DANIHER & GARLETT
[2014] FCCA 2961
•24 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANIHER & GARLETT | [2014] FCCA 2961 |
| Catchwords: FAMILY LAW – Property – de facto relationship – jurisdictional issue – whether the parties de facto relationship finally broke down in late 2007/early 2008 or in March 2011 – where the applicant signed Centrelink documents in 2008 and 2009 representing that the de facto relationship ended in February 2008 and that the parties thereafter lived separated under one roof – where the applicant and respondent applied to the Family Court for consent parenting orders in November 2008 and made the same representation – effect of those contrary representations – where the applicant alleged that she was coerced by the respondent into making untrue representations – whether the court can be satisfied on the balance of probabilities that the de facto relationship broke down on or after 1 March 2009. |
| Legislation: Family Law Act 1975 (Cth), s.4AA |
| Amador & Amador [2009] FamCAFC 196 Crandall & Crandall [2009] FamCAFC 120 Elias & Elias (1977) FLC 90-267 Jordan & Jordan (1997) FLC 92-736 Kazama & Britton [2013] FamCA 4 Nelson & Nelson (1995) 184 CLR 538 Norton & Locke [2013] FamCAFC 202 Owens & Benson [2014] FamCAFC 243 |
| Applicant: | MS DANIHER |
| Respondent: | MR GARLETT |
| File Number: | NCC 3233 of 2008 |
| Judgment of: | Judge Terry |
| Hearing dates: | 15 & 16 October 2013 and 14 March 2014 |
| Date of Last Submission: | 14 March 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 24 December 2014 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Haricharen |
| Solicitors for the Applicant: | Hunter Family Law Centre |
| The Respondent: | In Person |
ORDERS
The application for property settlement contained in the amended initiating application filed on 30 September 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Daniher & Garlett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3233 of 2008
| MS DANIHER |
Applicant
And
| MR GARLETT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 August 2012 Ms Daniher filed an application for property settlement. She asked the court to order that her former de facto partner Mr Garlett pay her $90,000.00 and relieve her of liability for a debt which in September 2013 stood at $36,000.00.
Ms Daniher alleged that the de facto relationship broke down in March 2011.
In his response filed on 19 October 2012 Mr Garlett, a self-represented litigant, proposed that Ms Daniher receive something albeit something different to what she wanted[1] but he asserted that the parties’ de facto relationship broke down in late 2007.
[1] Mr Garlett proposed that the terms of an agreement made on 28 February 2009 be carried into effect
This court does not have the jurisdiction to make orders for property settlement between former de facto partners unless the de facto relationship broke down on or after 1 March 2009.[2] Mr Garlett’s response therefore raised a jurisdictional issue.
[2] s.86(1) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008. S.86A makes provision for parties whose relationship broke down prior to 1 March 2009 to “opt in” to the new regime but the parties in this case did not agreed to do that.
Prior to the Full Court decision in Norton & Locke[3] which was handed down on 18 December 2013 it was not uncommon for de facto property claims in which jurisdiction was in dispute to be listed for one hearing and for the hearing to encompass both consideration of the jurisdictional issue and consideration of whether an adjustment of interests in property should be made. If the court determined that it had jurisdiction it would have the evidence available to determine the second matter at once thus saving the parties delay and the expense of another hearing.
[3] Norton & Locke [2013] FamCAFC 202
The property proceedings between Ms Daniher & Mr Garlett were listed for such a hearing in October 2013.
The hearing was not concluded in the allocated time and was adjourned to 14 March 2014 for further hearing.
No issue was taken by the parties in this case either prior to or after the decision in Norton & Locke about whether it was appropriate to conduct a concurrent hearing or whether it was appropriate to require the production and/or filing of certain documents. However it goes without saying that the jurisdictional issue must be determined first and if it is determined against Ms Daniher that will be the end of the matter.
The evidence
Ms Daniher (“the applicant”) relied on her amended initiating application, affidavit and financial statement filed on 30 September 2013. She also relied on a passage in the family report prepared by
Ms B for parenting proceedings between the parties.
Mr Garlett (“the respondent”) relied on his amended response, affidavit and financial statement filed on 20 September 2013. He also relied on the affidavits of Mr P, Mr B, Mr S, Ms M and [X] all filed on 20 September 2013.
The applicant, respondent and Ms B were cross-examined. None of the respondent’s witnesses were required for cross-examination.
The evidence of Ms B does not assist me.
