Dahl & Hamblin
[2011] FamCAFC 202
•13 October 2011
FAMILY COURT OF AUSTRALIA
| DAHL & HAMBLIN | [2011] FamCAFC 202 |
| FAMILY LAW – APPEAL – De facto relationship – whether the Federal Magistrate erred in making a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship of at least two years existed between the parties – whether the Federal Magistrate erred in determining that two periods during which parties agreed they had been in a de facto relationship could be aggregated for the purpose of determining the two year period necessary to enable orders for the alteration of property interests to be made – where the Full Court considered whether the use of the word “periods” in s 90RD(2) and s 90SB(a) of the Family Law Act 1975 (Cth) meant that where there had been a breakdown in a relationship, the periods could be aggregated so that there was only one relationship between the parties – where the Full Court considered whether a period of the relationship which ended prior to the commencement of Part VIIIAB of the Family Law Act 1975 (Cth) could be included in the aggregation of the periods for the purpose of establishing the two year period – no appealable error established – appeal dismissed. FAMILY LAW – COSTS – no order for costs in relation to the appeal. |
| Family Law Act 1975 (Cth): s 90RD, s 90SB Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 |
| Delany v Burgess (2008) DFC 95-412 Pearce & Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Australia, 2011 |
| APPELLANT: | Ms Dahl |
| RESPONDENT: | Ms Hamblin |
| FILE NUMBER: | LEC | 108 | of | 2010 |
| APPEAL NUMBER: | NA | 67 | of | 2010 |
| DATE DELIVERED: | 13 October 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Coleman and Austin JJ |
| HEARING DATE: | 8 August 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 May 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 514 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gordon |
| SOLICITOR FOR THE APPELLANT: | BL Crane & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | GJ Legal Solicitors |
Orders
The appeal against the order made by Federal Magistrate Demack on 24 May 2010 be dismissed.
There be no order for costs in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Dahl & Hamblin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 67 of 2010
File Number: LEC 108 of 2010
| Ms Dahl |
Appellant
And
| Ms Hamblin |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Ms Dahl against a declaration made pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) by Demack FM on 24 May 2010 being that a “de facto relationship of at least two years existed” between the appellant and Ms Hamblin. Ms Hamblin had been the applicant for the declaration and is now the respondent to this appeal.
That a de facto relationship has existed for at least two years is a factor which alone is sufficient to empower a court exercising jurisdiction under the Act, to make orders under certain provisions of Part VIIIAB of the Act.
Part VIIIAB is concerned with financial matters relating to de facto relationships. It was inserted into the Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (“the amending Act”). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009.
In this case proceedings had been initiated by the respondent against the appellant on 25 February 2010 for orders for alteration of property interests under Part VIIIAB.
On 24 May 2010 those proceedings came before Demack FM. It was agreed on that day that her Honour should determine as a preliminary point (and on the papers save for oral evidence from one witness) whether two periods during which the parties agreed that they had been in a de facto relationship could be aggregated for the purpose of determining the two year period necessary to enable orders for alteration of property interests to be made.
The two periods in which it was agreed that the parties had been in a de facto relationship were between March 1994 and December 1998, and between April 2008 and October 2009. The two agreed periods were thus almost 10 years apart.
For the purpose of making the declaration now appealed, her Honour determined that the two agreed periods could be aggregated to establish the two year period required for purposes of jurisdiction to make orders for alteration of property interests under Part VIIIAB.
The aggregation of “periods” to achieve the two year period
It can be said at the outset that Part VIIIAB (which contains s 90RA to s 90WA) certainly envisages that two or more periods can be aggregated for the purpose of determining the required two year period of a de facto relationship.
This much is clear from s 90RD which empowers a court to make declarations as to the existence of a de facto relationship and as to the length of that relationship (amongst other things), and which is the provision under which, as earlier mentioned, the declaration, the subject of this appeal, was made. Section 90RD provides (note omitted) (emphasis added):
(1)If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
That periods may be aggregated in order to establish the required two year period is also clear from s 90SB of the Act which confers jurisdiction on the court to make orders for maintenance (under s 90SE), urgent maintenance (s 90SG), alteration of property interests (s 90SM), or declarations of interests in property (s 90SL) after the breakdown of a de facto relationship. Section 90SB provides (note omitted) (emphasis added):
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)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.
