Wilson and Wilson
[2010] FMCAfam 435
•6 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILSON & WILSON | [2010] FMCAfam 435 |
| FAMILY LAW – Divorce Application – date when marriage said to have broken down irretrievably. |
| Family Law Act 1975, pt.VI, ss.48, 49 |
| In the Marriage of Todd(No.2) (1976) 1 Fam LR 11,186; (1976) FLC 90-008 Briginshaw v. Briginshaw (1938) 60 CLR 336 |
| Applicant: | MR WILSON |
| Respondent: | MS WILSON |
| File Number: | NCC 1667 of 2009 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 5 February & 8 April 2010 |
| Date of Last Submission: | 8 April 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 6 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Counsel for the Respondent: | Ms Elbourne |
| Solicitors for the Respondent: | Burke Elphick & Mead Lawyers |
ORDERS
The Application for Divorce filed 15 July 2009 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wilson & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1667 of 2009
| MR WILSON |
Applicant
And
| MS WILSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 July 2009 Mr Wilson (the husband) filed an application seeking a divorce order in relation to his marriage to Ms Wilson (the wife).
The wife says that they had not been separated for 12 months by the time the husband filed his application and therefore his application should be dismissed.
In the application the husband says the parties separated on 11 July 2008. The wife in her response says that it was not until 18 January 2009 that they separated.
Evidence
The husband relied on his affidavits filed 15 July 2009 and
1 September 2009 along with the affidavits of:
a)Mr T filed 15 July 2009;
b)Ms W filed 1 September 2009; and
c)Mr L filed 12 February 2010.
The wife relied on her affidavit filed on 25 August 2009.
The hearing was heard over two days on 5 February 2010 and 8 April 2010. During the hearing the husband tendered three documents being bank and credit card statements.
After having observed the parties give their evidence I was left with the impression that neither of them had an accurate recollection of the events surrounding the deterioration and collapse of their relationship. Both parties were adamant in maintaining their view of when separation occurred although the husband gave a number of different dates. The husband presented his evidence in a forthright way but was at times argumentative and angry. I warned the husband on at least one occasion to not argue and to answer the questions appropriately. The need to warn a solicitor of this requirement was disappointing. Whilst I accept that family law disputes are emotional for parties even if they are officers of the court it remains unfortunate the husband was unable to remain respectful in the delivery of his evidence at times. The wife was also forthright in the way she gave her evidence at times but at other times appeared unable to recall precise dates and events. Whilst this may not be all that unusual I was left with the impression her memory was selective and her answers may have been given to reflect her perception of what would assist her case. Overall I was left with the impression that the parties had either become so entrenched in their view of events that they could not possibly see that the facts were any way other than as they recall them or that each of them was less than truthful. Either way I was not assisted to determine the truth on their evidence alone.
The husband’s evidence is that the parties commenced to experience serious difficulties in their marriage in about January 2007 whilst they were holidaying at Byron Bay even though the wife told him, “Nothing is wrong”. They have not had sexual relations since that time. The husband travelled to Italy in June/July 2007. The wife did not accompany him.
In her evidence the wife said they did not start to experience difficulties until towards the end of 2007. Notwithstanding my earlier criticism of the parties’ evidence, because individual perceptions differ it is not unusual for parties in a relationship to arrive at the conclusion that they were experiencing difficulties at different times. I am satisfied that in the husband’s mind their relationship began to deteriorate as early as January 2007 whereas the wife had not reached that conclusion until much later that year when they started to see a marriage counsellor.
They attended a number of marriage counselling sessions in 2007 and 2008.
At paragraph 8 of his affidavit filed 15 July 2009 the husband said that in early July 2008 he had a conversation with the wife in relation to her cancelling a marriage counselling session. He says that during that conversation the wife said to him, “As far as I am concerned, the marriage is over.”
