Price & Underwood [2008]

FAMILY LAW - APPEAL – DIVORCE ORDER – LIVING SEPARATELY AND APART – Whether Federal Magistrate erred in finding that the parties’ marriage had irretrievably broken down at date of filing of the divorce application – Where s 48(2) of the Family Law Act 1975 (Cth) requires the parties to have lived separately and apart for not less than 12 months immediately preceding the date of filing of the application for the divorce order – Amendment of an application does not alter date upon which it was filed - Discussion of “separation” and “irretrievable breakdown of marriage”- Importance of communication of intention to separate – Where in the circumstances of this case, there had been no communication of a desire to end the marriage – Appeal allowed – Divorce order set aside.

FAMILY COURT OF AUSTRALIA

Clarke & Clarke [1986] FamCA 29; (1986) FLC 91-778
Falk & Falk (1977) FLC 90-247
G v H [1994] HCA 48; (1994) 181 CLR 387
Pavey & Pavey (1976) FLC 90-051
Todd & Todd (No 2) (1976) FLC 92-008
Whiteoak & Whiteoak (1980) FLC 90-837

REPRESENTATION

ORDERS

15 April 2008:

(1) The wife’s appeal against the order 1 of Federal Magistrate Turner of 9 April 2008 is allowed.
(2) The divorce order made 9 April 2008 be set aside.
(3) The husband’s appeal against orders 2 and 3 of the orders of Federal Magistrate Turner is dismissed.

22 April 2008:

(1) That orders 2 and 3 of the orders of Federal Magistrate Turner of 11 April 2008 be set aside.
(2) That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.
(3) That the Court grants to the respondent husband a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of such part as the Attorney-General considers appropriate of the costs incurred by the respondent in relation to the appeal.

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

Appeal Number: SA 25 of 2008; SA 26 of 2008
File Number: MLC 13425 of 2007

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 16 April 2008 we had listed before us, on an urgent basis, two appeals against orders made by Federal Magistrate Turner on 9 April 2008 and 11 April 2008 in contested divorce proceedings commenced by Mr Underwood (“the husband”). The first appeal was an appeal by Ms Price (“the wife”) filed on 10 April 2008 in which she challenged the granting of a Certificate of Divorce on the basis that the parties’ marriage had not irretrievably broken down at the date of filing of the divorce application. The husband filed an appeal on 14 April 2008 (“the second appeal”) in which he challenged the Federal Magistrate’s order refusing to shorten the period within which the divorce order would take effect.
2. The appeals were listed in tragic circumstances. The husband was terminally ill, and his death was imminent. It was for this reason that both parties requested that their appeals be heard urgently. The parties’ legal representatives agreed we should first hear and determine the wife’s appeal, which we proceeded to do. We upheld the wife’s appeal and the divorce order was set aside. As a consequence of the divorce order being set aside the husband’s appeal against the Federal Magistrate’s refusal to reduce time was dismissed without the necessity for us to hear the second appeal. Because of the urgency of the situation we made orders and reserved our reasons in respect of the wife’s appeal, and in respect of costs of the appeals. These are our reasons.
3. Although the wife’s Notice of Appeal contained twelve grounds, the appeal was argued on two primary bases:
   • an asserted error of law by the Federal Magistrate in failing to deal with the issue of the irretrievable breakdown of the marriage, evidenced by twelve months separation, in accordance with well established principles; and
   • error by making a finding, unsupported by the evidence, that the husband had conveyed, by living separately, a “conscious decision” to bring the marriage to an end, and “the wife was made aware of that circumstance.”
4. We found merit in each of these challenges.
5. The wife’s senior counsel also sought to agitate a third challenge directed to the Federal Magistrate’s finding that in all the circumstances proper arrangements had been made for the parties’ 16 year old daughter. This issue was not raised in the wife’s Response or in the Court below, and we rejected the attempt to pursue it before us.
6. In these reasons we will set out briefly the relevant factual background to the divorce application, then record relevant details of the evidence before his Honour. Thereafter, we will examine his Honour’s reasons for judgment, and discuss those reasons in light of well established principles from the case law. We will also, so far as they are relevant, incorporate into our discussion written submissions made by the parties to his Honour at the hearing, and the written and oral submissions before us. We are unable to refer to any oral submissions before his Honour as neither party provided the transcript. Although this was unfortunate, as the proceedings were determined on the written evidence, nothing turns upon it.

