Eason & Hallins
[2022] FedCFamC2F 1187
•1 September 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eason & Hallins [2022] FedCFamC2F 1187
File number(s): MLC 7289 of 2021 Judgment of: JUDGE BOYMAL Date of judgment: 1 September 2022 Catchwords: FAMILY LAW – Property – de facto relationship – date of separation in dispute – whether wife’s application for property adjustment commenced within time Legislation: Family Law Act 1975 (Cth) ss 4AA, 44, 90SM Cases cited: Clarence & Crisp [2016] FamCAFC 157
Fairbairn v Radecki [2022] HCA 18
Hayes v Marquis [2008] NSWCA10
Herford & Berke (No. 2) (2019) FLC 93-919
Lynam v Director-General of Social Security (1983) 52 ALR 128
Mayson & Wellard (2021) FamCAFC 115
Sinclair & Whittaker [2013] FamCAFC 129
Division: Division 2 Family Law Number of paragraphs: 148 Date of hearing: 9 February 2022 Place: Geelong Counsel for the Applicant: Mr Arnold Solicitor for the Applicant: Roger O’Halloran & Co Counsel for the Respondent: Mr Ambrose Solicitor for the Respondent: Wightons Lawyers ORDERS
MLC 7289 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EASON
Applicant
AND: MR HALLINS
Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
1 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to section 90RD of the Family Law Act 1975 (Cth) a de facto relationship is declared to have existed between the parties from 2011 until early October 2019.
2.It is further declared that the parties’ de facto relationship ended in early October 2019.
3.The parties attend a private mediation with Mr B/Mr C as mediator or such other mediator as may be agreed between the parties and each party be responsible for one half of the mediator’s fees.
4.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) unless otherwise agreed, the parties forthwith obtain single expert valuations at equal shared expense of the following:
(a)D Street, Suburb E, Western Australia;
(b)F Street, Suburb G, Victoria; and
(c)H Pty Ltd.
5.The wife file and serve any written submissions as to costs within 21 days.
6.The husband file and serve any response to costs 14 days thereafter.
7.The wife may file and serve any reply 7 days thereafter.
8.The matter be adjourned to 7 February 2023 at 10.00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit and Family Court of Australia in the City J Circuit.
9.No later than 21 days prior to the trial date, the applicant file and serve:
(a)an updated single consolidated trial affidavit;
(b)other witness affidavits upon which they intend to rely; and
(c)an updated financial statement.
10.No later than 14 days prior to the trial date, the respondent file and serve:
(a)an updated single consolidated trial affidavit;
(b)other witness affidavits upon which they intend to rely; and
(c)an updated financial statement.
11.No later than 7 days prior to the trial date:
(a)the applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the respondent(s)’ affidavits; and
12.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document which shall include:
(a)a minute of precise Orders sought;
(b)a list of the material relied upon;
(c)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(d)a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
(i)the assets and liabilities available for division;
(ii)the value of items where the value is in dispute;
(iii)contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
(iv)relevant section 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
(v)any further factors relevant to determining a ‘just and equitable’ division of property.
13.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
14.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
15.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
16.Each party electronically file and serve a Court Book by no later than 2 days prior to trial, such Court Book to:-
(a)be in portable document format (PDF);
(b)be capable of being searchable for specified text;
(c)be paginated and have an index;
(d)have each entry in the index electronically bookmarked; and,
(e)include:-
(i)an Outline of Case document; and,
(ii)all documents previously filed in the proceedings upon which that party seeks to rely at final hearing, NOTING THAT any expert evidence is to be included in the Court Book of the Applicant.
17.The wife advise the Trustee in Bankruptcy of the adjourned date and serve a copy of these Orders upon the Trustee.
THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
INTRODUCTION
The applicant de facto wife filed an Initiating Application on 30 June 2021 seeking an adjustment of property interests pursuant to section 90SM of the Family Law Act1975 (Cth) (the Act).
The husband and wife agree that they commenced living in a de facto relationship in 2011.
The wife asserts that the parties separated in early October 2019.
The husband asserts that the parties separated in November 2018. Accordingly he seeks that the wife’s application be dismissed on the basis that it was filed some seven months outside the two-year limitation period provided for in section 44(5) the Act.
The issues requiring determination are:
(a)whether the parties’ de facto relationship ended in November 2018 or early October 2019; and
(b)if the relationship ended in November 2018, whether leave should be granted to the wife to proceed with her Initiating Application out of time pursuant to section 44(6)(a) of the Act.
LEGAL PRINCIPLES
The nature, form and characteristics of a de facto relationship are extensive and expansive. What is considered to be a de facto relationship by one person or couple may not be the same as how it is considered by another person or couple. That is clearly acknowledged by the law.
In Sinclair & Whittaker [2013] FamCAFC 129 the Full Court of the Family Court at [55] cited with approval Fitzgerald J’s statement in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:
… [e]ach element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
The Court is guided by the statutory test set out section 4AA of the Act as to whether a de facto relationship subsisted after November 2018.
The parties satisfy section 4AA(1)(a) and (b). They are not legally married to each other and are not related by family.
Section 4AA(1)(c) specifies that two people are in a de facto relationship when “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
Section 4AA(2) includes a number of criteria which the Court may consider when “working out if persons have a relationship as a couple” as follows:
(2) …
(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.