The husband says that as a result of that conversation he had a discussion with Mr G [a] partner of his [omitted] firm and on 11 July 2008 he sent an email to Mr G and to his other partners. A copy of this email was annexed to his affidavit. In that email he indicated that he and his wife had reached agreement as to the division of property upon their separation. He went on to discuss that it would be necessary to disclose his income and therefore the income of the partnership would also be disclosed. He was concerned that this would need to be raised with the other partners of the firm. Notwithstanding that that annexure refers to the wife and husband having reached agreement as to the division of property upon their separation the husband did not give evidence of having discussions with the wife in relation to their property settlement.
Mr G did not give evidence.
The husband says that he was distressed by the breakdown of his marriage and there were times when he was reluctant to accept that the marriage was over but from that point on he considered himself to be ‘free’ and had in fact pursued other relationships. He says that they continued to reside under the same roof solely for the purposes of economic necessity and to enable the wife to continue to find work and re-establish herself independently.
The wife asserted that it was not until January 2009 that she told the husband that the marriage was over. The husband denied this. In his affidavit filed 1 September 2009 the husband said he made a mistake in his earlier affidavit as to the date of the conversation he had with the wife where she told him she considered the marriage to be over. At paragraph 3 of this affidavit he said the conversation took place in February 2008. However there seems to be some confusion in the mind of the husband as to the dates because two paragraphs later in this affidavit he says the wife told him no later than 23 April 2008. During cross-examination the husband was asked questions about a draft binding financial agreement that was forwarded to the wife in February 2009. It was put to the husband, and he accepted, that he prepared that document and stated the date of separation was 20 July 2008. This document was not tendered.
If that date is the correct date the application can not succeed as the separation would have occurred less than twelve months prior to the filing of the application.
Ms W who is the daughter of the husband gave evidence that on Wednesday 23 April 2008 she was at home in her bedroom studying and the wife was downstairs in the study. After receiving a telephone call from her father she left home and drove up to his office which was only a few blocks away from where they lived. She formed the view on observing her father in his office that he was agitated and distressed. She asked him what was wrong and his reply was, “When I went home for lunch today, [Ms Wilson] told me that our marriage is over and that she is leaving me”. She said that they had a conversation and that her father sat down at his desk and typed what appeared to her to be an email. She said it was addressed to ‘first name omitted]’. She understood this to be Mr H who was one of her father’s business partners. She identified it as being annexure ‘A’ to Mr T’s affidavit that was sworn on 15 July 2009 to which I will refer below.
According to Ms W she went home after speaking to her father and went up to her room without speaking to the wife. She said a few minutes later the wife appeared at her door and asked her if she had been up to see her father. She replied that she had. The wife apparently said to her, “What did he have to say?” and Ms W replied, “He told me that you said that the marriage is over and that you two are separating”. The wife is purported to have said, “He should not have said that”. Ms W said the wife then left without saying another word. The wife denied this conversation took place at all.
Ms W said that after that time things were somewhat different at the home. She said that the wife refused to wash the clothes for the husband’s children and that the children no longer went on holidays together as a family. She observed that her father went on his own to office functions. She said there was a feeling of polarisation in the home after that time.
The wife argued that I should be careful in accepting the evidence of Ms W. The basis of this submission was that because of her relationship as the daughter of the husband she was partisan and she was also financially dependant upon him. I found nothing in her evidence or her presentation to lead me to conclude that Ms W was not truthful. Where Ms W’s evidence differs from the wife’s I prefer the evidence of Ms W and accordingly I accept she did have a conversation with the wife on 23 April 2008 despite the wife’s denials. I also accept the conversation was as Ms W described and that the nature of the household arrangements differed somewhat after that date.
The wife denies the husband’s assertions that she did not attend work related functions in 2008. The husband in cross-examination agreed that he and the wife attended a wedding in the Hunter Valley in March and another in Wollongong in May. The wife also attended a weekend retreat in the Hunter Valley organised by the husband’s firm in April 2008 where the wives of the partners attended.
The wife said that although she and the husband were experiencing difficulties in their marriage at no stage prior to January 2009 did either of them express to the other that they considered the marriage to be over. Her evidence was that in about June or July 2008 she said to the husband words to the effect, “I am not happy with our marriage at the moment I am thinking about separation”. The wife said that the husband replied, “We will keep going to counselling and try to sort it out”.
The parties did continue to attend marriage counselling.
