Benedict & Peake
[2014] FCCA 642
•11 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENEDICT & PEAKE | [2014] FCCA 642 |
| Catchwords: FAMILY LAW – De Facto Relationship – where the applicant seeks a declaration under s.90RD that the parties were in a de facto relationship – the Elias principle – findings of credit – prior inconsistent statements and representations – relevance of common residence to establishing relationship – relevance of birth of child to establishing relationship. |
| Legislation: Family Law Act 1975, ss.4AA, 90RD, 90SM, 90SK, 90SB Evidence Act 1995, s.140 |
| Norton & Locke [2013] FamCAFC 202 Benedict & Peake [2013] FCCA 332 Jordan & Jordan (1997) FLC 92-736 Elias & Elias (1977) FLC 90-267 Lee Steere (1985) FLC 91-626 Docherty (Full Court, Murray, Nygh and Barry JJ, Appeal No 98 of 1989, Sydney, 26 October 1989, unreported) Dawes (1990) FLC 92-108 Ferraro (1993) FLC 92-335 Peters & Peters [2003] FamCA 153 IABH & HRBH [2006] FamCA 379 Lester & Lester [2007] FamCA 186 Crandall & Crandall [2009] FamCAFC 120 Tapper & Tapper [2003] FamCA 184 Sparr & Sparr [2007] FamCA 1229 Nelson v Nelson [1995] HCA 25 JPDJ and DADJ [2005] FMCAfam 86 Stierznow-Almer & Almer [2009] FamCA 577 Papas & Papas [2001] FamCA 1155 Martin & Prosser [2001] FamCA 1218 Holman v Johnson (1775) 98 ER 1120 Muckleston v Brown (1801) 31 ER 934 Wolff & Holden [2012] FMCAfam 924 |
| Applicant: | MS BENEDICT |
| Respondent: | MR PEAKE |
| File Number: | PAC 736 of 2011 |
| Judgment of: | Judge Harman |
| Hearing dates: | 2 May 2013, 16, 17 December 2013 and 10 February 2014 |
| Date of Last Submission: | 10 February 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 11 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Autore & Associates Solicitors & Barristers |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
Pursuant to section 90RD I declare that the parties were not in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 at or at any date subsequent to 1 March 2009 and that thus and further I am satisfied that the Court is absent jurisdiction to entertain any application under Part VIIIAB of the Family Law Act 1975.
Dismiss all outstanding Applications and Responses and remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Benedict & Peake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 736 of 2011
| MS BENEDICT |
Applicant
And
| MR PEAKE |
Respondent
REASONS FOR JUDGMENT
The ironic conundrum of judicial determination of proceedings such as these (a factual determination of whether the parties have lived together in a de facto relationship as defined in section 4AA of the Family Law Act 1975 (Cth)) is that an independent third person (a judicial officer) is called upon to make an authoritative determination of events and decide what actually occurred when he or she was not present during the occurrence of those events.
Like historians and archaeologists, the judicial officer is reliant upon evidence, testimony and artefacts and must then construct for himself/herself the most plausible version of reality (determined on the balance of probabilities and by reference to section 140 of the Evidence Act 1995) that most readily explains those circumstances. The determination of the “reality” is, however, always dependent upon the application of objective criteria to facts as found and as best as they can be determined.
Just as the historian or archaeologist must determine which testimony and records are most likely accurate and reliable, one must be conscious of the factors such as perception, the impact of the passage of time on memory, selective memory and the like, so too the judicial officer must use the tools of evidence and law to assemble a body of information, determined on the balance of probabilities, of what most likely occurred and determine and find it to be so.
Evidentially a number of issues are raised in these proceedings which are of profound importance and impacts upon that exercise or, as it were, the “archaeological dig” into the past history of these parties. I will turn to those evidential issues shortly.
The proceedings
These are proceedings commenced or purported to be commenced under Part VIIIAB of the Family Law Act.
It is a necessary precondition of the exercise of discretion under Part VIIIAB to first determine jurisdiction. Jurisdiction is determined through a declaration as to the existence of a de facto relationship under section 90RD. Until such declaration is made (whether by consent or by determination made by the Court) the Court is absent jurisdiction[1].
[1] See paragraph 18 of Norton & Locke [2013] FamCAFC 202 ”There is no “de facto financial cause” until a de facto relationship is established.”
To further compound the above difficulties the jurisdiction created by Part VIIIAB came into being only as and from 1 March 2009 (see Family Law Amendment (De Facto Financial Matters and other Measures)Act 2008 (Cth)) and thus absent a finding as to the existence of a relationship at or following that date the Court is, again, absent jurisdiction.
These proceedings are commenced by the Applicant Ms Benedict who alleges the existence of a relationship sufficient to found jurisdiction. Ms Benedict asserts that a relationship occurred and should thus be found as between herself and the Respondent, Mr Peake, having commenced in or about 1992 and having concluded 18 February 2010. The Initiation Application filed on 21 February 2011 seeks a declaration to that effect.
The Respondent, Mr Peake, opposes the granting of relief and seeks relief in the alternative as follows:
1. That pursuant to section 90RD…. a declaration be made that a de facto relationship has never existed between the parties;
or in the alternative
2. That pursuant to section 90RD of the Family Law Act 1975 (Cth) a declaration be made that the de facto relationship between the parties ceased in 2006.
The matter has proceeded on the basis of a jurisdictional hearing only. That hearing has occurred over 4 days reflective of the breadth of factual and evidential issues put in dispute by the parties or either of them.
The Elias Principle
A significant evidential issue has arisen regarding the “Elias principle”.
On the first day of trial and prior to cross-examination occurring, objections being taken or Affidavit material read (or at least to any significant extent) submissions were raised by the Respondent regarding the purported exclusion of all evidence sought to be led by the Applicant, Ms Benedict as to the existence of a relationship, such submissions being in reliance upon the said principle.
The entirety of the first day of trial was consumed with such submissions and the proceedings then adjourned to enable a judgment to be delivered regarding those issues. That judgment[2] was delivered on 23 May 2013 and should be read in conjunction with these reasons and to that end I incorporate the relevant portion of those reasons as follows:
[2] Published as Benedict & Peake [2013] FCCA 332.
The Elias Principle
12. The issue listed for trial before the Court on 2 and 3 May 2013 relates solely to an Application for a declaration about the existence (or non-existence) of a de facto relationship sufficient to enliven the Court’s jurisdiction and provide foundation for the Applicant’s claim (section 90RD).
13. As a consequence of disclosure undertaken between the parties a significant volume of documents have been disclosed and produced by the Applicant to the Respondent in the nature of income tax returns, assessment notices, and applications to, and correspondence from, Centrelink. Those documents are tendered (by the Respondent) in their entirety and are marked Exhibits “R1” and “R2”.
14. The Centrelink documents, the subject of the above tender, represent periods commencing as early as July 1995 and concluding as late as February 2012.
15. The material produced with respect to the Australian Taxation Office comprises material from the 1995 tax year through to the 2010 tax year (being the years ending 30 June in each year respectively).
16. In each of the tendered and exhibited documents the Applicant has asserted or held out (or perhaps more correctly declared) that she is single and specifically:
a) In the case of the Centrelink documents Ms Benedict asserts that she is single and not in a relationship; and
b) As regards income tax returns Ms Benedict has not sought to claim any benefit on the basis of being in a relationship and states that she is “single”.
17. The written submission of the Respondent asserts, in essence, that as a consequence of and in reliance upon the “Elias principle” that all evidence of the Applicant which seeks to assert a proposition contrary to that asserted and held out by her to Centrelink and the Australian Taxation Office, ought be rejected and found inadmissible.
18. Significant reliance is placed by the Respondent upon the original decision of Goldstein J (as he then was) in Elias and Elias (1997) FLC 90-267, together with cases preceding and proceeding same including:
a) Tinker v Tinker (1970) 2 WLR 331;
b) Gascoigne v Gascoigne (1918) 1 KB 223;
c) Jordan & Jordan (1997) FLC 92-736;
d) Crandall & Crandall [2009] FamCAFC 120;
e) H v H [2002] FMCAfam 381;
f) Gissing & Sheffield [2012] FMCAfam 1111;
g) Dandridge & Barron [2012] FMCA fam 141;
h) Christofis & Zorbas [2011] FMCAfam 571;
i) Cestaro (23 December 1994, unreported, cited in Jordan);
j) Dawes (1990) FLC 92-108.
19. Each of the submissions put by the Respondent asserts that the “Elias principle”, as a rule of law, would have the effect of excluding evidence by the Applicant that is contrary to her prior assertions to Centrelink and the Australian Taxation Office.
20. The Respondent concedes, throughout his submissions, that the principle is not mandatory, is subject to exceptions, and that the Court can exercise individual discretion, having regard to particular circumstances of any case.
21. Principally it is submitted that the “Elias principle” is “a rule about admissibility, not credibility, and as explained in Dawes and other cases has a firm basis in public policy”.
22. It is further submitted that:
…its application in the context of s.4AA ought to be that it operates as a rule that such evidence will be deemed inadmissible unless there are compelling reasons of justice and equity to decide otherwise. This reflects its strong expression in Dawes and its explanation in Cestaro as a rule of public policy.
23. It is sought to assert that the principle or rule would have stronger expression with regards to declaration proceedings pursuant to section 90RD (based upon the definition of such relationships in section 4AA), on the following basis:
… the context in s.4AA is different from s.79 where a broad range of factors need to be considered in the exercise of discretion to alter property interests. In the context of a s.4AA determination, the Court is being called upon to decide whether a de facto relationship exists, and this is a decision about a fact (based upon examination of a range of circumstances). A person who repeatedly makes a declaration of fact to the relevant authorities for financial gain ought not to be able to assert to a court that it should find the facts to be different than he or she has repeatedly claimed them to be. A formulation of the rule in those clear terms is consistent with broader principles of the general law that people should not profit from their own wrongs, or should come to equity with clean hands.
24. In conclusion it is submitted that the facts and circumstance of this case fall squarely within the “Elias principle” and that this should, thus, result in the Applicant’s evidence, as contained in her Affidavit material (and which is contrary to prior assertions and declarations made to the Authorities (Centrelink and the Australian Taxation Office)), being excluded and with the additional prayer that the Applicant:
…should not be permitted to adduce evidence which contradicts her repeated statements, for financial advantage, to the authorities in these circumstances.
25. Significant reference is made in the Respondent’s case (and in each of the cases subsequent thereto) to the decision of his Honour Justice Chisholm in Jordan & Jordan. This is explicable noting the comprehensive and erudite examination by his Honour of the development of the principle to that time. Indeed it is observed that the Full Court had adopted his Honour’s discussion of the principle with some approval in Crandell referring to his Honour’s “scholarly dissertation”. I do not cavil with that description of his Honour’s discussion.
26. The Respondent asserts (and it is accepted by me) that the “Elias principle”, with respect to the admissibility of evidence, represents a rule of law rather than a rule or presumption relating to evidence or credit. However, as it is a rule of law, it is subject to exception, application to specific facts and circumstances and, over all, equity and the overall interests of justice.
27. Considering the basis for the rule his Honour Justice Chisholm explored the possible bases for the principle arising from the Family Law Act 1975. It is of some assistance to consider each of the three factors identified by his Honour as potentially forming the basis for same:
There seem three possible ways in which the Elias principle could be derived from the Family Law Act. The first is the reference in s. 79(2) to making orders that are "just and equitable". The second is the well established principle that parties must make full and complete disclosure of their financial affairs. The third is s 75(2)(o), providing that the court should have regard to any other matters that the justice of the case requires.
Whichever of these provisions, or combination of them, is seen as providing the basis for the rule, it seems to me that the rule involves an element of discretion. There seems no legislative justification for an absolute exclusionary rule. Similarly, if the rule is sought to be derived from the principle that people should not profit from their own wrongs, or should come to equity with clean hands, then it would appear that rather than there being a rigid rule the court would have some obligation to consider the question whether applying the rule in the circumstances of the case would be just and equitable. Admittedly, in cases falling squarely within the Elias principle, as stated in particular in Dawes, the authorities appear to lay down a firm rule [being a sentence quoted in the Respondent’s submission]. However in cases such as the present, which falls outside those authoritative formulations, in my view it would be wrong to conclude that there is an inflexible rule as contended for by the husband.
