Eden & Eden
[2022] FedCFamC2F 891
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eden & Eden [2022] FedCFamC2F 891
File number: SYC 5080 of 2017 Judgment of: JUDGE MORLEY Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – De facto relationship – question as to whether relationship broke down on a final basis before or after 1 March 2009 – resultant question as to jurisdiction of the Court to hear an application pursuant to section 90SM – Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) – Court finds that relationship broke down on a final basis before 1 March 2009 – Court has no jurisdiction to entertain section 90SM application.
FAMILY LAW – Evidence – discussion of the operation of the Elias principle.
Legislation: Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Civil Law and Justice Legislation Amendment Act 2018 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Social Security (Administration) Act 1999 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)
Property (Relationships) Act 1984 (NSW)
Cases cited: Aon Risk Service Australia Ltd v Australian National University (2009) 239 CLR 175
Fairbairn & Radecki [2022] HCA 18
In the Marriage of Dawes (1989) 98 FLR 375
In the Marriage of Elias (1977) FLC 90-267
In the Marriage of Grayden (2003) 175 FLR 265
Jones v Dunkel (1959) 101 CLR 298
JPDJ v DADJ [2005] FMCAfam 86
Nelson v Nelson (1995) 184 CLR 538
Tang & Vo [2016] FCCA 880
Division: Division 2 Family Law Number of paragraphs: 199 Date of last submission/s: 25 January 2021 Date of hearing: 3 September 2020, 4 September 2020, 15 October 2020 Place: Sydney Counsel for the Applicant: Mr White Solicitor for the Applicant: Di Lizio & Associates The Respondent: The Respondent appeared on his own behalf ORDERS
SYC 5080 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EDEN
Applicant
AND: MR EDEN
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The Initiating Application filed by the Applicant Ms Eden on 7 August 2017 is dismissed.
2.Any Application in a Proceeding seeking an order in relation to costs of the proceedings is to be filed and served together with an affidavit in support and in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by not later than 4:00PM on 5 August 2022.
3.Any affidavit in support of any Application in a Proceeding filed on the issue of costs in compliance with these orders must include particulars of the quantum of costs claimed and how same is calculated.
4.Any Application in a Proceeding filed in compliance with these orders on the issue of cost, together with any Response to Application in a Proceeding responding thereto, will be considered in Chambers and directions will be made for the filing and serving of written submissions on the question of costs.
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 Eden & Eden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
These are property settlement proceedings between the Applicant female partner to a de facto relationship, Ms Eden (‘the Applicant’) and the Respondent male partner to a de facto relationship, Mr Eden (‘the Respondent’).
The Applicant seeks an order under section 90SM of the Family Law Act 1975 (Cth) (‘the Family Law Act’) altering the interests of the parties to the de facto relationship in property.
The Respondent seeks an order dismissing the Applicant’s application. As the final hearing of this matter transpired, the circumstances in which he sought the dismissal of the application became somewhat ‘mixed’.
The final hearing took place on 3 September 2020, 4 September 2020, and 15 October 2020 with the parties filing written submissions by 22 January 2021. Judgment was reserved on 25 January 2021.
At the hearing, the Applicant was represented by Mr White of Counsel and the Respondent appeared on his own behalf.
It was not in contest that the parties were in a de facto relationship from sometime in 1989 until 22 November 2007 when they separated. However, it is the Applicant’s case that the parties reconciled in around October 2008 and resumed their de facto relationship, separating on a final basis in December 2012.
The Respondent’s case is that the parties at no time resumed the de facto relationship after their separation on 22 November 2007 and that any period of the parties residing under the same roof past that date was not a resumption of de facto relationship or of any cohabitive relationship but was a sharing of accommodation by the parties outside of a de facto relationship.
The Applicant commenced the proceedings by filing an Initiating Application on 7 August 2007. The Applicant asserted in that Initiating Application and in her evidence that the de facto relationship between the parties ended with a final separation in November 2013 or December 2014, depending on whether one refers to her Initiating Application or her affidavit evidence.
In either event, the Initiating Application was filed in excess of two years after the date of the Applicant’s asserted date of final separation and, accordingly, the Applicant required leave of the Court under section 44(6) of the Act to bring the application out of time.
In the Respondent’s Response filed 29 September 2017, he asserted that the date of final separation asserted by the Applicant in her Initiating Application (November 2013) was incorrect and that the date of final separation was 22 November 2007.
If the date of final separation asserted by the Respondent is correct, then the Court is, and has been at all times from the commencement of the proceedings, without jurisdiction to deal with the matter under section 90SM of the Family Law Act or at all, other than to decide the jurisdictional question and make any necessary orders, such as injunctive relief, for the preservation of the property the subject of the proceedings pending determination of the jurisdictional issue.
THE PROCEEDINGS
It is plain on all of the evidence that on commencement of the proceedings by the Applicant, the necessity for a grant of leave pursuant to section 44(6) of the Family Law Act was recognised as such order was sought by the Applicant as a final order in that application.
Similarly, from the filing of the Respondent’s Response on 29 September 2017, the fundamental jurisdictional question was put in issue, being that the Court had no jurisdiction whatsoever to deal with the matter as separation had occurred prior to the referral of powers from the State of New South Wales to the Commonwealth to deal with property settlement matters arising from de facto relationships.
By the Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), the State of New South Wales referred to the Commonwealth financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships.
By the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (‘the Amendment Act’), the Commonwealth inserted into the Family Law Act 1975 (Cth) sections dealing with, amongst other things, property settlements between de facto partners.
Pursuant to section 86(1) of schedule 1 of the Amendment Act, the de facto relationship property settlement sections of the Family Law Act 1975 (Cth) do not apply in relation to a de facto relationship that broke down before commencement:
86 De facto relationships that broke down before commencement
(1) Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation to a de facto relationship that broke down before commencement.
That commencement date was 1 March 2009.
Accordingly, if the de facto relationship between the parties broke down on 22 November 2007 and never resumed, then pursuant to section 86 of schedule 1 of the Amendment Act, the Court has at no time had jurisdiction to deal with a property settlement between the parties.
Section 86A of schedule 1 of the Amendment Act provides that:
(1)Parties to a de facto relationship that broke down before 1 March 2009 may choose to bring their property settlement proceedings under the Family Law Act 1975 (Cth);[1]
(2)Such choice can be made if the choice is:
(a)Unconditional;[2] and
(b)In writing and signed by both parties to the de facto relationship;[3] and
(c)Each of the parties was provided, before the choice was signed by him or her, with:
(i)Independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice;[4] and
(ii)A signed statement by the legal practitioner stating that this advice was given to the party.[5]
[1] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(1).
[2] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(2)(a).
[3] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(5)(a).
[4] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(5)(b)(i).
[5] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(5)(b)(ii).
Such a choice cannot be made if a final property settlement order had been made under state legislation,[6] or if there was existent a financial agreement between the parties under state legislation or still in force.[7]
[6] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(3).
[7] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 1 s 86A(4).
It is fundamental that parties cannot give a court jurisdiction by consent where no jurisdiction exists in law.[8]
[8] In the Marriage of Grayden (2003) 175 FLR 265, [22] (Warnick, May, and Boland JJ), citing Hockey v Yelland (1984) 157 CLR 124, 141.
Section 86A of the Amendment Act is a method whereby parties whose property settlement dispute after breakdown of their de facto relationship would be outside the jurisdiction of the Court under the Family Law Act 1975 (Cth) can, by completing the formalities required therein, bring their property settlement issue within the Court’s jurisdiction under the Family Law Act.
That was not done at any time by the Applicant and the Respondent.
As I have said, when the Respondent, through his then-solicitors, filed his Response to the Initiating Application, it clearly flagged the “lack of jurisdiction” issue, though not specifying that such was due to section 86 of the Amendment Act or section 44(5) of the Family Law Act.
However, from the evidence on final hearing, it can be ascertained that the issue between the parties was as to the date of breakdown of the de facto relationship for the purposes of section 86 of the Amendment Act.
By order on 3 October 2017, the jurisdictional issue was set down for a hearing on 20 April 2018 “for final hearing limited to the discrete issue of jurisdiction and the date of separation of the parties”.
Prior to that date, the then-solicitors for the Respondent corresponded with the solicitors for the Applicant by letters of 16 February 2018 and 26 February 2018. The letter of 16 February 2018 is not in evidence, but the letter of 26 February from Newnhams Solicitors to Di Lizio & Associates Solicitors is exhibit A5. Relevant extracts of the letter say:
We refer to your letter of 20 February 2018 with respect to the dismissal of the jurisdictional argument.