Between 10 January and 17 January 2009 the husband and wife along with the wife’s daughter [X] went on a holiday to Byron Bay for one week with three other families. The wife says they had this holiday as a family whereas the husband said it was to enable the couple to maintain a level of functionality in the relationship and to keep alive in him the spark of hope that he could persuade the wife to change her mind. This holiday was booked in July 2008 which would have been after the time the husband maintained the wife had told him they had separated and at around the time the wife maintained she told him she was thinking of separating. The husband said that prior to leaving on the holiday he had a conversation with the wife where he said he did not think they should be going on the holiday. His evidence was that he said to her, “I am particularly concerned that we have not told your friends about our situation and it feels to me like we are doing this family thing entirely as a false pretence”. The husband then said the wife replied, “Look, do not worry about it. It is none of their business anyway. [X] will be with her friends, you will enjoy the company of [name omitted] and I need a break. When we get back, I agree to keep the appointment you have made for me with Ms P and I will let you know then what happens next”. The wife denied this conversation.
No one from any of the families that holidayed with the Wilsons gave evidence in support of either party. The wife said she would have felt awkward if she asked them to give evidence. I found this response, whilst no doubt true, disappointing given the wife was adamant the parties went on the holiday as a couple and the evidence of someone else on that holiday would have assisted the court.
According to the wife upon their return from this holiday on
17 January she had a conversation with the husband where she said to him, “I found some photos and I know what you got up too when you were overseas. I want to separate”. She says the husband then began to cry and said to her, “Can’t you just look past that?” To which the wife replied, “I don’t think so”.
The husband denied this conversation ever took place.
A week after their holiday the wife attended a session with the marriage counsellor and told her that the marriage was over. There were no further sessions with the marriage counsellor.
The wife moved out of the Property C home on 11 June 2009. Until then the parties continued to share the same bed and use the same bathroom and wardrobe facilities.
Mr T who is a [occupation omitted] partner of the husband gave evidence of having known both the husband and wife since the husband joined the firm in 2000. He attended their wedding in 2002. He said that by convention the partners of the firm and their spouses met regularly usually monthly to have dinner and to socialise. He said that the husband and wife were regular attendees at monthly social gatherings but he could not recall seeing the wife there for approximately 18 months which given his affidavit was sworn in July 2009 would date the wife’s last attendance at about February 2008. He said that the husband explained the wife’s absence initially as being for family commitments preventing her from coming. The partners agreed to alter the night of the dinners because the wife took her daughter to dancing lessons on Thursday nights. However after this change the wife still did not come to the functions. Mr T recalled the wife attending the Hunter Valley retreat in April 2008 and in cross-examination gave evidence of the parties appearing to him to be a married couple at that event.
Mr T also gave evidence that he saw an email the husband had sent to Mr H. He annexed a copy of that email to his affidavit. Mr H did not give evidence of receiving this email. In the email Mr Wilson purports to tell Mr H that his marriage with the wife was over and that they would be separating. He said that it had been on the cards for about six months and that they had been having counselling. He indicated that he may need time off work. He said he did not mind if the other partners were told of the separation. That email was dated 23 April 2008.
Mr T presented as an honest and forthright witness. Nothing in the evidence caused me to doubt what he had to say and I therefore accept his evidence.
Mr L is the husband’s accountant and acted for both parties during their relationship. Mr Wilson advised him in July or August 2008 that the parties had separated. Mr L asked Mr Wilson to consider whether it was appropriate for the wife to continue to act as a trustee of the self managed superannuation fund. The husband agreed and asked Mr L to attend to it. A notice of change of company details was prepared by
Mr L’s firm after that conversation effective from 1 August 2008 and a letter was sent to [Mr & Ms Wilson] Pty Limited at the former matrimonial home asking the parties to sign and return the necessary forms. These forms were not signed and returned as requested but in order to avoid late lodgement penalties the form had been lodged electronically. In doing so the wife was removed as an office holder of the company. During the hearing an issue arose as earlier drafts of
Mr L’s affidavit. I found Mr L a most impressive and careful witness and accept his evidence that he made changes to the draft affidavit to accurately reflect his recollection of events. A second set of forms was sent in March 2009 and on 26 June of that year the wife attended on
Mr L with the forms but after a discussion with him she decided not to sign the forms and left his office with them. I accept Mr L’s evidence in its entirety.