Ms B prepared a Family Report in relation to parenting matters. She recounted what she believed to be the history of the parties’ relationship. She noted that there was a dispute about the date of final separation with the applicant asserting that it was in early 2011 and the respondent stating that it was in November 2007. She said as follows:
The father contradicted his own claims during his individual interview for the family report. For example, when discussing his concerns for the children’s safety with the mother the father said that he became more acutely concerned for the children “twelve months before separation….(around 2010/2011).” The family consultant highlighted the discrepancy to the father; however he maintained (when asked directly) that final separation occurred in 2007.[4]
[4] Exhibit J Family Report paragraph 10
Ms B then referred to information in subpoena material to which I shall also refer later.
Ms B simply noted what she considered to be discrepancies. It was not part of her brief to form a view about the date of separation. The statement she recounts the respondent making to her is equivocal in the circumstances of this case, as the parties on any view had two separations – one under one roof and one when the applicant physically left the [W] property – and the respondent maintained when asked directly that separation occurred in 2007.
I will have to come to my own conclusion about the date the de facto relationship broke down based on the material before me, which includes but is not limited to the subpoena material available to Ms B.
Save for [X] and then only to a small extent the respondent’s witnesses were not of assistance in respect of the jurisdictional issue.
Mr S was a neighbour of the parties when they lived at [G]. Mr S asserted that after mid-2002 the respondent and his son [X] lived on the bottom floor of the home (and by implication the respondent and the parties children lived upstairs) but this was not necessarily in dispute, at least for part of the period the parties lived at [G]. It was also not in dispute that the parties recommenced their de facto relationship in January 2007.
Ms M and Mr B were neighbours of the parties when they lived at [W] between 2007 and 2012. They gave evidence of seeing the respondent with the two children of the relationship but their evidence was of no assistance on the issue of when the de facto relationship between the parties finally broke down.
[X], the respondent’s now-adult son, said that there were two houses on [W] and that he and the respondent lived in one and the applicant in the other. This supported the respondent’s evidence on this point and contradicted the applicant’s evidence that the parties did not live in separate residences until March 2011.
It was notable that no witnesses were called in the applicant’s case to confirm the existence of an ongoing and mutually supportive relationship after late 2007, such as witnesses who had dinner with the parties or went on camping trips with them or who attested that they were known in the district as a couple.
Background
The parties met in Newcastle in late 1998. The applicant was 30 and had no children. The respondent was 37 and had a son [X] born [omitted] 1993 who was living with his mother in Queensland.
The parties formed a relationship and in early 1999 travelled around Australia together for 3 months in a campervan.
In April 1999 the parties commenced living in a house in [G] Queensland which was registered in the name of the respondent and his mother. They agreed that they were in a de-facto relationship as of April 1999.
The applicant asserted that the de facto relationship began in January 1999 when the parties began travelling together but this was disputed by the respondent.
I do not have sufficient evidence to determine this dispute one way or the other. It might simply be a matter of perceptions and nothing turns on which version is correct for the jurisdictional issue nor indeed for the issue of whether an adjustment of interests in property should be made. No critical events (such as a lottery win) happened during that three month period.
While living at [G] the parties had two children, [Y] born on [omitted] 2001 and [Z] born on [omitted] 2002.
The respondent was involved in Family Court proceedings with [X]’s mother after he returned to [G] and in August 2001 orders were made that [X] live with his mother and spend time with the respondent each alternate week from Friday to the following Wednesday and for half of the school holidays.
At some later point, possibly as late as 2005 and possibly earlier, [X] commenced living full time with the respondent at [G].
It was common ground that not long after the applicant moved to [G] she obtained work at [omitted] and that she was thereafter employed in some capacity or other at all relevant times save for two periods of maternity leave.
The respondent had suffered an injury prior to meeting the applicant and was in receipt of a disability support pension when the parties met. It was the applicant’s case and I accept that he was in receipt of Centrelink benefits at all relevant times.
In August 2002 the respondent’s mother transferred her interest in the [G] property to the respondent and he thus became the sole owner of the property.
The respondent alleged that he and the applicant separated under one roof after [Z]’s birth in 2002 and that thereafter and until [G] was sold in December 2006 he lived downstairs with [X] and the applicant lived upstairs with [Y] and [Z]. He asserted however that Centrelink would not accept the separation until October 2005 “forcing us to live on a combined payment rate.”[5]
[5] Respondent’s affidavit paragraph 9.1
The applicant agreed in her trial affidavit that the parties separated under one roof in December 2005 and lived separately and apart until October 2006 but did not admit to any earlier separation.
Nothing turns on this dispute for the purposes of determining the jurisdiction issue but for the purposes of credit it is worth noting that there is some support for the respondent’s contention in the documents.
On 30 May 2006 the applicant signed a statutory declaration in which she said as follows:
Mr Garlett and I separated in August 2002 we attempted to reconcile in April/May 03 until January 2004 have not lived together as a married couple since in my opinion we lived on separate floors of the home and do our own thing – working well for children and working better now Mr Garlett and [X] have their own money – I would like the arrangement to continue until [Z] starts school.
