W and W
[2003] FMCAfam 82
•14 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2003] FMCAfam 82 |
| FAMILY LAW – Dissolution – whether separation – communication – parties living in separate residences – whether marriage is irretrievably broken down – relevance of receipt of Child Support and single parent allowance – alleged family violence. |
Family Law Act 1975, s.48(3)
Pavey & Pavey (1976) LR 11,358
Todd & Todd (No.2) (1976) 1 Fam LR 11,186
Falk & Falk (1977) 3 Fam LR 11,238
| Applicant Husband: | PW |
| Respondent Wife: | NUW |
| File No: | MLM 7577 of 2002 |
| Delivered on: | 14 March 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 14 March 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant Husband: | Mr R. Decker |
| Solicitors for the Applicant Husband: | Wimal and Associates |
| Counsel for the Respondent Wife: | Mr Allen |
| Solicitors for the Respondent Wife: | Women's Legal Service Victoria |
ORDERS
The application by the Applicant Husband on 29 August 2002 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 7577 of 2002
| PW |
Applicant Husband
And
| NUW |
Respondent Wife
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for divorce filed by the PW (the Applicant Husband) on 29 August 2002.
In the application for divorce the Applicant Husband asserts, and it is not in dispute, that he married the Respondent Wife on 17 March 1995. There are two children of the relationship, a child born 23 December 1996 and a child born on 31 December 2000. For the present purposes it is not necessary for me to refer in further detail to the children of the marriage.
The application for divorce by the Applicant Husband led to an amended response of NUW (the Respondent Wife) filed 21 February 2003.
Essentially it is asserted for and on behalf of the Applicant Husband, and set out in his application for divorce, that the parties separated in June 2000. The Respondent Wife denies that separation occurred in June 2000 and she states in her amended response:
“I was not aware of the Applicant husband's intention to separate prior to 29 August 2002 when he filed his Application for Divorce.”
In her amended response the Respondent Wife goes on to state that she did not regard the marriage as over in June 2000. She further states that she does not regard the marriage as over.
Between the date of separation and the date of the filing of divorce the Respondent Wife states that she and the Applicant Husband had resided at each other's residences together with the children on numerous occasions. She states she is unable to recall specific dates for each occasion.
In her response the Respondent Wife further claims that between the date of separation cited by the Applicant Husband, being June 2000, and the date the Applicant Husband filed the application for divorce:
“… the Applicant husband and I have lived as husband and wife. During this time, we have maintained separate residences, which we have shared from time to time. However, throughout I believe we have lived as husband and wife regardless of the maintenance of separate residences. This has been the nature of our married relationship since September 1998.”
I should add for the sake of completeness that, apart from opposing the application for a divorce and denying that separation occurred in June 2000, as asserted by the Applicant Husband, the Respondent Wife in the alternative has claimed that in any event pursuant to s.48(3) of the Family Law Act 1975 that the marriage has not irretrievably broken down and claims that there is, to use the language of the provision, ‘reasonable likelihood of cohabitation.’
In relation to that second aspect of the response, it seems clear to me that at the very best the Respondent Wife now confronted with an application for dissolution, which of itself, in my view, is clearly capable of evincing an intention and is conduct of a kind which would clearly demonstrate that the marriage has broken down, it seems to me when confronted with that document the Respondent Wife too would concede that at best there is only a possibility of cohabitation rather than there being a reasonable likelihood of cohabitation. I will return to that issue further in due course.
Both parties have given sworn evidence. The Respondent Wife has adopted an affidavit sworn by her on 21 February 2003. The Applicant Husband, in giving evidence adopted an affidavit affirmed by him on
7 March 2003. It is clear that there is very little room for agreement between the parties as to the date, if any, of separation and indeed, as indicated, whether or not the marriage could be said to be a marriage where there is no reasonable likelihood of cohabitation.
In considering the issue of whether or not there has been separation,
I have been referred by both Counsel to the relevant authorities. It is sufficient, in my view, for the present purposes to refer to the often-cited authority of the Full Court of the Family Court of Australia in the matter of Pavey v Pavey (1976) 1 Fam LR 11,358. That case, as noted by both Counsel, is an often-cited authority in relation to the issue of separation. It varied to some extent the consideration of that issue in the decision of the court in Todd v Todd No 2 (1976) 1 Fam LR 11,186. The Full Court in Pavey states at pages 11,361 and 11,362:
“In Todd’s Case it was said (9 ALR at 403): “In my view ‘separation’ means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). 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. What comprises the marital relationship for each couple will vary. 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.
