Chang & Giang
[2021] FedCFamC2F 8
•25 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chang & Giang [2021] FedCFamC2F 8
| File number(s): | SYC 6826 of 2017 |
| Judgment of: | JUDGE BECKHOUSE |
| Date of judgment: | 25 October 2021 |
| Catchwords: | FAMILY LAW – SUMMARY DISMISSAL – whether a de facto relationship existed – determination as to date of separation – where Application for Final Orders made within the standard application period – whether application for Final Orders had reasonable prospects of success – declaration made pursuant to s 90RD of the Family Law Act 1975 (Cth) – application dismissed |
| Legislation | Evidence Act 1995 (Cth), s 128 Family Law Act 1975 (Cth), ss 4AA, 44(5)-(6), 90RD, 90SB, 90SM, 117(1)-(2) Family Law Rules 2004 (Cth), r 10.12 Federal Circuit Court Rules 2001 (Cth), rr 13.10, 21.02 Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), rr 10.09, 12.13 |
| Cases cited: | Beck & Beck (2004) FLC 93-181 Clarence & Crisp (2016) FLC 93-728 Friar & Friar [2011] FamCAFC 71 Mayson & Wellard (2021) FLC 94-034 |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 132 |
| Date of hearing: | 15 and 22 July 2021 |
| Place: | Sydney |
| Solicitor for the Applicant: | Ren Zhou Lawyers |
| Counsel for the Respondent: | Mr Lawrence |
| Solicitor for the Respondent: | Andy Pham Lawyers |
ORDERS
| SYC 6826 of 2017 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | MR CHANG | |
| AND: | Ms GIANG | |
ORDER MADE BY: | JUDGE BECKHOUSE |
DATE OF ORDER: | 25 OCTOBER 2021 |
THE COURT ORDERS THAT:
The de facto wife’s application for the summary dismissal of the de facto husband’s Application for Final Orders is dismissed.
The de facto husband quantify the costs incurred in responding to the de facto wife’s application in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and on an indemnity basis, and serve such notice on the de facto wife within 14 days.
The costs of the de facto husband arising from this application are reserved to the final hearing.
The matter is listed for directions on a date and time to be fixed.
THE COURT DECLARES:
A.Pursuant to s 90RD of the Family Law Act 1975 (Cth), that a de facto relationship existed between the parties from around November 2000 until July 2017.
THE COURT NOTES THAT:
A.On the basis of the above declaration, the de facto husband instituted proceedings for final orders within the standard application period, and leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) is not required for the continuation of the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Chang & Giang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 17 October 2017 the de facto husband Mr Chang (“the husband”) initiated proceedings seeking the alteration of the parties’ property interests pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The de facto wife Ms Giang (“the wife”) asserts that the husband filed the application outside the standard application period of two years from the end of the de-facto relationship (“standard application period”), as the parties separated between 2010 and 2012. The wife submits that the husband requires the Court’s leave to issue an application outside of the standard application period.
Alternatively, the wife seeks an order that the husband’s Application for Final Orders be dismissed, on the basis it has no reasonable likelihood of success pursuant to r 10.09(d) of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”).[1]
[1]The respondent wife relies upon what was formerly r 10.12 of the Family Law Rules 2004 (Cth).
The Court dismisses the wife’s application for the reasons detailed below.
BACKGROUND
As a preliminary comment, the Court observes that both parties gave inconsistent dates for events. The dates provided were both inconsistent with those given by the other party to the proceeding, and their own court pleadings. For this reason, the dates referred to in this background section does not constitute findings of fact, but provide a contextual background to the proceedings.
In 2000, the parties met at their workplace where the wife worked as a hospitality worker and the husband as a tradesperson.
In around November 2000 the parties commenced cohabitation. There was no marriage ceremony but they travelled to Country B together to meet family and discuss their future.
The child of the relationship X was born in 2005.
The Department of Home Affairs refused the wife’s application for a partner visa in 2008. Accordingly, the wife returned to Country B with X.
The wife received an Australian permanent resident visa and returned to Australia with the child in 2009.
The parties lived under the same roof from 2009 until at least 2012. They give different versions of the status of their relationship during that period.
The wife alleges that in early 2012 her de facto and sexual relationship with the husband ceased.
The husband filed for bankruptcy in 2010.
The husband applied for Centrelink benefits sometime after filing for bankruptcy and commenced receiving a Centrelink parenting allowance.[2] The husband raised an objection to giving evidence about his Centrelink benefits application. Ultimately, he gave evidence under the protection of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth).[3]
[2]Transcript 15 July 2021, p.28.
[3]Transcript 15 July 2021, p.24 line 45- p.25 line 20.
A shop in Suburb C was purchased in 2012 in the wife’s name. The husband obtained loans from his friend and father totalling $40,000 to assist in funding the purchase. The husband and wife worked in the shop.
The wife, husband, and X moved with the husband’s father to a three-bedroom home in Suburb C in 2012.