As detailed in our letter of 16 February 2018, our client has made an economic decision to not press the jurisdictional argument in light of the significant costs that have and will continue to be incurred in respect of the hearing on 20 April 2018. Our client will shortly provide a financial statement for your client’s review.
We are instructed that our client asserts that separation occurred shortly after the legislative amendments in relation to de facto relationships, that is, shortly after March 2009.
…
By letter of 27 February 2018 from Di Lizio & Associates to Newnhams Solicitors (exhibit A9), the Applicant’s solicitors referred to the contents of the letter from Newnhams of 26 February 2018 as “the admission that your client [the Respondent] now makes”.
This indicates that the Applicant does not accept that final separation took place “shortly after March 2009” and negotiates a settlement of the jurisdictional issue by consent of the parties on condition of a costs order against the Respondent and in favour of the Applicant.
In any event, a “Minute of Orders and Directions” was tendered to the Court on 20 April 2018, signed by the parties and their legal representatives indicating:
BY CONSENT:
1. That the Respondent’s Application on the discrete issue of jurisdiction listed for hearing on 20 April, 2018 be dismissed.
2. That the Respondent pay the sum of $3,000 on account of the Applicant’s costs, be paid from the Respondent’s share of entitlements to be received upon conclusion of these proceedings.
…
An order was made that day by Judge Harper (as his Honour then was):
1.By consent, the Respondent pay the sum of $3000 on account of the Applicant’s costs, to be paid from the Respondent’s share of entitlements to be received upon conclusion of these proceedings.
2.By consent, leave be granted to the Applicant pursuant to section 44(6) of the Family Law Act 1975 (Cth) (‘the Act’) to institute proceedings against the Respondent for orders under s 90SM of the Act.
The Court set the matter down for a conciliation conference on 16 July 2018. The matter never settled.
There is nothing contained in either the “Minute of Orders and Directions” document or the orders made by Judge Harper on 20 April 2018 that refers to the date of separation of the parties, other than the inference that leave was necessary, and granted, pursuant to section 44(6) of the Family Law Act in consequence of the proceedings being commenced by the Applicant on 7 August 2017, more than two years after the date of breakdown of the de facto relationship.
If it is determined by the Court that the parties’ de facto relationship broke down on 22 November 2007 and was never resumed or recommenced in any way so as to endure past 1 March 2009, then there was no jurisdiction in the Court to make any order other than an order dismissing the proceedings for lack of jurisdiction. Certainly the making of an order under section 44(6) of the Family Law Act does not cure that fundamental jurisdictional issue.
The matter was ultimately set down for a final hearing from 17 August 2020 to 19 August 2020, but in the event the matter was not reached and on 18 August 2020 it was stood over not reached to 3 September 2020 and 4 September 2020 for defended hearing. On 18 August 2020, an order was made by consent that until further order:
(1)The Respondent was restrained from selling, transferring, or further encumbering the property at B Street, Town C (‘the B Street, Town C property’) without first giving the Applicant through her solicitors at least 14 days written notice of his intention to do so; and
(2)The Applicant was restrained from selling, transferring, or further encumbering the property at D Street, City E, Country F and two other vacant lots (‘the Country F Properties’) without first giving the Respondent at least 14 days written notice of her intention to do so.
I had opened with Mr White as counsel for the Applicant and Mr Eden on appearing on his behalf a discussion of the fundamental jurisdictional question when the matter was before the Court for final hearing but not reached on 17 August 2020 and 18 August 2020.
At the start of the hearing on 3 September 2020, it was raised at the start of hearing. Mr Eden indicated that on the basis that he “would rather get the whole thing over”, he agreed to 1 March 2009 as being the date of breakdown of the de facto relationship “and not 2012 or ’13 or whatever has been proposed by the Applicant.”
I reminded both parties of the provisions of section 86 of the Amendment Act, and Mr Eden said, “I firmly believe that separation occurred in November 2007, however, I’m happy to allow separation to be 1 March to allow the Court to proceed, your Honour.”
I then outlined clearly the provisions of section 86A of the Amendment Act and had some discussions about the process in that section with both Mr Eden and Mr White. Mr White submitted that section 86A of the Amendment Act “appears to have been revoked” and that consent to jurisdiction could be found in section 44(5) of the Family Law Act1975 (Cth).
In the course of discussion I pointed out to Mr White that section 44(5) was placed in the Family Law Act 1975 (Cth) by the Civil Law and Justice Legislation Amendment Act 2018 (Cth) and commenced from 26 October 2018, as clause 18 of schedule 6 to that Act provided that:
18 Application of amendments
(1) The amendments of section 44 of the Family Law Act 1975 made by this Part apply in relation to applications made after this item commences.
…
Pursuant to section 2 of the Civil Law and Justice Legislation Amendment Act 2018 (Cth), that was 26 October 2018.[9]
[9] Civil Law and Justice Legislation Amendment Act 2018 (Cth) s 2(1) item 8.
I also expressed a view to Mr White that section 44(5) of the Family Law Act could not cure the fundamental jurisdiction problem if the final breakdown of the de facto relationship occurred prior to 1 March 2009:
I think section 44 only comes into play if the Court has got jurisdiction on the face of it because the separation was on or after 1 March 2009 or the parties have complied with section 86A of the Amending Act.
Mr White referred to correspondence between the parties’ solicitors that I have referred to above whereby the Respondent to his solicitors stated that he had “made an economic decision to assert that ‘separation occurred shortly after the alleged amendments in relation to de facto relationships that is, shortly after March 2009.’”
Mr White referred to that as an admission and that the Respondent was “evidently legally advised at the time”.
I responded to Mr White by saying:
Mr Eden’s sworn evidence is separation November 2007. … Ms Eden asserts there was a separation in September 2007 – September or November 2007 but there was – she says it was a reconciliation thereafter.
Mr White submitted that on the basis of the “admission” contained in the letter of 26 February 2018 (exhibit A5) from Newnham Solicitors to the Applicant’s solicitors, “jurisdiction was accepted”.
I then gave the parties the opportunity to make arrangements for formal consent to jurisdiction under section 86A of the Amendment Act, but no document was forthcoming – on the Respondent’s part, he was not able to arrange same within the timeframe, and on the Applicant’s part, she asserted the existence of a de facto relationship between the parties past 1 March 2009 and up to about December 2013 and that presentation of a consent under section 86A of the Amendment Act would not be in line with her evidence.
After a period of adjournment I explained the jurisdictional matter again to Mr Eden and I said:
Mr Eden, you say, well, you will take separation as of 1 March 2009, but your sworn evidence is to the contrary and what you do there is setup a conflict between two pieces of your own evidence. Do you see what I mean?
Mr Eden reply “Yes” and went on to say:
On legal advice, I had been advised to say 1 March 2009 and that was put in a letter by solicitors then, Newnhams, to Mr Di Lizio so that we could proceed and not have to fight a jurisdiction battle.
Mr Eden then sought to make submissions that contained information that did not emerge in evidence. I pointed out to Mr Eden that parties cannot give the Court jurisdiction by consent where jurisdiction does not otherwise exist, but in this circumstance section 86A of the Amending Act, provided it is fully complied with, overcomes that difficulty.
I then said:
I can proceed, I suppose, and hear the whole thing and regard it as two decisions that have to be made: first of all, is there jurisdiction by a finding that separation occurred on or after the day or – and if it find that it did, then go onto the property settlement. But if I find that it didn’t, as asserted by Mr Eden, then that would be the end of it…
I then said to Mr Eden:
See, Mr Eden, if you counter you evidence as already given under your Oath in your affidavit that as far as you’re concerned you separated on a final basis in November 2007 – if you counter that by other sworn evidence, as I say, you give me conflicting evidence.
Mr Eden replied:
Well, I can’t lie to the Court, your Honour.
I then said:
I think we will do the hearing and I will decide, as a first question, “When did the parties separate?” But the risk is, if I decide the parties separated prior to 1 March 2009, then, that’s as far as I go… We will go ahead with the hearing on the basis that I will hear the whole of the case but I will decide – I will have to decide jurisdiction but, in the meantime, I might be given a document under section 86A of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). …but other than that, we will go ahead.
We then embarked on the hearing.
Clearly, the task of the Court is firstly to decide if there is jurisdiction. It is only after a finding that a Court has jurisdiction that the Court goes on to decide if there is a power to do what the Court is being asked by the litigants and, if there is a power, to decide how such power will be exercised by the making of orders based upon the evidence on hearing and the law, assisted by submissions.
