DUBOIS & INWOOD & ANOR
[2011] FMCAfam 1337
•22 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUBOIS & INWOOD & ANOR | [2011] FMCAfam 1337 |
| FAMILY LAW – De facto relationship – accrued jurisdiction. |
| Family Law Act 1975, ss.4AA, 90RD, 90SM, Part VIIIAB Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, s.86 |
| Carlton and United Breweries Limited v Castlemaine Tooheys Limited (1986) 161 CLR 543 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 Jonah & White [2011] FamCA 221 KQ v HAE [2007] 2 Qd R 32 Klintock & Ferder (2010) FamCA 162 Petrotimor Companhia de Petroleos Sarl v Commonwealth of Australia (2003) 128 FCR 507 Whitehouse & Whitehouse (2009) FamCAFC 207 |
| Applicant: | MR DUBOIS |
| First Respondent: | MS INWOOD |
| Second Respondent: | MS INWOOD PTY LTD A.C.N. [omitted] AS TRUSTEE FOR THE MS INWOOD FAMILY TRUST |
| File Number: | BRC 11964 of 2010 |
| Judgment of: | Howard FM |
| Hearing date: | 30 November 2011 |
| Date of Last Submission: | 20 December 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 22 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Lilley Spanner & Stacey |
| Counsel for the First Respondent: | Ms Carmody |
| Solicitors for the First Respondent: | Carne Reidy Herd |
| Counsel for the Second Respondent: | Ms Carmody |
| Solicitors for the Second Respondent: | Carne Reidy Herd |
ORDERS
That the Application filed 22 December 2010 be dismissed.
NOTATION:
A.In the event that either party seeks an order in relation to costs then they should contact the Associate to Federal Magistrate Howard in order to have the matter listed in 2012.
IT IS NOTED that publication of this judgment under the pseudonym Dubois & Inwood & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11964 of 2010
| MR DUBOIS |
Applicant
And
| MS INWOOD |
Respondent
And
| MS INWOOD PTY LTD A.C.N. [OMITTED] AS TRUSTEE FOR THE MS INWOOD FAMILY TRUST |
Second Respondent
REASONS FOR JUDGMENT
The Applicant, Mr Dubois, filed an Initiating Application on 22 December 2010.
On 7 April 2011 the parties sought and obtained an order from the Court in the following terms:-
“That the matter be listed at 9.30 a.m. on 30 November 2011 in the Federal Magistrates Court of Australia at Brisbane for a discrete hearing to determine issues relating to the Federal Magistrates Court of Australia’s jurisdiction to hear the matter.”
The matter relates to an allegation by the Applicant that the parties were in a de facto relationship. The purpose of the discrete hearing was to ascertain the jurisdictional question. In order to answer the jurisdictional question the Court needs to consider the evidence and make findings concerning the existence (or otherwise) of a de facto relationship between the Applicant and the First Respondent.
Counsel for the Respondents (Ms Carmody) argues that the relief sought in the Initiating Application filed 22 December 2010 is misconceived. The Respondents’ counsel notes that the Initiating Application does not specifically seek a declaration pursuant to section 90RD(1) of the Family Law Act 1975.
Mr Galloway of counsel on behalf of the Applicant has submitted that upon a reading of the order made by the Court on 7 April 2007 (paragraph 1 – quoted above) and Part H of the Initiating Application filed 22 December 2010 – that it is demonstrably clear that the relief sought by the Applicant was a declaration pursuant to section 90RD of the Act. That declaration was sought in the Case Outline filed by the Applicant on 30 November 2011.
I agree with the submission made by Mr Galloway. The Rules of this Court do not require the delivery of pleadings. The Court Rules do require an Initiating Application. The Initiating Application does in Part H (as noted above) make it clear that the Applicant was prosecuting a case that he and the First Respondent were in a de facto relationship and that the de facto relationship had broken down on or after 1 March 2009.
