X and P - [2001] FMCAfam 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

X & P

[2001] FMCAfam 330

DISSOLUTION OF MARRIAGE – Separation – breakdown of marital relationship – applicant wife formed relevant attitude and intention – husband imprisoned on charge of assaulting wife – no prospect of reconciliation.

Family Law Act 1975, ss 48 and 59

Todd v Todd (No. 2) (1976) FLC 90-008; (1976) 1 FamLR 11, 186
Pavey v Pavey (1976) 1 FamLR 11, 358
Falk v Falk (1977) FLC 90-247 at 76, 333; (1977) Fam LR 11, 238 at 11, 244

Applicant:

Y X

Respondent:

Y P

File No:

ZM 5697 of 2001

Delivered on:

14 December 2001

Delivered at:

Melbourne

Hearing Date:

14 December 2001

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A P Barnett

Respondent via telephone on his own behalf

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 5697 of 2001

Y X

Applicant

And

Y P

Respondent

REASONS FOR JUDGMENT

This is an application for divorce by Y X (the wife) in relation to marriage between the wife and Y P (the husband). The application for divorce, which was filed on 15 June 2001, refers to the date of marriage being 8 May 1994 and further refers to there being two children of the marriage, namely Z Y P born 2 November 1994 (the first child) and D P born 29 October 1996 (the second child).
The respondent husband has filed with the court a response on

30 October 2001, together with an affidavit in support filed 30 October 2001. In his response the husband states:
“I have made a big mistake in my life that I have regretted ever since. However, I do not believe that the relationship is over. While I am incarcerated I have a very limited chance to talk things over with the applicant to save this relationship. The applicant has visited me in prison on many occasions, until about six months ago. She has also told me she wanted me home with the kids.”
In his affidavit the respondent states:
“I oppose my wife's application for divorce on the grounds that I do not accept that the relationship is irretrievably lost and that there are irreconcilable differences. Further to this, I also oppose any application for custody of my two children, L P and

D P, by my wife Y X.”
Before me this day Mr Barnett has appeared for the wife and the husband has appeared on his own behalf. The husband is currently a prisoner serving a period of imprisonment as a result of a conviction which I understand occurred on 16 March 2001 in the County Court. The husband is a prisoner at Her Majesty's Prison, Dhurringile. The conviction which has resulted in his imprisonment arose out of a charge of what is described as an assault on the applicant wife.
In support of the application for divorce I have heard evidence in person from the wife and I have also heard, by audiolink on affirmation, evidence…

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.

Continue reading X and P

Details

AGLC: X and P [2001] FMCAfam 330
Case: [2001] FMCAfam 330
Decision Date: 14 December 2001

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of X and P concerns an application for divorce by Y X (the wife) against Y P (the husband). The wife filed the application on 15 June 2001, citing the date of marriage as 8 May 1994 and noting the presence of two children from the marriage. The husband, currently imprisoned for assaulting the wife, filed a response opposing the divorce application and custody of the children. The court had to determine whether the marriage had irretrievably broken down, as required by the Family Law Act, and whether there was a reasonable likelihood of reconciliation.

The legal issues before the court included whether the wife had indeed formed the necessary intention to end the marriage and if this intention had been communicated to the husband. The court considered definitions of separation as outlined in previous cases such as Todd v Todd and Pavey v Pavey, and the requirement for an intention to sever the marital relationship. The husband's belief in the possibility of reconciliation was weighed against the wife's clear and determined stance against any such possibility, especially in light of the assault. The court found that the wife's decision to end the marriage was based on appropriate grounds and that this decision had been communicated to the husband, leading to a legal separation.

The Federal Magistrate concluded that the marriage had irretrievably broken down, satisfying the requirements of the Family Law Act. The court accepted the wife's evidence that the separation had occurred on 7 February 2000 and that the parties had lived separately and apart since then. The court declared that proper arrangements had been made for the children and pronounced a decree nisi for the dissolution of the marriage. The decision confirmed the irretrievable breakdown of the marriage, based on the wife's clear rejection of reconciliation and her communicated intention to end the relationship.

Orders