There is authority for the view that there is some flexibility in the matter…
28. His Honour then provided a summary of his conclusions. Germanely, his Honour concluded, in considering whether to apply the “Elias principle” in the case before him:
The facts of the present case are very different from those in Elias and similar cases. To apply the Elias principle to the present case would involve the creation of the principle formulated above [being one expressly rejected by his Honour, namely there is a rule of family law that when people make representations of fact to third parties and gain advantage from doing so, that they cannot in subsequent proceedings under s.79 of the Family Law Act, lead evidence which contradicts those representations], and such a principle would involve a radical development of the law. The question whether this extension should be made is difficult. On one hand, the statements of principle in Elias and other authorities do not provide any obvious basis on which to distinguish the present case. On the other hand, the extension of the principle in the way suggested by the husband would take the principle even further from any recognisable principle of estoppel; would have no firm foundation in the Family Law Act; and would be capable of producing injustice. Further, there is authority, in Dr Jools[3], for a more flexible approach.
[3] Jools and McConnell (unreported, S7891 of 1985, Ellis J, 14 December 1990).
29. His Honour ultimately concluded (by reference to the facts before him) that:
Having regard to these matters, in my view the highest that the husband's case can be put is that it is open to me to reject the evidence as to the higher value of the property, having regard to the implicit representation of the lower value in the transfer between the wife and the father. Thus I accept the written submission advanced by Mr Stewart, junior counsel for the wife, that the Elias principle ‘is a principle which a trial judge may use in circumstances where A and B are married, where B has made representations to C which B now seeks relief from in circumstances where B does not have clean hands’.
30. In declining to apply the principle or rule of law his Honour specified that such action was taken on bases that:
a) There was no reliance by the Husband on the representation;
b) There was, at best, a single representation;
c) The penalty to the wife in preventing her from leading the evidence might well be disproportionate to the advantage she gained from the prior inconsistent representations;
d) The evidence did not satisfy his Honour that the wife was sufficiently aware of facts such as to satisfy his Honour that she had made a knowingly false declaration; and
e) If some breach of revenue law had occurred, appropriate action could have been taken by the authorities to seek to recover the funds.
31. The issue dealt with by his Honour was one of fact, that is, the value of a particular property at a point in time. The question I am called upon to ultimately adduce, (on the basis of such evidence as is before the Court), is one of fact – albeit a more complex issue than the value of a single property at a single point in time.
32. In the circumstances of this case I am similarly satisfied that the “Elias principle”, thus described in the Respondent’s submission, does not exclude the Applicant’s evidence or preclude the Applicant from leading evidence contrary to statements made by her in documents submitted to Centrelink and the Australian Taxation Office.
33. In expressing this view I have considered and am satisfied that:
a) I must take the Applicant’s case (untested as it is) at its highest (by reference to and analogous to the approach to be adopted in Rice v Asplund (1979) FCL 90-725 and authorities reaffirming that principle since the 2006 amendments);
b) The Applicant’s case, taken at its highest, is that she has, with the full knowledge of the Respondent, made statements to Centrelink and the Australian Taxation Office (and more germanely Centrelink) which are false;
c) Taken at its highest, the Applicant’s evidence would potentially, subject to the exclusion of evidence as argued, establish the existence of a de facto relationship of some 17 years duration;
d) To the extent that it might be asserted that the Applicant has previously made a “representation of fact to third parties” from which she has gained advantage, it would appear, (again taking the Applicant’s case at its highest), that she is not the only one who has so gained advantage. The Applicant’s case (taken at its highest) is that the Respondent has been aware of representations made to those agencies and aware that they are false and such that the parties were, for some or all of the periods for which the representation was false, in a relationship together, and thus both parties have gained inappropriate financial advantage from the representation and not only one;
e) I am not satisfied that there is any distinction to be drawn as to the weight to be attached to the principle or to the force with which it might be asserted on the basis that these proceedings relate to a declaration pursuant to section 90RD and proceedings under Part VIIIAB, rather than proceedings under Part VIII. In this regard:
i) “A broad range of factors” needs to be considered in the exercise of discretion in both PartVIII and Part VIIIAB proceedings;
ii) Findings of fact are inherent in the exercise of discretion in both applications under each Part of the Act;
iii) The finding of fact/facts that is called for by an application for a declaration pursuant to section 90RD is no broader nor more limited than the findings of fact that would be required in determining Part VIII proceedings (with the solitary distinction that Part VIII jurisdiction is founded in marriage and, thus, the proof of that fact can be corroborated through external, independent documentation in the form of a marriage certificate);
iv) Ultimately a fact is a fact and a finding of fact is a finding of fact. I am not satisfied that a Briginshaw[4] like approach can or should be taken so as to differentiate between findings of fact or applications of rules (whether of law or evidence) in different contexts or for different purposes. Certainly there is nothing in the authorities to which I have been referred to support such a differentiation and it is not my role and nor am I prepared to affect such an extension;
[4] Briginshaw v Briginshaw (1938) 60 CLR 336. See now s.140 of the Evidence Act 1995 (Cth).
f) I am not satisfied (as indeed his Honour Justice Chisholm was not) that the principle can be formulated as asserted or as highly as is asserted in the Respondent’s case;
g) Whilst accepting that the “Elias principle” may well represent a rule of law to be applied within and specific to the operation of proceedings under the Family Law Act 1975, it must, as with all rules of law, be applied with discretion to the facts and circumstance of each individual case;
h) The Court must be particularly conscious to ensure that both the determination and the process of arriving at the determination is, and is perceived as, “just and equitable”. To apply the rule arbitrarily would be to equate law to justice and to treat them as equal and synonymous or one and the same. They are not. The law is a means by which justice is attained or sought to be attained not justice itself.
34. Whilst there is much force (both in the Respondent’s case and through prior authorities) in reliance upon the equitable principle that “those whom come to equity must come with clean hands” in support of the rule, one must also be conscious of the general principle that “justice must not only be done but must be seen to be done”.
35. It is conceded in all the authorities, and particularly emphasised in the decision of Justice Chisholm in Jordan, that the principle or rule of law is not founded in and does not equate to the expression of a form of estoppel. If the principle or rule were to be applied arbitrarily and so as to exclude evidence in each case in which a false representation (or series of false representations) were found, then the rule would, in the absence of discretionary application by reference to the facts and circumstance of each case and the justice and equity of each case, be elevated to or, as his Honour observed in Jordan, beyond, estoppel.
36. By reference to the Applicant’s assertion that her statements to relevant government agencies were made with the knowledge if not encouragement and support or assistance of the Respondent (perhaps stopping short of a circumstance that could fairly be described as a common purpose) I am not satisfied that I should express or apply the rule as I am urged to in the Respondent’s submissions, namely:
A person who repeatedly makes a declaration of fact to the relevant authorities for financial gain ought not to be able to assert to a court that it should find the facts to be different than he or she has repeatedly claimed them to be. A formulation of the rule in those clear terms is consistent with broader principles of the general law that people should not profit from their own wrongs, or should come to equity with clean hands.
37. Without intending to accept or suggest acceptance of collusion or “common purpose”, what is asserted by the Applicant in her evidence is that she and the Respondent gained financial advantage and knowingly so from the previous assertions by the Applicant.
38. In circumstances whereby the Applicant suggests knowledge of the statements at the time they are being made and were by the parties jointly (again taking the Applicants evidence at its highest for present purposes) the exclusion of that evidence would have far greater potential for injustice, inequity and offence of public policy than its admission.
39. To allow the admission of the evidence does not then preclude the testing of the Applicant’s evidence and her credibility, and if her assertions (especially as to knowledge of her actions, assistance in them and ultimately financial gain for the parties (plural) jointly and severally) are found wanting, rejection of that evidence and adverse determination of the judiciable controversy including with appropriate orders for costs.
40. In that regard I make clear that I do not accept and have not considered the Applicant’s evidence other than at its highest, in its untested form, and conscious of the Respondent’s denial of same. I have not accepted the Applicant’s evidence for the purpose of arriving at findings but merely to establish the issues at large and to determine whether that material will come before the Court. The Respondent shall have a full and proper opportunity to challenge and test that evidence.
41. If in circumstances such as these, wherein knowledge of the prior false statement (if not, at least as alleged in one instance, active assistance and, in another instance, encouragement) is alleged together with joint financial benefit derived there from, I accept that the potential for grave injustice, indeed, potentially, “the strong crushing the weak” (as submitted by Counsel for the Applicant) arises and outweighs the considerations referred to in the authorities relied upon by the Respondent.
42. The Applicant asserts that both parties have gained financial benefit from a statement made by the Applicant but with the knowledge of and at least acquiescence by the Respondent. The Applicant has disclosed the statements and has produced the documents in which such statements or declarations are made.
43. Those circumstances, and especially the frank disclosures of the Applicant and the assertions and allegations by her that each party has had knowledge of the statements and has each benefited from the statements (at least to the extent of income thus derived) both:
a) Place the matter within exceptions to the rule as discussed above; and
b) Distinguish the facts of this case from the earlier authorities[5].
[5] Those cases dealing with assertions as to legal ownership, intent of transactions, value and the like. In none of the authorities to which I have been referred is mutual knowledge and/or mutual benefit suggested.
44. Whilst it does not arise in this case, the natural extension of that alleged by the Applicant in this case might be a suggestion of threat or coercion by one party to the other to cause or compel them to claim or to continue to claim benefits for which there is no lawful entitlement and, in such circumstances, I cannot accept that their Honours as quoted in the authorities relied upon by the Respondent would have intended the exclusion of such evidence nor countenance the exclusion of evidence or prejudice to the maker of such statements.
45. The Applicant has also referred me to a number of authorities and specifically to a decision of deputy Chief Justice Faulks in Brady & Harris [2012] FamCA 420.
46. In that case his Honour was called upon to deal with an issue relating to the admission of evidence in circumstances whereby false declarations to Centrelink (potentially contrary to evidence in the proceedings) were identified. At paragraphs 76 to 83 inclusive his Honour discussed that issue. However, his Honour would not appear to have been directed to, nor given any consideration to, Elias or the body of case law following and applying same.
47. His Honour would appear to have accepted and admitted the evidence and to have expressed (at paragraph 83) “I am not prepared to make a general finding of credit against the applicant based on his false declarations to Centrelink”.
48. It is clear from that passage (if not the totality of the portion of the Judgement dealing with the issue) that his Honour did not give any specific consideration to the existence nor formulation of the principle or rule. Thus, the Authority has been of little assistance to me, other than as an instance whereby a learned and senior jurist within the jurisdiction has, whether specifically directed to the issue by Counsel or otherwise, not applied the principle.
49. The Applicant has also referred me to a decision of the Supreme Court of NSW and Court of Appeal thereafter, together with a rejection to the application for special leave to appear to the High Court in the Trustee of the property of Sandor (Bankrupt) v Ramirez S147/1999 [2000] HCA TRANS 114 (17 March 2000). In that case and in a somewhat oblique reference to a discussion of the “Elias principle” his Honour Justice Kirby opined:
…Essentially it seems to be a bit of an obstacle to the court's duty to get at the truth if, in fact, there has been a false statement. Why should there be some estoppel or any principle that prevents the particular court with a duty to hear, then determine the case, getting at the truth of the case?
50. Whilst the above portion of his Honour’s dicta is relied upon by the Applicant, the discourse between his Honour Justice Kirby and Counsel for the Trustee (Mr Broun) continues in the following term:
Mr Broun: Your Honour, I suppose it comes back to the question of why does a court go in to assist or to even entertain an application for somebody's benefit when that witness was perfectly prepared to lie and to cause other people to lie, even to statutorily declare lies in the past for their advantage.
Kirby J: But there may be reasons of experience in the Family Court that have led to the formulation of this rule. We are not asked to pass on that now but in so far as you are seeking to import it as a general principle of evidentiary estoppel applicable to bankruptcy, I must say I am doubtful of it.
51. Mr Broun had previously submitted to his Honour (and CJ Gleeson), by reference to the “Elias principle” as follows:
… this is a case where there is an opportunity to look at, in a general context, a principle which is developed in the other jurisdiction which constantly has this problem of things being told to a taxation authority, a revenue authority, a bank, a lender on the one hand, and then in court years later an entirely different story is told.
