XUN & LARUE

[2019] FCCA 1181

FEDERAL CIRCUIT COURT OF AUSTRALIA

XUN & LARUE [2019] FCCA 1181

Catchwords:
FAMILY LAW – Contested divorce – parties assert different dates of separation – Divorce Application dismissed – costs reserved.

Legislation:

Family Law Act 1975 (Cth), ss.48 & 49

Evidence Act 1995 (Cth), s.135

Federal Circuit Court Rules 2001, r.1.06

Family Law Rules2004, r.3.02

Cases cited:

Jones v Dunkel (1959) 101 CLR 298

Sullivan & Sullivan [2010] FMCAfam 91

In the Marriage of Pavey [1976] HCA 39; (1976) 1 Fam LR 11

Batty v Batty [1986] FamCA 33

In the Marriage of Jordan (1996) 21 Fam LR 382

Elias v Elias (1977) FLC 90-267

Hankinson & De Vries [2015] FamCA 833

Applicant: MR XUN

Respondent: MS LARUE

File Number: SYC 609 of 2016

Judgment of: Judge Kemp

Hearing dates: 21 & 22 March 2019

Date of Last Submission: 22 March 2019

Delivered at: Sydney

Delivered on: 7 May 2019

REPRESENTATION

Solicitors for the Applicant: WB Legal

Counsel for the Respondent: Mr Ford

Solicitors for the Respondent: Juris Cor Legal

THE COURT DECLARES THAT:

1. The husband and the wife separated on 27 August 2016.

THE COURT ORDERS THAT:

1. The husband’s application for divorce filed on 13 September 2016 be dismissed.

2. The issue as to the wife’s costs in respect of the dismissal of the husband’s application for divorce be reserved.

3. The matter be adjourned to 15 August 2019 at 9.30am for mention with respect to the costs issue.

IT IS NOTED that publication of this judgment under the pseudonym Xun & Larue is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 609 of 2016

MR XUN

Applicant

And

MS LARUE

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an Application for Divorce filed on 13 September 2016, the husband seeks a divorce order in relation to the marriage between the husband and wife, on the basis that the parties separated on 3 August 2007.  He also seeks that , in the alternative, if the Court should find that the parties separated on 27 August 2016, as sought by the wife, then the Court orders that the divorce application be made nunc pro tunc on 30 August 2017.  

2. The above mentioned divorce application is, in fact, the second Application for Divorce filed by the husband, the first having been filed on 5 February 2016 and later discontinued by way of a Notice of Discontinuance filed by the husband on 15 August 2016.  This divorce application also relied on a separation date of 3 August 2007.  The wife had filed a Response to that Application for Divorce on 20 April 2016 which asserted a separation date which was less than 12 months prior to the filing of the said application.  The wife’s Response was also discontinued by way of a Notice of Discontinuance filed by her on 15 August 2016.

3. On 20 December 2016, a Registrar of this Court made orders directing the wife file a Response including specific details as to the basis of the objection to the divorce within 14 days of that date and ordered costs against the wife at the rate of 2.5 hours at scale payable within 30 days.

4. By way of a Response filed on 6 January 2017, the wife sought orders that the husband’s second Application for Divorce filed on 13 September 2016 be dismissed with costs on the basis that separation was less than 12 months prior to the said application being filed and asserted a date of separation of 27 August 2016.

5. On 13 March 2017, the matter was listed for mention and consent orders and notations were made to the following effect:

   a)That the wife file and serve her affidavit and any other witness affidavits she wishes to rely on by 29 August 2017.

   b)That the husband file and serve his affidavit and any other witness affidavits he wishes to rely on by 1 November 2017.

   c)That a Language A interpreter be appointed to assist the wife at the final hearing.

   d)That a Language A interpreter be appointed to assist the husband at the final hearing

   e)That the matter be listed for callover on 9 November 2017.

   f)Notation that there was a disagreement as to the costs order of the Registrar [referred to in paragraph 3 above] which could be determined at the hearing.

6. On 9 November 2017, orders were made adjourning the matter for further call-over on 12 March 2018 and for the wife to pay the husband’s costs for that day assessed in the sum of $441.00 on the basis that she had only filed her affidavit the night before, despite such affidavit being due in August 2017.

7. On 1 May 2018, the matter was listed before his Honour Chief Judge Alstergren and orders were made directing the parties to attend a mediation with Mr B on 22 June 2018 with the matter then adjourned to 25 June 2018 for a compliance hearing.  

8. On 25 June 2018, his Honour Chief Judge Alstergren, again, adjourned the matter to 2 November 2018 for a call-over before me.

9. On 2 November 2018, the matter was listed for hearing on 21 and 22 March 2019 with trial directions given.  The Court noted that the parties had attended a mediation with Mr B on 13 September 2018 but were unsuccessful in resolving the matter and that there needed to be a judicial determination as the outcome may affect proceedings in another jurisdiction.

10. On the hearing, Mr Gasic, solicitor, appeared for the husband and Mr Ford of Counsel appeared for the wife. 

Evidence

1. The husband relied on:

   (a)His Affidavit sworn and filed on 30 January 2018; and

   (b)The Affidavit of Mr C (“Mr C”) sworn and filed on 30 January 2018.

