Easton and Easton

[2017] FCCA 2126

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTON & EASTON [2017] FCCA 2126

Catchwords:
FAMILY LAW – Property – whether the Court should set aside Orders made by consent in 1998 – whether the parties were thereafter engaged in a de-facto relationship – application summarily dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 90SM, 90SM(3), 106A

Stanford v Stanford (2012) FLC 93-495

Applicant: MR EASTON

Respondent: MS EASTON

File Number: MLC 3768 of 2014

Judgment of: Judge Small

Hearing date: 31 August 2017

Date of Last Submission: 31 August 2017

Delivered at: Melbourne

Delivered on: 31 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Easton in person

Solicitors for the Applicant: Rickards Legal

Counsel for the Respondent: Mr Hannan

Solicitors for the Respondent: Rockman & Rockman

ORDERS

1. The Applicant’s lawyers have leave to withdraw.

2. The Application of the Applicant filed 12 May 2016 is summarily dismissed.

3. The Applicant shall forthwith withdraw any caveats he has lodged over the properties at Property A and Property B in the State of Victoria.

4. In the event the Applicant refuses to comply with any provision of Order 3 within 14 days:

   (a)A Registrar of the Federal Circuit Court at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and

   (b)The Applicant is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order and providing her damages.

IT IS NOTED that publication of this judgment under the pseudonym Easton & Easton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3768 of 2014

MR EASTON

Applicant

And

MS EASTON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Easton comes before me for today for trial.  It is an unusual case.  The matter is unusual in that these parties were married – I think in 1965 in the (country omitted).  They were divorced sometime in the 1970s.  They then remarried in the (country omitted).  They migrated to Australia in the 1980s. They had children, they bought properties, they separated again and property orders – final property orders were made by consent in 1998.  Those orders were made by a Registrar of the Family Court at a time when both parties were represented at the Court.  I think they were made by then Deputy Registrar Devlin.

3. The orders provided for the husband to be paid a cash payment of $650,000 and, in return for that, he was to transfer certain properties and relinquish certain rights, to the wife.  That settlement was executed.  The wife paid him the $650,000.  He withdrew from certain companies and transferred properties to the wife.  That was in 1998. 

4. On 12 May 2016, the husband has made application to this Court in the following terms; 

   a)That this honourable Court set aside the consent orders made on 8 May 1998.

   b)That this Court make such further and other orders as to the adjustment of property between the applicant husband and the respondent wife as it deems appropriate, and;

   c)that the Court make such further and other orders as the Court deems appropriate.

5. The law, in relation to setting orders aside, is found in section 79A of the Family Law Act. Section 79A sets out certain things that must have occurred for final orders to be set aside, and this is what section 79A (1) says in its entirety:

   Where, on application by a person affected by an order made by a court under section 79 in property proceedings, the Court is satisfied that:

   (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

   (b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or

   (c) a person has defaulted a carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

   (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the Court  does not vary the order or set the order aside and make another order in substitution for the order; or

   (e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage.

6. If the Court is satisfied that any of those five circumstances exists, then:

   the Court may –

   Not “must”, but “may”

   – in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

7. Nowhere in the husband’s material does he address that issue. There is nothing in his material which causes the Court to be satisfied of any of the matters set out in section 79A. I therefore find that this application to set aside the orders is misconceived and I summarily dismiss that application.

8. That leaves the second order that Mr Easton has sought, which is that the Court make such further and other orders as to the adjustment of property between the applicant husband and the respondent wife, as deems appropriate. 

9. It is his evidence that the parties in fact reconciled after the property settlement was made and that they lived together, effectively as husband and wife, he says, for the next 17 years. 

10. The wife rejects that Application and her Response seeks an order that the whole Application be dismissed and that the husband pay the wife’s costs on an indemnity basis. 

11. In order to prove that there is another reason other than the dismissal of the orders of May 1998 for me to make an adjustment, indeed, in order to enliven the jurisdiction of the Court to make such orders, Mr Easton essentially would have to show the Court that there was a de facto relationship at law between the parties after 1998 that had lasted more than two years and that it would be unjust for me not to allow that application to go ahead.

12. Some of the factors have obliquely been referred to in the material of the husband that would possibly create a finding – possibly – of a de facto relationship.  He says that the parties lived together under the same roof for the entire time.  He says that his relationship with the wife was a sexual relationship.  He says that he put money into the household coffers to pay for utilities, etcetera.  There is evidence contrary to that from the wife, from a friend of the family and from the parties’ son.

13. In circumstances where the facts of this case are not going to change, in circumstances where there is evidence tendered to the Court from Centrelink, to say that the husband has received a single aged pension from the Commonwealth for many – if not all – of the years that he says he was living with the wife and the wife and he had reconciled – in those circumstances, I have warned the husband that he faces a very high hurdle indeed if he were to carry on with his application to have the property of, what he says, is this relationship taken into account and adjusted.

14. The Court may only make an order altering property interests between de facto couples or married couples and I say that because I am not prepared to set aside the orders of May 1998 and the parties were divorced, I think, in November 2015.  There were several applications for divorce by the wife, and the divorce order was made on 26 November 2015. 

15. Even if I were to find, under section 90SM of the Family Law Act, that the relationship between Mr Easton and Mr Easton was a de facto relationship at law – and I would have to find that in order to enliven the jurisdiction of the Court to make any orders adjusting property - Section 90SM(3) says that the Court must not make an order under that section unless it is satisfied that, in all of the circumstances, it is just and equitable to make the order.

16. Now, the High Court said in the matter of Stanford v Stanford (2012) FLC 93-495, that what is just and equitable is a result of a process of deliberation on the evidence, and it is not possible, the High Court said, to define its metes and bounds. It is a matter of the discretion of the Court what is just and equitable in all the circumstances.

17. The High Court did say, however, that if the parties had, during the relationship, bought and sold property together and acquired property which they can no longer use together because the relationship is broken down, then that might well be a just and equitable reason to adjust the property.  There is no such evidence before this Court that that is the case.

18. The husband’s affidavit evidence is contradictory to the evidence of the file of the Department of Social Security – or Centrelink – that has been tendered in evidence before the Court, and I do not have enough evidence on the face of it to make a decision that this was a de facto relationship at law.

19. I cannot find, on the evidence of the mother, the son and the friend of the family, that this relationship was conducted as though it were a marriage.  I do not find that the parties lived together on a genuine, domestic basis. 

20. The Applicant husband asserts that the relationship was in fact a de facto relationship.  I think my assessment of the evidence as it stands is that it was not and, in that case, I have no jurisdiction to make any order.

21. If I am wrong about that – if I were to take the husband’s case at its highest, he has made no contributions to the property that the wife has owned since the orders were made in 1998.  He has lived in that property on and off over that time.  He has told Centrelink that he is a single man.  He has told Centrelink that he is separated.  He has referred to his former wife as his ex-wife in those documents, and he would put himself at enormous risk if he were to get into a witness box and give evidence on his oath.  He has either lied to this Court about the relationship or he has misled Centrelink about the relationship.  That is an inescapable conclusion.

22. In all of those circumstances, I am not prepared to say that I am satisfied that this is a de facto relationship, but even if I were, I am not satisfied, under section 90SM(3), that it would be just and equitable in all the circumstances to alter or adjust the property interests of the parties.

23. In those circumstances, the Application of the husband, filed on 12 May 2016, is summarily dismissed, and I will make a further order that the husband shall forthwith withdraw any caveats he has lodged over the properties at Property A, and Property B, in the State of Victoria.

24. I am also making an order under section 106A of the Family Law Act that, if the husband does not comply with order 3 – in other words, if the caveats are not withdrawn within 14 days – then a Registrar of the Federal Circuit Court of Australia, at Melbourne, be authorised to sign any deed or instrument on his behalf, as may give effect to these orders.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Small.

Date: 7 September 2017