It occurs basically in two areas, in insolvency law and practice and in family law, and the Family Court has developed a series of principles about it derived from a case called Elias where they have effectively said, with certainly a vast number of qualifications, that if somebody swears one thing one time or represents a fact to a taxation authority, stamp duties or a bank on one hand, then there has to be a pretty sound reason for letting him say something else to another court.
Now, this is a sort of evidentiary estoppel question but it is something that has occurred so often and has been the subject of such comment in so many judges in cases that it seems to have developed into a sort of principle. Now, your Honours, if that one that occurs so often in family law is transferred into bankruptcy law - - -
GLEESON CJ: What exactly is the principle?
MR BROUN: I have tried to set it out in our summary of argument that if a witness has advanced, for his own advantage, to a revenue authority or other authority, typically banks and taxation office are the usual two, then he cannot be heard later to say that was all false and the facts are otherwise.
52. Taking the discourse between their Honours, Gleeson CJ and Kirby J, and Mr Broun at its highest:
a) Their Honours did not appear to have a clear or precise delineation of the principle or rule of law before them;
b) To the extent that a discussion of the principle occurred, it was prefaced upon an erroneous reference to its basis being found in equitable estoppel (which clearly is not consistent with the authorities submitted by the Applicant and which I accept);
c) The highest any discussion of the principle of the High Court reaches is Kirby J’s “Wonder” as to whether such a position could be maintained.
53.It is also germane to note that his Honour Justice Kirby makes clear that he is not called upon to, and thus does not comment upon, the application of the principle in Family Law. Further, and perhaps more germanely, his Honour (or their Honours) were not called upon to comment upon the issue in the specific context of the case (being bankruptcy).
54.Having regard to the above I do not accept that the High Court could be, by the passage quoted or the transcript of the Judgement, taken in its totality, to expressly disavow the “Elias principle” as either a relevant principle or rule of law.
55.I do, however, adopt his Honour Justice Kirby’s statement that:
Why should there be some estoppel or any principle that prevents the particular court with a duty to hear, then determine the case, getting at the truth of the case?
56.In submissions in reply the Respondent has taken me to a number of authorities discussing common law and equitable estoppels, election and waiver and the Scottish principals of approbation and reprobation. I am satisfied that the application of those authorities is outside of the “Elias principle” to which I am directed by the Respondent’s Counsel, of little if any application to the circumstances before me and does not dissuade me from the view expressed above.
57.To the extent that the fundamental principles suggested to arise from the authorities quoted by the Respondent’s Counsel is encapsulated in the passage “[s]ince the days of the Year Books it has been recognised that you cannot have the egg and the halfpenny too”[6] I note that:
[6] Jordan CK in O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 257 and as quoted by Gummow, Hayne and Keifel JJ in Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [58].
a) The statements and declarations made by the Applicant, if made with the knowledge, encouragement, assistance and/or acquiescence of the Respondent makes the Respondent at least complicit if not partly culpable for the statement[7];
[7] Again taking the Applicant’s case at its highest, the Respondent has had the opportunity to report any suggested false statement to Centrelink including, specifically, when he was contacted by that Agency. Further, the Applicant suggests that the Respondent has been aware of the claims made by the Applicant and statements made to Centrelink by the Applicant and has encouraged and assisted her to do so (for example, by producing a false “rent receipt”) and, importantly, is suggested to have received the direct benefit of the funds received whether as joint household income or otherwise.
b) The existence of sole parents benefits and the circumstances surrounding their receipt, including financial benefit to the person lodging a false claim and, if found to be so, their partner, were not and could not have been contemplated by such decisions. Indeed, the very nature of such “welfare fraud” (if the Applicant’s case is taken at its highest for present purposes) obviates against the maker of the statement being the sole deriver of benefit.
58.The Applicant’s evidence, taken at its highest, asserts that the Respondent had knowledge or some knowledge at different times of the Applicant’s claims to receive and her actual receipt of Centrelink benefits. Counsel for the Applicant has taken the Court to specific portions of the Applicant’s Affidavit (being that filed 26 February 2013) which directly suggests or infers such knowledge[8]. Whilst those portions of the evidence are far from determinative of the issue (both as to the Respondent’s knowledge and complicity in statements made by the Applicant to Centrelink whether before or after the event) they are not inconsistent with that asserted by the Applicant as evidencing the existence of the relationship.
59.The most compelling portion of the evidence (supported by Annexure MBBD1 at page 320 of the Applicant’s Affidavit) relates to this suggested direct knowledge, acquiescence and complicity in a false claim of Centrelink benefits by the Applicant whilst the Applicant and Respondent were alleged (by the Applicant) to be living together. The evidence comprises the provision of a rental receipt by the Respondent (or a company controlled by him) to the Applicant with respect to accommodation in which they both resided and were, in fact, each registered proprieties.
60.The Respondent’s evidence does not address that issue nor provide any contrary suggestion as to how the receipt came into existence, nor can one be inferred.
61.Whilst it is suggested that Chisholm J had posited a particular formulation of the “Elias principle” (at 83, 925), I am not satisfied that it was his Honour’s intention to adopt the formulation set out by him at that point.[9] Instead his Honour immediately posed the question “Does this principle represent the law?” and observed the formulation suggested was much wider then the equitable doctrine of estoppel and that a formulation in those terms, with its wide application, “would be a remarkable result, and one not obviously conducive to producing justice and equity”.
62.The parties clearly will be engaged in judiciable controversy, whether under the Family Law Act 1975 or otherwise. In this regard the basis of jurisdiction by reference to section 90RD is not restricted to the existence of a relationship of any particular duration (that is, two years) but also includes grounds (which may be relied upon exclusive of other grounds) such as “there is a child of the de facto relationship” or where “one of the parties to the de facto relationship made substantial contributions”.
63.On the above basis there is a clear distinction between a declaration as to the existence of a de facto relationship for a particular period, such as to warrant jurisdiction on that ground alone, and other circumstances. However, all bases alleged to attract jurisdiction must find their basis within the definition of a de facto relationship within section 4AA. All of those are factual matters which might be impacted by evidence as to intention (by one or both parties, and thus whether a singular or common intent) and other matters as referred to in section 4AA.
64.The codification of rules of evidence contained within the Evidence Act 1995 (Cth) would not appear to provide support for exclusion of the evidence of the Applicant. Whilst the provisions of the Evidence Act are separate and distinct from the rule of law suggested to arise from Elias (and other cases) it is relevant to note that, whilst they provide general grounds to refuse to admit evidence or limit evidence, those provisions would not have application or find favour for the exclusion of the Applicant’s evidence in these circumstances.[10]
65.I am not satisfied that anything by my brothers O’Sullivan, McGuire, and Roberts, in their decisions referred to, is contrary with the findings made by me that (whether accepted as a principle, rule of law or otherwise) the rule is flexible and would permit, by reference to justice and equity, the admission of evidence in appropriate circumstances of which I am satisfied this is one.
66.This is particularly so as, if again taken at its highest, the Applicant’s evidence would suggest (subject to its proper testing in due course) that both the Applicant and Respondent were fully aware that statements made to Centrelink were contrary with asserted reality (at least from the Applicant’s perspective) and that each acted or failed to act, aware of and content to and with the affect of receiving financial advantage (potentially to which they were clearly not entitled if, in due course, the Applicant’s evidence is accepted).
[8] At paragraphs 19(v), 44, 58, 60, 93 and 192 to 198 (inclusive).
[9] “There is a rule of family law that when people make representations of fact to third parties and gain advantage from so doing, they cannot in subsequent proceedings under s 79 of the Family Law Act lead evidence which contradicts those representations”.
[10] See sections 135 and 136 of the Evidence Act.
Summary
67.Overall I am satisfied that the interests of justice (and the perception of justice being done) would obviate against the exclusion of the Applicant’s evidence by reference to the above considerations.
68.I am satisfied that the Respondent can properly and fully test the Applicant’s evidence, both as to its accuracy and veracity, and present his case contrary to the Applicant’s evidence, and allow a determination of fact by the tribunal of fact, that is, the Court.
69.To the extent that a fraud may well be suggested to have been perpetrated upon the Australian Taxation Office and/or Centrelink by the Applicant, again:
a) The Applicant asserts that she has made or is in the process of making recompense through disclosure of “true circumstances” to those agencies;
b) The Applicant has been warned, through her Counsel, of the Court’s ability to, and probability that the Court will, make a referral of the papers upon the conclusion of all evidence in proceedings (and irrespective of the outcome of same) to enable consideration to be given to such action by those agencies as they believe warranted;
c) Taken at its highest, the Applicant asserts knowledge by the Respondent (which is yet to be tested and is thus not accepted other than for the purpose of this consideration) of dealings with the above agencies and asserts, further, some coercion and coopting by the Respondent (albeit a majority of such evidence being inferential rather than direct) which obviates against, as a matter of equity, exclusion of the evidence;
d) To the extent that it is asserted that the rule or principle would apply more vigorously in the context of these proceedings, being a section 90RD declaration (erroneously referred to in the submission as a section 4AA determination), I am not satisfied that there is substance to that position. Findings of fact are inherent in all proceedings whether under Part VIII or Part VIIIAB and whether addressed to the existence of a relationship, findings of contribution, future need or otherwise.
70.If one accepts the Applicant’s evidence, on face value for present circumstances, then both parties have potentially derived financial advantage from any representation asserted now to be false. Thus I am satisfied it would represent a departure or exemption from the application of any general principle, no matter how wide same might be asserted to be, to exclude that evidence.
71.No basis is identified for the exclusion of that evidence by reference to the Evidence Act.
72.Therefore, I make orders as set out at the commencement of this Judgment.
Upon the resumption of the hearing, a further 3 days of Court time have been occupied. Each of those days has been substantial concluding, on the fourth and last day of trial, with the Court sitting until after 5:30pm to ensure completion of the matter.
In closing submissions Counsel for the Respondent has renewed their position that significant portions of the evidence of the Applicant and that relied upon by her in her case should be excluded by reference to and in reliance upon the “Elias principle”.
As would be apparent from the above, the Respondent thus seeks to assert the application of the principle as a rule of law which would have the effect of excluding significant portions of the Applicant’s case and, indeed, any portions of the Applicant’s case suggested to be inconsistent with prior representations made by her to Government agencies such as Centrelink, Medicare and the Australian Tax Office. Those representations are to the effect that Ms Benedict has been, for the entirety of the period from the birth of the child of the parties, X (date of birth (omitted) 1995) until an unspecified date in 2006, a “single parent” and in reliance there upon to have obtained benefit and advantage including financial advantage through payment of Centrelink benefits.
In submissions preceding the prior judgment delivered by me I had been referred by Counsel for the parties to a number of authorities of significance regarding the suggested “Elias principle”. Principle amongst these was the decision of Chisholm J in Jordan & Jordan (1997) FLC 92-736.
In Jordan & Jordan His Honour undertook a most comprehensive and helpful discussion of the principle from its first pronouncement by Goldstein J in Elias & Elias (1977) FLC 90-267 and by reference to a number of decisions following same and until His Honour’s judgment, 29 February 1996.
The discussion by Chisholm J in Jordan & Jordan included reference to the Full Court’s decisions in Lee Steere (1985) FLC 91-626, Docherty (Full Court, Murray, Nygh and Barry JJ, Appeal No 98 of 1989, Sydney, 26 October 1989, unreported), Dawes (1990) FLC 92-108 and Ferraro (1993) FLC 92-335.
Whilst Lee Steere and Ferraro did not specifically seek to endorse or comment upon the existence, scope or application of the Elias principle some reference thereto occurred in the Full Court’s decisions of Docherty and Dawes. It is perhaps instructive to thus incorporate Chisholm J’s discussion of the principle and particularly by reference to those Full Court authorities which I incorporate herein:
The Elias principle - authorities
I will first consider the authorities said to support the Elias principle. The first decision in this series made by the Family Court seems to be the decision of Goldstein J in Elias.[11] In this case the husband and wife were involved in a business called Nyngan Smash Repairs. Goldstein J said:-
[11] Elias & Elias (1977) FLC 90-267.
The real estate owned by the husband and wife is owned by them as joint tenants... the premises, both house and business stand on such jointly owned land and the business of Nyngan Smash Repairs is a business which still is and has been from its inception conducted as a partnership between the husband and the wife....
