Aitken & Deakin
[2010] FMCAfam 35
•21 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AITKEN & DEAKIN | [2010] FMCAfam 35 |
| FAMILY LAW – Property – de facto relationship – preliminary issue of date of separation – separation under the one roof – jurisdiction of the court. |
| Family Law Act 1975, s.4AA Federal Magistrates Court Rules 2001, r.17.02 |
| Todd and Todd (No. 2) 1976 FLC ¶90-008 Falk and Falk (1977) FLC ¶90-247 Pavey and Pavey (1976) FLC ¶90-051 Fenech and Fenech (1976) FLC ¶90-035 |
| Applicant: | MR AITKEN |
| Respondent: | MS DEAKIN |
| File Number: | MLC 5328 of 2009 |
| Judgment of: | McGuire FM |
| Hearing dates: | 16, 17 & 18 December 2009 |
| Date of Last Submission: | 18 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 21 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stoikovska |
| Solicitors for the Applicant: | Mathews Family Law |
| Counsel for the Respondent: | Ms Nikou SC with Mr Mort |
| Solicitors for the Respondent: | Caroline Counsel Family Lawyers |
ORDERS
That the application filed 18 June 2009 by Mr Aitken be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Aitken & Deakin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5328 of 2009
| MR AITKEN |
Applicant
And
| MS DEAKIN |
Respondent
REASONS FOR JUDGMENT
Background
Mr Aitken is the applicant for substantive financial orders. He alleges that he and Ms Deakin were in a de facto relationship from about 1991 until 9 April 2009.
Ms Deakin disputes firstly that the relationship between them was a de facto relationship within the definition of s.4AA of the Family Law Act 1975 (“the Act”) as amended and, secondly, if the Court were
to determine that there was a de facto relationship then she disputes the date of separation. She says that the relationship ended in January 2009. The significance of the second issue is that the jurisdiction
of the Court and the Act is only from 1 March 2009. That is, parties separating from a de facto relationship prior to 1 March 2009 cannot use the facilities of this Court or its legislation unless they jointly choose to “opt in”.
When the matter came before me ostensibly for substantive trial on
16 December 2009, an oral application was made on behalf of the respondent, Ms Deakin, that I determine as a discrete and preliminary issue the date of separation. After some short submissions and the matter being stood down for a period the parties agreed to this course. Consequently, I made an appropriate order under r.17.02 of the Federal Magistrates Court Rules 2001. The matter then proceeded on the basis of Ms Deakin being the applicant in respect of the discrete issue before me.
Ms Deakin is 46 years of age. She is a [healthcare professional] by occupation. Mr Aitken is 61 years of age. He is a [occupation omitted].
There is no dispute that the parties met in 1991. They were living together in an apartment in [S] registered in the name of Ms Deakin in early 2009 when she says that she communicated her intention to Mr Aitken to separate. It is agreed that he vacated that apartment on
9 April 2009 by way of Mr Aitken’s personal possessions being packed and delivered by Ms Deakin to his place of work.
The issue is whether or not Ms Deakin and Mr Aitken had separated under the one roof from about January 2009 as she says or, alternatively, in late March 2009 when both agree that Mr Aitken was given an ultimatum to vacate the apartment by Easter 2009.
The law
It is clear that I have before me a discrete issue of disputed fact and credit as between the parties. The standard of proof that I apply is one of “on the balance of probabilities”.
In making my determination counsel for both parties agree that
I should be guided by the early decisions of the Family Court
of Australia in respect of separation under the one roof in relation
to divorce applications.
Those authorities make it clear that there are three elements
of separation in a legal sense. They are:
a)The development of an intention to separate. That intention need not be mutual.
b)The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c)Some form of action upon the determination to separate.
I am of the view that the test of the element of “communication” is an objective one.
As Watson J stated in Todd and Todd (No. 2)[1] at [75,079]:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
[1] (1976) FLC ¶90-008.
The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken[2], it should be unequivocal, unconditional and unambiguous.
[2] Falk and Falk (1977) FLC ¶90-247.
Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey[3] at [75,214]:
…it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
[3] (1976) FLC ¶90-051.
There is also an issue of corroboration of fact of separation under the one roof. Some corroboration is usually required. In the case of Fenech and Fenech[4] the parties lived in a strained relationship and there was no intimate relationship between them. However, her Honour Evatt CJ did not consider such evidence sufficient. Her Honour said at [75,133]:
[4] (1976) FLC ¶90-035.