BACKGROUND

1. The learned Federal Magistrate’s reasons are brief and it is necessary to look to the Application for Divorce, the Response to Divorce and the material before his Honour to discern the salient facts.
2. The husband was born in June 1952 and the wife was born in July 1956.
3. The parties were married in February 1986 in Melbourne, Victoria.
4. There are two children of the marriage namely T born in June 1989 and K born in September 1991.
5. At the time of the parties’ marriage the husband was a divorced person. He had two children from his previous marriage, J and N (“Ms Underwood”). They are both over the age of 18 years. They were appointed attorneys for the husband pursuant to an enduring Power of Attorney dated 18 May 2007.
6. On 12 December 2007 the husband filed an Application for Divorce in the Federal Magistrate’s Court, Melbourne Registry. In paragraph 14 of the application the husband asserted the parties’ date of separation was “October 2005”.
7. On 11 January 2008 the wife filed a Response to the husband’s Application for Divorce. She submitted that the divorce application should be dismissed because the husband filed the application prior to “the expiry of the twelve months separation required by the Act.”
8. The husband’s Application for Divorce was listed for hearing at 9.15 am on 31 January 2008.
9. On 22 January 2008 the husband’s solicitors wrote to the wife informing her that he was adamant about the date of separation. The wife was informed that the husband’s poor health made it impossible for him to attend Court on the appointed date, and asked her to consent to an adjournment of his application until sometime in May 2008. The wife responded to this letter on 29 January 2008.
10. The same day the wife wrote to the Federal Magistrates Court agreeing to the husband’s adjournment application. In her letter the wife highlighted the dispute concerning the separation date and her contention that the husband’s application was defective.
11. The husband’s application was adjourned to 22 April 2008.
12. On 2 April 2008, the husband’s solicitors wrote to the wife and advised that the husband only had “a very short time to live and it may well be that he does not survive until the adjourned hearing date...” The husband’s solicitors further recorded it was the husband’s wish to be divorced as soon as possible.
13. The husband’s Application for Divorce was then listed for hearing before his Honour on 9 April 2008. A divorce order was made. At this hearing both parties were represented by senior counsel. The proceedings were adjourned until 11 April 2008 to deal with the parties’ competing applications as to when the divorce order would become effective.

EVIDENCE BEFORE THE FEDERAL MAGISTRATE

1. The Application for Divorce filed on behalf of the husband was signed by him in the presence of Ms Underwood, who is a legal practitioner, on 16 December 2007. The relevant boxes and parts of the printed material on the divorce application as to whether the document was sworn or affirmed were not completed. The husband disclosed his residential address in a suburb of Melbourne (“A Street”) and that the wife’s address was in the same suburb (“B Street”). Paragraph 14 of the application which is a numbered paragraph in the prescribed form was completed as follows:
   1. Date of separation (day/month/year) Date: October 2005
2. The husband completed paragraphs 15a, 16a and 17a as follows:

15a. At the date of separation, did you Husband Τ Yes ≤ No

regard the marriage as over? Wife ≤ Yes ≤ No

16a. Since the date of separation,

have you and your spouse ≤ Yes Τ No

lived together in the same home

but not as husband and wife?

17a. Since the date of separation,

have you and your spouse ≤ Yes Τ No

lived together as husband and

wife?

1. On 11 January 2008 the wife swore an affidavit in which she deposed that the facts stated by her in a Response to Divorce were true to the best of her knowledge, information and belief. We now reproduce paragraph 6 of the Response as completed by the wife:

1. Set out why the The Applicant has issued his application for

Application for dissolution prior to the expiry of the twelve

Divorce should be months separation required by the Act.

dismissed

Attach extra pages if

required.

1. In paragraph 7 of the Response the wife said she disagreed with the date of separation asserted by the husband. The wife deposed:

...

The applicant asked me for a divorce on the 3rd April 2007 in the carpark of Victoria Gardens, after a dispute about my attendance at a [professional dinner].I believed he was angry and being spiteful as he was suffering from ill health.

Prior to that date I was not aware that the Applicant wanted to end our marriage.

...

1. The wife also deposed:

...

