DILLARD & GRAHAM
[2014] FCCA 1842
•20 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DILLARD & GRAHAM | [2014] FCCA 1842 |
| Catchwords: FAMILY LAW – Contravention Application – father found to have contravened the interim orders of 28 August 2013 as he had the parties’ son vaccinated without the consent or knowledge of the mother – orders made restraining the father from arranging or allowing medical treatment including vaccinating the child without the prior written consent of the mother or order of the Court save in an emergency – father ordered to pay the mother’s costs of the Contravention Application. FAMILY LAW – Costs of the mother’s Application in a Case reserved on 28 August 2013 – father ordered to pay the mother’s reserved costs as he was totally unsuccessful in relation to that application. |
| Legislation: Family Law Act 1975, ss.4AA, 61DA, 90SB, 90SM, 90RD, 90RJ, 117(2) |
| Sinclair & Hatcher [2014] FCCA 395 |
| Applicant: | MR DILLARD |
| Respondent: | MS GRAHAM |
| File Number: | MLC 7288 of 2012 |
| Judgment of: | Judge Bender |
| Hearing dates: | 4 April 2014 and 16 June 2014 |
| Date of Last Submission: | 16 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 20 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Harris |
| Solicitors for the Applicant: | Lennon Mazzeo Lawyers |
| Counsel for the Respondent: | Mr Puckey |
| Solicitors for the Respondent: | Croxford Partners |
ORDERS
Pursuant to Section 90RD(1) of the Family Law Act 1975 it is declared a de facto relationship existed between the applicant father Mr Dillard and the respondent mother Ms Graham between January 2011 and July 2011.
Upon consideration of the Amended Contravention Application of the mother filed 20 November 2013 and upon:
(a)the Court being satisfied that the father has committed a contravention of an order under the Family Law Act 1975 affecting children (being a contravention of paragraph 3 of the orders made in the Federal Circuit Court of Australia at Melbourne on 28 August 2013);
(b)the father not having proved that he had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Family Law Act having previously determined that the father has, without reasonable excuse, contravened the order referred to in (a) above; and
(d)the Court being satisfied that Subdivision B Division 13A of Part VII of the Family Law Act1975 applies to the contravention referred to in (a) above;
IT IS ORDERED THAT:
(i)the father be restrained from arranging or allowing any medical treatment for the child of the relationship X born (omitted) 2007 save with the prior written consent of the mother, order of the Court first obtained or in the case of emergency; and
(ii)the father pay the mother’s costs of the Amended Contravention Application fixed in the sum of $2,658.00.
The father pay the mother’s costs of her Application in a Case filed
20 August 2013 fixed in the sum of $2,658.00.
IT IS NOTED that publication of this judgment under the pseudonym Dillard & Graham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7288 of 2012
| MR DILLARD |
Applicant
And
| MS GRAHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
There are three distinct issues for determination before the Court in this matter.
The first matter relates to whether the parties were in a de facto relationship as defined by the Family Law Act 1975 (“the Act”) between January and July 2011 such that this Court has jurisdiction to hear the mother’s application for orders adjusting property between the parties pursuant to s.90SM of the Act.
The second matter is the mother’s Amended Contravention Application filed 20 November 2013 in which it is alleged the father had the parties’ son, X born (omitted) 2007 (“X”) vaccinated on the 11 September 2013 without the consent or knowledge of the mother in breach of Order 3 of the orders made by this Court on 28 August 2013.
In the running of the matter, the father conceded his contravention of Order 3 of the orders made 28 August 2013 and therefore the only issue for determination is what orders the Court should make arising from that contravention and whether the father pays the mother’s costs of and incidental to the Contravention Application issued by her.
The third matter involves the mother’s application that the father pay her costs in relation to her Application in a Case filed 20 August 2013. The Court heard that application on 28 August 2013 and the mother’s costs arising from that application were reserved to the final hearing.
Background
The father was born on (omitted) 1974 and is aged 40 years. He is
self-employed as a (omitted).
The mother was born on (omitted) 1976 and is aged 37 years. She is employed part-time as a (omitted).
The parties commenced a short-lived relationship in January 2005. In February 2006 the parties agreed to end that relationship but remained good friends who saw each other and occasionally had sexual relations – what both parties referred to as “friends with benefits”.
In 2007 the mother unexpectedly fell pregnant with X. Both parties agree it was an unplanned pregnancy.
From 2007 until 2010 the parties’ relationship was as parents to X only. During this period the parties underwent counselling to assist them better parent X as there were some difficulties between them in their co-parenting of X.
The parties were in the habit of meeting in the park with X from time to time to discuss parenting matters. As the parties were both enjoying being parents, in early 2010 the father raised with the mother at one of their park meetings the possibility of them having another child together so that X would have a sibling. The mother indicated to the father she would not want another child unless she was in a committed relationship.
During 2010 the parties travelled together with X on holiday to (omitted), (country omitted) and to the (omitted) Festival.