I am satisfied that the breakdown has been continuing for at least a year, but that is not enough…
Marriage comes in many shapes and sizes and many families are living in a strained relationship like this. To the outside observer, matters go on much as usual, and only within the family itself —between the husband and wife — is there any acknowledgment of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households, not one…
In summary, therefore, I must find that at the relevant time there has been a breakdown of the relationship as distinct from a “breaking down” of that relationship.
The evidence
Ms Deakin has filed two affidavits in these proceedings on 24 July 2009 and 9 December 2009. In the former affidavit she deposes that in or around early 2009 both her father and her brother were seriously ill. At paragraph 19 she says:
I decided I did not want to live with [Mr Aitken] any more…
She goes on to say that she “broached the topic of us living apart”.
She says that Mr Aitken responded by saying that he needed financial support. At paragraph 21 of the same affidavit Ms Deakin says:
Also in or around early 2009, I had started raising the topic of [Mr Aitken] moving out on a weekly basis. He insisted to me that he had legal advice not to relocate from [S] under any circumstances and would become irate and demeaning of me, saying things like he had “already checked and would let the Family Court decide” in relation to demanding I support him.
In the latter affidavit filed 9 December 2009 at paragraph 37 Ms Deakin repeats that she told Mr Aitken in January 2009 that:
…we needed to live apart… I told him this 8 to 9 times in January and February 2009.
In the same paragraph of that affidavit Ms Deakin states that in January 2009 she moved out of the main bedroom and started sleeping on the couch. She repeats that Mr Aitken refused to move from the apartment stating that he needed financial support.
Mr Aitken denies the facts set out above. He says that he was taken by surprise in late March or April 2009 when Ms Deakin told him of her intention to separate. He says that the relationship had continued as normal until that time. He cites the fact that he was organising a joint holiday to Queensland as evidence of the continuing relationship. He says that he purchased flowers and the parties enjoyed a dinner on Valentines Day in 2009. He says, and it is agreed, that the parties jointly purchased a refrigerator in about February 2009 which he says is inconsistent with Ms Deakin’s claim that the relationship had ended weeks earlier and that she had asked him to leave.
Mr Aitken places some emphasis on the documents filed in these proceedings for substantive relief. His Initiating Application filed
18 June 2009 states at Part H that the parties’ de facto relationship broke down “on or after 1 March 2009”. That document is signed by his lawyer at the time and dated 12 June 2009. His affidavit filed with the application and sworn on 12 June 2009 states at paragraph 6:
We separated on 9 April 2009 (18 year de facto relationship) when [Ms Deakin] caused the majority of my personal possessions to be removed from our home… and delivered to me at my workplace, causing me significant distress, embarrassment and humiliation… She gave me no advance warning that she wanted to separate; nor did she provide me the opportunity to return to our home that day after work (or ever since) to obtain further personal items. I was most traumatized by the unexpected separation and the nature in which [Ms Deakin] initiated separation…
The implication of the above can only be that Mr Aitken claims to have had no prior knowledge or even suspicion of Ms Deakin’s intention to separate prior to 9 April 2009.
However, at paragraph 35 of his later affidavit filed 11 December 2009 Mr Aitken says:
In response to paragraph 38 I say that in or about March 2009 the wife said she wanted to separate.
Indeed, in his first affidavit Mr Aitken annexes a handwritten letter dated 9 April 2009 from Ms Deakin which was delivered with his belongings and which says in part:
I now too have sought legal advice & in accordance with their instructions – here are your belongings.
The inference from the letter of Ms Deakin provided by Mr Aitken
is that he had sought legal advice prior to 9 April 2009 and therefore had some inkling at least of Ms Deakin’s desire to separate.
I am of the view, therefore, that Mr Aitken knew of Ms Deakin’s intention to separate before 9 April 2009. The issue remains as to whether that intention was communicated in January 2009 or late March 2009.
In her Response to Mr Aitken’s application, Ms Deakin ticked the box confirming separation after 1 March 2009. At that stage she had the benefit of legal advice. It is clear from seeing her in the witness box that Ms Deakin is an intelligent and articulate woman. Under cross-examination she says that she simply misunderstood the question.
