Successful Contested Divorce Hearing

Court:

Federal Circuit and Family Court of Australia

Background and Facts

In 1975, with the passing of then ground-breaking and new Family Law Act, Australia introduced the “no-fault” divorce. This allows a party to a marriage to unilaterally Divorce their Husband or Wife without need to substantiate reason or fault.

Divorce Applications are typically dealt with in a singular and very brief Court Hearing that often does not require the attendance of the parties or any legal representation. They are also normally considered by Judicial Registrars, who are not Judges but hold similar but reduced powers.  However, where disputes arise in Divorce Applications (especially with respect to the date of final separation) matters can become substantially more complicated and may take several hearings to resolve or even require determination at Trial by a Judge to be settled.

Our client in these proceedings was the Husband, who we previously represented in an Application for Divorce. Our office successfully obtained an Order for Divorce for the Husband in the instance where the Wife had responded to our Divorce Application, but later discontinued it on the advice of her then Solicitor.

Upon the Divorce Order being granted, the Wife brought a further Application seeking that the Divorce Order be rescinded.

This new Application raised several issues, which brought concern as to whether the parties had been living separately and apart for at least twelve months prior to the original Application for Divorce being filed. This is a crucial element of a Divorce Application in Australia, as parties must be separated for no less than twelve months to be eligible to file a Divorce Application. Information about Divorce Application requirements are available on our website.

Our client maintained consistently that he and his Wife had been living separately and apart for the twelve months immediately preceding the filing of the Original Divorce Application.

These assertions were fiercely combatted by the Wife and as a result, the matter was listed before and heard by Division 2 of the Federal Circuit and Family Court of Australia to determine whether the Divorce Application should be rescinded as a result of the extent of the parties ongoing relationship, if any.

Proceedings

The Wife filed several Affidavits with evidence that the parties had not been separated, these assertions included:

1. That the parties had continued to live under one roof after the alleged date of final separation;
2. That there was an ongoing financial relationship between the parties;
3. That there was an ongoing sexual relationship between the parties; and
4. That the parties had appeared in public indicating that they were still in a relationship.

Evidence was filed by our office addressing the Wife’s claims from our client. We also enlisted the assistance of his housemate, who swore an Affidavit attesting to his perception of the parties’ separation. The housemate was cross-examined at Trial to this effect.

Our office drew the Court’s attention to long-standing Family Law precedents, which form the basis for no-fault divorce as provided in the Family Law Act 1975 (Cth), these included (among others):

1. Pavey & Pavey [1976] FamCA 36 (“Pavey”)

This precedent is a full Family Court decision confirming that a marital relationship can irretrievably break down even when there is not a physical separation, and the parties are forced to continue living under the same roof. It also affirms the tenet of Divorce in Australia that only one party needs to have formed the intention to separate, communicate and act upon said intention.

2. Falk and Falk (1977) 3 Fam LR 11,238

This precedent is supplementary to that in Pavey, in that it affirmed that separation an occur when the parties to a marriage deviate from the typical state of being. On this basis, parties can be separated even in the instance that they are continuing to assist the other with household services or living under the same roof.

3. Bell and Bell (1979) 5 Fam LR 21 (“Bell”)

Our office had to contend with a plethora of allegations suggesting the relationship continued due to the continuation of sexual relationships. Bell indicates that the facts of each case should be treated individually, but parties can continue to engage in sexual intercourse or in sexual acts and remain separated as such acts are not wholly indicative of the existence of a relationship.

Judgement

As a result of the evidence provided by our office, coupled with a precedent referred to, the Honourable Trial Judge was able to return judgement within two weeks, satisfied that the parties had been living separately and apart for the twelve months preceding the Divorce Application.

The Application brought by the Wife was dismissed and the Divorce Order originally granted was made by the Court was ordered to take effect in thirty days from the date of judgement.

Contact Us

If you would like advice about your Divorce Application and wish to obtain an understanding of the options available to you, please contact our office on (03) 8391 8411 to book a free 30-day minute consultation with Mr Liam Palomba or one of our other experienced practitioners.