In the absence of Rules of Court requiring the delivery of pleadings – the Initiating Application as filed is sufficient for the Applicant to claim the relief sought.
The Applicant essentially runs two arguments. The first is that he was in a de facto relationship with the First Respondent between May 2006 and December 2009. Accordingly, because the relationship had not broken down prior to 1 March 2009 – the Federal Magistrates Court of Australia has jurisdiction to hear and determine the matter under Part VIIIAB of the Act. In particular (provided the Court has the necessary jurisdiction) the Applicant will be seeking an alteration of property interests pursuant to Section 90SM of the Act.
The second (and essentially alternate) case prosecuted by the Applicant is as outlined in paragraph 1 under the heading, “Final orders sought” in the Initiating Application filed 22 December 2010. The argument, as put by Mr Galloway on behalf of the Applicant, is that – even if the Court was satisfied that the de facto relationship broke down prior to 1 March 2009 – the Federal Magistrates Court of Australia nonetheless has the necessary accrued jurisdiction to hear and determine the case on behalf of the Applicant that there ought to be a declaration for a constructive trust as detailed in the Initiating Application and in the Case Outline document (paragraph 1 of the Minute of Orders sought) filed 30 November 2011.
Mr Galloway contends that the Applicant’s primary position is that the de facto relationship existed until December 2009 and consequently the Court has jurisdiction to hear and determine the matter under Part VIIIAB of the Act.
Section 4AA of the Family Law Act
Section 4AA sets out the meaning of a de facto relationship and provides other certain statutory considerations. That section states:-
“SECTION 4AA DE FACTO RELATIONSHIPS
Meaning of de facto relationship
4AA(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
4AA(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.
4AA(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.
4AA(4) A court6 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.
4AA(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.
4AA(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.”
Both parties concede that a de facto relationship existed for some period of time. The Applicant contends (as noted) that the de facto relationship began in May 2006 and continued up to and including December 2009.
The First Respondent contends that the de facto relationship only lasted from May 2006 until September 2006.
The circumstances surrounding the parties’ “relationship” and “financial dealings” are somewhat unusual.
The First Respondent filed an Affidavit on 6 April 2011. In that Affidavit the First Respondent stated (inter alia) as follows:-
“2.I have known Mr Dubois (“[Mr Dubois]”) since about 1984. [Mr Dubois] was married to a good friend of mine, [Ms C].
3.While I kept in contact with [Ms C] after my late Husband, [name omitted] died in 1991, I did not see nor speak to [Mr Dubois] until about 2004.
4.[Ms C] and [Mr Dubois] lived in [S] and separated sometime in 2003/2004. I went on a cruise with [Ms C] in 2005.
5.[Mr Dubois] operated a business [details omitted]. He was travelling from [S] each weekend to [work at] the Gold Coast.
6.In about February 2005, [Ms C] told me that [Mr Dubois] needed help with the business and suggested [Mr Dubois] could stay on my property on weekends to limit the long drive to and from [S].
7.[Mr Dubois] started staying on my property on weekends from about February 2005. Initially he would stay regularly on weekends and for one night a weekend. He would stay Friday night, drive his truck [to] the Gold Coast on Saturday and then return to [S].
8.After [Ms C] and I returned from the cruise, [Mr Dubois] asked whether he could stay on more weekends and in return he promised to help out on the [property]. I agreed. [Mr Dubois] started staying more weekends from about June 2005.
9.When [Mr Dubois] started staying, the house had 2 bedrooms with a sleep out. My twin daughters, [names omitted] who were 16 years old at the time shared a room. I had my own room and [Mr Dubois] slept in the sleep out. I agreed to the arrangement to help out a friend. I had no thoughts or feelings of becoming romantically involved with [Mr Dubois]. [Mr Dubois] did not say anything or acted as if he wanted to become romantically involved with me.
10.[Mr Dubois] and I maintained separate lives and did our day to day activities independently of one another.
