Beltran & Preston
[2023] FedCFamC2F 514
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beltran & Preston [2023] FedCFamC2F 514
File number(s): NCC 1850 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – De facto relationship – to determine when the breakdown of relationship occurred - summary dismissal of spousal maintenance application sought – untested evidence taken at its highest – leave granted pursuant to s 44(6) – financial hardship if discretion not exercised Legislation: Family Law Act 1975 (Cth) ss 4AA, 44(6), 90RD Cases cited: Fairbairn & Radecki [2020] FCCA 1556
Fairbairn & Radecki [2022] HCA 18
Hall & Hall [1979] FamCA 50
Hardwick & Hardwick (No. 2) [2022] FedCFamC1A 216
Jonah v White [2012] FamCAFC 200
Kendall & Vilmos [2022] FedCFamC2F 1484
Lynam v Director-General of Social Security (1983) 53 ALR 128
Sharp & Sharp [2011] FamCAFC 150; (2011) 50 FLR 567
Skelton & Lindop [2022] FedCFamC1A 47
Whitford & Whitford (1970) FLC90-62; [1979] FamCA 3
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 23 March 2023 Place: Newcastle Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Toronto Legal Solicitor for the Respondent: Mr Craney, Craney Family Solicitors Solicitor for the Independent Children's Lawyer: Excused from appearing ORDERS
NCC 1850 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BELTRAN
Applicant
AND: MS PRESTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
5 May 2023
THE COURT DECLARES THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Act’), the de facto relationship between the applicant MR BELTRAN and the respondent MS PRESTON broke down by 16 May 2018.
THE COURT ORDERS THAT:
2.The de facto wife’s application for leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) is granted.
3.All applications relevant to the determination of the court’s jurisdiction pursuant to s 44 of the Family Law Act 1975 (Cth) are dismissed.
THE COURT NOTES THAT:
A.In the event that a party exercises their rights to file an application for costs by 4.00pm 2 June 2023, THEN registry staff are permitted to liaise directly with the chambers of Judge Kearney for the making of chambers orders allocating a hearing date before Judge Kearney and directions in support of such event.
B.The Court heard that the husband no longer opposes the Court having jurisdiction to make property settlement orders pursuant to Pt VIIAB of the Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Beltran & Preston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
The husband says that the parties’ de facto relationship ended in June 2018 and that the wife’s application for spouse maintenance is out of time. The wife says the parties’ relationship endured until April 2021 despite her moving out almost a year earlier but during which time, their circumstances included the conception of another child, meaning that her spouse maintenance application was within time. The discrete issue for determination by me was when the de facto relationship broke down and, if applicable, the consequences that flow from such a finding.
These family law proceedings[1] were commenced by the applicant, Mr Beltran. The respondent was Ms Preston. When Mr Beltran commenced the proceedings it was in relation to parenting arrangements for three children of the relationship – X and Y (‘the boys’) and Z.
[1] Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth)
In responding to the parenting proceedings, Ms Preston sought relief pursuant to Pt VIIIAB in terms of a declaration as to the existence of a de facto relationship or alternatively that she be granted leave to commence proceedings out of time for both property adjustment relief and spouse maintenance relief.
PRECIS
There was no evidence or submissions to dispute when the parties’ de facto relationship commenced. In about mid‑2018 Ms Preston moved out of the former family home at Suburb B where the applicant remained living with the boys.
In 2021, the parties’ only daughter Z was born. The mother says that the parties were in a de facto relationship as a couple living together on a genuine domestic basis[2] until early 2021 (shortly before the birth of Z).
[2] See s 4AA(1)
At the start of the discrete hearing, I heard that the husband had resiled from his previous position such that irrespective of what finding was made, he conceded that the Court had jurisdiction to determine the property adjustment dispute between the parties. This meant that depending on the findings I made about Mr Beltran’s summary dismissal application, Ms Preston’s extant spouse maintenance application would stand or fall.
