B v M - [2022] WADC 7

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   B -v- M [2022] WADC 7
CORAM:   FLYNN DCJ
HEARD:   16, 17 & 20 SEPTEMBER & 25 OCTOBER 2021
DELIVERED          :   4 FEBRUARY 2022
PUBLISHED           :   24 MAY 2024
FILE NO/S:   CIV 3011 of 2020
BETWEEN:   B
Plaintiff
AND
M
First Defendant
Q
Second Defendant

Catchwords:

Courts - Jurisdiction - Proceedings in District Court for breach of contract of loan - Alleged loan between former de facto partners for purchase of a house - Loan repayable upon child of de facto partners ceasing to reside at the house - Whether 'de facto relationship' - Whether subject matter is under pt 5A of the Family Court Act 1997 (WA) - Whether within the exclusive jurisdiction of Family Court of Western Australia

Legislation:

District Court of Western Australia Act 1969 (WA)
Family Court Act 1907 (WA)
Family Court Act 1975 (Cth)
Interpretation Act 1984 (WA)

Result:

The plaintiff's claim against the first defendant and second defendant be struck out for want of jurisdiction

Representation:

Counsel:

Plaintiff	:	Mr P J Hannan
First Defendant	:	Mr T G Camp
Second Defendant	:	Not applicable

Solicitors:

Plaintiff	:	Nova Legal
First Defendant	:	Butcher Paull & Calder
Second Defendant	:	HHG Legal Group

Case(s) referred to in decision(s):

Browne v Dunn (1893) 6 R 67
Camden Pty Ltd & Laue [2018] FamCAFC 91
CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270
Clarence & Crisp [2016] FamCAFC 157
Director of Public Prosecutions (WA) v Mansfield [2008] WASCA 5
Drew & Drew [1985] FamCA 8; (1985) FLR 283
Eberstaller v Poulos [2014] NSWCA 211
Edwards v Santos Ltd (2011) 242 CLR 421
Federated Engine‑Drivers and Firemen's Association of Australasia v The Broken Hill Proprietary Company Ltd [1911] HCA 31; (1911) 12 CLR 398
Felton v Mulligan (1971) 124 CLR 367
Fencott v Muller (1983) 152 CLR 570
Lardil People v State of Queensland [2001] FCA 414
Mrowka v Format Finishing Pty Ltd [2009] WASCA 184
NCH v The State of Western Australia [2013] WASCA 29
Patel v Patel [2015] NSWDC 2
Ryan v Zekas [2020] WASC 124
Sewell v Wilson [2010] WASCA 152
Valley and Valley [2005] FCWA 98

FLYNN DCJ:

Introduction[1]

[1] What follows is an anonymised version of the judgment that was published to the parties.

The plaintiff and the first defendant have made two unsuccessful attempts at being in a relationship. The first ended in 2006. It involved a marriage in the 1980s and resulted in the birth of three children. Their children are the second defendant (born 1989) (the son), Y (born 1991) (the second son) and Z (born 2000) (the daughter). The first relationship ended in separation in 2006 and orders made by the Family Court of Western Australia (FCWA) on property (in 2006) and for a divorce (in 2008).
The second attempt at a relationship commenced in the first half of 2009. It ended before the end of June 2011. Shortly after it ended, the plaintiff advanced $477,492.64 (the Advance) for the purchase of a house and land in a Perth suburb (the property). By agreement between the plaintiff, the first defendant and the son, the contract to purchase and the certificate of title recorded the purchasers of the property as the first defendant and the son. The contract will be referred to as 'the property contract'. The first defendant and the daughter commenced to live at the property.
This action arises from the plaintiff's allegation that the Advance was a loan to the first defendant and the son, to be repaid from the proceeds of the sale of the property, which was to occur within a reasonable time of the daughter ceasing to live at the property (the Alleged Loan Agreement). The plaintiff claims that the daughter ceased to live at the property sometime between 18 August 2014 and March 2015 and that the failure to sell the property and repay the Advance was a breach of the Alleged Loan Agreement.
The plaintiff's claim against the first defendant is for $477,492.64, being damages for breach of the Alleged Loan Agreement. He does not seek an order against the son for damages. However, in the alternative to his claim against the first defendant for damages, he seeks orders against the first defendant and the son for specific performance of the Alleged Loan Agreement with the result that the property be sold and the first defendant pay damages in the amount of the difference between the selling price and $477,492.64 (plus interest from 6 March 2015).
On the son's indicating his intention to abide by the decision of this court and to be heard only on costs, an order was made that he be excused from participation in the action.
The first defendant argues that the District Court does not have jurisdiction to determine a claim based on the Alleged Loan Agreement given the exclusive jurisdiction of the FCWA (Jurisdiction Issue). She relies upon s 36(4a)(8) of the Family Court Act 1997 (WA) (FC Act (WA)) conferring exclusive jurisdiction on the FCWA to 'hear and decide all matters under Part 5A' (on 'De facto relationships') and, in particular, 'to hear and decide applications (under pt 5A) for orders with respect to property'. The plaintiff's response is two‑fold:
•Jurisdiction Issue: 2‑year De facto Relationship?
Section 205Z(1)(a) of the FC Act (WA) provides that the jurisdiction of the FCWA is conditional upon that court being 'satisfied that there has been a relationship between the partners for at least 2 years'. The plaintiff contends that his second relationship with the first defendant was for less than two years. For the reasons set out below, I have concluded that the de facto relationship was for a period of at least two years.
•Jurisdiction Issue: Subject Matter
The plaintiff argues that, properly construed, the FC Act (WA) does not have the effect of denying the District Court jurisdiction to determine this action. For the reasons set out below, I have concluded that the FCWA has exclusive jurisdiction to hear and determine the subject matter of this action.
The 'first duty' of a court is to be satisfied as to its own jurisdiction.[2] In the result, I have resolved the Jurisdiction Issue in favour of the first defendant and the action must be dismissed.
[2] Federated Engine‑Drivers and Firemen's Association of Australasia v The Broken Hill Proprietary Company Ltd [1911] HCA 31; (1911) 12 CLR 398, 415.
In the conclusion to these reasons, I observe that the subject matter of the plaintiff's action may also be characterised as concerning the maintenance of the daughter, a 'child of the marriage' for the purpose of Family Law Act 1975 (Cth) (FLA (Cth)). It follows from pt VII of the FLA (Cth) that the plaintiff's action could not be instituted in the District Court. In that circumstance, it is not appropriate to deal, in the alternative, with the two issues that would require determination if the District Court did have jurisdiction to determine the action. For completeness, I note those issues:
•First, as a result of the first defendant denying the terms of the Alleged Loan Agreement and alleging that the Advance was made when the plaintiff promised to fund the purchase of the property in consideration of the parties agreeing not to make a claim against the assets of the other (Alleged Compromise Agreement), it would be necessary to determine whether the plaintiff has proven the existence of the Alleged Loan Agreement in the terms alleged.
•Secondly, if the Alleged Loan Agreement was proven, it would be necessary to determine whether his action must nevertheless be dismissed as a result of s 13(1) of the Limitation Act 2005 (WA) providing that an action for breach of contract must be commenced within six years of the cause of action being accrued. The first defendant maintains that, if the Alleged Loan Agreement exists, the plaintiff's cause of action accrued when a reasonable time elapsed after the daughter ceased to live at the property before March 2013 and this time elapsed more than six years before the plaintiff commenced his action by filing a writ on 18 August 2020.