2. The wife relied on:

   (a)Her Affidavit sworn and filed on 14 February 2019; and

   (b)The Affidavit of Mr D Xun (also known as “Mr D Xun”) affirmed and filed on 13 February 2019 (paragraphs 12-18, inclusive, not read).

3. The wife objected to paragraphs 57 to 64 inclusive of annexures “F” to “N” in the husband’s affidavit, referred to above in terms of relevance and s.135 of the Evidence Act1995 (Cth). The Court reserved its decision as to the admissibility of those paragraphs and annexures. The Court now receives the same, subject to weight.

4. The husband objected to paragraphs 14, 20 & 22 (last sentence) of the wife’s affidavit referred to above, in terms of form and conclusion.  He also objected to paragraphs 9 & 10 of the affidavit of Mr D Xun.  The Court will, again, receive that evidence, subject to the weight to be afforded to the same.  The Court notes that the evidence of Mr D Xun in paragraphs 9 and 10 was not, substantially, disputed by the husband.  Further, the Court does not accept that the simple assertion that the parties lived as a couple or that there was a reconciliation between them, being conclusions, were determinative of the issue before the Court. 

5. Both parties were cross examined and were assisted by Language A interpreters provided by the Court.  Mr C was also cross examined with the assistance of a Language A interpreter.  Mr D Xun was cross examined, without the need for an interpreter.

6. The following documents were tendered as Exhibits:

   a)Exhibit “1” – Individual taxation return declaration for the year ended 30 June 2008 for the husband.

   b)Exhibit “2” – Bundle of coloured photographs identified in the wife’s affidavit as annexures “F”, “H” and “J”.

   c)Exhibit “3” – Individual taxation return declarations for the years ended 30 June 2009, 2010 and 2012 for the husband.

   d)Exhibit “4” – Transfer document for the sale of the Suburb E property (as defined in paragraph 19(i) below).

   e)Exhibit “5” – Page 69 of the wife’s affidavit which bears the red circle around the signature identified by Mr D Xun as the husband’s signature.

   f)Exhibit “Court 1” – The wife’s written submission document.

Issues

1. The primary issue in these proceedings is the date of separation between the parties.  The husband asserts that the date of separation was 3 August 2007.  The wife asserts that the date of separation was 27 August 2016. 

2. If the wife’s assertion as to the separation date of 27 August 2016 is correct, then the husband’s application for divorce filed 13 September 2016 must be dismissed. The Court accepts that rule 3.02 of the Family Law Rules2004 in relation to the power to amend an Application for Divorce does not save the husband’s current Application. Nor, indeed, does the Court’s power to dispense with its own rules under Rule 1.06 of the Federal Circuit Court Rules2001 assist the husband. 

Background facts

1. There are various facts which are not, substantially, disputed by the parties, as follows:

   a)The husband was born in Country F on … 1940 and is, currently, 78 years.

   b)The wife was born in Country F on … 1942 and is, currently, 76 years.

   c)The parties were married on … 1969 in Region G, Country F (notwithstanding the date of … 1969 as referred to in the wife’s lawyer’s letter dated 16 December 2015 as Annexure “C” to the husband’s affidavit and the husband’s acceptance of that date in his affidavit, at paragraph 5).

   d)There are 2 children of the relationship (both being over the age of 18 years), being Mr H Xun born in Country F on … 1973, currently, 46 years and Mr D Xun born in Country F on … 1975, currently, 43 years (together “the adult children”).

   e)On 18 July 1987, the husband came to Australia.

   f)On 1 July 1988, the wife came to Australia with Mr H Xun and Mr D Xun.

   g)In mid-2007, the husband purchased properties in Town I and Town J, Country F and set up businesses there.

   h)On 3 August 2007, the husband asserted that the wife became displeased with him and, at that point, the parties moved into separate bedrooms to reduce conflict between them.  The husband asserted that it was, at this point in time, that their relationship as husband and wife was severed.  The husband maintained that the parties had differing opinions on the management of their investments in Country F. 

   i)In around July/August 2007, the husband and the wife sold a property in Suburb K and then purchased, as joint tenants, the property at L Street, Suburb E, NSW (“the Suburb E property”) for $3,290,000.00, with the settlement of that purchase being effected on 4 September 2007 (Exhibit “4”).  The husband alleged that he effected these transactions against the wishes of the wife.  

   j)Following 2007, the parties went on a short trip together to Region M, Country F. 

   k)In 2008, the businesses in Country F started to make financial losses.  Due to these losses, the husband decided to divide the commercial assets (being 4 commercial properties, 2 in Sydney and 2 in Brisbane) held by him, the wife and the adult children between them through a 4-way Family Trust (“the Family Trust”), which the husband continued to manage. 

   l)In April 2008, Mr D Xun drove to the airport to see the parties off on a trip to Country N.

   m)In May 2008, the parties attended an event at a hotel resort in Region O, as a couple.

   n)On 9 May 2008, the wife accompanied the husband to P City.  The parties stayed in the same hotel.

   o)In May 2008, the husband commenced a relationship with Ms Ms Q in Country F.  This relationship concluded in 2015.

   p)Between 21 June and 25 June 2008, the parties travelled to Country R.

   q)In 2008, the husband alleged that the wife insisted that he transfer control over the Family Trust and pay her $900,000.00.  The husband agreed and has not been involved with the Family Trust since then and the wife has managed the said Trust.