To be clear then, Mr Beltran sought that Ms Preston’s spouse maintenance application (‘the SM application’) be summarily dismissed because the Court should –
·Declare that the parties’ de facto relationship ended in May 2018; and
·Dismiss Ms Preston’s alternative application for leave to file the SM application out of time.
In response, Ms Preston resisted the summary dismissal application, urging the Court to -
·Declare that the parties’ de facto relationship ended in April 2021; or
·Exercise its discretion to permit the SM application to be filed out of time: s 44(6).
For the reasons that follow, I will:
(a)make a declaration that the parties’ de facto relationship ended by 16 May 2018;
(b)permit Ms Preston to commence proceedings out of time pursuant to s 44(6) of the Act; and
(c)make notations to support me determining any costs application that may arise, provided that such application is filed by 2 June 2023.
WHEN DID THE DE FACTO RELATIONSHIP BREAK DOWN?
The parties could not agree on when the de facto relationship broke down. To determine this issue and identify the parameters of their de facto relationship, there is a legislative pathway that I have to follow when exercising my discretion pursuant to ss 90RD & 4AA.
The Full Court has held that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”: Jonah v White [2012] FamCAFC 200 at [32].
As opined by Judge Betts in Fairbairn & Radecki [2020] FCCA 1556 –
13. …(the “touchstone” finding) is the seminal test to which the various “circumstances” prescribed in s 4AA(2) are all directed. Importantly, a court’s discussion and consideration of particular circumstances found to be relevant in any one case should not be seen as giving rise to binding principles of law or as substituting for the words of the statute: Sinclair v Whittaker [2013] FamCAFC 129 at [94]; and
33. By definition, the actions of a party or parties which are said to be unequivocally indicative of and consistent only with, the cessation of the de facto relationship will vary from case to case. As the Full Court emphasised in Sinclair v Whittaker, every relationship is different. And as a marriage relies upon the continued existence of the consortium vitae, so too a de facto relationship relies upon the parties continuing to live as a couple on a genuine domestic basis as required by s4AA.
In Lynam v Director-General of Social Security (1983) 53 ALR 128 at [131] said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
In Fairbairn & Radecki [2022] HCA 18 (‘Fairbairn & Radecki’) at [43] the High Court had regard to all the circumstances, including the conduct of the husband (in that case), in making a finding as to when the relationship had ended which included that the “circumstances demonstrated a persistent refusal” by the husband to act in a way that would evidence an ongoing relationship.
My task is to make an evaluative factual decision as to when the de facto relationship broke down, or in other words to determine a jurisdictional fact.[3]
[3] See Jonah v White [2012] FamCAFC 200 at [32]
Here, my determination was an interlocutory determination of a discrete issue relying on the untested evidence of both parties. In Skelton & Lindop [2022] FedCFamC1A 47 (‘Skelton & Lindop’) Austin J, sitting as the Full Court, had to consider an appeal against a decision dismissing an application for leave to file out of time, de facto property adjustment proceedings. In that matter, the evidence of both parties was to the effect that the application was out of time, it was just a question of - by how much? Austin J observed that in those circumstances the first instance judge correctly recognised that in determining an interlocutory dispute pursuant to s 44(6), the untested evidence of the applicant seeking leave should be accepted at its highest (see Skelton & Lindop at [5]).
The nature of the dispute in Skelton & Lindop was a lot narrower than the issues in dispute (and the circumstances underpinning it) that I had to contend with here. On that basis I will carefully assess the untested evidence of both parties.
In May 2018, both parties agreed that Ms Preston moved out, with Mr Beltran saying this happened on 11 May 2018[4] and Ms Preston says 16 May 2018[5]. In Fairbairn & Radecki the High Court rejected the proposition that such an event should equate to a finding that the de facto relationship has broken down and instead observed that -
29. A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
30. In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond…
[4] Affidavit of Mr Beltran filed 29.06.2022 at [25]. For ease of reference this document will be referred to as ‘H’ with the paragraph numbers identified in square brackets.
[5] Affidavit of Ms Preston filed 02.06.2022 at [12]. For ease of reference this document will be referred to as ‘W’ with the paragraph numbers identified in square brackets.