In 2014, a five-bedroom house in Suburb D was purchased for $690,000 in the wife’s name. The wife, husband, and X resided at the Suburb D property with the wife’s parents who had recently relocated to Australia from Country B. The wife asserts that at this time she primarily resided at the shop and visited Suburb D regularly.
In July 2017 on the wife’s account, or September 2017 on the husband’s account, the wife paid the husband $60,000. They are in dispute as to the purpose of this payment. The wife describes it as “a token of peace”, but accepts that the documentation they signed recorded an intention to transfer the husband’s share of the shop to the wife’s father. The husband says he stopped working at the shop following this payment. Neither party tendered supporting evidence.
The wife alleges the husband moved out of the Suburb D property in 2016, the husband says that he moved out on in 2017.
The husband alleges that the parties separated on 1 July 2017.
On 17 October 2017 the husband commenced proceedings in the Federal Circuit Court seeking the following final orders:
2.Final orders sought
That the property at H Street, Suburb D, NSW 2196 (the property) and Motor Vehicle 1 to be sold. The proceeds of the sale after all costs incidental to the sale to be distributed 70% to the applicant and 30% to the respondent. That both parties to do all acts and sign all papers to effect the sale. All other properties and assets in his/her name remains that person's property or assets in exclusion of the other. Each person be responsible and liable for own debts. That each parties have paid $50 to the other for maintenance.
(As per the original)
On 22 December 2017, the husband filed an Amended Initiating Application seeking parenting orders for X, including his placement on the Airport Watchlist.
On 4 January 2018, the wife filed an Application in a Case seeking the removal of X’s name from the Airport Watchlist for the purposes of travelling to Country B
On 9 January 2018, Judge Harper made orders permitting the wife to take X on a holiday to Country B, and requiring the husband to take steps to remove X’s name from the Airport Watchlist.
On 15 March 2018 the wife filed her Response to the husband’s Initiating Application and sought the following final orders:
1. That the Respondent Wife pay or cause to be paid to the Applicant Husband such sum as shall (when adjusted for assets and resources to be retained by each of them) represent a division of all assets and resources held in their individual or joint names \ and in any interest in any superannuation funds as to 90% to the Respondent Wife and 10% to the Applicant Husband.
2. Except as otherwise provided herein in these Orders, the Respondent and Applicant shall be solely entitled to the exclusion of the other, of all other property currently registered in her or his name or in her or his current possession or control, including funds in bank accounts, any business entitlements and any personal effects in the possession of them respectively.
3. Except as otherwise provided herein, all liabilities in the respective names of the parties as at the date of the Orders shall be the responsibility of the party in whose name the debt is recorded and such party shall indemnify the other in respect of the debt.
4. That if either party refuses or neglects to sign or execute any document, instrument or writing or comply with any Order contained herein after seven (7) days of being required to do so, pursuant to section 106A of the Family Law Act 1975, the Registrar of the Family Court of Australia be empowered to sign and execute such document or instrument or writing on behalf of either party as may be necessary to give full force and effect to the Orders herein.
5. That leave be granted to the Respondent Wife to amend her Application for Final Orders after the Applicant has made full and franks [sic] disclosure of his assets and liabilities.
(As per the original)
The wife filed a further Response on 21 September 2018 seeking parenting orders in addition to the property orders outlined above.
The wife instructed new lawyers in February 2021. Later she filed an Amended Response seeking the following orders:
1. Pursuant to rule 10.12 of the Family Law Rules or otherwise, the application in a case filed by the applicant ("the Application") filed on 17 October 2017 and the Amended Initiating Application filed on 10 November 2020 ("the Amended Application), or each order sought in the Application or the Amended Application be dismissed as it has no reasonable prospect or reasonable likelihood of success.
2. Each party shall be solely entitled to the exclusion of the other to all other property including choses-in-action and as well as entitlements, employment benefits in the possession of or to the entitlement or benefit of such party at the date of these orders.
3. That the respondent be declared to have the sole right title and interest in the contents of the house located at H Street, Suburb D NSW. Pursuant to rule 19.08 of the Family Law Rules or otherwise, the applicant pay the respondent's' costs in relation to and incidental to the Application or the Amended Application on an indemnity basis or otherwise on a party/party basis.
On 4 March 2021 the matter came before Registrar Mordaunt who made the following orders and notations:
THE COURT ORDERS, DIRECTS AND NOTES THAT:
1.I note that this matter was listed before me today for an adjourned Conciliation Conference which was unable to proceed.
2.That the Respondent’s costs of today thrown away be paid by the lawyers for the Applicant as agreed or assessed.
3.All applications are listed before Registrar Turner at 12.30 am on 17 March 2021 for directions.
Notations
4.The Court notes the following:
· The lawyers for the Applicant was not in attendance at 10 am when the conference commenced and did not attend until contacted by the lawyer for the Respondent.
· Once the lawyer appeared they were unable to contact the Applicant.