2‑year De facto Relationship: Introduction

The plaintiff's pleaded claim based on the Alleged Loan Agreement is one in relation to a 'personal action' within the jurisdictional limit of the District Court.[3] It follows from s 50(1) of the District Court of Western Australia Act 1969 (WA) conferring jurisdiction on this court in relation to personal actions, that, subject to the District Court being deprived of jurisdiction as a result of the operation of the FC Act (WA),[4] the District Court has jurisdiction to hear and determine the plaintiff's action.
[3] A 'personal action' includes a claim in contract, including actions on a debt: Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270 [55]. The jurisdictional limit is $750000: District Court of Western Australia Act 1969 (WA) s 6.
[4] And subject to the operation of the FLA (Cth) noted in the conclusion of these reasons.
Section 205Z(1)(a) of the FC Act (WA) provides that the FCWA may not make an order in relation to a de facto relationship unless satisfied that there has been a de facto relationship between the partners for a least two years. The submission of the first defendant as to the exclusive jurisdiction of the FCWA by reference to s 36 and pt 5A of the FC Act (WA), is premised upon the first defendant establishing the existence of a 2‑year de facto relationship.
The term 'de facto relationship' is defined in s 13A of the Interpretation Act 1984 (WA):
•Section 13A(1) defines 'de facto relationship' as 'a relationship between 2 persons who live together in a marriage‑like relationship'.
•Section 13A(2)(a) ‑ (g) identifies nine non‑essential 'factors as indicators of whether or not a de facto relationship exists'. Those factors include: relationship length (a); residential arrangements ((b),(c)); any sexual relationship (d); financial and property arrangements ((e),(f)); mutual commitment to a shared life (g); arrangements concerning children (h); and the public aspects of their relationship (i).
In Ryan v Zekas,[5] Hill J undertakes a review of authorities on the provision. In summary (omitting citations, quotation marks and paraphrasing both the words of Hill J and the quotes from cited cases):
•Ultimately, the court must undertake an overall assessment of the facts and all the relevant elements of the relationship before making what is, admittedly, a value judgment inherent in determining whether a relationship is 'marriage‑like'. De facto relationships are as diverse as marriages: [12] ‑ [14]
•Careful attention needs to paid to the living arrangements of the parties as a result of references to persons who 'live together' in the text of s 13A(1) and, in s 13A(2)(b)(c), to whether the parties 'reside together' and the 'nature and extent of their common residence': [10]
•Unlike a marriage, there is no formality as to when a 'marriage‑like' relationship starts or finishes. A de facto relationship is inherently terminable at any time. It continues to exist only insofar as the indicia which give the relationship its 'marriage‑like' character continue to exist. The essence of a de facto relationship lies, not in law, but in a de facto situation: [15]
•The party asserting the continuance of a de facto relationship must positively prove the existence of its defining characteristics, rather than being required to prove that the relationship has not ceased: [15]
•When a party to a de facto relationship determines that they no longer wish to live in a 'marriage‑like' relationship and conducts their life on that basis, the de facto relationship comes to an end: [15]
•Cohabitation is not essential to the continuance of a de facto relationship. Where one party determines not to 'live together' with the other, the relationship ceases: [15]
•Deterioration in the quality of a de facto relationship does not mean it has come to an end. It is not necessary to communicate an intention to live apart to the other party. The other party need not agree with or accept the decision. Once the parties ceased to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases: [16]
[5] Ryan v Zekas [2020] WASC 124 [11] ‑ [16].
The plaintiff and the first defendant were married in the 1980s. They separated in 2006. By consent orders of the FCWA made later that year, the parties agreed upon an equal division of net assets and for the plaintiff to pay spousal maintenance. One result of the division of assets was that the first defendant became the owner, without encumbrances, of real estate and the plaintiff assumed sole control of a business.

When did the 'de facto relationship' commence?

After separation in 2006, the parties had contact with each other to the limited extent necessary for parenting. This continued until, sometime between February and April 2009, the parties resumed intimate relations. The plaintiff and the first defendant each testified to having kissed affectionately at a family party in early April 2009. The 'public aspect' of this development in their relationship, against a background of their earlier marriage, is of significance. By early May 2009, the plaintiff and the first defendant were spending regular periods of time together, including nights in hotels.[6] However, during April and the first part of May 2009, they maintained separate residences. The plaintiff lived at a property that I will refer to as 'the plaintiff's property'. The first defendant lived with the three children at a property I will refer to as 'the first defendant's property'.
[6] Exhibit 3.7, pages 18 ‑ 19.
In her pleadings, the first defendant alleges that the de facto relationship commenced on 1 March 2009 when she moved from her residence into the plaintiff's property.[7] Under cross‑examination, the first defendant conceded that she did not move into the plaintiff's property on 1 March 2009 or on any date in the months of March or April 2009.
[7] First Defendant's Amended Statement of Defence of 4 February 2021 [Amended Defence], par 3.
In his pleadings, the plaintiff alleges that his de facto relationship with the first defendant commenced 'not later than' 1 July 2009. His evidence was that the parties, in May 2009, were 'still talking about' whether to live together.[8]
[8] ts 111.
In closing submissions, counsel for the plaintiff submitted that the first defendant lacked creditability on this issue given the discrepancy between her evidence on the timing of the commencement of the relationship (not earlier than May 2009) and her pleaded case (1 March 2009).[9] Counsel for the plaintiff placed emphasis upon three documents as evidence that the parties had not commenced their de facto relationship before 1 July 2009:
•On 8 May 2009, the plaintiff's lawyer wrote to the plaintiff in terms from which it is open to infer that the plaintiff had sought advice in anticipation of commencing a de facto relationship with the first defendant (the 8 May 2009 Crossing Email).
•On 27 May 2009, the first defendant wrote down her address as being the first defendant's property when she witnessed the son's signature on a 'Transfer of Land Form' by which the son became the registered proprietor of the property recently purchased by him ie 'the son's property'.
•On 15 April 2011, the plaintiff's lawyer prepared and forwarded to the plaintiff, under cover of a letter of advice (the 15 April 2011 Crossing Letter), a draft of a financial agreement between the plaintiff and the first defendant (the Proposed FA) with a view to the document becoming a 'financial agreement' (during a de facto relationship) in accordance with s 205ZO of the FC Act (WA). It is open to infer from recital F of the Proposed FA that the plaintiff had instructed his lawyers that he had been living in a de facto relationship with the first defendant since 1 July 2009.
[9] Plaintiff's [Written] Outline of Closing Submissions of 21 October 2021 par 10(3) (Plaintiff Written Closing Submissions).
I am satisfied that a de facto relationship, as defined by s 13A of Interpretation Act 1984 (WA), had commenced between the plaintiff and the first defendant by not later than 28 May 2009. Of significance to me is the testimony of WGA and the son.
WGA lived at the plaintiff's property between 9 May 2009 and the end of July 2009. I accept her uncontradicted evidence of the plaintiff introducing the first defendant to WGA on 5 May 2009 as his 'ex‑wife, now current partner' and of the first defendant and the daughter regularly staying overnight at the plaintiff's property. She recalled that the first defendant cleaned the bedroom and bathroom that the first defendant shared with the plaintiff. WGA observations were consistent with the plaintiff and the first defendant having, except in one respect, recommenced their 'marriage'. The exception was in the fact that, for a period in May 2009, the first defendant maintained her residence at the first defendant's property.
The son's evidence in cross‑examination was that the plaintiff, the first defendant and the daughter were living at the plaintiff's property as at 28 May 2009[10] and he became the registered proprietor of the son's property on 28 May 2009, a property less than 100 m from the plaintiff's property. In those circumstances, the son might be expected to recall the living arrangements of his parents on 28 May 2009. I am satisfied as to the accuracy of his evidence on this issue.
[10] ts 202.
I prefer the evidence of the son to the extent that it is inconsistent with the evidence of WGA and the second son. WGA stated that it may not have been until the first part of July 2009 that the first defendant and the daughter were living 'full‑time' at the plaintiff's property.[11] The second son testified that the first defendant moved into the plaintiff's property 'around June' 2009.[12] The son's confidence of the living arrangements as at 28 May 2009 was in marked contrast to the transparent 'best efforts' of WGA and the second son to fix a date and nominating a period of time.
[11] ts 157.
[12] ts 335.
My conclusion is not inconsistent with the plaintiff's statement of intention recorded by his lawyer in the 8 May 2009 Crossing Email.
My conclusion may be inconsistent with the first defendant recording her address as the first defendant's property on 27 May 2009 when a witness to the son's Transfer of Land form. On my finding, the correct position was that the first defendant's address was the first defendant's property until a date on or before 27 May 2009. Her explanation in re‑examination for stating the first defendant's property, related to the son's application for a government grant, was credible.
The contents of the recitals of the Proposed FA are not, on my assessment, of significance to the issue of when the parties commenced to live at the plaintiff's property. They reflect the instructions of the plaintiff to his lawyer on an unknown date before the 15 April 2011 Crossing Letter. It is not a contemporaneous record of an event said to have occurred 21 months earlier (1 July 2009). The first defendant did not sign or otherwise adopt the Proposed FA.
The plaintiff was not cross‑examined on the contents of the recitals of the Proposed FA. However, I draw no inference from that failure. It was apparent from the Amended Defence and from the cross‑examination of the plaintiff as to the date that he commenced to reside with the first defendant, that it was the first defendant's case that the plaintiff was wrong insofar as he was claiming that he was not in a de facto relationship with the first defendant before 1 July 2009. The policy of fairness that underpins the rule in Browne v Dunn[13] was not infringed.[14]
[13] Browne v Dunn (1893) 6 R 67.
[14] NCH v The State of Western Australia [2013] WASCA 29 [99] ‑ [101].

