ADESSO & PEYTON

[2019] FCCA 343

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADESSO & PEYTON [2019] FCCA 343

Catchwords:
FAMILY LAW – Preliminary jurisdictional issue in respect of de facto relationship of less than two years duration – consideration of “substantial contributions” and “severe injustice”.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 44 (3), (3A), 90SM, (4)

Evidence Act 1995 (Cth)

Cases cited:

Re L (Litigants in Person Guidelines) (2001) FLC 93-072

Ricci v Jones [2011] FamCAFC 222

 Jonah & White [2011] FamCA 221

Whitford v Whitford (1979) FLC 90-612

V & K [2005] FCWA 80

Applicant: MS ADESSO

Respondent: MR PAYTON

File Number: LNC 381 of 2018

Judgment of: Judge McGuire

Hearing date: 30 January 2019

Date of Last Submission: 30 January 2019

Delivered at: Launceston

Delivered on: 28 February 2019

REPRESENTATION

Applicant appeared in person:

Counsel for the Respondent Mr M Doyle

Solicitors for the Respondent: Clarke & Gee

ORDERS

1. That the Application filed 25 June 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 381 of 2018

MS ADESSO

Applicant

And

MR PAYTON

Respondent

REASONS FOR JUDGMENT

Applications

1. Ms Adesso is the applicant in substantive proceedings seeking final orders as to property settlement. That application was filed 25 June 2018. There is, however, a preliminary issue as to jurisdiction in respect of the need for a declaration that there was a de facto relationship pursuant to the definition in the Family Law Act so as to permit Ms Adesso to prosecute her application for property orders.

2. The respondent, Mr Payton, disputes that there was a de facto relationship within the terms of the Family Law Act.

3. Ms Adesso represents herself before me and did so with some skill and with proper courtesy to the Court and to Mr Payton at all times. She informs me that she is in the early stages of a law degree but it was clear that the complexities of this issue, the legislation, and the Evidence Act at times tested Ms Adesso. Given her status as being unrepresented, the Court took some time to explain the procedure to Ms Adesso and the nature of the application[1].

   [1] Re L (Litigants in Person Guidelines) (2001) FLC 93-072

4. Mr Payton was represented by a solicitor-advocate. 

The Issue

1. At the commencement of the evidence, it was my understanding from the materials on the file and clearly that of the respondent's Counsel that Ms Adesso was arguing a de facto relationship based primarily on that relationship having endured at least two years. To her credit, however, and during her cross-examination, Ms Adesso candidly conceded that the de facto relationship within the parameters of the Act was not of 2 years duration but that she was basing her claim for a declaration on what might be called 'substantial contributions and serious injustice' should the declaration not be made. Armed with this concession, Mr Payton continued to dispute the making of the declaration.

The Evidence

1. The applicant relied on her two affidavits sworn the 22 June and 17 August 2018.  She also filed an affidavit dated 21 December 2018 which effectively annexed statutory declarations by a number of potential witnesses.  Mr Doyle for the respondent did not take issue with the evidence in this form where, of course, the deponents could adopt their declarations from the witness box.  Consequently, Ms Adesso adduced evidence from Ms A (her mother), Ms B; Ms C, and Ms D.  All except Ms D were subject to short cross-examination and by telephone in respect of Ms B and Ms C. The evidence of each was primarily in respect of a chronology provided to them which Ms Adesso conceded that she had authored.  Nevertheless, each of the witnesses provided some corroboration in respect of Ms Adesso's claimed contributions although I generally accept the submission of Mr Doyle that the tenor of much of the witnesses’ evidence was self-serving and therefore unremarkable and of little probative value.

2. Ms Adesso gave evidence and was cross-examined.  As mentioned above, she was candid and forthright in her evidence and assertive in her position as to contributions to the relationship. I saw her as a generally honest and good witness within the context of her limited understanding of the complexities of the legislation.

