DREW & VICKERY
[2010] FMCAfam 1307
•26 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DREW & VICKERY | [2010] FMCAfam 1307 |
| FAMILY LAW – De facto relationship – Periods of separation – jurisdiction of court – signing of ‘termination agreement’ under State legislation – setting aside of agreement by conduct – duress – determination of threshold issue – accrued jurisdiction – estoppel by conduct/convention – declaration of whether there is a child of the de facto relationship. |
| Family Law Act 1975 (Cth), ss.4(1), 4AA, 31(1)(aa), 39A(1) & (2), 39B(1) & (2), 39C, 39D, 39F, 40A, 79, 79A, 90RA, 90RC, 90RD(2)(a), 90SB(a) 90SB(b), 90SL(1), 90SM(1), 90SM(3), 90SM(4), 90SN, 90UM(1)(e), 90UM(1)(f), 90UM(1)(h) Contracts Review Act 1980 (NSW), ss.7, 9 |
| Aguilar & Aguilar [2009] FamCA 1343 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Commissioner of Taxation v Anstis (2010) HCA 40 (11th November 2010) Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Davison v Queensland (2006) 226 CLR 234 DMW v CGW (1982) 151 CLR 491 Fencott v Muller (1983) 152 CLR 570 George v Hibberson (1987) DFC ¶95-054 Grundt v. Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Hamblin v Dahl (2010) 239 FLR 111 Howland v Ellis (2001) 28 Fam LR 656 Jones v Grech (2001) 27 Fam LR 711 Le May v Clark (2006) DFC ¶95-327 Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 Milevsky v Carson (2005) DFC ¶95-314 Nilant v Macchia (2000) 104 FCR 238 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Roy v Sturgeon (1986) 11 NSWLR 454 In the Marriage of Sommerville (2001) 27 Fam LR 233 Valceski v Valceski (2007) 36 Fam LR 620 Warby v Warby (2001) 28 Fam LR 443 Watson v Holmes (2009) 39 Fam LR 571 Yunghanns v Yunghanns (1999) 24 Fam LR 400 A. Barlow, S. Duncan, G. James & A. Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century, (Oxford & Portland: Hart Publishing, 2005) M.A. Glendon, The Transformation of Family Law: State, Law and Family in the United States and Western Europe, (Chicago & London: University of Chicago Press, 1989) K.R. Handley, Estoppel by Conduct and Election, (Sydney: Thomson – Sweet & Maxwell, 2006) Dr D Kovacs, “A federal law of de facto property rights: The dream and the reality,” (2009) 23 Australian Journal of Family Law 104-121 G. Lind, Common Law Marriage: A Legal Institution for Cohabitation, (Oxford: Oxford University Press, 2008) D.C. Pearce & R.S. Geddes, Statutory Interpretation in Australia, (Sixth Edition) (Sydney: LexisNexis – Butterworths, 2006) Hon Justice Watts, “The de facto relationships legislation,” (2009) 23 Australian Journal of Family Law 122-143 |
| Applicant: | MS DREW |
| Respondent: | MR VICKERY |
| File Number: | CAC 132 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 27 August 2010 |
| Date of Last Submission: | 27 August 2010 |
| Delivered at: | Canberra |
| Delivered on: | 26 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Jackson |
| Solicitors for the Applicant: | Farrell Lusher, Wagga Wagga |
| Counsel for the Respondent: | Mr C. Wilson |
| Solicitors for the Respondent: | Creaghe Lisle, Wagga Wagga |
ORDERS
Within 14 days, the parties are to provide a draft of the Orders to be made by the Court which reflect these reasons and deal with the future conduct of the matter.
The matter be adjourned for further directions on 9th February 2011 in Wagga Wagga.
IT IS NOTED that publication of this judgment under the pseudonym Drew & Vickery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 132 of 2010
| MS DREW |
Applicant
And
| MR VICKERY |
Respondent
REASONS FOR JUDGMENT
Introduction
For centuries, communities and legal systems have encountered, but rarely fully (or legally) recognised, relationships outside of marriage, let alone dealt with matters of property in relation thereto.[1]
[1] See, for example, the following sample studies which record and analyse various types of ‘non-marital relationship’: M.A. Glendon, The Transformation of Family Law: State, Law and Family in the United States and Western Europe, (Chicago & London: University of Chicago Press, 1989) Ch.6 “Informal Family Relations”; A. Barlow, S. Duncan, G. James & A. Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century, (Oxford & Portland: Hart Publishing, 2005); and the immense study by G. Lind, from Sweden’s University of Uppsala, Common Law Marriage: A Legal Institution for Cohabitation, (Oxford: Oxford University Press, 2008). Professor Lind begins his work with a consideration of “Informal Marriages in Roman Law.”
Quite some time after the States and Territories in this country did so, and quite some time (in 2002) after the Standing Committee of Attorneys-General recommended the enactment of legislation - and a majority of States (New South Wales, Victoria, Queensland and Tasmania) provided a reference of relevant power - in 2008 the Commonwealth Parliament enacted the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 to deal with such matters.[2]
[2] By virtue of the Commonwealth’s power in relation to the three Territories – the Northern Territory, the Australian Capital Territory, and Norfolk Island – the legislation applied in those jurisdictions.
By way of overview and statement of the general objects of the legislation,[3] and accepting Heydon J’s recent caution about the utility of Second Reading Speeches,[4] in the course of (a) the Attorney-General’s Second Reading Speech, (b) his remarks at the end of the debate, and (c) in the Second Reading Speech in the Senate, the emphasis was on the following elements of the new legislation.
[3] For the statutory statement of the intended objects and scope of the ‘de facto property provisions’ of the Family Law Act 1975, see s.90RC.
[4] See his Honour’s remarks in Commissioner of Taxation v Anstis (2010) HCA 40 (11th November 2010) at [40].
First, it is to ensure that there is “greater protection for separating couples.” Secondly, the legislation seeks to ensure that the laws governing such couples are simplified.[5] Thirdly, the legislation is designed to provide “a national uniform system.” Fourthly, the new legislative schema enables de facto couples to access Commonwealth courts which have very significant experience in family law matters, as well as providing access to processes and resources of those expert courts. Fifthly, because of its uniformity, it assists couples so that they do not have to run parallel proceedings – one in relation to children in one system, and another set of proceedings in a different system in relation to property.[6] Sixthly, the Attorney-General stated specifically the legislation’s recognition of and capacity to deal with situations where “it is possible for a de facto relationship to exist when one party is still in a marriage or in a de facto relationship with another person....”[7]
[5] Given that the original Family Law Act comprised only 56 pages in total, adding a further 55 pages (which comprise 6 Divisions in the new Part VIIIAB) and which result in the Family Law Act now comprising 705 pages, the claim in relation to ‘simplification’ may need some qualification.