I have concluded that the first defendant had commenced to reside with the plaintiff not later than 28 May 2009. I accept the (uncontradicted) evidence of the first defendant that, from the time that she recommenced living with the plaintiff, the nature of their relationship was as if they were 'married again'.[15] That remained the position, at least until 18 March 2011. In that period, the parties entered contracts to jointly purchase ('off the plan') two residential apartments in a Perth development (the Apartments).
[15] ts 239.

When did the de facto relationship end?

On 18 March 2011, when they were together at the plaintiff's property, a verbal dispute erupted between the plaintiff and the first defendant. The subject of the argument is immaterial. The second son (then aged 19) was also present and verbally intervened before a physical fight ensued between the second son and his father (the 18 March 2011 Fight).
The plaintiff's account of the 18 March 2011 Fight was as follows:[16]
[The first defendant] slammed a fruit bowl, some plastic bowl, down on the bench, like just shattered the - and I leaned forward to give her - you know, to give her a slap and she, like, leaned back, went, 'Ha, you didn't get me', and then my son went, 'Don't you try and hit my mother', and then that was it, we're all on for the young and old, and … [the second son] and I went round to greet each other halfway from the kitchen to the dining. He grabbed me and I grabbed him and then he slammed me into the edge of the - edge of the bench and then he dropped me on the floor cos he - he's a - he knows judo, and then, yeah, and then all I remembered was I was - I was, like, passing out, …. and then - and then after that, we all got up and I just hopped in the car and left.
[16] ts 77.
The first defendant and the second son gave their own account of the 18 March 2011 Fight. The first defendant stated:[17]
He did actually connect my ear. … [the second son] was sitting next to him and gave him a hit on the arm with the back of his hand and said, 'Hey, don't hit my mum'. Then I don't know who grabbed who, who threw who, whatever happened, but [the second son] and [the plaintiff] were - got in a very physical fight. There was punches. At one stage it looked like [the plaintiff] was on - on [the second son]. There was a stage where [the second son] was on top of [the plaintiff]. … I'm looking at these two, [the second son] didn't seem to be punching, he was more antagonising [the plaintiff], saying things like, 'You're nothing but a coward, you hit women and now you're laying into your son', and that was making [the plaintiff] angrier. I'm looking at them like they are dogs, going for it, and I thought, 'What do you do to stop dogs going at it, you throw water over them'. I grabbed the tap out of the sink, one of those extender hoses, I squirted that, it didn't reach them, so I filled the bowl that I'd had, I filled that up, it was a plastic, green bowl, I filled that up with water and I threw that over [the plaintiff] and [second son].
I believe, at that stage, [the plaintiff] was actually on top of [the second son], it did change around. [The plaintiff] went to get up, he slipped on the water when he got up, it was a wooden floor, and he slipped on the water as he got up, and then he stormed out the front door. And [the second son] got up, all visibly shaken, and also stormed out the front door.
[17] ts 241 - ts 242.
The second son's account was brief:[18]
It was an argument between mum and dad going on in the kitchen. It got physical between them. I stepped in against my father. We had a - had a fight. It got broken up, I went out the front and called my girlfriend's dad and got in my car and went to hers.
[18] ts 336.
EVI is the plaintiff's sister. She holidayed at the plaintiff's property, arriving on 18 March 2011 (hours before the fight) and left on 7 June 2011. Although present for some of the 18 March 2011 Fight, her trauma‑informed recollection was limited to sighting her brother in distress.
After leaving the plaintiff's property on 18 March 2011, the plaintiff went to stay on his boat. I accept the plaintiff's description of the boat as 'a 45‑footer' with two big bedrooms, toilet and shower facilities.
The first defendant gave evidence of visiting the plaintiff on his boat on the evening of 18 March 2011 and the plaintiff being violent towards her so as to cause an injury to her face.[19] The plaintiff vehemently denied being visited by the first defendant or being violent to her.[20] The plaintiff stated that he lived on the boat for the next two and half months.[21] The first defendant testified that the plaintiff remained on the boat for two or three weeks before he returned to live with her at the plaintiff's property.[22]
[19] ts 243 ‑ ts 245.
[20] ts 121.
[21] ts 79.
[22] ts 246.
The competing accounts as to violence on the boat and the duration of the plaintiff's stay on the boat are irreconcilable. On these matters, there is no satisfactory basis for preferring the evidence of the first defendant over the plaintiff or vice versa. It follows that the first defendant has not satisfied me of the plaintiff being violent to her on 18 March 2011 or of the plaintiff living continuously with her at the plaintiff's property for the period in April ‑ June 2011 as she described.
However, on the basis of the evidence of the plaintiff's sister, EVI and the first defendant's credible evidence of the plaintiff being expected overnight on 20 ‑ 21 June 2011, I am satisfied that the plaintiff was frequently in attendance at the plaintiff's property in the period April ‑ June 2011 and, at least occasionally, stayed overnight. On the morning of 21 June 2011, the plaintiff sent an email to the first defendant that included a sarcastic comment about the first defendant's apparent lack of concern as to where 'he slept last night'. The first defendant explained the email contents by reference to the fact that, inexplicably, the plaintiff had not slept with her at the plaintiff's property. The plaintiff rejected that explanation. He said that 'there could be many reasons' for his email.[23] However, he could not recall the reason. On any view, the plaintiff expected the first defendant to know where he was sleeping and be concerned by his absence from that place. The explanation of the first defendant as him being expected at the plaintiff's property is a plausible explanation and I accept it.
[23] ts 124.
On 21 March 2011, at the initiative of the first defendant, the plaintiff attended upon his general practitioner who made notes of an injury to the right little finger and of there being 'no evidence of depression'.
After receiving the Proposed FA from his lawyers on 15 April 2011, the plaintiff supplied a copy to the first defendant[24] and encouraged her to sign it.[25] This required, to the knowledge of both the plaintiff and the first defendant, that the first defendant obtain independent legal advice. The following features of the Proposed FA may be noted:
•Each party disclaims a right to claim upon the 'separate property' of the other. 'Separate property' is defined to include the property identified in schedules and property acquired by a party after the date of the agreement. The plaintiff's listed separate property is recorded including the value of a business, the property and the assets of 'the Family Trust'. The first defendant's listed separate property is recorded and includes the first defendant's property.
