TEMPLEMAN & LINDEN

[2015] FamCA 528

FAMILY COURT OF AUSTRALIA

TEMPLEMAN & LINDEN [2015] FamCA 528

FAMILY LAW – DIVORCE – Whether the Court is satisfied that the parties have separated pursuant to s 48(2) – Whether the Court is satisfied that the intention of the parties to separate has been communicated – Where the parties have lived separately and apart for over four and a half years – Where the parties have maintained contact and spent time with one another during that period –Where the husband has previously filed an application for divorce – Divorce order granted.

Family Law Act 1975 (Cth) ss 39, 48(2)

Clarke & Clarke (1986) FLC 91-778
Pavey & Pavey (1976) FLC 90-051
Todd & Todd (No. 2) (1976) FLC 90-008

APPLICANT: Mr Templeman

RESPONDENT:

Ms Templeman

(aka Ms Linden)

FILE NUMBER: ADC 4324 of 2012

DATE DELIVERED: 30 June 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: McClelland J

HEARING DATE: 30 June 2015

REPRESENTATION

FOR THE APPLICANT: In Person

FOR THE RESPONDENT: In Person

The Court orders that

1. The wife’s Response to Divorce Application filed 12 June 2015 is dismissed.

2. A divorce order be made, that order to take effect one month from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Templeman & Linden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4324 of 2012

Mr Templeman

Applicant

And

Ms Templeman (aka Ms Linden)

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for divorce filed by Mr Templeman (“the husband”) on 31 March 2015.  In his application, the applicant claims that he is an Australian citizen and that he is a permanent resident of Australia.  That has not been challenged.

2. The husband claims that he separated from the wife Ms Templeman, maiden name “Linden”, (“the wife”) on 23 September 2010.  I find that separation did so occur.  The husband claims, and I find, that he did not live together in the same house with the wife since that date.

3. The wife opposes the orders for divorce on the basis that she alleges the papers were not served properly and that the parties have not been separated for a period of twelve months before the application was made by the husband. 

4. There are no children of the marriage. 

5. The wife appeared in these proceedings despite her complaints regarding service.

6. The fundamental issue in these proceedings is whether the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of filing the application for divorce; see s 48(2) of the Family Law Act 1975 (Cth) (“the Act”). The application was filed on 31 March 2015.

7. In his affidavit filed on 25 June 2015, the husband attested that he and the wife married in 2004 and that the marriage has been “characterised by violence, multiple police attendances, restraining orders and allegations of violence and adultery.” 

8. I have found it unnecessary to address those issues of alleged violence. 

9. The husband further asserted that, within one month of the marriage, the police were required to attend the marital home.  Again, I have found it unnecessary to address or determine that issue. 

10. The husband asserted that, in the ten years of marriage, he cohabited with the wife for less than one and a half years due to factors including violence.  The period I am interested in for the purpose of this application is the twelve month period prior to 31 March 2015.

11. The husband asserted that he and the wife have lived independently since September 2010 and that he has not attended, nor has the wife attended, birthday parties, Easter, sporting or school events, church, Mother or Father’s Days. There has been no financial support, no shared resources, no birthday or Christmas presents, and they have never celebrated a marriage anniversary, nor did the husband attend the wife’s mother’s funeral in 2014 or her uncle’s funeral in 2015.  The wife accepted that the husband did not attend either of those funerals, but said that there was a closer engagement between their respective lives than stated by the husband.

12. While the husband acknowledged that he had maintained contact with the wife during the period since 23 September 2010, such contact he said had not been in the nature of that which would normally occur between a husband and a wife, but rather had been on a “friendship/religious or obligation basis”.

13. The husband has “been VERY clear that [he] would never live with [the wife] again, nor would [he] remain in a marriage relationship with her…” (Husband’s affidavit filed 25 June 2015, paragraph 21).  The husband asserted that he had been diligent in constantly setting this boundary with the wife. 

14. The husband previously commenced an application for divorce in 2012.  The wife denied that she was served with that application, but said that she became aware of it towards the end of 2012, when that action was discontinued.