11.After a few months, [Mr Dubois] started to discuss with me his plans for staying permanently and [business omitted] on my property as it was becoming too expensive to [omitted] run his business from [S]. He told me that he was paying $20,000.00 a year to rent his property back at [S] and told me that he could no longer afford it. My property at [C] is 17.6 acres. There was room for [Mr Dubois] to [conduct his business]. Water was a problem. The main water came from the well which was insufficient for the scale of [omitted] that [Mr Dubois] wanted to do.
12.[Mr Dubois] suggested and I agreed for him to put a bore in. He paid for it. In return I paid Mr M to do some fencing and irrigation to prepare about 2 to 3 acres for [omitted]. [Mr Dubois] asked and I agreed for him to put his cold room on the property. I required three phase power to be installed which I arranged and paid for. I think it cost about $3,000.00. [Mr Dubois] said that he could do a few things around the [property] to pay for it. He seemed genuine.
13.Towards the end of 2005, [Mr Dubois] started to [work] permanently.
14.From June 2005 to September 2006 I helped [Mr Dubois] [details omitted] and I regularly went to the [workplace] with him on the weekends to give him a hand on the promise from [Mr Dubois] that I would be paid. I was never paid and I did not derive a benefit from [Mr Dubois] or his business. My daughters also helped him [details omitted] and also went with him to the [workplace] on the weekend. They helped him on a promise that he would also pay them. [Mr Dubois] never did.
15.From when [Mr Dubois] stayed permanently, things did gradually evolve romantically to a point where from May 2006 he asked me ‘if I would give it a go’. In June 2006, [Mr Dubois] moved out of the sleepout and shared my bedroom. [Mr Dubois] kept his clothes in a separate room. [Mr Dubois] moved all his [business] equipment onto my property and put all his household goods into storage. By this time he was using the whole of the [property] for his business and I leased land across the road to put my animals on as [Mr Dubois] had concerns for his [omitted].
16.It was during this time that I learnt that an old hall was available and I had the idea that it could be attached to the house to extend the floor space. I wanted to wait until I sold land I owned at [M]. [Mr Dubois] was impatient and wanted it immediately. He paid for the ‘extension’ to be moved onto the property and stumped, because he told me that he owed me for using the [property].
17.The work to connect the ‘extension’ took time. Initially after the stumping, a plumber came to plumb it in and later Mr R and Mr D connected the electricity to the extension. The septic was also connected. I paid for all of this, with savings and my weekly wages. This electrical work was completed between 10 September 2006 and 17 February 2007. It was not until after the finalisation of the sale of my land at [M] in 2007 that a room was constructed to join the extension to the main house, verandas were put on, French doors were installed and the timber flooring was laid. I had collected almost all of the timber windows, doors etc that were installed in the extension.
18.I sold the property at [M] in 2007 for $165,000.00. I paid out the Mortgage of $70,000.00 to Bendigo Bank and I paid [Mr Dubois] $20,000.00 for the restumping of the extension. I increased the mortgage over the [C] property from $168,000.00 to $186,000.00. The funds of approximately $70,000.00 went towards completing the extension.
19.[Mr Dubois] did buy building materials on his credit card. He did so to earn points. He would tell me when he had and I would reimburse him in cash. That was the way he wanted it. He would put the cash in a safe that he had. I began to notice that he would write the amounts he paid for purchases, but not that I had paid him back. On one occasion, I had ordered a wood stove and sandstone. I asked [Mr Dubois] to collect them and gave him a cheque from my cheque book to pay for the items. Sometime later he told me that I owed him for the wood stove and sandstone and showed me his diary in which he had written that he had bought the items. We had an argument when I told him that I had paid for the items. Later I showed him the cheque book which clearly showed that I had paid for the items. He still did not correct his incorrect diary entry.