   r)From 2008 to 2015, the husband spent time in Australia and Country F attending to his various business interests, supporting himself financially.  The husband alleged that the parties slept in separate bedrooms when together in the Suburb E property. The wife also maintained that, during this period of time, she and the husband would go out for dinner together and often dined with the husband’s business key management personnel, being Mr S, Mr T and Mr U.  The husband agreed that the wife had attended such dinners but said that they were business related but not personal. Similarly, he agreed that the wife had travelled with him and had stayed at the same properties although he maintained on different levels or in different rooms.  The husband also agreed that, on some of those trips, the wife had cooked meals for him and that he had enjoyed her cooking.  He agreed that they had taken strolls after dinner and played games.  He, however, maintained that he swam “by myself” although in the same pool as the wife.  The husband also conceded that, whilst the wife sometimes cooked for him (using a special Tefal frypan purchased by her after 2007 to cook the meat pies the husband liked), he also cooked for her.  Similarly, he maintained that he did the lawn mowing on the Suburb E property.  Relevantly, the husband asserted that he had continued to cook for the wife after 2007.  This assertion weighs against the husband’s evidence as to the date of separation. 

   s)Between 2012 and 2013, the parties carried out renovations to the Suburb E property costing up to an amount of $180,000.00, as conceded by the husband.  During the renovations, the husband said to the wife words to the following effect: “I am going back to Country F for a while [to attend] to our business, while I am gone I would like you to take over the renovation and construct a new kitchen for our home”. The husband agreed that he had said such words to the wife.  This evidenced a mutual intent to progress with the renovations and that both the husband and the wife were doing so in concert. 

   t)In 2013, the parties opened a joint bank account with Westpac.

   u)Between 2014 and 2016, the wife received medical treatment in Town J for a medical condition. The husband would rush back from Region O to Town J when the wife would be taken to hospital.  He would take care of her and have discussions with the nurses and doctors about her situation and plans.

   v)In 2015, the wife arranged for Ms V to lend (amount omitted) to the husband's business when it was facing cash flow problems. The wife said: “[the husband’s] business has cashflow issues and, as his spouse, I would like to personally guarantee the repayment.”   She also arranged for Mr W to lend (amount omitted) to the business.   The wife said: “My husband needs funds to prop up his business. If you could lend him (amount omitted) it would solve the urgent cashflow issue and keep things afloat. As your friend I personally guarantee the repayment and please trust me.” 

   w)On 25 January 2015, the husband invited the wife to go to Country X with him for a business trip and a short holiday.  In Country X, the parties visited Y City and shared a hotel room where they would watch television, together.

   x)In May 2015, the parties went on a cruise with Mr D Xun and his wife's family.  The parties shared one cabin. When the cruise ported, the parties participated in activities, including snorkelling and eating the local seafood.   The husband agreed but denied snorkelling.

   y)In October 2015, the adult children arranged for a General Power of Attorney appointing the wife as the attorney of the husband; this document having a date of 9 October 2015.

   z)Between 1 November 2015 and 5 November 2015, the parties went to Country F for a trip.

   aa)On 2 November 2015, the husband wrote a letter to the wife stating: “I thank you for your help in getting the loan from [omitted].”  He, further, wrote: “towards family and especially you, considering our affection and ties as family members of several decades, I won't regret it and could not forget it. I will do my best to care for you and live together with you, treating each other with respect and courtesy.”

   bb)In November 2015, the husband commenced a relationship with Ms Z in Country F.   This relationship concluded in February 2017. 

   cc)In December 2015, the wife attended a dinner in Country F with another male (being a staff member) and the husband asserted that this was at a time when the wife was aware of his relationship with Ms Z. 

   dd)In December 2015, the wife commenced property related proceedings in Country F.  The husband alleged that this was to prevent Ms Z from having access to a property in Country F that the wife believed was rightfully hers. 

   ee)On 5 February 2016, the husband filed in this Court his first Application for Divorce, nominating 3 August 2007 as the date of separation.

   ff)On 24 March 2016, the wife commenced proceedings in Country F asserting that the husband’s extramarital relationship was illegal there.

   gg)On 20 April 2016, the wife filed in this Court a Response disputing the separation date.

   hh)On 21 May 2016, the Suburb E property was sold.  The husband alleged that this was done without his consent or knowledge.

   ii)On … 2016, the husband commenced proceedings in the Supreme Court of New South Wales and obtained an injunction on ... 2016 preventing the wife and the adult children from dealing with the proceeds of sale of the Suburb E property, which, he said, had sold for $3,291,880.40. 

   jj)On 24 July 2016, the wife alleged that the parties had lunch with a mutual friend.  The husband alleged that the wife and the adult children had come to an agreement that, if he agreed to the withdrawal of the injunction referred to in (ii) above,  they would pay him $1.83million and that he would withdraw the Application for Divorce before this Court and the wife would withdraw from the proceedings she commenced in Country F.

   kk)On … 2016, the Supreme Court proceedings were withdrawn and dismissed. 

   ll)On 15 August 2016, both parties filed a Notice of Discontinuance in relation to the Application for Divorce, ending those proceedings in this Court.  The wife asserted that this was due to the parties reconciling.

   mm)On 20 August 2016, the husband and the wife went to Country F for a 3 day trip with one of the business’s staff, Mr AA and his family.  The wife maintained that the husband would introduce her as “this is my wife, Ms Larue”. 

