W and W
[2000] FMCAfam 81
•7 December 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2000] FMCA fam 81 |
| DISSOLUTION OF MARRIAGE – Separation under one roof – Proof of separation – Need for corroboration – Family Law Act 1975 ss 48 and 49 |
| Applicant: | E M W |
| Respondent: | J B W |
| File No: | ZM4028 of 2000 |
| Delivered on: | 7 December 2000 |
| Delivered at: | Melbourne |
| Hearing Date: | 7 December 2000 |
| Judgment of: | McInnes FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Yurcheshen |
| Solicitors for the Applicant: | McCracken & McCracken |
| The Respondent in person |
ORDERS
Decree nisi of dissolution of marriage granted.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 4028 of 2000
| E M W |
Applicant
And
| J B W |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for dissolution of the marriage of J B W and E M W. The application has been brought by the wife filed on 12 October 2000.
The applicant relies upon the application for dissolution, together with the affidavit sworn in relation to her application on 31 August 2000 and further relies upon the affidavit of B M C (the Applicant’s mother) sworn 28 November 2000, and a further affidavit of the wife sworn
29 November 2000. I have heard evidence from both deponents.
The respondent relies upon his own affidavit sworn 29 November 2000 and an affidavit sworn by his father, M K R W, on 29 November 2000. Again, I have heard evidence from both deponents.
The issue
The issue in this application for divorce is whether there has in fact been made out the appropriate ground for dissolution, that is that the marriage has broken down irretrievably, pursuant to section 48(1) of the Family Law Act. The ground of irretrievable breakdown is established and a decree nisi may be pronounced if the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the filing of the dissolution application.
The law
It is well established that separation may be proved, notwithstanding the cohabitation was brought to an end by the action or conduct of one party only and notwithstanding the parties have continued to reside in the same residence or that either party has rendered some household services to the other. The Act provides for those matters in subsections (1) and (2) of section 49 respectively.
Separation has been defined in the cases and I refer specifically to Todd v Todd No 2 (1976) FLC 90-008, (1976) 1 Fam LR 11,186. The definition in that case was varied by the Full Court of the Family Court of Australia in Pavey v Pavey (1976) FLC 90-051 (1976) 1 Fam LR 11,358 and I quote:
“‘Separation’ means more than physical separation – it involves the breakdown 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 and the nurture and support of the children of the marriage.”
The passage that I have just read from Pavey v Pavey establishes explicitly two requirements for separation: intention and action. In addition to that requirement, it is sometimes said that there is a further requirement and that is a requirement of communication. This was referred to by the Full Court in the matter of Falk v Falk (1977) FLC 90-247 and 76,333; (1977) 3 Fam LR 11,238 at 11,244 as follows:
“Where one party only has formed the relevant attitude and intention that 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.”
I should also add for the sake of completeness in relation to the law that there is authority in Pavey v Pavey for the proposition that separation under the one roof usually requires corroborative evidence.
The evidence
In the present case I have had regard to the evidence of witnesses, the Applicant’s mother and the Respondent’s father who, for the purpose of this application, I accept have both done their best to give accurate and truthful evidence of their perception of what may have occurred in relation to this marriage.
I have noted in particular the applicant's evidence which largely asserts that the resumption of cohabitation on 29 June 1999 up to 8 August 2000 after a physical separation period which had commenced on
15 September 1998, was for a combined reason of finances, care of children and to some extent a response to pressure applied then by her husband.I accept the evidence of the applicant that the resumption of cohabitation was conditional. I accept her evidence to the extent that there was a lack of trust and although I have reservations about the timing of that cohabitation in the context of there being other proceedings brought by the Department of Human Services, I am prepared to accept for the purpose of this application that that resumption of cohabitation was largely brought about in the circumstances she describes.
I also accept though what the husband says in relation to that resumption of cohabitation to the extent that it was a resumption that occurred in circumstances where there were conversations between the parties about conditions to be imposed on resumed cohabitation.