[6] See the Attorney-General’s Second Reading Speech, Commonwealth Parliamentary Debates, Hansard, House of Representatives, 25th June 2008, p.5823; Commonwealth Parliamentary Debates, Hansard, House of Representatives, 28th August 2008, pp.6542-6543. See also Senator Ludwig’s somewhat more expansive Second Reading Speech, Commonwealth Parliamentary Debates, Hansard, Senate, 15th October 2008, pp.6017-6019.
[7] Commonwealth Parliamentary Debates, Hansard, House of Representatives, 28th August 2008, p.6543.
One might also add here that a beneficial interpretation of new legislation has consistently been adopted by Courts, particularly where the legislative intent is patently ‘remedial’, and especially so where, as here, to use the words of Gummow J in Marks v GIO Australia Holdings Limited, the legislation concerns “matters of high public policy.”[8] In that case, the High Court was concerned with the operation of certain parts of the Trade Practices Act 1974. His Honour described that Act (internal references omitted) as “... a fundamental piece of remedial and protective legislation which gives effect to "matters of high public policy. It is to be construed so as "to give the fullest relief which the fair meaning of its language will allow".[9]
[8] Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 at p.528 [99]. Generally, see also D.C. Pearce & R.S. Geddes, Statutory Interpretation in Australia, (Sixth Edition) (Sydney: LexisNexis – Butterworths, 2006) pp.279-282 [9.2] – [9.3].
[9] Ibid. Among other cases, Gummow J here relied upon the remarks of Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at p.384.
In the light of the Attorney-General’s clearly expressed views regarding the remedial nature of the provisions now in Part VIIIAB of the Family Law Act 1975, in my respectful opinion, it is not difficult to view them as a matter ‘of high public policy.’ Put another way, if the regulation of mercantilism by the Trade Practices Act can be so described, it is difficult to see why the orderly and uniform regulation of the property affairs of the ordinary citizens of this country, however prosaic (or not), cannot be regarded in similar terms. The regulation, according to principle and justice, of family life and its delicate fabric – whatever its composition, colour and form – is at least as deserving of due attention as a ‘matter of high public policy’ as the regulation of business and market affairs under the Trade Practices Act and similar legislation.
Factual Background
This matter comes before the Court to resolve, by way of preliminary issue, (a) matters of jurisdiction and (b) the legal consequence (if any) of the interaction of certain state legislation, and recently enacted provisions in Part VIIIAB of the Family Law Act 1975 (“the Act”), which deal with ‘financial matters relating to de facto relationships.’
The factual circumstances of this matter are of modest compass and relatively free from dispute. Briefly stated, they may be summarised as follows.
The parties, who are aged respectively 40 (the Applicant, Ms Drew) and 43 years (the Respondent, Mr Vickery), commenced a relationship in November 1996 and lived together from that date in Wagga Wagga, New South Wales, until 17th March 2007. There was a second period to their relationship, which continued to take place in Wagga Wagga, from April (or perhaps February) 2009 until August 2009.
In relation to this second part of their relationship Mr Vickery contends that (a) in February 2009 Ms Drew visited him at work late one evening (Mr Vickery is [employed in the hospitality industry]) and that they spent the night together (on which, see further below) and (b) he initiated the resumption of their live-together relationship.[10]
[10] See Mr Vickery’s affidavit, filed 26th March 2010, pars.40-42. Unless otherwise required the principal affidavits of the parties will be cited in an abbreviated form, thus “Mr Vickery’s (or Ms Drew’s) affidavit”, as the case may be, followed by the relevant paragraph number.
There are two children of the relationship, whose generation dates from the first part of the relationship: [X] (born [in] 2002), and [Y] (born [in] 2005). The Applicant, Ms Drew, has two older children from an earlier relationship. At the current, somewhat preliminary, stage of the proceedings, there appears no dispute that, following each of the separations, the parties have had an informal arrangement whereby the children ([X] & [Y]) live with each parent on an equal, shared-care basis.[11] It would appear, however, that (a) there are no formal orders in place in relation to the children, and (b) from time to time (perhaps unsurprisingly) there have been difficulties in the parenting arrangements.[12]
[11] Mr Vickery’s affidavit, pars.35 & 39.
[12] See, for example, the letter from Mr Vickery’s solicitors to Ms Drew’s solicitors, dated 14th October 2009, which is annexure K to his affidavit. That letter confirmed that Mr Vickery had not spent time with the children for ‘a period in excess of seven weeks’ and that a proposed mediation at the Family Relationship Centre was deemed not appropriate following a complaint by Ms Drew to the police.
The Respondent confirmed that he and the Applicant were also expecting a third child, conceived on or about 14th February 2009 following the rendezvous referred to earlier in these reasons. However, Ms Drew miscarried ‘sometime’ in May 2009.[13]
[13] See Mr Vickery’s affidavit, pars.40-43.
Between the two periods of co-habitation referred to in paragraph 9 of these reasons, the parties signed a termination agreement (“the agreement”) under the Property (Relationships) Act 1984 (NSW). The agreement is dated 1st February 2008. A copy of it is annexure A to
Ms Drew’s affidavit, filed 29th January 2010. Although the children of the relationship are referred to in Recital F, the agreement dealt only with matters of property. There is no evidence currently before the Court upon which any finding could (or should) be made as to what part (if any) the ‘shared care’ arrangement (or any other parenting arrangement) for the children played in the considerations in the property settlement effected by the agreement.
Mr Vickery contends further that, upon the first cessation of the relationship with Ms Drew in March 2007, she advised him that she was in a relationship with another man (Mr C). On Mr Vickery’s affidavit evidence, the relationship between Ms Drew and Mr C was troubled. This was evidenced by, among other things, Ms Drew (and the children) seeking refuge with Mr Vickery, and perhaps, as well as Mr C sending Mr Vickery unsolicited and inappropriate text messages.[14] The details of those messages, thus far, have not been disclosed.
[14] See Mr Vickery’s affidavit, pars.20-26 & 37.
It would appear that, at various times between January 2008 and February (or perhaps April) 2009, the parties spent time together, such as an occasion to celebrate the children’s birthdays. And for some time, now to Mr Vickery’s chagrin, Ms Drew continued to reside (and continues to do so) at the parties’ former residence, at Property W, Wagga Wagga. He has instituted proceedings in the Supreme Court of New South Wales (they were commenced on 11th November 2009) to obtain possession of these premises. Those proceedings have been adjourned/stayed pending the resolution of the matters currently before this Court.