There was also in evidence a letter dated 8 January 2007 sent by a psychologist in the [G] area who had been seeing the applicant to a GP in which the psychologist said as follows:
I am writing to advise that Ms Daniher has ceased therapy as she has moved interstate with her partner Mr Garlett – as you will be aware Ms Daniher and her partner separated for several years but continued to live under one roof to care for the children. They have now decided to resume their relationship
The Centrelink “Assessment of Living Arrangements – Separated under one Roof” form signed by the applicant on 1 May 2006 is also of some relevance for reasons I will refer to later on. In the form the applicant said that she and the respondent each exclusively occupied an area of the home. She said that she paid rent of $80.00 per week and that she and the respondent each had their own vehicle and paid for their own food. She said that the arrangements for property settlement were that if she moved out she would take everything the top floor of the house and washing machine and dryer in the laundry and that the respondent owned everything on the bottom floor. She added that:
We are only living this arrangement for the children so that they can still have a mum and a dad. We are civil to each other for this reason only and so far it is working.
The respondent sold [G] in late 2006 and used the proceeds of sale to purchase in his sole name a property at [W].
The applicant maintained during the hearing that she helped select the property and that there was a discussion about her being on the title. The respondent denied this. Given the credit issues with the applicant generally which I shall refer to later I cannot prefer her version of events about these issues to that of the respondent. I cannot be satisfied that there was ever any common intention that the applicant’s name be on the title to the property and nothing was ever done by the parties to this end.
In January 2007 the applicant, respondent, [X], [Y] and [Z] commenced living on [W]. It was common ground that the parties decided to give their relationship another try and lived as a de facto couple upon their move to [W].
In January 2007 the structures on [W] were a shed and a cabin. In March 2007 the parties borrowed $60,000.00 from the Commonwealth Bank in joint names to finance renovations to the two structures. A further $20,000.00 was borrowed jointly in about August 2007 for the same purpose. The parties used the funds to convert the shed into a two bedroom dwelling with the effect that there were two dwellings on the property.
Events from late 2007
It was the respondent’s case that the parties finally separated in September/October/November 2007 and that from that point on the applicant lived in the converted shed which was referred to by the parties as the “main house” or “the home” and the respondent and [X] lived in the other dwelling which was about 30 metres away. He asserted that the parties shared the care of the girls equally.
Consistently with this assertion about the date of separation in March 2008 the respondent consulted Paul Stubbs, a solicitor, about parenting matters. A letter from his solicitor dated 2 April 2008 stated that the legal aid commission had granted him aid for a legal aid intervention conference. A further letter dated 17 September 2008 stated that Legal Aid had been unable to organise a conference.
It was the applicant’s case that this was part of a sham designed to persuade Centrelink that the parties were living separately and apart so that the respondent could retain his Centrelink benefits.
If it was a sham the applicant actively participated in it. On 7 April 2008 she signed a Centrelink form headed “Relationship Details – Separated under one roof.”
She gave the date of separation as 02/08.
In answer to the question on the form “How does your relationship differ from that of a married couple” she wrote:
we don’t sleep together, we don’t do anything together
The application stated that she paid $150.00 per week off the mortgage payments and would do so until property settlement was finalised adding “so I more or less pay rent.”
I note in passing that during the parties undisputed separation which ended in or about December 2006 the applicant confirmed to Centrelink that she was paying the respondent $80.00 per week rent for “the top floor of the property.”[6]
[6] Exhibit F
The applicant said in the form that the respondent and [X] lived in the flat and that the girls and herself lived in the home. She referred to the existence of the joint loan but said that when the parties ceased living on the same property:
He’ll take his stuff and I’ll take mine as we have agreed on
In answer to the question “Does he look after the children” she wrote:
He is their father of course he looks after them
The applicant declared that the contents of this document were true and correct, that she was aware that giving false and misleading information was a serious offence and that she was obliged to notify Centrelink of any changes in her circumstances within 14 days of the change occurring.
A file note from Centrelink which appears to have been obtained by the respondent pursuant to the Freedom of Information Act revealed that it did not simply accept the parties’ assertion that they were separated under one roof. It conducted investigations including talking to a neighbour called [name omitted] and calling the office of Paul Stubbs to confirm that the respondent was a client and had consulted Mr Stubbs about parenting matters. After conducting these investigations Centrelink declared itself satisfied on the balance of probabilities that the parties were separated under one roof.
In November 2008 the parties lodged an Application for Consent Orders with the Family Court in which they sought parenting orders.
They gave their addresses as [Property A], [W] for the respondent and [Property B] [W] for the applicant.
