Zigouras & Zigouras
[2024] FedCFamC2F 824
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zigouras & Zigouras [2024] FedCFamC2F 824
File number(s): MLC 3901 of 2023 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 28 June 2024 Catchwords: FAMILY LAW – DIVORCE – respondent lacks capacity to participate in proceedings – efforts of court and solicitor for the application to appoint a litigation guardian for respondent unsuccessful, including by request to Attorney-General pursuant to rule 3.16(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – hearing of application in absence of respondent or a litigation guardian appointed on her behalf – consideration of evidence of separation under the one roof in context of respondent’s illness and disability and applicant’s role caring for her – unreliable corroborative evidence – application dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 39, 48, 49
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.37, 2.42, 3.12, 3.13, 3.14, 3.15, 3.16
Reithmuller, Grant and Robin Smith, Family Law (Thompson Reuters, 7th edition, 2022)
Cases cited: In the Marriage of Falk (1977) FLC 90–247; [1977] FamCA 46
In the Marriage of Spanos (1980) FLC 90–871; [1980] FamCA 10
In the Marriage of Todd (No 2) (1976) FLC 92–008
Pavey & Pavey (1976) FLC 90–051; [1976] FamCA 36
Rainger & Cadis [2023] FedCFamC2F 591
Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 28 June 2024 Place: Melbourne Solicitor-advocate for the applicant: Mr Lee Solicitors for the applicant: Resolve Conflict Family Lawyers Representative for the Respondent: No appearance ORDERS
MLC 3091 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ZIGOURAS
Applicant
AND: MS ZIGOURAS
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.The Application for Divorce filed on 27 March 2023 be dismissed.
2.The solicitor for the applicant serve a copy of these orders upon Ms B, being the guardian and administrator appointed for the respondent wife by an order of the Victorian Civil and Administrative Tribunal dated late 2023.
AND THE COURT NOTES THAT:
A.A copy of these orders and the settled reasons for making the orders will be provided by the chambers of Judge A. Humphreys to the Victorian Civil and Administrative Tribunal (VCAT reference number …).
B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
Before the court is the applicant husband’s Application for Divorce filed on 27 March 2023 (“application”).
The parties married in 1999. It is the applicant’s case the parties separated under one roof in November 2017 and continued to live separately under the one roof until March 2023[1] when the respondent wife moved to a specialist disability accommodation facility.
[1] The application for divorce identifies the parties lived separately and apart under the one room from 17 November 2017 to 9 February 2023 but in his affidavit filed on 27 March 2023, the husband deposed it was anticipated the respondent would move out of the former matrimonial home to a specialised disability facility in early 2023. This date is consistent with the evidence of Ms D.
The respondent has a serious illness. The applicant has given evidence that by around November 2017 the respondent’s condition had deteriorated so much that she no longer had any memory of who he was to her, that he was in fact her husband or recall them being in a relationship.[2] The applicant has adduced evidence from a former treating specialist of the respondent, Dr C, who confirmed the respondent’s diagnosis of a serious illness and reported that at his last review of her in March 2022, she was predominantly non-verbal and suffering significant cognitive impairment.[3] Accordingly, the respondent does not have legal capacity to participate in these proceedings.
[2] Paragraph [14] of the applicant’s affidavit filed on 27 March 2023.
[3] Paragraph [6] of the affidavit of Dr C filed 7 August 2023.
The respondent’s sister, Ms B, was appointed as the respondent’s guardian and administrator by way of an order of the Victorian Civil and Administrative Tribunal (VCAT) in late 2023. The applicant’s solicitor has informed the court Ms B has refused to take on the role of litigation guardian for the respondent and to participate in the proceeding on her behalf.
As described by Mr Lee this morning, appearing on behalf of the applicant, this proceeding now has a lengthy procedural history due to unsuccessful attempts of the applicant and the court to facilitate the appointment of a litigation guardian for the respondent.
The issues for determination at this hearing are as follows:
(a)Should the application proceed for determination notwithstanding a litigation guardian has not been appointed for the respondent?
(b)If so, is the ground for making a divorce order satisfied – namely that the marriage has broken down irretrievably and there is no reasonable likelihood of cohabitation being resumed? In particular, can the court be satisfied 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 application on 27 March 2023?