Ms Drew seeks, in this Court, but with reference to s.49 of the Domestic (Relationships) Act 1984, to set aside the agreement.[15] If necessary, she seeks that this relief be granted under the Court’s accrued jurisdiction.[16] She alleges that she entered it under duress.[17] She contends that she was subjected to domestic violence throughout her relationship with the Respondent. This is denied by Mr Vickery. He says that the discussions with Ms Drew in relation to property and the children, pursuant to which the termination agreement was executed, were amicable.[18]
[15] The reference to s.49 may be misconceived. That section refers, in terms, only to the variation of ‘domestic relationship agreements’ and excludes specifically ‘termination agreements.’ Subject to what is said later in these reasons as to the applicability of provisions of Part VIIIAB of the Family Law Act, other sections of the Property (Relationships) Act 1984 may be apposite, such as ss.41 and 50.
[16] Generally, on accrued jurisdiction, see for example, Fencott v Muller (1983) 152 CLR 570; Warby v Warby (2001) 28 Fam LR 443; Valceski v Valceski (2007) 36 Fam LR 620; Watson v Holmes (2009) 39 Fam LR 571.
[17] Annexure C to Mr Vickery’s affidavit is a copy of a letter from Ms Drew’s solicitors, dated 9th January 2008, which confirmed that their client had determined to sign the termination agreement contrary to their advice. This might be taken as something of a contemporaneous confirmation of the Applicant’s contention of duress. Other explanations are, of course, also possible.
[18] Mr Vickery’s affidavit, para.16.
Ms Drew does not (at this stage) grapple with an argument which would run thus: if there was, as she contends, domestic violence during the relationship, and if the termination agreement, as she contends, was entered under duress, why did she resume the relationship and the cohabitation in particular? Doubtless these questions will be addressed on another occasion.
Mr Vickery filed a Response on 26th March 2010 in which he sought to have Ms Drew’s Application dismissed for ‘want of jurisdiction.’[19] By an Amended Response, filed on 9th June 2010, Mr Vickery sought orders in the alternative as follows:
· That the Application be dismissed as the Federal Magistrates Court of Australia does not have the jurisdiction to set aside a duly executed Termination Agreement made pursuant to the Property (Relationships) Act 1984 (NSW) [or]
· That the plaintiff fails to meet the threshold as set out in s.79A of the Family Law Act 1975 and or s.46 Property (Relationships) Act 1984 (NSW) and consequently ss.7 and 9 of the Contracts Review Act 1980 (NSW) that would warrant the setting aside of the duly executed Termination Agreement made pursuant to the Property (Relationships) Act 1984 (NSW).[20]
[19] The original orders also sought a personal costs order against Ms Drew’s solicitor. Fortunately, in the Amended Response, no such costs order is sought, but rather a more general, standard order in relation to costs.
[20] The reference to s.79A of the Act would seem to be inappropriate. Because it is conceded by both sides that we are dealing with a de facto relationship, s.90SN is the relevant reference.
Two further matters may be noted at this stage. First, a ‘termination agreement’ has two distinct meanings and uses under the Property (Relationships) Act 1984 (NSW), on the one hand, and under the Family Law Act, on the other. Under the former (s.44), it refers to an agreement “made in contemplation of the termination of a domestic relationship existing between two persons.” Under the latter, Commonwealth Act, a ‘termination agreement’ refers to an agreement which seeks or purports to end ‘a Part VIIIAB financial agreement.’
It may be that, in the circumstances of this case, the termination agreement signed by the parties is properly described under the NSW legislation, but for the purposes of the Family Law Act, it is in fact a financial agreement. To the degree necessary, I re-visit this distinction and characterisation later in these reasons.
Secondly, for the sake of completeness, I note the following. There was something of a preliminary hearing of the current application in Wagga Wagga on 19th May 2010. On that occasion, a Minute of Orders Sought was filed in Court on behalf of the Applicant, Ms Drew. Among other matters raised by that document was (a) the seeking of orders under s.90SM in relation to the period of the relationship between April and August 2009, and (b) the jurisdictional basis for making such an order was said to be s.90SB(b) of the Act, which section refers to there being ‘a child of the de facto relationship.’
A further notation to that Minute of Orders Sought confirmed that if the termination agreement was set aside, the relief sought would be expanded to cover the whole of the parties’ relationship from 1996 until 2009 – but with some acknowledged periods of separation.
Issues for Determination
Counsel for the Respondent (Mr Vickery) contended that the only issue for the Court to determine was ‘whether the parties were in either (a) one de facto relationship from November 1996 to August 2009 with a period of separation of about 25 months; or (b) if there were two de facto relationships with the first one having ended in March 2007 and another separate period of cohabitation that commenced in April 2009?’
By his submissions (oral and written), Counsel for the Applicant, in part, essentially agreed with the contention of the Respondent’s Counsel regarding the issue to be determined. However, Counsel for the Applicant also submitted, but without necessarily developing at any significant length, that the Court had jurisdiction because there were two children from the relationship. This would, in his submission, entitle the Court to make a declaration under s.90RD, and orders otherwise under s.90UM(1)(f).
More summarily stated, in my view, the issues currently to be determined might be stated as follows: (a) on the facts of this matter, does this Court have jurisdiction; (b) if so, how, and on what base or bases, should that jurisdiction be exercised, and with what effect?
In determining the jurisdictional competence of the Court, I should have regard to the instruction of the Full Court in Yunghanns v Yunghanns.[21] In that case, relying on two High Court decisions of DMW v CGW and R v Ross-Jones; Ex parte Green,[22] the Full Court confirmed that (a) a court of limited jurisdiction (such as this Court) must first determine “any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (“the jurisdictional facts”).” These “jurisdictional facts” are to be distinguished from “... the facts the existence of which it is necessary to establish in order to entitle the applicant (subject to discretionary considerations) to an exercise in his or her favour of the jurisdiction which the court has (“the adjudicational facts”).”[23]
[21] (1999) 24 Fam LR 400 (Lindenmayer, Holden & Mullane JJ).
[22] (1982) 151 CLR 491 and (1984) 156 CLR 185 respectively.
[23] (1999) 24 Fam LR at pp.432 & 433 [109 (3) & (5)].
