XIA & WEI

[2018] FamCA 527

FAMILY COURT OF AUSTRALIA

XIA & WEI [2018] FamCA 527

FAMILY LAW – DIVORCE – Divorce order – Irretrievable breakdown – Living separately and apart.
FAMILY LAW – COSTS

Family Law Act 1975 (Cth) ss. 39, 48, 49, 55A, 117

Clarke & Clarke (1986) FLC 91-778
Medlon & Medlon (No 6) [2015] FamCAFC 157
Pavey & Pavey (1976) 10 ALR 259
Price & Underwood [2008] FamCAFC 46
Todd & Todd(No 2) (1976) 9 ALR 401

APPLICANT: Mr Xia

RESPONDENT: Ms Wei

FILE NUMBER: SYC 196 of 2017

DATE DELIVERED: 19 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 15 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Mcqiu Lawyers

COUNSEL FOR THE RESPONDENT: Ms Reid

SOLICITOR FOR THE RESPONDENT: Mitry Lawyers

Orders

1. The husband’s application for divorce is granted.

2. The wife shall pay the husband’s costs on a party-party basis as agreed to or taxed, in respect to the period subsequent to 7 May 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xia & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 196 of 2017

Mr Xia

Applicant

And

Ms Wei

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application for Divorce filed by the husband on 27 September 2017.

2. The fundamental issue in the proceedings is whether 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 date that the husband filed his application.

3. In his application, the husband initially claimed that the parties separated on 30 July 2016.  However, he now contends that the parties separated on 4 August 2016, when he returned to Sydney from a trip to China. 

4. The wife agrees that the parties have not lived together, nor have they had any intimate relations, since the date asserted by the husband.  She also states that she applied for an Apprehended Violence Order on that date.  However, the wife contends that the parties did not separate until 19 July 2017.  At that time, the wife says she symbolically took off a bracelet given to her by the husband. This, the wife contends, was an acknowledgement that the parties’ relationship had ended.  At that time, the wife also posted an entry on Facebook, declaring that the relationship had ended.

Background

1. The husband was born in 1974

2. The wife was born in 1976. 

3. The parties met at…