The Applicant and I did not separate in October 2005 as alleged by him and although our marital relationship changed from the 3rd of April 2007, I realised our marriage had finally ended in October 2007 when the husband of [Ms J] advised me of the affair between her and the Applicant.

...

1. In correspondence annexed to the wife’s affidavit sworn 8 April 2008 to which we will refer to shortly, the wife said in a letter dated 29 January 2008 to the Federal Magistrates Court:

The Husband filed his Application on the 12th December 2007 and it is my assertion that the separation occurred at the earliest, on the 3rd April 2007, making the filing of the Husband’s Application premature in accordance with the provisions of the Act. That being the case the Husband’s current Application has to be determined by way of a contested hearing and as we are both [engaged in professional occupations], the Husband now retired, a suitable Federal Magistrate will have to be assigned the matter.

1. In the Response the wife deposed to matters relevant to the parties’ relationship between October 2005 to April 2007. These included:
   • from April 2007 cessation of payment of housekeeping, or the children’s school fees and expenses, other than K’s mobile phone bill by the husband;
   • cessation of marital relations at the end of March 2007;
   • use of the husband’s office by the wife until March 2007;
   • very frequent telephone communication between the parties until 3 April 2007;
   • attendance by the husband at B Street for dinner with the children several times each week;
   • an overnight stay by the husband on Christmas Eve 2006 at B Street;
   • lunching with the wife to celebrate the parties’ wedding anniversary in February 2006, and having coffee together to celebrate their wedding anniversary in February 2007;
   • lunching or have coffee with the husband on a regular basis when the parties were working and when the wife came to be with the husband when he was at work;
   • joint purchase of new mobile phones in December 2005 with the account for the phones placed in the wife’s sole name;
   • jointly arranged sale of real property;
   • attendance of the parties at school functions for the children;
   • attendance of the parties at professional functions;
   • attendance at social functions as a family;
   • family dinners to celebrate the wife’s birthday and father’s day.
2. In her affidavit sworn on 8 April 2008 the wife set out the history of significant events in the parties’ marriage, including their separation in 1991, which was followed by proceedings in the Family Court, when an order was made that the husband vacate B Street, that the wife have exclusive occupation of that property, and sole custody of the parties’ child, T.
3. The wife further deposed that the husband, after the making of the orders, relocated to rented premises and subsequently purchased the A Street property. At paragraph 12 of her affidavit the wife deposed:

About a month after the orders were made, the husband and I reconciled and continued our married life with the husband and his two older children, [Ms Underwood] and [J], residing [in a Melbourne suburb in Victoria], and myself and [T] residing at [B Street], and it was further agreed by us that after [Ms Underwood] and [J] were “off his hands”, we would then live together at [B Street] with our children.

1. At paragraph 14 she said:

Between when we reconciled and [sic] mid 1990’s the husband came to [B Street] most weekdays after work and on weekends. From mid 1990’s to 3 April 2007 the husband spent more time at [B Street] and, except for Wednesday night, the husband and I and [T] and [K] had dinner together when we weren’t out together. Our family, friends and colleagues entertained us as a married couple – we entertained them as a couple. The husband and I shared [offices]; the husband’s email address was also my email address. We had the same secretary. The husband’s [employee, Mr S], delivered my mail to me, via the husband. The husband and I continued to have sexual intercourse on a regular basis until March 2007. Each year after [sic] mid 1990’s in [sic] June/July school holidays we holidayed overseas and most Januarys we holidayed in Queensland.

1. Ms Underwood swore an affidavit on 7 April 2008 in support of the husband’s Application for Divorce. In her affidavit she deposed:
   1. Since October 2005 and when my father has not been hospitalised he has stayed at [A Street]. He has primarily since October 2005 been cared for by my brother and myself as well as his parents, his brother and over the past several months, his partner [Ms J].
   2. From August of 2006 until March of 2007 I rented and primarily resided in another property with my partner. Despite not regularly sleeping at [the A Street property] I visited the home and cooked my father meals on 3 or 4 evenings per week. I, together with the persons referred to in paragraph 4 herein have been caring for my father without any involvement of the wife, for the past 2 ½ years.
   3. During our many discussions post October 2005 my father has often expressed to me and others in my presence, a very strong wish to be divorced from his wife, [Ms Price]. His wishes became even stronger in late 2007 before he was due to become an inpatient for 5 or 6 weeks [at a Melbourne hospital]. My father was at that time to undergo [radical medical treatment]. As a result of my father’s express wishes to me, I advised Mr [G], his solicitor that my father wanted his divorce proceedings commenced.

