XIA & WEI
[2018] FamCA 527
•19 July 2018
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
The husband’s application for divorce is granted.
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
This is an Application for Divorce filed by the husband on 27 September 2017.
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.
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.
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
The husband was born in 1974
The wife was born in 1976.
The parties met at university in China and commenced their relationship in July 1996.
The parties were married in China in 1997. The wife contends that prior to separation, the parties were married for almost 20 years. The husband accepts that to be the case.
The parties have one child, X, born in 2006 (“X”).
The husband contends that when he returned to Sydney on 4 August 2016, the locks to the property where he was living at M Street, Suburb N (“the Suburb N property”) had been changed. The wife asserts that the husband had first changed the locks at that property, and that X’s belongings were locked inside, while the husband was in China. The wife says that she subsequently had the locks changed in late June 2016 and sent a message to the husband to relay that information. In any event, it appears that on 4 August 2016, the husband attended the Suburb N property with a locksmith and there was an exchange between the parties, which ultimately resulted in the Police being called.
At that time, the Police issued an interim Apprehended Domestic Violence Order (“ADVO”) against the husband for the protection of the wife and X. When the matter was heard on 9 August 2016, the ADVO was made final and was specified to be for a period of three months.
The Court notes that a further interim Apprehended Violence Order (“AVO”) was made on 9 April 2017 for the protection of the wife, her father and X. That AVO was made final on 6 June 2017 for a period of six months.
The husband asserts that on 4 August 2016, he said to the wife words to the effect of: “This is not working, our marriage is over, and there is no chance for reconciliation”. The wife denies that husband ever said words to that effect.
The husband’s contention that the parties separated on 4 August 2016 is, however, corroborated by the fact that, in her Initiating Application filed on 13 January 2017, the wife acknowledged that the date of the parties’ separation was 30 July 2016. Further, paragraph 9 of her Affidavit filed in support of that application states: “[The husband] and I separated on 30 July 2916. We were in a relationship for almost 20 years. We are not yet divorced”.
The Amended Initiating Application filed by the wife on 28 March 2017 similarly identifies 30 July 2016 as the date of the parties’ separation. The wife’s Affidavit filed in support of that application states at paragraph 162:
Just prior to our separation, in or around the end of 2016, I discovered that before [the husband] left for China he had changed the locks at the [Suburb N] property without giving notice to me at that time. At that time [the husband] and I had not yet separated.
The wife contends that the inconsistency between her asserted dates of separation are the result of her former legal representatives having not properly explained the nature of “separation” to her. The wife’s Counsel explained that the wife’s previous acknowledgement of separation as having occurred in June 2016 was due to her understanding, at the time of filing her application, that the concept of separation involved nothing more than the parties no longer living together. The wife contends that she did not consider that the parties’ relationship had irretrievably broken down and that there was no likelihood of reconciliation in June 2016.
It is also relevant that in a statement to Police on 7 April 2017, the wife stated: “We separated in August 2016 after an AVO was taken out by Police”. Further, during the course of these proceedings, when asked for the reasons as to why the parties separated, the wife responded that it was as a result of an incident of domestic violence and that the husband had not stayed with her after that time. When asked when that incident occurred, the wife responded that it was in August 2016.
The wife has not presented evidence as to the nature and content of the advice provided to her by her previous legal representatives. As such, the Court cannot make a finding that it was that advice which caused her to mistakenly identify 30 July 2016 as the date of the parties’ separation on her earlier Court documents.
Accordingly, even allowing for some ambiguity in the wife’s understanding of the meaning of “separation”, the evidence establishes that the parties lived separately and apart from at least 4 August 2016 and did not act in the manner of a married couple from that time.
Relevant law
The Court’s jurisdiction to make an order for divorce is found in section 39 of the Family Law Act 1975 (Cth) (“the Act”). Section 48 of the Act relevantly provides that:
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only 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 date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Further, s 49 of the Act relevantly provides that:
Meaning of separation
(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
In Price & Underwood [2008] FamCAFC 46 at [39], the Court confirmed that: “Whether there has been a separation will be a question of fact to be determined in each case”.