•'Joint property', as defined and subject to any exception in a schedule, would be divided equally. One consequence is that the parties joint interest in the Apartments would be divided equally after reimbursement to the plaintiff of deposits.
[24] It is not necessary to resolve the competing explanations for the manner in which the first defendant obtained possession of the 15 April 2011 Crossing Letter: ts 247; ts 101.
[25] ts 118, ts 124.
In April 2011, the plaintiff, the first defendant and the daughter enjoyed a four‑day holiday together. The first defendant initiated the holiday. The plaintiff made the booking at her request. He testified:[26]
[Mr Hannan:] We've just talked about a very unpleasant physical incident on 18 March. Why is it you were booking or giving instructions to have this holiday booked?
[The plaintiff:] Because [the first defendant] was - kept - kept having conversations with me to tell me that, you know, 'You're - you're all seeing it incorrectly, and you're stressed and you're probably suffering depression. You need to have a holiday. You need to get out of this environment' and so I went, 'Okay, let's try a holiday'.
[26] ts 81.
On 21 June 2011, there was an exchange of emails between the parties. The first defendant had recently informed the plaintiff of her receiving advice from a lawyer (Ms Kiran Randhawa) not to execute the Proposed FA.[27] The plaintiff, disbelieving the first defendant's recounting of her advice, wanted the first defendant to seek alternative advice and supplied by email the name of an alternative lawyer, Mr Paul Poliwka.[28] The first defendant replied to the plaintiff's email, indicating her reluctance to seek any further legal advice. The plaintiff replied to the first defendant's email. The plaintiff and the first defendant both stated that the effect of the email was that the plaintiff was soon coming to the plaintiff's property to meet the first defendant and that other sarcastic sexually suggestive comments in the plaintiff's email were not intended by the plaintiff to be taken literally.[29]
[27] The first defendant at ts 248 - ts 249; the plaintiff at ts 123.
[28] ts 124.
[29] The plaintiff at ts 124, the first defendant at ts 289.
Shortly after the email exchange on 21 June 2011 and on the same day, the plaintiff attended the plaintiff's property and had a conversation with the first defendant. The evidence of both is that the plaintiff made clear to the first defendant he required her to 'get out of his house' and that this demand was linked to her failure to sign the Proposed FA (the 'Get Out' Conversation).[30]
[30] The plaintiff at ts 84, the first defendant at ts 250.
In evidence‑in‑chief, the plaintiff suggested that this conversation occurred in April or May 2011, although he conceded that he 'did not really recall the date at all'. In cross‑examination, the plaintiff agreed to the suggestion that this conversation occurred on 21 or 22 June 2011. In light of the content of the email exchange of 21 June 2011 and an email from the first defendant to Mr Poliwka sent on 22 June 2011, I am satisfied that the 'Get Out' Conversation occurred after the email exchange on 21 June 2011 and before the first defendant sent an email to Mr Poliwka on 22 June 2011.
A number of things happened in the five days after the 'Get Out' Conversation:
•On 22 June 2011, the first defendant moved out of the plaintiff's property and commenced living on the plaintiff's boat.
•On 22 June 2011, the first defendant sent an email to the lawyer, Mr Paul Poliwka, seeking his advice on the Proposed FA. She includes the statement, '[The plaintiff] has said if I don't get [it] signed, I have to leave our family home and leave the children behind'.
•On 23 June 2011, the first defendant published to her Facebook page a comment that she was separating from the plaintiff.
•On 26 June 2011, the first defendant and the son executed a 'contract for sale of land' by which they purchased the property from named vendors for the amount of $460,000 (the property Purchase Contract). The plaintiff and the first defendant (and the son) gave evidence of conversations between 21 and 26 June 2011 relevant to this purchase. That evidence does not bear upon the issue of when the de facto relationship between the plaintiff and the first defendant ceased to exist.
The plaintiff's case is that the de facto relationship ended when, as a result of the 18 March 2011 Fight, he ceased living at the plaintiff's property. The first defendant's case is that the de facto relationship survived the 18 March 2011 Fight and did not end until the Get Out Conversation on 21 June 2011.
My task is not to fix the date that the relationship ended. I must determine whether the first defendant has proven that a de facto relationship that commenced in May 2009 subsisted as at 21 June 2011.[31] The first defendant has satisfied me that the parties' de facto relationship continued until 21 June 2011. I make this finding notwithstanding that I am not satisfied that the plaintiff resided at the plaintiff's property after the 18 March 2011 Fight.
[31] Clarence & Crisp[2016] FamCAFC 157 [52] - [55].
It is not necessary to resolve any inconsistencies in the various accounts of the 18 March 2011 Fight except to observe that, objectively, it would be surprising if this event, of itself, ended the de facto relationship of the first defendant and the plaintiff. Although the protagonists in the verbal argument were the plaintiff and the first defendant, the second son's intervention was not and could not have been predicted by the plaintiff or the first defendant. Any prior antipathy between the plaintiff and the first defendant did not appear to be deep seated or longstanding. The plaintiff did not suffer serious injury. The first defendant was solicitous of the plaintiff after the incident.
Although the plaintiff left the plaintiff's property on 18 March 2011, and I am not satisfied that his time spent there after that date was continuous, there are a number of indicators that he had a commitment to a shared life with the first defendant and that there was, during that period, a real prospect of imminent resumed co‑habitation. The plaintiff continued to spend time at the plaintiff's property including occasional time overnight. He enjoyed a holiday with the first defendant and the daughter in April 2011. From the content of the Proposed FA and the plaintiff's efforts directed to the first defendant executing the document, the only reasonable inference is that, between 15 April and 21 June 2011, the plaintiff wished to continue in a de facto relationship with the first defendant.
There is no evidence from which to infer any change in arrangements concerning the care of the daughter after 18 March 2011. She continued to reside at the plaintiff's property and spend time with each parent as each of them mutually desired. There is no evidence from which to infer any change in financial or property arrangements after 18 March 2011. The plaintiff continued to meet most, if not all, the expenses of the plaintiff's property as well as his own expenses.