They stated that the date of commencement of cohabitation was 15 April 1999 and the date of separation was 12 February 2008.
They were asked to describe the living arrangements for the children and stated that [X] lived with the respondent in 2 bedroom granny flat adjacent to the house which was about 30 metres away and that the applicant lived in the 2 bedroom house and that they shared the care of [Y] and [Z] equally.
They asked the court to make orders that the girls live in a week about shared care arrangement save for a three/three split during the Christmas holidays and that the applicant pay the respondent $100.00 per week rent for the main residence.
They asked the court to make an order that the respondent be permitted to enter the main residence with the girls if he had them in his care after school when the applicant was at work and that if he did so he would keep the house in a neat and tidy condition and leave as soon as the applicant arrived home.
The parties signed the application before separate Justices of the Peace and affirmed that the contents of the document were true and correct. The orders they sought were made on 10 February 2009.
In or about November 2008 the parties went to the Commonwealth Bank and asked the bank to separate their joint loan into two separate parts. The bank agreed to do so. Thereafter they each made payments in respect of their portion of the loan.
On 1 December 2008 the respondent signed a document for the Family Assistance Office providing details of child care arrangements. He asserted that the parties shared the care of the children equally and that this arrangement has been in place since March 2008. The applicant signed the document on 27 November 2008 saying that she agreed with the care arrangements stated on the form.
On 28 February 2009 the applicant and the respondent signed a document drawn up by the respondent in which the date of separation was confirmed. It contains the following clause:
Ms Daniher and Mr Garlett are each entitled to a 50% share of any net losses/prefects [sic] on the property up till the 13.01.09 time of market appraisal (valuation) by winsome first national real estate.
On 20 May 2009 the applicant signed another Centrelink “Relationship details – separation under one roof” form again with a view to establishing that she and the respondent were separated under one roof. She answered numerous questions about the parties living arrangements and all of the answers were designed to demonstrate that she and the respondent were not dependent on each other for washing, cooking etc.
She attached a copy of her Medicare card on which only the names of herself and the two children appeared.
In answer to a question about what made the parties different to a married couple she wrote:
we don’t do anything together
The applicant signed the form after the same warning that she could be prosecuted for giving false information and that she needed to tell Centrelink if her circumstances changed.
On 20 June 2009 the parties signed a one page document drawn up by the respondent concerning the care of the children which stated that when the children were (nominally) in the applicant’s care the respondent was able to enter the home to prepare tea bath and bed for the children and would leave as soon as the applicant returned home.
On 22 June 2009 Centrelink conducted a review of the respondent’s entitlement to a disability support pension and said that they approved the parties “separated under one roof” status for a further 12 months.
The applicant maintained throughout the hearing that all this was a sham and that she and the respondent lived continuously as a de facto couple between January 2007 and March 2011. When she was asked during oral evidence what led her to represent to Centrelink that she was no longer in a de facto relationship with the respondent as of February 2008 she said as follows:
I started employment and I worked so many hours and that was alright for a while and then I got more hours and that interfered with his pension and Mr Garlett wasn’t happy and he wanted me to work set hours that didn’t take money from his pension.
He went to Centrelink and wanted to separate and separate the loans and separate payments.
He nagged me over signing this Centrelink benefit so my working didn’t interfere with his payments.
The applicant’s oral evidence about the parties requesting the bank to set up two separate loan accounts in November 2008 was as follows:
Did you or Mr Garlett approach the bank to have the loans separated?
We both did.
What did you tell the bank?
That we were separated and we wanted to separate the loans
In her affidavit the applicant also said that she and the respondent approached the bank to separate the loan into two loans and she went on to say as follows:
Although the Bank agreed to separate the loan into two separate loans, the bank made it a condition that I would still be liable as guarantor if Mr Garlett failed to pay the loan that was allocated into his name. I agreed to the imposition of this condition as I (my emphasis) wanted each of the loans to be separated. [7]
[7] Applicant’s affidavit paragraph 253
In March 2011 there was an altercation between the parties which led to the applicant applying for an Apprehended Domestic Violence Order (ADVO). It was the applicant’s case that the de facto relationship ended then. She said that in March 2011 the respondent began sleeping in the cabin on the property. She said that the children stayed with her for the majority of the time but there was a boardwalk between the two residences and the children moved freely between the houses.
In June 2012 there was a further altercation between the parties which led to the respondent applying for a ADVO. At this time the applicant left [W] and moved to Newcastle with the children. The Respondent and [X] remained in [W].