In having regard to the matter of Todd & Todd(No 2) (1976) 9 ALR 401 (“Todd & Todd”), the Full Court stated the following in Pavey & Pavey (1976) FLC 90-051:
In Todd's Case it was 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 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.
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.”
In determining the husband’s application, Todd & Todd requires me to ascertain whether the husband had an intention to separate, whether he acted upon that intention and whether there was a communication of that intention to the wife. Those questions must be answered in the affirmative if I am to make an order for divorce, as sought by the husband.
While physical separation is, in itself, insufficient to establish that parties have separated, it is, undoubtedly, indicative of the same. In the case of Clarke & Clarke (1986) FLC 91-778, Lindenmeyer J said, at 371:
It follows, in my view, that once a state of “separation” (that is non-cohabitation) is shown to have existed between spouses, it must continue until brought to an end by acts of the spouses sufficient to constitute a restoration of the marital relationship, that is a resumption of cohabitation. As a cessation of cohabitation involves both a physical and mental element, a resumption of cohabitation must also involve both of those elements, that is an intention to resume the marital relationship and a physical coming together of the parties, or at least some overt action on their part to carry their intention into effect: In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186 at 11,188.
Finally, s 55A of the Act relevantly provides that:
(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:
…
(b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:
(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
Finding
I accept that there was an intention on the part of husband to separate. I accept that he communicated that intention to the wife on 4 August 2016 and I accept that he acted upon that intention. That is confirmed by the wife, who stated that she and the husband no longer lived together after the ADVO proceedings in the Local Court in August 2016. Further, the wife has provided no evidence that the parties had acted in a manner commensurate to a marital relationship in the period subsequent to August 2016.
It was the wife’s case that a comparison of the periods prior and subsequent to 4 August 2016 demonstrated that the parties’ relationship had not changed, insofar as the husband regularly spent periods of time away from the wife and X. However, in actual fact, there were significant changes to the parties’ relationship following 4 August 2016. The wife acknowledged that after August 2016, the parties did not go out together “like before”. The wife also acknowledged that after August 2016, the husband did not attend Christmas events or birthdays with the wife. The wife stated that this occurred as a result of a decision on the part of the husband, which is consistent with the husband acting upon his stated intention to separate from the wife.
Accordingly, I am satisfied that:
a)The parties were married in China in 1997;
b)Both parties are Australian citizens, as is conceded by the parties and that the wife is ordinarily resident in Australia;
c)The parties separated on 4 August 2016 and have lived separately and apart since that date; and
d)The parties’ marriage has broken down irretrievably.
I am further satisfied, in terms of s 55A of the Act, that proper arrangements are in place in regards to the care, welfare and development of X. Both parties acknowledge that X is doing well, both academically and socially.
I therefore grant an order for divorce, which will take effect in one month and one day from the date of these orders.
Costs
In this matter, I also propose to make an order for costs in favour of the husband on a “party-party” basis, in respect of the period subsequent to 7 May 2018. In that respect, I have regard to s 117 of the Act, which provides that:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The authorities are clear that while I am required to have regard to all the matters set out in subsection (2A), I need not be satisfied that each and every section is applicable to the current circumstances. As Strickland J stated in Medlon & Medlon (No 6) [2015] FamCAFC 157 at 24: “…it is a matter of the weight that is accorded to each of the relevant factors”.
I accept that I do not have a comprehensive documentation of the parties’ financial circumstances before me. While that is a relevant consideration, it is not the only consideration. Most relevant to my decision to award costs in favour of the husband is my finding that the wife has been wholly unsuccessful in these proceedings.
I have had regard to the fact that the husband’s solicitors endeavoured to resolve this matter on by way of a letter to the wife’s solicitors dated 7 May 2018, which offered to resolve the matter on the basis that the wife concede that the date of separation was 30 July 2016, being the date asserted in the documentation filed by wife in these proceedings.
In those circumstances, I will order the wife to pay the husband’s costs on a “party-party” basis, in respect to the period subsequent to 7 May 2018.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 19 July 2018.
Associate:
Date: 19 July 2018
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