The High Court of Australia in Fairbairn v Radecki [2022] HCA 18 at [28] said:
Section 4AA(1)(c) identifies the relationship which is the concern of the Act: "a relationship as a couple living together on a genuine domestic basis". The existence of such a relationship is determined having regard to "all the circumstances" of a relationship; significantly, those "circumstances" include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
None of the matters referred to in section 4AA(2) has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.[1]
[1] Clarence & Crisp [2016] FamCAFC 157 at [33].
In Fairbairn at [39] the High Court said “that living together” should be construed as meaning sharing life as a couple.
The husband asserts that he perceived that the parties’ stopped sharing life as a couple in November 2018. The wife perceived that they continued to share life as a couple until early October 2019.
However the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not a matter for the parties. The perception of the parties of the nature of the relationship is a relevant matter but it is not determinative.[2] The existence of a de facto relationship between these parties between November 2018 and October 2019 is a question of fact, not perception.
[2] Sinclair and Whittaker (2013) FLC 93-551 at [65].
The husband asserts that he told the wife their relationship was over in November 2018. The wife denies that he did so. The wife asserts that the husband did not tell her that their relationship was over until early October 2019.
However it is not necessary for the Court to specifically enquire as to whether an intention to separate was formed and that intention was acted upon and/or communicated to the other party.[3]
[3] Mayson & Wellard (2021) FamCAFC 115 at [41].
In Mayson & Wellard (2021) FamCAFC 115 at 43 the Full Court said
Indeed, it seems to us that the Full Court in Clarence & Crisp [2016] FamCAFC 157; (2016) FLC 93-728 correctly identified the test to determine whether a de facto relationship has come to an end. The Full Court said:
51.Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]:
56. … a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist.
52.Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation…
The Court is obliged to look at the relationship both before and after the asserted first date the relationship ended and ask whether having regard to the objective manifestations of the relationship, it bore a character other than as a de facto relationship.[4]
[4] Herford & Berke (No. 2) (2019) FLC 93-919 at [23].
Between the final hearing and delivery of these reasons the High Court of Australia handed down its judgment in Fairbairn v Radecki [2022] HCA 18. I invited the parties to make further submissions in light of that decision if they desired to do so. Both parties forwarded their submissions to Chambers.
The wife submits:
1.The conduct and nature of these parties relationship did not change following the alleged date of separation of the De Facto Husband.
2.The conduct and nature of these parties relationship changed following the alleged date of separation of the De facto Wife
The husband submits:
The evidence of the husband outlines the change in events following separation as identified by him including the wife being removed from the home, taking on responsibility for payment of her car debt and other similar matters.
The conduct of the wife changed after the date of separation identified by the husband. There was limited change after her alleged date of separation.
In Clarence & Crisp at [53] the Full Court stated that as the Act provides that “no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship”, regard is to be had to all the circumstances, not just those which changed on the date the relationship allegedly came to an “end”.
The wife has the onus of establishing on the balance of probabilities whether “having regard to all of the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis” between November 2018 and October 2019.
BACKGROUND
Prior to November 2018
In 2003 the husband purchased a vacant block of land at F Street, Suburb G for $122,500.00.
The husband and wife met in the mid 2000’s. They were dating in 2010/2011. At that time the wife was living with her daughter Ms K at L Street, Suburb G. The husband was living elsewhere in Suburb G.
In 2011, the husband and wife commenced living together in rental accommodation leased in both of their names at M Street, Suburb N. Both parties contributed to the rental. The wife’s son and Ms K also lived at the property for a period of time. The wife was employed at O Company and the husband was employed as a tradesman. The wife deposes that she paid for groceries, contributed to rent and utility bills, cooked meals and maintained the home. Ms K also deposes to her mother cleaning, doing laundry and cooking dinners, except on Sundays when the husband would cook a meal. The husband asserts that the wife’s children did not contribute financially to rent, bills or food and that he was required to provide for them.
The parties opened a joint bank account to which they each contributed savings for holidays or other joint activities. The husband asserts that they agreed that he would contribute $30.00 per week and the wife would contribute $10.00 per week. After two years the balance of the account was $140.00. The husband asserts the wife used the money for her own benefit. The husband closed the account in 2012. Distressed by the revelation of the depleted account, the husband stayed with his parents for a week before returning to M Street.[5]
[5] Husband’s Affidavit filed 20 January 2022, paragraph 24-25.
In 2012 the wife ceased her employment and undertook a course in health care.
In 2012 the husband entered into a contract in his sole name for the partial construction of a home on F Street, Suburb G to lock up stage. The cost of the contract was approximately $230,000. Construction commenced in 2012 and the contract was completed in 2013. The husband funded the full costs of the F Street home loan and all expenses.
In 2013 the wife commenced working as a carer.
After late-2013 the husband undertook the remaining work on F Street which he completed in early 2015. After he finished his working day he worked on F Street. He asserts that he slept overnight at F Street for approximately 50 percent of the time.
The wife asserts decisions about interior decorations at F Street were made together, including heating, fittings, light fixtures, colour schemes for tiles, curtains and carpet. The husband disputes this and asserts, at the height of it, the wife assisted with colour schemes and that her involvement was limited.
In 2014 the parties went on a holiday to Region P.
The husband moved into F Street in early 2015. The wife moved into F Street in early 2015 as asserted by the husband or mid-2015 as asserted by the wife.
