has also filed two affidavits by her mother in support of her application. The first, dated 29th September 2001, says that “I…know that my daughter (the Applicant) unhappy married to her husband (the Respondent) a long time ago. They’re separated on the same roof since October 2000.”
The second affidavit, dated 20th February 2002, was prepared by the same solicitor. This affidavit states, in paragraph 4, “The Applicant would often confide in me and tell me of her marital problems, which were also quite evident to me.”
The wife’s mother goes on to say, in paragraph 5 of her affidavit, that “In early October 2000 the Applicant confided in me and told me that she was going to apply for a divorce. She no longer considered themselves married. By this time they were sleeping in separate bedrooms, the Respondent would go out by himself and buy his own clothes. They have not socialised for many years”. This affidavit bears a certificate by a Vietnamese-speaking solicitor to the effect that the solicitor translated the affidavit to the mother before she signed it. The mother’s first affidavit does not have a certificate of translation.
The husband filed an affidavit in which he claimed that, although he had started sleeping in a separate room, this was because of his asthma, which disturbed his wife’s sleep. He claimed that the parties continued to live as husband and wife, which included having sexual intercourse. He annexed several photographs, showing his wife and himself with the children and various family friends, taken in May and December 2001. The husband concedes that since September 2001 the parties have ceased living as husband and wife.
The husband also referred to the first affidavit of the wife’s mother. He says that he recognised the writing as that of the wife He claims that the mother is 85 years old and “does not write, speak or read English.”[i]
The husband also relied on an affidavit by one N T L. Mr L is the deponent to the affidavit of service of the application for divorce, filed by the wife. In this affidavit, sworn 20th February 2002, Mr L claims that he was present at the time of service of the application, but did not serve the document himself. He said that the wife actually attempted to serve the document, but the husband refused to take it.
Rather disturbingly, he makes the following comments:
“ I signed a form and wrote my address and the words “the person refused to accept them….
When I signed the paper, I understand that I was witnessing the fact that the Applicant served the papers upon the Respondent, and the Respondent did not accept the papers.
I did not sign the Affidavit in the presence of a Justice of the Peace around. When I looked at the document shown by Mr Quy[ii] I see the name DLH who signed the affidavit on 10th December 2001. I signed the form on 9th December 2001. I did not sign in the presence of Mr H.”
Mr L attended court and was available to give oral evidence. The wife elected not to cross-examine him. There is no reason why the affidavit of Mr L should not be given significant weight.
As a result of Mr L’s unchallenged affidavit evidence, I am satisfied that the affidavit of service should not be given any weight at all. In the circumstances, service is not an issue, as the husband attended and has filed material in reply, although a Response as such does not appear on the Court file.
I am not satisfied that the first affidavit of the wife’s mother should be given any weight at all. The husband has deposed to the fact that the mother does not speak, read or write English, and he was not cross-examined on that point. The wife’s mother did give evidence, and she required the services of a Vietnamese interpreter. There is no certificate on the mother’s first affidavit that it was read and translated to her.
It should be made clear that no suspicion attaches to either of the affidavits prepared for her by the solicitors.
Principles to be applied
As I mentioned earlier, the issues in this case are whether the wife can prove that she and the husband are separated whilst they have been living under the same roof and, if so, when that separation commenced.
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 the separation is a matter of fact.
The importance of establishing a separation of at least 12 months is made clear by section 48 of the Family Law Act 1975, the relevant parts of which are:
(1)[Ground] An application under this Act for a decree of dissolution of a marriage shall be based on the ground that the marriage has broken down irretrievably
(2)[Establishment of ground] Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage 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 dissolution of marriage.”
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 for no less than twelve months. The Court has no power to shorten the time, or back-date the period.
Separation, including separation under one roof, is covered in section 49 of the Act, which says:
“(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.
(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 either 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 section 48(2). Parties to a marriage may regard themselves as being married even though they are living apart for a period of time. Members of the Australian Defence Force on an operational deployment are an obvious example.
The authorities make it clear that there are three elements of separation:
(a)an intention to separate;
(b)action upon that determination; and
(c)communication of that intention to the other party.
In Todd and Todd (No. 2) (1976) FLC 90-008, Watson J said:
“Separation can only occur in the sense used by the Act where one or both of the spouses form 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.”[iii]
The Full Court of the Family Court of Australia has made it clear that there is also a need to communicate the intention to separate to the other party. That communication can be spoken or unspoken (Falk and Falk (1977) FLC 90-247).
Where it is claimed that parties have separated whilst still living under one roof, there is often a difficulty in establishing when the separation commenced, or even that it has occurred at all. It is usually not sufficient to provide a list of household tasks done or not done by either of the parties. In Pavey and Pavey, (1976) FLC 90-051, the Full Court held that it “is not possible to apply some mathematical formula to these activities and determine whether a ‘separation’ has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.”[iv]
The law is unclear about the extent to which the breakdown of the marital relationship must be communicated to other people. In the case of Fenech and Fenech (1976) FLC 90-035, the parties lived in a strained relationship under the same roof but their separation was not apparent to outsiders. This was held not to be sufficient.