It is the mother’s evidence that when on holiday in 2010 she and the father were intimate. It is the father’s evidence they were only intimate at the (omitted) Festival in early December 2010.
At the end of the December 2010 the parties again spent time together. The mother gave the father an ‘ultimatum’. She told him she was not willing to return to a casual sexual relationship with the father and that if they were to be together it must be in a committed relationship.
The parties therefore agreed to, in the words of the father, “give it a go”.
In January 2011 the parties began spending three to four nights with each other, staying at either the father’s apartment in (omitted) or the mother’s rented home in (omitted).
The parties kept some personal belongings at each other’s homes, shared groceries and went out regularly as a couple, including visiting friends and family.
The long standing care arrangements that the parties had for X prior to them commencing their committed relationship continued between January and July 2011 with the father caring for him on Wednesday and Sunday nights when the mother worked and the mother caring for him Monday night when the father played tennis.
Between January and July 2011, the parties remained financially independent of each other with the mother receiving a single parent benefit in addition to her wages from her part-time employment and the father paying child support as assessed by the Child Support Agency on the basis that he had 27% of X’s care.
In July 2011 the father telephoned the mother and advised her that their committed relationship was at an end.
Whilst the parties were in their committed relationship between January and July 2011, they planned a ‘family’ holiday to (country omitted) in late 2011. Despite the breakdown of the relationship the parties and X went to (country omitted) together for the holiday in late 2011. Whilst it would appear the parties were again intimate during this holiday, both agree that this holiday saw the absolute end of any romantic or sexual relationship between them.
On 13 August 2012 the father filed an Initiating Application seeking parenting orders.
On 30 August 2012 the mother filed a Response seeking both parenting and property orders.
On 18 September 2012 the matter came before the Court. Procedural orders were made listing the parenting matters for final hearing on 15 May 2013. There was a notation to those orders as follows:
A.In the event that the mother intends to pursue her application for property orders then she shall file additional material by way of a further affidavit and amended Response in support of such an application and the mother’s solicitors shall write to the Chambers to Federal Magistrate Bender seeking a mention date to enable directions to be made.
On 27 March 2013 the mother filed an Amended Response in which she sought the Court make such property orders as the Court deems fit.
In accordance with the notation made 18 September 2012, the matter was listed for mention on 18 April 2013. On that date the final hearing date of 15 May 2013 was vacated and the matter was listed for mention only on that date. The court was advised parenting matters had resolved and accordingly the matter was also listed for final hearing in relation to property matters only on 27 September 2013 and orders made for the father to file an Amended Initiating Application, affidavit and financial statement.
On 15 May 2013 final parenting orders were made by consent.
On 22 May 2013 the father filed an Amended Initiating Application in which he sought inter alia the following order:
1.The Court effect a property settlement on such terms as it deems fit.
On 17 July 2013 the matter came before the Court because of issues between the parties in relation to the valuation of the father’s company and family trust. On that occasion Counsel for the father in submissions to the Court stated as follows:
“The father concedes that it [the parties’ de facto relationship] was approximately January 11 to July 11. The mother gives fairly vague evidence that it was a much more expansive period. It’s probably the fact that there will be a property settlement but having regard to the evidence before the court the quantum of that property settlement at the moment is very, very difficult to predict.”
On 27 September 2013 the matter came before Judge Hughes for final hearing. On that date Counsel for the father indicated to the Court that it was now the father’s case that the parties had never been in a de facto relationship and thus the question of whether the Court has jurisdiction to hear the matter needed to be determined as a preliminary matter before the mother’s application for property orders could be heard.
Accordingly on 27 September 2013 Judge Hughes made orders adjourning the application for a declaration as to whether or not a
de facto relationship existed between the parties for hearing on 4 April 2014 for one day and the substantive property application for final hearing on 18 and 19 June 2014.
The hearing of the application for a declaration as to whether or not a de facto relationship existed required two days of evidence and had to be adjourned part heard to 16 June 2014. Because of this the final hearing dates of 18 and 19 June 2014 on the substantive property application had to be vacated.
Application for Section 90RD declaration
It is the mother’s submission that the parties were in a de facto relationship between January 2011 and July 2011.
Whilst acknowledging the parties were financially independent during this period, the mother argues that during this period the parties were in a committed and loving relationship during which time they shared their life and the care of X together.
The father argues that during this period he and the mother attempted to have a more committed relationship than that which they had previously. It is his argument however that during this period they did not achieve a level of commitment or a merging of their lives such that their relationship could be considered a de facto relationship as defined by the Act.
The Law
Statutory Provisions
Section 90RJ of the Act provides:
Any party to the primary proceedings may apply for a section 90RD declaration.
Section 90RD of the Act provides:
(1) If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA of the Act sets out the definition of de facto relationships. Section 4AA provides as follows:
(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.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
Section 90SB of the Act provides:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
The Legal Principles
In my recent decision of Sinclair & Hatcher [2014] FCCA 395 I was determining whether the parties were in a de facto relationship as defined by the Act.