· The Conciliation Conference was then abandoned after an hour.
· The parties lived in a de facto relationship and the Respondent alleges they separated in 2012 and the Applicant is out of time to commence proceedings.
· The Applicant asserts that the parties separated in July 2017.
· There is one child of the relationship namely X born in 2005 and the parties settled the parenting proceeding by consent on parenting proceedings [sic] were settled on a final basis on 27 November 2019.
· The matter requires a judicial determination.
(As per the Original)
On 6 May 2021, Judge Boyle listed the matter for a discrete hearing on the wife’s dismissal application and issued trial directions.
The matter proceeded over 2 days on 15 July and 22 July 2021.
EVIDENCE AND ORDERS SOUGHT
At the commencement of the hearing the wife sought that:
(a)Pursuant to s 44(5) of the Act the Amended Initiating Application filed on 10 November 2020, or each order sought in the Initiating Application be dismissed, and any application for leave sought under s 44(6) of the Act be dismissed; or
(b)The Initiating Application be dismissed under r 10.12 of the Family Law Rules 2004 (Cth), or otherwise, as it has no reasonable prospects or likelihood of success.
In support of her case the wife relied upon:
(a)Case Outline Document filed 12 July 2021;
(b)Amended Response filed 25 June 2021;
(c)Affidavit of TMs Giang filed 25 June 2021;
(d)Financial Statement filed 28 February 2021;
(e)Orders of Judge Boyle dated 27 November 2019; and
(f)Orders of Judge Harper dated 9 January 2018.
The husband submits that the parties did not separate on a final basis until around September 2017, and therefore by instituting proceedings on 17 October 2017 he filed within the standard application period. He asserts his application seeking an alteration of the parties’ property interests is bona fide, and has reasonable prospects of success. Accordingly, he seeks a dismissal of the wife’s application.
In support of his case the Husband relied upon:
(a)Case Outline Document filed 15 July 2021;
(b)Affidavit of Mr F filed 14 July 2021;
(c)Affidavit of Mr Chang filed 6 July 2021;
(d)Affidavit of Ms Giang filed 25 June 2021;
(e)Affidavit of Ms Giang filed 28 February 2021;
(f)Affidavit of Mr Chang filed 26 February 2021; and
(g)Affidavit of Ms Giang filed 15 March 2018.
The following tenders were received:
(a)Affidavit of Mr Chang filed 6 July 2021 (Exhibit One);
(b)Affidavit of Mr Chang filed 26 February 2021 (Exhibit Two); and
(c)Affidavit of Mr Chang filed 17 October 2017 (Exhibit Three).
The parties relied upon oral submissions to support the positions taken in their Case Outline Documents.
The Court listed the matter for a half day in person hearing with language D and language E interpreters required by the wife and husband respectively. The hearing proceeded electronically via Microsoft Teams due to restrictions arising from the 2021 New South Wales COVID-19 Government Orders. As a result, the hearing did not conclude on 15 July 2021 but continued into a second day on 22 July 2021.
CREDIT
The wife
From the commencement of proceedings in 2017 until 2021, the wife’s case appeared to be that the parties had a troubled relationship from 2010 onwards, but that the relationship did not cease until sometime in 2016.
In February 2021 after instructing new legal representatives, the wife changed her case by alleging that the parties had separated in 2012.
In the wife’s affidavit filed 15 March 2018 at paragraph 15 she swore that “we remain [sic] on and off from the period of 2012 to 2017. Often, we separated due to Mr Chang’s abusive nature”. Then at paragraph 28 she stated, “We had a physical confrontation in 2016 which ultimately caused us to officially cease our relationship”.
At paragraph 30 when discussing the husband’s departure from the shop she stated, “[w]e mutually agreed for his departure due to the official ceasing of our relationship”.[4]
[4]Affidavit of Ms Giang filed 15 March 2018, paragraph 30.
The wife’s version of events changed considerably in her affidavit filed 28 February 2021, being the first occasion that the wife asserts the husband initiated the proceedings outside the standard application period. In support of her changed position, the wife inconsistently swore that the relationship ended in 2011, and that she never resumed an intimate relationship with the husband on her return to Australia in 2010.[5] In her affidavit filed 25 June 2021, the wife inconsistently swore that separation took place in 2012.[6]
[5]Affidavit of Ms Giang filed 28 February 2021, paragraphs 96, 123-124.
[6]Affidavit of Ms Giang filed 25 June 2021, paragraphs 55, 65.
In her affidavit of 28 February 2021 at paragraphs 123 and 124, the wife explained she adopted this new position because:
123.As soon as I engaged the legal service of Andy Pham Lawyers, my lawyer had immediately advised me that the applicant could not establish his equitable interest as my partner, as I had never resumed my intimate relationship with him after my return to Australia.
124.I affirm the above statement simply because my former solicitors had never explained to me carefully in such a way which I could understand the previous Affidavits, the substantive matters, the merits or the legal meaning of the language used in response to the Initiating Application instigated by the applicant.
