DAVISON & HANNIGAN - [2018] FCCA 3085

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVISON & HANNIGAN

[2018] FCCA 3085

Catchwords:
FAMILY LAW – Property – de facto relationship – alteration of property interests – where the separation date is in dispute – where the respondent asserts separation was before 2009 – whether the court has jurisdiction – credibility.

Legislation:
Family Law Act 1975 (Cth), ss.4AA, 44, 90SM

Cases cited:
In the Marriage of Pavey (1976) 25 FLR 450
In the Marriage of Todd [No.2] (1976) 25 FLR 260

Applicant:

MS DAVISON

Respondent:

MR HANNIGAN

File Number:

SYC 5030 of 2016

Judgment of:

Judge Young

Hearing dates:

12, 13, 14 September 2018

Date of Last Submission:

14 September 2018

Delivered at:

Darwin

Delivered on:

31 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms Beck of Counsel

Solicitors for the Applicant:

Story & Associates

Counsel for the Respondent:

Ms Dart of Counsel

Solicitors for the Respondent:

Shorehills Legal Solicitors

THE COURT DECLARES THAT:

The Applicant and the Respondent were in a de facto relationship from 1987 to 14 July 2014.

AND THE COURT ORDERS:

That time is extended to 10 August 2016.
That the matter is listed for trial on 20 March 2018 at 10:00am (allowing 2 days).
That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 and an updated financial statement intended to be relied upon at trial no later than 21 days prior to the trial.
That on or before 21 days prior to trial the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012.
That each party exchange and email to my Associate no later than 2 days prior to the hearing, a case outline setting out:
PROPERTY MATTERS:
(a)a list of the material relied upon;
(b)a statement of any agreed facts;
(c)a brief chronology listing significant events;
(d)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(e)main contentions in dispute as to:
(f)inclusion in the pool; and
(g)value of assets;
(h)list of contributions claimed or contended for (including expression as a percentage);
(i)list of other factors relied upon (section 75(2) factors) and percentage adjustment contended for;
(j)other relevant contentions to determining a just and equitable division of property; and
(k)the actual orders sought.
That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.
That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 27 February 2019 at 9:00am (NT time), with the wife to appear by telephone.
That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.
That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.
That should the parties fail to comply with Order 2 herein the matter be listed for mention before the Court as soon as practical prior to the Conciliation Conference date.
That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to orders made 31 October 2018.
Costs of the jurisdiction hearing are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Davison & Hannigan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