15. The husband asserted that at all times the wife was aware that he did not consider himself to be married to her.  On the other hand, the wife asserted that they had been separated only since 10 March 2015. The wife claimed that there is regular contact between herself and the husband and, indeed, claims that there was sexual intimacy between the two as recently as 10 March 2015.

16. The husband gave his address as B Street, Suburb C in the State of South Australia and the wife gave her address as D Street, Suburb E in the State of South Australia.  The wife could not recall under cross-examination from the husband as to when she moved into that residence at D Street, Suburb E.  I find the wife’s absence of recall in respect of that matter a little difficult to understand.  Further, the wife, under cross-examination, could not recall when she last stayed at the husband’s residence at B Street, Suburb C.  However, Ms F, who was called to give evidence on behalf of the wife, gave evidence to the effect that she has known the wife for a period of four to five years and, during that period, the wife has not resided at B Street, Suburb C.

17. Each party made allegations regarding the mental health of the other, as well as inappropriate conduct engaged in by the other.  I have found it unnecessary to address those issues.  The approach I have taken is to consider whether, even if the wife’s evidence is accepted in totality, it establishes that the parties have not lived separately and apart for a continuous period of not less than twelve months immediately prior to 31 March 2015.

18. I should add that, in addition to her affidavit affirmed on 10 June 2015, the wife also tendered four exhibits. One exhibit related to the purchase of a motorcycle.  I do not consider that evidence to be relevant to the proceedings.  The wife also tendered a document which is an account for the annual storage fee for sperm originally provided for IVF purposes, which she acknowledges was taken from the husband in 2012.  I do not consider that account casts any light on the issue I have to determine.  The wife also tendered a copy of a life insurance policy taken out on the husband in January 2015.  The husband denied that it was with his consent.  Again, I do not consider, even if it was with his consent, that it casts light on the issue I have to determine.

19. The wife also tendered a receipt of an anniversary present for an item which she says was an anniversary present given to her in November 2014.  I do not consider that the purchase of an anniversary present is determinative of the issues that I am required to determine, namely, whether there was a period of twelve months separation prior to 31 March 2015.

20. There was also tendered a redirection of mail authority dated 12 May 2015.  The evidence of the husband was to the effect that he had made a request for redirection to occur at a much earlier date, but again, even if the wife’s evidence is accepted, I do not consider that is determinative of the issue that I am required to resolve.

21. In summary, the wife’s affidavit stated:

    ·That on 13 November 2014 the husband bought her a bracelet for their wedding anniversary and that they had had a dinner at a café in that evening. 

    ·That the parties had Christmas lunch in 2014 with the husband’s two sons and then tea with her two sons. 

    ·That she had regular barbecues with the husband in spring and all during the summer of 2014 when she also cooked.

    ·That she went with the husband to G Town for a day trip and had lunch in a local bakery. 

    ·That she and the husband regularly had fish and chips at Suburb H through spring and summer of 2014. 

    ·That she and the husband had trips to Suburb H on 22 February 2015 and 28 February 2015. 

    ·That she and the husband went every week to tea at a cafe including on 5 March 2015 at which time she said the husband bought her a present, being a beach bag with Natio products in it. The wife also stated that they went to the cafe for tea on 8 March 2015.

    ·That the husband mows her lawn regularly.

    ·That she regularly gives the husband massages to help him with insomnia.

    ·That she regularly cooked meals for the husband and his sons (being sons of a previous marriage).

    ·That the husband purchased a box of vegetables once a fortnight to use in her cooking.

    ·That she and the husband had a regular date every Wednesday for the last year and a half.

    ·That on 5 March 2015 she received a text from the husband for her birthday, saying, “Happy birthday, you.  You are a really special and unique person and I love you.”

    ·That the last text which the wife received from the husband was on 25 March 2015 which said, “Hi thank you.”

22. The wife attached to her affidavit a number of photos of the husband which she asserted corroborated the information contained in her affidavit.