(c)Did the applicant communicate to the respondent his intention to end the parties’ marriage? If not, is this a necessary requirement given the respondent’s disability?
These are my reasons which were delivered ex tempore after hearing submissions from the solicitor for the applicant at today’s hearing. They have been settled for clarity, ease of reading, to cite from documents referenced at the hearing and to reference identified statutory and regulatory provisions and legal authorities. The applicant husband was present in court for the hearing and delivery of my reasons.
PROCEDURAL HISTORY
The matter first came before a deputy registrar on 9 August 2023, where the application was listed for a compliance and readiness hearing before the Chief Judge. Notations to those orders included:
(a)The Applicant submits that service of the Application for Divorce ought be found to be effected pursuant to rule 2.37(1)(c) Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
(b)The second issue raised is whether the wife had capacity at the time of separation, or capacity to accept service of the Application for Divorce, where her possible incapacity draws into question her ability to respond to the Application.
At the compliance and readiness hearing, the Chief Judge listed the matter to me for defended hearing on 20 October 2023.
I listed the matter for mention on 18 October 2023 and raised with the solicitor for the applicant the apparent need for appointment of a litigation guardian for the respondent. I adjourned the matter to allow this issue to be addressed.
The solicitor for the applicant foreshadowed in an email to chambers on 20 November 2023 the filing of an Application in a Proceeding seeking to have the respondent’s sister appointed as her litigation guardian in this proceeding. This did not eventuate.
I made orders on 22 January 2024 requesting the Attorney-General nominate a person to act as litigation guardian for the respondent. On this date, the solicitor for the applicant tendered a copy of the VCAT order appointing Ms B (the respondent’s sister) as guardian and administrator for the respondent, informed the court that Ms B did not consent to be appointed as litigation guardian for the respondent for the purpose of this proceeding and that he had been unable to identify another suitable person who consents to be appointed litigation guardian.
Efforts from both the Attorney-General’s Department and the solicitor for the applicant were not fruitful.
On 22 April 2024, I listed the application for hearing on 28 June 2024 and ordered for the applicant to file any further documents to be relied upon, among other procedural orders. A notation to those orders included:
Each of the Attorney-General’s Department and the solicitor for the husband have informed the court they have been unable to identify an individual or representative of an organisation who will consent to act as litigation guardian for the wife. The court requests the wife’s VCAT appointed guardian and administrator, [Ms B], do so. If she does not, the court notes the husband seeks his application for divorce be determined at the hearing on 28 June 2024.
The matter is now before the court for the determination of the application. Ms B has not filed any documents on behalf of the respondent. The matter was called outside of court this morning and there was no response the call. Accordingly, there is no appearance by or on behalf of the respondent.
DOCUMENTS RELIED UPON
The applicant relied on the following documents in support of his application for divorce:
(a)The application;
(b)Marriage certificate, filed 27 March 2023;
(c)Affidavit of the applicant, filed 27 March 2023;
(d)Affidavit of Mr E (applicant’s brother), filed 27 March 2023;
(e)Affidavit of Ms F (graduate lawyer employed by the applicant’s solicitors), filed 27 March 2023, regarding a correction to the application;
(f)Further affidavit of Mr E (applicant’s brother), filed 7 August 2023;
(g)Affidavit of Dr C (treating neuropsychologist of the respondent from 2011/2012 until 2022), filed 7 August 2023;
(h)Affidavit of Ms D (manager of the facility with care of the respondent), filed 7 August 2023;
He also relied upon the following documents specifically in respect of service:
(a)Affidavit of Mr G, filed 23 May 2023;
(b)Affidavit of Ms F, filed 14 June 2023;
(c)Affidavit of Justin Lee (applicant’s solicitor), filed 13 May 2024; and
(d)Affidavit of Justin Lee (applicant’s solicitor), filed 13 June 2024.
SERVICE
Rule 2.42 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
2.42 Service of application
An Application for Divorce must be served on the respondent by:
(a)personal service in accordance with rule 2.35; or
(b)sending it by pre‑paid post in a sealed envelope addressed to the respondent at the respondent’s last known address.