...

1. I have been advised by Mr [G] that the wife filed a Response in respect of my father’s Application disputing the date of separation. I spoke with my father about that response and it was agreed that given that the 12 months separation, even on the wife’s version of events, would be completed in early April that it was appropriate and would be less stressful to him, for the Application to be adjourned to a date after the expiration of 12 months separation- on Ms [Price’s] view of matters. Hence my father’s Application was adjourned to the 22nd of April 2008.

THE FEDERAL MAGISTRATE’S REASONS FOR JUDGMENT

1. The Federal Magistrate delivered ex tempore reasons for judgment on 9 April 2008. After recording formal matters relating to service, proof of the marriage and the husband’s citizenship his Honour said:

The Court finds the ground in s.48(1) of the Family Law Act 1975 (“the Act”) proved. The marriage has broken down irretrievably. The wife concedes that if the Court finds that the marriage has broken down irretrievably, the date of that breakdown is 3 April 2007. (paragraph 4)

1. His Honour then recorded, correctly, the import of s 48(2) of the Family Law Act 1975 (Cth) (“the Act”), noting the necessity for the parties to have lived separately and apart for not less than 12 months immediately preceding the date of filing of the application for the divorce order.
2. His Honour’s findings in relation to separation were set out in paragraphs 6, 7 and 12 of his judgment as follows:
   1. The Court finds that the parties separated in October 2005 and have lived separately and apart since at least that date.
   2. In reaching that conclusion the Court relies on the application (paragraph 14) and affidavit of [Ms Underwood] sworn 7 April 2008 (paragraph 4).

...

1. The Court is satisfied that [sic] husband living separately from the wife since October 2005 shows a conscious decision by the husband to bring the marriage to an end and the wife was made aware of that circumstance.
2. His Honour’s findings concerning the wife’s uncontested evidence were as follows:

The Court rejects contentions that events since that time show that the parties have not lived separately and apart. Although they have had frequent contact and association, they live separately and apart. Having dinner together, being entertained as a couple, going to school functions and being intimate does not show that the parties are not living separately and apart. (paragraph 8)

1. His Honour ordered that “The Court grants a Certificate of Divorce to be effective on a date that the Court must now determine.” Although the wording of the order is confusing, it appeared to us that his Honour intended to convey his decision to grant a divorce order. The issue of a Certificate of Divorce is a matter for the Registry Manager consequent upon an effective divorce order (s 56).

RELEVANT LAW

1. Before we refer to the relevant statutory provisions it is necessary we refer to the terminology used in the wife’s senior counsel’s submissions before the Federal Magistrate. Senior counsel submitted:

On 2 April 2008 by letter to the wife and to the court, the husband made an informal application that a decree nisi be made absolute forthwith. (paragraph 21)

1. We note the Act no longer uses language such as “decree nisi” or “decree absolute”. By virtue of the Family Law Amendment Act 2005 (Cth) the language of divorce changed. We understand the wife’s senior counsel’s reference to a decree nisi as being to a divorce order. Reference to decree absolute we understand to be reference to the date upon which the divorce order is effective.
2. It is appropriate prior to our discussions of the issues agitated on appeal to set out the relevant sub-sections of s 48 of the Act.
   1. (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.

1. Unsurprisingly, the question of the interpretation of “broken down irretrievably” and “separation” arose for consideration shortly after the introduction of the Act. In the marriage of Todd & Todd (No 2) (1976) FLC 92-008 Watson J referred to the meaning of separation and said at 75,079:

...[i]n my view “separation” means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.