The Law
Applications for divorce and nullity of marriage are covered by Part VI of the Family Law Act 1975 (Cth) (the Act). To be successful in his application the husband must establish on the balance of probabilities that the marriage has broken down irretrievably.[1] Under the Act a marriage is said to have broken down irretrievably if, and only if:
… the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.[2]
[1] Family Law Act 1975 s.48(1).
[2] Family Law Act 1975 s.48(2).
The Act makes provision to recognise separation may have occurred even though the cohabitation was brought to an end by the act of only one of the parties[3] or even if they have continued to live in the same residence or where the parties have provided household services to each other.[4]
[3] Family Law Act 1975 s.49(1).
[4] Family Law Act 1975 s.49(2).
In In the Marriage of Todd(No. 2)[5] Watson J said:
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 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.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
[5] (1976) 1 Fam LR 11,186 at 11,188.
The Full Court in In the Marriage of Pavey[6] was critical of Watson J’s use of the phrase ‘destruction of the marital relationship’ concerned that it may lend to it a sense of fault which the legislation sought to move away from. The Full Court preferred to use the word ‘breakdown’ instead. Other than that the Full Court approved of the approach taken in Todd (No 2).
[6] (1976) 1 Fam LR 11,358 at 11,361.
Discussion
When parties have separated under the one roof it is often difficult to determine at what particular point they separated especially if they have been experiencing marital difficulties for a lengthy period of time. In many instances married couples will have had discussions about separating but take some time before they actually arrive at the point of separation. Indeed in the course of those discussions a party may even say the marriage is over but not act on that statement for some time. For there to be a separation there needs to be not only the communication of the fact from one party to the other but also some action to confirm that intention. In cases where a party moves out of the matrimonial home it may be said that that move is both communicated and acted upon depending on the circumstances. When the parties remain under the one roof however the court would need to be satisfied that there has been an intention to separate by at least one person followed by a communication of that intention with some form of action following the communication to confirm the intention. Federal Magistrate Maguire in Aitken & Deakin[7] held the view that the communication needed to be unambiguous and unconditional. Her Honour considered the test of the element of communication to be an objective one.[8] With respect I agree.
[7] [2010] FMCAfam 35 at [9].
[8] [2010] FMCAfam 35 at [10].
As I have indicated the evidentiary onus falls upon the applicant to the civil standard. It is worth recalling the well known statement of Dixon J in Briginshaw v. Briginshaw:[9]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing form a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proof, indefinite testimony, or indirect inferences.
[9] (1938) 60 CLR 336 at 361-362.
In Pavey the Full Court held that parties alleging separation under the one roof must explain why they continued to live in the same home and show that “there has been a change in their relationship, gradual or sudden, constituting a separation”.[10]
[10] (1976) 1 Fam LR 11,358 at 11,364.
The husband submitted that the court would prefer his version of separation prior to July 2008 over that of the wife’s. Mr Graham argued that the emails attached to the affidavits along with the evidence of
Mr L and Ms W corroborated the husband’s position whereas the wife had an opportunity to corroborate her version but failed to call anyone who accompanied the parties on the holiday to Byron Bay in January 2009.
Whilst I preferred Ms W’s version of the events of 23 April 2008 to that of the wife, Ms W’s evidence is not corroborative of the wife having told the husband that the marriage was over. She did not confirm it to Ms W – only saying that the husband should not have told her that. Whilst I also accept Ms W’s evidence that from that time the arrangements in the home changed, were these changed arrangements sufficient for the court to find that the marriage had broken down? The feeling of polarisation and the stepping back on the provision of some household services are just as consistent with a marriage experiencing difficulties as they would be for a separation.