2‑year De facto Relationship: Conclusion

Overall, the facts suggest to me that the 'marriage‑like' relationship of the plaintiff and the first defendant that commenced not later than 28 May 2009 and existed as at the time of the 18 March 2011 Fight, continued until 21 June 2011. It was a relationship with unique features. After April 2011, the plaintiff was single minded in his pursuit of formalising the Proposed FA. However, until the email exchange of 21 June 2011, there is no evidence of the plaintiff's views or conduct regarding the Proposed FA threatening the continuance of his de facto relationship with the first defendant. For the purposes of s 205Z(1)(a) of the FC Act (WA) it was a de facto relationship between partners of at least two years.

Subject Matter Jurisdiction: Overview

Section 36(1) of FC Act (WA) confers upon the FCWA the 'non‑federal jurisdictions conferred on it by or under' the FC Act (WA). Section 36(8) provides that the non‑federal jurisdiction of the FCWA is exclusive of any other court.[32] The non‑federal jurisdiction conferred upon the FCWA by s 36(4a) of the FC Act (WA) includes jurisdiction to 'hear and decide all matters under Part 5A (on de facto relationships)' and, particularly, 'applications for orders with respect to property or the provision of maintenance'. The full text of s 36(1), (4a) and (8) is as follows:
[32] Subject to exceptions not relevant to this case concerning the non‑federal jurisdiction of courts of summary jurisdiction found in s 39 FC Act (WA) and appeals to the Supreme Court.
36. Non-federal jurisdictions of Court
(1)The Court has throughout the State the non-federal jurisdictions conferred on it by or under this or any other Act.
…
(4a)Without limiting subsection (1), the Court has jurisdiction under Part 5A to -
(a)make declarations and to revoke declarations that it has made;
(b)hear and decide all other matters under that Part, and in particular the Court has jurisdiction to hear and decide the following -
(c)applications for orders with respect to property;
(d)applications for orders for the provision of maintenance.
…
(8)Non‑federal jurisdiction conferred on the Court is exclusive of any other court …
The general grant of jurisdiction by s 50 of the District Court of Western Australia Act 1969 (WA) 'in relation to personal actions' is subject to any later statute containing a provision that imposes restrictions in respect of identified matters.[33] Section 36 of the FC Act (WA) is such a provision. In the result, the District Court lacks jurisdiction to determine the plaintiff's action in so far as his action invokes the exclusive jurisdiction of the FCWA. The resolution of this issue requires a comparison of the subject matter of the plaintiff's action with the subject matter of exclusive jurisdiction of the FCWA.
[33] Lardil People v State of Queensland[2001] FCA 414 [41] (French J).
A comparable exercise is regularly performed by courts when required to determine, for the purposes of ascertaining whether an action invokes federal jurisdiction, whether it is a matter arising under a particular Commonwealth statute.[34] For present purposes it is sufficient to make the following observations about that jurisprudence:[35]
•If the cause of action or the form of relief owes its existence to a statute, the action arises under that statute. If a right or duty in question in an action owes its existence to a statute or depends upon a statute for enforcement of the right or duty, the action arises under that statute. For example, if the subject matter of a contract owes its existence to a statute, an action concerning the contract arises under that statute. If the source of a defence to an action is found in a statute, the action arises under the statute. Mrowka v Format Finishing Pty Ltd[36] (discussed below) is an illustration of case where a claim by a de facto partner, not connected to any right or duty found in pt 5A of the FC Act (WA) was found not to arise under that statute.
•The determination of whether an action arises under a statute requires a determination of the 'matter' that is the subject of the action. The subject matter is not the same as the cause of action or the relief identified in the pleadings. Identifying the subject matter of an action requires an evaluation of 'what the parties have done, the relationships between them and the laws which attach rights or liabilities to their conduct and relationships'.[37] For this purpose, it is necessary to examine the pleadings, including the remedies sought, and any evidence of the factual basis for the position of each party in the proceeding.
•If the action is seeking to enforce an agreement to resolve a dispute that arose in respect of rights under a statute, the action arises under the statute.[38] Sewell v Wilson[39] (discussed below), is a case where the subject matter of the action was revealed by evidence to be an attempt to enforce an agreement to compromise claims that may be made under the Family Law Act 1975 (Cth) (FL Act (Cth)).
[34] Leeming M, Authority to Decide – The Law of Jurisdiction in Australia (2^nd ed, 2020, The Federation Press) especially ch 4 and ch 7.
[35] Except where separately footnoted, each proposition is adapted from Director of Public Prosecutions (WA) v Mansfield[2008] WASCA 5 [109] ‑ [113] (McClure JA with whom Buss JA agreed).
[36] Mrowka v Format Finishing Pty Ltd [2009] WASCA 184.
[37] CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2 [30], quoting Fencott v Muller (1983) 152 CLR 570, 608 (Mason, Murphy, Brennan & Deane JJ).
[38] Eberstaller v Poulos [2014] NSWCA 211 [16] - [17].
[39] Sewell v Wilson [2010] WASCA 152.

