Dat and Liang

[2017] FamCA 250

FAMILY COURT OF AUSTRALIA

DAT & LIANG [2017] FamCA 250

FAMILY LAW – DE FACTO RELATIONSHIP – Section 90RD application – where the parties attended court with “consent” to proposed orders but the respondent who was without legal advice or representation maintained there was no de facto relationship after 2005 – where the court determines s 90RD application notwithstanding consent orders because of jurisdictional requirements.

Family Law Act 1975 (Cth)

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Jonah & White (2012) FLC 93-522
Norton & Locke (2013) FLC 93-567

APPLICANT: Ms Dat

RESPONDENT: Mr Liang

FILE NUMBER: DGC 2344 of 2013

DATE DELIVERED: 18 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moore

SOLICITOR FOR THE APPLICANT: Borchard & Moore

THE RESPONDENT: In Person

Orders

1. Pursuant to s 90RD of the Family Law Act 1975, the court declares that the parties MS DAT and MR LIANG were in a de facto relationship after 1 March 2009 until 2013.

2. That the reasons this day be transcribed and be made available to the parties.

3. That there be final orders by consent of the parties in terms of the minutes.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dat & Liang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 234 of 2013

Ms Dat

Applicant

And

Mr Liang

Respondent

REASONS FOR JUDGMENT

1. Proceedings were commenced in the Federal Circuit Court in 2013 between Ms Dat (“the applicant”) and Mr Liang (“the respondent”).  In essence, the relevant part of that proceeding relates to the division of property as between the applicant and the respondent.  It was only when the matter came before me on 2 March 2017 that the respondent affirmed his position that the relationship with the applicant ended in 2005.  Throughout the  period after the proceedings began the respondent has been without legal representation.

2. The dilemma in March 2017 was that, without some agreement or concession that the parties were living in a de facto relationship that subsisted on 1 March 2009, the Court has no jurisdiction to alter the interests of the parties under the Family Law Act. After discussion and a warning to Mr Liang on 2 March, the proceedings were fixed for today to decide whether or not there was jurisdiction for the Court to alter the interests.

3. The application filed by the applicant sought simply a declaration under section 90RD of the Family Law Act 1975 (Cth) (“the Act”). The respondent, who appears today without legal representation indicating that he has been unable to afford that representation, filed nothing, notwithstanding I made an order that he do so by 31 March. I made an order that, by 17 March, the applicant file the material that supported her application for the declaration and, indeed, she has done so. Today I have warned the respondent of the fact that, if he does not challenge those pieces of evidence, it is more likely than not that I would accept them.

4. The authorities of this Court, including Norton & Locke (2013) FLC 93-567, make clear that, without a finding as to the existence of the de facto relationship, the Court is not empowered to exercise its discretionary judgment under Part VIIIAB of the Act. That problem can sometimes be overcome simply by the parties consenting to orders, which, indeed, they appear to have done here. This morning I was handed what was described as a consent order signed by both applicant and respondent. In the respondent’s case, it was signed on 4 April, and in the applicant’s case, on 10 April. One might have concluded that as the respondent signed first, he was keen to have orders made yet he did nothing about the issue of evidence relating to jurisdiction.

5. I do not accept that I can treat the signature of the respondent as a concession as to jurisdiction because he has consistently, and again today, maintained that his relationship with the applicant ended in 2005.  Thus the first and primary issue before the Court is one as to jurisdiction. 

6. In the Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135, the plurality of the High Court said:

   The term jurisdictional fact, which may be a complex of elements, is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.

7. Here, the criterion is whether the applicant and the respondent, having regard to all of the circumstances of their relationship, had a relationship as a couple living together on a genuine domestic basis after 1 March 2009.  (Section 4AA(1)(c)). 

8. In Jonah & White (2012) FLC 93-522 Murphy J made the observation that the question of whether a de facto relationship existed is a determination of fact which founds the jurisdiction to make the orders. That is consistent with what the High Court said in the Corporation of the City of Enfield (supra)

9. Section 4AA(1) sets out a specific reference to the parties living together as a couple on a genuine domestic basis.  In case there is any doubt about that, subsection (2) provides what might be described as a checklist, which is not exclusive, to indicate the sort of things that the court may take into account.  In this case, the respondent filed no evidence, notwithstanding his assertion that the relationship came to an end in 2005. 

10. I turn, then, to the evidence of the applicant by affidavit filed on 14 March this year, which the respondent acknowledges he has received and read.  She said that she and the respondent commenced living together as “husband and wife” on a full-time basis in 2009.  She worked with the respondent in a company known as B Pty Ltd.  She commenced working in either Suburb C or Suburb D. 

11. From the relationship with the respondent, there have been four children.  E was born in 1999, F in 2000, G in 2005 and H in 2013.  The applicant noted that, on a previous occasion, the respondent had contested paternity of the children but then subsequently admitted that they were his offspring.  A clear indication of the length of this relationship can be seen from the ages of those children, but the critical question relating to jurisdiction is on the period on and after 1 March 2009.

12. The applicant went on to say that, in 2009, the respondent would come home to the house in which they both lived around 5 to 6 pm, and that she would have his meal ready for him because her primary role was running the household and caring for the children.  She deposed to the fact that they brought property together. 

13. I permitted the respondent to cross-examine the applicant, notwithstanding he had no evidence-in-chief before the court, and, indeed, it transpires that he acknowledges the applicant did buy properties.  He asked her where she got the money from, and she indicated that it either came from her earnings or they shared the mortgage commitments together.

