Federal Circuit Court – When Did Separation Occur?

Monday, October 21, 2013

The Federal Circuit Court (“FCC”) deals with a variety of family law issues.  This article focusses on the situation where the FCC had reason to consider the circumstances of separation, the date of separation and how they both related to property settlement.

At time of trial (August 2013), the parties had three children, aged 14, 13 and 12. The parties commenced cohabitation in 1991 and were married in 1993. The wife stated they separated in August 2007, yet the husbands’ stated it was 2010. The issues concerning the children were resolved in October 2012.

The Department of Human Services had become involved in 2007 following the wife’s slide into alcoholism and “emotional illnesses”. At that time, the wife moved from the marital home to another location nearby. The wife’s involvement with the children appears to have been difficult. Through cross-examination and re-examination at trial, the wife conceded that the parties had attempted to work on their marriage from 2007 to about August 2010. She also conceded that it was at the later date that the husband had told her that the marriage was over, after returning from a camping trip with the children. The husband and wife had continued a sexual relationship during the intervening time. McGuire J found that separation required an unambiguous statement of fact or a desire to separate. That had occurred in about August 2010, not 2007. The physical separation had occurred due to the wife’s difficult emotional situation and alcohol issues not because the marriage was in jeopardy. Following from this, McGuire J then went on to consider whether a loan, made by someone known to the wife, should be included. The only evidence was a bank cheque receipt. Again, the wife made concessions. The debt was allowed. Considering the business debts of the husband, McGuire J noted that it was reasonable to include the husband’s debts, even though the business had had its share of financial troubles. The husband had, since 2007, been solely responsible for the children and his trying to run his business. It was not a deliberate act that had seen it implode. Prior to her difficulties, the wife’s earnings in a professional capacity had been a major contribution. McGuire J commented that the wife’s situation was a “sad and unwelcome intrusion” which had “dire consequences for the marriage and for each of the wife and the husband personally.” He refused to make a finding of negative contribution by the wife but did make a total adjustment of 20% for section 75(2) factors (future needs e.g. earning ability/capacity, care of child, living standard) – 12% due to the wife’s difficulties and the responsibility that now rested on the husband’s shoulders (there had been no respite for the husband and no financial support thereby restricting his ability to carry out his trade, despite re-partnering) and 8% for the monies paid by the husband, since separation, for the liquidation and legal costs associated with his business. McGuire J refused to “add back” a direct cash amount on behalf of the husband. The husband had sought 62% overall including add backs. The judgment provided a 70/30 outcome in favour of the husband. A sad situation for all involved and particularly as the pool of assets had a net value of $172,359 plus superannuation (which was divided 50/50 totalling $75,000) and it was a two day trial. Judgement mentioned in this post: Title: Fishlock & Fishlock [2013] FCCA 1232 Date: 10 October 2013 Court: Federal Circuit Court of Australia
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