ADAIR & ZAMMIT
[2015] FCCA 3396
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADAIR & ZAMMIT | [2015] FCCA 3396 |
| Catchwords: FAMILY LAW – Jurisdiction – whether or not a de facto relationship existed after 2009. |
| Legislation: Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth) Family Law Act 1975, ss.4AA, 90SB, 90RD |
| Moby & Schulter (2010) FLC 93-447 Sinclair v Whittaker (2013) FLC 93-551 Gammon & Lockwood [2015] FCCA 1300 Jonah & White [2011] FamCA 221 Maroki v Ristic [2015] VSC 3 Delamarre v Asprey [2014] FamCAFC 218 Joss v Chadwell [2015] FamCA 550 |
| Applicant: | MS ADAIR |
| Respondent: | MR ZAMMIT |
| File Number: | ADC 778 of 2014 |
| Judgment of: | Judge Harland |
| Hearing dates: | 11 March, 17 August & 14 October 2015 |
| Date of Last Submission: | 14 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Donlan Lawyers |
| Counsel for the Respondent: | Ms Connor SC |
| Solicitors for the Respondent: | Steven M Clark Pty Ltd |
ORDERS
That pursuant to section 90RD of the Family Law Act 1975 (Cth) the Court declares that the applicant Ms Adair and the respondent Mr Zammit were in a de facto relationship from 2006 until (omitted) 2013.
IT IS NOTED that publication of this judgment under the pseudonym Adair & Zammit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 778 of 2014
| MS ADAIR |
Applicant
And
| MR ZAMMIT |
Respondent
REASONS FOR JUDGMENT
The issue I am asked to decide is whether or not the parties were in a de facto relationship post 2009. If the de facto relationship ended in 2009 then the applicant is well out of time. If the de facto relationship ended before 1 July 2010 then this Court does not have jurisdiction because South Australia did not refer its de facto powers such that the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).
I note that the hearing commenced on 11 March 2015. It could not proceed on the second day as Ms Horvat had a family emergency. The hearing was then to continue on 17 August 2015. The respondent did not attend Court that day. He says he misdiarised the court date but was also unwell and could not have attended in any event. He filed some medical evidence. The matter concluded on 14 October 2015. The respondent did not oppose an order for costs in favour of the applicant for the August 2015 attendance and I made an order.
Both parties came to the relationship owning property. The applicant owned a farm and an investment property. The respondent owned the Property O property and his business in (omitted). He sets out the assets in his first affidavit.
The applicant says she and the respondent met in (omitted) 2005 and started their relationship in (omitted) 2006. She moved into the respondent’s property at Property O. The applicant says that in 2012 the respondent’s behaviour changed and she suspected he was having an affair. She says that at (omitted) 2013 he moved into a separate bedroom after admitting he had an affair. The respondent says the applicant was upset because he brought his girlfriend, Ms A home.
The respondent’s evidence is that the applicant asked the respondent if she could adjist her horses on his property and each would keep an eye on the Property O property. That does not make sense. The applicant owned a farm. The applicant’s evidence on this point is more credible. It is also not credible that she would move into his property without his permission and he would just acquiesce to that for so many years.
The applicant relied on three supporting witnesses. The respondent did not rely on any other witnesses. It is surprising that he did not have Ms A prepare an affidavit in 2014 before they separated.
The law and its application to the facts of this case
Section 90RD of the Family Law Act1975 (Cth) enables the Court to declare that a de facto relationship existed or never existed. It also enables the court to determine the periods of the relationship and when the relationship ended, as well as where each of the parties were ordinarily resident during the de facto relationship. The applicant has the burden to prove to a civil standard that they were in a de facto relationship.
The de facto relationship must have existed for at least two years before the Court may make financial orders unless there is a child of the relationship or a party can show he or she made substantial contributions: see s.90SB Family Law Act 1975 (Cth).
As Mushin J pointed out in Moby & Schulter (2010) FLC 93-447, the definition of de facto relationship in section 4AA of the Family Law Act 1975 is a very broad one.
Section 4AA of the Family Law Act 1975 defines a de facto relationship and includes a number of criteria which may be relevant to the Court to consider in determining whether or not a de facto relationship exists between the parties. There are two preliminary matters and that is that the parties must not be legally married to each other, and must not be related by family. Neither of those applies here.
Two people are defined to be in a de facto relationship “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
Section 4AA(2) includes a number of criteria which the Court may consider in determining whether or not a de facto relationship exists. It is not necessary to make a particular finding about all or any of the matters listed. The Court is entitled to attach such weight to any of the matters as may be appropriate in the circumstances of the case: see section 4AA(5).