14. In respect of parent-teacher nights for the children, both she and the respondent went together.  In early 2009, the respondent’s niece, Ms I, came to live at the residence that they shared together.  They collected her from the airport, and she stayed in their home.  The evidence of Ms I corroborates what the applicant says.  She assisted the applicant in respect of taking and collecting the children to and from school.  That was necessary at times because the applicant was working in the business with the respondent.  Particularly, it was helpful because of the fact that H was born around that time.

15. There was a sexual relationship between the applicant and the respondent.  There is no suggestion other than that they lived together within the house and otherwise, to the outside world, conducted themselves as if they were a couple. 

16. Ms J, who was a child care worker, filed an affidavit in the proceedings on behalf of the applicant.  She says that she came to Australia from Asia in 2006, so her views of what was happening straddled the period both before and after 1 March 2009.  She was collected by relatives at the airport and had observed from 2009 until April 2013 what was going on in her cousin’s home.  She deposed to the fact that the applicant and the respondent lived together from 2009 onwards.  She also said that she knew they were not married, but she described them as husband and wife and having children.  She was able to say that, she said, because she visited their home on many occasions and spent time with them.  She and her husband attended family parties and gatherings at the home in Suburb K, and on occasions as a couple they all went out to dinner together.  She described the couple as a very happy family who had four children together.  She was quite surprised at the breakdown of what was otherwise a happy family.

17. Ms L is a sales assistant.  She also filed an affidavit on behalf of the applicant.  She said that she had known the parties since 2009, particularly at their address at M Street, Suburb K, where she observed them with their four children until 2013.  She described the applicant and the respondent as being close to her, and they would visit each other’s homes.  They were regarded as good friends.  She also described two of the four children as being the best of friends and the children going to school together.  She said she saw a lot of the applicant and the respondent between the relevant years.  They went camping together at N Town and on another occasion at Canberra and then again at O Town.  She said the adults would normally stay in a caravan while the children enjoyed staying in tents, and these were happy times.  In her view, the applicant and the respondent were living together as a husband and wife as a happy family. 

18. I have concluded from the evidence of those corroborating witnesses that what they were observing was a relationship of a couple living together on a genuine domestic basis. 

19. There was clearly a sexual relationship as I have described.  There was an intermingling of funds because both the applicant and the respondent were working in the business and money was used for whatever purposes for the support of the family.  Even after the relationship ended in 2015, the financial interdependence continued.

20. The applicant was asked by the respondent about two cheques which she said were left by him when he went to Asia.  In respect of the 2015 cheques, the respondent asserted that they were for the payment of workers.  The applicant said that, in the event that that was company money, in due course, she will pay the respondent or the company back.  Whether or not that is part of the ultimate settlement is a matter for the parties, but it certainly indicates that there was a financial interdependence between the parties.

21. In another period of time around 2013, as the applicant saw it, the applicant had two cheques signed by the respondent for when he went away.  She had no other money to live on and support the children, and she had no money from Centrelink.  The respondent went overseas for about a year, so she used that money for the support of the children.  All of these facts support the conclusion that there was a relationship as a couple living together on a genuine domestic basis.  The evidence of the applicant indicates that she was providing household services right up until 2013.

22. In my view, the Court is entitled to make a conclusion that there was a de facto relationship for the period from at least 1 March 2009 until it concluded in 2013. Accordingly, I make the declaration under section 90RD of the Act to that effect.

RECORDED  :  NOT TRANSCRIBED

1. I am now asked to make orders in terms of a document described as consent orders, which I have altered by agreement with both Mr Moore on behalf of the applicant, and the respondent personally. 

2. I am assured that there are no creditors against by whom claims could be made which would be affected by these orders, including, as I understand it, the wife of the respondent, who I had been told is sitting in the Court.  There is an intervention order as between she and the respondent, so there can be no communication, but Mr Moore has indicated to me that he has written a letter to the solicitors acting for the person whom I shall describe as “the wife”, requiring that they remove a caveat lodged against one of the properties. 

3. Curiously, those solicitors wrote back indicating that they could see no reason to remove the caveat.  My understanding of the limited facts I have, is that the wife has no caveatable interest in respect of that property and certainly, by virtue of the orders that I am about to make, she can certainly have no interest in that property hereafter.  As I understand it, the solicitor who acted for the wife was present in the Court on 2 March 2017 and heard me fix the matter for hearing today.  She has not attended the hearing, so I presume that there has been no specific claim which might have impacted upon the orders that I am asked to make.

4. I have also taken into account that Mr Moore has written to those solicitors about the caveat, drawing to their attention this hearing which would affect any entitlement that might be protected by the caveat.  They have taken no steps to preclude the court from making the orders today.  On that basis, there is no impediment to the orders being made.

5. The evidence of both the applicant and the respondent is at best vague, because it is said that there is a further $500,000 to $700,000 possibly in Asia which the respondent has moved there.  It is unclear exactly what the applicant is receiving by virtue of the proposed orders, but in any view, it is somewhere in the vicinity of $2 million.  She has agreed to assist the respondent in respect of any tax liability that he may have, but of course, that is not a matter that I am asked to deal with. 

6. I have given the respondent a number of occasions today to ask for an alteration of the orders and he has declined to request, so I have warned him that whatever deal he makes with the applicant outside of the Court is certainly not enforceable by the orders that I am proposing to make.

7. On the basis that there is about $2 million in equity and the respondent has filed no material, but has, on any view, significant assets in Asia, this seems to be a sensible result, bearing in mind the income disparity of the parties and also the fact that the applicant has the responsibility for the four children.  On that basis, I think I can be satisfied that the orders are just and equitable having regard to the advice that the parties have had and the opportunities they have had to explore, through discovery, each other’s financial positions.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 April 2017.

Associate: 

Date:  27 April 2017