Mr Beltran says at the time, the parties informed Centrelink of their separation and that Centrelink childcare started in 11 May 2018 on the basis that Mr Beltran was caring full-time for the boys.[6]
[6] H[25]
There was a brief exploration of any findings I could make about the parties’ notification to Centrelink based loosely on what has been described as a rule of law[7] being the “Elias principle[8]”. I have declined to consider this aspect any further for various reasons including –
(a)the lack of specificity in evidence and/or submissions about either the parties’ actual declarations (viz there was no copy of the actual form) or the effect of such declarations upon the parties’ competing evidence about the breakdown of the relationship; and
(b)the inability to afford the parties proper procedural fairness to argue the application (or otherwise) of the “the Elias principle”.
[7] See Benedict & Peake [2013] FCCA 332 at [26]
[8] Elias and Elias (1977) FLC 90-267
After Ms Preston moved out, Mr Beltran says that the parties continued to see each other on an informal basis.[9] I note the observations of the High Court in Fairbairn & Radecki at [29] to the effect that this is not the inquiry and that in effect, a de facto relationship may have broken down either before or after parties continuing to have an ongoing relationship.
[9] H[26]
Ms Preston says that she did not consider that the parties had separated but that she felt the need to leave our home to focus on my mental health.[10] What appears to be missing from this evidence is whether she communicated that intention to Mr Beltran. In that vacuum, it is clearly open for me to find that her actions expressed an intention that their de facto relationship was at an end.
[10] W[12]
Ms Preston then says that the boys spent week days with Mr Beltran and weekends with her and that the boys stayed with her for about 75% of the school holidays, with Mr Beltran “rarely” staying with them at Ms Preston’s home.[11] Mr Beltran says that during an unspecified period of time (but after May 2018), the boys would occasionally stay at Ms Preston’s house on a Saturday night when she was not working and on some occasions we (as in the parties and the boys) would all stay together on the weekends.[12]
[11] W[13]
[12] H[34]
Ms Preston then gives evidence of her unhappiness about how Mr Beltran was caring for the boys and her expression to Mr Beltran that (in light of her concerns) the boys should live with her. When the parties lived together after May 2018; Ms Preston also gives evidence of how difficult living with Mr Beltran was.[13] Nowhere is there evidence that post-May 2018 the parties shared a mutual commitment to a shared life nor of there being any public displays akin to what the High Court described as demonstrative of parties having an enduring emotional bond[14] when it was clearly open for her to include such evidence.
[13] W[18]
[14] Fairbairn & Radecki [2022] HCA 18 at [30]
Between May 2020 and December 2021, Ms Preston lived away from the local area where Mr Beltran and the boys primarily lived.[15] Through this prism -
(a)Ms Preston says that she accepted a job in Suburb C Sydney in late 2020 because (at least in part if not in totality) Mr Beltran had expressed a desire to relocate to Sydney[16];
(b)Ms Preston says that in March/April 2021 and July/August2021 she lived at the family home and took over caring responsibilities such as getting the boys to and from school and to their extra-curricular activities (which leads me to conclude that Mr Beltran did not re-locate to Sydney);[17]
(c)Mr Beltran says that in March 2021 we decided to stop seeing other for good[18]; and
(d)Ms Preston says that the parties finally separated on 8 April 2021 (which suggest that even after that event, the parties were able to agree that she could return to the family home in July/August 2021).[19]
[15] W[15]-[16]
[16] W[15]
[17] W[16]-[17]
[18] H[42]
[19] W[20]
For about two (2) months between August 2021 and October 2021, Ms Preston says the boys lived with her in Sydney[20] and at all other times the boys spent regular weekend and extended weekend time with her[21].
[20] W[19(a)]
[21] W[19(b)]
Broadly speaking, the evidence about the care and support of the boys and the general living circumstances of the parties, suggests that the parties were caring for the boys independently of each other in separate households and, at times were in significant dispute about what that looked like and what the consequences of those concerns should be and at other times they could agree to arrangements which saw the boys experience their parents living under the same roof as them or alternatively the boys travelling and living between two households geographically distant from each other.