The factors which are disputed which I must give consideration to are as follows:
a)the duration of the relationship;
b)the nature and extent of their common residence;
c)the ownership and acquisition of property;
d)whether a sexual relationship exists;
e)the degree of financial dependence or interdependence and any arrangements financial support between them;
f)the degree of mutual commitment to a shared life;
g)the reputation and public aspects of the relationship.
I will address these factors in turn.
Length of relationship
The respondent says they were not in a de facto relationship or if they were, it ended in 2009. Interestingly, he said he entered into a de facto relationship with Ms A in late November/early December 2012. He does not provide any details and she did not swear an affidavit.
Of course the issue of whether the parties were in a de facto relationship, as opposed to some other kind of relationship is a legal issue for this Court to determine, not the parties.
The applicant says the parties were in a de facto relationship from 2006 until (omitted) 2013 when she found out the respondent was having an affair. She says he moved to another bedroom. She moved out of the property in January 2014 when the respondent locked her out of the property.
The respondent admits the parties were in a de facto relationship but says that the de facto relationship ended in March 2009. After that, they were friends.
I am satisfied that the parties were in a relationship from January 2006 until (omitted) 2013. The question is, considering all of the circumstances, were they as a couple, living together on a genuine domestic basis?
The nature of the residence of their common residence
The respondent says that the applicant moved into his property without consultation and that he had difficulty getting her to move out of the property. The applicant denies this and says she owned and lived on her farm before moving in and had no need to adjist horses on his property. She moved in because they were in a relationship. She moved her animals there. I prefer the applicant’s evidence on this point. It simply does not make sense for her to move her animals to the property otherwise. It is also not credible that she moved in to the property without consultation. I do not accept the respondent’s evidence that he tried to get the applicant to move out from 2010 to 2014. His evidence is vague. It is also consistent with the applicant’s evidence that the respondent moved out of the bedroom in (omitted) 2013 after she found out he was having an affair.
There is a dispute between the parties as to how much time they spent together at both Property O and at (omitted). The applicant says that she went to (omitted) for a few days at a time because she had commitments to her (occupation omitted) shifts. She says she brought cars on a trailer up there. She also brought supplies and did some cooking and cleaning when she stayed there. She would either go back on the bus or get a lift with one of his friends. The respondent disputes that she went to (omitted) as often as she claimed. He would come to Property O every couple of months.
The applicant says that from 2007 onwards the respondent spent more time at his (business omitted) at (omitted). The applicant says she assisted him and on several occasions drove supplies to the (business omitted) and cleaned the (business omitted). She says she did not (duties omitted) because she does not speak the local Aboriginal language. The respondent does.
In the earliest date of the proceedings there were significant arguments about the state of property when the applicant left and of disputes about the applicant having access to the property to remove the remainder of her belongings. The respondent’s counsel spent some time cross-examining the applicant about photographs the respondent took of the applicant’s belongings left behind when she was locked out of the property. When asked how it was relevant to the jurisdictional issue, Ms Connor stated that it is relevant to the veracity as to when the relationship ended. The respondent argues that the relationship ended several years before but that the applicant had great difficulty in organising her belongings. On the applicant’s own evidence given at the hearing, the relationship ended in April 2013 and the respondent locked her out of the house nine months later. The debate was about the state of the house and the amount of belongings at the house. This dispute does not help me determine the jurisdictional issue.
The applicant relied on evidence of three supporting witnesses. Ms E was not required for cross examination. She met the applicant through work. They are both (occupation omitted). She says that since she moved permanently to Queensland in 2010 she does not have much contact with the applicant. Given the time period that Ms E knew the applicant, her evidence does not advance matters.
Ms T is a friend of the applicant. She swore an affidavit on 10 July 2014. She is a (occupation omitted) and says she and the applicant met in about 1985 when they were both studying to be (occupation omitted). She says they keep in regular contact on the phone and since 2008, via Facebook but only see each other two or three times a year because of their various commitments. She says that the applicant discussed her relationship with the respondent. She thinks they were together from about 2006 or 2007 until early 2014. She says she saw them together as a couple and says they all went to a wedding for a (omitted) at the (employer omitted) on (omitted) 2009. She says that in (omitted) 2008 the applicant invited her, her husband and their two sons to stay with them at their (omitted) shack. She says in addition, the applicant’s sons and daughter and the applicant’s grandchildren were also there. She says the respondent was very loving towards the applicant’s grandchild.
