Yee & Woo [2018] FCCA 666 (23 March 2018)

Last Updated: 7 March 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

Legislation: Family Law Act 1975, ss.39, 48, 55,  55A , 60B

REPRESENTATION

ORDERS

THE COURT DECLARES THAT:

(1) There are circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that arrangements for the care, welfare and development of the children [X] born ... 2007 and [Y] born ... 2010 have been made.

AND THE COURT ORDERS THAT:

(2) The divorce order made on 12 February 2018 become final in one month’s time.

(3) All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

(4) A divorce order was made on 12 February 2018.

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

SYC 3676 of 2017

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns divorce proceedings between MR YEE (“the husband”) and MS WOO (“the wife”).
2. The husband filed his Application for Divorce on 14 June 2017 (“the divorce application”).
3. The wife filed a Response to Divorce on 11 August 2017 (“the response application”). In the response application, the wife disputes the date of separation asserted by the husband in the divorce application.
4. The applications came before me in the duty list on 4 October 2017 and, following brief submissions from the parties’ legal representatives, I was persuaded to list the matter for hearing on 12 February 2018, being a date more than 12 months after the wife alleges the parties separated, but also being a date earlier than I would have had capacity to hear a contested divorce hearing.
5. The parties’ applications were listed on the understanding that the Court would be likely to allow the husband to withdraw the divorce application and file a further divorce application in Court (ie, to ensure that the Court was considering an application for divorce that was filed more than 12 months after the differing dates of separation alleged by the parties). In that event, it was expected that the wife would withdraw the response application and the further divorce application would proceed undefended with the Court noting in the relevant orders that each party alleges different dates of separation.
6. The applications as stated duly came before me for hearing on 12 February 2018. On that occasion, the husband sought (and was granted) leave to withdraw the divorce application and file a further divorce application in Court. The wife did not, as anticipated, withdraw her response application. The wife, who was not present in Court, had instructed her solicitor to now oppose any divorce application becoming final on the basis that the Court would not, on the evidence before it, make the necessary declaration under section 55A of the Family Law Act 1975 (“the Act”).
7. As a consequence, the Court allowed the wife’s response to be a response in relation to the further divorce application and the Court thereafter heard submissions from both parties on the issue of the  section 55A  declaration. Prior to hearing those submissions, the Court considered the evidence in relation to whether it should make a divorce order and the Court duly determined that a divorce order should be pronounced.
8. Following the receipt of submissions in relation to the  section 55A  declaration issue, the Court reserved its decision.

Agreed and disagreed facts

9. Unless otherwise stated, there is no dispute between the parties in relation to the following facts, namely that:
   • The parties were married in Sydney, New South Wales, Australia on ... 2006 (as evidenced by a copy of the relevant certificate of marriage which can be admitted into evidence and marked Exhibit ‘A’).
   • The husband is domiciled in Australia and is an Australian citizen (as evidenced by a copy of the identification page from the husband’s Australian passport, issued 1 November 2017 which can be admitted into evidence and marked Exhibit ‘B’).
   • The further divorce application was filed more than 12 months after the differing dates of separation alleged by the parties; being 30 May 2016 (the date alleged by the husband) and 29 December 2016 (the date alleged by the wife).
   • There are two children of the marriage; being [X], born ... 2007 and [Y], born ... 2010 (“the children”), who live with the maternal grandparents in China (noting that it was also agreed that the wife resides in a separate apartment in the same building complex) and further noting that the children are both Australian citizens.
   • The two children have lived at various times in both China and Australia, including the period February to December 2016 when they lived in Australia with the maternal grandparents and the husband.
   • The wife only spent short periods in Australia during the period between February to December 2016 (on the husband’s evidence).
   • The two children returned to China in December 2016 (although it is not clear on the evidence as to who accompanied the children on that journey).
   • The two children have remained in China since December 2016. The husband asserts that he travelled to China for a week in March, May and August 2017 to spend time with the children. The husband further asserts that the wife has refused to facilitate the children returning to Australia.
   • The husband has not provided the wife with any moneys for the children by way of child support since December 2016, although the husband asserts that he paid informal child support to the wife up until December 2016 and the Court further notes that there is no child support assessment in this matter.
   • The husband is a professional working in Sydney and the wife operates a business based in China (again, on the husband’s evidence).

Issues in dispute

10. As stated, the parties disagree about whether the Court, on the evidence before it, should make the necessary declaration under  section 55A  of the Act to enable the divorce order to become final.