The issue, therefore, is to decide if the de facto relationship between the parties that broke down on 22 November 2007 was ever resumed so as to subsist for some period past 1 March 2009 before breaking down.
During preparation of these reasons, the High Court of Australia handed down the decision in Fairbairn & Radecki [2022] HCA 18 in relation to the meaning of “living together” and “breakdown” in relation to a de facto relationship under the Family Law Act. The same reasoning necessarily applies to the meaning of “a de facto relationship that broke down before commencement” as used in section 86A of the Amendment Act. The High Court said at paragraphs 28 to 31:
[28] 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 (Family Law Act 1975 (Cth), s 4AA(4)).
[29] A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
[30] In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. It is the “breakdown” or “end” of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended. The appellant's submission finds no support in statutory context, in history, or in any extrinsic material referred to the Court's attention.
[31] Other provisions in the Act support the view that “breakdown” refers to the “end” of a de facto relationship. For example, s 44(5) addresses the timing of when, amongst other things, a proceeding under s 90SM may commence. It relevantly provides that a party to a de facto relationship may apply for an order under s 90SM if the application is made “2 years after the end of the de facto relationship” (Family Law Act 1975 (Cth), s 44(5)(a)(i)). The phrase “after the breakdown” in s 90SM(1), when considered in this context, must refer to what is described in s 44(5) as “the end of the de facto relationship”. The temporal fixing of “breakdown” with the “end” of a relationship is reinforced by each of ss 90UB, 90UC and 90UD, which respectively deal with financial agreements made before, during or after the breakdown of a de facto relationship. In that respect, s 90UC(1)(a) is especially instructive. That section refers to parties “while in a de facto relationship” making a “written agreement” about the distribution of their property “in the event of the breakdown of the de facto relationship”. The juxtaposition of a continuing de facto relationship, denoted by the phrase “while in”, with the word “breakdown” strongly supports the conclusion that “breakdown” refers to the end of a relationship (The respondent also referred to ss 90RC, 90SE, 90SL.).[10]
[10] Fairbarin & Radecki [2022] HCA 18 [28]-[31].
The Court’s task is made somewhat simpler by the parties’ evidence presenting mutual agreement that the de facto relationship between the parties that commenced some time in 1989 broke down on 22 November 2007. The issue is as to whether the parties re-entered a de facto relationship in about October 2008, and whether such a de facto relationship then continued past 1 March 2009. The Applicant asserts the relationship subsisted until December 2013.
A “de facto relationship” is defined in section 4AA of the Family Law Act. The section provides:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The parties to these proceedings were never legally married to each other.
The question then is as to whether or not the parties at some time past 1 March 2009 had a relationship as a couple living together on a genuine domestic basis.
To ascertain the answer to that question, the Court must have regard to all the circumstances of their “relationship”. Those circumstances may include any or all of the matters set out in section 4AA subsection (2) with no particular finding in relation to any of those circumstances being regarded as necessary in deciding whether the persons had a de facto relationship and the Court may have regard to such matters, and attach such weight to any matters, as may seem appropriate to the Court in the circumstances of the case.
As the High Court said recently in Fairbairn & Redecki at paragraph 39:
[39] The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist (cf FO v HAF [2007] 2 Qd R 138 at 149 [26] per Keane JA (White J agreeing). That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
Accordingly, the decision as to whether or not the Court has jurisdiction depends on determination of whether a de facto relationship subsisted past 1 March 2009 and that decision must be determined by examining “all the circumstances of their relationship” as revealed in the evidence. In that regard, I will traverse the evidence relevant to that issue from the hearing.
THE EVIDENCE
The parties agree that they were in a de facto relationship from about 1989 until November 2007. They had two children, X born in 1992, and Y, born in 1996, both children being adults at the time of the hearing.
The parties commenced their cohabitation in City AM and in 1990 they moved to Sydney and purchased a house in their joint names in Suburb G.
I note that the Applicant affirmed in paragraph 9 of her trial affidavit that the parties commenced their cohabitation in 1989, and then affirmed on the next page of her trial affidavit in paragraph 15 that the parties “lived together since 1988”.
The Applicant’s case is that following the parties’ separation in November 2007 (the Respondent says 22 November 2007), the parties reconciled in about October 2008 and lived in a de facto relationship at the Suburb G home until December 2013 when the Applicant says the parties again separated, this time on a final basis, the Applicant and their daughter Y going to live in a jointly owned property at B Street, Town C, and the Respondent living elsewhere in Sydney.
For his part, the Respondent says that the parties never resumed their de facto relationship after their separation on 22 November 2007. He agrees that in October 2008 he moved back into the Suburb G property occupied by the Applicant and the children X and Y, but says that the parties remained separated and living under the same roof and that their de facto relationship was not resumed in any way at any time.
On that essential point of divergence in their evidence, I will consider the evidence of the parties separately and then consider such documentary evidence as may assist. In that regard, I note that neither party called any supporting witnesses to give evidence in support of their respective cases, being:
(1)For the Applicant – her assertion that the parties resumed their de facto relationship in October 2008 and continued until December 2013; and
(2)For the Respondent – his case that though the parties recommenced living under the one roof at Suburb G in October 2008, they never resumed their de facto relationship but lived separately and apart under the one roof until sometime in the 12 months following the sale of the Suburb G property in December 2012.
The Applicant’s evidence
The Applicant says that following their separation in November 2007, she “received no financial assistance from the Respondent” and she made an application to the Child Support Agency for an assessment of child support to be paid by the Respondent to her for the support of the children, X and Y.
As I will refer to when examining the documents in evidence, the Applicant received payments of child support from the Respondent from August 2008 until 28 March 2014, about six weeks before the youngest child Y turned 18 years of age – she had completed her high school certificate in 2013.[11]
[11] Respondent’s affidavit, paragraph 40.
The Applicant says that in September 2008 she received a text message from the Respondent in words to the effect of “I want to see you,” to which she responded and a meeting was organised shortly thereafter, at which she says the Respondent said to her words to the effect of “I want to come home. It would help us financially. Otherwise we will lose the home. For the kids’ sake we should be back together”. The Applicant says that she replied, “No, I don’t think it’s a good idea. I have lost trust in you. I would need some assurances”.
Then in late September or early October 2008, she received a telephone call from the Respondent who said to her words to the effect of, “I am in Suburb G. I am coming home,” to which she replied, “I am not home right now. You can’t just come home like this”. However, she says that when she returned home that day she saw the Respondent’s car parked in the driveway, and that about a half an hour later, he rang the doorbell, the children opened the door and he came into the house.
It is plain on the Applicant’s evidence that she did not intend to immediately resume a de facto relationship, given that she had “lost trust” in the Respondent, and she arranged for the Respondent to sleep in the front bedroom of the house. She says that from that time on, and until the parties separated to live in difference places in December 2013, she:
…cooked for him and the children, I did his washing and made his bed at the time he slept in the front bedroom. After about two weeks, the Respondent then resumed sleeping together with me in our old bedroom. Initially there was little intimacy when we resumed sleeping in the same bed. Subsequently, our relations improved and we engaged in sexual intercourse on a few occasions. This was not different than the level of intimacy in the last few years before our separation in 2007.
She gives evidence that the Respondent almost immediately exhibited health difficulties by way of depression and that after accompanying him to consult the family doctor and obtaining a prescription, she:
…cared for him and nursed him. For example, I made sure he took his medications, massaged him each night and generally cared for him.
The Applicant says that when the Respondent resumed attending his employment she:
… would usually prepare his lunch, and in the evenings I would cook for him and the children … I had done all the washing and ironing for the Respondent since he had returned home. In the morning before he left for work, I prepared his breakfast. When he left for work, we would kiss goodbye.
The Applicant asserts in paragraph 37 of her affidavit that after the Respondent returned to live in the Suburb G home:
… our life had returned to normal in the way we lived, in that we resumed our way of life as before the separation. On one occasion, in about October 2009, we discussed the fact that I had made an application for child support to the Child Support Agency. At that time the Respondent said to me words to the following effect: “We will let the Child Support collect the payments. That way you can be sure I will contribute for the children”.
The Applicant asserts that after the Respondent returned to live in the Suburb G home in about October 2008, the family began going out together, and on occasions would go away together for the weekend. In 2009 and 2010, the parties and the children travelled to City H for a short holiday. In 2010, the parties, without the children, travelled to City J to attend a Country F Festival and stayed overnight at the home of friends who lived in City J. In 2011, the parties and the children travelled to City H for a few days.