In paragraphs 24 to 31 of my judgment in Sinclair & Hatcher (supra) I set out what I consider the legal principles that govern the determination of this issue. Whether they were being tactful or because they were genuinely impressed with the quality of my jurisprudence, both Counsel for the father and mother referred the Court to that section of the judgment as an accurate reflection of the law. In those paragraphs I set out the legal principles as follows:
24.In Jonah v White [2011] FamCA 221 Murphy J held that a declaration pursuant to section 90RD of the Act does not involve the exercise of judicial discretion but is rather a determination of fact.
25. At paragraph 39 His Honour held:
The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148 the High Court held:
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.
26.In this matter the jurisdictional fact to be determined is whether the parties had a relationship as a couple living together on a genuine domestic basis.
27.Justice Cronin in the matter of Taisha & Peng & Anor [2012] FamCA 385 held that section 4AA(1) of the Act contains the mandatory requirements for determining whether there is a de facto relationship and that it is not necessary to look to section 4AA(2) of the Act unless there is “some definitional uncertainty from initial readings of section 4AA(1).”
28.Justice Cronin held that the matters contained in section 4AA(2) of the Act are to be used only as a guide for the purposes of section 4AA(1) of the Act.
29.Judge Brown in the matter of Keene & Scofield (No.2) [2013] FCCA 1107 summarised the legal principles applicable to the determination of whether there had been a de facto relationship as defined by the Act. His Honour’s summarisation of those principles are as follows:
38. In Taisha v Peng[1] Cronin J held that section 4AA(1) contained the mandatory requirements “for the existence or otherwise of a de facto relationship, whilst the matters listed in section 4AA(2) were to be utilised as a guide only for the purposes of the preceding sub section.”
[1] See Taisha v Peng (2013) 48 FamLR 150 at 152
39. Mushin J in Moby & Schulter[2] considered that the question of whether the parties concerned were in a de facto relationship “must be considered on a case-by-case basis without circumscribing any particular factor”. Accordingly, it is potentially erroneous for the court to attempt to isolate individual factors and attribute relative degrees of importance. It is the “composite picture” which is important.[3]
[2] See Moby & Schulter (2010) FLC 93-447 at 85,063
[3] See Taisha v Peng (supra) at 153
40. In Jonah Murphy J indicated that “the key” to the definition contained in section 4AA(1) was:
“…the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”
43. In Moby & Schulter Mushin J considered that the concept of “genuine domestic basis” was not a term of art but must be given its ordinary meaning. In particular, he considered that due regard must be had to the circumstances of modern life, which necessarily has the potential to throw up diverse relationships outside of the norm, which could nonetheless be considered genuine domestic ones, in common parlance.[4]
[4] See Moby & Schulter (supra) at 85,067
44. The existence or otherwise of a marriage is established by one unequivocal event, which is readily memorialised by official edict. No one event is necessarily definitive of the existence of a de facto relationship. In Moby Mushin J made the following comments, which seem to me to be germane to the present case:
“The parties' relationship may be seen as having gone through a number of different phases. The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship. Accordingly, it is appropriate to consider the facts of the parties' relationship in those different phases and then step back and take an overview of the entirety of the facts.”[5]
[5] See Moby & Schulter (supra) at 85,067
45. In this case, both Mr Keene, but particularly Ms Scofield, assert that the relationship went through a number of different phases. It also clearly had a number of different aspects. It will be necessary for me to outline the various phases of their relationship and step back from it to determine what was the nature of their relationship together, from the totality of the facts arising. It is at the end of that deliberation that I must be satisfied as to the existence of a domestic relationship.
46. Domestic derives from the Latin domus, literally a home. As an adjective, it pertains to the home, household or family affairs[6] In this context Cronin J in Taisha v Peng said as follows:
[6] See the Australian Oxford Dictionary
“… there must still be evidence of a domestic relationship. Mushin J in Moby said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”[7]
[7] See Taisha v Peng (supra) at 153
47. It is clear from the content of section 4AA(5) that a de facto relationship does not have to be exclusive in order to satisfy the definition contained in subsection (1). A de facto relationship can exist, even if one of the person’s is legally married to someone else or even in another de facto relationship.
48. In this context, Murphy J did not consider that temporal or quantative aspects were central to the existence or otherwise of a state of coupledom existing between the parties concerned. Rather, in his view, the issue turned on the nature of the relationship in question. In Jonah he said as follows:
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.[8]
30.Thus it can be seen that in order to determine whether the parties in this matter were in a de facto relationship, the Court must consider the “nature of their union, whether there was a merger of two individual lives into life as a couple”.
31.The Court must be satisfied that the parties lived together as a couple on a genuine domestic basis. No one particular factor will determine whether the parties have lived together in a de facto relationship but rather the relationship “as a whole” must be considered, although guidance can be taken from the factors enunciated in section 4AA(2) of the Act.