Relevantly, as the respondent has a legal incapacity, rule 2.37 of the Rules provides:
2.37 Personal service on a person with a legal incapacity
(1)Despite rule 2.35, a document that is required to be served personally on a person with a legal incapacity must be served:
(a)on the person’s litigation guardian; or
(b)if there is no litigation guardian—on a person who is entitled under subrule 3.16(2) to be the person’s litigation guardian for the proceeding; or
(c)if there is no one under paragraph (a) or (b)—on an adult who has the care of the person.
(2)For the purposes of paragraph (1)(c), the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or care facility.
In his affidavit filed on 27 March 2023, the applicant initially sought an order dispensing with the requirement of service of the application upon the respondent deposing that she “does not possess the capacity to understand the documents served upon her or the nature of the proceedings due to her illness.” He subsequently abandoned that application and sought to effect service pursuant to rule 2.37(1)(c) of the Rules.
The applicant filed an affidavit of service on 23 May 2023 confirming his application for divorce and supporting affidavits were served by hand upon Ms D on 18 May 2023, who identified herself as the managing director of H Centre, being the manager of J Centre, the specialist disability accommodation facility caring for the respondent at that time. The applicant has also filed an affidavit from Ms D.
The solicitor for the applicant has also made two affidavits deposing to service of documents filed and orders made in the proceedings upon Ms B, the respondent’s VCAT appointed guardian, being a person entitled under subrule 3.16(2) of the Rules to be the respondent’s litigation guardian.
Accordingly, I am satisfied service of the application, supporting affidavits and orders made in the proceeding has been effected in accordance with rule 2.37(1)(b), (c) and (2) of the Rules.
EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.
In assessing the evidence adduced by the applicant, I have applied the balance of probabilities as the standard of proof.
PROCEEDING WITHOUT A LITIGATION GUARDIAN
In relation to the appointment of a litigation guardian for a person without the capacity to understand, conduct or adequately instruct the conduct of a proceeding, the Rules provide as follows:
3.12 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences of the proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
3.13 Starting, continuing, defending or inclusion in proceeding
(1)A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian.
(2) The litigation guardian of a party to a proceeding:
(a)must do anything required by these Rules to be done by the party; and
(b)may, for the benefit of the party, do anything permitted by these Rules to be done by the party.
[…]
3.14 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person:
(a) is an adult; and
(b) has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c) can fairly and competently conduct the proceeding for the person needing the litigation guardian.
3.15 Appointment of litigation guardian
(1)A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2)The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
(3)A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4)The court may remove a litigation guardian at the request of the litigation guardian.
3.16 Manager of the affairs of a party
(1) In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2)A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person’s authority extends.
(3)If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party.
(4)The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.
(5)A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
[…]
Having identified from the affidavits filed by the applicant that the respondent does not have capacity to understand this litigation, in particular the applicant’s own evidence the applicant by 2017 no longer had any memory of who he was to her or that he was in fact her husband and that she is unable to communicate, I determined the respondent required a case guardian, this being the only means by which she could respond to the application pursuant to rule 3.13(1) of the Rules.
In relation to the respondent’s apparent incapacity to participate in the proceedings and efforts of the applicant and the court to identify a litigation guardian for her:
(a)The application first came before the court on 9 August 2023. Issues raised at that hearing included whether the respondent had capacity at the time of separation, whether she had capacity to accept service of the application, and the question of her ability to respond to the application given her possible incapacity;
(b)At a mention on 18 October 2023, the appointment of a litigation guardian for the respondent was identified as an issue to be addressed;
(c)On 20 November 2023, the proceeding was adjourned at the request of the solicitor for the applicant who foreshadowed filing an application to have the respondent’s sister appointed as her litigation guardian;
(d)In November 2023, Ms B was appointed by VCAT as the respondent’s guardian and administrator;
(e)On 22 January 2024, the solicitor for the applicant informed the court Ms B does not consent to be appointed as litigation guardian for the respondent and declined the request of the court (conveyed to her via the solicitor for the applicant) to attend a hearing that day. The respondent’s solicitor informed the court he had not been able to identify another suitable person who consents to be appointed as litigation guardian for the respondent for the purpose of the divorce proceeding;
(f)On 22 January 2024, a request was made the court pursuant to rule 3.16(4) for the Attorney-General to nominate a litigation guardian for the respondent. An order was made requiring service of all previous orders and documents filed in the proceeding on Ms B;
(g)On 15 February 2024 the Attorney-General’s Department emailed the court advising:[4]
[4] That correspondence was marked Exhibit B at the hearing on 15 March 2024 and placed on the court file.