The information the respondent gave to the police when he applied for the ADVO was consistent with his position during this hearing. The following appears under the heading “Grounds of Application”:
The POI and VIC have known each other for the past 13-14 years, at some point during this time the POI has moved in with the VIC at [omitted], QLD. In 2007 they have then moved to their current address with their two children born in ’01 and ’02. In late 2007 they have stopped seeing each other however they have continued living on a subdivided lot.[8]
[8] Provisional Order (Ex Parte) Apprehended Domestic Violence Order Exhibit G to the applicant’s affidavit
The applicant filed an application for parenting orders in the Federal Circuit Court at Newcastle in June 2012 and an amended application seeking parenting and property orders in August 2012.
The effect of the applicant’s representations to Centrelink, the Family Court and the Bank about the nature of the parties relationship
The applicant did not dispute that she signed all the documents referred to earlier or that she approached the Bank with the respondent to separate the loan but she alleged that she had done all of those things at the respondent’s insistence and moreover her solicitor submitted that she had done these things because she suffered violence at his hands during the relationship and was unable to resist his demands.
There was no evidence however which would support a finding that the respondent threatened or coerced the applicant into signing the documents or approaching the bank.
The applicant alleged that the respondent was physically violent to her on 8 occasions during the relationship the first being in 2004. She said that on about 20 occasions he shoved her with his stomach.
There was no corroboration of the applicant’s claims. Corroboration is not essential in order for the court to accept assertions by a party that they have been subjected to family violence[9], but the applicant was not a witness of credit and in those circumstances corroboration or lack thereof makes a difference.
[9] Amador & Amador [2009] FamCAFC 196
The only document which provided anything approaching corroboration for the applicant’s claim that she was subjected to family violence was a doctor’s note dated 2 March 2011 in which it was recorded that the applicant told the doctor that she was:
…bruised when trying to defend herself against her partner[10]
[10] Exhibit C, applicant’s affidavit
Even if I could be satisfied on the balance of probabilities that some violence was perpetrated by the respondent there was no evidence at all that the applicant was ever fearful of the respondent. She lived in the same house as him between April 1999 and December 2006 even when separated and on the same property as him from January 2007 until June 2012 even when separated. She only left the property after the respondent took out an ADVO against her alleging that she had assaulted him causing him a black eye and bleeding from the nose.
The applicant’s evidence during the hearing about why she made the representations to Centrelink was that the respondent nagged her into doing it, not that he threatened or coerced her into doing it.
The applicant is an Australian who speaks good English. She was employed from April 1999 to June 2012 save for two periods when she was on maternity leave. She had her own motor vehicle and came and went from [W] to go to work and to take the children to their activities. She does not suffer from any mental health issue or medical condition which would have made her particularly vulnerable to pressure by the respondent.
I do not accept that the applicant was coerced or pressured into signing the Centrelink documents or the application for consent orders or into going to the bank and applying for the loans to be separated.
During cross-examination the applicant acknowledged that she was aware that making the representations she did to Centrelink would have financial consequences in terms of benefits which were paid to her and to the respondent and that she had made the representations for the very purpose of affecting those financial benefits. She now says however that the representations were lies and she wishes the court to accept a different version of events.
There is case law which suggests that the applicant should not, in the absence of evidence that she was coerced into making them, be allowed to go back on her earlier representations.
In the 1977 single judge decision of Elias & Elias a husband and wife had conducted a business called Nyngan Smash Repairs as a partnership for years prior to their separation and had represented to the Australian Taxation Office that the business was a partnership. In property proceedings which followed their separation the husband contended that the wife had never had any involvement in the business.[11]
[11] Elias & Elias (1977) FLC 90-267
Goldstein J held that the husband could not be heard to say to the ATO that the business was half the wife’s and say to the Family Court that it was solely his and that he was bound by his representation to the ATO.
This pronouncement was referred to with approval in some subsequent Full Court decisions and if it has to be followed I would be obliged to refuse to allow the applicant to rely on an assertion contrary to the one she made to Centrelink more than once and to the Family Court and the Bank.
However in 1997 Chisholm J was required to decide a case in which a wife sought to lead evidence that a property which her father had transferred to her during her marriage was worth $1.2m at the time of transfer and not $600,000.00, which was the value placed on it in the transfer and thus the value which the transferor and transferee represented to the Commissioner of Land Tax that the property was worth at the time for the purposes of assessment of stamp duty.[12]
[12] Jordan & Jordan (1997) FLC 92-736
The husband’s counsel submitted that the wife should not be permitted to lead this evidence and relied on Elias in support of this submission.
Chisholm J noted that the proposition put forward by Goldstein J in Elias & Elias appeared to have been endorsed in a number of Full Court decisions. He therefore had to give careful consideration to whether he was bound by the so called principle in Elias.