Ms T also says that she visited the Property O property on a few occasions and that one time, the respondent was there working on his cars. She also says that the applicant spoke to her over the years about the respondent wanting her to go live with him and helping with his (employment omitted). She says the applicant wanted to keep (occupation omitted) and wanted to be near her children and animals. She says the applicant spoke about helping the respondent at the (business omitted) and buying things for the (business omitted).
Ms T was cross-examined. She says she first found out that the applicant was moving out of the house in 2014 and says the last time she went to the house was the beginning of 2014. This would be shortly before the applicant was locked out of the house. She later amended her evidence and said she was last in the house in 2013. On one occasion after that, they met down the road and chatted in the car. She says that she knew that in about 2009 there were periods where the applicant was unhappy but that that blew over. She was not able to remember when she last saw the respondent at the house.
She was asked if she recognised the respondent in Court and she said she had not seen him with a beard. When the respondent was giving evidence he said he has had a beard for the entirety of his relationship with the applicant. This is suggestive of Ms T not having seen the respondent very much at all. Given the time the parties spent apart during their relationship and the fact that Ms T only saw the applicant a couple of times a year, this is not surprising.
Ms M also swore an affidavit in support of the applicant’s case on 15 August 2014. She says she has known the applicant for 28 years. Ms M says she first met the respondent when she invited them to stay at her and her husband’s property at (omitted) on the (omitted) some years ago. She says they stayed in the same bedroom and the respondent was introduced as the applicant’s partner. They came to stay on occasions more than weekends. She says the applicant’s grandchildren referred to the respondent as “Poppy”. They also had a shack next to the parties’ shack and she says they often holidayed there together with the children and grandchildren. She speaks to the applicant on the phone regularly and they have spoken about the applicant’s relationship on many occasions. She says that at social gatherings, the parties talked about their plans to retire and travel around Australia in a caravan.
It was put to her that she had not seen the respondent for 4 years. She denied that, and said she had seen him at the property when she went to visit the applicant. This was not just in the early years. Often the respondent was also at home.
The parties spent significant periods of time apart throughout their relationship. I am satisfied that this was because of the respondent’s business commitments in (omitted) rather than it being indicative of the parties not being in a de facto relationship.
The ownership, use and acquisition of property
The parties bought (omitted) (“(omitted)”). Later that year, they bought the lot next door. The respondent says they bought this to build a holiday shack and it was never intended to build a home to live there. The applicant’s mother had a holiday shack at (omitted). The applicant says the respondent paid a deposit to build a transportable house he found. The respondent agrees that he did this. The applicant engaged in a lengthy process of trying to get council approval for it but that did not eventuate.
She says they planned to build a cheap kit home that the respondent found on the lot with the shed but had trouble getting council approval. She annexes a decision notification from the council refusing development approval dated 21 April 2009. The applicant did the running around to sort out the council plans et cetera. This made sense given she was living much closer.
She says the respondent went to the bank with her when she was organising the mortgage for her half share, and the respondent introduced her to his bank manager who is now her bank manager as well. The respondent admitted to going to the bank to help her get a better deal.
The purchase of these properties is not consistent with the respondent’s version of events. I also do not accept the respondent’s evidence that he did not realise they bought the properties as joint tenants. He is a business man and has bought several properties before and has been previously married. The applicant annexes the handout the conveyancer gave them at the time they purchased the properties.
They also bought membership in (omitted). The applicant annexes documents from (omitted) including a default notice addressed to the both of them for non-payment of fees from 2010 to 2013. The applicant says the respondent agreed to pay the initial joining fee of $20,000 and that she was to pay the annual fees of about $300 a year. She said when the annual fees went up to about $640.50 she told the respondent that she could not afford it and that is why there were no payments made from 2010 and 2013. The respondent says he did not continue to contribute to the payments because by that stage as far as he was concerned, the relationship was over. Given their respective positions, the fact that the respondent had ready access to cash as evidenced by the share of the (omitted) properties outright, the applicant’s version of events is credible.
The respondent conceded when cross-examined that the parties went on holidays together including in 2012 to (omitted). The applicant’s mother and daughter also went. He says that they were still friends and are still friends now. That last part is hard to believe given the disputes they have had over the property. In the affidavit sworn by the respondent on 28 May 2014, which was uplifted from the court file, he said at paragraph 30 “from time to time, during this on the applicant was living in my house, hope and call her bluff and realised [sic] she wanted to be with me, I would ask the applicant to leave.” The respondent sought to distance himself from that to say that that is not true. He signed every page of the affidavit but claims he was not a good reader and did not understand. That affidavit is not written in formal legal language. I do not accept that that is not what he meant rather, I think he is denying it because it does not assist his case.