The Law

1. The Court’s jurisdiction to make an order for divorce is found in s 39 of the Act. That section relevantly provides that proceedings for a divorce order may be instituted if either party to the marriage is an Australian citizen, is domicile in Australia or is ordinarily resident in Australia and has been so for a year immediately preceding that date. There has been no challenge to the assertion that the husband is an Australian citizen and has been so resident, and, accordingly, I find that the Court has jurisdiction to consider this application for divorce.

2. Section 48(1) provides that:

   An application under [the Family Law Act] for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

3. Section 48(2) provides that the irretrievable breakdown 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 twelve months immediately preceding the date of the filing of the application for divorce (in this case, 31 March 2015).

4. The authorities make it clear that there are three elements to consider in determining whether there has been a separation.  Those are:

   a)an intention to separate;

   b)acting upon that determination; and

   c)communication of that intention to the other party. 

5. The husband asserted that on a number of occasions he made the intention to separate clear by words and by actions to the wife and, as I have indicated, in 2012 the husband commenced proceedings for a divorce which the wife became aware of at least in late 2012.

6. In the case of Todd & Todd (No. 2) (1976) FLC 90-008, Watson J referred to the meaning of “separation” and said that separation occurs 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. Watson J also said that what comprises a marital relationship for each couple will vary. He said 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 in public and private relationships may be relevant.

7. It is clear that the issue as to whether there has been a separation will be a question of fact to be determined according to the circumstances of each case (Price & Underwood (2008) 29 Fam LR 614). In Clarke & Clarke (1986) FLC 91-778, Fogarty and Nygh JJ said that cessation of cohabitation is prima facie an indication of severance of the marital relationship, but their Honours stressed the importance of both physical separation and severance of the marital relationship. In that respect, communication of the intention to separate can be communicated whether it is spoken or unspoken.

Consideration

1. I find that intention to separate has been communicated to the wife by word and by action. Specifically, I find that it was communicated in September 2010 when the husband asked the wife to leave the house and on several occasions since that time, but most specifically by way of filing of an application for divorce in 2012.

2. In Pavey & Pavey (1976) FLC 90-051, the Full Court stated that in determining whether separation had occurred, it was useful to examine and contrast the state of the marital relationship before and after the alleged separation, and certainly it appears, and I accept, that the wife did not reside in the same home as the husband in the period after September 2010. In other words, it is clear on the evidence that before September 2010 the parties did live together. As I have indicated, I have found that since 10 September 2010 they have lived apart.

3. Again, even accepting the evidence of the wife that the parties have, since September 2010, continued to be in contact with each other and to spend time in the social context together, including by having a “weekly date day” and even, from time to time, having sexual relations does not, on the evidence before me, lead to the conclusion that the parties have been other than separated since September 2010.

4. I find that, in the period post-September 2010, there was no financial dependence or interdependence or any arrangement for financial support between the husband and wife.

5. Aside from an ambiguous issue in respect to the acquisition of a motorbike, there was no ownership, use or joint acquisition of property.

6. There may have been regular or semi-regular meetings within the twelve month period prior to 31 March 2015, but they do not, in my view, reflect a mutual commitment to a shared married life.

7. While each of the husband and wife has children from previous relationships, they did not share the care and support for any children.

8. I have noted the reference to an account that was rendered for the storage of sperm provided in 2012.  I found some difficulty in accepting that evidence and did so despite the husband’s objection, but at its highest, it indicates that the sperm was donated in 2012 and there has been no suggestion that there was ongoing IVF treatment since that time.

Findings and orders

1. In conclusion, I make the following findings:

   a)I am satisfied that, while there were some questions as to service being effected appropriately, the wife has received service of the application and she appeared in these proceedings.

   b)I am satisfied that the parties married in 2004.

   c)I find that the husband is an Australian citizen who is ordinarily resident in Australia. 

   d)I find that the parties separated on 23 September 2010 and have lived separately and apart since that date.

   e)I find that the marriage has broken down irretrievably.

2. I therefore grant the order for divorce which will take effect in one month’s time.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 30 June 2015.

Associate: 

Date:  8 July 2015