…
We agree that “separation means more than physical separation” because “separation” is the event which is used to prove breakdown of the marriage. However, we do not accept the statement - “it involves the destruction of the martial relationship”. Just as Mr Bryant submitted that “repudiation” had the ring of fault about it, so “destruction has the same ring. In any case, what the Act speaks of is the breakdown of the marriage, so it is appropriate to use the word “breakdown” instead of the word destruction”. In practical terms, this may make no difference, but it is in keeping with the wording of the Act.
…
The constituent elements of the martial relations where referred to in the Todd’s Case in these words (9 ALR at 403): “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”.
To this general statement we wish to added but one phrase, ‘the nurture and support of the children of the marriage’.”
That passage that I have referred to clearly sets out two elements: intention and action. In addition to those two elements, it is clear on the authorities that there is a third requirement which may be implied. That is the element of communication. That concept was referred to by the Full Court of the Family Court in the matter of Falk v Falk (1977)
3 Fam LR 11,238. At 11,244 the court states:“Where one party only has formed the relevant attitude and intention, they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.”
It is clear, in my view, applying the authorities to which I have referred, and in particular Falk's case to which I have just referred, that there is no specific requirement for a clear and unambiguous verbal communication of one spouse's attitude and intention to the other. But it does, in my view, require communication expressed or implied either by action or word.
It is also clear that the party forming the attitude or intent should not deceive the other party, but nor should the other party rely on what is sometimes referred to as selective blindness or deafness.
In the present case it is noteworthy that neither party have produced corroborative evidence in relation to the issues that are currently before this court. Often it is the case where one party asserts that separation did not occur, corroboration is sought from other parties to describe the relationship on a day-to-day basis, at least publicly, of the parties. Conversely, there may be other evidence, even in circumstances where it is claimed separation occurred under one roof, to seek to establish that there has indeed been effective separation of the kind described by the Full Court in Pavey v Pavey. Regrettably in the present case the court does not have the benefit of independent corroborative evidence.
What the court does have, however, is evidence that in this matter the parties having been married on 17 March 1995 in S L had not joined together in Australia until the Respondent Wife migrated on
1 October 1995. The Applicant Husband had already arrived in Australia in April 1995. It is said that this was an arranged marriage in March 1995 and it is clear from that brief chronology that there had been little time spent by the parties together from the date of marriage prior to the date of the arrival of the Respondent Wife in Australia in October 1995.
It is noteworthy that the first of the two children was born
23 December 1996. It is also noteworthy and common ground that between October 1995 and April 1998 the parties lived together at various residences. It is common ground that on or about 6 April 1998 the Respondent Wife moved into a refuge. She asserts that she moved into that refuge as a result of domestic violence. The Applicant Husband denies that there was domestic violence, but does not deny that on 6 April 1998 the Respondent Wife had moved out of the house. He states that she had moved out of the house with her mother.
For the present purposes it is not necessary for me to resolve that difference as to the basis upon which or reason why the Respondent Wife moved, save to say that there does appear to at least be in the Respondent Wife's material an evidence of a number of references to alleged violence. At the very least I am able to draw a conclusion that by moving into a refuge, there was at the very least a perception by her of domestic violence.
In any event, it is clear that a separation of some kind occurred at that time. It is equally clear that in the same month, that is, April 1998, an application was made by the Applicant Husband for contact with the then only child. That matter, I accept, was the subject of consent orders made on 22 May 1998. It is not disputed between the parties that from the date of April 1998 the mother had applied for and continued to receive Centrelink payments as a sole parent. It is also common ground that by way of enforcement of child support the mother had continued and remains the recipient of child support payments which, I understand, are arranged through the Child Support Agency. That matter was relied upon as being a matter of some significance in submissions made for and on behalf of the Applicant Husband.