From the inception of this partnership there have been monies attributed to the wife which she has not received and the assets of the partnership have been half hers...
This business was commenced as a partnership in about 1967. One assumes that the husband in embarking on this new business acted honestly and genuinely intended that the wife have an equal interest with him in the business. Indeed the taxation returns of the parties have been so presented that the income of the business has been split equally between husband and wife.
Goldstein J then discussed the case of Tinker v Tinker.[12] In that case a husband had bought a garage business and found a house nearby for his family. He said that he had intended to buy the house in his own name but was advised by his solicitors that it should be put in his wife’s name to avoid the possibility that if the business the failed the house could be taken by his creditors. The house was put in the wife’s name. When the marriage broke down the husband applied for a declaration that the wife held the house in trust for him. The Court of Appeal held in favour of the wife. Lord Denning MR gave a judgment including the following passage:-
[12] Tinker v Tinker [1970] 2 WLR 331
So it is plain that the husband had the house put in his wife’s name so as to avoid any risk of it being taken by his creditors in case his business was not a success. What is the resulting law? In Gascoigne and Gascoigne (1918) 1 KB 223 it was held that when a husband put a house in his wife’s name so as to avoid it being taken by his creditors that house belonged to the wife. The husband could not be heard to say that it belonged to him because he could not be allowed to take advantage of his own dishonesty. That case was applied in Re Emery’s Investment Trusts (1959) 1 Ch 410 and also in McEvoy v Belfast Banking Co. Limited (1934) NI 67. We were invited by Mr Wheatley to overrule those decisions. But in my opinion they are good law.
...I am quite clear that the husband cannot have it both ways so he is on the horns of a dilemma. He cannot say that the house is his own and, at one and the same time, say that it is his wife’s. As against his wife, he wants to say that it belongs to him. As against his creditors, that it belongs to her. That simply will not do. Either it was conveyed to her for her own use absolutely; or it was conveyed to her as trustee for her husband. It must be one or other.
Goldstein J also quoted the following passage from the judgment of Salmon LJ in the same case:-
It is trite law that anyone coming to equity to be relieved against his own act must come with clean hands. If, in a case such as the present, he were to put forward, as a reason for being relieved against his own act, a dishonest plot on his part, to defraud his creditors the Court would refuse him relief and would say: let the estate lie where it falls.
After citing section 79 of the Family Law Act, Goldstein J said:-
I thus have to consider when approaching the matter of alteration of property interests whether the husband can be heard to say to the Commissioner for Taxation that the smash repair business is half his and half his wife’s and yet to say to her and this Court that it is all his.
Goldstein J went on to hold that the plant and machinery and other chattels at Nyngan Smash Repairs were the property of the husband and the wife trading as partners. The wife thus had a share as an equal partner in those assets.
In Marriage of Lee Steere[13] the Full Court (Fogarty, Nygh and Maxwell JJ) said:-
[13] Marriage of Lee Steere (1985) 10 Fam LR 431; (1985) FLC 91-626 at Fam LR 442-3
But it cannot be denied that the splitting of income tax is a direct and immediate financial benefit to the husband and to that extent a direct financial contribution on behalf of the wife.
In Jools and McConnell[14] Nygh J said:-
[14] Jools and McConnell (unreported 15th of June 1990)
Dr Jools occupies a waterfront property...the property and the mortgage stand in the sole name of Dr Jools who has executed a declaration of trust in favour of the Number 1 Trust. The reason for the property standing in his name rather than that of the Trustee Company he alleged was to avoid land tax. It is difficult for Dr Jools to have it both ways: he cannot pretend to be the owner to the Commissioner for Land Tax and give another version to this Court: see In the Marriage of Elias (1977) 3 Fam LR 11,496 at 11,502-3 per Goldstein J. I have therefore, the option of either treating Dr Jools as the legal and beneficial owner or referring the matter to the Commissioner for Land Tax for investigation.
In a later hearing in the same matter, Ellis J referred to this passage and said:-
I agree that Dr Jools cannot pretend to be the owner of the property to the Commissioner of Land Tax for the purpose of avoiding the payment of land tax and then give another version as to the ownership when it suits him. ...I agree with his Honour in relation thereto.
In Marriage of Docherty[15] the Full Court’s judgment includes the following passage:-
There was also an amount of $21,000.00 which the husband said he had paid the wife since separation. Husband’s counsel was somewhat coy as to where that money came from and for what reason it was paid, but looking at the husband’s chronology it would appear that that money was actually paid as deemed interest on a deemed loan by the wife to the husband in respect of the acquisition of the properties in his sole name. Whatever the situation, I must assume sitting in this Court, that since that was money which was paid to the wife, disclosed as her income in an income tax return in respect of which she paid income tax, that it was money which was due to her and was her income and not a gift on the part of the husband. Indeed, by the same token the husband, I understand and this was not disputed, claimed a taxation benefit in respect thereof.
However having regard to what was said by Justice Goldstein as he then was, in Elias and Elias (1977) 3 FamLR 11,496, if the husband chose to conduct his affairs in that particular manner then he is, quite frankly, hoisted with his own petard. He cannot subsequently turn around and say well that money was really mine and never belonged to the wife, he simply cannot be heard to say that.
In Marriage of Dawes[16] the Full Court (Strauss, Lindenmeyer and Cohen JJ) said:-
If, during the course of the marriage, the party represents to the Commissioner of Taxation that his or her spouse is a partner in a business operated by that party, or is a bona fide employee of such a business and is paid a salary of such, that party cannot be heard to say, in subsequent proceedings in this court, that his or her spouse was not in fact a partner or was not in fact a bona fide employee, as the case may be. That point was made by Goldstein J in Elias and Elias (1977) FLC 90-267, drawing upon the authority of such cases as Tinker v Tinker [1970]2 WLR 331, Gascoigne and Gascoigne (1918) 1 KB 223 and in Re Emery’s Investment Trusts (1959) 1 Ch 410. We think that that is a very sound principle, and its enunciation by Goldstein J in Elias and Elias (supra) was given at least tacit approval by the Full Court in Lee Steere and Lee Steere (1985) FLC 91-626 at 80,078. We are aware that it has received more explicit approval by other judges at first instance in unreported cases[17].
[15] Marriage of Docherty (unreported 26th of October 1989)
[16] Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC 92-108
[17] It is noteworthy that the House of Lords in Tinsley & Milligan [1993] UKHL 3 casts some real doubt upon the application of this line of authorities and the Holman dicta in the English context.
This passage was quoted with approval in Marriage of Ferraro[18] (Fogarty, Murray and Baker JJ).
[18] Marriage of Ferraro (1992) 16 Fam LR 1
The Full Court approved that quotation in discussing a finding by the trial judge that:-
The parties’ income was divided equally between them for taxation purposes. Consequently, they paid less tax than had taxation been levied on the husband’s income alone.
In Cestaro[19] the judgment includes the following passage:-
So far as the applicant asserted in cross examination that her tax return did not fully reveal the extent of her earnings I do not accept that assertion. To permit the applicant to assert that her earnings were greater than revealed to the Commission of Taxation would in effect in these proceedings be to reward a fraud on the Australian Taxation Office and this Court, in accordance with longstanding authority, cannot and will not do that.
[19] Cestaro (Coleman J 23 December 1994 unreported)
In discussing the breadth and the extent and application of the principle His Honour accepted the submissions of Junior Counsel for the Wife (Mr Stewart) and stated the Elias principle in the following terms:
… A principle which a trial judge may (emphasis added) use in circumstances where A and B are married where B has made representations to C which B now seeks relief from in circumstances where B does not have clean hands.
Counsel for the Respondent in these proceedings has urged upon the Court that the Elias principle would be applied, whether as a threshold issue (as was dealt with by the judgment on 23 May 2013) or upon the conclusion of the evidence (and considering the evidence as a whole) so as to exclude evidence by the Applicant (or led in her case) contrary to her previous assertions.
There is no factual dispute that the Applicant has previously made representations to various agencies including but not limited to Centrelink, Medicare, the Australian Taxation Office, (omitted) School and the school attended by the parties’ child X, that she was a single person or single parent.
Further, it is sought by the Respondent, in accordance with submissions, to formulate the rule in the following terms:
The rule as expressed in Dawes is that certain evidence will be inadmissible to contradict statements made to the authorities to procure a financial advantage. The rule is not an inflexible one, and account must be taken of the significance of the evidence in terms of the overall justice and equity of the case. However, and with respect, McGuire FM is not correct to say in Christofis that “the “principle” is… no more than a logical and understandable consideration for a court in evaluating evidence.”
It is actually a rule about admissibility, not credibility, and as explained in Dawes and other cases has a firm basis in public policy. For example, Coleman J wrote in Cestaro (23 December 1994, unreported, cited in Jordan):
So far as the applicant asserted in cross examination that her tax return did not fully reveal the extent of her earnings I do not accept that assertion. To permit the applicant to assert that her earnings were greater than revealed to the Commission of Taxation would in effect in these proceedings be to reward a fraud on the Australian Taxation Office and this Court, in accordance with longstanding authority, cannot and will not do that.
I would submit that its application in the context of s.4AA ought to be that it operates as a rule that such evidence will be deemed inadmissible unless there are compelling reasons of justice and equity to decide otherwise. This reflects its strong expression in Dawes and its explanation in Cestaro as a rule of public policy.
Furthermore, the context in s.4AA is different from s.79 where a broad range of factors need to be considered in the exercise of a discretion to alter property interests. In the context of a s.4AA determination, the Court is being called upon to decide whether a de facto relationship exists and this is a decision about a fact (based upon examination of a range of circumstances).
A person who repeatedly makes a declaration of fact to the relevant authorities for financial gain ought not to be able to assert to a court that it should find the facts to be different that he or she has repeatedly claimed them to be. A formulation of the rule in those clear terms is consistent with broader principles of the general law that people should not profit from their own wrongs, or should come to equity with clean hands (Jordan 21 Fam LR 382 at 390).
Having already determined that the evidence of the Applicant would not be excluded as a threshold issue I accept, as is submitted by the Respondent, that it is open to the Court to review the evidence in its totality once it is closed and to then determine whether portions of that evidence should be excluded and or how it should be weighed. However the exclusion of evidence in accordance with the “Elias principle” must be subject to a determination that it is and remains good law and/or is applicable in the circumstances of this case.
I make clear that it is not the role of this Court, as a first instance trial Court, to “make law”. The creation of law is a matter for Parliament and the creation of law, through precedent, is a matter for the Appeal Courts of which this is not one.
With the above in mind I thus turn to instances in which the Full Court of the Family Court of Australia has dealt with the “Elias principle” in recent past.
In Peters & Peters [2003] FamCA 153 a Full Court comprising Holden, Coleman and Warnick JJ gave some little consideration to the “Elias principle”. However, no determination of the applicability of same was required on the following basis (at paragraph 36 of page 14):
Whilst submissions were made on behalf of the husband in relation to the cases of Elias v Elias (1977) FLC 90-267 and Jordan and Jordan (1997) FLC 92-736, the reality that the trial judge made no reference, expressly or impliedly, to either of those decisions renders examination of them unnecessary for the purposes of the Appeal. In our view, her Honour’s statement that the husband’s father “can’t have it both ways” was an accurate statement of the position which had potentially arose on the evidence. It is to be remembered that the husband’s father chose which “way” he wanted to “have it” by confirming in his oral evidence that his representations to the Department of Veterans Affairs had been truthful.
In that context thus no issue as to a prior representation inconsistent with evidence arose and the “Elias principle” could not be said to have been applied.
In each of the Full Court decisions of IABH & HRBH [2006] FamCA 379 and Lester & Lester [2007] FamCA 186 full benches of the Court had raised before them appeal points dealing with the application or non-application of the “Elias principle”. However, in neither was a consideration of that appeal point required.
In Crandall & Crandall [2009] FamCAFC 120[20] a full bench comprising Bryant CJ and Thackray and Bennett JJ, were called upon to deal with a suggested failure by the Federal Magistrate (as he then was) to apply the “Elias principle”. This arose within the context (inter alia) that the husband had:
…represented to Centrelink that he was a boarder and consequently received social security benefits including rental assistance as a consequence of his representation that he had no interest in the [subject property] and was a boarder (paragraph 71).