When the parties moved into F Street they agreed that the husband would pay all bills and property-related expenses including the home loan and rates and that the wife would pay the costs of groceries. The wife says she offered to contribute financially to the house but the husband declined.[6] The husband asserts that the wife told him she was not in a position to meet the costs of food and that he then resumed paying for half of the groceries together with the cost of meat.
[6] Transcript 9 February 2022, p.12.
Ms K lived with the parties at F Street between 2015 and 2016. Ms K deposes that she offered to pay board to the husband but he refused “because he said it could create tax problems for him”.[7] The husband denies this.[8]
[7] Ms K Affidavit filed 13 January 2022, paragraph 6.
[8] Husband’s Affidavit filed 20 January 2022, paragraph 75.8.
The husband hired his unemployed sister to assist him with the administration of his business. He asserts that she was also hired to undertake the housework at F Street and that she attended weekly. He deposes that the majority of the household work was done by his sister and himself.[9] The wife maintains she did the shopping, cleaning and laundry throughout cohabitation. Ms K’s evidence supports the assertion of the wife.
[9] Husband’s Affidavit filed 20 January 2022, paragraph 31.
In 2016, the husband purchased a Motor Vehicle 1 for the wife for which he paid a deposit of $1,000.00 and obtained a loan in his sole name.
In or around mid-2017 the husband travelled to Western Australia to obtain employment. He asserts that the parties’ relationship was problematic at this time. Ms K deposes that she was present during conversations between the parties regarding the husband’s move. She asserts the husband “intended to create financial opportunities for them as a couple leading to an early retirement if they relocated there. He proposed to go over first to establish a home for them. It was agreed in those conversations that [the wife] would follow him later”.[10]
[10] Ms K Affidavit filed 13 January 2022, paragraph 7.
The parties at this stage commenced what can be described as a “long distance relationship”, albeit that term was not used by the parties in their evidence or during the hearing.
The husband acknowledges that he and the wife discussed establishing a business in City Q with the intention of retiring there early. He asserts that “due to the breakdown of our relationship, and [the wife]’s inability to sustain employment in City Q, those future plans did not eventuate. My health was already suffering with numerous medical conditions.”[11]
[11] Husband’s Affidavit filed 20 January 2022, paragraph 75.10.
The parties refer to City Q and Suburb E interchangeably. For the purpose of these reasons, so does the Court.
In 2017 the husband returned to Victoria to gather his belongings and close down his business, now being a self-employed tradesman. In late 2017 the husband returned to Western Australia, commenced work there and asserts that he left Victoria permanently.
In late 2017 the husband purchased D Street, Suburb E for $52,000.00 with a redraw on the F Street mortgage. The husband spent several months renovating and repairing the home. The wife says she maintained the living expenses at F Street during this time, the husband says he continued to pay all the bills and expenses at F Street.
In late 2017 the husband returned to Victoria to pack up F Street as the wife was vacating in early 2018. A decision had been made to lease F Street.
The parties contacted leasing agents and together had a meeting with the current leasing agents. The parties also interviewed potential tenants for F Street together. The husband deposes that he told the wife to vacate F Street “due to our separation. I did not consider it appropriate that she should continue to live in the property.”[12] The husband’s use of the word “separation” is disingenuous given that he accepts that their relationship continued after January 2018. The husband asserts that he arranged for a tradesman to undertake repairs on F Street in readiness for it to be leased. The wife asserts she arranged the repair works.
[12] Husband’s affidavit filed 20 January 2022, paragraph 32.
During late 2017 the parties holidayed with friends in New South Wales.
In early 2018 the wife moved out of F Street and moved in with her friend. The wife deposes that this living arrangement was temporary while she looked for work in Western Australia.
In mid-2018 the wife moved to Suburb E to live with the husband. The wife had gained employment there. The parties lived together until late 2018. They spent five days at a caravan park when D Street was without water and otherwise lived at D Street and undertook further renovations. The wife asserts that she had a hand in supervising and directing tradesmen and cleaning and that by pooling her income for household expenses she enabled the husband to pay for the renovation. The husband says that whilst they had agreed to pool their incomes the wife ceased to honour that agreement two weeks after she commenced work.
The wife’s employment in City Q ceased in 2018. She returned to Victoria in 2018. She asserts that she returned for a holiday and to see her family. The husband understood the wife left City Q to return to live in Victoria and says that “our relationship was very unsettled at that stage.”[13] He also says that the wife told him that she would be returning to City Q.
[13] Husband’s affidavit filed 20 January 2022, paragraph 64.
In 2018 the wife returned to City Q to live with the husband. She however could not find employment there.
The wife received a promising employment opportunity as a carer in Victoria. She asserts that she discussed the job offer with the husband who was happy for her to accept it and that he said “This will bring me home”. The wife says “I regarded our relationship as ongoing”. She further asserts that the husband discussed running his business in City J part time and that she be the principal earner.[14] She told the Court that the husband told her to take the job because she was going to be on a good wage and that this was his “way out” whereby he could leave City Q.[15]
[14] Wife’s Affidavit filed 10 January 2022, paragraph 15.
[15] Transcript 9 February 2022, p.13.
The wife left City Q in late 2018. The husband deposes that “At that time, it was apparent that our relationship was not working and I informed her that our relationship was over and that I considered we were separated.”[16] He asserts that he told the wife verbally.
[16] Husband’s affidavit filed 20 January 2022, paragraph 38.