The Court went on to observe: “Once a respondent challenges the court’s jurisdiction to make the orders sought, the court, before considering the adjudicational facts, must find the existence of the jurisdictional facts, on the balance of probabilities.”[24]
[24] (1999) 24 Fam LR at p. 433 [109 (6)].
One further comment from the Full Court in Yunghanns is apposite to note, namely: “... whilst it is relatively simple, in theory, to describe the difference between jurisdictional and adjudicational facts, it is often difficult in practice ... to identify into which category a particular fact or group of facts falls.”[25]
[25] (1999) 24 Fam LR at p. 433 [110].
Because the jurisdiction of this Court has been challenged, it is essential that the Court consider whether there are “jurisdictional facts” sufficient to found the exercise of jurisdiction under Part VIIIAB of the Act. Before embarking on that exercise, for context and overview, it is important to consider a number of sections of Part VIIIAB, and other relevant provisions, of the Act.
De Facto Relationships: The Commonwealth Statutory Schema
As just indicated, in my view there is merit, and hopefully some assistance, if the statutory schema of Part VIIIAB of the Act is set out, in varying degrees of detail, before dealing more specifically with those sections of the Act that need to be applied to the current proceedings. So far as is relevant, the following provisions may be noted.[26]
[26] For helpful overviews of the de facto provisions of the Act, see Dr D Kovacs, “A federal law of de facto property rights: The dream and the reality,” (2009) 23 Australian Journal of Family Law 104-121; and Hon Justice Watts, “The de facto relationships legislation,” (2009) 23 Australian Journal of Family Law 122-143.
A de facto relationship is defined in s.4AA of the Act, thus:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
The definitions of “de facto financial cause” and “de facto property settlement or maintenance proceedings” are both set out in s.4(1) of the Act. Those definitions, as relevant to these proceedings, provide:
de facto financial cause means
(a) proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or
(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or
(e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives);
(g) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.
de facto property settlement or maintenance proceedings means proceedings with respect to:
(a) the distribution of the property of the parties to a de facto relationship or of either of them; or
(c) the maintenance of a party to a de facto relationship
The jurisdiction of this Court in relation to de facto “financial causes” is set out in Part V, Division 2. In particular, ss.39A and 39 of the Act provide:
39A Instituting proceedings
Instituting proceedings under this Act
(1) A de facto financial cause may be instituted under this Act in:
(a) the Family Court; or
(b) the Federal Magistrates Court; or
(c) the Supreme Court of the Northern Territory of Australia; or
(d) a court of summary jurisdiction of a participating jurisdiction.
(2) However:
(a) in the case of proceedings between the parties to the de facto relationship—either of those parties; or
(b) in any other case—at least one of the parties to the proceedings;
must be an Australian citizen, ordinarily resident in Australia or present in Australia on the following day:
(c) if the application instituting the proceedings is filed in a court—the day on which the application is so filed;
(d) in any other case—the day on which the application instituting the proceedings is made.
(3) Subsection (2) does not apply in relation to proceedings referred to in paragraph (g) of the definition of de facto financial cause in subsection 4(1).
(4) Subsection (1) has effect subject to this Part.
Proceedings only to be instituted under this Act
(5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act.
(6) Subsection (5) has effect subject to subsection 90RC(5).
39B Jurisdiction in de facto financial causes
(1) Jurisdiction is conferred on:
(a) the Family Court; and
(b) the Federal Magistrates Court; and
(c) the Supreme Court of the Northern Territory of Australia; and
(d) each court of summary jurisdiction of each Territory;
with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act.
...
Note 2: The exercise of this jurisdiction by the Federal Magistrates Court is subject to section 40A.
...
(2) Each court of summary jurisdiction of each referring State is invested with federal jurisdiction with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act.
Note: The exercise of this jurisdiction by a State court is subject to sections 39D and 39E.
(3) This section has effect subject to this Part.
Part VIIIAB of the Act deals with ‘financial matters relating to de facto relationships.’ So far as is relevant to these proceedings, the following sections have some work to do: s.90RB (definition of “child of a de facto relationship”)[27] and s.90RC, which section deals with the relationship between the Act and State and Territory laws. Excluding the notes and examples attached to the section, s.90RC is in the following terms:
[27] Section 90RB is in the following terms: “For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.”
90RC Relationship with State and Territory laws
De facto financial provisions
(1) In this section:
de facto financial provisions means the following provisions:
(a) this Part;
(b) Part VIIIAA (as applied by section 90TA);
(c) Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship;
(d) subsection 114(2A).
State and Territory laws do not apply to financial matters
(2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:
(a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and
(b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).
Exception—insufficient link to a participating jurisdiction or Division 2 not applicable because of section 90SB
(3) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if:
(a) a court cannot make an order under this Part in relation to that financial matter because of section 90SB, 90SD or 90SK; and
(b) there is no Part VIIIAB financial agreement that is binding on the parties dealing with that financial matter.
Exception—laws facilitating this Act
(4) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory to the extent that the law facilitates the operation of this Act.
Note: This Part is not intended to apply to the exclusion of, for example, a State law that deals with superannuation entitlements by acknowledging superannuation splitting under Part VIIIB of this Act.
Exception—prescribed State or Territory laws
(5) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection.
Other provisions in Part VIIIAB relevant to consider in these proceedings include: s.90RD (declarations about the existence of a de facto relationship), s.90SK (a geographical requirement of parties to be ordinarily resident in a participating jurisdiction - in this case, New South Wales), s.90SB (length of relationship, or child of the relationship, qualification),[28] s.90SL (declaration of interests in property),[29] s.90SM (alteration of property interests),[30] and s.90SN (varying or setting aside orders made under s.90SM).[31]
[28] S.90SB 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.
[29] S.90SL (1) provides: In proceedings between the parties to a de facto relationship: (a) after the breakdown of the de facto relationship; and (b) with respect to existing title or rights in respect of property; the court may declare the title or rights, if any, that a party has in respect of the property.
[30] See especially s.90SM(1), which confers very broad powers to enable the Court to make “such orders as it considers appropriate”; s.90SM(3) (‘just and equitable’ requirement in making orders); and s.90SM(4), which deals with the court’s assessment of “contributions”.
[31] S.90SN is, in terms, the de facto equivalent of s.79A of the Act.
Should it need to be stated specifically, it is as well to note here that no orders have ever been made in relation to these parties under s.90SM of the Act. Accordingly, s.90SN has no operation, thus far, in the matters currently before the Court.