It was on the basis of the “plain meaning” of the expression “periods” both in s 90RD(2)(a) and s 90SB(a) that in the present case Demack FM concluded, using “a beneficial interpretation”, that the required two year period necessary for jurisdiction had been achieved by adding together the periods to make the total. (See paragraphs 47, 49, 51 and 60 of her Honour’s reasons for judgment.)
Once it is accepted, as it must be given the language of s 90RD(2)(a) and s 90SB(a), that “periods” of “the” de facto relationship can be aggregated, the following two questions arise on the facts of this case, and are central to this appeal.
The first question is whether the use of the word “periods” in s 90RD(2)(a) and s 90SB(a), means that where there has been a breakdown in a relationship (on one or more occasions), the periods of the relationship are to be aggregated so that there will only be one de facto relationship between the same parties for purposes of Part VIIIAB.
The second question is whether a period of the relationship which ended prior to the commencement of Part VIIIAB can be included in the aggregation of periods for purposes of establishing the total two year period.
Will there be only one de facto relationship between the same parties under Part VIIIAB despite there being breakdowns in the relationship?
The first question arises in the present case because in paragraph 61 of her reasons, Demack FM posed the following questions:
61.But what if the separation was so marked and lengthy, and included one of the parties having a de facto relationship with another person? If there a [sic] complete breakdown in the relationship, how can different time periods be classified as one relationship?
Relying on observations made by Thackray J in L and C (2006) DFC 95-327, her Honour answered this question in the following way:
63.In essence, it seems to me, that if two people commence or renew a relationship, then absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. It would appear to be a fiction to suggest that two earlier intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous relationship. And it would seem, that within the realms of human experience, having another intimate relationship for either a short or longer time, in the midst of another relationship, is not of itself extraordinary. (Footnote omitted)
Then applying these considerations to the present case, her Honour said:
64.In this case, it should be remembered that although the parties ceased sharing a common residence in December 1999, from that time until the applicant commence [sic] her new de facto relationship with Ms [M] in 2006, the parties had maintained a relationship of some description. It is not a matter for this decision to clarify that relationship, but some relationship persisted during that time. In so much that it persisted, it provided an on-going link between the earlier and later periods of cohabitation that a ten year gap may not imply.
65.I cannot see that either the gap between periods of cohabitation, or the intervening de facto relationship between the applicant and Ms [M] have any extraordinary features which would draw me to the conclusion that these were two separate relationships.
In relation to these conclusions by her Honour, it must be pointed out that during the hearing of the appeal, it emerged that the only agreement between the parties in relation to the nature of their relationship in the period between December 1998 and April 2008 was that they were not in a de facto relationship in the period between May 2006 and April 2008; during that time the respondent was in a de facto relationship with the third party. Counsel for the respondent conceded before us that there was “a breakdown” in the parties’ de facto relationship in May 2006. But that concession does not assist in determining the question as to whether if after a breakdown there has been a resumption of the relationship, there is ultimately only one relationship for the purposes of Part VIIIAB.
In challenging her Honour’s declaration before us Counsel for the appellant sought to rely (particularly in his written submissions at paragraphs 10 to 18) on a line of decisions of the New South Wales Supreme Court which recognised that there can be discrete de facto relationships between the same parties and which require findings in relation to the intentions of the parties at the time a relationship (which was subsequently resumed) had previously ended. (See Hibberson v George (1989) 12 Fam LR 725; Lipman v Lipman (1989) 13 Fam LR 1; Howland v Ellis (2001) 28 Fam LR 656; and Delany v Burgess (2008) DFC 95-412.)
However, as we understood Counsel for the respondent to submit (at paragraph 17 of her written submissions) little real assistance can be gained from decisions on State legislation concerning de facto relationships for the reason that no State legislation contains the express and unqualified concept of “periods” of a de facto relationship which is used in the Commonwealth Act (as was explained by Demack FM in her reasons).