After 20 November 2018
Prior to 20 November 2018 the parties had discussed the wife’s debts. She had been receiving debt collection letters. Their discussions included the wife engaging with the Sheriff’s Office to enter into a payment plan and whether the wife should declare herself bankrupt. The bankruptcy process was put in place. The wife’s Notification of Bankruptcy records that the date of the wife’s Bankruptcy is November 2021.[17]
[17] Wife’s Court Book, page 153.
The wife deposes in her affidavit that after 20 November 2018 the parties continued to keep in touch every week by telephone and text. This claim is unchallenged and the Court has no further evidence on the extent or nature of their communication at this time.
The wife’s promising employment opportunity in City J did not eventuate.
In mid-2019 the wife returned to City Q. The husband and wife went on a holiday to Town R. The husband paid for the holiday.
The wife returned to Victoria in mid-2019. She was now employed in Victoria.
In late 2019 the wife returned to City Q and lived with the husband. She returned to Victoria on or around late 2019.
The wife asserts that in early October 2019 the husband sent her a text message to the effect that their relationship was over.
In October 2019 the wife travelled to City Q in an effort to reconcile with the husband. The husband refused to see her. The wife stayed in a motel before returning to Victoria some four or five days later.
In November 2020, the wife lodged a caveat over F Street, Suburb G property claiming an equitable interest pursuant to a trust.
The wife was discharged from her bankruptcy in November 2021.
THE HEARING
The hearing proceeded by way of Microsoft Teams. Both parties were represented by Counsel.
The wife filed an Outline of Case on 2 February 2022. She relies on:
(a)her amended initiating application filed on 14 January 2022;
(b)her financial statement filed on 30 June 2021;
(c)her affidavits filed on 10 January 2022 and 25 January 2022; and
(d)the affidavit of her daughter, Ms K, filed on 13 January 2022. For ease of reference I refer to her as Ms K in these reasons. No disrespect is intended. Ms K was not required for cross-examination.
Counsel for the wife tendered two exhibits:
(a)A1 being a letter dated 25 June 2021 from the S Authority to the wife’s solicitors advising that at that time the Official Trustee had decided that it would not seek to join a property settlement claim brought by the wife; and
(b)A2 being a letter dated 8 February 2022 from the wife’s solicitors to the S Authority enclosing court documents in these proceedings and advising of the final hearing date.
The husband filed an Outline of Case on 7 February 2022. He relies upon:
(a)his response and financial statement both filed on 29 September 2021; and
(b)his affidavit filed on 20 January 2022.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities. My observations of the demeanour of the parties while giving evidence and observing the proceedings have assisted my assessment of the evidence.
THE PARTIES
The husband and wife have very different personalities. The wife clearly loved and still holds very strong feelings for the husband. The husband, it would appear, was ambivalent about the depth of his feelings for the wife even from the commencement of the relationship.
The husband is financially focussed and a man of few words. The wife’s financial circumstances was the bane of the husband throughout the relationship, and during these proceedings. He is disappointed that the wife had pre-cohabitation liabilities and debt that carried forward into the relationship.
There were long pauses in the husband’s evidence between the questions put to him and his answers. He thought deeply about his evidence. He at times though appeared confused if not baffled by some of the questions and suggestions put to him by Counsel for the wife.
The wife is more emotive and has a more vocal personality than the husband. She often appeared deeply hurt while giving her evidence and hearing that of the husbands. Her emotions clearly impacted on the manner she gave her evidence. She is clearly not as financially astute or has the financial acumen of the husband.
The husband relies on the wife’s Statement of Affairs signed by her in relation to her bankruptcy. The wife relies on communications passing between the leasing agent of F Street and her, and the text messages between the husband and Ms K. All of these documents in my view corroborate the wife’s assertion of the date of separation. Accordingly, I prefer the evidence of the wife to that of the husband where it is in conflict, at least to the extent of matters relevant for the purpose of this hearing, that is, to determine the date the parties’ relationship ended.
The Statement of Affairs
The wife’s Statement of Affairs pursuant to the Bankruptcy Act 1966 records: [18]
(a)that the wife does not have a spouse or partner;
(b)that the wife is not involved or is likely to become involved in any family law property or spousal maintenance proceedings;
(c)that she did not receive or expect to receive any benefit from any other person including payment of her expenses;
(d)that she does not have any interest in land, a house or a unit;
(e)that she does not use a vehicle owned by anyone else;
(f)that she has not contributed or otherwise assisted in the purchase or improvement of any asset valued over $1000.00 which is held by someone else;
(g)the wife’s current address as her parents’ address and her previous addresses as M Street, Suburb N and L Street, Suburb G. She does not list F Street, Suburb G; and
(h)that one of the main causes of her financial difficulties was “domestic discord or relationships breakdown”.
[18] Annexure "H-4" of the husband's Affidavit filed 20 January 2022.
The wife had not sought legal advice in relation to her bankruptcy nor had she at that time sought legal advice in relation to a de facto property claim. When asked by Counsel for the husband as to why she now considered herself part owner of the property and not when she submitted her Statement of Affairs, the wife said:
I based my whole life on having a future with this man, so when [Mr Hallins] broke up with me in October 2019 he left me with literally nothing[19]
[19] Transcript 9 February 2022, p.22.
