Vaccaro & Vaccaro

[2025] FedCFamC2F 1034

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Vaccaro & Vaccaro [2025] FedCFamC2F 1034   

File number(s):

DGC 3564 of 2024

Judgment of:

JUDGE GLASS

Date of judgment:

18 June 2025

Catchwords:

FAMILY LAW – DIVORCE – where the Wife asserts reconciliation remains a reasonable possibility – where the Husband considers the marriage to be over – where the divorce is granted

Legislation:

 Family Law Act 1975 (Cth) s 43, 48

Cases cited:

 Gronow v Gronow (1979) 144 CLR 513

Todd and Todd (No. 2) (1976) FLC 90-008

Division:

Division 2 Family Law

Number of paragraphs:

15

Date of hearing:

18 June 2025

Place:

Dandenong

Solicitor for the Applicant:

Mr Hall of Hall Partners and Lawyers

The Respondent:

Self-represented litigant

ORDERS

DGC 3564 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR VACCARO

Applicant

AND:

MS VACCARO

Respondent

ORDER MADE BY:	JUDGE GLASS
DATE OF ORDER:	18 JUNE 2025

THE COURT FINDS:

1.The marriage is proved.

2.The parties were at all material times an Australian Citizen.

3.The ground for the application for a divorce order – namely that the marriage has broken down irretrievably – is proved.

THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:

4.The only child/ren of the marriage, as that expression is defined in section 55A(3), who has/have not attained the age of eighteen years is/are the child/ren:

X born in 2008

5.The Court by order declared that it was satisfied that the only child/children of the marriage who has/have not attained the age of 18 years is/are the child/children specified in the order and that proper arrangements in all the circumstances have been made for the care, welfare and development of the child/children.

THE COURT ORDERS:

6.A divorce order be made, such divorce order to take effect and thereby terminate the marriage in July 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE GLASS:

1. Mr Vaccaro and Ms Vaccaro married in 2006. It is common ground that they separated on 15 April 2023.

2. Mr Vaccaro applies for a Divorce. Ms Vaccaro opposes the application.

3. It falls to be determined pursuant to Part VI of the Family Law Act 1975 (Cth).

4. Section 48 of the Act prescribes that the ground for divorce is that the marriage has broken down irretrievably. The ground is established only if I am satisfied that the parties lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing of the application.[1]

   [1] Family Law Act 1975 (Cth), s 48(2).

5. Ms Vaccaro relies on subsection 48(3) which provides that “[A] divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed”.

6. In Todd & Todd (No 2), Justice Watson held that:

   The onus of establishing such a likelihood is on the spouse who asserts it. More than the likely resumption of some elements of the marital relationship must be shown – resumption of cohabitation must be shown to be likely – that is a bilateral intention on the part of both spouses to resume living together.[2]

   [2] Todd and Todd (No. 2) (1976) FLC 90-008 at 75,080.

7. Ms Vaccaro deposes that:

   ·she doesn’t believe there to be irreconcilable differences;

   ·there is nothing that is not reconcilable;

   ·marriage statements are binding;

   ·a marriage vow is a valid reason to reject a divorce application; and

   ·the law appears to prioritise Mr Vaccaro’s right to end the marriage over her right to remain committed to her marriage vows.

8. Mr Vaccaro deposes that:

   ·as at the date of separation he regarded the marriage as over; and

   ·he does not think it likely that he and Ms Vaccaro will live together again as a married couple.

9. Neither of the parties' evidence was challenged in cross-examination and I find no reason to reject it. The evidence does not support a conclusion that there is a reasonable likelihood of cohabitation being resumed. It falls far short of the bilateral intention posited by Justice Watson to be necessary. As indicated, Mr Vaccaro’s evidence to the contrary was unchallenged.

10. Ms Vaccaro submits that the Court is obliged to consider whether reconciliation remains a reasonable possibility. Certainly, that is true. But the fact that one party wishes to resume a relationship does not make it likely that it will be resumed. That it is more likely than the circumstance where neither party wants to resume the relationship is certainly true, but that does not make it reasonably likely as required by subsection 48(3). As Ms Vaccaro concedes, I cannot force Mr Vaccaro to be in a marriage with her.

11. Ms Vaccaro refers to the principles espoused by section 43 of the Act. Those principles expressly apply in the exercise of the Court’s jurisdiction and cannot override express legislative provisions to the contrary.

12. Ms Vaccaro referred at length in her submissions to a purported dissenting judgment from Justice Murphy in Gronow v Gronow.[3] That case had nothing to do with section 48 of the Act. Ms Vaccaro was unable to otherwise identify the case that she sought to rely on. I am unable to locate it.

    [3] Gronow v Gronow (1979) 144 CLR 513.

13. For those reasons, I find that the ground for divorce is established, and the prohibition contained in subsection 48(3) of the Act to be inapplicable.

14. I am satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the parties’ child who remains under the age of 18, X.

15. I accordingly make a divorce order which will become final one month from today.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge Glass.

Associate:

Dated:       18 June 2025