What constitutes the end of a marriage?

In a couple of previous posts I have mentioned cases where the Court was required to examine the minutia of the parties lives to determine whether they were in a de facto relationship. You would ordinarily think that with marriage it would be easier to tell. However, the Court is actually frequently required to delve into the details of a marriage to determine when it ended - either for the purpose of an Application for Divorce or in order to determine the contributions that were made during the marriage in relation to a property division application.

Yesterday just such a case caught my eye when it was headlined on http://www.smh.com.au/act-news/i-wouldnt-have-married-her-if-id-known-she-had-deformed-nipples-exhusband-20150412-1milj4.html as "'I wouldn't have married her if I'd known she had deformed nipples': ex-husband".  Attention grabbing isn't it?

The case, published as Drysdale & Drysdale [2014], is a decision by Judge Neville in the ACT relating to a dispute between husband and wife as to the length of the marriage and the contributions of each of them during that time and post-separation.

His Honour stated that the husband was intent on having the Court determine the actual date of separation - "in his view it was essential that this occur because, he said ... (a) separation was in 1999, and (b) once this was established, in some way (he contended) this had the effect of quarantining his assets from the Wife's pursuit of them after that date. Respectfully the Husband was and is inaccurate in this regard in at least two respects. First, for the purposes of property proceedings, the date of separation does not, of itself, determine whether the assets of one party are or are not included in the asset pool ..."

The husband claimed that the relationship ended in 1999 but the wife stated that it ended in 2011.The husband, in his affidavit and in his oral evidence, set out his view that he intended to leave the marriage in 1974 when he had become aware of what he called a disfigurement of the wife (the Judge commented in the judgement that the description by the husband was "tersely lurid and doubtless hurtful"). The husband claimed that he nonetheless stayed with the wife for the children.

His Honour noted "whatever the Husband subjectively thought or intended regarding the date of the end of the relationship, it is for the Court to make determinations objectively in the light of the evidence presented to the Court.

Judge Neville determined the date of separation as 2011.

In doing so the Judge observed the following:

• The couple were married in 1972. The first child of the marriage was born in 1974 and two further children followed.  
• Attached to the wife's affidavit were date-identified photographs of the parties, post 1999, which suggested that the parties presented publicly - and did so over a period of time - as a couple. There was also affidavit material from friends stating that the parties appeared publicly as a couple. 
• The parties attended various family events, went to dinner with friends and alone together, and continued to go on holidays between 1999 and 2011. The husband claimed that he attended these events as a friend, or father to his children. 
• The husband completed the wife's tax return until 2002.
• In 2004 AAT proceedings the husband identified the parties as husband and wife.
• The parties utilised a shared credit card until 2007.
• The parties attended marriage counselling together during this period. 
• The husband confirmed that they slept in the same bed together - at least until 2006.
• No family members were told of the separation until 2011. Indeed the husband gave evidence that he was annoyed with the wife for having told his mother of the separation in 2011.

Application for Divorce - considerations

With the introduction of the Family Law Act in 1975 the principal of no-fault divorce was established in Australia.

This means that when an Application for Divorce is made the Court does not consider why the marriage ended. The only consideration is that the marriage has broken down irretrievably - there is no reasonable likelihood of the parties reconciling their relationship.  

How does the Court determine that the marriage has broken down irretrievably? The criteria used is that the parties have been separated for 12 months and one day.

If the Court is satisfied that the parties have been separated for 12 months and one day the Application will be granted.

There can sometimes be a dispute about the date of separation - and hence if the 12 months and one day has occurred, and it can be necessary for evidence to be adduced to satisfy the Court of the date of separation.

Indeed, that the required 12 months and one day has not passed is one of only two grounds where an Application for Divorce can be opposed by the other party (the other is that the Court does not have jurisdiction).  If a Response is filed refuting the date of separation the Court will consider the matter and determine if the Divorce Order will be made.

Is it a de facto relationship?