By the use of the word “periods” in s 90RD(2)(a) and s 90SB(a), Parliament must clearly have envisaged that a de facto relationship can breakdown and resume with the result that the original earlier period of the relationship and any resumed period (or periods) after other breakdowns are capable of aggregation to establish the total time of the relationship for jurisdictional purposes. If this was not the intention, why was the word “periods” introduced into the legislation?
Neither the legislation, nor the relevant Explanatory Memorandum, or Second Reading Speech, provide any assistance in answering the question as to whether, notwithstanding the use of the word “periods” in Part VIIIAB, there may be circumstances surrounding a period of separation in, or breakdown of, a de facto relationship, which would prevent a period after the resumption of the relationship being aggregated with a prior period or periods.
We find it difficult to accept that Parliament intended to impose on litigants and the courts the burden of establishing, or finding, whether in a given case, a particular breakdown in a relationship was such that a resumption of the relationship would have to be categorised as a new relationship, or that that breakdown was merely some form of dividing line between periods of the relationship.
Accordingly, we think that the better view must be that the introduction into Part VIIIAB of the concept of “periods” and thus the possibility of the aggregation of periods, must mean that for the purposes of Part VIIIAB there can only be one relationship, albeit in some cases broken into periods.
It is important to bear in mind in relation to our conclusion that there can only be one relationship, that the circumstances of the parties’ periods together and of their periods apart will be relevant considerations in determining what is a “proper” maintenance order or a “just and equitable” order for the alteration of property interests.
On this approach it would not matter that in the present case Demack FM may have been misinformed, or have misunderstood, what was the nature of the relationship between the parties in the interim period between the agreed periods. There can still be an aggregation of periods even if there was a breakdown of the relationship between the periods to be aggregated. Her Honour’s overall conclusion that there was but one relationship between the parties in this case must stand.
Can a period prior to the commencement of Part VIIIAB be included in the aggregated two year period?
A second issue which has arisen on this appeal but which was not adverted to by her Honour, is that the first period relied on in this case to establish the aggregated two year period occurred prior to the commencement of Part VIIIAB on 1 March 2009. This circumstance might not of itself necessarily be significant but for the transitional, or more correctly, application provisions for Part VIIIAB, which are contained in Item 86 of Part 2 of Schedule 1 to the amending Act.
Item 86 provides:
(1)Subject to item 86A, [Part] VIIIAB … of the new Act [does] not apply in relation to a de facto relationship that broke down before commencement.
Note 1:After commencement, State/Territory law will apply to any proceedings etc. to enforce, discharge, suspend, revive or vary an order or injunction in force at commencement in relation to the maintenance, or the distribution of property, of the parties to the de facto relationship arising out of the breakdown of the de facto relationship.
Note 2:After commencement, State/Territory law will continue to apply to any proceedings pending at commencement for an order or injunction in relation to the maintenance, or the distribution of property, of the parties to the de facto relationship arising out of the breakdown of the de facto relationship.
Note 3:After commencement, State/Territory law will continue to apply if the parties to the de facto relationship have made, or make, an agreement about financial matters arising out of the breakdown of the de facto relationship.
Note 4: Section 90UE of the new Act will not apply in relation to an agreement made, by the parties to the de facto relationship under a non‑referring State de facto financial law, about financial matters arising out of the breakdown of the de facto relationship. Such an agreement will not be affected by the new Act.
…
Item 86A relates to circumstances in which parties to a de facto relationship agree to the application of Part VIIIAB and is not presently relevant.
In written submissions to the Federal Magistrate, it was submitted on behalf of the appellant (as respondent to the application for the declaration):
The issue is whether or not the period where there has been a break prior to the implementation of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (“The De Facto Act”) may be included to form part of the aggregate. (See “Transitional Provisions 86 and 86A in Part 2 of the Schedule” of “The De Facto Act”).