[8] See Jonah v White (supra) at 472
The Evidence
The mother relies on paragraphs 2 and 3 of her affidavit sworn
29 August 2012, her affidavit sworn 26 March 2013, paragraphs 1 to 9 of her affidavit sworn 12 September 2013, her affidavit sworn
12 November 2013 and her affidavit sworn 4 April 2014. She also gave viva voce evidence at the final hearing.
In addition the mother relies on the affidavit of her mother Ms M sworn 30 October 2013 and of Ms T sworn 12 November 2013. Both Ms M and Ms T gave brief viva voce evidence at the final hearing.
The father relies on paragraphs 3,8,9,11,12,16 and 18 of his affidavit filed 13 August 2012, paragraphs 3, 4 and 6 of his affidavit filed
10 May 2013, his affidavit filed 13 September 2013 and his affidavit filed 4 March 2014. He also gave viva voce evidence at the final hearing.
The father also relies on the affidavits of his father Mr E affirmed 3 March 2014, Mr C affirmed 7 March 2014 and Ms G affirmed 2 April 2014. None of these witnesses were required for cross-examination.
Did the parties live together on a genuine domestic basis?
When the mother first sought orders from this Court in relation to property matters in 2012, the mother in her affidavit filed in support of her application alleged that the parties were in a de facto relationship from 2006 until final separation in 2011.
However, Counsel for the mother in his opening statement at the final hearing in relation to the s.90RD declaration issue advised the court that it is the mother’s position that the parties were living in a de facto relationship as defined by the Act for the period only between January and July of 2011.
As was properly submitted by the mother’s Counsel, the relatively short duration of the parties’ relationship does not impact on the mother being able to invoke the Court’s jurisdiction to deal with her property application. Section 90SB of the Act states that a Court may make an order under s.90SM in relation to a de facto relationship if the Court is satisfied that there is a child of the relationship.
In this matter, there is a child of the relationship.
It is common ground between the parties that between January and July 2011 they maintained separate residences. The father maintained his apartment in (omitted) and the mother maintained her house in (omitted).
It is common ground between the parties that between January and July 2011 the parties spent on average of three to four nights with each other each week, either at the father’s residence or at the mother’s residence.
It is the mother’s evidence that her property in (omitted) was rented, but she was not bound by any written lease. The mother had a sufficiently amicable relationship with her landlord that she could have terminated her lease without penalty. However, it is her evidence that as she owns a dog and it was not possible for her to have the dog with her at the father’s apartment, she needed to maintain her (omitted) property.
Between January and July 2011 the mother was employed as a (omitted) and was working part-time on Wednesday and Sunday evenings, often working a double shift. It was very rare for her on these evenings to stay with the father though there were occasions on a Sunday at the end of her shift when she would stay at the father’s residence. When the mother was working, the father had X in his care.
Both parties agree that they had keys to each other’s residence and they were able to come and go from each other’s residences without issue.
It is also common ground that each party kept particular items of food in the other’s fridge including the milk they liked as well as yoghurt and other fruits and cereals that they preferred.
The parties also jointly shopped for groceries in order to cook their joint evening or other meals.
It is the mother’s evidence that she kept toiletries, pyjamas and some clothing at the father’s residence and that the father kept toiletries and night attire at her home. She concedes that she had more items at the father’s home than he had at hers. This was explained to some degree by the parties’ evidence that more of the nights they spent together were at the father’s apartment than at the mother’s house.
It is argued on behalf of the mother that the parties having separate residences does not exclude a finding by this Court that the parties were in a de facto relationship. As Murphy J stated in the decision of Jonah & White (supra), the parties living in the same residence for only a small part of the week does not exclude the possibility that they are living together as a couple on a genuine domestic basis.
It is argued on behalf of the mother that in the period between January and July 2011 the parties were living together on a genuine domestic basis, which is shown by the sharing of general day-to-day domestic duties, including cooking, cleaning and caring for each other as well as the care of their son X.
It is argued on behalf of the father that whilst the parties did spend regular time with each other on a weekly basis during this period, they maintained their lives in a very similar pattern to that which had existed prior to this period in that they maintained their own homes, remained completely financially independent of each other and made no alterations to the care arrangements for X that had existed prior to this period. It is therefore argued by the father that they did not live together on a genuine domestic basis.
Section 4AA(2) Factors
I will now consider s.4AA subsection (2).
In so doing, it is recognised that none of the factors are of themselves determinative of the question of whether the parties were in a de facto relationship and must be regarded as a guide only in the determination of that question.
The Duration Of The Relationship
The history of the parties’ relationship is somewhat unusual.
To use a very old-fashioned term, the parties “dated” for a couple of months in late 2005 early 2006, at which time both parties decided that theirs was not destined at that time to be a committed relationship.
For the next 18 months, they were very good friends who enjoyed a casual sexual relationship.