Division 4 of Part VIIIAB deals with “financial agreements.” Thus, for example, s.90UA deals with the geographical requirement for such agreements; s.90UD provides for financial agreements after the breakdown of a de facto relationship; s.90UF stipulates the requirement of a ‘separation declaration’ for certain provisions to become operable; s.90UH relates to provisions that involve ‘maintenance of a party or a child’; and s.90UJ provides for the conditions by which financial agreements are binding.
Sections 90UL – UN concern the termination, or setting aside, of financial agreements. Perhaps curiously, although ‘financial agreement’ is defined in the Act,[32] a ‘termination agreement’ is not. The incidents of such an agreement are set out in s.90SL.
[32] See, for example, ss.4(1), 90UB(1), 90UC(1) and 90UD(1) of the Act cf. the definition of ‘termination agreement’ in s.44 of the Property (Relationships) Act1984 (NSW).
Because they are of particular significance in the current proceedings, or at least potentially so, it is worth setting them out in full. Thus, ss.90UL, 90UM and 90UN relevantly provide:
90UL Termination of financial agreement
(1) The parties to a Part VIIIAB financial agreement may terminate the agreement for the purposes of this Act only by:
(a) including a provision to that effect in another Part VIIIAB financial agreement as mentioned in subsection 90UB(4), 90UC(4) or 90UD(4); or
(b) making a written agreement (a Part VIIIAB termination agreement) to that effect.
(2) Subject to subsection (2A), a Part VIIIAB termination agreement is binding on the parties if, and only if:
(a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and
(b) before signing the termination agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the termination agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the termination agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the termination agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the termination agreement has not been set aside by a court.
(2A) A Part VIIIAB termination agreement is binding on the parties if:
(a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and
(b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the termination agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the termination agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (2B) declaring that the termination agreement is binding on the parties to the agreement; and
(e) the termination agreement has not been set aside by a court.
(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a Part VIIIAB termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
(2C) To avoid doubt, section 90UN applies in relation to the enforcement application.
(3) A court may, on an application by:
(a) a person who was a party to the Part VIIIAB financial agreement; or
(b) any other interested person;
make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of:
(c) persons who were parties to the Part VIIIAB financial agreement; and
(d) any other interested persons.
Note: For the manner in which the contents of a Part VIIIAB financial agreement may be proved, see section 48 of the Evidence Act 1995.
90UM Circumstances in which court may set aside a financial agreement or termination agreement
(1) A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by fraud (including non‑disclosure of a material matter); or
(b) a party to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii) with reckless disregard of the interests of a creditor or creditors of the party; or
(c) a party (the agreement party) to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party; or
(ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship; or
(iii) with reckless disregard of those interests of that other person; or
(d) a party (the agreement party) to the agreement entered into the agreement:
(i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a spouse party; or
(ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or
(iii) with reckless disregard of those interests of that other person; or
(e) the agreement is void, voidable or unenforceable; or
(f) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(g) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (4)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(h) in respect of the making of a Part VIIIAB financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(i) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(j) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB; or
(k) if the agreement is a Part VIIIAB financial agreement covered by section 90UE—subsection (5) applies.
Note: For child of a de facto relationship, see section 90RB.
(2) For the purposes of paragraph (1)(b), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.
(3) For the purposes of the application of subparagraph (1)(c)(ii) to a Part VIIIAB financial agreement covered by section 90UE:
(a) the reference in that subparagraph to an order under section 90SM is taken to include a reference to an order (however described) under a corresponding provision (if any) of the non‑referring State de facto financial law concerned; and
(b) the reference in that subparagraph to a declaration under section 90SL is taken to include a reference to a declaration (however described) under a corresponding provision (if any) of the non‑referring State de facto financial law concerned.
(4) For the purposes of paragraph (1)(g), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
(5) This subsection applies if:
(a) at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or
(b) if this advice was provided to at least one of the spouse parties to the agreement—that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party;
and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside.
(6) A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.
(7) An order under subsection (1) or (6) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(8) If a party to proceedings under this section dies before the proceedings are completed:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b) if the court is of the opinion:
(i) that it would have exercised its powers under this section if the deceased party had not died; and
(ii) that it is still appropriate to exercise those powers;
the court may make any order that it could have made under subsection (1) or (6); and
(c) an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(9) The court must not make an order under this section if the order would:
(a) result in the acquisition of property from a person otherwise than on just terms; and
(b) be invalid because of paragraph 51(xxxi) of the Constitution.
For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.
90UN Validity, enforceability and effect of financial agreements and termination agreements
The question whether a Part VIIIAB financial agreement or a Part VIIIAB termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.
Rather more summarily stated, if the requirements of s.90UL(2A) are satisfied, and if a financial or termination agreement has not been set aside by a Court on any of the grounds set out in s.90UM, and having regard to the general reference in s.90UN to the Court determining a termination agreement’s validity, enforceability or ‘effect’ according to “the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts,” the termination agreement is binding.
Finally, but very importantly, to add to the legislative complexity of the current matter, because the “termination agreement” entered into by the parties in these proceedings was before the commencement of Part VIIIAB of the Act, and because it was entered into in NSW, which is a “referring State” for the purposes of the Act, certain transitional provisions need to be noted.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) relevantly provides, in s.86, as follows:
86 De facto relationships that broke down before commencement
(1) Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation to a de facto relationship that broke down before commencement.
Note 1: After commencement, State/Territory law will apply to any proceedings etc. to enforce, discharge, suspend, revive or vary an order or injunction in force at commencement in relation to the maintenance, or the distribution of property, of the parties to the de facto relationship arising out of the breakdown of the de facto relationship.
Note 2: After commencement, State/Territory law will continue to apply to any proceedings pending at commencement for an order or injunction in relation to the maintenance, or the distribution of property, of the parties to the de facto relationship arising out of the breakdown of the de facto relationship.
Note 3: After commencement, State/Territory law will continue to apply if the parties to the de facto relationship have made, or make, an agreement about financial matters arising out of the breakdown of the de facto relationship.
Note 4: Section 90UE of the new Act will not apply in relation to an agreement made, by the parties to the de facto relationship under a non‑referring State de facto financial law, about financial matters arising out of the breakdown of the de facto relationship. Such an agreement will not be affected by the new Act.
(2) To avoid doubt, section 90RC of the new Act does not exclude the operation of any State or Territory law in relation to the de facto relationship.
Note: Subsection 39A(5) of the new Act will not apply in relation to the de facto relationship because the effect of this item is that a de facto financial cause relating to that relationship cannot be instituted under the new Act.