20.In September 2006, I returned home from work to find [Mr Dubois] holding a hammer and crowbar in the extension which at that time was joined to the house by some planks. He was yelling and screaming and hitting the walls with the hammer and crowbar. I ordered the twins to the other end of the house. They both looked petrified. When I walked in to the extension, I saw that [Mr Dubois] had smashed every wall in the extension which was asbestos sheeting with the hammer and crowbar and there was dust everywhere. It looked like a bomb had gone off, leaving only the studs showing and pieces of sheeting the size of 50c pieces scattered all over the floor. I asked him to stop and calm down. He eventually calmed down. It took longer because he stunk of alcohol, was slurring his words and swaying and kept telling me that he wanted to finish the house quickly and he was just trying to work out where to put the power points. Seeing him so aggressive that night changed by (sic) view of him.
21.Our romantic relationship was never that strong. The next morning [Mr Dubois] and I sat in the kitchen. I told him that I was extremely frightened seeing him in that state the previous night. I told him that I no longer wanted a relationship with him and I did not love him. I was seriously considering just telling him to pack his things and go but [Mr Dubois] was very apologetic. He was full of self pity. He told me that he was useless and threatened to shoot himself. My husband shot himself and I did not want that on my conscious (sic) again. I allowed him to stay. He told me that he would arrange building friends to come and repair the damage. I moved out of the extension that [Mr Dubois] and I had been sharing and returned to my own room.
22.[Mr Dubois] and I did not sleep together after I moved out of the extension in September 2006.
23.After I ended my relationship with [Mr Dubois], he remained living at the property. I felt sorry for him because he told me that he did not have the money to go anywhere else and be able to [conduct his business] and that he needed back surgery.
24.While [Mr Dubois] lived on my property:-
(a)I paid the mortgage repayments, rates and insurances and leases for the properties;
(b)Except for one electricity account, I paid all the accounts for the utilities connected to the property. [Mr Dubois] paid one electricity account. He only paid it because I got upset one time because the electricity bills increased due to the electricity required to power the cold room, spot lights and his business;
(c)Except for a handful of occasions when [Mr Dubois] brought some vegetables and bread home from the markets, I did and paid for all the grocery shopping;
(d)Except for the occasional roast, my daughters and I did all the cooking;
(e)[Mr Dubois] did only his won washing and sometimes I did it for him;
(f)[Mr Dubois] and I never had a joint account and kept our fiancés separate. We never bought anything together; and
(g)[Mr Dubois] swept the floor once a week, otherwise my daughters or I did all the cleaning.
25.[Mr Dubois] and I never went on a holiday together. I do not recall [Mr Dubois] and I going out for dinner alone.”
I accept this evidence of the First Respondent.
By March 2008 the First Respondent had qualified as a [occupation omitted]. The First Respondent sought and obtained employment as a school teacher at [T] in the Northern Territory.
The First Respondent left the property at [C] and moved to the Northern Territory in March 2008.
The Applicant remained living on the property at [C]. He was continuing to [business omitted] on the property.
On 23 April 2008 the Applicant signed a Centrelink document (exhibit 1). That document was a confirmation to Centrelink that he was, “not living in a marriage-like relationship”. That particular document sought the names of two referees who would be able to confirm as true – the fact that the Applicant was “not living in a marriage-like relationship”.
The document states:-
“Who can be a referee?
Referees are independent people who can confirm that you are not living in a marriage-like relationship.
They should not be blood relatives. Preferably, they should be people of some standing in the community, for example doctors, lawyers, social or welfare workers, community leaders, clergymen, priests or ministers of religion, or police.
Centrelink will only accept a person as a referee if it is clear that they have personal knowledge of whether you are living in a marriage-like relationship. If you are unable to name two independent referees, we may be able to accept the names of one independent person plus a relative.”
Two referees are noted, namely Mr L and Mr C. Both of those named referees lived near to the property at [C] owned by the Second Respondent – where both the Applicant and the First Respondent had lived. The Applicant confirmed in his evidence in the witness box that both of those referees knew both the Applicant and the First Respondent.