In Mrowka v Format Finishing Pty Ltd, the Court of Appeal held that the exclusive jurisdiction of the FCWA conferred by s 36 of the FC Act (WA) did not deprive the District Court of jurisdiction to determine a claim by a de facto partner against a company (the Company) controlled by his former de facto, notwithstanding that her control of the Company was the result of consent orders made by the FCWA (the Consent Orders).
The Consent Orders required a male de facto partner (MDP) transfer all his shares in the Company to his female de facto partner (FDP) and for him to resign as a director of the Company. He did so and then commenced a claim against the Company in the District Court, alleging an outstanding loan to him by the Company. I note two conclusions and an observation made by Owen JA (with whom Pullin JA and Buss JA agreed on this point) in the course of deciding that the action was within the jurisdiction of the District Court.
First, Owen JA concluded that the Consent Orders, properly construed, did not deal with subject of the alleged loan and 'as between the [MDP] and [the Company], [MDP] was entitled to enforce whatever rights he claimed to have in relation to the loan'.[40]
[40] Mrowka [93].
Secondly, Owen JA concluded that MDP's District Court action was 'a proceeding of an entirely different nature from that commenced in the [FCWA]'.[41] This conclusion was reached after examining authorities in which concurrent proceedings existed in two courts and observations were made on the effect of a statute conferring 'exclusive jurisdiction' upon one of those courts.[42] It was said that a 'general jurisdiction' court was not deprived of jurisdiction in particular proceedings unless the result may be orders that would defeat or diminish rights recognised by orders that may be made by the 'exclusive jurisdiction' court.[43] The loan alleged by MDP was not the subject of the Consent Orders and the District Court proceedings did not seek to 'impugn the integrity' of the Consent Orders.[44] The District Court's jurisdiction to determine MDP's claim on the loan was unaffected by the creation of the Consent Orders.
[41] Mrowka [68].
[42] Mrowka [61] - [64].
[43] Mrowka [64].
[44] Mrowka [68].
Thirdly, an observation was made by Owen JA on the significance of the fact that the case did not involve a debt that was in dispute between MDP and FDP:[45]
I acknowledge that this result is not without its complications. As [MDF] conceded in his written submissions, the District Court would have no jurisdiction to make an order dealing with a chose in action that was in dispute between de facto partners. If at some time in the future [FDP] were to be joined in the District Court action and were to plead that the debt was joint property jurisdictional problems may well arise. It would be difficult, for example, for [MDP] then to amend his claim to seek severance of the debt. …
[45] Mrowka [94].
In Mrowka, the proper characterisation of the subject matter of the action between MDP and the Company was a loan between 'strangers' and not any matter under the FC Act (WA). Unless and until the nature of the controversy between MDP and the Company changed, there was no connection between those proceedings and the jurisdiction of the FCWA.
The decision of the Court of Appeal in Sewell v Wilson well illustrates the importance of ascertaining the subject matter of the action by reference to the substance of the relationship between the parties rather than the manner in which a plaintiff frames the cause of action. A marriage ended. The husband commenced proceedings in the District Court alleging breach of a post‑separation oral agreement with the wife by which he would undertake improvements of the former matrimonial home in exchange for 18% of the net sale proceeds of the property.
At issue was whether the District Court lacked jurisdiction to determine the husband's claim given the exclusive jurisdiction of the FCWA over a 'matrimonial cause', defined so as to include 'proceedings between parties to a marriage with respect to the property of the parties to the marriage being proceedings arising out of the marital relationship'. Newnes JA (with whom Buss JA and Murphy JA agreed) held that the proceedings were clearly 'with respect to the property' of the parties and that the real question was whether the proceedings arose out of the marital relationship.[46] This question was answered affirmatively:[47]
58… It is apparent … that the alleged contract was not, in truth and substance, a contract for labour and materials as pleaded. In reality, the contract was a settlement of the [husband's] claim to an interest in the property arising out of the marital relationship. The figure of 18% represented what the [husband] considered would be approximately the amount he would be awarded on a property settlement under the Family Law Act. …
59It is plain, in my view, that the proceedings in the District Court are in substance proceedings with respect to the property to recover the benefit to which the respondent alleges he is entitled arising from the marital relationship. …
[46] Sewell v Wilson [37] ‑ [39].
[47] Sewell v Wilson [58] - [59].
It followed that the District Court lacked jurisdiction to determine the husband's claim. The characterisation of the controversy in each of Mrowka and Sewell v Wilson was a necessary first step, before comparing that characterisation with the ambit of the exclusive jurisdiction of the FCWA.
Sewell v Wilson also reveals that identifying the subject matter of the controversy for the purpose of making a determination of jurisdiction is not to be done by reference only to the causes of action, defences and remedies identified by the parties in the pleadings. A claim in damages for breach of contract is a claim in common law. However, if the subject matter of the contract is a right which is created by a statute or if a statute is the source of a defence to the claim, the claim may properly be said to be one under the statute.[48]
[48] Edwards v Santos Ltd (2011) 242 CLR 421 [45].

Subject Matter Jurisdiction: the Exclusive Jurisdiction of the FCWA

The exclusive jurisdiction of the FCWA to hear and decide all matters under pt 5A invites attention to the contents of pt 5A. A summary of pt 5A is set out in an annexure to these reasons. For present purposes, it is sufficient to draw attention to the following provisions touching upon the rights and duties of parties to a de facto relationship:
•The term, 'property', is defined to mean the property to which a de facto partner is or may be entitled: s 205T.
•Section 205ZB provides that a de facto partner may apply to the FCWA for an order (identified in the three dot points following) under pt 5A.
•Section 205Z provides for the making of a declaration by the FCWA concerning the existing title or rights of a de facto partner in respect of property (Declaration Right).
•Section 205ZC(1) creates an obligation upon a de facto partner to maintain their de facto partner where statutory criteria, including that the other party is unable to support themself by reason of caring for a child, is made out (Spousal Maintenance Obligation).
•Section 205ZG provides for the making of a property adjustment order by the FCWA as between de facto partners if it is just and equitable to do so having regard to financial and non‑financial contributions of each party to property and to the welfare of their family (Property Adjustment Order). Section 205ZLF provides that, with the object of making an appropriate Property Adjustment Order, the court may make an order altering the property interests of a third party (Third Party Property Order).
•The term 'financial agreement' is defined so as to include an agreement made during or after a de facto relationship with respect to maintenance of de facto partners or how property of de facto partners is to be dealt with in the event of the breakdown of the de facto relationship: s 205ZN - s 205ZP. A financial agreement that complies with the proscribed formal requirements (eg, certification of independent legal advice), and that has not been set aside or varied by reason of one of the matters in s 205ZV(1) (fraud etc), is binding and amenable to enforcement as if it is a contract: s 205ZW (Binding Financial Agreement).