I accept his evidence that from time to time meals were prepared both for him and for the children and that those meals were labelled accordingly. I further accept that during the course of that period of time sexual intercourse occurred twice between the parties, that the wife performed certain household chores which impliedly were for the benefit of the husband and for the children and under pressure from the husband the wife bought a replacement wedding ring for the husband in 1999.
However, the husband, in his evidence succinctly referred to the state of affairs in his evidence when he said:
“It's a tram track debate”.
It seems to me those words are both insightful and prophetic. They indicate the reality of this situation which I find as follows: there was indeed a resumption of cohabitation on 29 June 1999; the parties did live under the one roof from 29 June 1999; the parties did live under the same roof from that date until 8 August 2000. I accept, however, that, as the husband describes it, it was very much a "tram track" arrangement. Both had different perceptions of the arrangement. Both perhaps honestly believed their perceptions were correct. However, I find as a matter of fact that separation has occurred and did occur from that date until the further act of physical separation which occurred on 8 August 2000.
I accept the evidence of the applicant in that regard that she communicated her feelings to the husband that there was ongoing debate about the marriage and as to whether it would eventually be reconciled.
The evidence of the other witnesses in this matter provides limited assistance. In particular, I refer to the extent of corroboration that was provided to the applicant by the affidavit of B M C and her evidence today. In my view, whilst providing some degree of corroboration, does not really assist greatly in this matter and to that extent, the applicant's case is weakened. But nevertheless, there is at least in the affidavit some degree of corroboration as to the fact that the marriage was such that it was requiring reinstatement which never formally occurred and never occurred in a way that was communicated by the wife to the husband.
Likewise I was assisted only marginally by the further affidavit material provided by the husband from his father, M K R W, in his affidavit sworn 29 November 2000 and of his evidence today. It's clear that in terms of `appearances’ that the witness may well have formed the view that there was a marital relationship, but it was based upon both a limited opportunity for an assessment of the relationship between the couple concerned and visits which did not occur that frequently. I accept, however, that M K R W was a witness of truth and his affidavit accurately reflects the observations he made.
Conclusion — findings
In the circumstances having regard to all the evidence and the affidavit material which I have read, and applying the principles of law to which I have just referred I find the parties did separate. I find the parties separated on 15 September 1998. I find that the parties resumed cohabitation on 29 June 1999 and were living together for that period until 8 August 2000. However, I find that whilst living under the one roof the parties, for the purpose of the law, were indeed living separately.
That being so it follows that I should make the following formal orders:
(1)I find that the applicant wife is domiciled in Australia.
(2)I find that the parties separated on 15 September 1998.
(3)I formally find, relying upon the certificate of marriage, the parties were married on 8 January 1994 in Melbourne.
(4)I find that the marriage has irretrievably broken down.
(5)I pronounce a decree nisi for the dissolution of the marriage.
(6)I declare I am satisfied that there are two children of the marriage under the age of 18 years, namely L A W born 21 February 1995 and B B W born 18 October 1997.
(7)I declare I am satisfied in all the circumstances proper arrangements have been made for their welfare.
Costs
In this matter application has been made by the applicant wife that the court should make an order in relation to the legal costs and should order that the respondent pay those legal costs. It has been correctly suggested that this is a matter of discretion.
In exercising that discretion I do not propose ordering costs for the following reasons. In my view the material that was placed before the court by the husband and the evidence he gave on the whole was evidence where he, as an unrepresented litigant, genuinely believed that the matters he was raising were appropriate for the court; evidence has been heard in relation to those matters.
I do not find that the response and the evidence in support of the response was in any way frivolous or vexatious. It may well have been ill advised, but that is a matter for speculation as to what advice or indeed, what other material may have been placed before the court had the respondent sought legal advice. In those circumstances, I am not inclined to award costs.
I will direct that the reasons for judgment which I have just delivered be transcribed and when revised those reasons be provided to the parties.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnes FM
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