I also note exhibit 2. That is another Centrelink document where the Applicant was applying for a Newstart Allowance. I note question 3:-
“3. Are you married or living in a registered or de facto relationship with someone of the opposite or same-sex (includes temporarily living away from a partner to improve study/job prospects)?
In answer to the above question the Applicant ticked, “No”.
The Applicant signed and dated that document 19 October 2009.
Both exhibit 1 and exhibit 2 make it clear that at two different points in time (prior to the filing of proceedings) the Applicant had asserted to the government Centrelink agency that he was not in a de facto relationship. Of particular note is exhibit 1. That document relates to an application by the Applicant for a health care card and is dated approximately one month after the First Respondent left Queensland to live and work in the Northern Territory.
I had the opportunity to observe the Applicant in the witness box. The Applicant (approximately one month after the First Respondent departed Queensland to live and work in the Northern Territory) specifically turned his mind to the question – who can be a referee to confirm that I am not living in a marriage-like relationship? The Applicant came up with two people – Mr L and Mr C. Both of those individuals knew both the Applicant and the First Respondent. The words used at the bottom of exhibit 1 (immediately above the Applicant’s signature) are as follows:-
“I authorise Centrelink to contact these referees to verify my relationship status.”
In approximately July 2006 the Applicant and the First Respondent applied to become foster parents. I accept the First Respondent’s evidence that it was her idea to become foster parents. It was a wish that she had had for some time. I accept the First Respondent’s evidence that she had earlier done or completed a course to prepare herself to become a foster parent. The document (which is exhibit 3) is dated 6 July 2006. The marital status is noted as “de facto”. The First Respondent has signed this document. As at the stated date the First Respondent and the Applicant were (even on the First Respondent’s case) in a de facto relationship. The document also seeks a statement as to the, “length of relationship”. This has been handwritten as follows:-
“12 months – friends for 20 years”.
The First Respondent does admit that there may have been some romantic connection between the parties in the 12 month period leading up to mid 2006. The First Respondent even concedes that she may have had sexual intercourse with the Applicant (once) in the 12 month period leading up to mid 2006. The Applicant’s case is that the de facto relationship did not commence until May 2006.
There is at least one date which both parties in this case agree is correct – namely the commencement of the de facto relationship was in May 2006. Accordingly I find as a fact that the de facto relationship between the parties commenced in May 2006. To the extent that the document (exhibit 3) discloses something to the contrary – that document is incorrect. Clearly, the parties were not in a de facto relationship for “12 months” leading up to 6 July 2006.
Upon moving to the Northern Territory in March 2008 the First Respondent returned to Queensland within less than one month because she had to attend her own mother’s funeral. The First Respondent then returned to Queensland again for approximately one week in June/July 2008. The First Respondent did not then return to Queensland until June/July 2009.
The Applicant maintains that even though the First Respondent had left the property and moved to the Northern Territory in March 2008 – that nonetheless the parties continued to maintain a de facto relationship.
The First Respondent denies that upon her return to Queensland for her mother’s funeral that she had sexual intercourse with the Applicant. I accept the First Respondent’s evidence in this regard. I had an opportunity to observe her in the witness box when asked that question. I also accept the First Respondent’s evidence that in the one week that the First Respondent spent at the [C] property in June/July 2008 – that she did not have sexual intercourse with the Applicant. Even on the Applicant’s own case (which I do not accept) the sexual relationship between the parties ended in June/July 2008.
I find as a fact that the sexual relationship between the parties had ended by September 2006 after the incident referred to in paragraph 22 of the First Respondent’s Affidavit.
