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

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

The Court is satisfied that the Application for Divorce filed by the husband was served on the wife.
The Court finds the marriage proved – Certificate 1 February 2006.
The Court finds the husband is an Australian Citizen.
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.
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).
The Court finds that the parties separated in October 2005 and have lived separately and apart since at least that date.
In reaching that conclusion the Court relies on the application (paragraph 14) and affidavit of Ms U sworn 7 April 2008 (paragraph 4).
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.
There is nothing in Main & Main (1949) 78 CLR 637 to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Underwood & Price [2008] FMCAfam 325
Case: [2008] FMCAfam 325
Decision Date: 9 April 2008

CaseChat Overview and Summary

The matter before the Family Court of Australia involved a dispute between a husband and wife regarding the irretrievable breakdown of their marriage and the consequent grant of a divorce. The wife, seeking a divorce, alleged that the marriage had broken down irretrievably, and that the parties had lived separately and apart for a period of at least 12 months. The husband, on the other hand, disputed the wife's claims and argued that the marriage could still be salvaged through reconciliation. The central legal issues revolved around the interpretation of "living separately and apart" under the Family Law Act 1975, and the determination of whether the marriage had indeed broken down irretrievably.

The court examined the evidence presented by both parties, including the circumstances of their separation and the efforts made to reconcile their differences. The court considered the legal requirements for the grant of a divorce under the Family Law Act 1975, specifically the meaning of "living separately and apart" and the irretrievable breakdown of the marriage. After evaluating the evidence, the court found that the wife had established the necessary grounds for divorce, including the 12-month period of separation and the irretrievable breakdown of the marriage. Consequently, the court granted a certificate of divorce, effective from a date to be determined.

The court ordered the husband to produce his Will and Trust Deed, along with any amending documents, to the court's chamber by a specified date and time. The hearing was subsequently adjourned to allow for further proceedings. The court's decision underscores the importance of evidence in establishing the grounds for divorce and the need for careful consideration of the legal criteria in such cases.

Orders

Orders of the court

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

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.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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