It is usually the case that some corroboration is required where the parties to a marriage assert that their marriage has broken down but they continue to live under the same roof. The Full Court said in Pavey and Pavey: “without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation.”[v]
Where one party to the marriage continues to deny that a separation has taken place, it is particularly important that there should be some corroboration.
Conclusions
The wife was cross-examined. She made it clear that she was most anxious to obtain a decree dissolving the marriage, although she was still living in the same house as the husband. She certainly did not want to adjourn the matter to another day. She said to the husband’s solicitor, when he was seeking to cross-examine her about some family photographs annexed to the husband’s affidavit, “I told him I don’t want to live with him any more. Why do you ask all these questions?”
The reason for the wife’s desire for a divorce as soon as possible became clear in an answer she gave to the Bench. She said that she had not commenced property proceedings yet, but that she had
“a legal representative who advises me that the property application can start after the divorce is finalised”.
The wife’s explanation for posing for photographs as part of a family was that she did not want other people to know that the marriage was in difficulties. She certainly did not want her children to know the situation.
The wife’s mother was cross-examined, with the aid of the interpreter. Her evidence was vague, to say the least. Whilst it appears that she resides with the husband and wife at M P, she was under the impression she lived at M. She said she remembered going to the solicitor’s office to swear the second affidavit, but she could not remember what was in the document. She said that the parties had not slept together for some time, and that they had not been out together for two years. It was put to her that there were photographs showing the parties together at a wedding in May 2001. Her reply to that was
“I just say a long time. I can’t remember.”The evidence of the wife’s mother does not, to my mind, go anywhere near corroborating that the parties have lived separately under the one roof for at least 12 months prior to the filing of the application. At best, her evidence confirms that the parties have been unhappily married for some time.
There is no doubt, too, that the wife considers that she has been unhappily married for some time, and that the relationship has been a strained one for a considerable time. This, of itself, is not sufficient to establish that parties are separated. There is no corroboration of the date of separation which the wife claims, namely the 3rd October 2000, and no explanation as to how she can identify that date. She may have told the husband that she intended to apply for a divorce in October 2000, but her own affidavit refers to this communication taking place in 2001. Certainly, it is the husband’s evidence that he did not believe that the marriage was over until September 2001.
There is no evidence by the wife that there was any noticeable change in the relationship of the parties following the 3rd October 2001. Against this, the husband’s evidence, which was not shaken in cross-examination, is that from September 2001 the parties stopped shopping together, they no longer socialised, and they no longer cooked for each other or ate meals together. They last had sexual intercourse on 20th August 2001 after the husband had returned from a visit to Vietnam.
The wife’s documents show that she had completed affidavits about the separation on or before 29th September 2001. This is an act that shows an intention to end the marital relationship.
I am not satisfied that the wife has proved that she and the husband separated under the same roof on 3rd October 2000. The evidence all points to a breakdown of the matrimonial relationship commencing in the month of September 2001. The wife appears to be under the erroneous impression that she cannot commence property proceedings until the divorce proceedings have been finalised. Otherwise, it is hard to understand why she should be so anxious for a speedy divorce, when she and the husband are still living in the same house. What would change? As the wife has not proved a separation under the one roof going back to a time not less than 12 months prior to the date the application was filed, the application must be dismissed.
I should comment at this stage about the unsatisfactory nature of the pleadings filed in this matter, although this does not affect the outcome of the case. The wife’s Application for Divorce does not show the name of any court at all. It should not have been accepted for filing. It is not sufficient to stamp the address of the court on the document but to leave the name of the court blank. The Court would require evidence that the respondent had been properly advised which court was hearing the application before being satisfied that a decree nisi should be pronounced on an undefended basis.
It is also regrettable that the affidavits prepared by the solicitors for the wife and the husband should carry the heading “Family Court of Australia”. The wife herself may be excused for some confusion between the Family Court and the Federal Magistrates Court, but the solicitors who prepared documents for the parties have no such excuse. I know of no other court in Australia that accepts documents headed with the name of another court, and I see no reason why the Federal Magistrates Court should do so. Practitioners should be advised that Rule 2.04(3) of the Federal Magistrates Court Rules 2001 specifically provides that a document to be filed in a proceeding must be headed “FEDERAL MAGISTRATES COURT OF AUSTRALIA At” and giving the name of the relevant Registry.
As I am not satisfied that the wife has proved that the parties were separated for not less than twelve months before the Application for Divorce was filed on 4th December 2001, the Application is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 4 April 2002
[i] Husband’s affidavit, sworn 20th February 2002, paragraph 14
[ii] the husband’s solicitor
[iii] at 75,079
[iv] at 75,214
[v] at 75,214
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