The Attorney-General’s Department has so far contacted the below organisations to enquire whether they have scope to provide a litigation guardian.
•[K Organisation] – unable to assist
•[L Service] – unable to assist
•[M Service] – unable to assist
•[N Authority] – unable to assist
•[O Service] – yet to receive a response
However, we have also identified two other organisations to enquire as to whether they may be able to provide a litigation guardian. These are [P Organisation] and [H Centre]. Both organisations have had previous involvement with the respondent wife and we wanted to confirm before we approach these organisations) whether either have already been considered ruled out by the court or parties due to a conflict of interest (and noting that would involve the disclosure of some identifying information).
•The respondent wife has previously engaged with [P Organisation], however this organisation only provides support for those with an approved NDIS plan. The affidavits indicate that the respondent started an NDIS plan in [early] 2022 which was due to be reviewed in [early] 2023.
•[H Centre] is the specialist disability accommodation that the respondent wife resides in. The affidavits indicate that the managing director of [H Centre] has previously explained the contents of an Initiating Application and affidavits to the respondent wife and may be well placed to recommend a litigation guardian that the respondent wife knows and trusts, for example a support worker.
(h)On 15 March 2024, the solicitor for the applicant informed the court he was continuing to make enquiries in an effort to identify a suitable person who consents to be appointed as litigation guardian for the respondent, including P Organisation, the residential care facility with care of the respondents and private practitioners recommended by the Attorney-General’s Department. The matter was further adjourned to facilitate the making of those enquiries;
(i)On 22 April 2024, the solicitor for the applicant informed the court those further enquiries were unsuccessful; and
(j)By way of a notation made to orders on 22 April 2024, Ms B was requested to consent to act as litigation guardian for the respondent. The notation further recorded that if she did not do so, the applicant sought the application be determined at a hearing set for 28 June 2024. The affidavit of Mr Lee filed on 13 June 2024 indicates those orders were served on Ms B by express post with a letter dated 14 May 2024. Ms B has not filed any documents with the court consenting to act as litigation guardian for the respondent and I confirm has not attended at court today.
Significant consequences flow from the making of a divorce order, including in respect of a person’s status and marking the commencement of a period in which any application for spousal maintenance or the alteration of property interests are to be made without leave of the court. Accordingly, given the respondent does not have capacity to understand or participate in the divorce proceeding herself, I considered it important for her interests to be represented by a litigation guardian.
Where significant efforts have been made to identify a suitable person willing to act as litigation guardian for the respondent without success, and balancing the applicant’s entitlement to have the proceeding determined without further delay, I have determined to proceed to hear the application without the respondent’s interests being represented.
To safeguard the interests of the respondent, I intend to make an order requiring the applicant to serve a copy of any order I make today upon Ms B, being the respondent’s VCAT appointed guardian and noting Mr Lee’s evidence that Ms B informed him the respondent now lives with her. Ms B can then seek legal advice and take appropriate steps to fulfil her obligations as the respondent’s guardian with knowledge of the outcome of the application. I will also arrange for my chambers to send a copy of the orders and settled reasons for my decision to VCAT.
In making a decision to proceed without a litigation guardian for the respondent, I share the concern expressed by Judge Harland in the decision of Rainger & Cadis[5] about access to justice for parties to proceeding with a disability who do not have family or friends available, able and willing to undertake the role of litigation guardian.
[5] [2023] FedCFamC2F 591.
THE LAW TO BE APPLIED
Divorce is governed by Part VI of the Family Law Act 1975 (Cth) (“the Act”).
Jurisdiction
I am satisfied that the applicant is an Australian citizen, ordinarily lives in Australia and had done so for 12 months immediately before filing his application for divorce. He therefore meets the jurisdictional requirement to make an application for divorce as set out in section 39(3) of the Act.
Proof of marriage
The applicant filed a marriage certificate on 27 March 2023 and I am satisfied the parties married in 1999.