The husband relies on the wife’s Statement of Affairs to persuade the Court to accept his asserted date of separation. Counsel for the husband asserts that the information contained therein supports that the relationship ended in November 2018 and that the wife, like the husband, held that belief. Counsel for the husband further contends that the wife’s credibility as a witness is impeached given that in the face of the contents of that document she now asserts that the relationship ended in October 2019 and that she has an interest in the real estate.
It is the wife’s case that the husband assisted and encouraged her to go bankrupt. She told the Court that:
Well, [the husband] said to me in November of ’18 and way before that you need to go bankrupt because we need to move forward in this relationship and put all your debts behind us so we can move forward and into retirement.[20]
…
[The husband] put pressure on me to file the application to start with. This was going to be our future, but you need to put all of those debts behind you. I didn’t want to go bankrupt at all.[21]
…
[The husband] didn’t want to have any of my debts. He wanted to move on into retirement, but I needed to put all of this behind me.[22]
[20] Transcript 9 February 2022, p.15.
[21] Transcript 9 February 2022, p.14.
[22] Transcript 9 February 2022, p.21.
The wife says that discussions with the husband in relation to her being a bankrupt had been going on for a couple of years before November 2018.[23]
[23] Transcript 9 February 2022, p.15.
The husband denies encouraging or assisting the wife in her bankruptcy claim. He concedes however that they had discussions in relation to the Sheriff’s Office and in relation to bankruptcy. I consider that his answers were evasive when he was questioned in relation to him ever seeing the Statement of Affairs and whether it was signed at the kitchen table in City Q.
An analysis of the chronology of events relevant to the Statement of Affairs in my view gives significant insight into the veracity of the wife’s evidence in general compared to that of the husband.
The chronology is as follows:
(a)in August 2018 the wife dated and appears to have signed the Statement of Affairs. The wife was in City Q on in August 2018;
(b)in September 2018 the wife again dated the Statement of Affairs. She was in Victoria in September 2018;
(c)in October 2018 the S Authority date stamps receipt of the Statement of Affairs. The wife was in City Q in October 2018;
(d)in November 2018 the wife again signs and dates the Statement of Affairs. The wife was in City Q in November 2018;
(e)in November 2018 the S Authority date stamps receipt of the Statement of Affairs. In November 2018 the wife was on an aeroplane travelling from City Q to Victoria; and
(f)The wife’s Notification of Bankruptcy records that the Statement of Affairs was filed in November 2018 and the Date of Bankruptcy is November 2021.
When questioned about the document having been dated in September 2018, the wife said:
I don’t know why that’s there. I don’t know – because I – actually my bankruptcy came through late November, so I don’t know why that September date is there because I didn’t sign anything in September. I don’t know.[24]
…
I remember signing bankruptcy paperwork at [D Street] when I was over there early November[25]
…
I remember filling that form out in [City Q] so I’ve obviously brought the form back to Victoria with me. I remember sitting at that table signing that form; not signing it, but filling out that form.[26]
…
I did fill that form out over there. I had that form with me for quite a while, so maybe I did actually fill out September, but then when I actually did it properly and filled the whole thing out it was [11.18] when I actually did send it.[27]
…..
I might have put that date (September 2018) there, but not an actual signature. I probably left that open, that signature door open , so when I actually did put that right date in that I was going to send it away, I actually had signed it on that date.[28]
[24] Transcript 9 February 2022, p.19.
[25] Transcript 9 February 2022, p.19.
[26] Transcript 9 February 2022, p.20.
[27] Transcript 9 February 2022, p.21.
[28] Transcript 9 February 2022, p.20.
September 2018 is between August 2018 and October 2018, that is, between when the wife left City Q and when she returned to City Q. The dating and/or signing of the Statement of Affairs by the wife in Victoria in September 2018 is consistent with her evidence that the husband and she had held discussions about a potential bankruptcy prior to November 2018. It is also consistent with her evidence that she completed the document “properly and filled the whole thing out it was 11.18” when she actually sent it. It is also consistent with her evidence that just by signing the document prior to November 2018 did not mean that the form was fully completed; “I’ve just gone through it and probably left out little bits I needed to come back to, the questions that I didn’t quite understand. And so just signing it, just filling out little bits and pieces knowing those questions I needed to come back to because I wasn’t sure about.”[29]
[29] Transcript 9 February 2022, p.21.
The document is date stamped as received, in South Australia, on the day the wife is on an aeroplane. Clearly the document was posted in City Q in November 2018.
I consider that the wife completed the Statement of Affairs at D Street in November 2018. The husband is a financially-orientated person. I am of the view that the husband assisted her with completing the Statement of Affairs. I accept the wife’s evidence that the husband had knowledge and assisted her with the Statement of Affairs in order to better financially secure their mutual future together. I accept that the husband encouraged the wife not to disclose their relationship or assets in his name in her Statement of Affairs in order again to better financially secure their mutual future together. I am of the view that the husband wished to protect the property that was in his sole name and that he wished for a “clean slate” in relation to the wife’s debts for the benefit of their financial future together.
I do not accept any proposition that the husband told the wife prior to November 2018 that the relationship was over and that prior to getting on a plane the wife unilaterally completed the Statement of Affairs in order to deal with her financial circumstances as a single person in the future. I consider that the parties first discussed the Statement of Affairs in August 2018 at D Street, that the wife took the document back to Victoria and then took it back to D Street to complete with the assistance of the husband.