   nn)On 27 August 2016, the wife said that the parties had then separated. Although she maintained a belief that there was a reasonable likelihood of reconciliation and that, if persuaded, the husband may change his mind and resume their relationship.

   oo)On 30 August 2016, the parties attended in Country F for the Court proceedings there.  The husband said that the wife then refused to withdraw from those proceedings.

   pp)On 13 September 2016, the husband filed a second Application for Divorce in this Court, nominating again, 3 August 2007, as the date of separation.

   qq)On 10 December 2016, the husband alleged that the wife, then in Country F, evaded service of the second Application for Divorce, stating that she would only accept service of the Court documents in front of her Country F solicitors.

   rr)On 6 January 2017, the wife sought orders to dismiss the husband’s second Application for Divorce, on the basis that the duration of separation was less than 12 months.

   ss)On 17 August 2017, the husband filed a Civil Response to the wife’s application in the Court proceedings in Country F.  In that Response, which bears a “translated” date of 21 August 2017, the husband stated that “the matrimonial relationship between [him] and [the wife] remains to the present”.  The husband apologised for his disloyalty to his marriage from November 2015 to February 2017, during which he had an affair with Ms Z.  Further, the husband acknowledged that he had transferred (amount omitted) jointly owned by him and the wife to Ms Z, as the named second respondent, without informing the wife or seeking her consent.  This Response document was signed by the husband (see Exhibit “5”) and appears to have been drafted by a lawyer retained by the wife but was adopted by the husband.  The husband raises no issue that the said Response document did not, otherwise, express his intent. 

   tt)Around 11 October 2017, the husband and the wife had lunch on 3 occasions with the husband's niece-in-law. 

   uu)On 31 October 2017, the wife obtained a copy of the Response document referred to in (ss) above.

1. The wife maintained that, as and from 3 August 2007 (until her date of separation), there was no separation between the parties, given that, she said:

   a)They continued to live as a couple with joint financial, living and social arrangements from 2007 to August 2016. 

   b)She supported the husband in their business interests in Country F after that date.

   c)Between 2007 and 2014, the husband would go to Region O to deal with the business interests in the business and that she would stay with him in the one hotel room and that they would go out for dinner together.

   d)Whenever the husband would stay in Town J, Country F, he would live with her in an apartment complex.  The parties would have meals together prepared by the wife and partake in recreational activities such as:

   i)an after dinner stroll in the nearby park;

   ii)playing sport A;

   iii)playing sport B;

   iv)swimming;

   v)dancing; and

   vi)watching movies and theatre shows.

   e)When the parties would arrive back to Sydney following their approximate 6 month annual trips to Country F, the wife would cook for the husband and the parties would also perform household chores themselves.

   f)The husband would introduce the wife as his wife to prospective buyers of the business.

   g)She moved into and slept, at times, in a separate bedroom in the Suburb E property from that of the husband to avoid disturbing his sleep, due to her sleeping issues as a result of medical surgery and her habit of reading at night.  The wife’s evidence was supported by that of the parties’ son, Mr D Xun (paragraph 16 of his affidavit).  Mr D Xun was cross examined and he was an impressive witness.  The wife was not challenged over her explanation and the Court accepts the same.  Further, there is nothing “in the law” that says that a person who sleeps in a separate bed from his or her spouse/partner is, in itself, an indicia of separation.  In that regard, the Court notes the evidence of Mr C which related to his observations as to the living arrangements in the Suburb E property.  Mr C was the only corroborative witness called in the husband's case. He sat in Court for the first tranche of the husband's evidence. When asked about his affidavit of 30 January 2018 he told the Court in cross examination that he realised there were 2 mistakes. One was with respect to the date upon which he made observations as to the said sleeping arrangements. In his affidavit, he said, at paragraph 4 that his observations were made in 2007.  In his evidence before the Court he retracted that statement and said that he had made his observations in 2014.  In that regard, his evidence could not support the husband’s asserted date of separation of 3 August 2007.  The Court accepts that this was an extra-ordinary shift.  Even more remarkable was his admission that he was not a party to the conversation he deposed to at paragraph 14.   His evidence was that that conversation had, in fact, involved his brother and not him.  As a result, paragraphs 12-18 were not read due to Mr C’s change in evidence.  Mr Ford submitted that, in those circumstances, no weight should be afforded to the evidence of Mr C.  The Court accepts that submission.  The incorrect evidence about Mr C being a party to the conversation referred to was reproduced in the husband’s affidavit at paragraphs 46 and 47.  To that effect, the husband conceded his evidence was also incorrect.  That concession weighed against the husband’s credit.  The Court does not accept the husband’s evidence that this was a “minor error”.

2. Further, the Court accepts that, in the circumstances, the husband's failure to call the brother of Mr C to give evidence in these proceedings would also give rise to an inference being that this person’s evidence would not have supported the husband's case (see Jones v Dunkel (1959) 101 CLR 298).

The Law

1. Section 48 of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant law in relation to the granting of a divorce order, as follows:

   (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. [emphasis added]

   (3)A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

2. Section 49 of the Act provides as follows:

   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.

