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

1. 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).

2. 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.”

3. 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.”

4. 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.

5. 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 from the husband.  During the course of the hearing I ruled on a number of occasions that submissions made and questions asked by the husband, together with submissions, were irrelevant to the issue before this court on an application for divorce.  However, I permitted the husband to ask a number of questions of the wife which seemed to me at least to be relevant to the issue before this court.

6. The evidence, submissions and other comments made by the husband, together with the proceedings have been, as indicated, conducted by audiolink and interpreted by a qualified interpreter.

7. In an application for divorce the court must consider, as provided by the Family Law Act, the one ground of dissolution, namely that the marriage has broken down irretrievably (see section 48(1) of the Family Law Act).

8. According to law, the ground of irretrievable breakdown shall be held to be established and a decree nisi shall 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, and the court has not been satisfied that there is a reasonable likelihood of cohabitation being resumed [section 48(2) and (3)].  Separation as a matter of law may be established notwithstanding cohabitation was brought to an end by the action or conduct of one party only [see section 49(1)].

9. Where parties separate it is important to understand the meaning of separation for the present case, where there is no dispute that the parties separated at or around the time of an assault on the wife and then subsequent imprisonment of the husband and no issue is taken as to the date of that separation, namely 7 February 2000.  It is relevant however for the court to look at the definition of separation.  Separation has been defined in a statement from a case of Todd v Todd(No.2) (1976) FLC 90-008; (1976) 1 FamLR 11, 186 and as varied by the Full Court in Pavey v Pavey (1976) 1 FamLR 11, 358 where the court said:

   “Separation means more than physical separation – it involves the breakdown of the marital relationship.  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 …”

10. I would also refer to the decision of Falk v Falk (1977) FLC 90-247 at 76, 333; (1977) FamLR 11, 238 at 11, 244 where the court stated:

    “Where one party only has formed the relevant attitude and intention, that intention should have been communicated to the other party directly or indirectly.”

11. In the application before me, I have heard evidence from the wife that after the assault she had regarded the marriage as irretrievably broken down and does not regard there being any possibility of reconciliation.  She has conceded under cross-examination that she gave evidence for and on behalf of the husband in County Court proceedings, which I accept were in relation to a plea and sentence of the husband, and which was evidence indicating to that court that the husband would come home to the wife and his children.  The wife in her evidence confirmed she gave evidence of that type to assist the husband, who was then apparently facing potentially a long period of imprisonment.

12. The wife also conceded in cross-examination that she had paid legal expenses and otherwise appears to have visited the husband in prison, with the children, approximately 10 months ago.  She also conceded that the husband has telephoned her on numerous occasions during the past 10 months.

13. Under cross-examination the wife indicated the purpose of those visits was primarily for the benefit of the children.  She denied hugging and kissing the husband during those visits and otherwise indicated that those visits occurred in the interests of the children, where she had indicated in the presence of at least the second child that the husband would come home, or words to that effect.  In her evidence the applicant indicated that she did that, as I understand it, to reassure the child.  When asked in cross-examination about her intentions and whether there was any prospect of reconciliation, the applicant said:

    “No, I won't live with him at all, because I won't live with a man who has tried to kill me.”

1. The husband gave evidence which clearly indicates that he is of the strong belief that the marriage has not broken down irretrievably and that there is a reasonable likelihood of cohabitation being resumed.  I accept that the wife, when asked questions in relation to that issue by the husband, has given a view which is completely at odds with the view expressed by the husband.  Hence whilst I have no doubt the husband genuinely believes that the marriage has not irretrievably broken down and that there is a reasonable prospect of reconciliation, I likewise have no doubt that this is not the view of the wife.

2. In my view the evidence in this case is clear. I accept, in applying the principles to which I have referred and the relevant provisions of the Family Law Act, that in the present case the wife has clearly made a decision based upon appropriate ground that there has been a separation according to law. I further accept that the attitude and intention of the wife has been clearly communicated to the husband and I particularly place emphasis on the wife’s evidence on oath before this court, which was both clear and determined, where she rejected any prospect of reconciliation and stated, as already quoted in clear terms, that she does not want to live with a man who tried to kill her.

3. In those circumstances I have no hesitation in concluding as a matter of law there has been separation for the purpose of the Act. 

4. I am also satisfied, having read the translation of marriage certificate and having heard further from the wife on oath, that the parties were married in accordance with Chinese law on 8 May 1994 in B city, A province.

5. Accordingly, I make the following formal findings.  I find that the parties were married on the 8th day of May 1994.  I find that the wife is domiciled in Australia.  I further find that the wife is an Australian citizen, based upon the certificate of Australian citizenship which has been filed in this application.  I find that the parties separated on the 7th day of February 2000 and since that date have lived separately and apart.

6. Accordingly I find that the marriage has irretrievably broken down and do so for the reasons set out in this judgment.  I pronounce a decree nisi for the dissolution of the marriage and I declare that I am satisfied proper arrangements in all the circumstances have been made in relation to the first child and the second child referred to in the application for dissolution.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  14 December 2001