The Full Court in Sinclair at [66] cited with approval the statement of McColl J at [99] in Hayes v Marquis [2008] NSWCA10 that
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances …
The false representations made by the wife on the Statement of Affairs has complicated the issue before the Court. The information in the Statement of Affairs does support the husband’s asserted date of separation. However I find that the husband colluded with the wife in relation to the false information to be included in the Statement of Affairs. Taking into account all of the other circumstances in this matter I place no weight on the information recorded in the Statement of Affairs. The information is not determinative of the date the parties’ relationship ended.
I draw no inference from the fact the husband paid for the wife’s airline ticket to Victoria in November 2018 that it was symbolic of or done to affect an end to their relationship.[30]
[30] Husband’s Affidavit filed 20 January 2022, paragraph 40.
I am satisfied that the husband did not even perceive that the parties’ relationship ended in November 2018. The Statement of Affairs merely became a convenient document for him to rely upon to establish his asserted date of separation. The fact that the parties did so collude is evidence in my view that the degree of the mutual commitment the parties had to share a life together had strengthened.
Documents the wife relies upon
The emails passing between the wife and the leasing agents in relation to F Street prior to November 2018 supports that the wife had the agreement of the husband to liaise with them prior to November 2018. The wife clearly was in communication with the leasing agent in relation to F Street in December 2018. The leasing agent wrote to the wife “I hope you and your family have an amazing Christmas and a very happy new year”.[31] The leasing agents also write to the wife’s email address greeting both the husband and wife in the contents of their emails dated 23 May 2019[32] and 2 September 2019.[33]
[31] Wife’s Court Book, page 142.
[32] Wife’s Court Book, page 144.
[33] Wife’s Court Book, page 147.
The parties were together in City Q and Town R in May 2019.
The husband maintains that the parties were separated at this time and discussions regarding reconciliation were attempted but were not successful. The husband deposes that the wife was attempting to convince him to reconcile.[34] The wife asserts the husband had assured her that he intended to return permanently to City J.
[34] Husband’s affidavit filed 20 January 2022, paragraph 44.
The lease on F Street was ending in September 2019. In June 2019, when the wife had returned to Victoria, she sent an email to the leasing agents enquiring in relation to the tenants moving out of F Street. She asks “Will the 90 days take them up till Set 13 th [sic] which was the end of the lease date and if they move out earlier do they still need to pay rent until we move back in”[35] (emphasis added). The leasing agents respond to the wife on the same day.
[35] Annexure "E-9" of the wife’s Affidavit filed 10 January 2022.
Between 8 August 2019 and 20 August 2019 the husband and wife lived together in City Q. The husband asserts that the wife was again attempting a reconciliation. He does however concede that he considered relocating back to City J but denies that there was any agreement with the wife about resuming their relationship.
The husband instructed the leasing agent to have F Street vacated by the tenants. He asserts that he did so that he could resume living at the property. He suggests that the wife had only approached the leasing agent to gain access to F Street so that she could live there. I am of the view that the wife would not be so conniving so as to put in place a plan that saw her solely in the property and not the husband.
On 2 September 2019 the leasing agent emailed the wife to arrange an inspection by her of F Street, Suburb G. The wife responds that she will be there on 14 September 2019.[36]
[36] Annexure "E-8" of the wife’s Affidavit filed 10 January 2022.
The wife began moving furniture back into F Street after the tenants vacated. The husband asserts that she only moved a lounge into the yard.
The wife asserts that in early October 2019 the husband sent her a text message that their relationship was over.
I accept the wife’s evidence that she has tried to retrieve that text message. She has taken her telephone to several telephone companies but because the message wasn’t saved to the iCloud it could not be retrieved. I also accept the wife’s evidence that after early October 2019 she consulted her facility manager as the break-up had been affecting her work and that she also attended counselling.
The husband told the Court that it was in October 2019 that he told the leasing agents not to deal with the wife anymore, not to let her into the property and he withdrew their authority to communicate with her.
The husband also asserts that he did not appreciate that the wife’s details had been kept by the agent as a contact person. I find that assertion disingenuous given that the husband asserts that the date the relationship ended was some 11 months prior October 2019 and that the wife in the meantime had continued communication with the leasing agents.
The husband also told the wife in October 2019 that in order for her to keep the Motor Vehicle 1 she would need to get her own loan. Being bankrupt and unable to do so, the wife returned the vehicle to the husband’s brother. She ceased making payments on the loan in the husband’s name in October 2019. In early January 2020 the husband paid out the balance of the car loan.
As noted earlier in these reasons, on 30 October 2019 the wife travelled to City Q in an effort to reconcile with the husband, he refused to see her and she stayed in a motel before returning to Victoria some four to five days later.
On 30 October 2019 at 10.20 pm the husband instigates a text message conversation with Ms K which includes requesting her to convince the wife to return to Victoria.
The husband concedes that the message from Ms K to him on 17 October 2018 has no relevance to the parties’ separation but rather in relation to a dispute he was having with Ms K. The text message conversation on 30 October 2019 reads as follows:
Husband: Can you please call your mother and ask her to come home, She should not have come here we are over and she needs to leave,you are the only person she will listen to
[Ms K]: She wants to fight for your relationship. She loves you and I think she is willing to do whatever it takes.