3. The authorities on what constitutes a separation under one roof for the purposes of s.49 of the Act have identified the following:

   a)In Sullivan & Sullivan [2010] FMCAfam 91 Federal Magistrate Monahan (as he then was) said at [49] and [50]:

   49.There is a large body of law on the question of what constitutes separation, most notably the Full Court of the Family Court decision of In the Marriage of Pavey [1976] HCA 39; (1976) 1 Fam LR 11,358; (1976) FLC 90-051. Generally speaking, in a simple case of separation the facts will speak for themselves. Where there is separation under the one roof, more will be required. As Lisa Young and I stated in Family Law in Australia (Young, L. & Monahan, G. (2009) Family Law in Australia (7th edition), Chatswood, New South Wales: LexisNexis Butterworths, p.192.)

   - "[5.61] ... In that situation, regard will have to be had to the circumstances of the relationship, to establish whether what is known as the 'consortium vitae ' has broken down. Unless it has, separation cannot be established.

   -   Consortium vitae is the matrimonial relationship, consisting of the various incidents that go to make up such a relationship. Such matters as 'marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and private correspondence during separation are amongst those incidents, but they are neither exhaustive nor exclusive ... "

   50. Clearly, 'consortium vitae ' can only end in fact if, firstly, one or both of the parties intend it to, and secondly, one or both of the parties act on that intention. In addition, in cases where the parties separate under the one roof, separation must be overt. In other words, a party would not be able to prove that they had acted on the intention if they had kept their intention hidden.  (footnotes omitted)

   b)Further, in Batty v Batty [1986] FamCA 33, Justice Wilczek said at [11] and [12]:

   11.In the case of Crabtree v. Crabtree (No. 2) ( 1964) AL. R. 820 per Selby J.:

   "the question of consortium is ... a different matter from that of physical separation. Consortium has been defined as a partnership or association; but in the matrimonial sense it implies much more than these rather cold words suggest. It involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fullest sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse - all those elements which, when combined, justify the old common law dictum that a man and his wife are one person. It is not necessary that all these elements should be present to establish the existence of matrimonial consortium; one or very few may exist and they may show that the matrimonial consortium has not been destroyed; that is still alive, although in a maimed and attenuated form.

   12. The question of what elements constitute a consortium vitae of a marital relationship has come before the courts in a number of cases, (including in addition to those I have already referred to, McDermott and McDermott (1976) FLC ,I90-034; Quigley and Quigley ( 1976) FLC ,I90-07 4; Bell and Bell ( 1979) FLC ,I90-662) and in those cases, it has been said that the normal elements, the presence of some or all of which would indicate the marriage has not broken down and the absence of any one of which would be some evidence to the contrary are as follows:

   • sexual intercourse;

   • dwelling under the one roof;

   • giving society and protection to each other;

   • economical or fiscal unity or co-operation;

   • public recognition of each other as spouses;

   • private acceptance of each other as spouses;

   • communication between the parties during any separations;

   • the nurture and support of the children of the marriage;

   • the extent of what marital services are still rendered by the parties to each other, etc..

Consideration

1. The husband, critically, relies on paragraph 14 of his affidavit as evidencing his asserted separation date of 3 August 2007.  In that paragraph, he says that he “made the decision to separate from the wife and sleep in a separate room from her in an effort to try and reduce the conflict between [them]”.  Nowhere is there any evidence of his communication of that decision to the wife on 3 August 2007.  The husband in cross examination agreed that he did not speak any words to the wife and conceded that his affidavit contained all of his evidence and that, further, he did not need to add to any of his written evidence.  Accordingly, the husband’s application must be dismissed, in light of that.

2. The Court repeats the matters set out in paragraph 20(g) above, which also weighs against the husband’s position. 

3. The husband’s evidence that he transferred control of the assets under the control of himself, the wife and the adult children to the Family Trust in 2008, followed the husband’s concession that his business interests in Country F were making financial losses.  The Court does not accept that this restructuring was, in itself, evidence of a severance of the financial connection between the husband and the wife.  On the wife’s evidence, the husband continued his involvement in the Family Trust.  Further, given that the Family Trust operated commercial properties in Australia when the husband was in Country F, the wife operated the same, in light of the General Power of Attorney (see paragraph 19(y) above), given to her by the husband.  The Court accepts that if the parties had been separated, at that time, the husband would not have given his said power of attorney to the wife on 9 October 2015.  The provision of this power of attorney, at that time, was consistent with the wife’s asserted date of separation and inconsistent with the husband’s.

4. The husband’s further evidence, in paragraph 15 of his affidavit, was to the effect that he had decided to sell a property that he and the wife owned in Suburb K and to purchase the Suburb E property.  The husband said that he purchased this property at auction when the wife was in Country F.  The husband said he went ahead with those transactions, even though the wife strongly objected but his decision to do so, he said, “destroyed any hope of the wife and [he] being able to reconcile [their] differences”.  In this regard, the Court notes that the transfer by which the parties acquired the Suburb E property in September 2007 was by way of a joint tenancy (see Exhibit “4”).  As a joint tenant, in the case of the death of either party, the entirety of the Suburb E property would have vested in the surviving party.  Joint tenancy is, usually, the ownership recorded between parties who are either married or in a committed ongoing relationship.  The Court accepts Mr Ford’s submission that, after the husband’s nominated separation date, both the husband and the wife purchased the Suburb E property in joint names which was cogent evidence that the husband’s uncommunicated intention (set out in paragraph 25 above) was not known to the wife, as it would have been inconsistent with the parties then entering into a real estate transaction during the same month that the husband maintained that he had, unilaterally, terminated their relationship.