Last year I wrote an article on the concept of 'living apart together'. In that article I touched on the case of Sinclair and Whittaker [2013] where the Full Court said that "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". I had cause to consider the facts of that particular case recently and they caught my attention.

The parties began dating in late 2002. In August 2004 the respondent's flatmate vacated their flat and the appellant moved some personal belongings in. The appellant began to contribute $600 each month towards the respondent's rent.

In December 2005 the parties purchased a unit with the appellant providing the deposit and paying the stamp duty. The unit was put in the name of a corporate entity wholly controlled by the appellant with a 70% interest to the corporation and 30% to the respondent. The respondent and the corporate entity jointly borrowed monies from the appellant's business which was a mortgage provider.

The respondent described herself as single on forms to do with the purchase when an available option was de facto. The parties each contributed $15,000 to a fund which was used for the purchase of furniture and accessories for the apartment and they shopped for those items together.

The appellant stayed at the unit on average three nights per week but left at 4:15 AM each morning to commence work from his own premises.

The parties spent many weeks each year away together and enjoyed time with the respondent's family in Queensland between 2 to 4 times per year.

The respondent described herself as single and not in a de facto relationship on documents provided to the ATO.

On 21 December 2006 the appellant gave the respondent a 2.17 carat diamond ring which was found to have been described by the appellant as a promise ring.

The relationship broke down on 21 September 2010.

The appellant claimed to have had relations with other women during the period of the relationship however the appellants driver gave evidence that was inconsistent with this statement.

Thoughts?

The trial judge concluded, based on those facts, that the parties had been in a de facto relationship. On appeal the Full Court was satisfied that that decision was open to the trial Judge on the facts before him and no error in His Honour's reasoning was identified.

Varying existing parenting Orders - "the rule in Rice and Asplund"

The Family Court and the Federal Circuit Court of Australia have a clear principle that a Court should only hear an application to vary an earlier Order if it is satisfied that there is some changed circumstance which would justify such a serious step. This is known as the "rule in Rice and Aspland".

The rule in Rice and Asplund applies whether the earlier orders were made by consent of the parties or after a contested hearing before the Court.

The principle underpinning the rule in Rice and Asplund is that there should be an end to litigation, that is the avoidance of endless litigation between parents examining again and again the same issues and arrangements.

However, there are instances where it is necessary for a Court to revisit earlier Orders. While there is no exhaustive list of what constitutes a changed circumstance in previous cases this has included psychological and physical changes in the child, evidence of violence towards the child, a parents recovery from former mental health issues, a proposed relocation by one parent and a parents new stable relationship or marriage.

Should one parent bring an application to revisit earlier Orders and a Court be satisfied that there is a changed circumstance than the matter is considered again by the Court and new Orders may be made.

Court filing stats

The Australian Bureau of Statistics (ABS) has released its figures on the Family Law Courts. They cover the period 2004/5 to 2012/13.

The key findings were:

• Court filings in children's matters in 2012/13 reflect a 25% decrease on the 2004/5 levels.  
• In relation to property matters there has been a 17% increase in filings.

These figures are interesting as they potentially reflect two events that occurred between 2004/5 and 2012. 

Firstly, in 2006 amendments were made to the Family Law Act designed to decrease the level of parenting litigation (covering children of both married and de facto couples) and instead to encourage parties to use services such as mediation to resolve disputes. This may explain the decrease in the children's matters filing levels.

Secondly, in 2009 further amendments were made to the Family Law Act which brought the property division of separating de facto couples under the Family Law Act for the first time. This may explain the increase in property matter filing levels. 

The report can be found at: www.aifs.gov.au/institute/pubs/resreport30/index.html 

Court resources

Family law in Australia is served by two Courts, the Family Court of Australia and the Federal Circuit Court.