Subject Matter Jurisdiction: The Plaintiff's Claim

I have noted that the plaintiff's pleaded claim against the first defendant is for damages for breach of the Alleged Loan Agreement and, in the alternative, he seeks orders against the first defendant and the son for specific performance of the Alleged Loan Agreement with the result that the property be sold and the first defendant pay damages.
The pleadings reveal that the parties are not in dispute on some facts. On 26 June 2011, the first defendant and the son signed the property contract. On 10 August 2011, the plaintiff supplied $477,492.64 for the purchase of the property. The first defendant and the son became registered proprietors, as joint tenants, of the property and that remains the position today. The plaintiff has not been repaid any of the purchase price.
The plaintiff particularises the source of the Alleged Loan Agreement as a document signed by the parties dated 8 August 2011 (8 August 2011 Document) and conversations between the parties between March 2011 and 26 June 2011.[49] The first defendant particularises the source of the Alleged Compromise Agreement as the same 8 August 2011 Document and a conversation between the parties in June 2011.
[49] Statement of Claim dated 16 August 2021, par 18.
The evidence with respect to the creation and execution of the 8 August 2011 Document was adduced at trial. On 10 August 2011, the first defendant was handed an original and copy of the 8 August 2011 Document. It had been drafted on the initiative of the plaintiff. He gave it to the first defendant (or a settlement agent) and said that he would not advance the purchase price for the property unless the document was signed by the first defendant.[50] The first defendant signed it. The full text of the 8 August 2011 Document is as follows:[51]
[50] ts 91, ts 258.
[51] Exhibit Vol 1, tab 21.
Dear [first defendant]
PROPERTY SETTLEMENT
I confirm that we agreed that if our relationship ended, neither of us would have a claim against the assets of the other party, except to the following extent:
•I will purchase in your name [the property] scheduled for settlement on Wednesday, 10 August 2011. The property will have no monies owing against it.
•I will transfer into your name the registration of ['the vehicle' identified].
•I will let you collect or receive from me some further agreed household chattel items.
I confirm that we agree that we will remove your name from the offer to purchase the [Apartments].
I ask that you sign and return to me the accompanying copy of this letter to acknowledge that we agree that this is a binding agreement.
I thank you for sorting this out amicably.
Regards
[The Plaintiff]
The reference in the document to the vehicle is a reference to a motor vehicle in the possession of the first defendant. It had been purchased by the plaintiff during their de facto relationship. The reference in the document to the Apartments is a reference to the Apartments that, as noted above, were the subject of a contract to purchase in the joint names of the plaintiff and the first defendant.
The first defendant's defence, as pleaded and given in evidence, is that the 8 August 2011 Document along with a conversation to the effect that the daughter would reside with her at the property, reflected the terms of a contract she made with the plaintiff, the Alleged Compromise Agreement.
The plaintiff's case, as pleaded and given in evidence, is that the terms of the Alleged Loan Agreement were found partly in the 8 August 2011 Document Agreement and partly in conversations with the first defendant. In those conversations it was said that it was agreed with the first defendant that the plaintiff would advance the funds to purchase the property and that it was a loan to the first defendant and the son. Within a reasonable time of the daughter ceasing to live at the property, the loan was to be repaid from the proceeds of sale of the property. The first defendant was entitled to retain the balance of any amount of the sale price in excess of the loan.
The plaintiff and the first defendant each gave evidence of a conversation, before identifying the property, in which they canvassed accommodation alternatives for the first defendant that would result in the daughter living with the first defendant, close to both the plaintiff's property and to the daughter's school (the Alternative Accommodation Conversation). There is consistency in the evidence on some of this conversation. The first defendant said that she could not return to the first defendant's property because she had rented it out. The first defendant rejected suggestions of the plaintiff (for reasons she proffered): the first defendant renting a house from a third party ('can't afford it'), the plaintiff purchasing a house and paying below market rent to the first defendant ('not paying your mortgage off') or at zero rent ('not living in your house'). On one crucial matter, there is inconsistency. The plaintiff gave evidence that he suggested that he buy a house, put it in the first defendant's name and the first defendant 'pay it all back once [the daughter] and the family don't have a need for it'. In contrast, the first defendant gave evidence that she suggested that the plaintiff buy a house in her 'name and it's to be unencumbered' and that the plaintiff replied, 'Fine'.[52]
[52] ts 252.
The plaintiff gave evidence of a further conversation at the time of the first (and only) inspection of the property and both liking the property (the Offer to Purchase Conversation). The plaintiff testified that he said to the first defendant:[53]
Well, this is how it's going to go, I'll pay for it, it'll be in your name, … it's for [the daughter] and the family, and when there's no longer any need for this property, it's to be sold, and you can keep anything over and above what I've just paid for it.
[53] ts 88. See also ts 126.
The plaintiff said that the first defendant replied, 'Okay'.[54] The first defendant denied any conversation to this effect on the occasion of the inspection of the property (or any time).[55]
[54] ts 88.
[55] ts 292.
The plaintiff and the first defendant each gave evidence of a further conversation that, on the evidence of both, ended in them agreeing that the son be included as a named purchaser (along with the first defendant) in any contract to purchase the property.[56] Each testified to the plaintiff wanting the son's name included on the title to protect future claims on the property being made by any future partner of the first defendant.[57]
[56] ts 91 - ts 92, ts 257.
[57] ts 91, ts 257.

Subject Matter Jurisdiction: Analysis

The cause of action pleaded by the plaintiff, breach of contract in the form of the Alleged Loan Agreement, does not exist as a result of a right or duty found in pt 5A of the FC Act (WA). The same may be said of the remedy sought by the plaintiff. Damages consequent upon breach of contract to loan is not enforceable by reason of any provision of the FC Act (WA).
However, my view is that the subject matter of the plaintiff's action, properly characterised, involves matters under pt 5A of the FC Act (WA), with the result that the exclusive jurisdiction of the FCWA is invoked.
First, the consideration for the Alleged Loan Agreement, as disclosed by the opening sentence of the 8 August 2011 Document, properly characterised, is the agreement of each party not to apply for a Property Adjustment Order. The sentence 'confirms an agreement' not to 'claim against the assets of the other party' except to the extent of asset transfers set out in the balance of the document. The balance of the document speaks of adjustments to the interests of the parties in identified property. By this opening sentence, the subject matter of the action is revealed to include a compromise by which the parties agree not to invoke the jurisdiction of the FCWA to exercise the power to make a Property Adjustment Order.
In Eberstaller v Poulos, it was held that proceedings whose substance was to enforce an agreement embodied in consent orders made under the Family Law Act 1975 (Cth) involve a matter arising under that Act. It was said that 'the enforcement of a contract to settle a case concerning rights owing their existence to [the statute], and hitherto sought to be vindicated in [court] will be a matter arising under' the statute.[58] The principle was also applied in Felton v Mulligan,[59] with the result that proceedings to enforce a deed of settlement providing for maintenance payments was held to be a matter arising under the Matrimonial Causes Act 1959 (Cth).[60] The power to make a Property Adjustment Order is within the exclusive jurisdiction of the FCWA. A compromise touching on the exercise of that power is a matter that arises under pt 5A.
[58] Eberstaller v Poulos [14] - [16].
[59] Felton v Mulligan (1971) 124 CLR 367.
[60] Felton v Mulligan (376) - (377) (Barwick CJ).
Of course, the compromise of future claims under the FC Act (WA) was not binding having regard to the jurisdiction of FCWA to make a Property Adjustment Order. There may well be a question as to whether it is capable of being 'good' consideration. However, the inclusion of a term in the Alleged Loan Agreement that purports to address the same subject matter as pt 5A of the Act (on Property Adjustment Orders) reveals that the subject matter of the action is under pt 5A.
Secondly, the Alternative Accommodation Conversation and the evidence of each party as to the Offer to Purchase Conversation reveal that the parties considered that a purpose of the Alleged Loan Agreement (or the Alleged Compromise Agreement) was the discharge by the plaintiff of the Spousal Maintenance Obligation. This obligation is created by the FC Act (WA). The subject matter of the Alleged Loan Agreement owes its existence to the FC Act (WA). Again, any purported discharge of the statutory obligation was not, as a matter of law, final. However, the fact that a purpose of the Alleged Loan Agreement concerned the same subject matter as pt 5A of the Act (on the Spousal Maintenance Obligation) reveals that the subject matter of the action is under pt 5A.
Thirdly, the last sentence of the 8 August 2011 Document purports to include a term of the Alleged Loan Agreement (and the Alleged Compromise Agreement) that 'this is a binding agreement'. Neither party allege that the document is a Binding Financial Agreement. However, the inclusion of a term in the Alleged Loan Agreement that purports to address the same subject matter as pt 5A of the Act (on Binding Financial Agreements) reveals that the subject matter of the action is under pt 5A.
It is apparent that I have not accepted the submissions of the plaintiff on the Jurisdiction Issue.[61] Those submissions focus upon the nature and context of the relief claimed in the plaintiff's action. Emphasis is placed upon the fact that, by reference to the pleadings, neither the plaintiff nor the first defendant make claims based upon a right or obligation found in pt 5A of the FL Act (WA). I have noted that the Jurisdiction Issue requires a comparison of the subject matter of the plaintiff's action, not limited to the claims made in the pleadings, and the subject matter that is the exclusive jurisdiction of the FCWA. I have also noted the observation of Owen JA in Mrowka that the District Court was unlikely to have jurisdiction concerning a chose of action that was the subject of dispute between de facto partners. The plaintiff correctly observes that, unlike the former matrimonial home at issue in Sewell v Wilson, the property was not acquired until after the de facto relationship ended. However, this factual distinction is of no legal significance having regard to the observations I have made above on the Alleged Loan Agreement purporting to: compromise future claims for a Property Adjustment Order; discharge the Spousal Maintenance Obligation and have the same effect as a Binding Financial Agreement. The plaintiff places some reliance upon the outcome in Patel v Patel.[62] The outcome in that case appears to be a result of expressly doubting the correctness of Sewell v Wilson.[63] In those circumstances, the case is of limited value.
[61] For example, in Plaintiff Written Closing Submissions pars 11 - 14.
[62] Patel v Patel [2015] NSWDC 2.
[63] See Patel v Patel [74].