Unexpectedly and without planning, the mother fell pregnant in early 2007 and the parties’ son X was born in (omitted) 2007.
After X’s birth the parties’ relationship was very much one of being X’s parents only and at times they struggled in being able to always agree on the best way to parent X.
In 2010 the parties’ relationship improved and they took a number of family holidays with X to (omitted), to (country omitted) and in early December 2010 to the (omitted) Festival.
It is common ground that at the (omitted) Festival the parties were sexually intimate, albeit it is the mother’s evidence that they were also sexually intimate on the earlier family holidays in 2010.
It is common ground that early in 2010 the father had raised with the mother the possibility of them having a second child in order for X to have a sibling as both parties were enjoying being parents. It is also common ground that the mother made it very clear to the father that she was not prepared to contemplate another child unless she was in a committed relationship that would enable two loving parents to raise that child together.
Around New Year’s Eve 2010 the parties were together and the mother gave the father an ultimatum that she was not prepared to return to their former casual sexual relationship and wanted a committed relationship with him.
As a result of the discussions between the parties on New Year’s Eve in 2010 they made a decision to embark on a committed relationship together. To use the words of the father, they decided “to give it a go”.
Again it is common ground that the relationship described previously in this judgment ensued for the period between January to July 2011 and came to an end when the father telephoned the mother to advise her that for him their relationship wasn’t working and that he considered the relationship to be at an end.
Perhaps somewhat unusually, the parties agreed to still go on a joint holiday with X to (country omitted) in late 2011. This was a holiday they had planned and paid for before the separation and they both agreed to go ahead with it.
It would appear that there was some degree of sexual intimacy between the parties during this holiday but by the end of holiday, both were in heated accord that their relationship in any form other than as X’s parents was at an end.
The nature and extent of their common residence
The parties did not have a common residence for the entirety of their relationship and in particular in the period between January and July 2011.
It is common ground that the parties spent overnight with each other in either the father’s apartment or the mother’s rented property in (omitted) three or four nights each week. It is the parties’ evidence they were more often at the father’s apartment than at the mother’s house.
The parties agree that they both had a key to the other’s home and were able to freely come and go from each other’s premises.
Whether a sexual relationship exists
The parties had a casual sexual relationship from late 2005 until mid-2007.
Their sexual relationship resumed either during or at the end of 2010.
For the period January 2011 to July 2011, the parties were in a monogamous sexual relationship.
The degree of financial dependence or interdependence on any arrangements for financial support between them
The parties in this matter were financially independent of each other save and except that the father paid the mother child support for X as assessed by the Child Support Agency.
From January to July 2011, the mother remained in receipt of a single parent’s pension from Centrelink.
In the period January to July 2011, the parties at no time contemplated or discussed any merging of their financial affairs.
What is the ownership, use and acquisition of their property
At no time did the parties jointly own any property and as was the situation in relation to their financial affairs, at no time was there ever any discussion between them in relation to the acquisition or use of jointly owned assets.
The degree of mutual commitment to a shared life
There is no doubt that as a result of the discussions that the parties had on New Year’s Eve in 2010 there was a mutual decision made to quite drastically alter the nature of the relationship that they had had with each other up until that time.
It is common ground that the mother gave the father an ultimatum that unless he was prepared to commit to a relationship with her there would be no returning to the previous casual “friends with benefits” relationship that had existed in the period leading up to X’s conception.
It is the mother’s evidence that she believed the father was genuine in his willingness to attempt a committed relationship with her. In his viva voce evidence the father confirmed that he was genuine in his discussions with the mother when he agreed they would “give it a go”.
It was also apparent that subsequent to that discussion the parties put in place arrangements whereby they spent at least three or four nights each week with each other as well as taking trips together for weekends, going out to dinner and shows and sharing their day-to-day lives including the parenting of their son X.
When giving his viva voce evidence, the father was extremely reluctant to use the words “relationship”, “committed”, “living together” when questioned about his relationship with the mother between January and July 2011. It was his evidence that during this period their relationship was much more than one of “friends with benefits”, but he was otherwise unable to describe what their relationship was other than they were “giving it a go”.
Perusal of the father’s various affidavits filed in the course of these proceedings are somewhat illuminating in the language used by him when describing the parties’ relationship between January and July 2011.
In the father’s affidavit filed 13 August 2012 in paragraph 3 he deposes as follows:
The Mother and I met in 2005 and commenced a casual sexual relationship. The Mother and I have never lived together. Save for a short period of time between January 2011 and July 2011,
I do not consider the mother and I to have even been in a committed relationship.
In the father’s affidavit sworn 3 May 2013 at paragraph 3 he deposes as follows:
… Save that for a short period between January 2011 and July 2011 where I would spend three nights per week with Ms Graham, I have not lived with her on a permanent basis. Prior to that time, apart from having a casual relationship from in or about 2005 until 2007, I have never been in a relationship with Ms Graham.