5. In 2008, there were a number of admissions made by the husband as to the parties’ socialising, such as:

   a)In April 2008, the parties’ son, Mr D Xun, drove them to the airport, as the husband and wife were then travelling to Country N.  While the husband did not remember this, he admitted that it was possible.

   b)In May 2008, the husband’s friend, BB invited the parties to a hotel in Region O, Country F.  While the husband did not remember this, he admitted that it was possible.

   c)On 9 May 2008, the wife accompanied the husband and BB, to an occasion when they met government employees regarding the change of name of the husband’s business.

   d)On 24 May 2008, the parties jointly attended the opening ceremony of a business in Town I, Country F.  The husband, however, maintained that this was for business purposes.

   e)From 21 June 2008 to 25 June 2008, the parties travelled to Country R.

6. In 2012/2013, the parties undertook renovations to the Suburb E property, spending approximately $180,000.00.

7. In 2013, the parties opened a joint Westpac Account, which remains open.

8. In 2015, the wife arranged for the bridging finance with 2 lenders to assist with the funding shortfall for the husband’s business in Country F.  The wife, personally, guaranteed these loans.  The Court accepts that this undisputed fact established that the parties, after August 2007, remained financially dependent and connected. 

9. Between 2015 and 2016, there were a number of admissions made by the husband as to the parties’ socialising, such as:

   a)On 25 January 2015, the husband emailed the wife about their trip to Country X.

   b)In May 2015, the parties attended a cruise.

   c)Between 1 and 5 November 2015, the parties undertook a trip to Country F visiting amongst other things a popular tourist attraction, notwithstanding that the husband claimed that this was a business trip.

   d)On 24 July 2016, the parties attended a lunch with their mutual friend, Mr CC.

   e)On 20 August 2016, the parties undertook a trip to Country F.

10. The matters at paragraphs 29 to 33 above weigh heavily against the husband's assertion of a separation date in August 2007.

11. On 2 November 2015, the husband wrote a letter to the wife which stated:

    “I have indicated many times, I have done wrong and I am responsible.  Towards family and especially you, considering our affection and ties as family members of several decades, I won’t forget it and could not forget it.  I will do my best to care for you and live together with you treating each other with respect and courtesy”. 

    These words were written (as conceded by the husband) when he was thanking the wife for helping him to obtain loans to deal with various financial issues facing his business interests in November 2015.  The husband said that he was grateful to the wife and that, when he wrote this letter, he was being polite but that the wife had forced him to do so.  The husband agreed that the terms of the letter had gone well beyond simply being “polite”.  The words were entirely consistent with an ongoing and supportive relationship between the husband and the wife.  This is so, notwithstanding the husband’s submission that, at the time, the wife was at a dinner with the husband and a woman who, she knew, may have been his girlfriend.  In that regard, the dinner was, in fact, in December 2015 and not November 2015.  Mr Gasic submitted that the letter in this form as signed by the husband had been demanded by the wife after she had found out of the husband’s affair from people talking about it at the husband’s business and that the letter had to be seen in the context of the loans that the wife had arranged for the husband’s business and, in terms, of protecting her in the event of any property proceedings.  The Court, however, accepts the submission of Mr Ford that the husband’s words (given that he had adopted them) ought to be afforded their ordinary meaning, without the gloss the husband tried to put on them in cross examination.  The husband was representing, in this letter to the wife, that he would continue to care for the wife, live together with her and treat her with respect and courtesy.  In that regard, the Court, further, accepts that these are elements which constitute a “consortium vitae” of a marital relationship, in accordance with the above authorities.  The Court accepts that, at the time the letter was written, the words contained therein were consistent with the wife’s asserted date of separation and inconsistent with the husband’s. 

12. Mr Gasic submitted that if one had regard to the lawyer’s letter dated 16 September 2015, written on behalf of the wife to the husband (Annexure “C” to the husband’s affidavit) one could argue that the wife was not a “shy, reserved” wife, but one who knew exactly what was going on in the contracts and business affairs of the parties and was written so as to prevent the husband from diminishing the value of the family assets at the time.  Mr Gasic submitted that the wife was “strong enough” to cause such a letter to be sent to the husband and that this reflected not a loving relationship but one where she was seeking to enforce a legal position on that relationship, inconsistent with the parties then being in an ongoing marital relationship. The Court does not accept that submission.  The letter (at point 1) recites the parties’ marriage and does not refer to a separation date.  The tone of the letter must be considered in light of the fact that it was written not by the wife but by her legal representatives.  The letter does no more than assert the wife’s position that she should be a party to any contract and the joint recipient of any payments of money and that her consent should be sought in respect of any transfers of property.  The wife’s answer in response to a question posed of her, namely, whether there was friction between the parties in their operating of their business interests was, to the effect, that the parties held: “differing opinions on the job which was quite normal and possible”.  The wife disputed that she and the husband were, otherwise, in conflict over such matters.  The parties’ son, Mr D Xun, gave evidence that he believed the father was somewhat of a gambler in relation to investment decisions in Country F but stated that this was not of concern to the wife.  The wife’s evidence was that the husband was not a gambler, as he was “too brave”.     