Irretrievable breakdown of the marriage
Legal principles
Section 48 of the Act 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.
Section 49 of the Act defines the meaning of separation as follows:
(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.
The authorities make it clear there are least two elements to consider in determining whether there has been a separation:
(a)An intention of at least one of the parties to end the marriage; and
(b)Action upon that intention.
In the Marriage of Todd (No 2),[6] Watson J explained the concept of separation and living separately and apart as follows:
… “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.
As to the second element, that of living separately and apart, this element is present and continues to be present unless there is a substantial resumption of the marital state. Casual acts of sexual intercourse do not constitute an interruption of separation. An agreement to resume cohabitation which is not carried out is insufficient. Just as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation.
[6] (1976) FLC 92–008.
In relation to separation under the one roof, the Full Court in Pavey & Pavey (“Pavey”) explained:[7]
In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage is broken down, and common residence suggests a continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the same roof and by showing that there has been a change in their relationship gradual or sudden, constituting a separation.
[…]
It is not possible to apply some mathematical formula to these activities and determine whether a ‘separation’ has occurred. Rather the evidence should examine and contrast the state of marital relationship before and after the alleged relationship.
[7] (1976) FLC 90–051.
In Falk, the Full Court referred to the possibility of a marriage breaking down gradually, as follows:
In some cases some fairly dramatic event can be pointed to after which there has been such a significant alteration in the nature of the relationship between the parties that it can properly be said that notwithstanding their continued occupation of the same home they should be treated as having separated. In other cases which may be more typical, no such dramatic event can be pointed to. The various components of the marriage disappear one by one with the passage of time. In that situation it may be a question whether the parties still regard the marriage as existing between them notwithstanding that its content is being continually eroded with the passage of time on the one hand or whether on the other hand the parties or at least one of them at some point forms and acts upon the view that the marriage has completely and irretrievably broken down so as no longer to exist in reality and the continued occupation by them of the same premises is referable not to the marriage, but to other circumstances.
The authorities clearly articulate that whether a marriage has effectively ceased to exist is “ultimately a question of fact and degree with each particular case”.[8]
[8] In the Marriage of Spanos (1980) FLC 90–871.
There is also usually a third requirement, namely communication of a party’s intention to end the marriage to the other party. This requirement was identified by the Full Court in In the Marriage of Falk (“Falk”) as follows:[9]
Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.
[9] (1977) FLC 90–247.
In their text book, Family Law, Riethmuller and Smith opine that while there is not yet any judicial statement on point it is in the authors’ view likely that communication will not be required where this is impossible, and provide examples of situations where that might be the case including where a spouse is mentally ill or in a coma.[10] This raises the issue of whether communication is required where a person is under another form of form of significant disability such as that experienced by the respondent in this case.
[10] Grant Reithmuller and Robin Smith, Family Law (Thompson Reuters, 7th edition, 2022) at [6.220].
Consideration
The applicant deposes in his affidavit filed on 27 March 2023:
Since 2010, the Respondent’s health has deteriorated significantly and she is currently unable to speak, tend to her personal hygiene, walk, or feed herself.
In [November] 2017, the Respondent’s condition had deteriorated so much that the Respondent no longer had any memory of who I was to her, or that I was in fact her Husband. It was at that time, given the Respondent’s mental condition had deteriorated so much that she did not even recall us being in a relationship that I realised our relationship was over and we moved into separate bedrooms and I moved essentially into a care-taker role for the Respondent.
[…]
Via his solicitor today, the applicant asserts the parties reached an agreement to separate in November 2017. In support of this contention, he relies on the following evidence given by his brother, Mr E, in an affidavit filed on 7 August 2023:
In or around November 2017, the parties invited me to their [home] to speak with me. The parties said to me that their marriage was over and they had mutually agreed to separate. The Applicant stated to me that it had been slowly developing to the point of separation. The Respondent said to me that she agreed with the Applicant and that the last five years has not been easy.
The Respondent clearly communicated to me that she could not be the wife or partner she once was due to her illness and that she and the Applicant were separating.
[…]
The parties told me that I was the first person that they informed about their separation. I later spoke with our parents and was informed that the Applicant had advised them of his separation from the Respondent. It was agreed however that the Applicant would remain as the Respondent’s full-time carer while she was able to reside in the [home] but otherwise the parties would live independently and conduct their lives separately not as a couple.