The following relevant factors were considered when assessing the inconsistencies in the wife’s evidence:
(a)The wife is from a non-English speaking background;
(b)The wife is relatively unfamiliar with the Australian legal system;
(c)The wife was instructing her lawyers with the assistance of interpreters; and
(d)She may not have understood the legal tests for determining separation when giving those instructions.
Notwithstanding these factors, the explanation provided in the wife’s affidavit does not adequately explain the inconsistencies.
When cross-examined about it she said that her previous lawyer “Didn’t go over with me whether it was correct or not and said, ‘Here. Sign it’”. She said her current lawyer “went through everything carefully with me and explained everything and then I signed it.”
Further, the wife’s affidavit material provided different, and at times florid, accounts of the relationship. At the conclusion of the hearing the matters alleged within the wife’s affidavit material remained unsupported by independent evidence.
As a witness, the wife appeared to give evidence that would best support her case. For example, the husband attached over 100 photographs to his affidavit. The photos depict the parties enjoying holidays and celebrations together between 2009 and 2017. Counsel for the wife put to the husband “a large proportion of them were taken prior to 2010”,[7] and during cross-examination “before 2012”.[8] This was despite X appearing to be at quite different ages in the photographs.
[7]Transcript 15 July 2021, p.20.
[8]Transcript 15 July 2021, p.47-51.
For these reasons, I treat the wife’s evidence with great caution.
The husband
The husband was not an impressive witness. He was unresponsive to a large number of questions and volunteered unrequested information. Some of his answers were inconsistent with his pleadings. He had no clear recollection of areas of his evidence such as his bankruptcy, Centrelink payments, and sole parenting payments. This gave the impression that the husband’s memory was selective.
Therefore, I also treat the husband’s evidence with caution.
ISSUES
The issues for determination are:
(a)The date of separation for the purposes of establishing if the husband instituted proceedings within the standard application period pursuant to s 44(5)(a)(i) of the Act. This will enable the Court to declare when the de-facto relationship ended pursuant to s 90RD of the Act;
(b)If determined that the husband’s Initiating Application was filed outside the standard application period, whether the husband should be granted leave to continue the proceedings pursuant to s 44(6) of the Act; and
(c)Whether the husband’s Initiating Application be dismissed on the basis that it does not have a reasonable likelihood of success?
WHEN DID THE PARTIES SEPARATE?
The wife’s position
The wife argues that the parties were in a de facto relationship from November 2000 until sometime in early 2012.
The wife says she was a victim of domestic violence throughout cohabitation, which often arose when the wife expressed concerns about the husband’s gambling addiction. In 2010, the wife ceased sexual relations with the husband and separated their financial arrangements.[9]
[9]Affidavit of Ms Giang filed 25 June 2021, paragraph 52.
The wife purchased the shop in Suburb C in 2012. The wife did not hire the husband to work at the shop but he spent time there. In 2014, the wife purchased a house in Suburb D in her sole name. She rented a room to the husband so that he could see X on a regular basis. The wife submits she predominately lived at the shop while the husband lived at the Suburb D property.
The wife’s legal representative argued that there is no evidence that an ongoing relationship existed in any meaningful way beyond 2010. The husband made no financial contributions, and their living arrangements were separate. Further, the wife submitted that the social engagements and travels shared post separation resulted from the husband’s forceful and controlling behaviour, which ultimately prevented her from moving on with her life.
The husband’s position
The husband argues that the wife’s claims are demonstrably untruthful considering the emerging evidence of the relationship since the commencement of the proceedings. He submits the wife provides no evidence supporting that the parties lived in separate residences from 2010 onwards.
The husband maintains that due to his bankruptcy in 2010, all property had to be in the wife’s name and this in no way reflects his contributions such as working in the shop.
Furthermore, the husband says that the parties lived together and travelled together as a family. He relied on the various displays of family photos both at home and posts on social media to demonstrate the existence of the de facto relationship until separation in 2017.
THE LAW
Where it is determined that a de facto relationships exists in accordance with s 4AA(1) of the Act, an order pursuant to s 90SM can only be made if the Court is satisfied of the existence of one of the four following criteria in s 90SB of the Act:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship, see section 90RB.
The s 90SB criteria is satisfied by the undisputed fact that X is the child of both parties to the relationship.
Section 44(5) requires that:
5.Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)The application is made within the period (the standard application period) of:
(i)2 years after the end of the de facto relationship; …
(As per the original)
As the husband is the applicant, he bears the onus of establishing the date of separation. He must establish on the balance of probabilities that separation occurred within 2 years of the commencement of the proceedings.[10] The husband initiated the proceedings on 17 October 2017. Therefore, the husband must establish that the date of separation occurred after 17 October 2015.
[10]Mayson & Wellard (2021) FLC 94-034 at [30].
