Underwood & Price

[2008] FMCAfam 325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UNDERWOOD & PRICE [2008] FMCAfam 325

FAMILY LAW – Divorce – 12 months separation – meaning of living separately and apart – Family Law Act 1975 s.48.

GROUND FOR DIVORCE – Separation – marriage broken down irretrievably.

Family Law Act 1975, ss.48, 55

Main & Main (1949) 78 CLR 637
In the marriage of Franks (1976) FLC 90-032
Posner v Chan [2007] FMCA 394

Applicant: MR UNDERWOOD

Respondent: MS PRICE

File Number: MLC 13425 of 2007

Judgment of: Turner FM

Hearing date: 9 April 2008

Date of Last Submission: 9 April 2008

Delivered at: Melbourne

Delivered on: 9 April 2008

REPRESENTATION

Counsel for the Applicant: Mr D Brown SC together with Mr G Dixon

Solicitors for the Applicant: Glezer Lanteri & Associates

Counsel for the Respondent: Ms C Molyneux QC

Solicitors for the Respondent: Maria Barbayannis & Co

ORDERS

1. The Court grants a Certificate of Divorce to be effective on a date that the Court must now determine.

2. The Husband produce to the Chamber of Ms Molyneux by 10.00am on 10 April 2008 the Husband’s Will and the Husband’s Trust Deed and any amending documents.

3. The hearing is adjourned until 10.45am on 10 April 2008.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELOURNE

MLC13425/2007

MR UNDERWOOD

Applicant

And

MS PRICE

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The Court is satisfied that the Application for Divorce filed by the husband was served on the wife.

2. The Court finds the marriage proved – Certificate 1 February 2006.

3. The Court finds the husband is an Australian Citizen.

4. The Court finds the ground in s.48(1) of the Family Law Act 1975 (“the Act”) proved.  The marriage has broken down irretrievably.  The wife concedes that if the Court finds that the marriage has broken down irretrievably, the date of that breakdown is 3 April 2007.

5. By s.48(2) the ground is held to have been established if the Court is satisfied that the parties separated and lived separately and apart for a continuous period of not less than 12 months immediately proceeding the date of filing of the application for the divorce order (filed on 12 December 2007).

6. The Court finds that the parties separated in October 2005 and have lived separately and apart since at least that date.

7. In reaching that conclusion the Court relies on the application (paragraph 14) and affidavit of Ms U sworn 7 April 2008 (paragraph 4).

8. The Court rejects contentions that events since that time show that the parties have not lived separately and apart.  Although they have had frequent contact and association, they live separately and apart.  Having dinner together, being entertained as a couple, going to school functions and being intimate does not show that the parties are not living separately and apart.

9. There is nothing in Main & Main (1949) 78 CLR 637 to indicate that living in separate houses since October 2005 is not sufficient to satisfy s.48(2). At 641 the Court said that the two words “separately and apart” show that physical separation is necessary.

   “… Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for every long periods of time.  It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion has passed which has led to an interruption regarded by both as temporary.”

10. In the marriage of Franks (1976) FLC 90-032 Justice Marshall stated:

    “In my view it must be shown to the Court, in circumstances such as we have in this case, that there has been a conscious decision on the part of at least one of the parties to the marriage to bring the marriage to an end.  Clearly, in this case that has been established…”

11. Those statements apply equally to this matter.

12. The Court is satisfied that husband living separately from the wife since October 2005 shows a conscious decision by the husband to bring the marriage to an end and the wife was made aware of that circumstance.

13. As to Posner v Chan [2007] FMCA 394 the parties there continued to live under the same roof. That decision has no application here.

14. The Court is therefore satisfied that the parties have lived separately and apart since at least October 2005 – being no less than 12 months before 12 December 2007. 

15. As to section 48(3) – the Court is satisfied that there is no likelihood of cohabitation being resumed – Response to Divorce page 4:

    “The Applicant and I did not separate in October 2005 as alleged by him and although our marital relationship changed from the 3^rd of April 2007, I realised our marriage had finally ended in October 2007 when the husband of Ms N advised me of the affair between her and the Applicant.”

16. The Court is satisfied that there is one child of the marriage to whom the Act applies. K born in 1991 (16 years old).

    a)K lives with her mother.

    b)K is supported by the mother.

    c)K is in good health. (Application page 5).

17. The Court is satisfied that proper arrangements in all the circumstances have been made for K’s care, welfare and development.

18. The Court grants a Certificate of Divorce to be effective on a date that the Court must now determine.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: 

Date: 9 April 2008