The applicant agreed that the respondent purchased the property in (omitted) in 2011. He wanted to buy a (business omitted) and that was something he did on his own without her involvement.
The applicant says the respondent told her that his plan was to carry on his (business omitted) for five years and after that they would be able to live together full-time. Later he changed his mind and was asking her to move there.
The applicant says that the last two years of the relationship were not as good as the previous years as they were arguing more. It is not unusual for couples to remain in an unhappy relationship.
Whether a sexual relationship exists
The parties agree that they had a sexual relationship. There is a dispute between them as to how long that sexual aspect of their relationship continued. The respondent contends that the parties were in a relationship for about three years from 2009 and after that, an occasional sexual relationship.
The applicant says their relationship, including their sexual relationship continued until (omitted) 2013.
Financial interdependence
The parties did not have any joint bank accounts during the relationship. The applicant had access to cards belonging to the respondent’s bank business account only for the purpose of making payments at the respondent’s direction for the business.
The secondary card the applicant was issued for the respondent’s business was sent to her with a letter from the (omitted) Bank dated 3 October 2012.
They kept their financial affairs separate. The applicant paid the expenses for her properties and the respondent paid for his including the Property O property. The applicant paid for the expenses for the (omitted) properties.
It is not that unusual, particularly when parties have had previous relationships for parties to keep their financial affairs separate. In this case, the parties each owned properties and had adult children. In this regard, I note the comments of the trial judge with which the Full Court agreed at paragraph 19 of Delamarre v Asprey [2014] FamCAFC 218 that observation being that “financial independence is not uncommon in modern relationships including marriage”.
Degree of mutual commitment to a shared life
The applicant says that the respondent wanted her to move to (omitted) to spend more time with him. It is a 14 hour drive from the Property O property. The applicant works as a (occupation omitted). She says all her family including her children and grandchildren live near the Property O property. She says she also made enquiries with (employer omitted), a (employment omitted) agency for that region because she would have needed to get a further qualification in (omitted).
The respondent makes a blanket statement at paragraph 19 of his affidavit sworn on 8 July 2014: “At no time during the period that I knew the applicant did she assist either personally or financially in any of my business interests.” This is not true. The respondent makes other blanket statements denying any connection with each other which he could not maintain under cross-examination and was not convincing. It was clear throughout his cross-examination that he was mindful not to make concessions that would suggest there was a committed relationship.
It is clear from the respondent’s own evidence that he wanted the applicant to live with him in (omitted). He said he offered to pay her wage equivalent to what she was receiving as a (occupation omitted). He said she still would have had a job whether or not was she working for him or as a (occupation omitted). Though, he had to concede when questioned, that the applicant wanted to continue her (occupation omitted) career. By that stage, she had spent many years as a (occupation omitted) and it is not unreasonable that she would want to continue in her established career. She did try to find a (occupation omitted) job in (omitted) which is a small isolated outback community.
The respondent conceded that the applicant went to a 3 day trade show with him to purchase stock for the business and that they also went to garage sales together.
The applicant says the respondent raised the issue of their preparing wills on a few occasions. She says they had problems with his son from early in their relationship. She says she did not instigate any of those conversations.
The applicant says they spoke frequently and sent each other faxes. She produced one as an example.
I find that the parties spent long periods apart not because they were not committed to being in the relationship but because of the practicality of where their respective work interests lay as well as where the applicant’s family and animals were located. From both parties’ perspective, the relationship was not as happy as it had been in the last couple of years. I am satisfied that they did not separate until (omitted) 2013. I do not accept the respondent’s evidence that the nature of the relationship changed in March 2009.
Reputation and public aspects of the relationship
The applicant says that they presented publicly as a couple. They went to many family functions together both for the respondent’s family and the applicant’s. She also says they attended several social functions together with friends. She annexes photos and a Christmas card addressed to both of them in 2013 as examples.
Care and support of children
Both parties have children from previous relationships.
The respondent’s daughter A moved into the Property O property for about three months as she had a falling out with her mother. The applicant says she did various things for A but their relationship deteriorated.
The respondent also helped the applicant’s children. He gave the applicant’s son B some work and also gave C some work. The respondent says that was merely a commercial relationship and not because they were his stepsons. Just because he paid them for some work does not mean he was not assisting them because of his relationship with the applicant. When the respondent was cross-examined he readily said he gave B and C work because they were the applicant’s children and he was helping them out.