Evidence

11. The husband relies on the following documents:
    • Further Application for Divorce filed in Court on 12 February 2018; and
    • His affidavit sworn and filed on 14 June 2017.
12. As stated, the husband also relies on the following documents:
    • Copy of relevant certificate of marriage, dated ... 2006 (Exhibit ‘A’).
    • Copy of the photo-identification page from the husband’s Australian passport, issued on 1 November 2017 (Exhibit ‘B’).
13. The wife relied on the following document at the hearing:
    • Response to Divorce affirmed 10 August 2017 and filed 11 August 2017.

Relevant law

14. The relevant provisions relating to divorce applications are found in Part VI of the Act. Pursuant to section 39(1A) of the Act, divorce applications may be filed in this Court.

Jurisdiction

15. Pursuant to section 39(3) of the Act, the Court must be satisfied that it has jurisdiction to deal with the divorce application. The burden of proof rests upon the applicant (ie. the husband in this case).
16. Firstly, the applicant must establish that either party was either ‘domiciled’ in Australia, ordinarily resident in Australia for a period of not less than 12 months prior to the filing of the application, or is an Australian citizen. The mere assertion by an applicant that he or she is an Australian citizen does not constitute evidence for the purposes of section 39(3) of the Act. Documentary evidence such as the tender of a birth certificate, passport or citizenship papers will assist the Court in making the necessary finding. Domicile is proved by ‘intention’ and the intention to remain in Australia must be evidenced by a statement to that effect in the application. In this case I note that the husband has filed a copy of the identification page from his Australian passport evidencing his Australian citizenship (see Exhibit ‘B’). He also asserts a domicile in this country.
17. Secondly, the Applicant must establish the existence of a valid marriage. This is generally done by the tender of a copy of the relevant certificate in marriage. In this case, the husband has filed a copy of the relevant marriage certificate (see Exhibit ‘A’).

Sole ground for divorce

18. Pursuant to section 48(1) of the Act, the applicant must also establish that “the marriage has broken down irretrievably.” This is sometimes referred to as ‘the sole ground for divorce’ under Australian law. The only way in which the sole ground for divorce can be established is to satisfy the Court “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.”
19. The Court is not concerned about the reasons for the breakdown of the marriage; the Court need only satisfy itself that a separation took place. Obviously it is the date of filing of the application which is crucial, and it must be one year or more after separation has occurred.
20. Separation may be initiated by one party alone and does not require the consent of the other party.
21. The notion of separation is more than mere physical separation. There must be a complete separation from the marriage relationship itself. This is often referred to as the loss of “consortium vitae” or the partnership for life. This view was supported by the Full Court of the Family Court in the case of In the Marriage of Pavey [1976] FamCA 36; (1976) FLC 90-051.
22. In the case of In the Marriage of Falk (1977) FLC 90-247, the Full Court held that for separation to occur there also needs to be communication of the necessary intention to separate which may be direct or indirect.
23. In the Court finds that the above mention is satisfied then it may pronounce a divorce order. As stated in this case, the further divorce application was filed more than 12 months after the differing dates of separation alleged by the parties, being 30 May 2016 as alleged by the husband and 29 December 2016 as alleged by the wife.

 Section 55A  declaration

24. Section 55(1) of the Act provides that a divorce order takes place one month after the making of either a divorce order or the  section 55A  declaration, whichever is later in time. The Court is empowered to extend or reduce the statutory period.
25.  Section 55A(1)  of the Act provides that a divorce order does not take effect unless the Court is satisfied in relation to one of two matters involving children of the marriage. Firstly, that there are no children of the marriage who have not obtained the age of 18 years or, secondly, that the only children of the marriage and that who have obtained the age of 18 years are the children specified in the order and that:
    • proper arrangements in all the circumstances have been made for the welfare of this children; or
    • there are circumstances by reason of which the divorce order should take effect, notwithstanding that the Court is not satisfied that such arrangements have been made.
26. Where the Court has doubts about whether the arrangements for children are proper in all the circumstances, it may adjourn the divorce proceedings until a report has been obtained from family consultant regarding those arrangements. In this respect I note again that the wife resides in China and the children have remained continuously in China since December 2016.
27. I will now consider the evidence and submissions in light of the abovementioned considerations.

Discussion and findings

28. For completeness, I will provide reasons as to why the Court pronounced a divorce order in this matter before proceeding to separately consider the disputed issues as to whether the Court should pronounce a declaration under  section 55A  of the Act, or not, and if not, whether an order should be made under section 55(2) of the Act for the preparation of a report from a family consultant.

Why the Court pronounced a divorce order

29. As I stated in Court during the hearing, I was satisfied and found that:
    • the parties were married in Sydney on ... 2006; and
    • the husband, who was before the Court with his legal representative, is an Australian citizen and domiciled and Australia and was so at the time of the filing of the further divorce application.
30. The Court was also found that the further divorce application was filed more than 12 months after the differing dates of separation as alleged by the parties.
31. Consequently, given the above findings, it was appropriate for the Court to pronounce a divorce order.