In Vale & Crawford [2009] FMCAfam 1017, Slack FM stated at paragraph 7:
“The effect of Items 86 and 86A is to extend the operation of Part VIIIAB of the Act only to de facto relationships that did not break down before the commencement of the amendments unless the parties to the former relationship choose for them to apply in accordance with the specified requirements.”
Her Honour did not address this particular submission in her otherwise comprehensive reasons for judgment. But it is the issue of the operation of the application provisions in relation to the aggregation of periods which has become one of the central issues in this appeal.
Had the parties never resumed their relationship after May 2006, neither of them could have commenced proceedings for financial relief under Part VIIIAB. They would have been prevented from doing so by the provisions of Item 86 of Part 2 of Schedule 1. They would have to have resorted to State law for such relief.
The question is therefore whether one of the parties, who is now the respondent to the appeal, should be able to rely on a period prior to the commencement of Part VIIIAB to obtain what she must presumably see as the benefits of that Part when she could not have done so had the relationship not resumed?
Again no answer is to be found to this question in the Act, in the relevant Explanatory Memorandum, or in the Second Reading Speech. Nor has this question been expressly decided in any other case to which we have been referred, or been able to find for ourselves.
In Moby & Schulter (2010) FLC 93-447 Mushin J certainly aggregated periods prior to the commencement of the Act with a period after the amending Act in order to satisfy himself that the de facto relationship there in question had continued for a total period of at least two years. However, it appears from his Honour’s reasons that the question now before us, was not raised before, or considered by, his Honour.
The only case of which we are aware, in which a question somewhat analogous to the present has been addressed is L and C (supra), decided by Thackray J on 1 March 2005 when sitting as a judge of the Family Court of Western Australia.
In that case his Honour had to consider whether he could aggregate periods before and after commencement of amendments to the Family Court Act 1997 (WA) (“the Family Court Act”) concerning de facto property disputes for purposes of establishing the necessary two year period required before de facto property proceedings could be brought under the Family Court Act. His Honour described the issues before him in the following way:
3. [L’s] application is made pursuant to Part 5A of the Family Court Act. This Part permits parties to some failed de facto marriage relationships to make application to the Family Court of Western Australia for resolution of disputes regarding division of their property.
4. Section 205U provides that Part 5A “does not apply to a de facto relationship that ended before the commencement of this Part.” Part 5A came into effect on 1 December 2002, after [P] and [L] separated for the first time.
…
6.The dispute surrounds the application of Section 205Z, which provides as follows:
205Z(1) [Requirements to be satisfied]
A court may make an order in relation to a de facto relationship only if satisfied –
(a) there has been a de facto relationship between the partners for at least two years;
…
205Z(2) [Considerations to determine length of relationship]
In deciding whether there has been a de facto relationship between the partners for at least two years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and extent of the breakdown in the relationship.
…
Having so described the matter before him, his Honour referred to the lack of authority which could assist him saying:
8.In particular, I was not referred to any authority that might indicate whether the Court has jurisdiction in a case where the parties lived in a de facto relationship for more than two years prior to the commencement of Part 5A; separated before the commencement of that Part; but later lived again in a de facto marriage relationship for less than two years, which ended after Part 5A came into effect.
His Honour determined that he would approach the problem on the basis that the relevant amending legislation was remedial legislation in that it “was designed to overcome the complexities of equity and the cost of approaching the Supreme Court for relief, often in relation to estates of modest value”, and his Honour contended “[r]emedial legislation is to be given a beneficial construction”.
Then drawing attention to the use of the indefinite article in the expression “a de facto relationship” in both the opening words of s 205Z(1) and in paragraph (a) of that subsection, his Honour concluded that it would not be in accordance with the remedial intention of the Act “to read down the plain words of the section to deny relief to a party who undoubtedly lived in a de facto relationship for more than two years, and lived in such a relationship for some time after the reform legislation commenced”.
Thackray J then went on to support that conclusion by examining and accepting an argument that a de facto relationship which is ended at one point in time, but then is later resumed, should be described as only one relationship rather than as two discrete relationships.