The applicant says that the respondent got on very well with her daughter D. The respondent paid for a deposit on D’s house and then bought the house together.
Apart from these factors there is no evidence to suggest that the parties were otherwise involved in caring for each other’s children. Given the children’s ages, that is not surprising.
Assessment of witnesses
Moby & Schulter also involved a dispute about whether or not the parties were in a de facto relationship and if they were, there was a dispute over the periods they were in such a relationship. In that case, the parties disagreed about many of the material facts. As a consequence of this, the credibility of the parties and their supporting witnesses was very important. This is also the case here.
I had difficulty with aspects of both parties’ evidence. At times, both parties were vague. I do not think either of them were setting out to deliberately lie to the Court, rather their evidence was coloured by the cases they wished to make out. I found the respondent’s evidence to be less reliable than the applicant’s. Some aspects of his evidence was not credible.
Both Counsel referred to various authorities which I have considered. In determining whether or not a de facto relationship exists, I must consider the whole of the circumstances of the relationship: see Sinclair v Whittaker (2013) FLC 93-550. There were aspects of both parties’ evidence which was unsatisfactory.
Conclusion
The applicant has the onus of establishing that a de facto relationship existed on the balance of probabilities as she is asserting that as a jurisdictional fact. See Jonah & White [2011] FamCA 221. Ms Connor S.C. drew the Court’s attention to the comments of Judge Coakes in Gammon & Lockwood [2015] FCCA 1300 with respect to credibility and the comments Murphy J made in Jonah & White. Those comments are relevant here with respect to the parties’ recollections being coloured by their disappointments and the manifestation of coupledom.
The respondent sees this as a case where that the applicant is seeking to unjustly enrich and that even if the Court finds a de facto relationship exists, the applicant would not be successful as each party owned substantial properties before they met and kept many aspects of their finances separate. The issue of whether or not the Court would find it just and equitable to make any property adjustment between the parties is not an issue that I can take into account at this stage. That is a separate consideration. The only issue I am being asked to determine is the jurisdictional one.
I am satisfied that the parties lived together on a genuine domestic basis in a de facto relationship. I do not accept the respondent’s evidence that the nature of their relationship changed in 2009. The factors referred to in s.4AA have to be considered separately and then cumulatively. Not each factor needs to be made out to support a finding that a de facto relationship existed. I find that the fact that the parties spent large parts of the year apart throughout a relationship was a product of the parties’ circumstances rather than a lack of commitment to each other. The applicant’s career and family, including grandchildren are in Adelaide. She also had her animals. The respondent had his established business in a remote community in the (omitted) in South Australia.
The respondent’s evidence as to the nature of the relationship is simply not credible. The applicant had a farm. She did not need to adjist her animals on his property. It also does not make sense that he would have someone who was just a friend live on the property rent free for years. I also do not accept that he was trying to have her move out of the property for some years. Rather, I accept the applicant’s evidence that when they argued he would ask her to move out. Originally, the application said the parties separated in January 2014 when she was locked out. She quite properly conceded at the hearing that they separated at (omitted) 2013 when she disclosed the respondent was having an affair.
I do not find the fact that the applicant did not move out for months as supporting his claim that he had been trying to get her to move out for years but had difficulty because of the amount of belongings she had. The condition of the property when the applicant moved out may well be relevant to the main hearing with respect to contributions. It is not relevant to the issue of jurisdiction.
Ms Connor S.C. referred to Maroki v Ristic [2015] VSC 3, a decision of a single judge of the Victorian Supreme Court. Most of the judgment concerned an application to extend time. As I am satisfied that the applicant is within time, I will not discuss this further.
Both counsel referred to Delamarre v Asprey [2014] FamCAFC 218. I note the Full Court’s comments about including dates as to the beginning and end of the relationship. In that case, there was some controversy about the beginning date of the relationship. That is not the case here. In this case it is important to make a determination as to the end of the de facto relationship. This is because on the respondent’s case, the de facto relationship ended in March 2009 meaning that the applicant would be significantly out of time. I have not accepted that point.
I do not find the references to specific paragraphs in Joss v Chadwell [2015] FamCA 550, a decision of Loughnan J because that case like this one turns on its facts and the assessment of the evidence and credibility of witnesses. I have considered the other cases referred to by counsel. It is not necessary to comment on them specifically.
Having considered the whole of the evidence, I am satisfied that the parties were in a de facto relationship from 2006 until (omitted) 2013. Therefore, the application is brought within time.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 21 December 2015
0
5
3