Upon certain matters being satisfied, sections 87 and 88 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deem existing state and territory agreements to be Part VIIIAB financial agreements, from 1st March 2009.
I turn to the facts of the current matter in the light of the statutory schema just outlined.
Jurisprudence & Discussion
As stated earlier in these reasons, the central, indeed threshold, issue is to determine whether the Court has jurisdiction to deal with the application brought by Ms Drew. Although other matters were addressed in submissions, the primary focus was on whether there was one, single de facto relationship (and if so, when did it end), or were there two, discrete de facto relationships, one of which ended at the time of the termination agreement (or even earlier), and the other, of much shorter duration, which ended on 1st March 2009?
Also relevant to the determination of the threshold jurisdictional issue is whether the parties’ resumption of co-habitation in April 2009 thereby set aside the earlier termination agreement. Plainly, from the Applicant’s perspective, if that agreement is set aside by virtue of the conduct of the parties, subject to what is said later in these reasons, the various periods of co-habitation would need to be considered in a different light.
The Applicant contends that: (a) the geographical requirements of the Act are satisfied because the parties, at all material times lived, and continue to live, in New South Wales (NSW is a participating or a “referring” state)[33]; (b) there are children of the de facto relationship; (c) proceedings were commenced within the prescribed 2 year period; and (d) whether taken as one relationship (with an acknowledged ‘break’ or interruption) or as two de facto relationships between the same parties, this Court has jurisdiction to deal with the dispute.
[33] See s.90RA of the Act for the definitions of “participating jurisdictions” and “referring state”; s.90SK provides for the “geographical requirement.”
In the alternative to these arguments, Counsel for the Applicant submitted that even if the Court had regard only to the second period of co-habitation, the course of conduct of the parties in the resumption of co-habitation was itself sufficient to indicate, if not to confirm, that the parties intended to set aside the February 2008 termination agreement.[34] And, in any event, there are children of the de facto relationship, which is sufficient for jurisdictional purposes under s.90SB(b).
[34] See s.90UM(1)(f). In relation to the claim made by Ms Drew that the termination agreement she signed was executed under duress, query whether that issue may be argued or dealt with under s.90UM(1)(e), which section deals with a financial or termination agreement that is “void, voidable or unenforceable.” See also s.90UM(1)(h).
The Respondent contended that the Court does not have jurisdiction to deal with the dispute because (a) the de facto relationship between the parties ended in March 2007, which was formally and definitively evidenced by the signing of the termination agreement in February 2008; (b) the provisions of Part VIIIAB of the Act do not have retrospective effect; and (c) in the event that the Court finds the relationship ended in March 2007 [or February 2008], the second period of co-habitation (from April until August 2009) is insufficient for this Court to found jurisdiction – it being less than two years duration as required by s.90SB(a).
To speak somewhat generally, there are authorities that point in opposite directions regarding how courts have determined the existence of a de facto relationship, and nearly all of which pre-date the commencement of Part VIIIAB. I will not review all of the cases that were very helpfully gathered by learned Counsel for both of the parties. I will refer only to those which I have found to be the most beneficial in determining the matter before me.
Counsel for the Applicant, Mr Jackson, essentially relied upon four cases: the NSW Court of Appeal decision of Jones v Grech,[35] Milevsky v Carson,[36] Le May v Clark,[37] and a decision of this Court (Demack FM) in Hamblin & Dahl.[38] I note only the following from those decisions.
[35] (2001) 27 Fam LR 711.
[36] (2005) DFC ¶95-314 (Nicholas J in the NSW Supreme Court).
[37] (2006) DFC ¶95-327 (Thackray J, sitting in the Family Court of Western Australia).
[38] (2010) 239 FLR 111.
In Jones v Grech, at [70] and [76], Ipp AJA said:
[70] It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to re-commence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of s20(1), each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the Court should have regard.
[76] The purpose of the Act is remedial. It is intended to remedy injustice, inter alia, because the law prior to the Act had "the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner." For that intention to be adequately fulfilled, it is necessary, in my view, for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation.
In Hamblin v Dahl, her Honour said, at [53] – [56] (omitting internal references):
The twice expressed notion of a relationship being divided into “periods” would invite the beneficial interpretation that a de facto relationship may include periods of separation or other separateness. A marriage may also include such periods. A marriage may have greater hallmarks for determining beginning and end. It is, I suggest, no easier to conclude when final separation has occurred in matters of factual argument for either a marriage or a de facto relationship.
[54] Certainly the introduction of the legislation which expanded the Family Law Act 1975 to include property proceedings in de facto matters in the referring states was, according to the Second Reading speech, done to:
provide greater protection for separating de facto couples and simplify the laws governing them.
[55] The Attorney-General went on to say:
The reforms will also bring all family law issues faced by families on relationship breakdown within the federal family law regime. The federal family law courts are the specialist courts in Australia with vast experience in relationship breakdown matters. They also have procedures and dispute resolution mechanisms which are more suited to handling family litigation arising on relationship breakdown.
[56] These reforms were designed to keep de facto property matters in the family law jurisdiction.
Her Honour relied, to a significant degree, on various comments of Thackray J, albeit in the context of the Western Australian legislation before the Court, in Le May v Clark.
By reference to (a) s.90RD and s.90SB in particular, (b) the venerable authority of Isaacs J (although in dissent) in Bull v Attorney-General (NSW), in which his Honour held that if there is any ambiguity in beneficial provisions, then it should be resolved in favour of the intended beneficiary,[39] and (c) the Attorney-General’s Second Reading Speech, her Honour clearly favoured the view that Part VIIIAB of the Act should be read and understood as providing a benefit to the Australian community and accordingly should be read expansively.
[39] (1913) 17 CLR 370 at p.384. His Honour’s exact words were that remedial and protective legislation should be construed so as “to give the fullest relief which the fair meaning of its language will allow.” Isaac J’s comments have regularly been endorsed as a clear expression of legal principle. See, for example, the express endorsement of the view expressed by Isaacs J by Weinberg J (with whom Carr J generally agreed) in Nilant v Macchia (2000) 104 FCR 238 at p.247 [40], and by Kirby J in Davison v Queensland (2006) 226 CLR 234 at pp.249-250 [41]. I noted earlier in these reasons Gummow J’s use of Isaac J’s statement of principle in Marks v GIO Australia 196 CLR at p.528 [99].
At [63] – [65], Demack FM continued:
[63] In essence, it seems to me, that if two people commence or renew a relationship, then absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. It would appear to be a fiction to suggest that two earlier intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous relationship. And it would seem, that within the realms of human experience, having another intimate relationship for either a short or longer time, in the midst of another relationship, is not of itself extraordinary.
