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:

The husband and the wife separated on 27 August 2016.

THE COURT ORDERS THAT:

The husband’s application for divorce filed on 13 September 2016 be dismissed.
The issue as to the wife’s costs in respect of the dismissal of the husband’s application for divorce be reserved.
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

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.
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.
On 20 December 2016, a Registrar of this Court made orders directing the wife file a Response…

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 XUN & LARUE

Details

AGLC: XUN & LARUE [2019] FCCA 1181
Case: [2019] FCCA 1181
Decision Date: 7 May 2019

CaseChat Overview and Summary

In the matter of XUN & LARUE, heard before Judge Kemp, the husband sought a divorce from the wife. The central dispute between the parties concerned the date of their separation, with each asserting a different date. This disagreement led to the husband's application for divorce being dismissed by the court.

The primary legal issue before the court was to determine the correct date of separation for the purposes of the divorce application. The court was required to assess the evidence presented by both the husband and the wife to ascertain whether the grounds for divorce, specifically the irretrievable breakdown of the marriage evidenced by a period of separation, had been established.

Judge Kemp dismissed the husband's application for divorce, indicating that the evidence did not satisfy the court of the asserted date of separation or that the marriage had irretrievably broken down in accordance with the relevant legislative requirements. The court reserved the issue of costs, meaning that a decision on who should bear the legal expenses associated with the dismissed application would be determined at a later date. The matter was subsequently adjourned for a mention concerning the costs.

Orders

Orders of the court

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

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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