It is clear, however, from her evidence that she may not have understood the jurisdictional significance of the question which she says only became apparent to her much later when providing a full brief of instructions to her counsel. Certainly, Ms Deakin’s affidavit sworn the same day as her Response, and before providing instructions to her senior counsel, clearly states at paragraph 21 that from around early 2009 she regularly raised the topic of Mr Aitken moving out. She says that he consistently refused her requests or demands. She then confirms in the next paragraph that in late March 2009 Mr Aitken was told that he had until the Thursday before Easter to move out. He again refused. She evicted him.
After hearing Ms Deakin in the witness box, and considering the discrepancies of her affidavit and Response signed the same day,
I do not place any great significance on the fact that she ticked the relevant box in the Response as to indicate a separation after 1 March 2009. That is, I accept Ms Deakin’s evidence as to her ignorance as to the significance of 1 March 2009 as to jurisdiction and where there
is conflict between her affidavit and her Response then I accept the contents of her affidavit.
Ms Deakin provides some corroboration to her version of events by way of an affidavit from her accountant Mr S. He deposes to receiving a telephone call from Mr Aitken in February 2009 enquiring as to details of Ms Deakin’s property and share portfolios. Significantly,
Mr S recalls that Mr Aitken had stated quite clearly that “he did not want [Ms Deakin] to know that he had called”. Mr Aitken, however, says in his evidence in Court “I telephoned him [Mr S] with [Ms Deakin]’s permission to obtain a cash flow to show that [Ms Deakin] could take one day per week off”.
In cross-examination Mr S was questioned as to his own “independence”. Mr Aitken’s version of the reason for the telephone call was also put to Mr S. I am not of the view that Mr S was a partisan witness. He withstood vigorous cross-examination. I accept his evidence that Mr Aitken explicitly asked that their conversation be kept from Ms Deakin.
Ms Deakin also adduces evidence from a neighbour Ms W. Ms W deposes to Ms Deakin telling her in January 2009 that she had asked Mr Aitken to leave the apartment and that he had refused. She goes on to say that she and Ms Deakin had “discussed strategies of getting
[Mr Aitken] to move on with his life elsewhere”. Further, Ms W observed Ms Deakin to be sleeping on the couch in the living room during this period.
Ms W states that in January and February 2009 Mr Aitken enquired of her as to the rentals received by Ms Deakin for her investment properties. He did so to the extent of requesting volume and folio numbers together with valuations for those properties. Ms W was not successfully challenged as to this evidence. Counsel for Mr Aitken made something of the evidence of Ms W from the witness box when she was asked “when did you become aware that [Ms Deakin] and
[Mr Aitken] had separated”. Ms W responded “when I heard that the caretaker had organised the disposal of his goods”. Such an answer would imply the 9 April 2009. However, Ms W added spontaneously “I realised then that what had happened was what had been talked about by [Ms Deakin] for some time”.
Ms S is a receptionist at Ms Deakin’s [workplace]. She swore an affidavit as recently as 7 December 2009 in which she says at paragraph 20:
During January and February 2009, I noticed that the Respondent was looking extremely tired and stressed and I was concerned for her welfare. The Respondent told me she was only averaging about two hours of sleep per night as she was sleeping on the couch. She told me that she and the Applicant had separated and she was having trouble getting him to leave her home.
Ms S was also subjected to vigorous cross-examination by counsel for Mr Aitken. She was unable to say precisely when she was told by
Ms Deakin that she had separated from Mr Aitken. This is not surprising given that she did not swear her affidavit until December.
Evidence was adduced that Mr Aitken had been using internet dating sites from perhaps late 2008. Ms Deakin says she became aware of this fact in about January 2009 and that this contributed to her resolve to separate. Mr Aitken admits his connection to these sites but says that he did so “accidentally” when trying to download music from the internet. Quite frankly, I find it difficult to accept Mr Aitken’s explanation. However, the relevance of his behaviour is perhaps more to the “breaking down” of the relationship and the question still remains as to when Ms Deakin’s intention to separate was communicated to Mr Aitken. Nevertheless, his use of such internet facilities is perhaps inconsistent with Mr Aitken’s evidence of a committed and harmonious relationship until about 28 March 2009.
Mr Aitken argues that the booking by Ms Deakin of a hotel room at Crown Casino in late March 2009 is consistent with his version of events that he was told of her intention to separate in late March 2009. Whilst she was reluctant to admit the fact or details, it seems likely on the evidence that Ms Deakin had entered into a new relationship sometime prior to March 2009. It may be that her reservation of the room was connected to that relationship. However, I disagree with
Mr Aitken that there is a necessary connection between the booking of the hotel room and the communication to him by Ms Deakin of her desire to separate. In fact, emails tendered into evidence suggest that Ms Deakin’s new relationship had been of some duration by March 2009. Further, it is evident from an email between Ms Deakin and her friend in February 2009 that they had discussed the concept of
Ms Deakin’s separation from Mr Aitken.