The parties and children:
…went out … about once a fortnight for dinner at a restaurant. Sometimes friends would join us at such dinners. Sometimes we went to dinner by ourselves.
The Applicant names Mr K and Ms L as the persons with whom the parties stayed in City J in 2010, but she does not present any evidence from them, nor give any explanation as to why she does not present any evidence from them, leaving it open for the Court to draw an inference under Jones v Dunkel (1959) 101 CLR 298 that their evidence would not have assisted the Respondent’s case.
Further, the Applicant does not present any evidence from any friends who “sometimes … would join us at such dinners”. She does not name any such friends, and of course does not give any explanation as to why there is no evidence from such persons, again leaving it open to the Court to draw the Jones v Dunkel (1959) 101 CLR 298 inference about any evidence from any such “friends” who joined the parties at dinners at restaurants would not assist the Applicant’s case.
Following a conversation between the parties after the Respondent returned to live at the Suburb G property in October 2008, the Applicant indicated that she needed to have some assurances about her financial position if the Respondent left again, and the Respondent suggested that the parties could “get an agreement so that if we separate again there won’t be any financial issues”.
The Applicant says that both the Applicant and the Respondent then attended at the office of the Applicant’s solicitors (Ms M) and “we conferred with the solicitor”. As a result, a draft domestic relationships agreement pursuant to the New South Wales state legislation was prepared by the Applicant’s solicitor in 2009. The agreement was never signed and the Applicant says that it was her understanding that the agreement was being drawn “on the basis that it would be the agreement that would determine our financial entitlements in the event that we separated again”.
A copy of the draft agreement (being the seventh revision thereof) was put into evidence by the Applicant as exhibit A11. It is a copy signed by the Respondent, witnessed by his solicitor Mr N, with the certificate under section 47(1)(d) of the Property (Relationships) Act 1984 (NSW) completed by Mr N, but not dated, other than to assert “2009”.
In relation to that document in exhibit A11, I note that the recitals include the following:-
WHEREAS:
A. [MS EDEN] and [MR EDEN] (collectively referred to as “the parties’) lived together since 1998.
B. [MS EDEN] and [MR EDEN] separated on 22 November 2007 when [MR EDEN] left the home at [O Street, Suburb G], NSW, where the parties resided prior to separation.
C. [MR EDEN] returned to reside at [O Street, Suburb G], NSW, on 6 October 2008, and the parties agree to reside together whilst separated until the provisions of this agreement are effected.
D. This agreement shall only apply if the parties separate on a final basis and the parties’ assets and liabilities are significantly in the same position as at the date of this agreement.
…
J. It is the intention of the parties, to promote harmony and reduce the possibility of resorting to litigation, to enter into this agreement, which they intend to be legally binding on each of them during their relationship and on and for all times after its termination, as to their respective rights and obligations between themselves arising during and out of their relationship.
Strangely for what the Applicant asserts is an agreement made between the parties during the currency of a de facto relationship, the terms thereof, after dealing with the separate property of the parties, require the sale of certain real property and payment of the proceeds of such sales into “the parties’ Commonwealth Bank account line of credit …26”, but also provides that “forthwith” the Applicant sell a property in the Country F and pay to the Respondent the net proceeds of sale, but if the property has not sold “within 12 months of the date of this agreement”, then the Applicant is to pay to the Respondent $100,000 “in lieu of payment of the proceeds of sale of this property”.[12]
[12] Clause 19.
The reference to the sale occurring “forthwith” is not a reference to any eventual separation of the parties but, as with the other sales of property just referred to, is termed to occur forthwith upon the agreement coming into effect, which pursuant to clause 3 of the agreement is “on the date of execution by both parties”
Further, clause 23 requires that the Respondent “forthwith shall do all acts, things and execute such documents to effect the transfer of 100,000 of his Qantas Frequent Flyer points” to the Applicant “or to enable Ms Eden to purchase tickets to this equivalent value”.
Clause 27 requires that the parties “forthwith” do all things necessary for the Applicant to transfer a Motor Vehicle 1 to the Respondent’s sole name.
Recitals A, B and C quoted above make it clear that the parties separated on 22 November 2007, that they were living separately and apart at the time instructions were given for the drafting of version 7 of the domestic relationships agreement, and that they were to remain separated “until the provisions of this agreement are effected”. The provisions of that agreement were never effected, as the agreement was never entered into by the parties.
Despite the wording of recital D, that the agreement “shall only apply if the parties separate on a final basis and the parties’ assets and liabilities are significantly in the same position as at the date of this agreement”, the actual terms of the agreement effect a division of property between the parties “forthwith” upon the agreement coming into effect, that coming into effect to be, pursuant to clause 3, “on the date of execution by both parties”. It seems, even on its own terms, a somewhat confused document.
In December 2012, the O Street, Suburb G property was sold, and the Applicant says that at about that time the parties had a conversation about purchasing another property jointly in the country.
The Applicant puts into evidence as exhibit A2 a print of an email chain between the Respondent and the Applicant’s solicitor, Ms M, from 18 June 2009 to 24 June 2009. In the email of 18 June 2009 from Ms M to the Respondent, Ms M includes as the final paragraph:
By the way, this agreement may need to be updated, as the law on de facto break-ups changed on 1 March 2009. I’ll attend to this, but in the meantime, have you and [Ms Eden] made a decision on whether you have finally separated or no?
To this the Respondent replies in his email to Ms M of 18 June 2009 with the following as his final paragraph:
[Ms Eden] and I have decided currently not to finally separate. This domestic relationship agreement is only valid if one or other of us does decide to finally separate.
The Applicant puts into evidence as part of exhibit A11 a print of a “Financial Agreement – pursuant to section 90UD of the Family Law Act 1975 (Cth)” between the parties, prepared by the Respondent’s solicitors, N Law Firm. That firm acted on the sale of the O Street, Suburb G property by the parties in December 2012, and the Applicant includes as annexure “C” to her affidavit a copy of that firm’s letter of 21 December 2012 reporting on the sale. That letter indicates a final distribution of the proceeds of sale included the following:
[Mr Eden] (30 per cent of balance), $16,055.10
[Ms Eden] (70 per cent of balance), $37,461.91
Those amounts are mathematically correct when the sum of $53,517.01 is divided in that ratio.
The “financial agreement” drawn by the Respondent’s solicitors never came into effect, as with the previous attempted financial agreement, as it was not completed by the parties.
Both parties put a copy into evidence – the Applicant as part of exhibit A11 and the Respondent as “attachment E” to his trial affidavit.[13] The draft terms are clearly in evidence. It was prepared by the Respondent’s solicitors on his instructions. There is no evidence by the Applicant that she adopted the terms of that agreement at any time. I will examine the terms when looking at the Respondent’s evidence.
[13] Respondent’s affidavit, paragraph 42.
At the time of selling the O Street, Suburb G property in December 2012, the parties purchased in their joint names in equal shares the B Street, Town C property. The B Street, Town C property was unencumbered immediately following the purchase.
The Applicant says that following the sale of the O Street, Suburb G property in December 2012, she and the Respondent moved into rented premises also in Suburb G “until about December 2013”. She says that while living in those rented premises, she:
…continued to cook, clean and care for the Respondent and [Y]. Our other child, [X], had moved out by then and was living in separate premises. In about December 2013, I moved into the [B Street, Town C] property with [Y], and the Respondent found another home to live in in Sydney. The Respondent would at times come to stay at [B Street, Town C], but we slept in separate bedrooms.[14]
[14] Applicant’s affidavit, paragraph 67.
It would seem that this movement in December 2013 of the Applicant to live in the B Street, Town C property and the Respondent to live in “another home … in Sydney” is regarded by the Applicant as the date of the final separation and end of their second tranche of de facto relationship.
I note that in paragraph 77 of her affidavit, the Applicant says:
Sometime in 2013, after the Respondent and I moved to the property at [B Street, Town C], the Respondent and I had a conversation ...
On the balance of the Applicant’s evidence, it would seem that at no time was there a circumstance of the parties living separated under the one roof at the B Street, Town C property following December 2013.
During the cross-examination of the Applicant by the Respondent, she was asked about the content of attachment A to the Respondent’s affidavit, being a list prepared by him of travel by air between 19 July 2009 and 18 March 2014, giving a date of departure, whether it was the Applicant or the Respondent travelling, number of days away, the airline used and the destination.
The document asserted that on no occasion did the Applicant and the Respondent take any trip together. In that cross-examination of the Applicant, she was asked to look at the attachment A and examine the contents and was asked by me:
On any of those trips shown – on any of those trips ... did yourself and [Mr Eden] travel together?