In accepting this argument Thackray J acknowledged that in Lipman (supra), Powell J in the Supreme Court of New South Wales had reached the opposite conclusion. But Thackray J considered that Powell J’s decision was not binding on him, and could in any event be distinguished by reference to the time at which the question as to whether a de facto relationship had ended was asked.
As we observed in an earlier context, little real assistance can be gained in the present case from decisions such as Lipman (supra) and L and C (supra) given that those decisions concerned the application of provisions of differently worded legislation. Rather it is to the language of Part VIIIAB that recourse must be had.
As already explained the amending legislation, which inserted Part VIIIAB, expressly states that the Part should not apply to a de facto relationship which “broke down” before the Part commenced (Item 86 in Part 2 of Schedule 1). However, in relation to the two year qualifying period required for a relationship to exist before it can be the subject of financial proceedings under Part VIIIAB, no limiting description of when that period, or periods, might, or should, have occurred, has been imposed by the legislature. Nevertheless, we understand it to be well accepted that parties whose de facto relationship was in existence on 1 March 2009, but which subsequently broke down, have been able to avail of the new provisions provided their relationship extended over a period of at least two years where that period extended over that date. (See for example Cronin J’s decision in Vaughan & Bele [2011] FamCA 436.)
We therefore find it difficult to accept, at least in the absence of any clear statement to the contrary in the legislation, that the periods of a relationship which can be aggregated (under s 90RD(2)(a) and s 90SB(a)) for the purpose of establishing the required two year period cannot include periods prior to the commencement of Part VIIIAB on 1 March 2009, provided, of course, that the relationship existed for a period, or periods, after that date.
We have earlier acknowledged that had a relationship broken down prior to 1 March 2009 and not resumed after that date then the parties to that relationship could not avail of the provisions of Part VIIIAB. But when it is remembered that had the relationship been in existence at 1 March 2009 and then broken down very shortly after that date, the parties could have availed of Part VIIIAB (provided that the relationship had overall lasted at least two years), then given the reference in the relevant provisions to “periods”, the better view must be that periods prior to 1 March 2009 can be aggregated with periods after that time in order to establish the required two year period.
If it was intended that periods of a relationship, which occurred prior to the commencement date for Part VIIIAB, were not to be taken into account in aggregating the required two year period, it would have been an easy matter for the legislature to make this position clear particularly given that it was made clear that a relationship that had broken down prior to the commencement date was not covered by Part VIIIAB.
Conclusion
Thus our overall conclusion is that if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. It matters not at least for the purposes of establishing jurisdiction under s 90SB, how long ago the other period, or periods occurred, or what were the circumstances of any breakdown in the relationship (although as we have said, the circumstances of their periods together and of their periods apart will, of course, be important in the determination of a “proper” maintenance order or a “just and equitable” order for alteration of property interests).
It will be appreciated that the answers which we have given to the questions raised in this appeal concerning the intended meaning of the word “periods” in s 90RD(2)(a) and s 90SB(a), may well be categorised as representing a “beneficial” interpretation of those legislative provisions. But we consider that this approach is justified given the Attorney-General’s explanation in his second reading speech of the beneficial or remedial nature of the legislation, being that it was intended to “provide greater protection for separating de facto couples and simplify the laws governing them”. (See the discussion in Pearce & Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Australia, 2011 at [9.2].)
We do not consider that there is merit in the submissions made on behalf of the appellant (at paragraphs 31 to 44 of her Counsel’s written outline) to the effect that a remedial or beneficial interpretation of the legislation should not be employed in a case such as the present because such an interpretation will not benefit both parties, but rather will work detriment to the appellant. Rather it is the legislative intention to benefit the community as a whole which is the important consideration.
On our interpretation of the relevant legislative provisions, her Honour’s declaration must stand, and accordingly the appeal against it be dismissed. We do not consider that leave to appeal was necessary in this matter.
Notwithstanding the submissions made on behalf of the respondent to the contrary, we do not consider that the circumstances justify an order for costs in this case, particularly when regard is had to the nature of the questions raised in this appeal.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Coleman and Austin JJ) delivered on 13 October 2011.
Associate:
Date: 13 October 2011
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