SYC 5030 of 2016

MS DAVISON

Applicant

And

MR HANNIGAN

Respondent

REASONS FOR JUDGMENT

This is an application under section 90SM of the Family Law Act (the Act) for alteration of property interests. The issue to be determined in this hearing is whether the court has jurisdiction to hear the application. It is agreed that the jurisdiction to determine de facto property claims arose from 1 March 2009 when the various states and territories referred their de facto relationships power to the Commonwealth, which is reflected in the insertion of Part VIIIAB into the Act.
If the applicant establishes that the court has jurisdiction, the next issue is whether or not her application has been brought within time and, if not, whether there ought to be an extension of time pursuant to section 44 of the Act.
The applicant says that she and the respondent began a relationship in 1987 in Sydney. She says they separated on 14 July 2014 in Sydney. A daughter, Ms C, was born to the applicant and the respondent on 1997. From about mid-1989 the applicant and the respondent began to live in a home at Property A, New South Wales (the Property A property), owned by the respondent’s father. Soon after, the respondent’s father died and the respondent inherited his father's home. The applicant continued to live in the home throughout and continues to live in the home pursuant to an order for sole use and occupation made in 2016. The applicant says that she and the respondent lived in the house as a couple in a de facto relationship until 2014.
At no point has the applicant sought or received child support for Ms C, who is now an adult, or any other financial settlement or arrangement with the respondent.
The applicant agrees that the respondent spent extended periods living in the (country omitted) during the relevant period. From an examination of the respondent’s travel records, it appears that from about 2001 he spent increasing periods of time in the (country omitted). Initially in 2001 he spent about 17 weeks in the (country omitted) but over the years the time increased until he was spending, in most years, at least 50% of his time living the (country omitted).
The respondent's case is that in 2001 he separated from the applicant and the de facto relationship ceased. In his trial affidavit he says that on his various departure cards over the years he gave an address in Town P as his usual address. He said that in 2001 he marked his outgoing passenger card to indicate that he was departing permanently from Australia. While in the (country omitted) the respondent says that he conducted a relationship with a woman named Ms M and had three children with her. In 2010 the respondent and Ms M married and from 2013 they have lived in Darwin after Ms M and her three children with the respondent moved to Australia permanently.
Somewhat unusually, the respondent has an alternative position which is that he and the applicant separated not in 2001 but in 2006. He said that up until 2006 his relationship with the applicant was "on-again off-again” and, although there were periods of reconciliation, the final separation occurred in 2006. The respondent's three children with Ms M were born in 2003, 2009 and 2011. It appears that, if the respondent's evidence is to be accepted, he lived in relationships with two women at the same time for a period of five years or so.
The applicant says that she was aware of the respondent's relationships with, according to her, “other women” in the (country omitted) and was aware that he had a child, [X], born in 2003. The applicant became aware of Ms M and says that at various times, particularly in 2006, the respondent told her that he had broken off the relationship with Ms M and wanted to continue the relationship with the applicant.
This is consistent with a letter the respondent wrote to a solicitor in January 2006. In that letter, where he sought to have some police charges against him adjourned, he said various things about Ms M. It is not necessary to repeat the detail of the letter but it is clear that he told the solicitor that his relationship with Ms M was over. He said, however, that he would continue to support his son in the (country omitted).
Around this time it appears that the respondent tried to persuade the applicant to agree to have [X], who has a disability and was then about three years old, to travel to Australia and for [X] to be cared for in the household at Property A by the applicant and the respondent. In my view, this is consistent only with a continuing de facto relationship between the parties.
I have little doubt that a de facto relationship between the applicant and respondent continued until at least 2006. However, the evidence for the period between 2006 and 2014, a period of eight years, is somewhat ambivalent.
The resolution of this issue depends significantly on the credibility of the parties.
The applicant was not always a reliable witness. For example, her trial affidavit included the assertion that a photo annexed, showing the applicant, the respondent and Ms C, was taken in 2012. A cursory examination of the date printed on the photograph showed it was taken in 2004. Ms C looked about seven years old in the photograph, further indicating that it was not taken in 2012. The applicant acknowledged this and I am satisfied the evidence was likely given in error. There were, however, other aspects of the applicant's evidence that were of some concern. In difficult parts of her cross-examination she did not recall various events. Overall, I approach the applicant's evidence with some caution although I consider that, in broad outline, she was distinctly more credible than the respondent.