To support his assertion that the parties separated under one roof, the applicant deposed in his affidavit filed 27 March 2023 that during the asserted period of separation under one roof:
(a)The parties maintained separate bedrooms;
(b)They were not sexually intimate, as had been the case since before 2017;
(c)The applicant exclusively attended to household duties, as he had done since 2010;
(d)The parties had limited communication with one another. In particular, he deposed:
When we spoke, it was generally for me to assist the Respondent with her daily needs, activities and care. In recent years, the Respondent has been non-verbal and as such we are unable to communicate.
(e)The parties spent time with their friends and family separately and that, in recent years, if he went out without the respondent for any significant period he would organise a carer for her.
I note the matters identified at (b) and (c) above refer to changes in the parties’ relationship prior to the asserted date of separation. These are not factors that assist me to establish a breakdown in the parties’ marriage from 17 November 2017 being the date of separation asserted by the applicant.
The applicant’s evidence about the parties’ limited communication sheds little light on the matter given his evidence about the respondent’s illness and that by November 2017 her condition had deteriorated to such an extent that she did not have any memory of who he was to her. Similarly, the applicant’s evidence the parties spent time with their friends and family separately, along with the other matters deposed to by him, may be attributable to the deterioration in the respondent’s health rather than any intention to end their marriage relationship.
The applicant deposed in early 2023 that “for the last seven years” (so, from around 2016) he has cared for the respondent on a daily basis, including assisting her with all of her daily activities. The applicant taking on the role as carer for the respondent is not inconsistent with the parties’ marriage continuing and does not of itself evidence a breakdown in the parties’ marriage. There is no clear delineation in the applicant’s evidence of a change in that caring role from 17 November 2017.
The applicant also deposed the respondent was approved for NDIS funding in 2019 but he has continued to support himself and pay for the respondent’s medical needs and treatment, indicating there was no change in their financial relationship. Whilst not in evidence, the applicant’s solicitor informed the court at a procedural hearing that the former matrimonial home remains jointly owned by the parties.
The respondent did not give evidence himself of the agreement his bother deposed to and that his counsel today relies upon in support of his contention the parties separated under the one roof on 17 November 2017. He did not depose that he communicated to the respondent his intention to end the marriage. This is consistent with his evidence her condition had deteriorated so much by November 2017 that she no longer had any memory of who he was to her or recall them being in a relationship.
Corroboration of the applicant’s evidence
The Full Court in Pavey explained that because of the nature of the enquiry required where parties rely on a period of separation under the one roof to ground an application for divorce, “many Judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant’s evidence in cases where the parties reside in the same residence.”
The applicant deposed that shortly after he asserts the parties separated, in or around November 2017, he notified his brother, Mr E, they had formally separated.[11] In support of the application, the applicant relies on two affidavits of his brother filed on 27 March 2023 and 7 August 2023.
[11] Paragraph [20] of the applicant’s affidavit filed on 27 March 2023.
In the first of those affidavits, the applicant’s brother deposed:
In or around November 2017, I was informed by the Applicant and I verily believe that he and the Respondent had separated and that it was at this time that the parties commenced living in separate bedrooms at the former matrimonial home…
In his subsequent affidavit, the applicant’s brother deposed to the discussion and purported agreement referenced earlier in my reasons and now relied by the applicant in support of the application.
I have concerns as to the reliability of the evidence of the applicant’s brother given the conversation he alleges took place in November 2017 did not feature in his first affidavit or the applicant’s affidavit and where it cannot be reconciled with the evidence of the applicant, who deposed that by November 2017 the respondent’s condition had deteriorated to the point where she had no memory of who the applicant was to her.
Dr C deposed he was asked by the applicant to express a view about the respondent’s ability to understand the concept of the asserted separation in 2017. Dr C deposed he could not comment on the parties’ separation under the one roof in 2017, from which I infer it was not a matter he was informed of when treating the respondent. He confirmed the respondent always attended her appointments with the applicant and continuously authorised him to discuss her disease, symptoms and treatment with the applicant. He deposed he saw the parties on eight occasions during 2017 and, from a clinical review of his notes taken contemporaneously with those visits, Dr C observed the respondent’s cognition to be intact and she was able to communicate well, although he observed she was deteriorating physically. He deposed he was thus confident in his opinion the respondent had the capacity to understand the concept of marriage breakdown and the changed nature of the parties’ relationship. Again, it is difficult to reconcile this evidence with that of the applicant, who deposed that by November 2017 the respondent’s condition had deteriorated such that she no longer had any memory of who he was to her or recall that they had been in a relationship.