Subsection 4AA(1)(c) of the Act specifies that a de facto relationship exists if the parties “have a relationship as a couple living together on a genuine domestic basis”. Pursuant to s 4AA(2) of the Act this may be determined by a court having regard to the following circumstance:
(2)…
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children; and
(i)the reputation and public aspects of the relationship.
Subsection 4AA(4) of the Act provides the court with discretion as to the weight attached to the circumstances detailed in s 4AA(2), and any other matters considered relevant by a court. Subsection 4AA(4) provides:
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In Mayson & Wellard (2021) FLC 94-034 at [43] (“Mayson & Wellard”) the Full Court identified the approach in Clarence & Crisp (2016) FLC 93-728 (“Clarence & Crisp”) as the correct approach for determining whether, and when, a de facto relationship has ended. In Clarence & Crisp the Full Court provided:
51.Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]:
56.… a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist.
52.Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation…
(As per original)
The Full Court further provided in Mayson & Wellard at [41] that it is not necessary to “specifically enquire as to whether an intention to separate was formed, and that intention acted upon and/ or communicated to the other party”. However the Full Court clarified at [46] of Mayson & Wellard that:
46.… if an intention to end a de facto relationship can be identified, that is still powerful evidence to be taken into account under s 4AA, and particularly s 4AA(4) of the Act (Radecki & Fairbairn (2020) FLC 94–001 at [29]).
The factors set out in s 4AA(2) will be considered to determine when the parties stopped living together on a genuine domestic basis.
The duration of the relationship
The parties agree that they commenced a bona fide relationship in Sydney in 2000 and began living together shortly after that. X was born in 2005. In 2008, the wife and X returned to Country B and the wife applied for permanent residency in Australia. The wife returned to Australia in 2009 and it appears that the de facto relationship continued on her return.
The nature and extent of their common residence
The parties gave differing and often conflicting accounts of their residential arrangements.
The wife swore in her recent affidavit material that she lived in shared accommodation separate from the husband following her return to Australia.[11] In her affidavit filed 15 March 2018 at paragraph 14 the wife said “…we separated in 2010 but still resided at the same residence due to our financial situation”. When asked under cross –examination what was the first address she returned to in Australia the wife said “J Street, Suburb K”, and confirmed that she lived with the husband at this time.[12] The husband said the wife and child resided with him in Suburb K and that he paid the rent.
[11]Affidavit of Ms Giang filed 25 June 2021, paragraph 48; Affidavit of Ms Giang filed 28 February 2021, paragraph 51.
[12]Transcript 22 July 2021, p.38 lines 5-10.
In 2011, the parties moved to L Road Suburb M with the husband’s father. Under cross-examination, the wife said after L Road, “We didn’t go together to another address”.[13]
[13]Transcript 22 July 2021, p.38 lines 25-30.
The husband says he, the wife and X then moved with his father to G Street Suburb C in 2012.
In 2014, the wife purchased in her sole name a 5-bedroom home in Suburb D. It is undisputed that the wife’s parents, the child, and the husband resided at the Suburb D property. The husband says he continued to reside in Suburb D until December 2017.
The wife says she lived at the shop between 2012 and 2021, but visited Suburb D often to take the child to school. It was put to the wife in cross-examination that there was no habitable room available at the shop. She said there was one upstairs. It was put to her that she leased out the room upstairs to someone else. She said when it was leased she slept in a small room in the garage.[14]
[14]Transcript 22 July 2021, p.41 line 25.
Notably, neither party tendered evidence to support either case.
The father exhibited to his affidavit a range of photos he said were taken in the home at Suburb D on a birthday in 2013 or 2015.[15] The photos show the family looking happy together, and in the background, you can see the walls of the Suburb D home adorned with large photos of the couple and their family.
[15]Affidavit of Mr Chang filed 6 July 2021, Annexure A pages 19-23; Transcript 15 July 2021, p.63 line 10; Transcript 22 July 2021, p.24 line 30.
Further annexed to the husband’s affidavit were a series of “marriage photos” hung in the Suburb D property.[16]
[16]Affidavit of Mr Chang filed 6 July 2021, Annexure B.
Whether a sexual relationship exists
The wife says that all sexual relations between the parties ended in 2010.
The husband said while the parties had an on again and off again relationship between 2012 and 2017, they continued to have sexual relationship until July 2017.[17]
[17]Affidavit of Mr Chang filed 17 October 2017, paragraph 8.
The wife admitted the parties shared a hotel room with X when the parties travelled together overseas on annual holidays but said they slept in different beds.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
The husband’s evidence was that he went into bankruptcy in 2010, and that the wife expressed concern at being liable for his debts at this time. The wife asked for a separation and he agreed to live separately under one roof. He gives no timeframe for this event but states that he did this to protect her from his debts.[18]
[18]Affidavit of Mr Chang filed 17 October 2017, paragraph 7.
The husband claimed a parenting allowance from Centrelink in 2012 on the basis that he was living separately from the wife. He says that he did so on the wife’s suggestion.