I formed an adverse view of the respondent’s credibility. On 23 November 2004 the respondent made a statement to police when he was seeking an AVO against the applicant. In that police statement he said: "I have been in a domestic relationship with my de facto, Ms Davison, for the past 15 years. We currently reside together at six Property A and have been living there for the past 11 years.” He went on: "At about 7 PM on Saturday, 20 November 2004, I was home with my wife and daughter watching television in the lounge room." He then went on to recount a domestic dispute.
The respondent said in evidence of this document that the references to “my de facto” and “my wife” were inserted by the police and were false. He said that he did not read the document although he signed it. I have no hesitation in rejecting the respondent's evidence about that as a deliberate lie.
The respondent was a dishonest witness. Many of his answers were outright lies, for example, his evidence about the police statement. It was also clear from a passage of cross-examination as to credibility that he appeared to have been defrauding the Northern Territory Housing Commission for some years by failing to state his ownership of various assets, particularly the Property A property. I do not accept any statement of the respondent as truthful, unless it is a statement made against interest, not in dispute or corroborated by independent evidence.
The respondent’s witnesses were also unsatisfactory. His friend, Mr P, gave affidavit evidence that the respondent told him in 2001 that he was separating from the applicant and considered the relationship over. There was a detailed description of the conversation extending over more than a page of his affidavit. In cross-examination, Mr P acknowledged that he was uncertain about the dates of the conversations, an uncertainty not referred to in his affidavit, and was uncertain about some of the content of the conversation. He agreed that the dates and the content of the conversation had been suggested to him by the respondent in a conversation early this year, before the affidavit was prepared. In re-examination, counsel for the respondent appeared to elicit a claim from Mr P that the uncertainty only related to the dates but I do not accept that. I do not accept that Mr P has any independent recollection of any relevant conversation. I find that the content of the affidavit was probably suggested to him by the respondent and Mr P was content to oblige because the respondent is an old friend.
The affidavit of Ms M was similar. She gave detailed evidence of conversations she remembered with the applicant in September 2001 and again in November 2001. According to her, the applicant telephoned the respondent in the (country omitted). Ms M said she answered and the applicant asked who she was and, after Ms M gave an explanation, the applicant said to her: "How can you be his girlfriend when he is my husband and I am his wife?" Ms M said she responded, conveniently, "As far as I know Mr Hannigan doesn't have a wife and you separated from Mr Hannigan earlier this year." I am satisfied that that evidence is untrue. It does not reflect the clear statements by the respondent after 2001 that he was in a de facto relationship with the applicant and his statement in 2004 that he was in a de facto relationship with the applicant and his statement in 2006 that his relationship with Ms M was over.
In cross-examination, Ms M was adamant that she clearly remembered conversations taking place in September 2001 and November 2001. Although she could not recall any other events from September 2001 (the Twin Towers attack might be an example of a memorable event in that month), she clearly remembered that the conversation took place at “lunchtime”. I consider that the respondent very likely suggested the dates and content in Ms M’s affidavit to her and it does not reflect either the truth or her independent recollection. In my view, her evidence was a concoction.
The respondent's sister, Ms W, also gave evidence. She said that the respondent had told her that he and that the applicant had separated many years ago when "Ms C would have been around three years old". Given that I am satisfied that the respondent has influenced witnesses to provide untrue evidence, I am sceptical about the evidence of Ms W. However, it is not necessary to reach any definite conclusion about that because her evidence that the respondent told her that he had separated from the applicant when Ms C was about three years old, that is, in about 2000 or 2001, even if true, is not borne out by other evidence that shows the relationship continued until at least 2006.
Part of that other evidence is a Centrelink document completed by the respondent on 12 June 2007 when he said that he separated from the applicant on 1 December 2006. The form said that prior to the separation he and the applicant lived together at the Property A property. The respondent attempted to explain this away by saying he happened to be at a Centrelink office with the applicant, and she had asked him to sign the document for some purpose of her own. He said he signed it even though it was untrue. I have no hesitation in rejecting the respondent's evidence as false and deliberately false.