1. Mr Payton relied on his affidavit sworn 15 January 2019.  He was cross-examined only very briefly by Ms Adesso but, in the circumstances of the applicant being unrepresented, endured some questioning from the bench.  I also saw Mr Payton to be generally an honest and candid witness in circumstances where each of these parties, at least subjectively, have different viewpoints as to the extent of Ms Adesso’s contributions. 

Background Facts

1. It appears that the parties had known each other at school and met in 2015 at a school reunion.  I accept that their friendship and relationship then developed quickly to the stage of a sexual relationship.  I accept that Mr Payton had recently separated from his wife.

2. At the commencement of their relationship in 2015, Mr Payton was resident in New South Wales and Ms Adesso lived in Tasmania.  I accept that they visited each other's home states frequently.

3. Ms Adesso is the mother of a son, [X].  It seems that [X]'s father lives in Country E and provides no financial support for the child.

4. Mr Payton is employed as a Professional.  His evidence is that he generally works for nine days per month.  He also operates a business, Company F.  He has owned and operated that business since prior to the relationship with Ms Adesso.

5. Ms Adesso has an employment history in the (omitted) industry.  She has not been employed outside of the home since about mid 2016 when she concedes that she made an application to Centrelink for a form of supporting parents benefit and did not at that time acknowledge that she was in a de facto relationship.

6. In 2015 Mr Payton purchased a block of land at Location G in northern Tasmania.  There is no dispute that the title was registered in his name and he provided the purchase monies.  Ms Adesso says that there was a joint intention to develop a holiday home on the property.  She acknowledges, however, that the purchase was made prior to the date she says that the de facto relationship commenced.

7. In about July 2016 the applicant and [X] moved into a property at Town H. There was much evidence about the purchase of the property.  The respondent's mother is the registered owner. She purchased the property by successful tender. The respondent himself was an unsuccessful bidder for the property.  In any event, the mother and [X] moved into the property in late July and Mr Payton himself moved into that property in late August 2016 and this is the date, now agreed, for the commencement of the de facto relationship. Ms Adesso claims that it was the intention of all relevant parties that the eventual ownership would rest with the applicant and the respondent.  The respondent disputes this fact.  The property is heritage listed and plans have been prepared for its eventual renovation in accordance with its heritage status.

8. The parties agree that the relationship ended in December 2017 and Ms Adesso says that she was 'evicted' from the Town H property in January 2018.

9. For the sake of completion, the parties agree that they enjoyed a trip together to Bali in about September 2015.  Mr Payton placed Ms Adesso on the record as his “travel partner” or even perhaps indicating her as his de facto partner. In evidence in Court, however, both parties acknowledge that they each knew the representations being made by Mr Payton were in many ways false and I repeat that Ms Adesso does not claim the commencement of a de facto relationship until late August 2016.

Relevant Law

1. Section 4AA of the Act provides in respect of the ‘meaning of de facto relationship':

   (1)  A person is in a de facto relationshipwith another person if:

   (a)  the persons are not legally married to each other; and

   (b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship   they have a relationship as a couple living together on a genuine domestic basis.

(2) Those circumstances may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence and any arrangements for financial support between them;

(e) the ownership, use an acquisition of that property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children; and

(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4) A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.

Section 90SB provides:

A Court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:

(a)that the period, or the total of the periods, of the de facto relationship is at least two years; or

(b)    that there is a child of the de facto relationship; or

(c)     that:

(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

(ii) a failure to make the order or declaration would result in serious injustice to the applicant…

1. The contributions referred to in s.90SM(4) are those to be considered ultimately in a property settlement including direct or indirect financial contributions to the acquisition, conservation or improvement of any of the property of the parties to the relationship or either of them or contributions made directly or indirectly of a non-financial kind. The Court will also consider contributions made by a party to the welfare of the family and as homemaker or parent.