The applicant deposed to continuing to assist the respondent to attend appointments with various practitioners and support workers under a NDIS plan. He did not adduce any evidence from those services or government agencies supporting any change in the nature of the parties’ relationship or status. As already noted, Dr C was unable to comment on the matters asserted by the applicant in respect of the parties’ marriage relationship in 2017 notwithstanding he met with them on eight occasions that year.
The NDIS plan approved in early 2022 (approximately four years after the asserted date of separation) annexed to the applicant’s affidavit provides the following information about the respondent:[12]
About me
I currently live independently in a private rental property with my husband, [Mr Zigouras] who works full-time. He provides all of my informal support and has been supporting me with by daily living activities for approximately seven years; my symptoms presented around eight years ago.
[…]
My husband and support worker/s assist me with my daily living activities. I am supported with feeding as I am no longer on solid food. I supplement my diet for weight gain purposes.
[…]
My Family and friends
•My husband supports me with my daily living activities.
[12] Annexure MRZ-01.
[…]
Short-term goal
I would like to maintain my current level of function for as long as possible, as well as increase my independence in terms of home help and accessing the community without having to rely solely on my husband.
[…]
Medium or long-term goal
I would like to work with my husband, OT and Support Coordinator to explore what my future living arrangements with my husband will look like.
This information was presumably provided on behalf of the respondent by her NDIA planner in consultation with the applicant given the evidence of Dr C that the respondent was predominantly non-verbal and suffering significant cognitive impairment by March 2022. It does not point to any change in the nature of the parties’ marital relationship by March 2022.
The applicant deposed he has been receiving a disability pension since 2019. He did not adduce any evidence he had notified Centrelink or other government departments of the parties’ separation under the one roof.
Determination
I have endeavoured to examine and contrast the state of marital relationship before and after the alleged date of separation in November 2017 as the authorities identify is required. On the evidence before me I am not satisfied the applicant has established a change in the parties’ relationship, gradual or sudden, constituting a separation in November 2017. Whilst the matters deposed to by the applicant might point to the erosion of the marriage over the passage of time as described by the Full Court in Falk, they could also be referable to the deterioration of the respondent’s health and the application taking on an increasing role as her carer, as her spouse, rather than any intention to end their marriage relationship.
In the absence of persuasive evidence from the applicant that he formed and acted upon the view that the marriage had completely and irretrievably broken down and reliable corroborative evidence of their changed nature in their relationship in November 2017, I am not satisfied the parties separated under the one roof on 17 November 2017 as asserted by the applicant.
It may be that the court could be persuaded of the breakdown of the parties’ marriage at a later date. For example, upon a decision being made by the applicant in late 2022 for the respondent to move into disability accommodation, the respondent entering care in March 2023, relying upon Ms D’s evidence that she explained the divorce application to the respondent on 31 August 2023 in the presence of her support worker, and relying upon the appointment of the respondent’s sister as her guardian and administrator in November 2023. However, each of those events falls within the 12 months immediately preceding the application (filed on 27 March 2023), so cannot establish the ground for a divorce order to be made pursuant to the application before the court. Whilst the prospect of the applicant withdrawing the application and filing another was mentioned at previous hearings, this was not a course taken by the applicant and I am required to determine the application before me on the evidence adduced by the applicant.
CONCLUSION
For the reasons set out above, I am not satisfied the evidence before me establishes the parties’ marriage broke down irretrievably, demonstrated by no less than 12 months separation immediately preceding the date of the filing of the application for divorce. Accordingly, the application fails and will be dismissed.
I will make an order requiring the applicant to provide a copy of these orders to Ms B, as the respondent’s VCAT appointed guardian and will also arrange for the court to provide to VCAT a copy of the order I make along with these reasons once settled.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 28 June 2024
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