The evidence after 2006 or 2007 is conflicting. On 12 June 2007 the applicant completed a credit card application form. She gave her marital status as de facto. She said that the respondent helped her to complete the form, which is borne out by the fact that the document has been faxed to the respondent and the respondent acknowledged that that was probably him and that he had been present when the applicant completed the form. The importance of this is that the wife gave evidence, which I accept, that her facility with English on forms was limited and the respondent commonly helped her complete forms. I am satisfied that that was likely to be the case. On this occasion, the description of the respondent as a de facto on that date is, I accept, accurate.
The applicant gave evidence that she continued in a sexual relationship with the respondent until about 2009 and they continued to sleep in the same bed and have sexual intercourse until about that time. She said that thereafter the respondent suffered from sleep apnoea and slept in another bedroom in the house. She said, nevertheless, that "intimacy" continued between them which she described as kisses, cuddles and physical affection. The respondent said that sexual relations with the applicant stopped in 2005 when he, the applicant and Ms C had a holiday in the (country omitted). I accept the applicant's evidence about this. It appears to me that if she was being untruthful on the subject, she would have asserted that sexual relations continued to a later time. Her concession that sexual intercourse ceased in 2009 is, to a significant degree, a concession against her interest. I consider it is likely to be true.
On 20 June 2012, the respondent completed a sponsorship form for "a partner to migrate to Australia". That form named his partner as Ms M whom he had married in the (country omitted) in 2010. That form is false in material particulars. The respondent said in the form that he formed the intention to commit to a long-term de facto relationship with, or to marry, Ms M on 2001. I am satisfied that that statement is either untrue or misleading, in that it fails to refer to his continuing relationship with the applicant, on his evidence, until at least 2005 or 2006.
It is also false in another material particular. When asked to describe his home, for which he gave the address of the Property A property, he said that it was a house with two bedrooms and one person living in the dwelling, and that one person was himself.
The form gave a warning that false or misleading information constituted an offence. It is difficult to see what purpose deceiving the Department of Immigration served in this case other than to hide the existence of the applicant and Ms C from the gaze of the authorities. In my view, the only plausible reason for him to do so is that the information was inconsistent with his application to sponsor his partner to migrate.
Of course, the fact that the respondent made a false statement to the Department of Immigration does not establish that he was in a de facto relationship with the applicant. However, it establishes that he did not wish for the Department to know the true nature of his relationship with the applicant. I am satisfied that that is because the true nature of his relationship with the applicant was inconsistent with his desire to sponsor his wife to migrate to Australia.
The respondent pointed to various statements by the applicant that were said to be inconsistent with the existence of a de facto relationship. The applicant's various tax returns from 2000 to 2010, with the exception of 2007, did not claim the respondent to be a spouse. The applicant said that the respondent had generally handled her tax affairs and she did not read the tax forms before signing them. She said that until about 2010, her tax had been done by the respondent's accountant. From about 2010 the applicant turned to a new accountant and it was submitted that the accountant was likely to have taken fresh instructions. There was no evidence in either case from the accountant who had taken the instructions from the applicant. Further, given that that the purpose of the marital status declaration is not obviously apparent, I am disinclined to give much weight to this factor.
There were also two personal loan applications made on behalf of the applicant produced on subpoena from the Bank which show the applicant’s marital status as single. In both cases the document is not dated, although, one referred to ownership of real estate which probably refers to a house in Town Q, New South Wales, purchased by the applicant in 2010. The absence of any reference to real property in the other application indicates that it was probably completed prior to 2010. The respondent said these applications were completed by telephone interview and she believes the bank completed the documents using a template. She denied informing the bank employees that her marital status was single. Again, in the absence of any evidence from the person who took the instructions I am reluctant to give much weight to these documents.