Mr L’s evidence and the emails annexed to the affidavit of the husband and Mr T along with the conversation between Mr L and the husband although not corroborative at least lend support to the husband’s position. The email that is annexure ‘A’ to the husband’s affidavit filed 15 July 2009 was dated 11 July 2008. In that email the husband indicated that the parties had reached agreement as to a division of property upon their separation. He went on to say that he had been putting off the task of advising the recipient of the email because he found it difficult to discuss. The email annexed to Mr T’s affidavit is earlier in time. It is dated 23 April 2008 and is the one that Ms W said she saw her father type. That email purports to tell the recipient that the wife had told the husband that the marriage is over. It is highly probable that any agreement as to property division would take some time to sort out after the parties separated. There was no evidence however of the parties having discussions to reach that agreement.
Ms Elbourne argued that the court should find that the husband panicked when confronted with the wife’s assertion that she was thinking of separating. As a consequence he put into motion arrangements should separation occur. Whilst that may be the case that certainly is not consistent with the language he used in the emails and what Mr L recalls being told by him. The husband clearly said the parties had separated. Ms Elbourne however submitted that the husband’s actions in not sending the draft binding financial agreement to the wife until February 2009 or following up on the change in the wife’s office holding in the company until March 2009 were consistent with the wife’s version of separation in January 2009 rather than in early to mid 2008.
Exhibit H2 was tendered by the husband to support the contention that the wife had changed her bank account details prior to January 2009 consistent with an earlier separation date. I am not persuaded by this submission. The statement period was from 10 October 2008 to
15 April 2009. Any change of address could have been at any time up to 15 April 2009 which was after the time the wife says she told the husband she considered the marriage to be over. There was no evidence of when the wife changed her address details with the bank.
The husband tendered an extract from a joint credit card statement.[11] Both parties had access to the card. That extract shows on 1 August 2008 an enquiry was made through the Fair Trading Centre. It was put to the wife that she had conducted a search to see if she had been removed as the trustee of the company. The wife denied all knowledge of making that search. The timing of the enquiry was around the time Mr L caused the documents to be sent to the parties. The husband would have been able to attend to any search from his office through the firm’s account. The husband argued that the wife would have been aware of her removal as trustee by this search and as she did not act on it the court could safely find she was of the view that the marriage was over by August 2008. There is no evidence to determine what the enquiry related to and only an inference could be drawn as to who made the enquiry. To find that the wife had the knowledge suggested by the husband would be pure speculation.
[11] Exhibit H3.
The husband also relied on the fact that the parties had not had sexual relations since January 2007. This was never disputed by the wife. Given the parties had ceased a sexual relationship somewhere between 12 and 18 months prior to the purported separation, depending on which of the husband’s dates is correct, this could not be said to be a change supporting the date of separation. It could however be a factor leading to the conclusion that over time the parties’ marriage ended.
The husband also relied upon the wife’s lack of attendances at social functions with him. The history of this aspect of their relationship is also best seen in the longer term. The wife did attend some functions with the husband after February and April 2008 but probably not July 2008. However the evidence is that in 2007 the wife did not attend as many functions as before. In effect her social attendances diminished over time. This factor may support the contention the marriage was having difficulty or had indeed ended but does not assist to determine the date of separation.
The husband’s evidence is that he attended the holiday with his wife and her daughter in Byron Bay in 2009 with the hope that the wife may change her mind about the separation. The parties continued to have counselling after July 2008. These two aspects of the evidence lead me to conclude that although the relationship was not good it had not ended. There is also no evidence of the husband ever telling the wife the marriage was over.
The husband was not required to convince me ‘beyond a reasonable doubt’ that the parties had separated more than 12 months prior to the filing of his application but to use the words of Dixon J in Briginshaw I must be ‘reasonably satisfied’ that it had. I can not be so satisfied ‘by inexact proof, indefinite testimony, or indirect inferences’. Whilst I accept the husband took action in relation to the possibility of separation prior to and during July 2008 and that the relationship was indeed difficult at this time I am not convinced that the wife communicated an intention to separate and act upon it until January 2009. With the husband also not communicating such an intention I am not satisfied to the requisite standard that the marriage had broken down irretrievably 12 months prior to the filing of the husband’s application and it will therefore be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 6 May 2010
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