In paragraph 4 of the father’s affidavit affirmed 15 July 2013 he deposes as follows:
Between January 2011 and July 2011, the respondent and I attempted to foster a committed relationship for the benefit of our son. For that period, the respondent and I spent three nights a week with each other at either my home or the respondent’s home.
In the father’s affidavit affirmed 13 September 2013 in paragraph 12 he deposes:
In December 2010, the respondent and I took X to the (omitted) festival. A few weeks following the festival, at which the respondent and I were very amicable, the respondent and I agreed that we would, for X’s sake, trial being in a “relationship” with each other from January 2011.
Finally, in the father’s affidavit affirmed 3 March 2014 in paragraph 22 the father deposes as follows:
… A few weeks after the festival, at which Ms Graham and I were very amicable, Ms Graham said that she wanted us to be in a relationship. I ultimately agreed to give it a shot …
As previously set out in this judgment, when this matter was before the Court on 17 July 2013, the Counsel appearing for the father acting on the father’s instructions confirmed with the Court that the issue of whether the Court had jurisdiction to hear a property matter was not in issue but rather the issue was the length of that relationship. The father’s then Counsel clearly indicated to the Court that his client conceded that the parties had been in a de facto relationship for the period between January 2011 and July 2011.
It is the mother’s consistent evidence that particularly for the period January 2011 to July 2011 she considered the parties to be in a committed domestic relationship.
Quite properly, Counsel for the father referred the Court to the matter of Sinclair v Whittaker (2013) FamCAFC 129 and in particular paragraph 65 where the Full Court held:
… given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not the parties.
It was therefore submitted on behalf of the father that the submissions by the father’s Counsel that may have reflected the father’s understanding of what constituted a de facto relationship in July 2013 is in no way determinative of this issue. Whether the parties were in a de facto relationship is a matter of jurisdictional fact which must be determined by the Court on the basis of the definition contained in the Act.
That it is a matter for the Court to determine whether the parties were in a de facto relationship is not disputed. However, as was stated by the Full Court in Sinclair v Whittaker (supra) the perception of the parties of the nature of the relationship is a relevant matter even if it is not determinative.
I am therefore satisfied on the evidence that both parties were of the view that between January and July 2011 they were in a committed relationship and during that period they were genuinely attempting to merge their lives and saw themselves as a couple.
Whether the relationship is or was registered under a prescribed law of a state or territory or as a prescribed kind of relationship
The parties had not registered their relationship under the prescribed laws of Victoria.
Care and support of children
The parties’ son X was born on (omitted) 2007.
X’s conception was not planned and occurred at a time when the parties were friends and enjoying a casual sexual relationship.
From X’s birth including the period between January and July 2011, the parties have shared in X’s care and support.
The reputation and public aspects of the relationship
It is the mother’s evidence that during the period January to July 2011, her family and friends were very much aware that she and the father were in a committed relationship with each other.
It is the mother’s evidence that during this period her mother would assist in the care of X, including babysitting when she and the father went out together to dinner, shows and other events.
It is the mother’s evidence that during this period she and the father spent more time with the father’s friends than with hers. It is her evidence that on two or three occasions she, the father and X stayed with the father’s friends in (omitted) where she and the father slept in the same bed.
It is the mother’s evidence that the paternal grandfather was aware of the change in their relationship, and that on one or two occasions she, the father and X shared a meal with the paternal grandfather at his home.
The maternal grandmother filed an affidavit on behalf of the mother in support of this application, as well as giving viva voce evidence.
It is the maternal grandmother’s evidence that she was told by the mother of the decision that the mother and the father had made in early 2011 to have a committed relationship.
It is the maternal grandmother’s evidence that at least once a month between January and July 2011 she babysat X so that the parties were able to go out together.
It is the maternal grandmother’s evidence that in July 2011 the mother told her that the father had rung her to advise her that he considered the relationship to be at an end.
The mother’s friend, Ms T, also swore on affidavit on behalf of the mother in these proceedings and gave viva voce evidence.
It is Ms T’s evidence that she has known the mother for over 20 years and that they speak to each other several times a week.
It is Ms T’s evidence that in the period between January and July 2011 she did not see the mother and the father as she does not particularly like the father. It is her evidence that she spoke regularly with the mother during this period and the mother told her that she and the father were in a committed relationship.
Ms T also confirmed that the mother told her in July 2011 about the breakup of the relationship after the telephone call from the father.
It is the father’s evidence that the nature of his relationship with the mother during the period January to July 2011 was not publicly known and that neither his family or friends were aware that there had been any change in his relationship with the mother.
The father was adamant in his evidence that the mother had never attended any of his family functions, and in particular the weekly family Sunday lunch with the paternal grandfather.
The affidavits sworn by the paternal grandfather deposes to him not being aware of the relationship between the father and the mother and that she never attended for a Sunday lunch at his home.
The affidavits by Mr C, Mr K and Ms G all state that they were not aware of the nature of the relationship between the father and the mother and that they had not spent any time with the father and mother as a couple.