As part of her work in the Northern Territory the First Respondent wanted to be considered as a foster carer/parent. I accept her evidence that she informed the relevant Northern Territory authorities that she had earlier been registered as a foster carer in Queensland. I accept the First Respondent’s evidence that - in order to essentially improve her chances of being appointed as a foster carer in the Northern Territory – she wanted to maintain her registration as a foster carer in Queensland. Accordingly those issues were on her mind when the Queensland Government’s Department of Child Safety forwarded a renewal form in respect of the foster carer arrangements. I accept the First Respondent’s evidence that the official from the Department of Child Safety pursued the renewal form. The form is exhibit 4. On the page signed by the Applicant and the First Respondent it is noted to be, “page 14 of 14”. In fact the document is 27 pages. A perusal of the earlier pages comprising the exhibit reveals that fact. Two pages prior to the concluding page the page number is noted, “page 25 of 27”.
The document therefore does comprise 27 pages – most of which contain typewritten paragraphs. On page 12 of 27 the following paragraph is included:-
“[Ms Inwood] and [Mr Dubois] state that their relationship is still strong and [Ms Inwood]’s move to the Northern Territory is to advance her career, not because of changes in their relationship. [Mr Dubois] says that they keep in regular phone contact and [Ms Inwood] will return to [C] as often as is practical, given the distance.”
Both the Applicant and the First Respondent have signed this document.
I accept the evidence of the First Respondent that she did not read through the document before she signed it.
I accept the evidence of the First Respondent that she signed that document in the Northern Territory. I accept her evidence that it had remained on her desk for some time (unattended) and that after being “chased up” by the employee from the Department of Child Safety the First Respondent merely signed the document and returned it to Queensland.
The document may say that the parties’ relationship was “still strong” et cetera. The objective evidence of what actually occurred is very different. The First Respondent had departed the property and had been living in the Northern Territory since March 2008. Even though she returned to the property (briefly) in March 2008 and June/July 2008 – I accept her evidence that the parties did not have sexual intercourse during those visits.
The First Respondent was earning a salary of approximately $80,000.00 before tax from the time that she arrived in the Northern Territory in March 2008. If the parties’ “relationship” was still strong, one would surely have expected the First Respondent to return more often from the Northern Territory to visit the Applicant. The First Respondent was earning a significant income. There is no evidence to suggest that the First Respondent could not afford to pay for flights to visit the Applicant at [C] in Queensland. But the evidence shows clearly that the First Respondent did not visit Queensland between July 2008 and June/July 2009. There is no explanation as to why the First Respondent would not have come back to visit the Applicant during that 12 month period if (as stated in exhibit 4) the parties’ relationship was still strong. The further assertion in that document is, “[Ms Inwood] will return to [C] as often as is practical, given the distance”. There is no explanation as to why it was not “practical” for the First Respondent to return to [C] during other school holiday periods between mid 2008 and mid 2009.
The conclusion that I have come to is that the evidence of the Applicant in this regard is not to be accepted. The words contained in exhibit 4 are not correct. The parties’ relationship was not “still strong”. As a matter of objective reality the parties were simply not in a de facto relationship at the time asserted in exhibit 4.
Of particular note in the circumstances of this case is the following. No witness has been called on behalf of the Applicant to confirm that the parties socialised together and no witness has been called on behalf of the Applicant that the parties held themselves out to the world as a couple. The evidence of Mr H does not assist the Court in deciding which version should be accepted. The timeframe referred to by Mr H when he apparently observed the parties emerging from the one bedroom fits in (essentially) with the timeframe of the relationship as asserted by the First Respondent. At best the evidence of Mr H could be construed to mean that the parties were sleeping in the same bedroom and appeared to Mr H to be conducting themselves as though they were in a de facto relationship up until January 2007. This is a long way short of the assertion made by the Applicant.
The legislation sets out various considerations which the Court may take into account.
As to the nature and extent of the parties’ common residence – I accept the evidence of the First Respondent. The agreement between the parties was convenient for both of them. The First Respondent needed assistance for there to be some improvements to the property. The Applicant needed somewhere to [conduct his business] and preferred not to pay rent. At the location where he had previously been [conducting his business] he had a lease whereby he was required to pay $20,000.00 per year rental. Whilst [working] on the property owned by the Second Respondent – the Applicant did not have to pay rent. In lieu of rent the Applicant provided assistance as outlined by the First Respondent.
The parties did have a financial partnership for two years. I accept the evidence of the First Respondent that she did not receive any income from the partnership business. I accept the evidence of the First Respondent that even though the Applicant paid for various improvements on the property that she repaid part of those monies to the Applicant. The First Respondent does not provide evidence as to how much she repaid to the Applicant. But to the extent that the Applicant was not repaid directly – I accept the evidence of the First Respondent that the intention between the parties was that he would provide some improvements and those improvements would be in lieu of rent. It is apparent that over several years whilst the Applicant [worked] at the [C] property – that he [business omitted], earned income and kept that income. He did not share the income with the First Respondent.
The parties did care and support for some children. I find that it was the First Respondent who cared and supported her own two children. But in relation to the foster children – interestingly I note from exhibit 4 that the parties did not care for any further foster children beyond March 2008 – the date when the First Respondent left Queensland to go and live in the Northern Territory. I accept the First Respondent’s evidence that it was she who provided the care and support for the foster children when they lived at the property at [C].
I have already made mention of the fact that there has been no evidence called to confirm “the reputation and public aspects of the relationship” – as envisaged in section 4AA(2)(i).
As to the parties’ sexual relationship – I do not find it necessary to make a particular finding as to precisely the number of times the two parties had sexual intercourse together. The First Respondent maintains that there were only ever three occasions when this occurred. I note that this was not put to the Applicant. I find that it is more likely than not to be the case that the sexual relationship between the parties was closer to the version outlined by the First Respondent rather than the version outlined by the Applicant. In other words – the parties did not have sex as often as he maintains. I earlier made specific findings that I do not accept the Applicant’s evidence that the parties had sex in March 2008 and June/July 2008 – when the First Respondent had returned from the Northern Territory.
I consider that what has occurred is as follows – the parties’ de facto relationship commenced in May 2006. When the very unpleasant incident occurred in September 2006 – in the First Respondent’s own mind – the de facto relationship was at an end. I accept that she endeavoured to convey this to the Applicant. I accept the First Respondent’s evidence concerning these matters as outlined in her Affidavit filed 6 April 2011. The parties nonetheless remained friends. It was in their mutual interests to remain upon friendly terms.
I also find that the Applicant did not appreciate and did not accept that the de facto relationship had ended in September 2006. It seems that he, “held a candle” for the First Respondent for quite some time after September 2006. I accept the First Respondent’s evidence that she told the Applicant on several occasions after September 2006 that their de facto relationship had ended. I note (and accept) her evidence that the Applicant had attempted on several occasions to rekindle the relationship. I infer that means that the Applicant attempted to persuade the First Respondent to have sex with him – but she refused.
I find as a fact that the de facto relationship between the parties ended in September 2006 as asserted by the First Respondent. It may well have been a unilateral decision by the First Respondent in September 2006 – but I find that she did convey that decision to the Applicant that the relationship between them was at an end. In that regard I am, of course, referring to the de facto or romantic relationship. Surely, all that is required is a unilateral termination of such relationship. There is no requirement that both parties agree that the relationship is at an end. There is no requirement that both parties “turn the key” to end the relationship at the same time.
On any objective view of the evidence the Applicant was surely well and truly aware by March 2008 that there was no de facto relationship between the parties (I note exhibit 1 in that regard). Furthermore, there is no evidence that in the 12 month period between July 2008 and June/July 2009 that the Applicant sought to talk the First Respondent into returning to Queensland to spend time with him – or perhaps providing an airfare to the Applicant for him to join the First Respondent in the Northern Territory. That is the type of evidence that one would have expected to see in the event that the parties were conducting some form of a long distance relationship as asserted by the Applicant.
I note a recent decision of the Family Court of Australia in Jonah & White [2011] FamCA 221. In that decision Murphy J referred to an earlier decision of the Court of Appeal in Queensland. The Queensland Court of Appeal decision is KQ v HAE [2007] 2 Qd R 32. In a joint judgment the Court of Appeal noted, inter alia:-
“[19] These considerations all lend support to the view taken in earlier cases that a ‘de facto relationship’ will not be established for the purposes of Pt 19 of the Property Law Act [1974] [PLA] unless it can be seen that ‘the parties have so merged their lives that they were, for all practical purposes, living together as a married couple’.”
The parties in the present case did merge their two lives into one – but only for a short period of time. Although they lived on the same premises for one year and ten months (between May 2006 and March 2008) – I find that this was primarily a matter of convenience for both parties. I find as a fact that the de facto relationship between the parties ended – as asserted by the First Respondent – in September 2006. I note annexure A to the Affidavit of the Applicant filed 22 December 2010. I note that the letter from the First Respondent’s lawyer to the Applicant’s lawyer dated 25 May 2010 stated that, “Our client has never been in a de facto relationship with your client”. That was clearly incorrect. Having regard to all of the evidence in this case – I find that nothing in particular turns on that particular point.
The de facto relationship ended prior to 1 March 2009 – and hence as a result of section 86 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 – this Court has no jurisdiction to hear and determine the matter pursuant to Part VIIIAB of the Family Law Act.
Accordingly, the application for a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) (as amended) is dismissed.
Accrued jurisdiction
The Applicant argues that irrespective of whether or not this Court has jurisdiction under Part VIIIAB of the Act – this Court nonetheless has accrued jurisdiction to consider the case in accordance with ordinary equitable principles and determine whether there should be a declaration for a constructive trust having regard to the amount of money spent or invested at the property by the Applicant (as asserted by the Applicant).
I note the decision of the Family Court of Australia in Klintock & Ferder (2010) FamCA 162. A similar argument was pursued in that case. The argument failed. I agree with the submission put forward made on behalf of the Respondents. Before this Court could consider moving to the issue of accrued jurisdiction – the Court’s jurisdiction must first be invoked with respect to the primary proceedings – namely the de facto property claim pursuant to Part VIIIAB of the Act. In the particular circumstances of this case the Court has concluded that there is no jurisdiction in the Federal Magistrates Court of Australia to hear and determine this matter under Part VIIIAB. In those circumstances – having failed to invoke the jurisdiction of the Court (under Part VIIIAB) – I have concluded that the Applicant cannot then seek to rely upon any accrued jurisdiction. I note comments made by Black CJ and Hill J of the Full Court of the Federal Court of Australia in Petrotimor Companhia de Petroleos Sarl v Commonwealth of Australia (2003) 128 FCR 507. Black CJ and Hill J noted:-
“18.What is, we think clear, however, is that where the Federal part of the controversy is such that the Court lacks jurisdiction to hear it, then there can be no accrued jurisdiction. Accrued jurisdiction can only arise where the single controversy which is the ‘matter’ is one which is within the jurisdiction conferred upon the Court. If no Federal jurisdiction is properly invoked then there can be no accrued jurisdiction.”
That passage from the joint judgment of Black CJ and Hill J quoted above is referred to in Klintock & Ferder (supra). The principle there stated in the decision of the Full Court of the Federal Court was accepted as correct by the Full Court of the Family Court of Australia in Whitehouse & Whitehouse (2009) FamCAFC 207. That principle concerning accrued jurisdiction was also noted in Carlton and United Breweries Limited v Castlemaine Tooheys Limited (1986) 161 CLR 543 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 598 per French J.
The Applicant’s claims must be dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Howard FM
Date: 22 December 2011
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