Husband: [Ms K] please convince her to go home immediately, I love your mother as a friend and will help her start her new life but I don’t love her anymore as a girl friend please call her and tell her to come home she is going about this the wrong way please call her and ask her to go home (emphasis added)
Your the only person she listens to please ask her to come home
[Ms K]: I’ve already tried speaking to her about this whether it was such a good idea. She loves you so much [Mr Hallins], and she won’t listen to me. She really is willing to do whatever it’s going to take.
Husband: I’m sorry for me it is over she left me to many times please talk to her, she won’t listen to me anymore (emphasis added)
[Ms K]: I will talk to her. But she is living with so much regret now and she just wants to be with you. I know she has left you before. But I’ve never seen her this way. And she would never go to this length if she wasn’t serious. I really hope you can find it in your heart to forgive her. We are all family, I really hope you can find that in your heart.
Husband: I’m sorry no I begged her and begged her, I don’t feel part of your family anymore I suffered so much over the past year and I wish you all all the best but I cannot keep trying anymore, I really hope I was a good role model but I am just so burnt out and I will try and help her but I cannot love her the same anymore (emphasis added)
[Ms K]: I know you did. And she is feeling so much pain now as well. You’re the best thing that has ever happened to her and I’ve seen how broken is. I understand how exhausted you would be after everything and all of this time. Maybe just see her and talk to her. You have been apart for so long. Maybe you guys just need to reconnect. I know she would be willing to do absolutely anything to have you back.
And you may not feel apart of our family anymore, but our family sees you as apart of ours. They are always asking about you and Poppy knows you as Grandpa [Mr Hallins]. We show her photos of you and everything. You are apart of our family. And we all love you even if you don’t feel it.[37]
[37] Annexure “K-1” to Ms K Affidavit filed 13 January 2022.
Whilst I have described the husband as a man of few words the language he uses in the text messages to Ms K is informative. I refer to the words “start her new life”. I am satisfied the words refer to the wife’s life of no longer being in a relationship from that point in time.
I accept the wife’s interpretation of the phrase “she left me too many times” refers to her being
in and out of [City Q], clearly. Like, I was over there and then I tried to get a job and then that didn’t work and then I had to come back[38]
….
I’ve never left [the husband] in the relationship. I’ve never left him.[39]
[38] Transcript 9 February 2022, p.28.
[39] Transcript 9 February 2022, p.29.
The wife says in relation to the phrase “I suffered so much over the past year” that the husband is probably referring to being on his own, that is, because she was not there but in another state and not because their relationship had come to an end. Lest it be forgotten that the wife had travelled to City Q for only two short trips in 2019, that is in May and August. Ms K replying that the parties have been apart for so long and that they needed to reconnect in my view supports the wife’s evidence.
I accept the husband’s interpretation of the text messages that they confirm that the wife was not accepting of the breakdown of the relationship. I do not accept that the husband’s interpretation that Ms K’s use of the word that they had been apart for so long refers to the husband and wife having been “separated” or that the husband suffered over the past year because the “separation” had taken its toll.[40]
[40] Husband’s Affidavit filed 20 January 2022, paragraph 75.12-75.13.
I am satisfied that the husband’s expression of wishing Ms K all the best is a good bye to Ms K as the relationship between him and her mother as a couple had now come to an end.
The Court has no evidence before it as to why the husband changed his mind about returning to Victoria to share a common residence with the wife. The Court does not intend to surmise why.
However I am satisfied that the husband’s actions in September/October 2019 provide unequivocal support that their de facto relationship ended then. I am satisfied that it was not until early October 2019 that the husband and wife ceased sharing a life as a couple. It was not until early October 2019 that the husband decided to permanently end the relationship. It was not until then that the relationship had an unambiguous and distinct finality as a result of the husband’s conduct.
During September/October 2019:
(a)the husband refused to allow the wife to live in F Street;
(b)the husband removed authorisation for the leasing agents to liaise with the wife. He did not do so after November 2018;
(c)the husband removed all forms of financial assistance to the wife, namely the payment of the Motor Vehicle 1 loan. He gave the wife an ultimatum in relation to the loan, and he kept the car. This did not occur after November 2018;
(d)the husband messaged the wife in early October 2019 that the relationship was over;
(e)the husband denied the wife any physical contact or communication with him when she came to Suburb E on 30 October 2019. There had been no such denials in either May 2019 or August 2019; and
(f)the husband includes a “goodbye” to Ms K in the text exchange between them and makes some confessions.
Upon the husband learning from the wife that she was moving to City Q in 2020 the husband texted Ms K on 21 January 2020 that “I hope for her sake she doesn’t, I have totally moved on with my life and there is nothing here for ” (the screenshot of the message cuts off here).[41] The wife acknowledges that she moved to Suburb E in January 2020 in the hope of reconciling. She however did not see the husband and the husband does not assert otherwise.
[41] Annexure “K-1” of Ms K Affidavit filed 13 January 2022.
I do not accept Counsel for the husband’s suggestion that the wife travelling to City Q in October 2019 and January 2020 to affect a reconciliation supports that the wife travelled there in May 2019 and August 2019 to do the same. In my view the totality of the evidence supports otherwise.
SECTION 4AA(2)(C)
(a) The duration of the relationship;
The parties agree that the de facto relationship existed between 2011 and November 2018. I am satisfied for the reasons herein that their de facto relationship continued until October 2019. Thus, the duration of the relationship was eight and a half years.
(b) The nature and extent of their common residence;
In Fairbairn at [35] the High Court said that “…physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit”.
The husband has not attempted to assert that the relationship had broken down or ended prior to November 2018 when the parties were living separately and not sharing a common residence for substantial periods of time. Accordingly a feature of their de facto relationship was that they did not share a common residence for substantial periods of time.
The parties continued to live in separate residences after November 2018. They continued to go on holidays together.
(c) Whether a sexual relationship exists
In May 2019 and August 2019 the parties had sexual relations.
The husband agreed that he did not tell the wife that he was not going to have sex with her because their relationship was over.
(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
There is clearly evidence of financial interdependence between the parties prior to November 2018. The parties made financial arrangements in relation to the payment of living expenses while they shared a common residence and when they were living in separate residences. There is a dispute as to the extent of the wife’s financial and non-financial contributions during this period and after November 2018. For the purpose of these reasons I do not propose to make findings in relation thereto. That is a matter for the substantive hearing as to what property orders should be made.
The fact that the parties did not have a joint bank account carries no weight in relation to evaluating the parties’ financial dependence or interdependence. They have not had a joint bank account since 2012.
The husband paid for the parties’ holiday in Town R in 2019. The wife paid for expenses in City Q in 2019.[42]
[42] Annexures "C" & “D” of the wife’s Affidavit filed 25 January 2022.
The husband paid the Motor Vehicle 1 loan from the time of its purchase until May 2017. Between August 2017 and November 2017 the wife paid the loan. The husband thereafter recommenced paying the loan. The husband asserts that after November 2018 he advised the wife that “following separation that I was not prepared to continue to pay [the car loan]”.[43] The wife then recommenced paying the loan. I am of the view that it was not because of any “separation” in November 2018 that the wife recommenced paying the loan but rather a continuation of the ever changing financial arrangements the parties had between them.
[43] Husband’s Affidavit filed 20 January 2022, paragraph 59.
The parties in my view had a degree of financial dependence and interdependence after November 2018.
(e) The ownership, use and acquisition of their property;
The husband solely acquired F Street prior to the relationship. It was used as the parties’ home by either the husband only, the wife only, or when the parties were together in occupation.
The husband acquired D Street during the relationship. It was also used as the parties’ home by either the husband only, or when the parties together were in occupation.
I am satisfied that the parties were making arrangements in 2019 to again live together in a de facto relationship in F Street rather than continuing their de facto relationship long distance.
(f) The degree of mutual commitment to a shared life;
Until November 2018 the parties had a genuine commitment to a shared life with plans to establish a life and home in City Q.
I consider that the degree of the parties’ mutual commitment as at November 2018 and thereafter strengthened. They colluded in relation to the wife’s bankruptcy application in order to better financially secure their mutual future de facto relationship together. They still continued a mutual commitment while they liaised with the leasing agent in relation to returning to occupy F Street together in lieu of tenants.
Plainly at some point after the husband instructed the leasing agents to have F Street vacated by the tenants and prior to early October 2019 the husband’s commitment to a shared life together with the wife began to wane. By early October 2019 he no longer held any commitment to share his life with the wife. The wife had always held a commitment to share her life with the husband.
(h) The care and support of children;
The wife has two children. They lived with the parties at times. The husband financially contributed to their day to day living expenses. The husband participated in the wife’s family milestone events, and was known as ‘grandpa’ by Ms K’s daughter.
(i) The reputation and public aspects of the relationship.
It is clear the parties were publically in a de facto relationship prior to November 2018, this is not disputed. The husband attended family events with the wife and both parties conversed with the leasing agent regarding F Street.
The parties publicly went on holidays together in May 2019 and August 2019.
I am satisfied that the leasing agent of F Street accepted that the parties were in a relationship in 2019. The husband did not to anything until September/October 2019 to dissuade them of their belief.
I am satisfied having regard to the contents of the email exchange between Ms K and the husband that Ms K and her daughter saw the husband as a member of the family until October 2019. There is no evidence supporting that they thought otherwise.
CONCLUSION
I do not reject the possibility that the parties may have had periods of unhappiness in their relationship and that their relationship may have varied in its climate from time to time. However that a relationship may have highs and lows does not mean that during the lows, the relationship was not continuing or that it had come to an end.
For all of the above reasons I am satisfied that having regard to all of the circumstances of their relationship that the wife has established that the husband and wife continued their relationship as a couple living together on a genuine domestic basis between November 2018 and early October 2019. The character, conduct and nature of their relationship did not change after November 2018.
I find that the parties continued their relationship until early October 2019. Not living continuously in a common residence was a feature of their relationship. Between 2011 and October 2019 the parties holidayed together, they had a financial interdependence with each other, they had a reputation as a couple, they engaged in sexual relations, and held a mutual commitment to a shared life.
Accordingly I have determined that the parties’ relationship commenced in 2011 and came to an end in early October 2019.
Having regard to my finding that the parties’ relationship ended in October 2019, the wife filed her application within time. The Court is not required to determine the issue of leave.
Orders are made in relation to the filing of written submissions as to any application the wife may bring in relation to costs, which at the hearing she pre-empted she may do. I leave it in the discretion of the parties to vary that timetable by agreement in the event that they wish to engage in the mediation prior to any written submissions being prepared or for any other reason.
Orders are made as set out for the further progress of the substantive property proceedings largely in accordance as discussed with Counsel during the hearing.
The matter is a City J Circuit matter and will remain in that Circuit.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 1 September 2022
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