Conclusion
It is submitted on behalf of the father that whilst the parties were in a relationship between January and June of 2011, that relationship never reached the level of commitment, or achieved a merging of their lives such that the relationship could be considered to meet the definition of de facto relationship as set out in the Act.
It is submitted on behalf of the father that when all the various aspects of the parties’ relationship in the period June to July 2011 are considered together, the parties cannot be seen to be a couple living together on a genuine domestic basis.
In support of the father’s submission that the parties were not living together on a genuine domestic basis, the following matters were highlighted: the parties maintained separate residences; there was absolutely no merging of their finances and that they separately paid the costs of each of their households, including rental and utilities; other than some pyjamas and limited toiletries they did not maintain any belongings at each other’s homes; the care arrangements for X did not alter during this period to that which was in place prior to this change in their relationship: the mother continued to receive child support and the single parents benefit for the entirety of this period; the parties did not share friendship groups; the parties did not attend family functions, birthdays and the like, and there was no future planning of the type usually made by couples embarking on a life together.
It is submitted on behalf of the father that given all these factors, the parties did not create an overall picture of what Murphy J described as “coupledom”.
It is submitted on behalf of the mother that whilst only for six months, between January and July 2011 the mother and father did live together as a couple on a genuine domestic basis.
Whilst conceding that there was no financial interdependence between the parties or jointly owned property, it was submitted on behalf of the mother that the law is quite clear that no one particular factor, or the absence of one particular factor, is determinative of the question of whether the parties were living in a de facto relationship.
It is submitted on behalf of the mother that when you look at the totality of the parties living arrangements between January and July 2011, particularly when taken in the context of the entirety of their relationship as a whole, it is quite apparent that a de facto relationship existed in this six month period.
Counsel for the mother in particular highlighted that there was an agreement by both of the parties that they would, to use the words of the father, “give it a go”, they thereafter spent three or four nights with each other each week in each other’s residences, they exchanged keys so they could come and go from each other’s homes, they left personal items in each other’s homes, albeit not entire wardrobes, they kept groceries in each other’s homes to meet their individual preferences, they undertook domestic duties for each other in both homes and jointly cared for their son X.
It is submitted on behalf of the mother that whilst the period that the parties were in a de facto relationship was short-lived and was clearly unsuccessful, that does not mean that there was not a de facto relationship as defined under the Act during that time.
It is submitted on behalf of the mother that for there to be a de facto relationship it is not necessary for the parties to live together 24/7. The Act quite clearly envisages circumstances where parties can be in a de facto relationship even though they are married to another party or are in another de facto relationship. Murphy J in Jonah v White (supra) eloquently stated:
The issue … is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union — the merger of two individual lives into life as a couple — that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
In this matter I am satisfied that for a period of six months these parties did merge their two individual lives and live as a couple. During this period, the parties spent three to four nights together each week. The nights they did not spend together were dictated by the realities of their lives as the mother was working on two of those nights and the father had sporting activities on the third.
The parties shared some level of domestic duties for each other, they went out together as a couple, they cooked for each other, they kept a modicum of personal items at each other’s homes, they kept food for each other in their homes, they organised their lives to fit in with each other whilst they continued to care for their son.
During this period, they both considered themselves to be in a committed relationship and it is apparent that whilst the father’s views on the level of that commitment has somewhat dissipated with the passage of time, until very recently he considered himself to have been in a de facto relationship with the mother during this period.
Whilst the parties’ views as to the nature of their relationship are not determinative, it is a matter of relevance to the ultimate determination of the matter.
Accordingly, I am satisfied in all of the circumstances of this case that a declaration should be made, pursuant to section 90RD of the Act that for the period from January to July 2011 the parties were in a de facto relationship.
Contravention Application
On 20 August 2013 the mother issued an urgent Application in a Case as the father was about to travel to (country omitted) with X. The mother sought orders that the father not cause X to be vaccinated or subjected to any other medical treatment other than for necessary emergency treatment and that whilst in (country omitted) the father not take X on a motor bike.
That application came before the court on 28 August 2013, and orders were made as follows:
THE COURT ORDERS THAT:
1.Each party be restrained by injunction from transporting the child, X born (omitted) 2007 (“X”) on a motorcycle (including scooters).
2.The mother’s costs of the Application in a Case filed
20 August 2013 be reserved to the final hearing.
THE COURT ORDERS, BY CONSENT, THAT:
3.Each party be restrained by injunction from further vaccinating X save for in accordance with the recommendations of the child’s treating practitioner,
Dr G, and each party notify the other prior to further vaccinating the child.
On 20 November 2013, the mother filed an Amended Contravention Application, in which she alleged that the father had contravened Order 3 of the Orders made on 28 August 2013 in that on 11 September 2013 the father without consulting or advising the mother had X vaccinated by a medical practitioner.