The Applicant replied “Yes, your Honour.”
However, under questioning by me, the Applicant asserted that when giving that response she was not looking at attachment A to the Respondent’s trial affidavit, and I drew her attention specifically to that document, and she had it before her and was looking at it when I put the question to her:
Now, do you recognise any those trips as having been taken by yourself and [Mr Eden] together?
The Applicant replied “Yes. Some.” I then asked:
So, then we go on to the next question that was asked. Which trips do you recognise as having been taken by the two of you together?
The Applicant responded “… City P, Country Q.”
There followed some confusion until, finally, the Applicant asserted that she recalled a trip undertaken by the Applicant and Respondent together to the Region R:
I just remember the [Region R], but we did not catch a plane. We travelled – no, not overseas, your Honour. Sorry.
After some further questions, I put to her:
So, is your answer to the question, “Do you recognise any of those trips as having been taken by both of you?”, is the answer to that yes or no?
The Applicant responded “Just in – just City P, Country Q, yes.”
I then asked “So, that was the 25 December 2009?” to which the Applicant responded, “Yes.”
However, after a question was put to the Applicant by the Respondent, I clarified with the Respondent that the parties had not travelled together on 25 December 2009 to City P, Country Q, and the Applicant agreed that she did not travel with the Respondent on that occasion.
Under further questioning by me, the Applicant plainly prevaricated on several occasions, that prevarication having followed her having given evidence that was incorrect in relation to having accompanied the Respondent on trips. Finally, I put the plain question to the Applicant, “Did you and the – Mr Eden go on any of those trips together?” to which the Applicant responded, “No”.
The Respondent then asked the Applicant “Can you actually remember what year you and Mr Eden travelled on a plane together last?” to which the Applicant answered, “2007 – early year. 2007 with the children, we went to City P, Country Q.”
It had been clearly established on the evidence that the Applicant was receiving payments of child support from the Respondent for the period from 13 August 2008 until 28 March 2014, except for the period from a payment on 7 April 2010 to a payment on 28 June 2011, though it is plain from attachment B to the Respondent’s affidavit that the assessment for the Respondent to pay child support to the Applicant for the children continued throughout that hiatus period, giving rise to a “child support adjustment”.
It was also in the evidence that during the period that the Applicant was receiving child support payments from the Respondent, she also received cash payments from students boarding at the O Street, Suburb G property. During the cross-examination of the Applicant by the Respondent, she was asked “So did you declare this income from the homestay students to the Child Support Agency?” to which she replied, “Child support, no.”
She was then asked “Are you aware if you had declared the homestay income, it would have reduced the contributions you received from child support?” to which she replied:
The student in the house just come and go, and sometimes is just one week, and on this time, as I said, my psychiatric was telling me to kick out all the student.
In relation to the child support payments issue, the following occurred between myself and the Applicant during her cross-examination by the Respondent:
HIS HONOUR: Remember you had a look earlier today at annexure B to [Mr Eden’s] affidavit? Just have a look at [Mr Eden’s] affidavit. Have you got that?
APPLICANT: Yes.
HIS HONOUR: Page 11 of 79. All right?
APPLICANT: Yes.
HIS HONOUR: From page 11 through to page 14, that’s the record kept by the Child Support Agency of child support payments made by [Mr Eden] to you through the agency for the children. Do you agree with that?
APPLICANT: Yes.
HIS HONOUR: And do you see the first date there is 31 July 2008?
APPLICANT: Yes.
HIS HONOUR: And do you see that the last date of a payment, on page 13, is 28 March 2014?
APPLICANT: Yes.
HIS HONOUR: All right. So [Mr Eden] was giving you some money for the children up until 28 March 2014, wasn’t he?
APPLICANT: Yes, and he was staying there; he was eating the food I have, so – and I cook for him, I do all the washing for him, I do the housework.
HIS HONOUR: Yes. No. That’s all right. Now, 28 March 2014 was two months before [Y] turned 18, wasn’t it?
APPLICANT: Yes.
HIS HONOUR: And can I just ask you this also, you started receiving child support payments in July 2008?
APPLICANT: Yes.
HIS HONOUR: And they continued all the way through 2008, 2009, 2010, up until April 2010?
APPLICANT: That’s correct.
HIS HONOUR: And then resumed again in June 2011 and went through uninterrupted, as far as I can see, until March 2014. Do you agree with that?
APPLICANT: Yes.
HIS HONOUR: So it would appear that the period of time during which [Mr Eden] was not giving you child support payments for the children was between 7 April 2010, on which he made a payment, and 22 June 2011. Do you agree with that?
APPLICANT: Yes.
HIS HONOUR: That’s the only time that he stopped making child support payments?
APPLICANT: Yes.
HIS HONOUR: But at all other times he was making child support payments?
APPLICANT: Yes. Yes.
HIS HONOUR: But you tell me that for all of that time, except for a period of time between November 2007 and some time in late 2008 or early 2009, the two of you were together?
APPLICANT: Yes.
HIS HONOUR: That you were only separated between November 2007 and some time in late 2008/2009, is that right?
APPLICANT: That's correct, yes.
HIS HONOUR: Can you tell me why you continued to receive child support payments from [Mr Eden] through a period of time when you say you were not separated?
APPLICANT: That was [Mr Eden’s] advice, that I just give you this child support so you – you have some money for you, so – that was [Mr Eden’s] – it was this – his advice to me.
Later, during the re-examination of the Applicant, the following exchange occurred between myself and the Applicant:
HIS HONOUR: Do you know why there were no payments between April 2010 and June 2011?
APPLICANT: No, I don’t know.
HIS HONOUR: All right. You don’t know. Thank you. When you applied for child support, you admitted yourself and [Mr Eden] were separated?
APPLICANT: Yes.
HIS HONOUR: Do you agree that the Child Support Agency would have assumed that you were still separated through 2009, 2010, 2011, 2012, ’13, ’14, all the way down to 28 March 2014?
APPLICANT: Yes.
I then asked Mr White, as counsel appearing for the Applicant, if there was anything arising from my questions during re-examination, and he responded, “Nothing further, your Honour.”
The Respondent’s evidence
The Respondent said that after the parties separated on 22 November 2007, he moved into rental premises in Suburb S, then to a studio apartment he owned in Suburb T, later to a rental property in Suburb U, and then a rental house in Suburb V. In the last three of these properties, he lived with a partner, Ms W, whom he met at work.
The Respondent says that following the separation of the parties in November 2007, it came to his attention that his daughter, X, had begun to self-harm and that on at least two occasions he had been called to her high school because staff members were concerned that X “would attempt suicide”. He says that on another occasion X ran away from home (the O Street, Suburb G property) “and hid in a hostel in Suburb Z. When I found her I said to X that I promised to move back into the house to help support her and assist her and Y, as they were both having difficulty living with their mother.” At that time, Y was about to commence year 11 at high school, and he says that she “needed support with her secondary education.” He says that he split up with Ms W and that “due to my concerns for my children and my wellbeing, I left my new partner and moved back to the O Street, Suburb G house. I also wanted to sort out the sale of the property and a split of assets with the Applicant.”
He says that after moving back into the O Street, Suburb G house, he slept on a mattress on the floor in the corner of the main bedroom, as the other four bedrooms in the property were either rented out by the Applicant to homestay students or occupied by the children. Soon after returning back to the home, he became “overstressed and ill” and began experiencing physical difficulties and could not sleep. He was diagnosed with severe clinical depression and referred to a psychologist and a psychiatrist. At about this time, and while he was ill and off work for 10 weeks over Christmas and New Year 2008 to 2009, he:
… slept on the edge of the king-sized bed occupied by the Applicant in the main bedroom. There was a barrier of pillows between us. There was no intimacy, no touching, and no sexual relations. This continued until the house was sold and we moved out.
In paragraph 19 of his affidavit he says:
During the period after I moved back to [O Street, Suburb G], the Applicant and I lived separate lives. We did our own washing, ironing and cleaning. We travelled interstate and overseas separately (refer attachment A). We did not attend social gatherings as a couple to celebrate the children’s birthdays. I did my own cooking, except on occasions when the Applicant cooked meals for homestay students. On these occasions, I would also eat the food she prepared.
In relation to the child support payments, he says that he began making those payments from 14 June 2008 after the Applicant filed her application for child support and that he made the regular periodic payments until 28 March 2014, “shortly before our youngest daughter Y turned 18.”