After consideration of the reported decisions and consideration of the implications of the so called “principle in Elias” being held to be a blanket prohibition on contradictory evidence being given Chisholm J said as follows:
There is authority for the view that there is some flexibility in the matter. In Jools and McConnell, quoted above, Nygh J said he had 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. Ellis J, although not specifically referring to this aspect, said that he agreed with Nygh J. I note that Nygh J was a member of the Full Court in Docherty, so it seems that his Honour saw no inconsistency between what he said in Jools and the formulation of the principle in Docherty.[13]
[13] Jordan & Jordan (supra)
Chisholm J allowed the wife to call evidence from an expert about the value of the property at the time of its transfer notwithstanding the representation in the transfer.
The Full Court was referred to Elias & Elias in the 2009 case of Crandall & Crandall and it said as follows:
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.
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.[14]
[14] Crandall & Crandall [2009] FamCAFC 120
The above pronouncement is dicta and is not binding on me either, but the proposition that it is a matter for the discretion of the trial judge as to whether evidence is accepted which contradicts earlier representations (and by implication a matter for the trial judge what weight he or she places on that evidence given the earlier representations) fits more comfortably with the reasoning in cases such as Nelson & Nelson a High Court decision referred to by Watts J in Kazama & Britton.[15] In Nelson & 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. [16]
[15] Kazama & Britton [2013] FamCA 4
[16] Nelson & Nelson (1995) 184 CLR 538
I am not persuaded that it is appropriate for me to reject the applicant’s evidence about the date the de facto relationship broke down simply because she has made contrary representations in the past. The applicant will be liable to prosecution if her evidence in the case before me that she lied in the Centrelink documents is accepted and that is sufficient penalty for her wrongdoing if it is found by me to be wrongdoing.
The contrary representations do however raise a very serious credit issue.
It is not unheard of for a court to find that one of the parties in de facto property proceedings has made untrue representations to Centrelink, either actively or by omission about the status of a relationship with the result being that they continue to receive benefits to which they were not entitled.
This was not a case however where a party simply failed to advise Centrelink that they had commenced de facto relationship and continued to receive benefits or completed tax returns and failed to advise that they had a de facto partner .
The applicant provided comprehensive information to Centrelink on two occasions designed to convince Centrelink that no de facto relationship existed. She gave answers to numerous questions specifically designed to persuade Centrelink that the parties lived separate lives and had no financial inter-dependence despite living on the same property.
Not only that, the parties jointly approached the bank to separate their joint loan, and they applied to the Family Court for parenting orders and in the document they filed individually swore that they had separated in February 2008.
I do not accept that the applicant made these representations because she was unfairly pressured or coerced by the respondent into doing so, and in those circumstances I have situation where the applicant has put herself forward in these proceedings as someone who is prepared to deliberately make false statements to gain an advantage.
Absent compelling evidence which gives the lie to the representations the applicant made between 2008 and 2009 and make it likely on the balance of probabilities that there was a de facto relationship in my view the representations do spell the end of the applicants case.
The definition of de facto relationship in the Family Law Act
In order to consider whether there is compelling evidence that the parties were living in a way other than the way they represented to Centrelink and others in 2008 and 2009 I must have regard the definition of “de facto relationship” in s.4AA of the Family Law Act which is as follows:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(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;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(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.
The first circumstance to which I must have regard is the duration of the relationship.
The applicant and respondent were in a relationship of some kind or another for 13 years. For part of that time they agreed that they were in a de facto relationship. For the remainder of that time they at the very least lived under one roof (the applicant asserted for two separate periods of one year and the respondent asserted for most of the relationship) and shared the care of their children.
This consideration does not assist me to determine whether the de facto relationship broke down in late 2007 or early 2008 or in March 2011.
The next consideration is the nature and extent of their common residence.
The parties lived on the same property for the entirety of their relationship.
It was the applicant’s case that for all of the period at [G] save for the last twelve months they shared the house in a way that a married couple might with no separate living areas and that from January 2007 to March 2011 they both lived in the converted shed or “main house” on [W].
The problem for the applicant is that she told the Family Court and Centrelink that the arrangements at [W] were different as from February 2008. She told the Family Court that she and the respondent had different addresses on [W] and she told Centrelink that they occupied different living quarters on the property.
The applicant asks me to accept that she lied then but is telling the truth now but is it not equally possible that she told the truth then and is lying now?
The evidence of [X] corroborates the respondent’s evidence that from at least February 2008 the respondent and applicant lived in separate quarters on [W] and this inclines me to the view that it is more likely that the respondent rather than the applicant is telling the truth about this issue.