1. The decision of Watson J in Todd (No 2) was the subject of consideration by the Full Court in Pavey & Pavey (1976) FLC 90-051. In Pavey the Full Court (Evatt CJ, Demack and Watson JJ) expressed their general agreement with the comments of Watson J in Todd (No 2) (but disapproved of the use of the words “destruction of the marital relationship” and approved the wording in the Act itself, namely the “breakdown” of the marriage). Although in Pavey their Honours were dealing with a case of separation under the one roof they discussed the variable elements which constitute a marital relationship noting that they provided a valuable checklist, and explaining, at 75,212, that such elements could not be “applied mechanically” to determine whether there was or was not a continuing marital relationship. The Full Court added to the list of factors or elements which may be considered as part of the marital relationship “the nurture and support of the children of the marriage” (see also Falk & Falk (1977) FLC 90-247).
2. In Clarke & Clarke [1986] FamCA 29; (1986) FLC 91-778 Fogarty and Nygh JJ cited with approval the further statement of principle set out by Watson J in Todd (No 2) at 75,079 relevant to separation, that is, of living separately and apart. Lindenmayer J, with whom Fogarty and Nygh JJ agreed, explained, citing with approval Todd (No 2), Pavey and Falk, that the cessation of cohabitation involves a severance of the marital relationship, and stressed the importance of both physical separation and severance of the marital relationship. His Honour said:

However, it is also clear from sec. 49(2) that a separation (i.e. a cessation of cohabitation or a severance of the marital relationship) may be found to exist notwithstanding that the parties continue to occupy the same residence or to perform household duties, one for the other. Conversely the absence of residence under one roof and/or the performance by either party for the other of household duties do not necessarily establish a separation or a state of non-cohabitation.”

1. The point made here is that parties may live apart and regard their marriage as continuing.

DISCUSSION

1. The essential thrust of senior counsel for the wife’s submissions on the appeal was that his Honour had erred in law in reaching a conclusion about separation based on paragraph 4 of Ms Underwood’s affidavit, and rejecting the wife’s uncontested evidence when she was available for cross-examination, but was not cross-examined.
2. It was further asserted that there was a complete failure by his Honour to consider and make factual findings about the nature of these parties’ marital relationship before and after October 2005, the asserted date of separation, to determine whether or not the facts established a separation bringing the marriage to an end at that date.
3. There is no doubt that there were “unusual” aspects of the parties’ marriage after their initial separation in 1991 and reconciliation shortly thereafter. At all times after their reconciliation they maintained separate residences, save and except for a short period following the husband’s original illness and diagnosis. On Ms Underwood’s evidence he stayed “for a period of time” with the wife “on and off between April 2005 and September 2005 whilst he was not undergoing treatment in hospital” (paragraph 3, Affidavit 7 April 2008).
4. We were satisfied his Honour failed to evaluate the wife’s evidence of the nature of the parties’ relationship, particularly as set out in paragraph 14 of the wife’s affidavit sworn 8 April 2008 and in her Response, with the evidence of Ms Underwood which we have already set out.
5. In G v H [1994] HCA 48; (1994) 181 CLR 387, which was a parentage case, Brennan and McHugh JJ at p 391 said:

But, when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response. As Mason CJ, Deane and Dawson JJ explained in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 at 227:

it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.

1. There is nothing in the wife’s evidence which is inherently incredible. In rejecting the wife’s uncontested evidence we are of the view that the Federal Magistrate fell into error.
2. We were further satisfied that the Federal Magistrate failed to carefully examine, or examine at all, the state of the parties’ relationship pre October 2005 when the husband asserted separation occurred, with the way the parties lived post that date, and to make findings as to how that relationship was different (if it was) to that which had pertained since the mid 1990s.
3. We rejected as sufficient to satisfy the ground in this case the use by the husband of the A Street property as his residence after his release from hospital in October 2005. The only evidence before his Honour was that the husband had lived in the A Street property on and off from 1991, other than on his admission to hospital, and on occasional periods when he stayed at the wife’s residence. There was no change in this aspect of the parties’ marital relationship, but his Honour relied on the husband’s residence in A Street after October 2005 as evidencing separation.
4. His Honour failed to deal, except in very general terms, with the wife’s evidence, and in particular, her evidence of the cessation of financial support from April 2007, the cessation of a sexual relationship shortly prior to that time, as well as the myriad of other aspects of the parties’ relationship which appeared on the wife’s evidence to continue in much the same manner as prior to October 2005 up to April 2007 when the wife conceded a change in the nature of the marital relationship.
5. The second major challenge to his Honour’s order was the finding made in paragraph 12 of his Honour’s reasons for judgment. We think it appropriate again to set out paragraph 12:

The Court is satisfied that [sic] husband living separately from the wife since October 2005 shows a conscious decision by the husband to bring the marriage to an end and the wife was made aware of that circumstance.