In paragraph 25 of his affidavit, he says:
I paid child support to [Ms Eden] as I considered that our relationship had ended and we had separated on a final basis. I do not know if the Applicant advised the Child Support Agency that we were separated but living under the same roof.
The Respondent asserts in paragraph 26 of his affidavit that:
After we separated in November 2007, the Applicant began receiving Centrelink payments on the basis that we were separated. I believe that when she applied for these payments, she put the date of our separation as November 2007. I was present on a number of occasions up to 2013 where I helped the Applicant complete Centrelink forms, and on each occasion, she put the date of our separation as November 2007.
The Applicant was not cross‑examined by the Respondent on this evidence, and no documents were presented from the Centrelink records – noting that such records cannot be obtained by subpoena by the Respondent under the provisions of sections 204 and 207 of the Social Security (Administration) Act 1999 (Cth), nor can the Applicant’s documents be obtained by the Respondent from the Child Support Agency as a part of the Department of Services, pursuant to section 16 of the Child Support (Registration and Collection) Act 1988 (Cth) and section 150 of the Child Support (Assessment) Act 1989 (Cth).
Not only was the Applicant not cross‑examined about the Respondent’s evidence quoted above, but the Respondent was not cross‑examined about his assertion that on each occasion up to 2013, the Applicant completed Centrelink forms with the date of the parties’ separation as November 2007.
The Applicant refers to the second draft financial agreement between the parties, the financial agreement purporting to be “pursuant to section 90UD of the Family Law Act 1975 (Cth)”, and he annexes a copy of that document to his trial affidavit as attachment E. As I stated above, there is no evidence that the Applicant adopted any of the terms of the draft document. It was prepared on the instructions of the Respondent, as given in 2012.
Section 90UD of the Family Law Act relates to “financial agreements after breakdown of a de facto relationship”. The draft document recites:
…
G. The parties lived together since 1988.
H. The parties separated in November 2007.
I. The parties have continued to live under the same roof at [O Street, Suburb G], and [AB Street, Suburb G].
...
Q. [Mr Eden] and [Ms Eden] desire and intend by this financial agreement to finalise their financial relationship with respect to property and maintenance following the breakdown of their de facto relationship (which de facto relationship has now ended).
In the cross‑examination of the Respondent by Mr White as counsel for the Applicant, the following exchanges occurred:
MR WHITE: Now, your position is that the relationship ended sometime in 2007?
RESPONDENT: I left the property physically. I went to stay in a rented property in [Suburb AC]. I was then joined by a work associate female who entered into a relationship with me and, even though that broke up and I broke up as well with stress, I returned to the [Suburb G] house to live separated under one roof, which has been mentioned before. So broke up in November 2017. I think returned to the [Suburb G] house in August 2018 and sold the place in about October.
HIS HONOUR: Returned to the [Suburb G] property in August 2008?
RESPONDENT: ‘08, yes. This is from memory, and we sold the place in October 2012.
MR WHITE: So just to be clear, you said you returned there from 2008 through till October 2012?
RESPONDENT: Yes.
MR WHITE: That whole time?
RESPONDENT: I was there the whole time except for the holidays, of course, that you saw on that list.
The following exchange occurred later on:
MR WHITE: ...even after 2009, I suggest that you would sometimes go on holiday together. You would take a trip by car, for example. Is that true?
RESPONDENT: I don’t have a recollection. There might have been a reason for it. Perhaps you could refresh my memory.
MR WHITE: I’m asking you now. You say you don’t recall. Could you have done that?
RESPONDENT: If we had have taken the children, yes. It would have been a children thing.
MR WHITE: I see. So when you say the “children thing”, that’s – what are you referring to? An event involving the children or ... ?
RESPONDENT: Yes. It might have been, for example, we jointly owned a timeshare facility up on the – in – just north of – north of [City AD]. [Suburb AE]. That’s what it’s called. [Suburb AE]. We had a joint‑owned – a time share, and I think we took the kids to the time share because it’s by the sea and give them a chance for some fresh air. We might have gone somewhere to celebrate a birthday or something. Those sort of events, but with the children.
MR WHITE: I see. So after 2009, you’ve moved back in. You think you might have travelled to that time share with my client, but also the children?
RESPONDENT: Yes.
When questioned by Mr White about celebrating significant events such as birthdays by going out to dinner as a family with the Applicant and the children, the Respondent said:
Well, I remember distinctly we used to go to [Suburb AC] to a [Country AF] restaurant for birthdays, Father’s Day and those sort of things, Mother’s Day, blah blah. So that’s not – yes. That’s only to Suburb AC from Suburb G.
The following exchange took place later on:
MR WHITE: Now, I suggest to you when you did move out and you had a relationship with [Ms AG] and that broke down, you then sent texts to [Ms Eden] saying that you want to see her again?
RESPONDENT: I sent the text to her saying I wanted to see her. Yes, I did. And we met in a coffee place in the [Location AH], I believe.
MR WHITE: And that was re‑establish the relationship, wasn’t it?
RESPONDENT: Either that or it was to – when she begged me to pay out her credit card. I can’t ‘remember which one that was.
MR WHITE: So you say it could have been to re‑establish the relationship?
RESPONDENT: It could have been. Well, it wasn’t to re‑establish the relationship. It was for me to move back in because there had been a lot of problems with the children trying to commit suicide and self‑harming themselves while I wasn’t there.
The following exchange took place later on:
HIS HONOUR: What Mr White is putting to you is he’s suggesting to you that when you sent the text message to [Ms Eden] to meet and you discussed moving back in, it was to resume your de facto relationship with her. That’s what Mr White is asserting to you?
RESPONDENT: I don’t believe so.
MR WHITE: And then when you moved back in, to start with you stayed in another room?
RESPONDENT: When there was a room available. The house was normally full of students.
MR WHITE: And then you moved into her bed to sleep?
RESPONDENT: After that I moved into a very thin mattress in the corner of the main bedroom. I remember lying there saying – feeling like a dog in my own house lying on the hard floor. When I was that age, it was very hard going.
...
MR WHITE: And all that time it was [Ms Eden] who was looking after you, wasn’t it?
RESPONDENT: The reason I laugh is most of the time [Ms Eden] is out at the [Suburb G] RSL or some other club with her friends, but I do agree that she did help me to some extent. She tried to give me a massage, which I didn’t really want, and I think she gave me some broth or something like that, but she spent most of the time either out shopping or at the RSL.
MR WHITE: So you think she should have been looking after you 24 hours a day?
RESPONDENT: I didn’t want her to look after me. I wanted to be alone.
MR WHITE: You say that she gave you broth. She was giving you all your food, wasn’t she? She went and bought it from the shops and she fed you?
RESPONDENT: Well, certainly I wasn’t going out to the shops.
MR WHITE: So she was caring for you in that time of severe stress?
RESPONDENT: I think six to 10 weeks.
...
MR WHITE: And [Ms Eden] contributed to your recovery, providing you care during that time?
RESPONDENT: Well, I suspect if she hadn’t have provided me with food, I probably wouldn’t have eaten.
MR WHITE: That’s right. Now, you say you slept on the bed, like a dog as you say?
RESPONDENT: On a very thin mattress, which – it was a very hard floor.
MR WHITE: I see, and you slept in her bed as well?
RESPONDENT: I moved – when I got sick I moved to the edge of the master bed. It wasn’t her bed. It was the master bed in the master room, a king‑size bed.
MR WHITE: You moved into the same bed as [Ms Eden], didn’t you?
RESPONDENT: Absolutely, yes. I’m not hiding that.
MR WHITE: Well, you moved back in, you were sleeping in the same bed. She was caring for you. You think you might have attended functions or events outside the house together when you were able. Did you interact with the neighbours at all?
RESPONDENT: Not very much at all. Just – the neighbours was – we interacted with the guy next door when [Ms Eden] bought the property in City AM. I don’t know if you’re aware she bought a property in City AM, but he was the bank manager that organised for his brother in City AM to lend her the money to buy the [business].
...
MR WHITE: And you would sometimes see friends with [Ms Eden]. Is that true?
RESPONDENT: Occasionally, yes.
MR WHITE: Mutual friends, that is?
RESPONDENT: Yes.
MR WHITE: Just as you used to do during the relationship?
RESPONDENT: Similar, only the mutual friends that come to mind is my best mate, [Mr K], who lived in [Suburb AJ], which is how we ended up with the property in [Suburb AJ]. He lived in [Suburb AJ], and when we went to stay with him, she slept on the bed and I slept on the floor in their small room.