The Applicant's Case

1. The applicant says that she made a number of contributions of a non- financial type made with an expectation of an ongoing and committed relationship.  She particularises these contributions as follows: –

   (a)Ms Adesso says she has a passion for gardening.  She says that she attended to the maintenance and improvement of the gardens.  She says that she supervised a professional employed gardener to restructure that garden.  She offers no valuation evidence in respect of value – added by her efforts, although I accept that such evidence may be difficult, if not impossible, to come by. 

   (b)Ms Adesso says that she was the primary 'homemaker'.  She says that she did the majority of the cooking.  I can easily assume that she managed the home during the nine or so days each month that Mr Payton was occupied in his work as a pilot.  Nevertheless, Ms Adesso's contributions in this respect are no more highly particularised.

   (c)Ms Adesso says that she ‘'project managed' the renovations of the Town H property including dealing with the council and bodies involved with the property’s heritage listing and including dealing with a draughtsman.  The respondent accepts some contribution by Ms Adesso but says that he also contributed in this respect.  Significantly, the renovations were not completed (or perhaps not even started) during the course of the relationship, although I accept that planning and negotiations were carried out and to some considerable extent.

   (d)Ms Adesso says that she assisted in the running of the respondent's business and particularly during his absences as a pilot.  She says that she took orders, prepared invoices, and generally attended to book work and the delivery of orders. Mr Payton gave evidence in a different perspective which saw him continuing us the major manager of the business even during the course of the relationship and even whilst engaged in his work as a pilot.  I am generally satisfied on the evidence that Ms Adesso did contribute to the business.

2. It is important to note that the respondent also made contributions to this relationship.  He was the sole financial provider during the course of the relationship.  He provided financial support within the household for [X] where the child's own father offered no financial support.  He paid for school fees at the J School.  He satisfied the wife's debt in the sum of $2,500 which she brought into the relationship.  He had owned the business prior to the relationship although I am not provided with any valuation of that business in any event. The parties agree that they, together with [X], enjoyed holidays interstate and overseas which were financed by Mr Payton.  He met the costs of plans for the renovations of the home and of the gardening contractor.  The applicant was paid $800 per week for at least a substantial part of the relationship and it matters little whether this was through the business or by way of 'housekeeping'. 

Consideration

1. The onus sits on the applicant asserting a de facto relationship to prove that one existed within the definition in the Family Law Act[2]. The applicant's onus is one of on the balance of probabilities pursuant to s.140(1) of the Evidence Act 1995 (Cth).

   [2] Ricci v Jones [2011] FamCAFC 222 @ [23]

2. Relevant to the matter now before me are the comments of Murphy J in Jonah & White[3]  where his Honour observed:

   The issue here is, in my view, not so much the veracity or reliability of the parties’ accounts of events, but rather, the picture presented by the totality of them and the conclusions resulting there from…

   I consider that the evidence of each of the parties was affected significantly by the fact that their recollections now, in respect of events past, was refracted through the prism of their own perceptions of the relationship and of the varying degrees of disappointment felt by each at its demise…

   [3] [2011] FamCA 221

3. Suffice to say in the matter now before me, each of the parties has a different but perhaps subjectively honest view as to the nature of their relationship and particularly the extent and import of the contributions made by Ms Adesso.

4. The matter for my consideration now is in many ways discrete. The parties agree that they did not achieve the two year duration for their relationship.  There is no child of the relationship.  They were not married.  Purely and simply, the applicant asserts that she made contributions which were 'substantial' and that she would suffer an injustice which is '’serious' should she not be entitled to argue her entitlement under the provisions of s.90SM of the Family Law Act (1975).  The conundrum here, of course, is that I am neither required nor able, on the state of the evidence at this stage of the proceedings, to make determinations of fact in the sense of weight or value to be given to the various contributions.  This would ordinarily be the function of a more intrusive forensic exercise at a substantive trial.  Nevertheless, I am required to determine whether the applicant’s contributions were 'substantial' and whether any prospective injustice is 'serious'.  There is perhaps an analogy to the difficulties facing Courts in applications under s.(44)(4) of the Act which sets out requirements for leave being granted to bring an application out of time where :

   The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

   (a)that hardship will be caused to a party to the relevant marriage or a child if leave is not granted.