1. The husband’s counsel’s written submission on hearing the appeal (paragraph 6) asserted:

His Honour was entitled to take into account all of the available evidence. That established beyond doubt that the parties had lived separately and apart since October 2005. It was open to His Honour to conclude that that showed that one of the parties at least (being the husband) made a conscious decision to bring the marriage to an end and that was made known to the wife.

1. At the hearing of the appeal we asked counsel to direct us to the evidence supporting the submission that the husband’s decision was made known to the wife. Whilst it was not in dispute that the husband made known to the wife in April 2007 that he wished to divorce, we were not referred to any evidence of the husband directly, or otherwise by his actions, conveying to the wife that he had made a conscious decision to bring the marriage to an end in October 2005 or any time thereafter up until April 2007. Whilst the husband’s counsel pointed to the events deposed to by the wife in her Response as constituting an ongoing marital relationship as being no more than indicia of responsible parenting, he did not direct us to any statements by the husband, or any conduct by him, which must have led the wife to know that the husband regarded the marriage as at an end before April 2007.
2. Perhaps as a consequence of the learned Federal Magistrate’s failure to consider the parties’ marriage prior to October 2005 he overlooked the importance, on the facts of this case, of the necessity for the husband to communicate to the wife his intention to end the marriage. In Falk the Full Court held at 76,333:

The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation. 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.

1. In concluding that the husband formed the necessary intention and, we infer, solely upon the basis of his return to A Street, communicated it to the wife the learned Federal Magistrate fell into error.
2. In concluding these reasons we think it necessary to refer to the submission made on behalf of the husband by his counsel in his aide memoir to the Federal Magistrate, which could have potentially led his Honour into error, and which refers to “a practice of the court.” Senior counsel for the husband said:

In the event the court determines to accept the wife’s separation date as being the relevant date, then on any view, 12 months has now passed since the parties finally separated. In these circumstances the practice of the court is to grant the application for divorce.

(Page 2, Husband’s aide-memoire)

1. We have already set out the provisions of s 48(2) of the Act. It is quite clear from that section that the parties must have been living separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing the application for the divorce order (our emphasis). The application in this case was filed in December 2007, that is, well prior to the conceded date of separation.
2. The wife highlighted the difficulties arising as a result of adjourning the application in her letter to the husband’s solicitors. In that letter she correctly pointed out that a later hearing date would not solve the problem arising from the disagreement concerning the date of separation. Relevantly the wife said:

Your client will have to decide therefore whether to pursue his current Application and provide evidence of his alleged date of separation and have the matter determined in a contested hearing or withdraw his current application and reissue after the 3rd April 2008 when the matter can proceed undefended.

(Wife’s letter to husband’s solicitors, 29 January 2008)

1. Although not stated specifically the wife’s point was that an amendment of an application does not alter the date upon which it was filed. The effect of this is that even if the husband’s application filed in December 2007 was adjourned, he could not have established the ground for a divorce order asserting an April 2007 separation (see Whiteoak & Whiteoak (1980) FLC 90-837). Further on in her letter the wife said that on 3 April 2007, when the husband asked her for a divorce, she told him he would have to wait until 3 April 2008.
2. The required procedure is that a fresh application should have been filed after 3 April 2008 if the uncontroversial agreed separation date was sought to be relied on by the husband.
3. For completeness we note at the conclusion of the urgent hearing before us neither party sought that the husband’s application for divorce filed on 12 December 2007 should be remitted for rehearing before Federal Magistrate Turner or another Federal Magistrate. That no such orders were sought may well have been due to the fact that the appeal was heard after regular Court hours and on short notice, and/or because our reasons were not available. We are now aware, by reason of hearing a stay appeal against orders made by Watts J on 16 April 2008, that the husband’s legal representatives filed a further application for divorce after the making of our orders, which application was heard on 16 April 2008. We assume that the husband’s legal representatives withdrew the application filed on 12 December 2007 in the Federal Magistrates Court.

COSTS

1. At the conclusion of the hearing before us we sought submissions from the parties in respect of costs. Whilst the wife’s senior counsel sought an order that the husband pay the costs of and incidental to the appeal, she agreed that, in the event the appeal succeeded on the grounds argued, namely error of law, it would be appropriate for us to grant costs certificates. We are satisfied this is an appropriate case for the granting of such certificates.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 22 April 2008