The two Courts both have jurisdiction under the Family Law Act but matters are divided between them in accordance with a Protocol which essentially sees the more complex matters heard by the Family Court and the vast majority of matters heard by the Federal Circuit Court. According to the available data in 2013/2014 the Family Court received 2,923 Applications for Final Orders while in 2012/2013 the Federal Circuit Court received 17,363 Applications for Final Orders.

While there may be a division of work between the two Courts both Courts deal with incredibly important issues relating to the breakdown of a relationship or marriage, including who is to care for the children and how people are to divide their assets. Delays in having the Courts determine such matters has an impact on the lives of the parties, their children and everyone in their extended families and support network.

The Courts are facing something of a predicament with both Courts facing the retirement of many Judges. The Federal Circuit Court will have, over the next year, the departure of 12 - or around a quarter of its Judges.

The Chair of the Family Law Section of the Law Council of Australia, Rick O'Brien, has said "The family courts are genuinely in crisis, and with these retirements things are going to get worse."

Chief Judge of the Federal Circuit Court has previously stated that because of a lack of funding, under staffing and an increasing workload the Federal Circuit Court is already struggling to keep up with the cases coming before it. His Honour went on to say that the replacement of Judges was "critical in ensuring that families in distress are dealt with as quickly as possible."

The President of the Law Council of Australia said "failure to adequately resource the family law system by replacing judges promptly will have a snowballing effect, the social and economic cost of which will continue to be felt by the community for years to come."

A spokesman for the Federal Attorney-General told the SMH that "In the current economic climate all areas of government, including the courts, must look for ways to work more efficiently and effectively. The Attorney-General is carefully considering all available options for any administrative and structural reform to address long-term financial sustainability of the federal courts."

This is seemingly in opposition to the views expressed by the Law Council of Australia. Duncan McConnel, told the SMH "given the significant and often traumatic emotional and financial burden on separating families, and children, the government must commit to finding additional resources to address such delays. Such a commitment requires, at the minimum, that retiring judges are replaced promptly."

What is a Case Guardian?

Generally when people separate following the breakdown of a relationship or marriage each party will seek independent legal advice to negotiate a settlement of the matters or to commence court proceedings if necessary. However from time to time questions may arise as to whether one of the separating parties has the necessary capacity to make their own legal decisions.

If someone has an illness or condition which could affect capacity and ability to provide instructions to a solicitor it is necessary to consider how instructions are to be taken and how advice is to be provided.

Sometimes it will be necessary to consult with the client's treating doctor or specialist for an opinion as to the person's capacity to understand legal advice and make legal decisions.

Should such an expert state that the person does not have capacity but the action or proceedings need to continue it will be necessary to consider whether a Case Guardian should be appointed.

A Case Guardian is appointed by the Court in accordance with the requirements set out in the Family Law Rules 2004.

Rule 6.08 provides that a person with a disability may start, continue, respond to or seek to intervene in a case only by Case Guardian.

A person with a disability is defined as a person who, because of the physical or mental disability:
a. Does not understand the nature or possible consequences of the case; or
b. Is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

Rule 6.09 of the rules state that a person may be a case Guardian if the person is:
1. An adult;
2. Has no interest in the case it would be adverse to the client;
3. Can fairly and competently conduct the case; and
4. Has consented to act as a case Guardian.

Evidence as to these factors is presented to the Court in the form of an Affidavit.

The recent case of Crowley and Child Support Registrar [2015] reviewed the appointment of a Case Guardian.

In this matter Mr Crowley's mother sought to be appointed as his Case Guardian. Mr Crowley's mother filed an affidavit with the Court setting out evidence that as a result of a motor vehicle accident in 1992 Mr Crowley suffered a severe brain injury and that in 1994 he was classified as permanently incapacitated. Attached to the affidavit was medical evidence supporting these statements. Mr Crowley's mother also stated in her affidavit that she had been appointed his Power of Attorney, was familiar with the legal issues in relation to the proceedings and had been assisting her son for some time. Mr Crowley's mother was appointed as his Case Guardian.