MR WHITE: But that wasn’t another time that you – well, you now remember you made that trip together?
RESPONDENT: Yes, indeed. I think it was probably at Christmas with the kids for a [Country F] party that happened down there, but the guy was my friend and she befriended his wife.
MR WHITE: Now, you say that, in your affidavit, that you separated in 2007, but you continued to co‑own the [Suburb G] property up until the end of 2012, didn’t you?
RESPONDENT: Absolutely, I wish I could have got her to sell it earlier, but she was very hard to persuade to sell it and after I lost my job I couldn’t afford all the properties that were ...
MR WHITE: So you were living together and that main asset of yours was still shared?
RESPONDENT: Absolutely, yes.
MR WHITE: And then even after you sold [Suburb G], you then purchased another property together?
RESPONDENT: The [B Street, Town C] property.
MR WHITE: And then you were still living together, and you were still sharing that property. You had common ownership a property?
RESPONDENT: We weren’t living together in [B Street, Town C] except on the rare occasions I went up to see my mechanic.
MR WHITE: Yes, and then – but then when you eventually made it to [B Street, Town C], you said – you’ve given evidence that you would visit and I’m suggesting to you just that even at that time in 2013 you still chose to purchase property together that you both owned?
RESPONDENT: I didn’t choose. I had no choice.
MR WHITE: I’m suggesting to you that one of the reasons why you owned that property together was because you were still together as a couple?
RESPONDENT: Not true. Can I tell you why we ended up buying the property in [B Street, Town C] together?
The following exchange took place later on:
MR WHITE: And the reason why you slept in the same bed was because – not because there was not enough beds available. It was simply because you were in a relationship?
RESPONDENT: Not true.
MR WHITE: And I suggest the idea that every night you would erect a barrier of pillows between you is a nonsense?
RESPONDENT: Correct. There was a barrier of pillows and we never touched each other at all. I made sure of that and she made sure of that too. She didn’t like me and I didn’t like her.
MR WHITE: And there were sexual relations a few times?
RESPONDENT: Absolutely not. No way, no chance.
MR WHITE: And the frequency of sexual relations was equivalent to the frequency that had occurred during the period before 2007?
RESPONDENT: Absolutely not. Someone is dreaming.
MR WHITE: And then after – after you moved back in you would sometimes still give [Ms Eden] a bit of money. Is that true?
RESPONDENT: When she gave me her sad story. I mentioned before her wonderful skill at making people feel sorry for her. If I had any spare cash apart from the child support I would give her 100 and sometimes she would ask me for money for the – for the food, I think, I seem to remember, when we were in [AB Street, Suburb G]. She said, “If you’re here, you have to pay me for the food.”
...
MR WHITE: I suggest to you that there was still a degree of financial interdependence at that time?
RESPONDENT: I don’t think so. She’s interdependent on anyone that’s standing around for finance.
The following exchange took place later on:
MR WHITE: ...in relation to the date of separation, to the extent you’re able to comment, from your children’s perspective they would have seen you living together after 2009 and still being a couple?
RESPONDENT: Children aren’t that stupid. They were already almost grown up. You know, in their teens. They were self – I mean, [X] was self-harming. The school was calling me up saying they think she’s going to commit suicide, all that sort of thing, while I was away because they didn’t get along with their mother.
MR WHITE: Well, you were both acting as parents, being supportive of those children in that time?
RESPONDENT: Yes, me more than the Applicant.
MR WHITE: But I suggest that she wasn’t suicidal. This is [Y] and - - -
RESPONDENT: [X].
MR WHITE: [X], sorry, and she certainly didn’t say to you that the problems – that the problems were with the mother?
RESPONDENT: She wouldn’t say problems with her mother. She’s too polite to say that, but she was suicidal. I was called to the school twice when they wanted to discuss it. I was called because she didn’t want her mother to come along. She was using a screwdriver to self-harm herself on her arm as well. And then she finally ran away from home while I was not there and I promised her when I find her in [Suburb Z] that I would return home.
MR WHITE: Now, in fairness, I suggest that that’s not true, and the reason you were living there was because you were in a relationship?
RESPONDENT: Well, we disagree then.
Later in the cross-examination of the Respondent by Mr White, the following exchange occurred in relation to the child support payments issue:
MR WHITE: You did pay child support. I suggest to you that at the start of the period in which you paid child support there was a contemplation that the parties would separate, or you had or you felt as if you had separated. Do you agree with that?
RESPONDENT: The reason I paid child support is because the Child Support Agency approached me because your client had approached them.
HIS HONOUR: The payments commence during a period when both parties assert there was – the parties were separated.
RESPONDENT: We were separated at the time. Yes.
MR WHITE: I suggest to you though that when you moved back in you continued to pay just as a means to support the children and despite the fact that you were no longer separated?
RESPONDENT: That’s not true.
MR WHITE: Now, before you mentioned that there had been some mental health issues that the children faced. I suggest that at one point one of the girls did have an issue with cutting but that certainly wasn’t the reason that you moved back into the house?
RESPONDENT: I promised that daughter that I would move back in. I found her boyfriend and her boyfriend was kind enough to tell me which [hotel] she was staying at in [Suburb Z] when she ran away from home, and I went to see her and I had a meeting with her and my sister was there as well, and we talked with her about her situation.
MR WHITE: I’m not contesting that you love your children, but I’m suggesting that you continued to pay that amount because that was a means for you to provide that money for their care, despite the fact that you were together in a relationship.
RESPONDENT: Absolutely not. That’s ridiculous.
MR WHITE: Did you think that it might be advantageous to continue to pay child support and represent that you were separated?
RESPONDENT: That’s not my – I’m not that smart.
In relation to the draft domestic relationship agreement under the New South Wales state legislation that is exhibit A3, the Respondent was cross-examined about that agreement, and in particular about the email chain that is exhibit A2, referred to above in the Applicant’s evidence. The following took place:
MR WHITE: [In referring to the email of 18 June 2009 from [Ms M], solicitor, to the Respondent] You agree that she said to you: “By the way, this agreement may need to be updated as the de facto break-ups changed on 1 March 2009. I will attended to this, but in the meantime, have you and [Ms Eden] made a decision on whether you have finally separated or no?”
RESPONDENT: I can read that. Yes.
MR WHITE: And then you go back to the email that was absolutely spot on. The last paragraph of that says: “[Ms Eden] and I have decided currently not to finally separate. This domestic relationship agreement is only valid if one or other of us does decide to finally separate”.
RESPONDENT: That’s correct.
MR WHITE: You said that?
RESPONDENT: Yes.
MR WHITE: You accepted that you weren’t separated at that time?
RESPONDENT: I’m referring to physical separation and not relationship separation.
MR WHITE: No. No, [Mr Eden]. You have just told me that email was correct. You understood it was important to be truthful?
RESPONDENT: Absolutely. Yes.
MR WHITE: And you said you weren’t separated?
RESPONDENT: Yes. We’re not physically – we’re living in the same house. We were living in the same place then.
MR WHITE: This email related to the drafting of a potential agreement to separate property, didn’t it?
RESPONDENT: Yes, yes. To separate the property.
MR WHITE: And one of the terms of that agreement was that it would become operative if the parties separated.
RESPONDENT: Yes. Indeed.
MR WHITE: And that didn’t mean - - -
RESPONDENT: Separate. Yes. Absolutely.
MR WHITE: - - - didn’t mean physically separate, did it?
RESPONDENT: Well, sorry, you can’t – if you’re going to be relationship separated, you would expect to be physically separated. But you could be physically separated and not relationship separated.
MR WHITE: The agreement was to cover the distribution of property after the separation of a relationship, wasn’t it?
RESPONDENT: Absolutely. And the – the relationship had finished.
MR WHITE: So the relevant question she was asking you was whether you had separated as a couple?
RESPONDENT: Well, misinterpreted then.
MR WHITE: [Mr Eden], you’re lying, aren’t you?
RESPONDENT: No.
…
HIS HONOUR: [Mr Eden], why did you say in that email, “The domestic relationship agreement is only valid if one or other of us does decide to finally separate”? Why did you say that?
RESPONDENT: I can’t remember. It’s not true, is it? It’s – it’s only valid if both of us sign it. But I think in the – in the actual relationship it – in – in the agreement it says something like it’s only valid if we separate or something. It’s actually in the agreement, from memory.
MR WHITE: And that relates to separation of relationship, doesn’t it?
RESPONDENT: Yes.