[20] And in written submissions by the respondent forwarded to my chambers dated 17 February, 2014 reference to Crandall and Dawes is made. Those written submissions opened with “without wishing to augment the submissions already made…”. I make clear that these reasons had already been dictated and the authorities of Dawes and Crandall identified prior to receipt of that material and thus these reasons have regard to same without reopening submissions.
In then dealing with and discussing the “Elias principle” the Full Court opined:
80. In the absence of detailed submissions and reference to authority we consider it unnecessary to discuss in detail the parameters and application of the “Elias principle”. A scholarly dissertation is to be found in Jordan & Jordan (1997) FLC 92-736 where Chisholm J (at 83,927) posited the following as representing the “Elias principle”:
When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
81. It will be observed that the “Elias principle”, as formulated above, does not represent an inflexible rule. Rather, it imports a discretion permitting the Court to exclude certain evidence. Furthermore, for the “principle” to have any application it is necessary to establish that some earlier representation was made that was inconsistent with the evidence sought to be adduced at trial.
In those circumstances and whilst not being called upon to expressly address the existence through application of the “Elias principle” the Full Court would appear to have proceeded on the premise that the principle had application.
In dealing further with the issue the Full Court, specifically as regards contribution, opined as follows (at paragraph 88):
88. If we understand him correctly, counsel for the wife was asserting that the husband should not be given any “credit” for contributions he made from income or benefits he received as a result of deception. We do not consider there is any substance in that proposition. The wife received some of the benefit associated with any deception in which the husband engaged and, at least on one view of the evidence, was complicit in his deception, if it be so described.
Whilst it is not suggested that this position is analogous to the facts and circumstances of this case it would suggest, on the basis the Full Court was prepared to reject the proposition that no credit could be given for the application of funds which might otherwise be described as “improperly” or “illegally” obtained to an assessment of contribution, that the Elias principle, if it is found to exist or apply, is of limited application.
In turning to single instance discussions of the Elias principle, there is some significant doubt raised as to its ongoing application or utility. Such doubt is raised, amongst others, by Chisholm J himself in extra judicial academic writing.
Boland J in Tapper & Tapper [2003] FamCA 184 opined at paragraphs 209-213 as follows:
209. Mr Johnston submits that as the husband has held out to the Australian Taxation Office (“ATO”) that the Suncorp Metway account is his beneficial property, and Mrs Tapper has not disclosed her ownership of the account to the Department of Veteran Affairs, that the $20,000 formerly in the IBD and the present balance in the savings account of $1,822 should be “added back” into the parties’ pool of assets. He relies on the principles espoused in Elias v Elias (1977) FLC 90-267 and Jordan v Jordan (1997) FLC 92-736.
210. In Jordan (supra) Chisholm J summarised the principle contended for, in that case by the husband, as follows:
“There is a rule of family law that when people make representations of fact to third parties and gain advantage from so doing, they cannot in subsequent proceedings under s.79 of the Family Law Act lead evidence which contradicts those representations.”
211. In the hearing of Jordan (supra) his Honour was not referred to the then recent decision of the High Court of Australia in Nelson v Nelson (1995) 184 CLR 538. I find the principles espoused in Jordan (supra) must be reviewed in the light of the findings of the High Court in Nelson (supra).
212. I am satisfied, notwithstanding the Suncorp accounts are in the husband’s name, that he has not conducted the day to day operation of the accounts, and that he has at all times held the accounts as trustee for firstly his parents, and after the death of his father, for Mrs Tapper.
213. I accept the husband’s evidence that he was not aware of the term deposit, nor had he had the benefit of that deposit. Whilst I found a number of Mrs Tapper’s answers about the term deposits to be unsatisfactory I accept her assertion, that she regards the Suncorp accounts as her property. I am satisfied that the husband did not gain any benefit from the holding of the account in his name, and that it is not appropriate to “add back” to the parties’ pool of assets funds which I find were at all times impressed with a trust in favour of his parents (see also “Exclusion of Evidence Inconsistent with Earlier Statements: The Rise and Fall of the ‘Elias Principle’” Chisholm J (2001) 15 Australian Journal of Family Law; Commissioner of Stamp Duties (Qld)–v-Jollife (1920) 28 CLR 178).
It is to be noted (as was indeed noted by Watts J in academic writings undertaken by him prior to appointment (see for example “The Elias Principle – Dead or Alive?”(2000) 14 Australian Family Lawyer 21) as referred to by Malone J in Sparr & Sparr [2007] FamCA 1229) that Chisholm J’s original decision in Jordan was made without reference to the High Court’s decision in Nelson v Nelson [1995] HCA 25 same being inconsistent with that position (as Counsel appearing in those proceedings had not drawn it to His Honour’s attention and, indeed, it had not been drawn to mine at the previous threshold hearing above).
The view of Malone J in Sparr & Sparr is consistent with the comments of Federal Magistrate Ryan (as she then was) in JPDJ & DADJ [2005] FMCAfam 86. At paragraphs 44-46 thereof (again relying upon His Honour Chisholm J’s extra judicial writings as noted by Malone J above), Her Honour accepted that the “Elias principle” may well be “wrong” and thus not represent good law and as follows:
44. Because the husband conceded that the wife alone contributed the sale proceeds from the Baulkham Hills property, evaluating the parties’ financial contributions is troubling. The wife’s counsel submitted, in essence, that both parties financial contributions as at the time they sold the Baulkham Hills property, crystallised in its sale proceeds. Thus, by conceding that the wife alone contributed the sale proceeds, as at 1995 only the wife had made a financial contribution to the acquisition, conservation and improvement of matrimonial assets. As it is uncontroversial that the husband worked from marriage until the Baulkham Hills property was sold, it is clear that this submission should be rejected. The husband’s concession has its genesis in the wife’s claim that because the husband claimed that he did not have any assets when FF Pty Limited went into voluntary administration, application of the Elias (1997) FLC 90-267 principle meant that he could not now claim an interest in the Baulkham Hills property pursuant to s.79 of the Family Law Act 1975. It appears that because he feared claiming an interest may involve the creditors, who it appears were largely unsatisfied, may belatedly obtain redress. In the Marriage of Jordan (1997) FLC 92-736 Chisholm J considered the Elias principle. Writing extra-judicially in an article titled, “Exclusion of Evidence Inconsistent with earlier statement: the rise and fall of the Elias principle” Chisholm J argued that although such a principal seems to be asserted in a number of Family Court decisions, it is inconsistent with High Court authority and does not represent the law.
45. In Nelson v Nelson 184 CLR 538 McHugh J at par 38 said, “In my opinion even if a case does not come within one of the four exceptions to the Holman dictum to which I have referred, the court should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless: a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or b)(i) the sanction of refusing to enforce those rights is not disproportional to the seriousness of the unlawful conduct; b)(ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and b)(iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statue or the frustration of its policies”.
46. The conclusion reached by Chisholm J is compelling. He writes, “If the argument in this paper is accepted, the Elias line of authorities is wrong insofar as it suggests that there is a principle, apart from estoppel the court may or must prevent a party from leading evidence of a proposition that is inconsistent with an earlier statement made to a third party. It follows that in property cases the court will consider all the evidence and make findings about the property of the parties and about their contributions. Earlier inconsistent statements of the kind that feature in the Elias cases will of course be relevant to this fact finding exercise. The court will have to consider whether the earlier statement or the later statement is more likely to be true. Further, the contradiction will be taken into account in determining what confidence the court will have in that party’s evidence generally. That all of this falls into the ordinary process of fact finding: no evidence would be excluded, and there would be no presumptions that one or other of the inconsistent statements is more likely to be true”.
Some support is also given to this proposition by Loughnan JR (as he then was) in Stierznow-Almer & Almer [2009] FamCA 577, wherein at paragraph 23 His Honour opined:
Now, there was a principle referred to in the authorities called the Elias principle whereby Goldstein J found that a person could not repudiate in the course of proceedings a false declaration made for improper purposes. There is a High Court decision of Nelson which says that is not the case and that the Court is not relieved of its obligation to make a finding as to the truth of something. That is not to say that there would be no consequences as a result of the false declaration. The problem here is that it is not out of the realms of possibility that the husband’s declaration to the bank was correct. The husband concedes that something like that was his income in times past. He has shown me preliminary accounting records prepared by his wife that put for the 2006, 2007 and 2008 financial years retained profits in the enterprise after wages of $70,000-odd had been paid, at something like $52,000, $100,000 and about $134,000. That suggests that the husband may have an expectation of a total income of the order of that which he represented to the bank, even allowing some generous margin for wages the wife might have been earning at that same time
Some years prior to the above authorities Burr J had expressed a not dissimilar view in Papas & Papas [2201] FamCA 1155 as follows:
23. The so called “Elias Principle” arose from a decision of Goldstein J in a case of Elias and Elias (1977) FLC 90-267 and which was then cited with approval in a number of subsequent decisions of the Family Court but is summarised in the following passage from Dawes and Dawes (1990) FLC 92-108, at page 77,725:-
“If, during the course of the marriage, the party represents to the Commissioner of Taxation that his or her spouse is a partner in a business operated by that party, or is a bona fide employee of such a business and is paid a salary as such, that party cannot be heard to say, in subsequent proceedings in this court, that his or her spouse was not in fact a partner or was not in fact a bona fide employee, as the case may be. That point was made by Goldstein J in Elias and Elias (1977) FLC 90-267, drawing upon the authority of such cases as Tinker v. Tinker (1970) 2 WLR 331, Gascoigne v. Gascoigne (1918) 1 KB 223 and Re Emery’s Investments’ Trusts (1959) 1 Ch 410. We think that that is a very sound principle, and its enunciation by Goldstein J in Elias and Elias (supra) was given at least tacit approval by the Full Court in Lee Steere and Lee Steere (1985) FLC 91-626 at p 80,078. We are aware that it has received more explicit approval by other judges at first instance in unreported cases.”
24. In short, the principle is applied to prohibit a party from leading evidence to establish that a position is different from that represented to a Government authority such as the Australian Taxation Office or the Department of Social Security. In other words, if a position is asserted to be true for the purposes of the Australian Taxation Office or the Department of Social Security, then evidence cannot be led in an endeavour to establish the contrary in proceedings before this Court.
25. The principle is now at least in serious decline if not bordering on extinction after the decision of the High Court in Nelson v Nelson (1995) 184 CLR 538 in which case all Judges of the High Court allowed Mrs Nelson (Senior) to rebut a presumption of advancement and assert a resulting trust in the proceeds of sale of a property which she had purchased but placed in the names of her children in order to conceal the asset from the Defence Services Homes Authority so that she could remain eligible for a concessional interest rate loan.
Ultimately, however, Burr J was not invited by Counsel to specifically address the application or otherwise of the “Elias principle”.
Similarly, Watt J in Martin & Prosser [2001] FamCA 1218[21] noted:
My view then is that nothing in Elias or the other cases that have discussed it prevents me from looking at the reality of the parties’ financial and other contributions and assessing them, as I must, under the provisions of the Family Law Act 1975.
[21] See also Watts J Kazama & Britton [2013] FamCA 4 preferring Nelson to Elias and Murphy J in Summitt & Summitt [2009] FamCA 371.
In turning specifically to the High Court’s decision in Nelson one need go no further than the erudite and helpful discussion of McHugh J. Therein His Honour referred specifically to the “Holman doctrine” from Holman v Johnson (1775) 98 ER 1120 and of a illegality test and being “…he who has committed iniquity shall not have equity; and what is required to invoke the maxim is no more than that the alleged misconduct has ‘an immediate and necessary relation to the equity sued for’”.
In dealing with that rigid equitable principle His Honour had the following to say at paragraph 31:
The doctrine of illegality expounded in Holman was formulated in a society that was vastly different from that which exists today. It was a society that was much less regulated. With the rapid expansion of regulation, it is undeniable that the legal environment in which the doctrine of illegality operates has changed. The underlying policy of Holman is still valid today – the Court’s must not condone or assist a breach of Statute, nor must they help to frustrate the operation of the statute. As Mason J put it in Yango Patral Company Pty Ltd v First Chicago Australia Limited [1978] HCA 42, the court’s must not “be instrumental in offering an inducement to crime or removing of a restraint to crime”. However, the Holman rule, stated in the bold dictum, “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act” is too extreme and inflexible to represent sound legal policy in the late twentieth century even when account is taken of the recognised exceptions to this dictum.