It is further common ground, however, in the chronology of events that the parties had during the period April to at least August or September continued to live separately and apart, culminating in indeed an alleged claim by the Respondent Wife against the Applicant Husband for compensation for alleged injuries said to have arisen out of alleged domestic violence. That claim, it is said, was withdrawn by the Respondent Wife in September 1998. She says, and this matter was not significantly challenged, that the Applicant Husband had stated that he wished to then reconcile and promises were made that he would no longer be violent.
I should say as a matter of fairness that the Applicant Husband in his affidavit says that he actually sought an intervention order against the Respondent Wife and indicated that he had done so because of what he refers to as harassment. He denies otherwise promising to the Respondent Wife that he would not be violent. The issue, however, which does not seem to be seriously contested, is that the parties did reconcile in a manner around August/September of 1998.
What follows thereafter is what can only described as a less than conventional relationship with the parties residing at different premises; the Respondent Wife at her W H refuge residence and the Applicant Husband at an apartment in F. That arrangement continued for some time. It appears to me on the material that during that period of time from what I describe as reconciliation in or about September 1998, whilst maintaining separate residences, the parties did conduct themselves in a manner which might well be regarded as a Husband/Wife relationship. Indeed had that not been the case, then the application before this court would no doubt have relied upon an earlier date of separation.
It is equally clear that the Respondent Wife asserts that during a period from March 1999 to October 1999 the previous contact and relationship had continued in the form that I have described. That matter has been significantly contested by the Applicant Husband. He states in his affidavit that between March 1999 and October 1999 he had no contact with the Respondent Wife. He claims he never stayed at her home, "nor did she stay at my home." The only contact, he asserts, with the Respondent Wife was when he collected his daughter.
That period of time on the Applicant Husband's evidence is obviously a significant period of time of absence, though not referred to as a significant period of separation in the application for divorce.
It is clear in the affidavit of the Applicant Husband that in or about October 1999 the Respondent Wife travelled to S L for a period of three months. It is clear from the Applicant Husband's affidavit material that between February 2000 and March 2000 the Respondent Wife again travelled to S L.
The Respondent Wife for her part confirms in evidence that she did indeed travel to S L in the periods referred to by the Applicant Husband. She states that having arrived in Australia in 1995 the trip in October 1999 was her first return trip to S L to see her family.
I accept her evidence in that regard.
It is not necessary for me to otherwise seek to reconcile the differences in evidence between the parties as to what may or may not have occurred between the months of March and October 1999 in any great detail, save to indicate that I prefer the evidence of the Respondent Wife in that regard as it seems more likely than not that there was contact of a kind far greater than what has been suggested by the Applicant Husband; that is, at least contact beyond what he describes as being no contact at all save for the collection of the daughter.
Nevertheless, what happens thereafter, in my view, is more significant. It is common ground that the parties in fact again reconciled in S L when the Applicant Husband travelled to S L to join his Respondent Wife. It is not disputed that the Applicant Husband returned to S L on 2 April 2000 and, as he states in his affidavit, attempted a reconciliation with the Respondent Wife.
It is clear, in my view, from the evidence of both witnesses and their affidavit material that a reconciliation did in fact occur. It is common ground that sexual relations occurred and as a consequence of those relations the second child of the marriage was conceived. I accept that the Applicant Husband returned on 6 May 2000 and that the Respondent Wife returned to Australia at the end of May 2000. It is further common ground the parties resided together after that time.
Up to that point this relationship has been somewhat unusual. There is ample evidence that on a number of occasions the parties had argued, had separated, had lived in separate residences and had otherwise conducted themselves in a manner which in conventional terms would not resemble what might be regarded in some circles as the ‘norm’ of a marital relationship.
What then occurs in June 2000 is significant. At that time there is no dispute that the Respondent Wife left the residence then shared with the Applicant Husband after an argument. There is a dispute about whether that argument also involved a degree of violence. Since that date the Applicant Husband claims there has not been a return to cohabitation together. It seems to me on the material that there has at the very least not been a return to the residence of the Applicant Husband by the Respondent Wife from June 2000.
It may be that there have been visits by each to the other residence, but it is difficult for me in the absence of corroborating material to find that there has been what might be described as a resumption of cohabitation.
What I do find, however, is that in June 2000 the separation that occurred on that date seems very little different to other separations that occurred on previous dates. There had been an argument, and a return to another residence. Thereafter there was certainly communication, communication of a kind not indicating that there had been final separation, but communication of a kind concerning the parties' day-to-day arrangements. There is certainly common ground that there was communication between the parties which at least involved information being given to the Applicant Husband that his Respondent Wife was expecting a second child. He claims that he overheard a conversation which informed him of that matter.