As I pointed out to Mr White at about this time in the cross-examination of the Respondent, the draft domestic relationship agreement upon which Mr White had cross-examined Mr Eden is internally inconsistent and puts the meaning of “separated” entirely at large, because recital B says:
[Ms Eden] and [Mr Eden] separated on 22 November 2017 when [Mr Eden] left the home at [O Street, Suburb G] where the parties resided prior to separation.
Then, recital C says:
[MR EDEN] returned to reside at [O Street, Suburb G], on 6 October 2008 and the parties agree to reside together whilst separated under the provisions of this agreement are effected.
Then, recital D:
This agreement shall only apply if the parties separate on a final basis and the parties’ assets and liabilities are significantly the same as at the date of this agreement.
It recites that the parties separated, it recites that the parties have returned to residing in the same place but remain separated, and then it says it will only go into effect if the parties separate on a final basis.
The paragraph in the email from the Respondent to Ms M in exhibit A2:
[MS EDEN] and I have decided currently not to finally separate. This domestic relationship agreement is only valid if one or other of us does decide to finally separate.
may have had some considerable weight on the Applicant’s side of the case, but it is affected as to weight by the internal inconsistencies in the wording in the recitals to the draft domestic relationship agreement.
Other evidence
Exhibit R1 is correspondence dated 18 November 2012 from the Respondent to Ms AK, the then-solicitor for the Applicant, and Mr N, the then-solicitor for the Respondent. After referring to matters relating to the sale of the O Street, Suburb G property and the purchase of the B Street, Town C property, the Respondent writes:
In the light of our agreement, we no longer see a need for the conference you have planned for both parties and their legal representatives in Parramatta on 23 November.
That is a conference that is referred to in exhibit R3 at page 21, being a letter from AK Law Firm to the Respondent of 14 November 2012 that refers to:
The proposed conference is postponed to:
Time: 10 am, Friday.
Date: 23 November 2012.
Place: Level 1, Family Court at Parramatta, 1 to 3 George Street, Parramatta.
The point of reference for the settlement discussion is our letter to you dated 9/11/2012, and then an amended balance sheet to be forwarded to you shortly. The issues to be determined to come to a just and equitable agreement and resolution of the distribution of the relationship assets …
AK Law Firm were as at 14 November 2012 the solicitors for the Applicant.
The Applicant asserts that there was a de facto relationship between the parties subsisting from about October 2008 until December 2013. There is strong inference in the correspondence just referred to of 14 November 2012 and 18 November 2012 that the parties were not in a subsisting de facto relationship and were continuing long-term attempts to settle property matters.
The Applicant submitted that the Respondent’s acceptance of jurisdiction of the Court, giving rise to the order granting leave under section 44(6) of the Family Law Act on 20 April 2018, resolved the issue of jurisdiction, and in support of that submission the Applicant relied upon a course of correspondence between the parties’ solicitors in February 2018, as the matter approached the listing for the “jurisdictional hearing” set down for 20 April 2018.
The course of correspondence was between Newnhams Solicitors for the Respondent and Di Lizio & Associates, solicitors for the Applicant.
It would seem that the first letter in the chain of correspondence is dated 16 February 2018 from Newnhams to Di Lizio, but that letter is not in evidence. It is referred to in the letter of 20 February 2018 from Di Lizio to Newnhams (exhibit A8):
We refer to your letter of 16 February 2018 wherein your client offers to dismiss the application in relation to the jurisdictional issues.
In this letter, the Applicant’s solicitors seek clarification, and they ask:
Is your client resiling from his previous position as to the date of the final separation being 22 November 2007. If so what is the date that will be alleged by your client as being the date of the final separation?
The response is in the letter of 26 February 2018 from Newnhams to Di Lizio (exhibit A5) in which the letter of 20 February 2018 is referenced and which states:
…
As detailed in our letter of 16 February 2018, our client has made an economic decision to not press the jurisdictional argument in light of the significant costs that have and will continue to be incurred in respect of the hearing on 20 April 2018. Our client will shortly provide a financial statement for your client’s review.
We are instructed that our client asserts that separation occurred shortly after the legislative amendments in relation to de facto relationships, that is, shortly after March 2009.
The next piece of correspondence in the chain is the letter of 27 February 2018 from Di Lizio to Newnhams (exhibit A9):
In light of the admission that your client now makes to the effect that he now:
“… asserts the separation occurred shortly after the legislative amendments in relation to de facto relationships, that is, shortly after March 2009.”
It would appear that, rather than the issue of costs being the motivation for your client’s proposal to dismiss the application in relation to jurisdiction, such a decision is motivated by the fact that his previous assertions as to the date of separation were incorrect. Whilst our client does not accept that the final separation took place “shortly after March 2009” the fact remains that our client has been put to the expense to meet application brought by your client, and that your client now concedes that such application was misconceived.
The response in the letter from Di Lizio to Newnhams of 27 February 2018 (exhibit A9) is at odds with the content of the letter from Newnhams to Di Lizio of 26 February 2018. It may have been of further assistance to have the letter from Newnhams to Di Lizio of 16 February 2018 in evidence, but the original copy of same was not tendered by either party.
The Respondent was cross-examined about this correspondence by Mr White for the Applicant.[15] After the Respondent’s attention had been taken to the letter from Newnhams of 26 February 2018, the following cross-examination occurred:
[15] Transcript 4 September 2020, page 130.
MR WHITE: The question is, is that a letter sent from your solicitor?
RESPONDENT: Yes. That was after I had had – I spent a bit of money to have a conference with a barrister to get his advice and it cost me $6000 to decide that we weren’t going to go ahead with the jurisdiction. I was upset at the time because I thought Newnhams, who have got experience in these matters, could have made that – advise me without having to spend 6000 on a barrister. I remember it very well.
MR WHITE: I take it from you, though, that you sought some advice, though, in relation to the issues in this letter and you recognised this letter because it was a letter that was shown to you before it was sent?
RESPONDENT: Yes.
MR WHITE: You instructed it to be sent?
RESPONDENT: Yes. We had to advise Di Lizio that we were going to pursue the jurisdictional thing.
MR WHITE: So – yes. The first paragraph says that it’s a letter with respect to the dismissal of this jurisdictional argument?
RESPONDENT: That’s right. Yes.
MR WHITE: So, in effect, you were trying to consent to the jurisdiction of this court?
RESPONDENT: Yes. I wanted to get the – I wanted to get this matter finalised.
MR WHITE: Yes. And then in the second paragraph it says:
As detailed in our letter of 16 February, the client has made an economic decision not to press the jurisdictional argument in light of the costs –
etcetera. But I would like to draw your attention to paragraph number 3:
We are instructed that our client – that separation occurred shortly after the legislative amendments in relation to de facto relationships, that is, shortly after March 2009.
RESPONDENT: That’s right.
MR WHITE: Well, the solicitors there have said that you instructed them that that’s when the relationship?
RESPONDENT: They told me that’s what I had to say in order to get this court to be able to hear the matter, and I said, “Fine. So let’s go ahead”, because I wanted to get it finalised.
MR WHITE: So you did instruct him to say that, to admit to that?
RESPONDENT: I said you – yes, you can – I agreed to this letter.
MR WHITE: I suggest that you then – you made an admission there that the relationship did end after March 2009?
RESPONDENT: Yes. Well – well, my solicitor did that on my behalf. Yes.
MR WHITE: And you haven’t put any evidence about this agreeing with the solicitor’s advice, have you?
RESPONDENT: But that’s what I said when we first started off today or yesterday.
MR WHITE: You’ve never sought to withdraw that admission? You haven’t sought the leave of the court to withdraw that admission?
RESPONDENT: No. I haven’t.
MR WHITE: I suggest the reason why you made – you did instruct your solicitor to say that is because it’s true?
RESPONDENT: You can suggest that all you wish.
MR WHITE: Well, you’ve admitted in the past that the relationship ended in 2009, haven’t you?
RESPONDENT: No.
MR WHITE: You never .. ?
RESPONDENT: I have – I have put this – this was specifically put in this letter so the court could continue, but I’ve always maintained – and you look my letters to [Ms AK] in 2012 – I’ve always maintained that the relationship finished in November 2007. Always. In all those letters. I – I – I have at least five letters and – and also the – documents – the financial agreement says that. The letters that we probably got from there from that go to [Ms AK], I’ve always maintained in was November 2007. This is the one letter that says – shortly after March – just so that we could get the court to hear it.
The letter referred to by the Respondent in that cross examination “to Ms AK” is a part of exhibit A11 on page 71, an undated letter from the Respondent to Ms AK, that references “Your letter of 12 September 2012 – Eden & Eden – