E and P
[2005] FCWA 4
•14 JANUARY 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | E and P [2005] FCWA 4 |
| CORAM: | THACKRAY J |
| HEARD: | 19 & 20 OCTOBER 2004 |
| DELIVERED: | 14 JANUARY 2005 |
| FILE NO/S: | PT 1591 of 2004 |
| BETWEEN: | E |
Applicant
AND
P
Respondent
Catchwords:
DE FACTO RELATIONSHIP - application for property settlement - date after one year limitation period expired on Sunday
on which relationship ended
Legislation:
Family Court Act 1997, s 205ZB(1) Interpretation Act 1984, s 13A, s 61 Category: Not Reportable
Representation:
Counsel:
| Applicant: | Mr M Manning |
| Respondent: | Mrs E Brownlie |
Solicitors:
| Applicant: | Frichot & Frichot |
| Respondent: | Butlers |
Case(s) referred to in judgment(s):
Bloomfield v Clarke [2003] FCWA 158 Hiberson v George (1989) DFC 95-064
1 Ms E and Mr P commenced living in a de facto marriage relationship in 1997. The question I am required to consider is when did that relationship end?
2 The answer to the question has important consequences. Ms E filed an application on 22 March 2004, seeking a property settlement pursuant to Part 5A of the Family Court Act 1997. S 205ZB(1) requires such an application to be made within one year after the relationship ended. If more than a year had elapsed, Ms E needed leave of the Court to pursue her claim. Mr P says more than a year had elapsed, and therefore seeks an order that Ms E’s application be struck out.
Credibility
3 Mr P asserts that the de facto marriage relationship ended at the very latest in February 2003, when Ms E lodged a caveat against the title to his home, in which the parties had been living together. He claims he had moved out of the home prior to receiving notification of the caveat.
4 Ms E asserts that the relationship ended not earlier than about 25 March 2003, when Mr P came to the property and removed the books of his business and his vehicle. She says that until then he had been living in the home with her, albeit the last day they actually stayed under the same roof was 4 March 2003, when Mr P left on one of his long distance truck trips to the Eastern States.
5 The evidence comprised the written and oral testimony of the parties and witnesses called on their behalf. Various documents were admitted into evidence by consent. The decision was a difficult one, as there were important facts pointing in different directions. Ultimately, the decision turned on my assessment of the credibility of the parties and Mr P’s daughter. My assessment was assisted (albeit to a fairly minor extent) by the evidence of three witnesses who provided affidavits for Ms E, but who were not required for cross-examination.
Mr P
6 Mr P’s credibility was severely damaged under cross- examination. It was apparent he had made a number of serious errors in his affidavit. For example, in paragraph 11 he said the parties had occupied a separate bedroom after his return from Interstate in July 2002. In his oral evidence he said this occurred when he came back from interstate in January 2003. [In re- examination he said they occupied separate beds from early December 2002.] He went on to say he moved out of the home into his daughter’s home in late January/early February 2003. This in turn conflicted with paragraph 15 of his affidavit, where he said he moved out of the house altogether on or about 9 January 2003. Later on in his evidence he decided he had moved to his daughter’s home in “the middle of February roughly”, then he immediately changed his version to “mid January/early February”.
7 In paragraph 15 of his affidavit Mr P claimed he was making frequent trips interstate on a fortnightly basis after he moved into his daughter’s home on or about 9 January 2003 and that when he came home from Interstate he would visit their home to collect belongings and check the mail. At trial he conceded he was working locally during January and much of February 2003.
8 In paragraph 16 of his affidavit - which he had a chance to correct and did not - Mr P said he considered the relationship was over in 1998/99. He had that proposition repeated to him in cross- examination, and he responded by saying “That’s true”. When counsel somewhat incredulously queried his answer, he admitted he “made a blue on the date”. However, he said it was “way before” 2002 when he had decided the relationship was over. He said thereafter he and Ms E were simply living in the same residence, with him “paying the bills”. Later in his cross- examination, Mr P admitted there was still affection between him and Ms E, but he says this ceased in December 2002.
9 During the course of his oral testimony, Mr P gave a variety of conflicting answers on material matters. I accept, as he said, that he is not a lawyer and not a great note keeper. However, rather than giving conflicting answers to questions, it would have been more sensible for him to have simply said he could not recall - or at least give some indication he was in some doubt about the answers he was giving. Instead, he generally gave his answers quite bluntly. I found he had a distinct tendency to provide the answer he hoped would best support his case.
10 Mr P’s coughing, spluttering, touching of his face and covering his mouth with his hand at times when he was caught out in cross-examination added further to the impression he was not a reliable witness.
Ms E
11 Ms E was a somewhat more reliable historian, in that there were fewer instances in which her evidence was shown to be inaccurate. However, I did not regard her as a credible witness either. In some instances her evidence was shown to be mistaken. In other instances, cross-examination revealed she had failed to provide a full account of the relevant history – particularly relating to her failure to disclose she had taken a lease on a new home prior to the date on which she claims the relationship ended. Her credibility was not improved when she said she only took the lease because the property “came up” and her relatives wanted her to move there “if anything happened between [Mr P] and me”.
12 Ms E’s evidence about what I regard as being the crucial telephone conversation with Mr P on 20 March 2003 was particularly unreliable. She gave a number of directly contradictory answers concerning what was said in the course of this conversation.
13 Furthermore, Ms E initially volunteered in her cross- examination that when she spoke on the telephone to Mr P’s fiancé, in the middle of March 2003, she knew he was “not coming back”. However, a little later in her cross-examination when it was put to her that by the date of that phone call she knew “the relationship was ended”, she said she disagreed “because we were still living together”. When pressed as to how she could still be living together, she said, “I didn't know that he was not coming back”. Pressed further about the fact she had actually been told in this conversation that Mr P and S had become engaged, Ms E said, “Anybody can get engaged”. She went on to say Mr P had not told her that he was not coming back.
14 I found Ms E also had a tendency to give answers she calculated would best suit her case. For example, she was asked about a letter from her solicitors dated 5 May 2003 in which it was proposed that the parties attend an “ADR conference”. It was suggested to her that she was proposing such a conference because the parties had separated. She responded by saying “we hadn’t separated at that stage”, even though, on her own evidence, Mr P had collected his business books and his vehicle, moved to his daughter’s home and had taken his new fiancée to his daughter’s wedding. She gave this answer, it seems, because she was trying to defend the use of the separation date of 23 May 2003 in the Information Sheet that accompanied her application to the Family Court.
15 It is possible, of course, that while being cross-examined on the letter of 5 May 2003, Ms E had become confused with the chronology of events. She might have thought this letter was prepared at the time she first consulted her lawyers some months earlier to prepare the caveat. However, this seems unlikely since she answered in the affirmative when counsel for Mr P asked her specifically whether she was really talking about “May [2003]”.
16 I was also concerned by an answer Ms E gave in relation to claiming “the pension”. After being asked questions about certain phone calls in the first half of March 2003, she was asked whether she was “on a pension at that time”. She said she was. She volunteered it was necessary for her to claim the pension because Mr P never gave her any money to carry on her business, and that the pension was to pay for her insurance.
17 I was in some doubt whether Ms E was really admitting she was claiming the pension earlier than the date in late March 2003 when she says Mr P came to the home and collected his business books and vehicle. If she was claiming the pension any earlier than that date, it would be a further stain on her credibility, since it would seem she had no entitlement to a pension when she was living with Mr P. However, the question Ms E was asked was not specific as to the date she commenced claiming the pension, albeit if she understood the question correctly she was admitting to receiving the pension in the first half of March 2003.
18 Part of the reason for my reservation about the answer she gave on this issue, arises from Ms E’s reference to the need for the pension to pay her insurance. This made me think it was at least possible she only started to claim benefits after Mr P cancelled her car insurance at the end of March 2003.
19 On the other hand it was noteworthy that Ms E did not lead evidence about the date she first claimed the pension. If it had only been claimed late in March 2003 or in April 2003, this would have bolstered her case. The fact this evidence was not led was presumably due either to her advisers being unaware prior to trial she had ever claimed a pension or because it was known she had claimed benefits fraudulently.
20 Conversely, there are a number of possible reasons why Ms E was not cross examined about the precise date on which she commenced claiming the pension. It could have been due to oversight; because counsel did not know the answer to the question; or because Mr P knew all along that Ms E had been claiming the pension while living with him and he felt implicated in the fraud.
21 It was unfortunate the pension issue was not explored further by either side. However, the possibility that Ms E claimed social security fraudulently; her inconsistent testimony, and her non- disclosure of the lease on the other house, made it appropriate for her evidence to be scrutinised with even more than usual care.
22 Although overall I found Ms E to be an unreliable witness, I considered her testimony on some of the significant issues was more believable than the evidence of Mr P, whose evidence his own counsel properly conceded was “all over the place”.
Mr P’s daughter
23 The evidence of Mr P’s daughter, was important because she tried to corroborate his claim he had moved out of the home long before 4 March 2003. This is the date Ms E says Mr P left the home for the last of his trips East.
24 In her affidavit, the daughter had said:
“6.
My father then flew interstate on 24 December 2002. On his return, I collected him from the airport and he told me he had asked S to marry him. [Sentence struck out] My father seemed very, very happy and had already made plans for the wedding in Perth, and S’s move from interstate.
7.
At this time, my father moved in with me and my partner. This was due to the fact that the Applicant would not leave my father’s home and he had nowhere else to stay.
…
10. My father lived with me and my partner from 24 December 2002 until approximately May 2003. He would commute back and forth from the Eastern States for his job from my home”.
…
14. I therefore say that my father resided with my husband and I in our home from late December 2002 until late May/early June 2003. At no time did he return to reside in his home during that period, and at all times I have understood that the parties finally separated on 24 December 2002.”
25 At the commencement of her oral evidence, the daughter was asked whether or not there was anything she wished to correct in her affidavit. She said she wanted to correct paragraph 10. She said her father had not lived with her from 24 December 2002, but rather from 2 February 2003. But when asked to look at paragraph 14 of her affidavit, where she had said that her father had lived in her home from late December 2002 until late May/early June 2003, she said that would have to be corrected to read “early January to May 2003”. Her father’s counsel asked “January?”, to which she responded “Yes”.
26 The daughter was not the most articulate or confident of witnesses. No doubt she was nervous during her time in the witness box. In the end result I was left with her having given me three different dates for when her father started living with her namely, late December 2002, early January 2003 and 2 February 2003. I accept she probably intended to say “2 January”, rather than “2 February”, given that elsewhere in her evidence she said she had collected her father from the airport on 2 January 2003 and she had also said he started living with her from the time he flew back from interstate in early January 2003. (Later in her cross- examination, after hearing some interchange between me and her father’s counsel on the topic, she was sure it was 2 January 2003 her father started living with her.)
27 The daughter claimed that during the whole of the time her father had lived with her, he had continued driving trucks to the Eastern States. On his own evidence, Mr P had in fact been working locally throughout January and for most of February 2003. If he had indeed been living with her, I would have thought that the daughter would have had some recollection that he was not going on long distance trips to the Eastern States.
28 The daughter was clearly hostile towards Ms E and keen to support her father’s case. Although called to corroborate his claims about when he started living with her, she ended up giving evidence that conflicted with the evidence given by both Mr P and Ms E on this issue. I also consider she was mistaken about the date of the dinner the parties attended at her home for Christmas 2002. Overall, I found she did not have a good memory for dates.
29 I do not consider she set out intentionally to give false evidence. I consider it is more likely, with the passage of time, that she has reconstructed events in a way that supports an earlier date of separation. I preferred the evidence of Ms E about the dates Mr P was living in the home.
Witnesses not required for cross-examination
30 Ms E’s friend and former financial advisor, Ms B was not required for cross-examination on her affidavit. She visited the parties in the home in early January 2003 to catch up. She said, without giving any details, that from what she “observed they were living together and their relationship appeared unchanged”. She knew them well because she had often stayed overnight in their home and attended a number of parties with them.
31 In approximately February 2003, Ms B organised a market appraisal on the house to assist Mr P obtain a loan to cover the costs of his daughter’s wedding. Both the parties were at the home on the morning of the appraisal, although Mr P “went out” shortly after Ms B arrived. She said, again without giving details, that on this occasion the parties “were much the same towards each other as they had been since they met”. She visited the home again in March 2003, but on that occasion Mr P was not there. However, this visit was mid week and during office hours.
32 There is no suggestion in Ms B’s affidavit that she was informed at any of these visits that the parties’ relationship was over. I infer it is likely she would have been told had it been so, since Ms E had previously talked about her suspicions that Mr P “had another woman”.
33 Ms P was another witness not required for cross-examination. She started visiting the home in August 2002 to take part in Ms E’s weight reduction classes. She saw the parties together in the home and she also saw them out shopping together. She last went to the home in early April 2003 and she recalls seeing Mr P in the home approximately a month before that, which would have been about when he left on his final trip to the Eastern States. She gave evidence about seeing Mr P showering, watching television and having coffee and conversing with Ms E.
34 Ms P’s evidence would have been far more useful had it been made clear just when she observed the various things she described in her affidavit. It could have been that she was giving evidence mainly about the latter months of 2002 when she first joined the weight class. She did note that towards the end “of this period” (i.e. the period which ended when she last saw Mr P in March 2003) the parties were “not talking very much and there seemed to be some tension between them”.
35 Ms G was also not required for cross-examination on her affidavit. She came to the home for weight reduction classes from August 2002 until April 2003. She said Mr P had always seemed very affectionate towards Ms E. She had seen Mr P in the house on some occasions after 21 February 2003, a date that she specifically recalled because of a traumatic association. She acknowledged she had not seen him there “towards the end of the period I went”.
36 Although I accept the evidence of these three visitors to the home, much of it was given in a very imprecise fashion. It did not establish conclusively that Mr P was actually living in the home up until 4 March 2003. Mr P does not deny he was seen at the Thornlie home after he allegedly moved to live with his daughter in the earlier part of 2003. However, he says he was only visiting the home to collect his mail and other possessions.
37 The decision made by Mr P’s advisers not to cross-examine any of these three witnesses was forensically a very sound one. However, the result is that he has failed to negate the reasonable inference to be drawn that visitors to the home during the first months of 2003 did not observe him dropping in just to pick up a few possessions. These visitors were left with the impression that the parties were still living together.
The law
38 In determining when the de facto relationship ended, I must have regard to the provisions of s 13A of the Interpretation Act 1984, which sets out the following factors to be taken into account in assessing whether there is a de facto relationship: -
(a) the length of the relationship between them; (b) whether the two persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or independence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually; (g) the degree of mutual commitment by them to a shared life; (h) whether they cared for and support children; (i) the reputation, and public aspects of the relationship between them.
39 I agree, with respect, with the observations of Mahoney J in Hiberson v George (1989) DFC 95-064, where his Honour said (at p 75,766) in considering a de facto marriage relationship:
"There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of incidents which the relationship normally involve. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as was suggested in the present case, to enable the one party or other to decide whether it should continue." (my emphasis added).
| 40 | In Hiberson & George, the trial Judge had said: - “in the absence of any overt act or indication by the defendant to the plaintiff that she was staying away only temporarily and intended to return, it seems that I must find that the relationship had ceased by 1 July” [i.e. the date of which the NSW De Facto Relationships Act 1984 commenced]. |
41 Mahoney J, and the other members of the New South Wales Court of Appeal, saw no error in this approach.
42 I also agree, with respect, with what Penny J had to say in Bloomfield v Clarke [2003] FCWA 158. After reviewing the relevant authorities, her Honour concluded (at para 55): -
“I agree with the proposition that it takes more than a physical separation to sever a de facto relationship. A de facto couple could separate, but work towards continuing the relationship, for example, by attending counselling and going out together socially”.
43 As will become apparent later in my reasons, it is important also to consider the relevant statutory provisions relating to the calculation of the period of “one year” mentioned in s 205ZB(1). These are to be found in s 61 of the Interpretation Act 1984. By virtue of subpara 61(1)(b) of that Act, the day the relationship ended is not included in the calculation of the period of one year. By virtue of subpara 61(1)(e) and subs 61(2), if the last day for making the application fell on a Saturday or Sunday, the application may be made on the following Monday.
Findings & discussion
44 I turn now to consider what I saw as the most important parts of the evidence and I make the following findings.
45 Whilst working as an interstate truck driver in 1998, Mr P met his present wife, S, who then lived interstate. Whether or not they commenced an affair straight away is immaterial. They certainly started an intimate relationship long before the de facto marriage relationship between Mr P and Ms E came to an end.
46 Ms E was well aware of Mr P’s infidelity. As early as 1999 she was telephoning S to ask her to stop seeing Mr P. He was aware she had done this. Ms E again confronted S about the affair in a telephone conversation in early 2002. Mr P denied there was any substance in her concerns. Ms E did not believe him, but they continued to live together.
47 In May 2002, Mr P and Ms E ceased to have a sexual relationship. Ms E was afraid that Mr P was not only having sex with S, but that he was also having sex with prostitutes. She was concerned about the possibility of contracting sexually transmitted diseases if she continued to sleep with him.
48 Mr P claims he asked S to marry him in June/July 2002. He says she accepted his proposal, but the engagement was not announced to anybody. S made no mention of this in her affidavit. I consider it is unlikely they were formally engaged at this time.
49 In October 2002 Mr P stopped driving his truck to the Eastern States and commenced working locally. I accept he did so for financial reasons. However, he kept in touch with S. On 14 November 2002 he booked a plane ticket to visit her over Christmas 2002.
50 In November 2002, Ms E discovered that $35,000 in cash had been removed from the home. Mr P admitted he had taken this money. Ms E was extremely concerned, and this matter was the source of much disputation. Mr P admitted he kept “fobbing off” Ms E, and repeatedly said in response to her enquiries about the return of the money that “job’s right, it’s safe”.
51 On 19 December 2002 the parties went together to see Mr R Purvis, a solicitor experienced in family matters. Neither party had mentioned this in their affidavits. However there was reference to this meeting in Mr P’s chronology, where it was said the meeting was “to sort out a separation agreement”. No agreement was prepared. Mr Purvis was not called to give evidence. Mr P was too unreliable a witness for me to accept his word about the reason for the meeting. Ms E was not asked about it in cross-examination.
52 No doubt, given the disagreement between the parties about the removal of the $35,000, the meeting with Mr Purvis was to discuss issues that existed between them at the time. It may even have been to discuss the terms on which the parties might end their relationship. The fact that the parties met with a lawyer does not indicate necessarily that their relationship was ended. Many separating couples (perhaps even a majority) seek advice about their position prior to separation. Some engage in discussions and negotiations concerning the manner in which they will separate. Some are not prepared to separate until they have what an acceptable financial basis for separation. Some reconcile their differences and take matters no further.
53 Mr P says he went back to see Mr Purvis on further occasions after the meeting on 19 December 2002. This did not result in any correspondence being sent to Ms E, or any court process being issued.
54 On 23 December 2002, after the meeting at Mr Purvis’ office, the parties had dinner with Mr P’s daughter and her fiancé. This was the day before Mr P flew interstate. The daughter claims Ms E told her during the evening that the relationship was all over. I regard the daughter’s testimony as being her conclusion as to what she was told, rather than evidence of what she was actually told. I accept Ms E evidence that she asked the daughter whether she “knew what was going on” – by which she was referring to S - and the daughter told her she did not want to talk about it. I also accept her evidence that she did not tell her the relationship with Mr P was “over”.
55 Mr P and Ms E continued to sleep in the same bed until 23 December 2002, immediately prior to Mr P’s departure interstate. I accept Ms E evidence that Mr P tried to kiss her goodbye as he left, but she refused his advances. Their relationship was at a very low ebb because of the ongoing disagreement concerning the removal of the $35,000, and presumably also his decision to spend Christmas away from home.
56 Mr P proposed marriage to S just before New Years Eve 2002 and she accepted. He bought her an engagement ring. The engagement was announced but the extent of the announcement is unclear. He told his daughter about it when she collected him from the airport on his return to Perth in early January 2003.
57 On 2 January 2003 Mr P returned to live in the home with Ms E. I do not accept his evidence that he commenced sleeping in a separate room at this time, although it is possible that from time to time he may have slept in a separate bedroom, or even at the daughter’s home.
58 On the same day he returned to the home, Mr P signed a document removing Ms E as a signatory on his bank account. Ms E soon became aware this had happened. However, his action was ineffective, at least to the extent it did not prevent Ms E carrying out phone banking on his account.
59 At some time (probably early in the New Year of 2003) Ms E became aware that Mr P had purchased jewellery whilst he was in the Eastern States. She presumed it was for S, but I accept her evidence she did not inquire about it because “she didn’t want to know”. I do not accept Mr P’s evidence that he told her about the engagement.
60 On 28 January 2003, Ms E signed a Statutory Declaration prepared by solicitors she had instructed. The Declaration was in support of the registration of a caveat against the property, which was registered only in Mr P’s name. It is unclear when the instructions for this were given, but the person preparing the Declaration anticipated that it would be signed in the year 2003. The Declaration, insofar as it is material, read as follows:
“1. I am in a de facto relationship with P. 2.
I commenced de facto relationship with my de facto partner P on 1 - 12 - 987.
… 5. I separated from P on 24 - 12 - 02. … 7.
I seek to lodge a Caveat to protect my interest pending resolution of my de facto property entitlements.”
61 Prior to being signed, this document had two dates left blank. These were the date on which the relationship commenced and the date on which the parties separated. Ms E inserted the relevant dates before signing the document.
62 The draft Declaration was somewhat odd since the witness was expected to declare the truth both of paragraph 1 (which asserts in the present tense that the parties are living in a de facto relationship), as well as declaring the truth of paragraph 5, which asserts that they have separated. In any event it is apparent that the person who drafted the declaration expected Ms E to say the separation had occurred sometime in 2003, since the year was already typed in the draft.
63 Faced with this blank in the document for the date of separation, Ms E inserted the date on which Mr P had gone to Interstate in December 2002 to visit S. She now says that they were not separated at this time, but she could not think of what other date to insert, since he had already returned to live in the home by the time the Declaration was made.
64 The December date was naturally enough seized on by Mr P’s advisers, who preferred to emphasize that part of the Declaration, rather than the first part, which said the parties were still in a de facto relationship. Ms E is not a legally qualified person. She seemed to be fairly unsophisticated in relation to legal matters. Although she did not say so, it may be a reasonable inference that she thought she had to say she had separated in order to justify the lodgement of a caveat. Her choice of the December date was sensible enough, as it was the last time Mr P had left the house. Given the circumstances, including the fact that the Declaration is internally contradictory, Ms E is not estopped from asserting that she and Mr P separated at a later date than alleged in the Statutory Declaration.
65 Furthermore, I accept the submission of Ms E’s counsel that the relevant date is not the date on which the couple “separated” but the date on which the relationship “ended” within the meaning of the Family Court Act 1997. Although these dates will frequently coincide, it is not always the case - as Penny J’s observations in Bloomfield v Clarke (supra) indicate.
66 On 4 February 2003, Ms E telephoned Legal Aid. I was inclined to accept her evidence that she wanted to seek advice about the missing $35,000, and not about the relationship as such. In any event, nothing came of this contact with Legal Aid. There is no suggestion that Mr P knew about it until phone records were being examined for the purposes of these proceedings.
67 On 5 February 2003, the parties attended the 50th birthday party of a friend. They attended together, although I note the only photograph produced of this event did not show the couple together. Mr P gave no evidence about why it came to be that the parties attended this event together. In the absence of any evidence to the contrary, I infer that any person attending the birthday party would have been under the impression that Mr P and Ms E were still in a relationship.
68 On or about 25 February 2003, Mr P became aware of the caveat Ms E had lodged against the title to his property. At around the same time Mr P decided to start working interstate again, as the company for which he had been working in Western Australia had run into further financial difficulties.
69 On 4 March 2003, Ms E drove Mr P to the place where his truck was parked, prior to his departure on his trip to the Eastern States. This evidence was not disputed, and I consider it significant. If, in fact, Mr P was living with his daughter, one would imagine that she would have driven him to his truck, or he would have got there by means other than having Ms E transport him. In the meantime, I accept Ms E’s evidence that she continued to cook, wash and iron for Mr P as she had always done during their relationship.
70 For about a week from 4 March 2004, Mr P and Ms E were in more or less daily telephone contact whilst he was travelling east. Mr P alleges that he telephoned Ms E so regularly to see whether or not she had left the property. I have considerable difficulty in accepting this evidence. He did not need to ring every day to find out whether she had departed. Furthermore, she also rang him on some occasions – for example for 8 minutes on 6 March 2003 and 2 minutes on 11 March 2003. I find that these telephone calls were a continuation of their long-standing practice, whereby they kept in touch on more or less daily basis when he was in the Eastern States.
71 I also reject Mr P’s evidence (apparently recalled to his memory very late in his cross-examination) that the phone calls were also about alleged misappropriation of funds from the business account.
72 Ms E said in her affidavit that the telephone calls came to an end on 11 or 12 March 2003 when she telephoned S and told her she believed Mr P was leading two lives. In her cross-examination Ms E said she had “corrected that”, and in fact the call had been made on 15 March 2003. [The phone records show the call was in fact made on 14 March.] S confirmed in her evidence that Ms E told her in this conversation that Mr P was “leading two lives” – one with her and the other with S.
73 It was during this conversation that S informed Ms E she was engaged to be married to Mr P. S informed Mr P that she had told Ms E about the engagement. Mr P then stopped telephoning Ms E. I reject his evidence he stopped calling only because there was no point continuing to harass her about moving out of the house. I find he stopped because he was either too embarrassed to speak with her after the engagement had been revealed, or because he wished to avoid what he expected would be an unpleasant verbal confrontation.
74 I find that even before she heard about the engagement, Ms E had accepted the relationship was in its death throes. She failed to tell the Court that in January 2003 she had taken a lease on a home in Mandurah, although she did not move into the property. She also failed to tell the Court that as early as 5 March 2003 she began to acquire furniture for the Mandurah home. However, there is no evidence Mr P had been informed Ms E had obtained her own accommodation. I gained the impression from the way in which matters were played out at trial that he had only ascertained this by reference to documents that were made available in discovery.
75 Mr P returned to Western Australia after his trip to the eastern States sometime in the third week of March 2003. There is confusion about the precise date he came back, which is unfortunate since the date is critical, given the application was filed on 22 March 2004. Ms E gave conflicting evidence on this issue in paragraphs 28 and 30 of her affidavit, which she attempted to clarify in her evidence in chief. However, her evidence under cross-examination and in re-examination added significantly to the confusion about precisely when he came back.
76 In any event, Ms E telephoned Mr P on 20 March 2003. The call was made to his mobile phone. It is unclear where he was at the time. Although Ms E gave highly conflicting evidence on the point, I consider it more likely than not that during this telephone conversation Mr P informed her that he was bringing S back to Perth with him and he was not coming back to the home. I am not satisfied they spent 11 minutes on the telephone discussing the pool (which had just been repaired) or “everyday things”, as Ms E endeavoured to say at one point in her evidence.
77 This telephone call was the first made after S had told Ms E she had become engaged to Mr P. It is highly likely that this fairly lengthy call involved a serious confrontation. Ms E said in her evidence, “The last time that I spoke to him was on the 20th of March and he wouldn’t come and live around at my place ‘cos he brought his girlfriend over here; that’s why he went to his daughter’s place”. Notwithstanding this evidence, Ms E denied that she knew they were separated by the time she received this call. She said he did not tell her they were separated. She said it “wasn’t until after the daughter’s wedding”.
78 According to his evidence, Mr P arrived back in Western Australia on or about 26 March 2004. He came to the home a day or so after his return and collected the books of his business. He also collected his utility, which had been parked at the home during his absence. He said in his affidavit he also had to go back to the house on his return from the eastern States “as my clothes were there”. If he had moved out of the house earlier in the year, as he asserted, one wonders why his clothes were still there? He also noted that he went to the property “to see me dog”.
79 Mr P alleged he had not collected his business books previously because Ms E would not let him have them. I do not accept this evidence. There is no indication that he had any difficulty at all in collecting the books. Had he wanted to take the books he could have taken them earlier. (As it turned out Ms E was making a duplicate copy of everything, and presumably therefore had no interest or motive in keeping the originals from him.) According to Mr P he had been able to come to the home regularly to collect his belongings, his mail and faxes.
80 I accept Ms E’s evidence that up until the books were collected by Mr P, she had continued to do the bookwork for his business in the same way she had done previously. She was still sending out Mr P’s invoices at least up until 14 February 2003 (see Exhibit 5). She had in her possession documents that I accept Mr P had given her in the last half of February 2003 (see Exhibit 6). She continued to do his phone banking until towards the end of March 2003 (see Exhibit 7).
81 Ms P also reconciled his bank statements, which continued to come to the house, up to the third week in March 2003 (see Exhibit 15). There was no direct evidence as to how she undertook the reconciliation, but examination of the financial statements suggests strongly that it was highly unlikely she could have performed this task without reference either to cheque books (which presumably would have been given to her by Mr P), or by discussion with him personally. I do not accept the submission made by Mr P’s counsel that Ms E could have done all this work simply by looking at the accounts that were coming to the house and by using information she had earlier received doing telephone banking for Mr P.
82 It is significant Ms E continued to do Mr P’s books for him until he collected them in late March 2003. Although a chronology is not a sworn document, Mr P’s was presumably prepared on his instructions. (Surprisingly it contained a great deal more information than could be found in any of the evidence.) The chronology asserted that the daughter had started acting as Mr P’s book keeper in mid January 2003, whereas he admitted in cross- examination it was clear as “black and white” that Ms E had done the books up to near the end of March 2003.
83 If there was any doubt by this stage that the relationship had finished there would have been no doubt by 29 March 2003. On that date Mr P’s daughter was married and Mr P was accompanied to her wedding by S and not by Ms E.
84 It appears that on 31 March 2003 Mr P removed Ms E’s car from his insurance policy (see Exhibit 11). He did not remove her from his health insurance cover, but I accept his evidence that he overlooked the fact that the payments were coming directly from his Visa card.
85 On or about 31 March 2003 Mr P had his mail redirected from the house. I did not accept his evidence he waited that long to change his address because of “work commitments”. He produced no evidence (other than what the daughter had to say) to suggest he informed anybody he was residing anywhere other than at their home, or that correspondence should be sent to the daughter’s home.
Conclusion
86 I find that the de facto marriage of Mr P and Ms E ended on 20 March 2003 when she telephoned him, only to be told he was coming back to Perth with S and would be going to live with his daughter. This announcement was swiftly followed by his visit to the home when he collected his business books and his vehicle.
87 I find that until that telephone call, Mr P had strung Ms E along, letting her believe he might continue his relationship with her, even though he was also having a relationship with S on his interstate trips.
• He led her to believe he would sort out the issue relating to the removal of the $35,000. • He continued to treat the home in which she was living as his place of abode. • When he left the house he did not do so to go to another home, but to take a trip to the East. • He had continued to sleep in the same bed as her. • He had gone out socially with her. • He allowed Ms E to continue to prepare the books of account of his business. • He did not have his mail redirected until after S’s arrival in Western Australia in late March 2003. 88 I find that Ms E is a person who was prepared to put up with a great deal in the relationship. She was prepared to be “strung along” for a long time. She was prepared to stay in the relationship even though she knew her partner was seeing another woman. However, I consider she knew the relationship was highly likely to come to an end when Mr P went to Interstate for Christmas 2002. She began to plan the termination of the relationship by taking legal advice, lodging a caveat, obtaining a new home and furniture. However, I consider that she held out at least faint hope that the relationship would continue, even after S told her about the engagement. She only gave up all hope when Mr P – for the first time – told her directly he would not be returning to the home when he came back from the Eastern States. Being told her de facto husband was driving his fiancé back to Western Australia must surely have been the moment Ms E accepted the relationship was over.
The outcome
89 I have found the relationship ended on 20 March 2003. The application for property settlement therefore needed to be made within one year of that date. By virtue of the provisions of the Interpretation Act, the year expired not earlier than 21 March 2004. That day was a Sunday. By virtue of the provisions of subpara 61(1)(e) and subs 61(2) of the Interpretation Act, the time for filing the application was therefore extended to Monday 22 March 2004. That was the very day the application was filed. Leave of the Court was not required.
90 I am therefore not required to consider issues arising from the fact Ms E’s application was received by the Court on 19 March 2004, but not formally filed until 22 March 2004. In particular I do not need to determine whether the application was “made” when it was lodged with the Court for processing or only when it was formally noted as “filed”.
Orders & directions
91 Mr P’s Response filed on 18 May 2004 will be dismissed and a directions hearing will be conducted to allow the substantive litigation to proceed.
I certify that the preceding [91] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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