5. Their Honours in the Full Court in Whitford v Whitford[4] addressed that situation as follows at p.78145:

   Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances.  Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property relations of the parties adjusted or resolved may constitute hardship. In some cases where a resolution of the property or financial relationships of the parties is desired, it might be, that the applicant would receive no more or even less, then he or she, already owns at law or in equity.  Nevertheless, hardship might be caused to the applicant if leave were not granted so as to facilitate such a resolution.

   [4] (1979) FLC – 90-612

6. Therein lies the difficulty accompanying the adjectives 'substantial' and 'serious' where no full forensic investigation is taken before the Court.

7. The matter is further complicated here by the applicant's claimed contributions to be of a non-financial type.  There is no dispute here as to a sexual relationship.  There was a financial dependence by the applicant on the respondent.  They shared a residence albeit not for the two year period.  I can assume a mutual commitment but again not for the two-year period.  The evidence of the applicant’s witnesses suggest that there was a form of public acknowledgement of their relationship.

8. Given the difficulties in considerations set out above, I glean some assistance from Holden CJ in V & K[5] where his Honour in considering the similar argument in the Western Australian legislation observes:

   Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependent children and over a short period of time ought not to be seen to be substantial.  In my view, substantial means something more than usual or ordinary.  In my view, (the section) is aimed at more exceptional circumstances where serious injustice may be caused by the application of (the relevant provision).

   [5] [2005] FCWA 80

9. I am generally satisfied that whether or not contributions are 'substantial' must be an objective.  Nevertheless, the legislators have included the adjective 'substantial' to give a sense of quality or value over and above the 'ordinary'.  I make similar observations in respect of the adjective 'severe' in respect of injustice.

10. Having reflected on all of the above, I am comfortably satisfied that I need to take a realistic view of the particular factual platform before me whilst referencing the relevant sections of the Act.

11. This was a relationship of short duration and in a 'de facto' sense only from August 2016 to December 2017. 

12. The applicant undoubtedly made contributions.  She attended to the gardens.  She brought her aesthetic skills and efforts to work plans for renovations to the property.  She supported the respondent in his business and particularly during his absence.  She brought similar skills and contributions to the eventual purchase of the Town H property albeit a property that remains registered in the name of the respondent's mother to this day.  She contributed as a homemaker.

13. On the consideration, however, and the not in any way diminishing the commitment or expectations of the applicant, I am not of the view that these contributions fit with the adjective of 'substantial' in the sense of over and above the ordinary.  This was a relationship where the applicant and her son enjoyed the not inconsiderable financial support of the respondent.  She was effectively provided with accommodation and day-to-day support.  Her son was provided with private school fees.  The parties and [X] enjoyed holidays.  The efforts and contributions by the applicant in such circumstances, and even taken in isolation, would not, in my view, be described as 'substantial' or out of the ordinary. 

1. Secondly, in and in any event where two limbs must be satisfied, I am not persuaded that the applicant would suffer a 'serious' injustice by not being permitted to pursue her claim for property a settlement.  She again would be confronted with the reality of the evidence and the legislatively pathway of a Court’s consideration.  Again, the relationship is a short one.  The initial contributions by the applicant were minimal.  The respondent owned his business prior to the relationship.  He provided the totality of the financial support.  He contributed to the support and payment of school fees for the applicant's son.  I am satisfied that he also generally assisted with those matters in which the applicant claims her contributions.  In all of those circumstances I am not satisfied that a Court considering an alteration of property would make any or any substantial property order in favour of the applicant.  Such, I am not persuaded that a failure to make a declaration as to a de facto relationship and allow her to enter into that argument would result in a serious injustice to the applicant. 

Conclusion

1. Given my findings above I am not persuaded that the applicant has discharged her onus to prove a de facto relationship within the provisions of the Family Law Act (1975) (as amended) and I therefore intend to dismiss her Initiating Application.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 28 February 2019