The wife says she transferred a car to the husband after he filed for bankruptcy so he could assist with transporting X.[19]
[19]Affidavit of Ms Giang filed 25 June 2021, paragraph 77.
When the wife purchased the shop in her name in 2012, the husband brokered a $30, 000 loan from a friend Mr F, and a $10,000 loan from his father to contribute towards the purchase cost.
The parties dispute the husband’s contributions towards the shop. The wife variously says that he “would regularly visit the shop”,[20] that he “worked there for 2 hours each morning”,[21] and that he visited but did no work for the shop.[22] The husband variously says “We both worked there full time… I worked there until about May 2017”.[23]
[20]Affidavit of Ms Giang filed 25 June 2021, paragraph 81.
[21]Affidavit of Ms Giang filed 15 March 2018, paragraph 25.
[22]Affidavit of Ms Giang filed 25 June 2021, paragraphs 80-81.
[23]Affidavit of Mr Chang filed 17 October 2017, paragraph 10.
The wife alleges that the husband did not contribute towards the household expenses or the costs associated with the child. The wife said that the parties had an agreement about the financial arrangements for the shop where “I will solely run the business, in exchange, I would pay for all future expenses such as food, rent, registration and car insurance.”[24]
[24]Affidavit of Ms Giang filed 15 March 2018, paragraph 20.
There is no dispute that the wife paid the husband $60,000 in 2017. However, the parties dispute the purpose of that payment. The husband says it was an unfair amount, but the purpose was to pay him out.[25] The wife said it was a “token of peace”, paid so that the husband would leave her and X alone.[26]
[25]Affidavit of Mr Chang filed 17 October 2017, paragraph 10.
[26]Affidavit of Ms Giang filed 28 February 2021, paragraph 117.
The husband asserts that Suburb D property was purchased using proceeds from the shop.
The wife complains that the husband “only paid a total of $800 in rent” for staying in Suburb D.[27] The husband says this sum was agreed to after separation in July 2017, and that he ceased those payments when he moved out in December 2017.
[27]Affidavit of Ms Giang filed 25 June 2021, paragraph 62.
The wife appears to have funded the costs of travel and hotels for the annual international holidays taken as a family unit.
The ownership, use and acquisition of their property
The parties accumulated no property in joint names, nor did they have a joint bank account. The husband asserts that due to his bankruptcy status he reached an agreement with the wife that all property be in the wife’s sole name.
The evidence tends to suggest that the wife controlled the finances for at least the shop and the Suburb D property.
The degree of mutual commitment to a shared life
Both parties at times have alleged that they had an ‘on again off again’ de facto relationship. The husband describes their relationship in this way between 2012 and July 2017.
From the purchase of the shop in 2012, the husband was present at the shop on a regular basis. He maintains that he “devoted himself worked [sic] 5 years for free at the shop because he looked it as the common financial undertakings”.[28]
[28]Husband’s Case Outline Document filed 15 July 2021, paragraph 7.
The parties gathered as a family group to celebrate special occasions such as birthdays. The wife says this was for the sole benefit of X.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship was not registered. Separation was registered by virtue of the Centrelink benefits received by the husband.
The care and support of children
Between 2012 and 2017, the husband regularly transported X to and from school and provided for his day-to-day care and support.
No evidence was led that the school was advised of the parties’ separation.
The reputation and public aspects of the relationship
The wife says that the parties led separate lives but that:
81.Due to their age the applicant and my parents would spend time together. The applicant would regularly visit the shop and hang around with my parents. The applicant assisted in taking my parents to the local post office and the local banks [sic] bank accounts or paying bills.[29]
(As per the original)
[29]Affidavit of Ms Giang filed 25 June 2021, paragraph 81.
The husband annexes to his affidavit a range of photographs taken between 2009 and 2017. Those photos depict the parties presenting as a family group to the outside world.
The parties regularly posted photos of themselves on social media, especially during their travels.
The parties regularly travelled internationally together with the child. For example in 2016, the parties travelled with the child to City N, and in 2014 the parties travelled to Country B.[30]
[30]Affidavit of Mr Chang filed 6 July 2021, annexure C page 113.
In 2016 the parties travelled to Country B and a party was arranged to celebrate their 15 year anniversary. Annexed to the husband’s affidavit are photos of the occasion.[31] Not only do the parties appear to be happy celebrating together, but many others join them.
[31]Affidavit of Mr Chang filed 6 July 2021, Annexure A pages 30-33.
Annexed to the husband’s affidavit is a hotel receipt showing that the parties stayed in one room of a hotel when they travelled.[32]
[32]Affidavit of Mr Chang filed 6 July 2021, Annexure C page 115.
The wife submitted that she only travelled with the husband because he had placed the child on the Airport Watchlist, refused to allow her to travel alone with X, and insisted that he travel with them.