His Honour also referred to the decision of Lord Eldon LC in the 1801 decision Muckleston v Brown 31 ER 934 in the following passage:
the plaintiff is stating, he had been guilty of a fraud upon the law, to obeyed, disappoint, the provisions of the legislature, for which he is bound to submit, and coming to equity be relieved against his own act, and the defence being dishonest, between the two species of dishonesty the Court would not act: but would say “let the estate lie where it falls”.
In thus further discussing the Holmanv Johnson dicta McHugh J (at paragraph 18) had opined:
….the famous dictum of Lord Mansfield that "(n)o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." The principle contained in this dictum applies in both law and equity. But it is subject to exceptions which allow relief to be granted despite the presence of illegality. First, the courts will not refuse relief where the claimant was ignorant or mistaken as to the factual circumstances which render an agreement or arrangement illegal. Secondly, the courts will not refuse relief where the statutory scheme rendering a contract or arrangement illegal was enacted for the benefit of a class of which the claimant is a member. Thirdly, the courts will not refuse relief where an illegal agreement was induced by the defendant's fraud, oppression or undue influence. Fourthly, the courts will not refuse relief where the illegal purpose has not been carried into effect.
In addition to the above however His Honour McHugh J also formulated a broader test set out at paragraph 38 as follows:
Accordingly, in my opinion, even if a case does not come within one of the four exceptions to the Holman dictum to which I have referred, courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless:
(a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or
(b) (i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct;
(ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and
(iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies
McHugh J then concluded (at paragraph 39) that:
The adoption of these principles accords with the approach of this Court in the Leading case of Yango…the Court unanimously held that nothing in the Statute made [the transactions] void and that the separate question of illegal purpose should be determined by following the approach suggested by Devlon J in St John Shipping Corporation v Joseph Rank Limited (1957) 1 QB 267 of examining the terms of the Statute to determine the impact of illegality on the enforceability of the contract. Mason J said “the weighting of considerations of public policy in this case and the decision in favour of enforcing the contract in influenced by the form of the particular legislation…there is much to be said for the view that once a statutory penalty has been provided for an offence the rule (seek at the common law in determining the legal consequences of commission of the offence is thereby diminished… Marles v Phillip Trant & Sone Limited (1954) 1 QB 29 of 37, per Denning LJ, and that it would be a curious thing if the offender is to be punished twice civilly as well as criminally (St Johns Shipping Corporation v Joseph Rank Limited per Devlon J) the main considerations from which the principle X Turpi Causa arose can be seen in the reluctance of the Courts to be instrumental in offering an inducement to crime or removing a restraint to crime: Beresfords case (1938) AC 586 at 599.
An erudite discussion of Nelson v Nelson was also undertaken by Watts J in the decision of Kazama & Britton [2013] 48 Fam LR 664 to which I am referred by Counsel for the Respondent. The relevant portion thereof set out at paragraphs 82-88 thereof and as follows:
[82] Counsel for the applicant relied upon the decision of Chisholm J in In the Marriage of Jordan (1996) 21 Fam LR 382 ; (1997) FLC 92-736 (Jordan). In that case, his Honour departed from the principle enunciated in In the Marriage of Elias (1977) 3 Fam LR 11,496 ; (1977) FLC 90-267 (Elias) and subsequent cases;1 that a party who makes representations of fact to third parties and gains an advantage from doing so, cannot, in proceedings under s 79 of the FLA, lead evidence that contradicts those representations. Chisholm J held that the Elias principle was not based in estoppel, but derived from the provisions of the FLA; ss 79(2), 75(2)(o) or in the principle of full and frank disclosure. His Honour reformulated the principle as being:
When a party has made representations of fact to third parties and has gained advantage from doing so, it is open to the Court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
[83] Counsel for the applicant also referred to the High Court decision of Nelson v Nelson (1995) 184 CLR 538 ; 132 ALR 133 (Nelson). Although the decision in Nelson was handed down a week prior to the commencement of the hearing in Jordan, neither counsel referred Chisholm J to the High Court decision. In Nelson, the High Court unanimously allowed a mother to enforce her equitable interest in property that was registered in her children’s names so that she could remain eligible for a financial benefit. In his separate judgment, McHugh J refers to the “famous dictum” of Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341 where his Lordship said “no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”. McHugh J then observed:
The principle contained in this dictum applies in both law and equity. But it is subject to exceptions which allow relief to be granted despite the presence of illegality. First, the courts will not refuse relief where the claimant was ignorant or mistaken as to the factual circumstances which render an agreement or arrangement illegal. Second, the courts will not refuse relief where the statutory scheme rendering a contract or arrangement illegal was enacted for the benefit of a class of which the claimant is a member. Third, the courts will not refuse relief where an illegal agreement was induced by the defendant’s fraud, oppression or undue influence. Fourth, the courts will not refuse relief where the illegal purpose has not been carried into effect.
[84] His Honour went on to say at [38] of his judgment:
Accordingly, in my opinion, even if a case does not come within one of the four exceptions to the Holman dictum to which I have referred, courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless:
(a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or
(b) (i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct;
(ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and
(iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies.
[85] As set out above, in the 2008 interview the respondent told the departmental officer that his relationship with the applicant began in November 2002. I find that is a reference to their de facto relationship and not their sexual one as it is common ground their sexual relationship began in January 1999.
[86] Counsel for the applicant submitted the application of the principles in Nelson in this case involves the balancing of the two public policy considerations. On the one hand discouraging the respondent from being able to provide information to the department in an unlawful way and on the other hand, preventing the applicant from unjustly receiving an alteration of property interests in circumstances where she should not be entitled to one.
[87] It is the respondent’s case that what he told the department, for the purpose of securing the applicant’s immigration status, was false. If the true situation was that there was no de facto relationship at the commencement date stated by the respondent to the department, then what the respondent did was an illegal act. To the extent relevant, that illegal act does not come within any of the four exceptions referred to by McHugh J in Nelson. Nevertheless, McHugh J goes on to say that legal and equitable rights should still be enforced unless certain conditions exist. In this case, the sanction against the respondent is to allow the applicant to pursue her claim under s 90SM of the FLA. That is not disproportionate to the seriousness of the illegality in which the respondent asserts he was involved. The statute (the immigration laws) has an object and policy to discourage by prosecution persons who provide false and misleading information to the Australian government, and those immigration laws do not indicate that prosecution is to be the only sanction.
[88] Consequently, when applying the principles set out by McHugh J in Nelson, I conclude in the circumstances of this case that it is appropriate for me to exercise the discretion to decline to accept from the respondent evidence that would contradict the representations that he made to the department, both in the form 40SP and the interview in 2008.
I am satisfied by reference to the above that:
(a)The appropriate law to be applied by me is that of the High Court in Nelson v Nelson;
(b)To the extent that there is any inconsistency between the High Court’s decision in Nelson v Nelson and the “Elias principle” (as discussed, for example, in Jordan & Jordan) the High Court’s decision in Nelson v Nelson represents the true position of the law and to the extent that there is inconsistency between the two that the Elias principle is not good law;
(c)The Elias principle, to the extent that it is of relevance, would appear to be contained within and a portion of that pronounced by the High Court in Nelson v Nelson.
In dealing with McHugh J’s discussion of the exceptions to the “Holman dictum” it is clear that none of the four exceptions thereto could apply to the evidence of Ms Benedict. This arises as:
(a)She was not ignorant to the “mistake and factual circumstances” as she had completed each of the relevant documents;
(b)Ms Benedict was not a member of a class entitled to the benefits which she claimed (at least not on her evidence before this Court);
(c)I am not satisfied on the evidence (which I will discuss shortly) that Ms Benedict was induced by Mr Peake’s fraud, oppression or undue influence to make the declarations she made to Centrelink and other agencies; and
(d)Ms Benedict’s “illegal purpose” has been carried into effect.
Having regard to that stated by McHugh J at paragraph 38 of Nelson v Nelson, however, I am satisfied that Ms Benedict’s evidence cannot and should not be excluded. This is so as:
(a)The Statute (Social Security Act 1991 (Cth)) does not disclose an intention that Ms Benedict (or anyone in her position) would lose their right to pursue relief under that Family Law Act1975 (Cth) as a consequence of any statement made to that agency;
(b)The sanction which would flow to Ms Benedict (in losing any right to pursue a claim under the Family Law Act) is disproportionate to the seriousness of her unlawful conduct (if it is so found – it being remembered that Mr Peake asserts that there is and has never been a relationship and thus Ms Benedict’s declarations would not and could not, save on her own plea, be “unlawful”);
(c)The imposition of such a sanction (so as to cause Ms Benedict to lose her right to approach the Court for relief under the Family Law Act and due process with respect to same) is not consistent with any express object or policy of the Social SecurityAct; and
(d)The Act (Social Security Act) does not disclose any intention that penalties over and beyond those imposed by that Act for false statements (when duly prosecuted and proven) should apply.
For the above reasons I am satisfied that Ms Benedict’s evidence would not be excluded by reference to the “Elias principle” as I am urged to do and I will thus, in due course, turn to and consider the totality of evidence and subject to these issues being relevant as to findings of credit.
It is to be noted that a further conundrum arises with respect to the evidence as a whole and the position advanced by Mr Peake.
Mr Peake asserts, in defence of and in resistance of Ms Benedict’s application, that there has never been a relationship between them which would or could properly be categorised by reference to section 4AA of the Family Law Act as a “de facto relationship”. To that end and if I were to accept the evidence of Mr Peake there is thus no false statement or illegality on the part of Ms Benedict in asserting to Centrelink that she is or was a “single parent”.
I make clear that the submissions put on behalf of the Respondent are that I should exclude evidence being led by Ms Benedict which is inconsistent with her prior representations to Centrelink (and other agencies) in purported reliance upon the “Elias principle” rather than upon any suggestion of “illegality” on her part. Indeed, such a submission could not be put by Mr Peake as that would be inconsistent with his own assertion. However, I am satisfied that this issue, to the extent that there are clearly prior statements inconsistent with Ms Benedict’s present evidence (asserting in these proceedings a de facto relationship from 1992 to 2010) should be admitted and addressed by reference to other evidential considerations such as credit.
In undertaking the above course, however, I am conscious that the assertions made by Ms Benedict must be viewed within their context. Ms Benedict has asserted to the Department of Social Security (Centrelink) that she was single and thus not a member of a couple and not living within a de facto relationship. Thus, she has inherently if not expressly asserted and held out to Centrelink that she is not, for the purposes of section 4 of the Social Security Act, “partnered”.
Social security legislation contains a definition of a de facto relationship which is not dissimilar in terms to those contained within section 4AA of the Family Law Act.
By reference to section 4 of the Social Security Act and for the purpose of “forming an opinion” about the relationship between two people a number of matters must be considered including:
Family relationships definitions—couples
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
I will turn to those matters as part of an examination of section 4AA of the Family Law Act subject to noting at this point that Ms Benedict’s representations to Centrelink and the matters relevant to their consideration and Ms Benedict’s evidence with respect to those representations will be of great significance.
The Evidence
Counsel for each party has provided a Case Outline document together with a Written Schedule of Objections and in the case of the Respondent, written submissions with respect to the threshold determination which the Court was asked to make as to the admissibility of Ms Benedict’s evidence inconsistent with prior representations to Government agencies.
The Case Outline documents provided by Counsel for each of the parties has enumerated the material relied upon by them and which for the sake of clarity (and subject to the objections which were taken thereto) comprises the material below.
In the Applicant’s case I have read and considered each of the following:
(a)Application filed on 21 February 2011;
(b)Affidavit of Ms Benedict sworn or affirmed on 17 February 2011 and filed on 21 February 2011;
(c)Affidavit of Ms Benedict sworn or affirmed on 30 November 2011 filed on 13 December 2011;
(d)Affidavit of Ms Benedict sworn of affirmed on 10 December 2012 and filed on 10 December 2012;
(e)Affidavit of Ms Benedict sworn or affirmed 26 February 2013 and filed on 7 March 2013;
(f)Affidavit of Ms V sworn or affirmed on 17 November 2011 and filed on 13 December 2011;
(g)Affidavit of Ms C sworn or affirmed on 7 November 2011 and filed on 13 December 2011;
(h)Affidavit of Mr D sworn or affirmed on 30 November 2011 and filed on 13 December 2011;
(i)Affidavit of Ms M sworn or affirmed on 17 November 2011 and filed on 13 December 2011.