The applicant’s solicitor submitted and I accept that even if I could not be satisfied that the applicant was telling the truth now about this issue it did not automatically doom her case; courts had repeatedly held that it is not necessary to find that parties shared a common residence to find that they were in a de facto relationship. I accept that submission.[17]
[17] See for example Kazama & Britton [2013] FamCA 4
The next consideration is whether a sexual relationship exists.
There was no evidence directly on this issue in the affidavits. It is more likely than not that a sexual relationship existed at one time as the parties have two children. The applicant’s assertions to Centrelink in the form signed on 7 April 2008 that the parties did not sleep together would suggest by inference that there was no sexual relationship after February 2008.
The next consideration is the degree of financial dependence or interdependence, and any arrangements for financial support, between them.
The parties went to considerable lengths in 2008 and 2009 to ensure that they each received their own separate Centrelink entitlements and that the bank loan they took out in 2007 was separated so that they each made separate repayments to a designated portion of the loan.
There was no evidence in the applicant’s affidavit to suggest that despite the representations to Centrelink they continued to do things differently and had some financial interdependence after February 2008. There was no evidence that they ever had a joint bank account or that one paid expenses for the benefit of the other or that they shared the applicant’s salary.
Once again however this is not by itself determinative of the matter.
I must consider the ownership, use and acquisition of their property.
The respondent owned [G] at the commencement of the relationship and from August 2002 until its sale in December 2006 he owned it solely.
The respondent used the proceeds of sale of [G] to purchase [W] outright in his sole name.
The applicant alleged that there was talk of or an intention that she become a part owner of [W] but the respondent denied it. There was no documentary evidence to support the applicant’s claim. The applicant was not a witness of credit and in any event the highest the applicant’s evidence goes is to establish that she had some belief about what might happen in the future.
The only thing which points slightly in the direction of some intention by the respondent that the applicant have a share in [W] is the 28 February 2009 agreement which he drew up and which provides (if an assumption is made that “prefects” was intended to read “profits”) that the applicant would have a share in any increase in the value of the property.
The parties had separate motor vehicles – the applicant told Centrelink this and did not resile from it in her trial affidavit – and there was no evidence of any other property being purchased jointly or owned in common.
The parties did use the real property jointly – they both used [W] as a home until the applicant left in June 2012.
I must consider the degree of mutual commitment to a shared life.
The parties were committed to a shared life even after late 2007 early 2008 insofar as they agreed that they would both remain on [W] and share the parenting of the children, and in 2010 they took the children on a holiday to Movie World. There was no other evidence of shared holidays or of them taking the children to sporting commitments together save that the applicant asserted in the 2009 Centrelink form that they both took the children to soccer.
There was no evidence of the parties having any long term plans for example for property acquisition or holidays or what they might do in retirement together, and they represented to third parties in 2008 and 2009 that they were not in a de facto relationship. There was no evidence that the parties ever made or spoke of making a will benefiting the other or they did not put the other down as a beneficiary for their superannuation. They did apparently name each other as beneficiaries on a life insurance policy but this would be consistent with them wanting to make provision for their children’s future care.
I must consider whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.
This is not applicable.
I must consider the care and support of children.
The applicant and respondent each contributed to the care of the children for the entire time they lived on [W]. However the applicant made out to Centrelink and both parties made out to the Family Court that they each provided their own part of that care separately.
The applicant alleged in her affidavit that between January 2007 and March 2011 the parties lived in the one residence and that she did cooking and washing as before, but this was the opposite of what she said to Centrelink and the same question arises as posed earlier: why should I believe the applicant’s later version in preference to her earlier version?
I must consider the reputation and public aspects of the relationship.
There was no evidence from third parties that for the entire period between January 2007 and March 2011, or indeed for any of it, they regarded the parties as a de facto couple or indeed a couple at all.
It was put to the respondent that in January 2010 his doctor made notes during a consultation in which he said that;
[The respondent] has depression because of a dysfunctional relationship with his partner, the mother of his two daughters. Mr Garlett and I are working on strategies to assist him with the results and also to deal with his difficulties in his relationship.
It was submitted that I should read into this that the respondent had publically held out in January 2010 that he was still in a de facto relationship with the applicant.
The respondent (unsurprisingly) had no recollection of what he said to the doctor on that occasion and I cannot place weight on the doctor’s notes. The doctor was not called and even if he had been he might not have remembered what was actually said and the risk that his notes are inaccurate or that too much is being read into what he wrote down (perhaps placing his own gloss on the words actually spoken) is very high.
It was put to the respondent that notes made at [omitted] Medical Centre in February 2011 when he consulted a doctor stated that the applicant and respondent were undergoing a separation and that this must have come from him and was evidence that he held out publically either that he and the applicant were still in a de facto relationship or had only recently ceased to be.