The husband maintained that X was only placed on the Airport Watchlist in 2017/2018 after the parties separated and the Court proceedings had commenced, because he wanted to ensure that the child returned to Australia.
CONCLUSION
I am satisfied that the parties commenced cohabitation in 2000, and that their relationship subsisted as a genuine de facto relationship under the Act from 2000 until it broke down.
One of the primary issues is when the relationship between the parties concluded. The wife argued that she was unable to evidence an earlier date of separation due to the control that the husband exercised over her and the way he had enmeshed himself into not only her life but her parents as well.[33]
[33]Transcript 22 July 2021, p.63 lines 20-25.
The Full Court in Mayson & Wellard at [48] cautioned against requiring evidence of intent to separate in matters involving family violence:
40.Of course, as submitted by the appellant, any consideration of when and how she communicated her intention to separate must be undertaken against a background of there being severe domestic violence and sexual assaults rendering the appellant in fear for her life and intimidated by the respondent.
The wife has consistently asserted that the relationship was one characterised by family violence. In her 2018 affidavit, she complained of the husband’s “abusive” nature and said that at the mention of separation the husband would “become aggressive and threaten to kidnap my son away. I lived in fear that this would happen, so I put up with his abusive ways”.[34]
[34]Affidavit of Ms Giang filed 15 March 201, paragraph 23.
In her affidavit filed 28 February 2021 at paragraph 17, she explained that her cultural and family values and youth led her to tolerate the behaviour of the husband.
Despite describing the husband as violent, abusive, and domineering she provided very few examples of what she actually experienced in terms of timeframes, location of incidents and their impact on her. She explained that she was working hard and found accessing services difficult. I accept that life for a young Country woman with a child to raise, and a business to run would be difficult. However, this lack of detail meant that husband was unable to challenge the allegations under cross-examination.
In Mayson & Wellard the de facto wife provided evidence of her being threatened every time she expressed an intent to separate. The Full Court found that this was sufficient evidence to establish that the wife communicated her intent to separate. In this case, the wife did not particularise circumstances where this had occurred. It would appear that the level of enmeshment of the parties financially, domestically, and socially meant that even if the wife had communicated this to the husband, it was not a consistent articulation of intent by the wife.
Having considered the matters set out above, I find that the parties separated in around July 2017 as alleged by the husband. In making this finding I have been influenced by the following indicia:
(a)The development of an intention to separate. This was a relationship of 17 years duration. During that time, there were clearly difficulties between the parties and periods of separation. However, it was not until 2017 that the parties formally took steps to end all aspects of the relationship. Steps taken to demonstrate the finality of the relationship include:
(i)the financial payment of $60,000 by the wife to the husband to allow him to move on;
(ii)the wife locking the shop to the husband;
(iii)the husband starting to pay rent in Suburb D and ultimately vacating the property;
(iv)the husband initiating proceedings for an adjustment of his interests in the de facto property.
On this basis in 2017 there was both an intention formed to separate, a communication of that intent and steps taken to act on it. There is no evidence of these three elements earlier than July 2017.
(b)I do not accept the wife’s evidence that after 2012 she did not live in the same house as the husband. Suburb D was clearly purchased by her with a view to it being at least the primary residence for her parents and the child. The family photographs displayed on the walls in Suburb D after 2012 also support this conclusion. While the hours associated with operating a shop might have seen the wife staying overnight there from time to time, I find that she was residing in Suburb D and that the shop was not her principle place of residence.
(c)While all property was in the wife’s name, I accept that this was done to protect the family wealth from the husband’s bankruptcy. The parties until 2017 appeared to have a degree of financial dependence or at least interdependence between them evidenced by the funding of their travels, the use of motor vehicles, contributions made to the shop and home, and accommodation arrangements.
(d)Until 2017, there was a degree of commitment to a mutual life. The husband assisted in the shop, attended family celebrations, provided assistance and companionship to the wife’s parents, was involved in X’s daily arrangements, and lived with the extended family.
(e)The photographic evidence annexed to the husband’s affidavit provides powerful evidence that the parties presented as a couple and happy family until 2017. The photographs from 2016 of the parties celebrating their 15th wedding anniversary in Country B provided perhaps the strongest example of this. The wife’s evidence on the party was evasive, but she ultimately admitted that there was a large party in Country B to celebrate their 15-year union.
(f)The wife clarified that the celebratory party was “something my parents arranged I felt I had to participate in”.[35] This evidence was difficult to accept considering the wife’s parents had been living in Australia since 2013 in the same home as both the husband and the child (and the wife if the husband’s evidence is accepted). The wife was unable to explain how, in the context of the disharmony, discontent and unhappiness in the marriage that she deposed of, it came to be that the wife’s parents went ahead and organised the very public 15th wedding anniversary celebration.
(g)The onus to prove the date of separation rested with the husband. He was required to establish to the civil standard that separation occurred within 2 years prior to the commencement of the proceedings. His affidavit evidence did establish that on the balance of probabilities separation occurred in 2017.