The respondent admitted that until about 2011 or 2012, he continued to use the Property A property as his "base". It appears from the evidence that he spent almost half of each year at the Property A property. He claimed he merely spent short periods of time there to maintain the house and visit his daughter, Ms C. I reject that assertion and find that he spent many months of the year at the Property A property, although not necessarily the majority of the year, up until about 2012 or 2013.
He continued to treat the Property A property as his home and left the majority of his personal belongings and objects of sentimental value in the home. That is clear from his present application, where he seeks orders for the delivery to him of his father's medals and his mother's papers from the Property A property.
There is evidence, which I accept, from a neighbour who said that over the years he saw the respondent at the home, speaking to the applicant and his daughter, mowing the lawn, and so on and he believed, notwithstanding the long absences of the respondent, that he continued to reside in the home and conduct a relationship with the applicant. He acknowledged he had not visited the inside of the home and had not seen the parties in more domestic circumstances.
Of course, this is consistent with parties who have separated under one roof. However, in circumstances where one party has not made it clear to the other that the relationship is over or that they are separated under the one roof, as I find was the case here, such continued residence is an important indicia of a de facto relationship.
In this case, I accept the applicant's evidence that the respondent did not tell her of his marriage to Ms M until July 2014. The applicant said, and I accept, that this was the first time it became apparent to her that the relationship was completely over. She sought to instruct solicitors shortly afterwards and a solicitor's letter was sent to the respondent on 4 November 2014, stating that "separation occurred on 14 July 2014" and seeking to resolve property issues. The respondent did not reply to that letter. Instead, he apparently telephoned the applicant and sought to persuade her to settle the matter without the intervention of lawyers.
My overall impression is that the respondent carried on essentially bigamous relationships with two women for many years. It is apparent that the applicant knew of the existence of another woman and knew that the respondent had at least one child with her. The respondent gave evidence that in about 2006 he tried to persuade the applicant to agree to him bringing [X] to Australia to live with them. It is clear from correspondence that the applicant was aware of [X]’s existence.
The definition of “de facto relationship” in subsection 4AA(5)(b) of the Act says “a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship”. The respondent’s relationship with Ms M, and later marriage to her, is not necessarily inconsistent with him being in a de facto relationship with the applicant.
For whatever reason, the applicant accepted an essentially bigamous arrangement for many years. My impression from her evidence was that she was, however, truly surprised and affronted by the news given to her by the respondent in July 2014 that he had married Ms M and that she and their children had been living in Darwin since 2013. That indicates to me that the applicant considered that some de facto relationship, however unsatisfactory, continued until July 2014.
It is necessary to address the indicia of a de facto relationship set out in section 4AA of the Act relevantly set out below.
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; 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
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.