In the case of the Respondent I have read and considered each of the following Affidavits:
(a)Response filed on 25 July 2011;
(b)Affidavit of Mr Peake sworn or affirmed 22 July 2011 and filed on 25 July 2011;
(c)Affidavit of Mr Peake sworn or affirmed 10 January 2012 and filed on 10 January 2012;
(d)Affidavit of Mr F sworn or affirmed 12 January 2012 and filed on 12 January 2012;
(e)Affidavit of Ms E sworn or affirmed on 13 January 2012 and filed on 16 January 2012;
(f)Affidavit of Mr G sworn or affirmed on 13 January 2012 and filed on 16 January 2012;
(g)Affidavit of Ms S sworn or affirmed on 10 January 2012 and filed on 11 January 2012;
(h)Affidavit of Mr J sworn or affirmed on 11 January 2012 and filed on 12 January 2012.
Each deponent was required for cross examination and was cross examined.
A number of Exhibits have also been received into evidence comprising:
(a)In the case of the Applicant:
(i) Exhibit A1 correspondence relating to a Notice to Produce;
(ii) Exhibit A2 a 2001 Tax Return for the company operated by Mr Peake, (omitted) Pty Ltd;
(iii) Exhibit A3 a 2000 Tax Return with respect to Mr Peake;
(b)In the case of the Respondent the following Exhibits have been received:
(i) Exhibit R1 a folder of documents relating to Tax Returns and Assessment Notices for Ms Benedict;
(ii) Exhibit R2 a folder of documents relating to declarations to and correspondence between Ms Benedict and Centrelink;
(iii) Exhibit R3 a plan of the property owned by the parties in their joint names at Property E;
(iv) Exhibit R4 a (omitted) School enrolment form completed by Ms Benedict;
(v) Exhibit R5 a resignation as (position omitted) form signed by Ms Benedict;
(vi) Exhibit R6 a copy of the first page of a Contract for Sale with respect to the acquisition of the above Property E property;
(vii) Exhibit R7 correspondence addressed to the parties from the conveyancer who acted on their behalf with respect to the purchase of the Property E property.
Evidence of the Applicant
As will be apparent from the above, Ms Benedict has filed and relies upon four Affidavits filed in these proceedings.
The rules of the Federal Circuit Court do not permit parties to rely upon multiple affidavits by the same deponent without leave. In this case leave has been granted to Ms Benedict to allow this to be so. It is, however, not a practice to be encouraged nor will such practice be universally adopted.
As is consistent with leave being granted to rely upon multiple affidavits the contents of same (particularly the last two) have largely been a repetition of material in earlier affidavits. There are, however, some differences between the contents of the various affidavits and including portions dealing with like events which, I accept, are of some significance and beyond mere semantics.
In the first of the Affidavits filed by Ms Benedict, the assertion was made that the parties had commenced living together in or about September 1992 (paragraph 4), had separated under the one roof (paragraph 6) “in or about early 2010” and had ceased to reside together on 18 February 2010. On that date Ms Benedict removed herself and the child of the parties X, from the accommodation at Property E owned by the parties in their joint names and in which accommodation both parties had been living prior thereto.
The first Affidavit filed by Ms Benedict, it is to be remembered, is filed in accordance with the Federal Circuit Court Rules (then Federal Magistrates Court Rules). Thus, the Affidavit is intended to include sufficient information to identify issues in dispute rather than to set out all evidence relied upon. On the basis that the Application of Ms Benedict was at that point undefended, the Affidavit thus seeks to address a number of matters relating to the merits of Ms Benedict’s plea for relief and thus sets out, in some short detail, the suggested employment histories of the parties. Some relevance with respect to the jurisdictional issue as to the relationship between the parties arises therefrom.
Ms Benedict deposes that:
(a)She worked as a “(position omitted)” for the Respondent and his (omitted business) “(omitted)” from 1989 until 2010 (paragraph 8a). This allegation is not repeated in subsequent material;
(b)That from 1992 and thereafter throughout the relationship, Ms Benedict conducted (duties omitted) for “(omitted)” being the corporate entity through which Mr Peake has since at least 1994, conducted his (business omitted) enterprises (paragraph 8a). It is also asserted by Ms Benedict, with respect to this suggested employment, that “in or about the early 1990’s I stopped receiving most income…”;
(c)Ms Benedict says that in 1992 she became Mr Peake’s “business partner” (paragraph 8b);
(d)Ms Benedict deposes that between 1994 and 2001 she was a Director in the company (omitted) (paragraph 8c) and suggests that she earned approximately 10% of the gross income of the business;
(e)Ms Benedict asserts that whilst working for (business omitted) that she had attended a number of conferences and trade fairs for the business (paragraph 8d). This is a matter of some significance regarding a suggested extended holiday to (country omitted) undertaken by Ms Benedict and Mr Peake jointly. Mr Peake when cross examined with respect to this travel asserted that some was work related and involved attending trade fairs and other employment related activities same being consistent with that initially deposed by Ms Benedict.
It is common ground between the parties (as is addressed in Ms Benedict’s first Affidavit) that in late 1994 a property at Property E was purchased by them. The property was purchased in their joint names and remains held by them in their joint names. Title to the property is held as joint tenants rather than tenants in common and significant cross examination on that issue arose.
Mr Peake denies that he was aware, at the time of the purchase and execution of the transfer (the instrument by which the joint tenancy was created) that the property was to be purchased as joint tenants. Further, Mr Peake denies that any explanation with respect to the nature of the joint tenancy or its difference to tenancy in common was provided to him or that a discussion regarding same ever occurred between he and the solicitors acting on the purchase. This issue is addressed at paragraph 24 of Mr Peake's Affidavit filed on 22 July 2011 and also to some extent at paragraph 80 of Ms Benedict's Affidavit 10 December 2012.
It is also common ground between the parties that following the purchase of the Property E property that substantial building work and renovation was undertaken lasting from 1995 to 1997. That building work, together with the purchase of the property, was largely financed by interest free loans from Mr Peake’s father (now deceased) and borrowings from the (omitted) Bank.
There is some controversy regarding the nature of the loans from Mr Peake’s father and, in particular, whether the loan advance/s was/were to Mr Peake alone or to the parties jointly. I will return to that shortly.
There is, again, no dispute between the parties that since the acquisition of the property there have been two significant refinances of the mortgage encumbering the property such that the mortgage was refinanced from the (omitted) Bank to (omitted) Bank loans and then subsequently from (omitted) Bank loans to (omitted) Bank (who presently hold the mortgage over the property).
The parties entered into occupation of the property in mid-1997. There is, again, no dispute between the parties that the property comprises, in essence, a two storey dwelling together with an attached (business omitted) complex also of two storeys.
The parties are significantly at odds as to whether they have ever, within that property, occupied the same portion thereof consistently or within the terms of “cohabiting” together within that accommodation.
Ms Benedict’s evidence is that at all times from 1997 (when the building work was completed) until January 2010 (at the earliest) that the parties cohabited, shared the same bed and were engaged in a de facto relationship.
Mr Peake’s evidence regarding this period of occupancy of the same residence is significantly at odds with Ms Benedict’s. Mr Peake deposes that from the time that occupation of the property was taken in 1997, that he resided within the (business omitted) portion of the property and that Ms Benedict and their child X resided within the residence (albeit that the two are and remain joined).
The parties are agreed that from 2004 and until 2006 the residence portion of the property was leased as a “short term furnished rental” and that whilst so tenanted, that both parties and their daughter X slept within and occupied the (business omitted) portion of the property. The parties were at odds as to the sleeping arrangements or the extent of their shared life at that time.
From 2006 the residence portion of the property was permanently tenanted and the parties thereafter and until early 2010 both slept within the (business omitted) portion of the property. There is, again, significant issue as to sleeping arrangements.
The parties have a child of their relationship X born on (omitted) 1995 and there is no dispute as to her paternity. However, significant issues are raised in the evidence as to the parties understanding as to the registration of X’s birth and the notification of the details of each “parent” to various agencies.
The parties are also agreed that in 1994, Mr Peake incorporated the company (omitted) Pty Ltd as the corporate vehicle via which he has earned his income through the production and promulgation of (omitted). At the time of its incorporation in 1994, the parties are agreed that corporation’s law required that a private company have at least two shareholders and it is on that basis that Mr Peake asserts that Ms Benedict came to be a director. Ms Benedict asserts a greater commitment to joint enterprise reflected by her directorship.
The parties are not in dispute that in 2001, Ms Benedict resigned as a director of the company although the allegations of circumstances surrounding same are somewhat disparate in that:
(a)Mr Peake asserts that this arose in the context of Ms Benedict then claiming Centrelink benefits and being compelled to resign to enable her to continue to do so.
(b)Mr Peake asserts further that a change in corporate regulation so as to allow a sole director of a company contributed as a basis for this change occurring as and when it did.
(c)Ms Benedict asserts that her resignation as a director was solely at the request and behest of Mr Peake and as a reflection of his general attitude towards her and affairs between them generally.
In the first of her Affidavits, Ms Benedict does not make any reference to her application for or receipt of Centrelink benefits at any time during the relationship. Ms Benedict does relate, as indicated above, some small detail regarding her employment history and suggested contributions towards the company “(omitted) Pty Ltd” (as well as asserted contributions by each of the parties and (omitted) Pty Ltd towards a variety of expenses including payments of the mortgage encumbering the Property E property).
46. His Honours observations met with the approval of the Full Court in Ricci & Jones [2011] FamCAFC 222.
Whether a sexual relationship exists
47. It is common ground that on the occasions over the years since 2006 that the parties have been together there was and subsisted a sexual relationship between them. The respondent in his 2010 letter to the applicant refers to this circumstance. However the relevance of this circumstance must be tempered by fractured nature of the relationship in terms of time and distance.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
48. It is clear from the evidence that the circumstances of financial dependence or interdependence really flowed only one-way. That is from the respondent to the applicant. After 2006 the respondent afforded to the applicant and her daughter the continuing occupation of his [U] home unit in Sydney. There is little dispute that he paid substantially the outgoings in relation to the property and mortgage payments. Subsequent to the purchase of the [H] property by the applicant and respondent as tenants in common in shares that reflected approximately their respective capital contributions he once again has continued to meet until more recently significant mortgage payments in relation to that property and provided to the applicant some financial assistance from time to time. Otherwise the parties have led completely separate financial lives, particularly the respondent who has invested in various properties on his own account over the years without regard to the applicant.
The ownership, use and acquisition of their property
49. Facts pertaining to this consideration are referred to above. There is no doubt that prior to 2006 the parties had jointly acquired the [A] property in Darwin albeit in disproportionate shares reflecting to some extent their contributions and later on a similar basis acquired the [P] property in Darwin. Prior to their physical separation in January 2006 the Darwin [P] had been sold and the [A] property remained as the only joint interest, albeit substantially owned by the respondent. The respondent also prior to physical separation acquired in his own name the [U] property for occupation by the applicant’s daughter in Sydney. It was some 2 ½ years after physical separation that the parties jointly purchased the [H] property for the accommodation of the applicant. Once again that property was purchased in disproportionate shares to reflect their respective contributions. It is of note that to fund this purchase the respondent sold a rental property already owned by him in Sydney but not occupied by the applicant. The applicant prior to purchase of [H] was residing with her daughter in the small [U] home unit but it appears had managed to save some funds that she contributed to the purchase. This is supportive of the respondent’s contention that the purchase was to facilitate the applicant having more reasonable accommodation in Sydney in a property that he saw as a good investment opportunity. The evidence is that initially the property was treated as a negative gearing investment property in the respondent’s income tax returns until his accountant became aware that it was occupied by the applicant necessitating amended returns being filed.
The degree of mutual commitment to a shared life
50. Both parties acknowledge that this was a factor in their relationship at least until January 2006. The applicant of course asserts that this remained a factor in their relationship notwithstanding that she lived independently from the respondent, was pursuing her own career in Sydney, was reliant upon him to provide accommodation for her and saw him intermittently for short periods. The respondent on the other hand says that he regarded Darwin as his home, visiting the applicant from time to time and she visiting him from time to time. There is little evidence of any degree of mutual commitment to a shared life together.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
51. This is not a relevant consideration.
The care and support of children
52. Section 90RB of the Act provides “for the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship”. This consideration is then of no assistance in this matter.