(h)The wife challenged his evidence and relied upon:
(i)Allegations of family violence. This was uncorroborated evidence. The wife did not call available witnesses, such as her parents who lived under the same roof. Nor did she tender police records or medical evidence. There were no dates, times, or locations of the incidents provided. She pleaded that she had to travel with the husband because he was coercive and controlling, and would not let her leave the country unless he accompanied her. She gave evidence that she was unable to travel without the husband as X had been on the Airport Watchlist since 2011 except on an occasion where the parties consented to allowing X to travel with the maternal grandparents. This did not establish her proposition. She led no evidence explaining how X’s name was placed on the Airport Watchlist, and how the Airport Watchlist alert was not triggered every time they travelled with him.
(ii)The husband’s receipt of a single parenting allowance. While the husband commenced receiving a parenting allowance from Centrelink in 2012, this is not definitive proof that the parties had separated on a permanent basis from that time onwards. Neither party subpoenaed or tendered evidence detailing the period that the husband received the allowance.
(iii)That the parties held all property separately in their sole names. I accept this but find that this was to protect the wife and her parents from any actions taken by the husband’s creditors arising from either his bankruptcy or history of gambling.
[35]Transcript 22 July 2021, p.28 line 45.
I find that from 2017 there were clear and unequivocal steps taken to bring the relationship to an end because:
(a)The husband was paid an amount of money and stopped coming to the shop;
(b)The husband started paying rent and then moved out of the home in Suburb D;
(c)The maternal family stopped socialising with the husband;
(d)The family did not travel together again;
(e)Court proceedings were commenced; and
(f)The husband’s relationship with X broke down.
Therefore, I accept the de facto relationship concluded in around July 2017.
SHOULD THE COURT EXERCISE DISCRETION TO GRANT AN EXTENSION OF TIME?
The Court has discretion under s 44(6) of the Act to grant an extension of time where a party files outside the standard application period. This is unnecessary given the above findings.
DOES THE APPLICATION FILED BY THE HUSBAND HAVE A REASONABLE LIKELIHOOD OF SUCCESS?
The wife seeks a dismissal of the husband’s Application for Final Orders under r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 10.09(d) of the Rules is the equivalent of 13.10(a) and came into effect on 1 September 2021.[36]
[36]The respondent wife relies upon what was formerly Rule 10.12 of the Family Law Rules 2004 (Cth).
The Law
Rule 10.09 provides:
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
Rule 10.11 provides that:
(1)On an application under this Part, the court may:
(a) dismiss any part of the proceeding; or
(b) decide an issue; or
(c) make a final order on any issue; or
(d) order a hearing about an issue or fact; or
(e) with the consent of the parties, order arbitration about a proceeding or a part of a proceeding.
In Friar & Friar [2011] FamCAFC 71 (“Friar”) the Full Court observed that the power of a court to order summary dismissal is discretionary and relief of this kind should only be provided on rare occasions. Citing Beck & Beck (2004) FLC 93-181 the Full Court in Friar at [8] summarised the applicable principles when determining a summary dismissal application:
…
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial”…
The wife argues that I should summarily dismiss the husband’s application on the basis that the husband would be unlikely to receive an adjustment of more than the $60,000 he already received from her.
The wife deposes owning Suburb D with a value of $850,000. She values her share in the shop at $50,000. She alleges a mortgage subject to Suburb D in the sum of $540,000. Taken at face value, the property pool has a net value of $360,000. A share as small as 20% would see the husband entitled to $72,000. The wife argues that he would be entitled to no more than the $60,000 already received.
The problem with this argument is that it requires the Court to make an early determination of a range of matters including financial and non-financial contributions, and the future needs of the parties.
It has taken the wife three years to make this application despite this matter being before the court since 2017, the benefit of court events and orders for disclosure. The proper course is for the application for an adjustment of interest in property to be set down for and determined at a final hearing.
COSTS
The husband has flagged that he seeks an order for his costs.
Pursuant to s 117(1) of the Act each party to proceedings should bear his or her own costs. However, s 117(2) of the Act allows the Court to make a cost order if the Court is of the opinion that there are circumstances justifying a costs order.
The Court has allocated two days of time to this threshold issue. The wife has been wholly unsuccessful. It has meant that both parties have now incurred legal fees better spent on reaching a final determination.
Pursuant to r 12.13(3)(a) of the Rules an application for costs may be made at any time during a proceeding. Rule 12.13(5) provides:
(5)In making an order for costs in a proceeding, the court may set a time for payment of the costs, which may be before the proceeding is concluded.
The husband has not quantified his costs. Nor has the wife been given the opportunity to consider his costs and make submissions as to the appropriateness or otherwise of a costs order being made.
On that basis, I will direct the husband to quantify the costs incurred by the wife’s application and serve it on the wife. I will reserve making a determination on the issue of costs to the final hearing.
| I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. |
Dated: 25 October 2021
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