In relation to (a), the duration of the relationship, notwithstanding the dispute as to the date of separation, this was clearly a long relationship of 27 years on the applicant’s case and 13 or, alternatively, 18 years on the respondent’s case.
In relation to (b), the nature and extent of their common residence, the applicant says that she and the respondent lived as a couple in the Property A property from 1989 until their separation in 2014. During this time, she says, they jointly carried out works on the property and shared in living costs. The respondent would pay for the mortgage, utilities and other bills, while she would meet day to day expenses like groceries. This continued until 2006, when, in her trial affidavit, the applicant says that she became the “family breadwinner,” as the respondent was no longer able pay for the mortgage and other expenses due to a decrease in income. The applicant deposes that she performed the majority of homemaking duties for herself, the respondent and Ms C, including cleaning, washing clothes and preparing family meals.
The respondent deposes that from 2001 to 2010 he usually lived with his son from a previous relationship, Mr B, in Town P and sought work in the Northern Territory until he had sufficient funds to return to the (country omitted). He says that he visited the property in Property A approximately twice a year to attend to maintenance and visit Ms C. Documents subpoenaed from the Department of Immigration and Border Protection show that the respondent sporadically recorded his address as being in Town P during this period. I consider this evidence to be dishonest and misleading. Contrary to his affidavit evidence, the respondent admitted in cross-examination that, despite periods of absence when he visited the (country omitted), he used the Property A property as a ‘base’ until about 2012. For this reason, I accept that, for the purposes of section 4AA(2)(b), the applicant and the respondent maintained a common residence until 2012.
In relation to (c), whether a sexual relationship exists or existed, the applicant says that she and the respondent shared a bed and engaged in a sexual intercourse until about 2009. Thereafter, the applicant says that the parties slept in different bedrooms but continued an intimate relationship until 2014. At trial, the applicant gave evidence that she and the respondent continued to use affectionate language like “sweetheart”, shared “kisses and cuddles” and that they “did stuff” which I take to refer to sexual intimacy of the kind previously described. This is consistent with a letter from the respondent dated 2009 which begins “To dearest Ms C and Mummy”. It goes on “I love you both very much and would like to ask for grace in our relationships.” Again, in a birthday card to the applicant dated 2014 the respondent signs “love Dad and Ms C.” As I have said, I accept the applicant’s evidence on this matter and I am satisfied that the parties continued to express some degree of intimacy and affection towards each other until 2014.
In relation to (d), the degree of financial dependence or independence between the parties, the applicant does not assert that she was financially dependent on the respondent. However, I do consider that there was a degree of financial interdependence throughout the relationship. For example, in 2005 the respondent built a home in the (country omitted) for the applicant. Text messages annexed to the applicant’s trial affidavit show discussions about money in 2013 about bills for the Property A property. However, I cannot be satisfied that the degree of financial interdependence was suggestive of a de facto relationship.
In relation to (e), the ownership, use and acquisition of their property, I note that there are no jointly owned bank accounts or property and that the parties’ finances have remained largely separate. This is not necessarily uncharacteristic of a de facto relationship. In this case, I give weight to the fact that the Property A property, the asset of most significance, was used jointly by the parties in a manner consistent with a couple cohabitating in a de facto relationship until 2014.
In relation to (f), the degree of mutual commitment to a shared life, I generally favour the applicant’s evidence. The applicant says that she became aware of the respondent’s affair, or affairs, in 2003 and that she became aware in 2005 that the respondent was the father of two children born to a woman in the (country omitted). I have no doubt that knowledge of these matters led to a relationship breakdown to some degree. However, I accept the applicant’s evidence that she remained in a committed de facto relationship with the respondent.
I am satisfied that the respondent led the applicant to believe that he remained committed to their relationship, despite what the applicant saw as infidelity, and successfully maintained a bigamous arrangement with her and Ms M for a number of years. The respondent has proven to be dishonest and misleading and I have no doubt of his ability to deceive and mislead the applicant in this regard.
In relation to (g), whether the relationship was registered under a prescribed law of a State or Territory as a prescribed kind of relationship, there is no evidence of the relationship being registered. I draw no inference from this.
In relation to (h), the care and support of children, the parties have shared in the care of Ms C and appear to be committed parents. It is not contested that the applicant has been the primary carer for Ms C, in part due to the respondent’s periods of absence in the (country omitted). The applicant has met the cost of the majority of expenses related to Ms C’s schooling and extra-curricular activities.
The respondent says that he would spend time with Ms C, including attending significant events and contributed towards the costs of her schooling at times. Significantly, the applicant never sought a child support assessment. In my view, this is consistent with her evidence that the two co-parented Ms C in a manner consistent with a de facto relationship where the applicant considered herself to be the “breadwinner”.
In relation to (i), the reputation and public aspects of the relationship, I approach the evidence with scepticism. The applicant says that until separation in 2014, the parties referred to each other in a social context as “my husband” and “my wife”. She says that she and the respondent socialised with friends and attended events as a couple. At trial, a friend of the applicant, Ms A, gave evidence that she had witnessed the parties attend events together as a couple during 2009 and 2010 including “get-togethers” in her home. However, in cross-examination, Ms A was unable to specify any particular date or event on which the parties attended her home. I generally found her to be an unpersuasive witness.
Counsel for the applicant relied on Marriage of Pavey (1976) 25 FLR 450 at 453 where the Court (Evatt CJ, Demack and Watson JJ) adopted the views expressed in Marriage of Todd (No.2) (1976) 25 FLR 260 at 263:
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
The respondent asserts that his separate finances, absences from the family home and his relationship with another woman are indicative of a separation with the applicant. However, these characteristics were present during the period of 2001 to 2006 when there is little doubt, in my view, that a de facto relationship with the applicant continued to subsist. The respondent effectively conceded in his evidence, and by his “alternative” case, that he and the applicant were in a de facto relationship during that period. In this case, I can see no distinct change in the relationship indicative of a separation until 2014 when the respondent moved out of the family home on a permanent basis and the applicant sought legal advice regarding a property adjustment.
In another passage from Marriage of Todd (No.2) referred to in Marriage of Pavey Watson J said:
Separation can only occur in the sense used by the Act where one or both of the spouses form an intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
I consider it highly relevant that the applicant did not seek advice regarding a property adjustment, an action consistent with and indicating her intention to sever the relationship, until 2014.
The applicant says that on 14 July 2014, she confronted the respondent and asked if he was having an affair. It was on this date, she says, that the respondent admitted to being married to Ms M and this caused the immediate and final severance of their relationship. This is consistent with the respondent moving out of the Property A property in August 2014. I accept the applicant’s evidence on this matter and am satisfied that the date of separation was 14 July 2014.
Having regard to all the circumstances of their relationship, I am satisfied that the parties had a relationship as a couple living together on a genuine domestic basis until 14 July 2014.
Accordingly, I find that this Court has jurisdiction to hear an application for alteration of property interests under the Act. Proceedings were commenced on 10 August 2016 so an extension of time of some 3½ weeks is necessary. This was not opposed and time will be extended accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 31 October 2018