The reputation and public aspects of the relationship
53. It is interesting to note that the applicant’s daughter is the goddaughter of the respondent and she refers to him as “uncle”. Apart from the physical contact between the applicant and respondent and various members of their respective extended families there is little evidence upon which to gauge otherwise the reputation and the public aspects of the relationship. The relationship can be seen after 2006 as a relationship between two people who were previously in a committed and common residence relationship to one where following their physical separation in January 2006 they remained good friends, seeing each other from time to time, the respondent providing some financial assistance, occasionally travelling together and engaging in a sexual relationship when they were together.
54. That circumstance is quite different to the conclusion that the court must form to be satisfied that there was in existence after 2006 a relationship that comes within that required for jurisdiction under the Act.
55. The court is also troubled by the representations made by the applicant on oath to the authorities in relation to her relationship with her previous husband. One can only assume that by late 2006 at least in the mind of the applicant any vestige of a relationship of any significance with the respondent had disappeared. In the event that she, as she asserts, misrepresented on oath the true circumstances of the relationship with her former husband then the court can have little regard to her evidence in these proceedings where it conflicts with that of the respondent.
Onus of Proof
56. “ the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed; the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities although it would seem that the weighting and the balancing task is much less formal than in other civil proceedings. …..s 4AA(4) does not ameliorate the requirement for the applicant to prove her case on that transparent standard” (see Taisha & Peng and Anor [2012] FamCA 385 Cronin J. at [11]).
I have included all of the above material not on the basis of adopting findings of fact made by His Honour but to encapsulate the excellent discussion of prior authorities particularly as regards the nature and extent of common residence and factors of significance.
I propose to now address each of the matters set out in section 4AA of the legislation and as canvassed by His Honour.
Duration of the relationship
I have some difficulty making any finding as to the duration of a relationship between the parties or a relationship at all.
Mr Peake urges me to declare, pursuant to section 90RD, that no relationship, within the meaning of section 4AA, has subsisted at any time.
I am satisfied that I need not make any finding as to the existence of a relationship at any particular point in time. That is not what is required of me by the legislation.
Absent a finding that a relationship subsisted as at 1 March 2009 (when the Court was invested with jurisdiction) the Court is simply absent jurisdiction.
I declare that I am satisfied that as at 1 March 2009 the parties were not residing in a de facto relationship. Further I am satisfied that the parties were not at any time subsequent to 1 March 2009 residing in a de facto relationship.
Whilst the above would end the judiciable controversy between the parties, I propose to deal briefly with each of the matters otherwise required to be addressed by section 4AA of the legislation.
Nature and extent of common residence
These parties lived together within the same property at Property E from 1997 until 2010 (and subject to a brief period of some days in 2006 when I am satisfied that Ms Benedict with X moved to the (omitted) premises).
During the period that the parties were living under the one roof I am not satisfied that they lived together in a de facto relationship.
I accept the evidence of Mr Peake that he by and large attended to his own needs. This included attending to his washing at laundromats or at other premises, making his own meals (or more often than not taking meals outside of the home or buying takeaway meals) and by and large living and maintaining his own life and lifestyle.
Mr Peake’s evidence was that he would wake late in the day and would work through the evening and go to sleep in the morning when, on his evidence, Ms Benedict would “usually” be getting up. There was some concession by reference to Ms Benedict’s evidence at least as to particular periods or frequency when this occurred.
I accept, as found above, that Mr Peake has predominantly if not solely maintained his own bed and own room and living arrangements within the same accommodation as Mr Benedict but the parties have not lived together for a common purpose or shared life or endeavour.
Again, I am satisfied that I must approach the circumstances of these parties by reference to their particular circumstances rather than with any normative definition of a relationship. The elements which might normatively define a de facto relationship are, however, set out in section 4AA of the Family Law Act.
The relationship between these parties has, I am satisfied, been somewhat utilitarian and pragmatic. They have shared accommodation and intermingled finances to a very limited extent and for largely individual purposes. They have otherwise lived relatively separate lives, save for their daughter X.
To the extent that Ms Benedict and Mr Peake have been engaged in (business omitted) endeavours together, I accept Mr Peake’s evidence that this has largely been either as a paid contractor (each for the other) or in joint endeavour such as (business omitted) “(omitted)”.
Whilst the parties had maintained a joint bank account for a brief period (an (omitted) Bank account) and Mr Peake had been a signatory to a credit card with the (omitted) Bank maintained in Ms Benedict’s primary name, these arrangements have not been explored in any depth in the evidence and would appear to have been short lived and again, pragmatic and utilitarian arrangements to meet specific commercial rather than relational needs.
Whether a sexual relationship exists
As indicated above, I accept the evidence of Mr Peake as to when a sexual relationship has occurred between the parties. The parties have largely engaged with each other in a non-normative fashion and such that I would not be satisfied, even during periods when the parties were engaged in a sexual relationship, that this could be taken as a significant let alone dispositive factor as to determining a relationship between them.
These are not parties for whom sex before marriage would be considered as a significant factor. Indeed the parties are each clear that marriage had been raised at times (whether by them or others such as a priest or family members) and that each has rejected it.
The sexual relationship that has existed between the parties has been brief, sporadic and far from reflective of mutual commitment between them. In all probability for these parties and especially Mr Peake, engaging in sex with each other has met a need and has not imported or implied anything else be it emotion or commitment.
Degree of financial dependence or independence
I am satisfied that the parties have, by and large, been financially independent throughout the period 1992 to date.
I accept that Mr Peake (whether from funds held in his name or in the name of the corporate entity through which he earns and distributes his income) has attended to payment of the mortgage on the property.
I accept the evidence of Mr Peake that a number of bills have been paid by Ms Benedict using her credit card and including expenses with respect to his company and that this arrangement arose to the mutual benefit of the parties (i.e. that Ms Benedict has received “points” for paying the expense with her card and has, by and large particularly so when business expenses were involved, been reimbursed).
To the extent that there has been financial interdependence, this has arisen through the parties both living within the same accommodation at Property E which has provided benefit to them and to their daughter X. I make clear that this finding, to the extent that it has benefited Ms Benedict who has been accommodated without contributing to the mortgage over the property, is not intended as a finding to suggest that Ms Benedict has not contributed to that property or that factors exist in my mind (although they need not be determined by me) which would interfere with or obviate against Ms Benedict’s ownership and legal title in the Property E property. To the extent that financial benefit has been received by Ms Benedict through occupation of the property without servicing the mortgage encumbering same, she has made clear contributions such as:
(a)A Calvary & Green contribution through lending her name to the borrowings relating to the home and other expenditures;
(b)Care, nurture, maintenance and upkeep of X;
(c)Payment of other expenses which have benefited the parties jointly and/or individually, including services and utilities for the property;
(d)Maintaining and improving the property and portions thereof;
(e)Being engaged with (whether solely or otherwise) arrangements for tenancy of the residential portion of the property.
I am not called upon in these proceedings to make any determination as to the contributions of the parties. Indeed the Court is absent jurisdiction to do so in light of the findings that are made as to the relationship or absence thereof between the parties. However, I am conscious that these parties remain joint registered proprietors of real estate and would thus now inevitably face proceedings in the New South Wales Supreme Court under the Real Property Act to sever their joint tenancy and to deal with and determine the release to each of them of the value of the portion of the property to which they are entitled (whether legally or beneficially). They are matters (and thus findings based on evidence) for another jurisdiction.
Ownership, use and acquisition of property
The parties clearly own the Property E property. However, in the circumstances described above and based upon the evidence in its totality and the findings of fact made by me with respect thereto, I am not satisfied that the joint acquisition of the Property E property would, of itself, demonstrate a relationship between the parties at any given point in time or for any given period. Indeed, it would be counterintuitive for that to be so noting the myriad variety of transactions which lead to joint ownership of property between parties in different relationships or no relationship other than strictly commercial and financial relationships.
Degree of mutual commitment to a shared life
As would be apparent from the evidence above, I am not satisfied that the parties evinced, held or acted upon any desire, mutual or otherwise, for a committed shared life.
The representations made by Ms Benedict to government agencies as well as those held out to witnesses called in Mr Peake’s case suggest an absence of such commitment on the part of Ms Benedict or at least an enduring commitment as expressed at the times of such representations. However, they cover a significant period and so impact upon the credit worthiness of Ms Benedict and I am not in a position to make any finding that would support a desire to pursue a relationship with Mr Peake let alone a belief that such a relationship subsisted following the physical separation which I am satisfied occurred (albeit briefly) in 2006 when Ms Benedict moved to the (omitted) premises.
Care and support of children
This consideration is of no assistance in this matter.
The parties have a child, X, who is now 18 years of age. Her care arrangements during the relationship are not largely in dispute between the parties.
A significant element of the evidence which I accept and which I accept is genuine and real (both as to its present expression and its manifestation during the period from X’s birth) is the motivating fear held by Mr Peake that X would, absent a continuation of the arrangements that the parties had in place, cease to be an integral part of his life and/or significantly involved with him. Further, I am satisfied that not only the negative expression of fear but the positive desire to provide benefit, housing, support and nurture to X influenced the continuation of the parties residence under the one roof and the other arrangements put in place.
The reputation and public aspects of the relationship
I am satisfied that the above evidence as has been canvassed sufficiently, demonstrates and supports findings made by me that the parties have not, to any significant extent, if at all, held themselves out as a couple on a committed basis such as to cause, allow or permit anyone to reasonably or objectively form the belief that they were in a committed, monogamous de facto relationship with each other.
The evidence in its totality, including the support witnesses called in the proceedings particularly those in the case of Mr Peake, satisfy me that from at least 2006 no such reputation could have been reasonably inferred and that no such belief could have reasonably been held by any objective observer.
Conclusion
As stated at the outset of these Reasons, the jurisdiction of this Court is founded upon a finding that a de facto relationship subsisted between the parties on or after 1 March 2009 and that separation of a relationship (if one existed) had not occurred prior to this date.
I am not satisfied this is so and thus and accordingly, I propose to declare pursuant to section 90RD of the Family Law Act that the parties were not, as at 1 March 2009 or any subsequent date, in a de facto relationship with each other.
As such the Court has no jurisdiction and accordingly all other Applications and Responses will be dismissed and all material produced to the Court on subpoena or by way of exhibit returned.
Lest I am wrong with respect to the above I note that the Court must, prior to exercising any jurisdiction, be satisfied of one or more of the matters in section 90SB which provides as follows:
90SB When this Division applies—length of relationship etc.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
a.(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
b.(b) that there is a child of the de facto relationship; or
c.(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Proceedings must be instituted between parties within a period of two years following the termination of the relationship (see section 44(5) and by reference to section 90SK, that the parties were ordinarily resident in a participating jurisdiction (as to which there is no issue).
By reference to section 90SB:
(a)I am not satisfied that the parties resided together in a de facto relationship for a period or periods totalling two years as at or after 1 March 2009. I need not on that basis be satisfied as to whether the parties have ever resided in a de facto relationship. The evidence would clearly suggest that any relationship (if indeed one ever existed within the meaning of section 4AA), concluded no later than 2006 when Ms Benedict left the Property E property (with X) and commenced to reside at (omitted). I am satisfied that after returning to the Property E property, no relationship commenced or resumed between Ms Benedict and Mr Peake.
(b)There is clearly a child of the relationship X. However, X is now 18 years of age. I am not satisfied that the existence of X as a child of the parties is or would be a sufficient basis of jurisdiction by and of itself (nor is the submission put to me urging same) to found any exercise of jurisdiction.
(c)I am not satisfied that I could be satisfied and thus do not so declare that substantial contributions have been made by the parties or either of them of a kind mentioned in section 90SM(4)(a)(b) or (c) of the Act or that a failure to make any order or declaration would result in serious injustice to the Applicant. Indeed given the Applicant’s failure to discharge her burden of proof to establish the existence of a relationship and thus the absence of jurisdiction I could not be so satisfied.
Accordingly I make Orders in accordance with those included at the beginning of these Reasons.
I certify that the preceding two hundred and thirty six (236) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 11 April 2014
6
22
5