13. The Court accepts that the husband, in terms of his declarations to the Australian Taxation Office (“ATO”) for the financial years ended June 2008 (Exhibit “1”) and for the financial years ended June 2009, 2010 and 2012 (Exhibit “3”), had represented that he had a spouse being the wife as he had disclosed the wife’s date of birth and, more than likely was as a result, claiming a spousal deduction for her.  As such, the husband’s statement that he was separated on 3 August 2007 should have been disclosed to the ATO, notwithstanding that the husband considered that he was still “married” to the wife, as he was and still is.  The husband’s evidence was that he may have lodged taxation returns after 2012.  His recollection was that he did not lodge taxation returns for the years ended 30 June 2017 and 30 June 2018.  The husband was called upon to produce his further taxation returns up until 2018 and stated that he could not obtain those returns because his accountant (Ms DD) was overseas on a business trip, notwithstanding that she had an office in Sydney in close location to that of the Court and he could have made an enquiry of that office to produce those documents during the course of the hearing.  The Court accepts that the husband did not do all that he could do to determine whether the call could be answered.  In those circumstances, the Court is of the view that it is likely that the production of those documents would not have assisted the husband as it was likely that they too would have reflected the position that the wife had been then disclosed as the husband’s spouse.  The Court accepts the submissions of Mr Ford that the husband is bound by his representation which, whilst not an inflexible rule, allows the Court to reject evidence that contradicts such representations made to a third party from which the husband may have received a benefit; In the Marriage of Jordan (1996) 21 Fam LR 382 per Chisholm J considering Elias v Elias (1977) FLC 90-267. The Court, further, notes the decision of Justice Kent in Hankinson & De Vries [2015] FamCA 833, where it was stated as follows:

    372As Loughnan J in Whittaker & Sinclair [2012] FamCA 1050 stated, the importance of a person not profiting from an earlier misrepresentation does not detract from the Court's obligation to identify the true position where that is practicable. 

    373The Full Court in Sinclair & Whittaker (supra) stated at 87,395:

    65.Given the nature of the definition of de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.

    66.The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10, McColl JA said at [99]:

    Statements to a government authority apparently inconsistent with a party's case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances ...(reference omitted)

    374It is telling that in this case, the applicant was prepared to concede that she had falsely represented she was "single" to obtain a financial benefit; and was prepared to do so without the protection of a s.128 certificate under the Evidence Act 1995 (Cth).

    375The case of Whittaker can be distinguished in the respect that the respondent in that case contended that her statements that she was "single" at certain times were true. The respondent's evidence was that she never told anyone she was in a de facto relationship and that the parties kept all of their finances separate. The respondent maintained she did not think she was being misleading. That is not the position with respect to the applicant here.

    376In Onslow & Onslow [2013] FCCA 1434 Judge Jarrett noted, with respect to the de facto wife's receipt of social security benefits as a single parent during the relationship: stated at [126], [146] and [147]:

    126 …Whilst Ms Onslow may have been in receipt of social security benefits at that time, I am not satisfied that the fact that she, or she and Mr Onslow may have connived to defraud the revenue, if indeed that is what they did, is determinative of the nature and the extent of their relationship at that time.

    …

    146 ...During the period December, 2005 to April, 2009, Ms Onslow's eligibility to receive social security benefits was dependent upon the Secretary of the relevant department forming an opinion that Ms Onslow was a member of a couple (see s.4 of the Social Security Act 1991), something the Secretary could not do if, notwithstanding anything else, she was living separately and apart from Mr Onslow on an indefinite basis (see s.4(3A) of the Social Security Act 1991).

    147 Having regard to the provisions of ss.4AA(2) and 4AA(3) of the Family Law Act set out above, it is not beyond possibility that on any given facts, a person might be in a relationship that meets the description of a de facto relationship for the purposes of the Family Law Act, and not be a member of a couple for the purpose of Social Security Act...

1. Mr Ford relied on the husband’s civil response dated 21 August 2017 which confirmed to a Court in Country F that the husband’s matrimonial relationship with the wife remained to the present.  The present being 21 August 2017.  The husband was cross examined about this.  His evidence was that because he was still married and had not yet been divorced then the matrimonial relationship remained.  While that may be strictly true, the Court is of the view that he should have disclosed to the Court in Country F that he was, in fact, separated from the wife, if that was the true position.  That is, the husband was continuing to represent to the Court in Country F that he and the wife were in an intact relationship.  The wife said, however, that she was, in fact, separated from the husband from 27 August 2016.  While Mr Ford submitted that, ultimately, the decision as to the date of separation rested with the Court and that the husband’s responsive document could be seen as the parties continuing to act to effect an agreed common purpose, namely, to have Ms Z evicted from certain premises, which could have evidenced an ongoing relationship, the Court is satisfied that all of the other evidence supports the separation date of 27 August 2016, as asserted by the wife.  Further, the Court accepts that the husband’s representation to the Court in Country F points towards the husband's general unreliability as a witness of truth as he was prepared to make a representation to the Court in Country F that, as at 17 August 2017, the parties were in an intact relationship, when on his case in this Court he asserted that the parties had separated in August 2007.  The Court accepts that both versions cannot stand together. Accordingly, the Court is entitled to draw an inference that the husband was prepared to make any statement which suited the audience that he was trying to persuade.  Consequently, the Court accepts that the husband’s evidence ought not to be believed unless corroborated by an independent source or was, otherwise, consistent with other agreed or accepted facts.