[64] In this case, it should be remembered that although the parties ceased sharing a common residence in December 1999, from that time until the applicant commence her new de facto relationship with Ms M in 2006, the parties had maintained a relationship of some description. It is not a matter for this decision to clarify that relationship, but some relationship persisted during that time. In so much that it persisted, it provided an on-going link between the earlier and later periods of cohabitation that a ten year gap may not imply.
[65] I cannot see that either the gap between periods of cohabitation, or the intervening de facto relationship between the applicant and Ms M have any extraordinary features which would draw me to the conclusion that these were two separate relationships.
For his part, Counsel for the Respondent, Mr Wilson, sought to distinguish LeMay v Clark, and Hamblin v Dahl, and relied in particular on the NSW Court of Appeal decision of Howland v Ellis.[40] In that case, Stein JA (Meagher JA & Ipp AJA agreeing) said, at [19]:[41]
... more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship.
[40] (2001) 28 Fam LR 656.
[41] Stein JA, in Howland v Ellis at [20], cited with approval, as did Counsel for the Respondent in this case, comments by Cohen J in George v Hibberson (1987) DFC ¶95-054. Although that decision was overturned on appeal, Cohen J’s comment (as noted by Stein JA) is important to recall: “... courts must be careful not to equate marriage with a de facto relationship....” The converse must also be plainly true.
The argument of the Respondent was simply that the termination agreement clearly and categorically evinced an intention ‘to permanently end the relationship’ between the parties. Accordingly, as previously observed, the further contention is that there were two, distinct de facto relationships between the parties, and the latter period was too short (between April [or even February] and August 2009 to found jurisdiction under the Act for this Court to deal with the Applicant’s contention that the termination agreement was entered into under duress.
There may be some ‘catch-22’ element (or at least some circularity) in the Respondent’s further argument. This is to say that, if (as the Applicant seeks) the Court were to hold that the termination agreement was entered into under duress and therefore the agreement was void (or at least voidable), the evidentiary significance of the agreement and the [alleged or putative] intention of the parties to end the de facto relationship permanently, falls away. But, so the Respondent’s argument runs, because of the existence of the termination agreement and its evidentiary significance as to intention and date, this Court has no jurisdiction to determine the duress argument, or indeed, anything else.
Thus, for example, for the Applicant to have the Court determine that the termination agreement was entered under duress,[42] for example under s.90UM(1)(e) or s.90UN, the Court would, in the first instance, need to be seized of relevant jurisdiction, which, according to the Respondent, it does not, and cannot, have.
[42] Cf. s.90SN, which relates to varying or setting aside orders altering property interests; in this case, thus far there have been no relevant orders.
For completeness, I should note that Counsel for the Respondent readily and very properly acknowledged that there was no procedural or other prejudice to his client if the matter were to remain in this Court, as opposed to it being conducted in the Supreme Court of New South Wales.
That said, Counsel also rightly pressed the point that there were proceedings currently on foot in the Supreme Court in which Ms Drew could file a cross-claim in relation to setting aside the termination agreement. Mr Jackson parried this argument by noting that, for example, if the duress argument was successfully conducted in the Supreme Court, that Court would, more likely than not, say that the proceedings properly belonged in a Commonwealth court, which had specific jurisdiction to deal with all family law matters. This would especially be the case, he submitted, if there evolved a dispute in relation to the children.
Resolution
The cases make clear that it is possible to establish the existence of a de facto relationship in circumstances where (a) the parties have physically separated for quite some period of time (or even periods of time), and or (b) there has been an intervening relationship with another person. Both of those elements are on display here.
From an evidentiary point of view, the Court is placed in a delicate position. The important threshold issue of jurisdiction was argued by Counsel, and otherwise conducted ‘on the papers.’ This is to confirm that the factual bases for the respective contentions have not been tested.
For my part, for the following reasons, in my view this Court has jurisdiction in relation to the matters in issue between the parties. Those issues should be resolved in this Court. I make this determination for the following reasons.
First, as to clearly stated “policy”, the Commonwealth Parliament has made it clear that Part VIIIAB of the Act is intended to be, and should be, the legislative schema under which financial matters relating to de facto relationships should be resolved. That Commonwealth intention should, and does, extend to ensuring that such matters, as far as possible, should be resolved through the Commonwealth courts that deal daily with such matters.[43]
[43] See also s.90RC.
I do not understand there to be any more general challenge to the jurisdiction of the Court under s.39A or s.39B.
One element only, among the many set out in s.90SB, is sufficient to found jurisdiction. For example, it is sufficient if “there is a child of the de facto relationship.” There is no qualification of that requirement as to when the child (or children) was (or were) conceived.
Here, there are two children of the relationship between the parties. The two young boys were conceived in the first, and longer, stage of the relationship. In my view, it matters not that there was a period of separation and a later resumption of cohabitation. The parents remain the parents of the children of the relationship, and the children remain their offspring.
Having found that this Court has jurisdiction, strictly speaking it is unnecessary to make any finding in relation to other matters. However, in the hope that it may assist the parties and those advising them, and because of the way in which the ‘threshold issues’ were argued, and I should add, argued thoroughly and informatively (including recent further written submissions), I note the following.
As to whether there was one de facto relationship or two, separated by time and by formal agreement, it is clear that, both from the Second Reading Speeches and particularly the provisions of Part VIIIAB (e.g. ss.90SB(a) and 90RD(2)(a)), the Court is to have regard to either “the period” or “the periods” of the de facto relationship. In the light of the evidence concerning these matters, which clearly contemplate more than one period of co-habitation, the Court may then make a finding as to there being one or more de facto relationships.
The issue here, of course, was complicated by the existence (subject to the argument regarding ‘duress’) of the termination agreement.
On the untested facts of this case, in my view, and given the range of cases which highlight extremely diverse fact situations including those where very significant periods of separation have occurred, it would be unsafe to make any findings regarding the existence of there being one or two de facto relationships precisely because of the termination agreement. Without having the opportunity to test the evidence as to the intention of the parties, and presumably also matters which may go to whether it was entered into under duress, the Court is simply in no position to make any relevant finding in this regard. It would be unsafe to do so.