When the parties did live under the same roof post-May 2018 (which on the evidence was not often), I am not satisfied that this was a circumstance indicative of a finding of fact that the relationship endured because - for example, the two instances in 2021 occurred either side of when even Ms Preston says that they had separated. In my view it is open for either party to submit that taken as a whole with the other indicia that are helpful to their argument, the periods of “living under the same roof” could support the factual finding either of them wished me to make.
Z was born in 2021 and there was no question as to the paternity of the child - so that the irresistible inference is that about nine (9) months earlier, the parties engaged in sexual intercourse.
CONCLUSION
From the lack of contradictory evidence I am satisfied that the parties were in a de facto relationship and that their relationship endured as a genuine de facto relationship pursuant to the Act until it broke down.
Having considered all the matters set out above, I am satisfied that the parties separated in May 2018 (as asserted by Mr Beltran). In doing so, I have carefully reviewed all the elements of the parties’ relationship put before me (some consistent and some contradictory) as being part of the composite picture[22] and have been influenced by the following conduct:
(a)Ms Preston moving out of the family home;
(b)the parties notifying Centrelink of their separation and the consequential arrangement for Mr Beltran to have full-time care of the boys;
(c)the boys spending time (or living with) Ms Preston in a separate residence after May 2018;
(d)Ms Preston re-locating to Sydney for work purposes on her own (despite an alleged expression by Mr Beltran that he would too);
(e)Ms Preston becoming so concerned about the care and support provided by Mr Beltran to the boys, that she suggested the boys come into her full-time care, being (essentially) a reversal of the boys’ lived experience up until that time and certainly not being suggestive of them having a mutual commitment to a shared life;
(f)Ms Preston giving no evidence of anything particularly positive (or otherwise) to support the parties’ having an enduring emotional bond[23] post-May 2018;
[22] See Lynam v Director-General of Social Security (1983) 53 ALR 128 at [131]
[23] See Fairbairn & Radecki [2022] HCA 18 at [30]
I also observe that the end of a de facto relationship does not necessarily mean the end of all forms of involvement between the parties (see Fairbairn & Radecki [2022] HCA 18) and as such, the periods when the parties were in contact with each other (including the conception of Z) or otherwise living under the same roof does not mean they were a couple living together on a genuine domestic basis.
The matters contained in s 4AA(2) are indicators only and are not to be weighed against each other and given individual weightings or rankings in importance. It is the composite picture which is central. Importantly my task is consider all the circumstances of the case before me and determine whether the parties had a relationship as a couple living together on a genuine domestic basis, at a time which attracts the court’s jurisdiction.
As identified by Judge Brown in Kendall & Vilmos [2022] FedCFamC2F 1484 at [317] –
Essentially every case is unique and what defines the particular relationship in question requiring of idiosyncratic consideration. In this regard, I bear in mind the strictures laid down by Mushin J in Moby & Schulter and remember that the circumstances of modern life have an infinite capacity to throw up diverse relationships, outside the norms and mores of the social mainstream, which are nonetheless to be accounted de facto relationships, given the definition contained in section 4AA(1).
For the above reasons, I am satisfied that from 16 May 2018, the parties did not have a relationship as a couple living together on a genuine domestic basis as envisaged by s 4AA(1). Although they continued to interact with each (including the conception of Z), their lives did not either retain an enduring emotional bond or resume such a characterisation. Instead they kept important parts of their lives separate from each other and/or were at times in dispute about the decisions the other made, most notably about the care of the boys, their employment choices and where they lived.
SHOULD THE COURT EXERCISE DISCRETION TO GRANT AN EXTENSION OF TIME?
Section 44(6) enables me to exercise discretion and grant an extension of time to file proceedings outside the standard application period. Insofar as the dispute before me is concerned, given the findings made above, Ms Preston asks me to exercise that discretion in her favour so as to permit her to press her relief for Mr Beltran to pay her spouse maintenance.