Conclusion

The first defendant's challenge to the jurisdiction of the District Court was limited to submissions based upon the exclusive jurisdiction of the FCWA on matters under pt 5A of the FC Act (WA) concerning property issues that arise from de facto relationships. The challenge has been successful.
No submissions were made by either party on whether the District Court lacked jurisdiction in the plaintiff's action because of the federal jurisdiction invested in the FCWA (and not the District Court) by:
•Section 41 of the Family Law Act 1975 (Cth) (FLA (Cth) (and a proclamation made under that section) 'with respect to property of the parties to a marriage being proceedings arising out of the marital relationship'.[64] Notwithstanding the marriage of the plaintiff and the first defendant, ending in divorce in 2008, in the absence of submissions from the parties and the limited authority on the consequences of a resumed relationship,[65] I do not propose to make comment on the issue.
•Sections 69H(2) of the FLA (Cth) in relation to matters concerning a 'child of the marriage' arising under 'Part VII the FLA (Cth). Division 7 of pt 7 makes provision for 'child maintenance orders' including an order that a transfer of property be made by way of maintenance of a child: s 66P FLA (Cth). The daughter is 'a child of the marriage' of the plaintiff and the first defendant: s 60F(1)(2) FLA (Cth). One term of the Alleged Loan Agreement, supported by the evidence of the plaintiff as to the Offer to Purchase Conversation, has the effect of being a transfer of property to purchase the property, for the purpose of maintenance of the daughter. The subject matter of the Alleged Loan Agreement is revealed to be a matter on which pt VII of the FLA (Cth) makes specific provision upon an order of the FCWA. An application for child maintenance must not be instituted other than by way of an application to the FCWA: s 69B(1) FLA (Cth). The subject matter of the action was consequent upon a transfer of property for the maintenance of the daughter and the action could not be instituted in the District Court.
[64] Camden Pty Ltd & Laue [2018] FamCAFC 91 [155]; Sewell v Wilson [31] - [33]; Valley and Valley [2005] FCWA 98 [26] - [36] (Thackray J).
[65] I note the obiter observation of Fogarty J in Drew & Drew [1985] FamCA 8; (1985) FLR 283.

ANNEXURE TO REASONS
SUMMARY OF PART 5A FAMILY COURT ACT 1997 (WA)

•Division 1 of pt 5A makes provision for the application of pt 5A to 'de facto relationships' (s 205U) and prohibits a de facto partner from making application to the Supreme Court 'in its equitable jurisdiction for relief in respect of property' which may be the subject of an application under div 2 (s 205V).
•Division 2 of pt 5A is concerned with property adjustment orders and maintenance orders. There is also provision for the court to make a declaration as to the title or rights, if any, of a de facto partner in respect of property (s 205ZA).[66] The division does not apply to matters the subject of a binding financial agreement (s 205W).
[66] The declaration is a determination of existing rights and does not empower the alteration of rights: Mrowka v Format Finishing Pty Ltd [33] (Owen JA).
•Division 3 (discussed below) provides for the making of a financial agreement before, during or after a de facto relationship that, subject to exceptions, is binding and amenable to enforcement.
•The court does not have jurisdiction to make an order under div 2 unless satisfied as to the parties' connection with Western Australia set out in s 205X and of a de facto relationship of at least two years (s 205Z(1)(a)).
•An application for an order under div 2 must be made within two years of the end of the relationship unless, upon being satisfied of hardship, the court grants leave to make the application on a later date (s 205ZB).
•Maintenance orders arise from the statutory obligation imposed upon a de facto partner to maintain the other de facto partner where the criteria in s 205ZC are satisfied ('reasonably able to do so … other party unable to do so by reason of care of a child, incapacity or other reason'). After consideration of a mandated list of factors (age, income, financial resources etc), the court may make any order for maintenance (s 205ZD). There is provision for urgent (interim) orders (s 205ZE). The statutory obligation is not discharged unless an order making provision for maintenance is expressed to be such an order (s 205ZF). The order may be suspended, discharged or varied if there has been a change in circumstances as described in s 205ZL.
•Property adjustment orders may be made by the court if the criteria in s 25ZG are satisfied. The court may order that the interests in property of de facto partners be altered if the court is satisfied that it is just and equitable to do so (s 205ZG(1), (3)). The term 'property' is defined by s 205T to mean property to which either de facto partner may be entitled. In considering what order (if any) to make, the court must take into the account the factors set out in s 205ZG(4). Those factors include the financial and non‑financial contribution of a de facto partner or their child to the property and to the welfare of their family (s 205ZG(4)(a) ‑ (c)). The court must also, so far as practicable, make such orders as will finally determine financial relationships and avoid further proceedings between them (s 205ZJ). An order made under s 205ZG will not be varied or set aside unless the court is satisfied of one of the factors (miscarriage of justice, change in circumstances of an exceptional nature etc) set out in s 205ZH (1).
•In exercising power concerning maintenance and property, the court is conferred with power to make orders listed in s 205ZI including the power to make any order necessary to do justice (s 205ZI(1)(k)).
•Division 2A of pt 5A is concerned with orders that bind third parties. With the object of allowing a court to make an order under s 205ZG (including an order concerning a debt owed by a de facto partner, s 205ZLD) that relates to the interests of third parties (s 205ZLA) and if reasonably necessary (s 205ZLF(3)) having regard to a mandated list of factors (s 205ZLF(4)), the court has the power to make any of the orders set out in s 205ZLF(2),(3), including the power to alter the property interests of a third party (s 205ZLF(2)(b)). For this purpose, a 'third party' is defined to mean a person who is not a de facto partner (s 205ZLB). The third party is not liable for loss or damage for anything done in reliance upon an order (s 205ZLI). The court may make orders for the payment of the reasonable expenses of a third party incurred as a result of an order (s 205ZLK).
•Division 3 of pt 5A is concerned with financial agreements. A 'financial agreement' is an agreement made before (s 205ZN), during (s 205ZO) or after (s 205ZP) a de facto relationship with respect to either or both of how property is to be dealt with in the event of a relationship breakdown and maintenance.
•The 'financial agreement' (as defined) is binding on the parties if the formal requirements of s 205ZS are satisfied (s 205ZS). Those requirements include that the agreement be signed and contain certification of each party having received independent legal advice on specified matters (legal effect, advantages and disadvantages etc). A financial agreement is amenable to enforcement by the court in the same way as the Supreme Court may enforce a contract (s 205ZW). A financial agreement may be set aside by the court if, on application, the court is satisfied of one of the matters specified in s 205ZV(1). Those matters include that, at common law or in equity, the agreement would be 'void, voidable or unenforceable' (s 205ZV(1)(b). There is also provision for termination, by agreement, of a financial agreement (s 205ZU).

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Associate to Judge Flynn
2 FEBRUARY 2022