However, in my view, what is clear on the evidence is that, at the initiative of Mr Vickery, the de facto relationship was revived or resumed. In doing so and inviting the relationship (and the co-habitation) to resume, by that deliberate conduct he must be taken as having waived his ability to rely on the earlier termination agreement. Indeed, by resuming their cohabitation, in my view both parties must be taken as having waived whatever rights they had under that agreement. Their conduct in resuming cohabitation could, and in my view, should be taken as setting aside the termination agreement signed by them in February 2008.
Without formally deciding which is the better characterisation in the light of High Court authority (i.e. estoppel by representation or estoppel by convention), it may be argued that both parties are estopped from relying on the termination agreement because of their subsequent decision and conduct to resume cohabitation.
For example, in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd, the High Court said:[44]
Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. (Emphasis added.)
[44] (1986) 160 CLR 226 at p.244 [22] (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ). See also the detailed discussion in K.R. Handley, Estoppel by Conduct and Election, (Sydney: Thomson – Sweet & Maxwell, 2006).
In Con-Stan Industries, the High Court relied on, among other authorities, the detailed comments and observations of Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd.[45] In that case, his Honour said:[46]
The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. ... This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. (Emphasis added.)
[45] (1937) 59 CLR 641. See especially pp.674-677.
[46] 59 CLR at p.674.
Later in the same judgment, Dixon J noted that “... belief in the correctness of the facts or state of affairs assumed is not always necessary. Parties may adopt as the conventional basis of a transaction between them an assumption which they know to be contrary to the actual state of affairs.”[47]
[47] 59 CLR at p.676.
In this case, and having particular regard to the comments of Dixon J just noted, in my view, it is extremely difficult to see that, upon the resumption of their cohabitation, the parties did not assume that the termination agreement no longer had any effect. Stated positively, upon the resumption of their cohabitation, the parties must be taken to have assumed that in the light of their ‘current state of affairs’ the earlier termination agreement no longer had any application to their resumed relationship.[48]
[48] In this regard, see also the comments of Nicholson CJ in In the Marriage of Sommerville (2001) 27 Fam LR 233 at pp.250-253 [113] – [128] and the cases there cited, cf. Aguilar & Aguilar [2009] FamCA 1343 (Stevenson J).
I appreciate that, to speak formally, there is a distinction between parties being estopped from relying upon an agreement, on the one hand, and on the other, setting aside the agreement. For my part, I should be taken as preferring the view that the parties, by their conduct, should be estopped from relying on the earlier termination agreement. However, in the event that that view were to be held erroneous, in the alternative and on the authority of the decision in Sommerville and the cases cited therein, I would also take the view that, by their conduct, the parties should be taken to have set aside the earlier agreement. On either view, the relevant period (or periods) of the de facto relationship readily meet the durational qualification in s.90SB(a).
Put another way, and perhaps more colloquially so. Mr Vickery cannot have it both ways: he cannot invite the resumption of a de facto relationship with the woman with whom he was in a de facto relationship for a significant number of years and with whom he had two children, and with whom he seems to continue to co-parent the children of the relationship, and then later seek to rely on an intervening agreement that was entered into prior to the resumption of the relationship (and which is contended to have been entered under duress) to defeat his former partner, and to prevent the Court, from looking into the justice and equity of the financial affairs of a relationship that spanned from 1996 until 2009, albeit with a period of separation. The relationship bore the fruit of two young boys. Apart from general statements in an affidavit and in recent correspondence to the Court, the Court does not know with appropriate or sufficient precision what arrangements are in place for them – either as to time with each parent, or as to what consideration was given to their interests and the parenting responsibilities of their parents in the formulation of the terms of the termination agreement.[49]
[49] I note here, again, the clearly stated intention of the Commonwealth Government to avoid duplication of proceedings and to ensure, as far as possible, that all matters in dispute are dealt with in the one court.
It is one thing to resume a de facto relationship. By their very nature, and as the growing number of cases evidence, such relationships are organic if not dynamic. They are often extremely fluid as to form, duration, interruption, and many other things besides.[50] Part VIIIAB recognises much or many of these attributes or incidents of de facto relationships. It is quite another thing, however, to resume or restore agreements which seek or purport to regulate the financial affairs of such couples. Such agreements do not revive as of right either as to form or content. Part VIIIAB of the Act is very precise on what the requirements are in this regard – both as to form and content. That form and that content are not evidenced in the current matter.
[50] For further detail and analysis, see the works cited in footnote 1 to these reasons. Also, see the general comments of Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 where, at p.459, his Honour quoted with approval the following comments from the 1983 NSW Law Reform Commission Report on De Facto Relationships: The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long-term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.
In short, the jurisdictional bases for this Court to consider Ms Drew’s application under s.90SM have been established. They are (i) the duration of the de facto relationship (s.90SB(a)) and (ii) the children of the de facto relationship (s.90SB(b)).
For these reasons, and subject to further submissions as to their precise terms, the following orders should be made:
·Pursuant to s.90RD(2)(b) of the Family Law Act 1975, [X] (born [in] 2002) and [Y] (born [in] 2005) be declared children of the de facto relationship between Ms Drew and Mr Vickery.
·Pursuant to s.90SB(b), and pursuant to the declaration under s.90RD(2)(b) regarding the ‘children of the de facto relationship’, the Court declares that it has jurisdiction to make an order under s.90SM of the Act.
·
Pursuant to either s.90UM(1)(e) and/or s.90UM(1)(f), the termination agreement between the parties Ms Drew and
Mr Vickery, dated 1st February 2008, be set aside.[51]
·Until further order, or by written agreement with the Applicant, Ms Drew, the Respondent, Mr Vickery, be restrained from taking any further steps in proceedings numbered 15398 of 2009 in the Supreme Court of New South Wales, other than adjourning or discontinuing those proceedings, or defending any application or motion, in that Court, by Ms Drew.
·There should be a notation to the effect that in the light of the termination agreement being set aside, and subject to relevant evidence, the Court will have regard to all of the periods of cohabitation, and separation, between the parties in determining what orders should be made under s.90SM.
·Should it be necessary, both parties have leave to file an amended application, and further amended response, in the light of these reasons.
[51] For the sake of completeness, and because it would otherwise require further evidence which could be the subject of cross-examination, and as I have already noted, I make no ruling on the contention that the termination agreement was entered into under duress.
Subject to any agreement between the parties regarding the matters before the Court, the matter will be re-listed on 9th February 2011 in Wagga Wagga at 9.15am to consider (a) its future conduct, and (b) costs. Any material to be relied upon at that directions hearing is to be filed and served 14 days beforehand.
Within 14 days of today, the parties are to provide the Court with an engrossed form of orders that reflect the determination of the matters addressed in these reasons.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 26 November 2010
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