The applicant’s solicitor said that the doctor’s note supported his client’s case that final separation did not take place until March 2011 but I do not accept this submission. The “separation” referred to could just as easily have meant the process of commencing to live at separate locations as to the final breakdown of the relationship.
The respondent again could not remember what he had said but in answer to a question about whether he might have said this he responded:
I’ve been undergoing a separation from [the applicant] for 10 years.
The applicant attached to her affidavit notes made by her doctor on 4 March 2011 in which the doctor stated that the applicant is “going through separation” and in which the respondent is referred to as her partner.
There is also one reference which supports the respondent’s version of events in a note made by a doctor on 25 February 2011 which reads as follows:
Pt states that he was assaulted by his ex-wife yesterday
None of the doctor’s notes are sufficient to corroborate the applicant’s claim about when the de facto relationship ended and one contradicts it, and in any event in my view it would be dangerous to place weight on any of these notes.
Conclusion
The applicant bears the onus of establishing that the parties de facto relationship did not break down until March 2011 or at least had not broken down as at 1 March 2009.[18]
[18] Owens & Benson [2014] FamCAFC 243
The matters which support her case that the parties lived continuously in a de facto relationship from January 2007 until March 2011 contrary to the assertions made by the applicant to Centrelink are as follows:
a)The parties had a common intention to resume their de facto relationship when they moved to [W] in January 2007.
b)The parties lived on [W] continuously from January 2007 until March 2011.
c)The parties took out a joint loan for the improvement of [W] and both continued to make payments in respect of a loan throughout this period.
d)The parties both contributed to the care and support of their two children throughout this period.
e)Separate doctors who saw the parties in February 2011 and March 2011 referred to the other party as a “partner”.
f)The applicant had a motive to lie to Centrelink in 2008 and 2009. Even if she did not herself gain much financially from lying, she might, if her version of events is accepted, have been motivated to lie by a desire to keep her relationship on foot and a knowledge that the respondent would not tolerate not receiving his Centrelink benefits and might make her leave the property altogether unless she supported his assertions to Centrelink. Her lies should not be held against her.
I cannot be satisfied on the balance of probabilities however even taking all these things into account that a de facto relationship existed between the parties after February 2008, and it is not just a matter of being left in doubt, it is a case of the respondent’s evidence that the de facto relationship had ended by at least February 2008 being more persuasive.
The matters which caused me to come to this view are as follows:
a)While the parties certainly lived on the same property from January 2007 it was a large rural property which had two dwellings on it.
b)There is some corroboration for the fact that they lived in separate dwellings from at least February 2008 because that is what the applicant repeatedly asserted at the time and the respondent’s son said the same.
c)The argument that living on the same property supports a finding that a de facto relationship existed is particularly weak argument in this case because the parties agreed that they had previously lived separated under one roof for at least a year.
d)While the parties originally took out a joint loan in January 2007 they asked the bank in November 2008 to split it into two loans and they each made repayments thereafter on their share of the loan. The applicant represented to Centrelink at the time that her continued repayment of “her” part of the loan stood as rent.
e)There was no evidence of financial dependence or interdependence between the parties after February 2008. They informed Centrelink that they were separated under one roof as of February 2008 and Centrelink thereafter assessed them separately for payment of benefits. They had no joint bank account and the applicant did not suggest that she shared her wages with the respondent.
f)The parties did not own any property in common. The [W] property was purchased in the respondent’s sole name. They each had their own separate motor vehicle and furniture.
g)The parties did not go out socially together or on holidays together save for one occasion when they jointly took the children to the Gold Coast. There was no evidence of a mutual commitment to a shared life after late 2007.
h)The parties both cared for the children but the applicant asserted to Centrelink that they did this separately and there was no evidence absent this assertion that they jointly parented the children. A single trip to Movie World in 2010 is not sufficient.
i)There was no evidence of a mutual commitment to a shared life after February 2008. The applicant held out to Centrelink and the Family Court that she and the respondent were separated. There was no evidence that the parties were known anywhere as a couple. Centrelink accepted their assertion that they were separated under one roof and no neighbours or friends gave evidence at the hearing before me which contradicted this. The statement in the records of a doctor that the applicant was the respondent’s partner cannot be given no weight, nor can the suggestion by the family consultant that the respondent may not have been truthful about the date the parties de facto relationship broke down.
The applicant may have had a motive to lie to Centrelink but she also has a motive to lie to this court in order to establish jurisdiction which would entitle her to a property settlement.
I cannot be satisfied on the balance of probabilities that the relationship broke down in March 2011 as the applicant asserted and indeed am satisfied that it had broken down by February 2008 at the latest.
The application for property settlement must be dismissed.
I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of Judge Terry
A/Associate:
Date: 24 December 2014
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