I am satisfied that he was in fact advised by the Respondent Wife that she was pregnant. I am not satisfied that she necessarily indicated the due date. I am further satisfied, however, that the Applicant Husband, for whatever reason, felt aggrieved by this news and, that in July 2000 when he discovered the news he then formed a view that to some extent the events that occurred in S L led to the pregnancy, and were contrived with an expectation that reconciliation was going to be complete by virtue of the fact that there was a second child expected.
He says in his affidavit when he found out that the Respondent Wife was pregnant that he was determined that there be no further reconciliation between us from then on.
From that affidavit material, by inference, he was not clear that there be no further reconciliation prior to that date. It would be inconsistent and illogical to say in an affidavit that the determination that there be no reconciliation from July onwards was formed when at the same time it is said in the application for divorce that separation had occurred in June 2000.
The Applicant Husband then formed the view, and I accept may well sincerely believed in July 2000 that there be no further reconciliation, but did not on the evidence before me communicate that view to the Respondent Wife.
I find further that he had not in fact communicated that view at any time prior to July 2000. But in any event, assuming and finding, as I have, that he had formed that view in July 2000 it was not communicated to the Respondent Wife.
Thereafter there has been a relationship which could not be regarded as necessarily satisfactory. However, I accept that there have been, at least since the birth of the second child, visits by the Applicant Husband, to the Respondent Wife at the hospital. I accept that there has been other conduct between the parties which may have at least led the Respondent Wife to believe that the relationship had continued.
I do accept that perhaps to some extent this is a case where the Respondent Wife until receiving the application for dissolution had held a belief that the marriage was not over. She continued to hold that belief, and it might be concluded, continued to hold it in a way which could possibly be characterised as wishing to close her eyes to the reality of the marital situation.
Given, however, the unusual nature of the relationship, given that there had been effectively, even on the Applicant Husband's evidence, significant separations, at the very least residence at separate addresses for a significant period of time during this short marriage, and given that there had been the resumption of sexual relations which I find occurred certainly prior to June 2000, it is not surprising that in those circumstances with this unusual relationship that the Respondent Wife might have continued to hold the view that the marriage was not over.
In a matter of this kind, in my view, the onus is on the Applicant Husband to establish that separation occurred on the date alleged in the application. In my view, that even on the Applicant Husband's own evidence he had not finally come to the view that there was no prospect of a reconciliation until July 2000. I further find that he indeed at that time had not communicated the intention directly or indirectly to the other party that the marriage had indeed irretrievably broken down or that separation was final. Despite the unsatisfactory nature of the relationship thereafter, it is my view that the conduct of the Applicant Husband was not sufficient to evince that intention and nor was it sufficient otherwise to enable the court to conclude that separation had occurred.
I am prepared to find that he has evinced that intention by his conduct in issuing the application on 29 August 2002 and separation certainly occurred, in my view, as at that date. It follows that I am satisfied that there is now no reasonable likelihood of cohabitation.
It is appropriate, however, that I further consider the other material in this matter in relation to the Respondent Wife's receipt of the single parent allowance or payment, and also consider the issue of child support.
Whilst that is clearly a relevant matter which should be taken into account in assessing whether or not there has indeed been separation, it is my view in the circumstances of this case that it is not necessarily unusual for the Respondent Wife in circumstances where at the very least she has a perception of violence, or at the very least she has a perception of there being little regular support where on a number of occasions she has indicated money received by her was spent not for the benefit of the children but otherwise by the Applicant Husband, whether that all be true or not, she certainly had that perception. Against the backdrop of that perception it does not, in my view, seem necessarily unwise on her part in circumstances where the parties occupied separate residences to in a sense provide herself with a degree of financial security of a kind described by way of either the sole parent allowance or indeed child support.
That of itself in the circumstances of this case does not lead me to conclude that there has been separation. It is certainly a factor which I take into account, but for the reasons I have given, I am not satisfied that that evidence should outweigh the other findings I have made concerning this relationship.
For those reasons it is my conclusion that the application should be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 14 March 2003
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