Mr Aitken relies on the fact that Ms Deakin attended a function for a member of his family in late January 2009. She says that she attended out of respect for the guest of honour. It is alleged that Ms Deakin was introduced as Mr Aitken’s “partner”. Within the context of the history of the relationship between the parties and the circumstances in the first months of 2009, I do not place great store in such a statement or, more particularly, the failure of Ms Deakin to publicly dispute the term “partner” at that time within the confines of a family social event.
Conclusion
The concept of separation in both a legal and emotional sense
is sometimes one difficult to isolate in time and definition. In most cases the point of time is determined by physical separation. There is public recognition and mutual acknowledgement of the separation often emphasised by manifestations of behaviour and statement consistent with the breakdown of the relationship. However, in other factual situations such manifestations are not so obvious. The fact
is that the parties in a relationship do not always separate in dramatic and defined circumstances. It can be a gradual process towards physical separation. The law assists in requiring the development
by one of the parties of a definitive intention to separate.
That intention must be communicated to the other party in terms without ambiguity or conditions attached. There would normally be
a requirement for a contemporaneous change in the nature of the relationship such as cessation of sexual relations or public socialising as a couple.
In the matter before me there are inconsistencies with the arguments
in both parties. Mr Aitken firstly implies that the events of 9 April 2009 came as a complete shock to him. He later retreats somewhat to saying that he did in fact have notice of some twelve days from 28 March 2009. His version of events is inconsistent, on my findings, with his telephone conversation with Mr S, the accountant.
Ms Deakin’s argument suffers from the fact that she signed
a specific Court document agreeing to the fact that the separation occurred after 1 March 2009.
After considering all of the evidence and on balance, I prefer the version of events put by Ms Deakin. It seems clear to me that
Ms Deakin had in fact entered into a new relationship contemporaneously with the relationship with Mr Aitken breaking down. It seems to me that Mr Aitken’s use of internet relationship services is consistent with his acknowledgement that his relationship with Ms Deakin was breaking down. As such, I do not accept
Mr Aitken’s evidence of him being previously unaware of and shocked at a revelation to him on either 9 April 2009 or 28 March 2009.
I accept the evidence of both Mr S and Ms W that Mr Aitken had been making discrete enquiries as to Ms Deakin’s property and share portfolios as early as February 2009.
In one version Mr Aitken says that he was told of Ms Deakin’s intention to separate on 28 March 2009. He agrees that he did not adhere to her request to move from the property. This is consistent with Ms Deakin’s version that Mr Aitken had consistently refused her requests for him to move out.
I place some weight on the corroborating evidence of Ms W and Ms S. Both deposed to having been told in about January 2009 by Ms Deakin that the relationship with Mr Aitken was over. Both also allude to the fact that they were told that Mr Aitken would not leave the property.
As I have said above, the relevant distinction is between a relationship “breaking down” and “broken down”. I am of the view that Mr Aitken was reluctant to end the relationship. His reasons for such reluctance are not relevant. I accept, however, that he was told by Ms Deakin in January 2009 that the relationship was at an end. I accept that
Ms Deakin acted on this decision by both asking him to leave the apartment and by herself leaving the bedroom. I find that she had commenced a new relationship. It may be that Mr Aitken pursued the anticipated holiday to Queensland but in my view he did so contrary to the intention to separate conveyed to him by Ms Deakin. It is clear, even on his version, that Ms Deakin was not actively cooperative of the Queensland holiday. The purchase of a refrigerator after January 2009 is not necessarily contrary to such a finding. Ms Deakin says that
Mr Aitken had refused to leave the apartment. A refrigerator was required. The contribution by Mr Aitken is as consistent with his refusal to leave the apartment as it is with his statement that separation was not conveyed to him until sometime later.
I find that Ms Deakin determined to separate in January 2009 and communicated her intention in unambiguous and unconditional terms to Mr Aitken at about that time. Consequently, this Court has no jurisdiction to determine financial matters as between Ms Deakin and Mr Aitken and Mr Aitken’s application filed 18 June 2009 must
be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: A Creek
Date: 21 January 2009
12
0
2