It is to this contravention that the father has pleaded guilty. He concedes that on 11 September 2013 X was vaccinated without the knowledge or consent of the mother and on the recommendation of a doctor other than Dr G.
It is the father’s evidence that by agreement he was travelling to (country omitted) with X in late September 2013 and that the travel doctor that he was consulting in relation to that travel had recommended that X be vaccinated. The father had X vaccinated as recommended by the travel doctor. The father conceded that he did not consult the mother in relation to this vaccination as he and the mother have somewhat differing views on the issue of vaccination and he knew the mother would not have agreed to X being vaccinated.
It is the father’s further evidence that when the orders were made on
28 August 2013 he was not personally present in court as he had work commitments. Whilst he was represented on that day, it is the father’s evidence that when his solicitor explained to him the orders that the Court made on that day, his solicitor did not tell him that an order had been made in relation to restraining him from having X vaccinated. It is the father’s evidence that his solicitor only told him he was not allowed to take X on a motor bike.
It is the father’s evidence that he was not made aware of the terms of the orders made 28 August 2013 until he was provided with a copy of the order some six weeks prior to the final hearing date of this matter.
When cross-examined in relation to X’s medical care, it is the father’s evidence that were it not for the order restraining him from having X vaccinated other than as recommended by Dr G and with the consent of the mother, he would proceed to have X vaccinated without the mother’s consent if that was recommended by the doctor that he took X to.
In submissions made on behalf of the mother in relation to the sanctions or orders the court should make in relation to the father’s contravention of the court’s orders, the mother solicitor’s proposed that the court should make orders that provide for the mother to have sole parental responsibility for X, for the father to be restrained from arranging or allowing any medical treatment for X save with the prior written consent of the mother, order of the court first obtained or in the case of emergency and that the father otherwise pay the costs of the mother of and incidental to the contravention application issued by her.
It was submitted on behalf of the mother that it was apparent from the father’s evidence that he was not prepared to properly consult the mother in relation to matters pertaining to X and that he was prepared to act on his own decisions even when he was fully cognisant of the mother’s total opposition to such decision and action.
It is submitted on behalf of the father that the Court should accept that the father was genuinely unaware of the order that had been made by the Court in relation to X being vaccinated other than with the consent of the mother and that he therefore did not knowingly breach the order.
It was therefore submitted on behalf of the father that given the particular difficulties exhibited by the parents in being able to agree on this issue, they would benefit from attendance at a parenting after separation program.
It is common ground that these parties have attended quite intensive counselling in relation to their parenting as separated parents. I can see little benefit in them attending a further post-separation or other program in relation to the difficulties that they have from time to time in their co-parenting.
Given that the restraining order that was made in relation to having X vaccinated was made by consent, I have some difficulty in accepting the father’s evidence that he was not aware that this order had been made.
I also have some difficulty in believing the father’s legal practitioner did not provide the father with a copy of the orders made on 28 August 2013 when the sealed orders were received by the father’s solicitors.
Whilst the father has contravened the Court’s order on this occasion, I am not satisfied that that is a sufficient basis for this court to rebut the presumption contained s.61DA of the Act that it is in X’s best interest that the parties have equal shared parental responsibility for their child.
Given the father’s evidence that he would have X medically treated as he thought best even when he knew the mother would oppose such treatment, it is apparent that an order restraining the father from arranging medical interventions for X without the written consent of the mother is needed. Accordingly an order will be made in those terms.
The father only conceded that he had contravened the order of the Court on the second day of the hearing. Given that late concession, and that he has contravened the orders of this Court, I am satisfied that the father should pay the mother’s costs of and incidental to the contravention application. An order will be made for the father to pay the mother’s costs in accordance with the Federal Circuit Court Scale in the sum of $2,658.00.
The mother’s cost of the Application in a Case filed 20 August 2013 and reserved on 28 August 2013
As set out previously in this judgment, the mother’s costs of her Application in a Case filed 20 August 2013 were reserved on
28 August 2013 to the final hearing of this matter.
The mother now seeks an order be made that the father pay her costs as reserved.
At the hearing of the mother’s Application in a Case on 28 August 2013, whilst there was an order made by consent in relation to the vaccination issue, albeit the father apparently has no recollection that he had consented to that order, the question of taking X on a motorbike whilst on a holiday in (country omitted) remained live.
Having heard the parties’ submissions in relation to that issue, orders were made in the terms sought by the mother.
As the father had already consented to an order in relation to X being vaccinated, if he had also agreed to an order that he not take X on a motorbike prior to the hearing date, the mother’s costs associated with having to pursue that matter would have been avoided.
In circumstances where the father was totally unsuccessful in relation to his opposition to the mother’s application, I am satisfied that pursuant to s.117(2) of the Act it is appropriate the father pay the mother’s costs of her Application in a Case filed 20 August 2013. An order will be made for the father to pay the mother’s costs in accordance with the Federal Circuit Court Scale in the sum of $2,658.00.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 20 August 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Consent
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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Statutory Construction
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