In order to exercise that discretion I have to be satisfied either that hardship would be caused to Ms Preston or a child if leave were not granted or Ms Preston’s circumstances at the end of the standard application period were such that Ms Preston would have been unable to support herself without an income tested pension, allowance or benefit: s 44(6)(a) & (b).
I have found that the de facto relationship broke down on 16 May 2018. The standard application period ended two years later. Ms Preston commenced the spouse maintenance proceedings when she filed her response to final orders on 2 August 2022 (over two years out of time).
In submissions, I heard that the primary argument for leave to be granted was premised on Ms Preston establishing hardship caused to Ms Preston if deprived of the chance to bring her claim, and that such alleged hardship depended upon the prima facie strength of her claim. I note also that the decision to extend time still requires an exercise of discretion in Ms Preston’s favour even if hardship is first established: see for example Hall & Hall [1979] FamCA 50 at [28] – [30].
However given the decision of Austin J (sitting as the Full Court) in Skelton & Lindop at [21] and the approval of his reasoning by a differently constituted Full Court in Hardwick & Hardwick (No. 2) [2022] FedCFamC1A 216 (Hardwick) at [28], the appropriate test to prove hardship is whether the relief had sufficient likelihood of success.
Interlocutory applications of this nature are generally dealt with on the basis of taking the applicant’s evidence at its highest unless such evidence is inherently unbelievable or contradictory (see Hardwick at [31]).
In this case, in support of the making of a spouse maintenance order against Mr Beltran the evidence included that:
(a)Z has significant ongoing day-to-day and medical needs arising from her diagnosis of a genetic disorder causing Z to have various deficits and serious medical issues;
(b)Ms Preston being unemployed which firstly permits her to be primarily responsible for Z’s significant needs on a full-time basis including attending medical and therapeutic appointments, the daily administration of medication, the preparation and feeding to Z of a very specific diet and the maintenance and re-insertion (as necessary) of Z’s feeding tube, but secondly means she has no independent source of employment income to assist in supporting herself (and Z).
The evidence satisfies me that if spouse maintenance was granted it would alleviate the hardship to at least Ms Preston attended by having no employment income to support herself and Z’s costs of living, particularly given Z’s special needs for care (see Sharp & Sharp [2011] FamCAFC 150; (2011) 50 FLR 567 at [18]).
Taking both parties’ evidence at their highest, I am satisfied that Ms Preston’s claim has a sufficient likelihood of success (see Skelton & Lindop at [21]).
Turning then to whether I should exercise my discretion, I acknowledge and have given weight to the expressed legislative intent that ordinarily, spouse maintenance proceedings should be commenced within two (2) years from the date of the breakdown of the de facto relationship and the general policy enlivened by s 81 (see for example Whitford & Whitford (1970) FLC90-62; [1979] FamCA 3 at pp78,145-78,146).
As such I need to consider matters including but not limited to –
(a)the length of the delay and the reasons for it;
(b)and the prejudice occasioned to Mr Beltran by reason of the delay;
(c)the strength on the merits of Ms Preston’s case;
(d)the degree of the hardship which would be suffered unless leave were granted.
On Ms Preston’s case, there was no delay in bringing her spouse maintenance application because she considered the breakdown of the relationship to have occurred in April 2021 such that her subsequent application was within time. Having only just determined the breakdown to have occurred years earlier, I cannot be critical as to the lack of evidence from Ms Preston about “delay”.
There was no evidence from Mr Beltran about the prejudice accorded him because of “the delay” so I can’t take that any further save to say I am alive to the legislative intent for the prompt resolution of parties’ financial relationships which informs both ss 44 and 81.
I have already made findings about the merit of Ms Preston’s case and the hardship suffered by Ms Preston and/or Z if leave were not granted.
Taking into account all of the above matters, I am satisfied that I should exercise my discretion in favour of permitting Ms Preston to bring her application out of time.
In the event that there are costs issues that arise out of this hearing that the parties wish to agitate sooner rather than later, I have made a notation to accommodate that circumstance.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 5 May 2023
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