2. The Court accepts that the wife attended at business meetings.  The husband maintained that she did so as his business partner and not as his wife.  It was put to the wife that she attended business meetings in Country F not to help out the husband with his business in the capacity of a supporting wife but to find out what the husband owned, so as to protect her interests.  The wife did not accept that position.  The Court accepts the evidence of the wife that she was introduced at those meetings as the wife of the husband.  In that regard, the Court accepts that both the husband and the wife were in an ongoing relationship which included the administration of their business affairs.  As Mr Ford submitted, all relationships could be considered to be a “business of sorts”, be it the business of earning an income, managing the household and/or raising children. 

3. The Court accepts Mr Gasic’s submission that “20 photographs do not make a marriage”.  However, they do evidence, as asserted by the wife that the parties were content to be seen socially as a couple (with some photographs showing the husband’s arm around the wife’s back, her shoulder and with their arms linked) and that they displayed an ongoing affectionate relationship between the husband and the wife in the periods following the husband’s asserted date of separation and were, therefore, inconsistent with his date of separation.  Indeed, as Mr Ford submitted, if the husband had not wished to be photographed, as such, he could have stepped out of the frame.  The husband’s evidence, in that regard, was that he was in, what he described, as “like a performance”.  That is, the Court accepts that the husband appeared content to represent, in that performance to others, that he was in an ongoing and affectionate relationship with the wife.  The Court rejects the husband’s evidence that he “had” to act in that way, in terms of a performance. 

4. The Court has had regard to the Equity division proceedings in the Supreme Court of New South Wales between the husband, as the plaintiff, the wife, as first defendant, and, inter alia, the adult children.  Notwithstanding that the wife commenced those proceedings on … 2016 and his Honour, Justice EE in his decision dated … 2016 stated that the husband and the wife were “estranged”, that relied on his Honour being informed that the husband had filed an Application in this Court on … 2016 seeking dissolution of the marriage.  His Honour also noted that, at the time, the wife was defending those proceedings.  The timing of the commencement of those proceedings is, however, more consistent with the wife’s asserted date of separation than that of the husband. 

5. The husband, frankly, conceded in his affidavit that there were occasions after his asserted date of separation when the wife had contacted him and said that she was not well and that she was lonely and could he come and care for her.  The husband stated that, on those occasions, he felt he had a duty out of respect to help the wife.  The husband wanted the Court to believe that because the wife was the mother of his children and under Country F custom it was important for him to do good things for other people that, when he then attended to care for her, he was not doing so as part of his continuing role as her husband.  The Court does not accept that position.  The Court accepts that when the husband did those things, he did them because he was in an ongoing domestic relationship with the wife and that this continued, at least up, until 27 August 2016.

6. The Court has also considered the substantial delay between the husband commencing his first Application for Divorce on 5 February 2016 and his asserted date of separation in 2007, being in the order of some 9 years.  This weighs against the husband’s date of separation. 

7. The Court accepts that the mere fact that there was uncontradicted evidence from the husband that he had had affairs with 2 women namely, Ms Q between May 2008 and 2015 and Ms Z between November 2015 and February 2017 that this was not determinative of the date of the parties’ separation.  The wife conceded that she had knowledge that the husband had affairs during the period of their marriage.  The Court accepts that one can still have ongoing affairs amounting even to de facto relationships subsisting at the same time as an ongoing marriage.  As Mr Ford submitted, and the Court accepts, such a marriage may continue “alive, although in a maimed and attenuated form”.

8. The Court accepts that the husband's evidence, when measured against the indicia in the authorities, does not satisfy the burden of proof that the parties were separated under the one roof from 3 August 2007. 

9. The Court accepts the wife's evidence, particularly, as to the familial and societal attendances and the intertwining of the parties’ financial affairs as and from 2007, as referred to above.  

10. The Court, further, accepts that the wife was a witness of truth and gave her evidence without any inroads made to her credit.  In that regard, her evidence that separation occurred on or about 27 August 2016 was compellable and persuasive.

11. The Court, further, accepts the evidence of Mr D Xun who supported the wife’s version and her separation date.  He was an impressive witness and his affidavit which was not, substantially, challenged supported the wife’s date of 27 August 2016. 

Conclusion

1. Therefore, the Court is satisfied that the parties’ separation occurred on 27 August 2016, consistent with the evidence of the wife and that, accordingly, the husband’s Application for Divorce filed on 13 September 2016 must be dismissed.

Costs

1. The wife seeks costs for the husband’s second Application for Divorce filed on 13 September 2016.

2. Mr Gasic submitted that if one has regard to Annexure “S” to the husband’s affidavit (page 69) this, essentially, went to the question of costs. This Annexure was a letter from the husband’s previous lawyers dated 19 September 2017 inviting the wife to accept the husband’s discontinuance of his then current application for a divorce and for him to file a further application reliant on her asserted date of separation of 27 August 2016. This approach was asserted so as to avoid delays and costs associated with proceeding with the current matter. The husband says that the wife did not accept this invitation and that, accordingly, he should not bear her costs. The husband maintained that the wife’s position was conduct which justified that position under s.117(2A)(c) of the Act.

3. The Court has not heard from the wife in relation to costs and is of the view that the issue as to costs in respect of the dismissal of the husband’s Application for Divorce filed on 13 September 2016 should be reserved. 

4. The matter will be listed for mention with respect to the costs issue on 15 August 2019.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Associate: 

Date:  7 May 2019