Whether the Court should pronounce a  section 55A  declaration or not?

32. As stated, the parties are in dispute about whether it is appropriate for the Court to make a declaration under  section 55A  of the Act in relation to the children’s care arrangements. The husband submits that it would be appropriate for the Court to make the so-called alternate declaration under  section 55A(1)(b)(ii).  The wife has caused the children to remain out of Australia, thus preventing them from enjoying a meaningful relationship with the husband. In addition, the husband asserts that he is now in a new relationship and that it may present cultural difficulties for his girlfriend to be dating a married man.
33. In response, the wife argues that the failure by the husband to pay the wife child support would raise sufficient concerns for the Court to defer the issue of the  section 55A  declaration until it had the benefit of a family report. Consequently, the wife argues that an order for an adjournment should be made by the Court pursuant to  section 55A(2)  of the Act.
34. In reply, the husband argues that it was the wife’s decision alone to have the children enrolled in and attending a private school in China. The husband also argues that the wife has not chosen to pursue any child support assessment or to commence any proceedings in Australia, most probably because the children have been retained outside the jurisdiction.
35. It is noteworthy that there is no definition of “care, welfare and development” in the Act, but the phrase does appear in section 60B of the Act which states that the object of Part VII of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of the children. In the case of Opperman & Opperman (1978) FLC 90-432, a majority of the Full Court indicated that welfare involves arrangements of a material and emotional nature. Consequently, the submissions of both parties have merit.
36. While the lack of the provision of child support would raise a question mark over the arrangements for the children “of a material nature” their retention in China would also raise a similar concern about the impact upon the children of not having a meaningful relationship with the husband.
37. Ultimately, the Court has discretion to decide, on a case-by-case basis, on what circumstances a divorce order should take effect, irrespective of whether there are appropriate arrangements in place. Some indication was given by the Full Court in the Opperman case previously referred to that two factors are involved under section 55A(1)(b)(ii). While the majority stressed that they did not want to define “circumstances”, they stated that:
    • The Court will have to balance on the one hand the termination of a marriage that has no social utility ... as against the protection of the children of a broken family unit enjoined upon the Court by section 43(c); but if indeed a question arises as to what aspect requires more weight and attention, there is no doubt that the Court should exercise its discretion so as to give more weight to the latter.
38. During the course of earlier submissions, the wife raised the decision of Maunder & Maunder [1999] FamCA 2420. In that case, the Full Court found that the trial judge had erred in pronouncing the so called alternate  section 55A  declaration in circumstances where a wife was receiving no child support. Nevertheless, I note that the facts of Maunder are quite distinguishable from the case before me. In Maunder the husband lived overseas and the wife and the children were in Australia. In addition, the wife had initiated proceedings in Australia for property settlement, spousal maintenance and child maintenance.
39. The facts of this case are clearly quite different. The common argument raised in these cases is that  section 55A(2)  should not be invoked to assist uncooperative or greedy spouses. For example, this view was raised by Asche J in the case of Murphy & Murphy (1977) FLC 90-291 where the Court took into account the reality that the wife had unilaterally relocated with the child against the wishes of the husband.
40. In this case there are circumstances of note. As stated, the children (and the wife) are not in the jurisdiction and it is unclear whether they will ever return. A family report process in the absence of the wife and the children would be a problematic exercise and a potential expense to the Australian taxpayer.
41. In addition, the parties agree that the children are in the primary care of the maternal grandmother, and not the mother, and it was unclear whether the maternal grandmother has ever sought financial support from one or both of the parties to assist with the children’s expenses.
42. Another circumstance of note is that there are no contemporaneous parenting and/or property proceedings either in Australia or China and that neither party has sought a child support assessment in Australia.
43. While I note the wife’s criticism that the husband could have applied for a child support assessment in Australia (or otherwise voluntarily pay child support) the wife provides no real explanation as to why she has similarly not sought any child support assessment.

Conclusion

44. In this case I find that there are circumstances to enable the Court to make a declaration under  section 55A(1)(b)(ii).  These include:
    • the children and the wife residing in China;
    • the children being in the care of the maternal grandmother (and not one of the parties);
    • the apparent disagreement between the parties as to whether the children should return to live in Australia;
    • the lack of any child support assessment to enforce; and
    • the reality that there are no family law proceedings before this Court or elsewhere, save for this subsequent divorce application and response.
45. Consequently, I pronounce a declaration under  section 55A(1)(b)(ii) ; that is, that there are circumstances by which the divorce order should take effect even though the Court is not satisfied that such proper arrangements for the children have been made.
46. The divorce order will become final in one month’s time.
47. There will be Orders and Notations of the Court to reflect this decision.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Monahan



Date: 23 March 2018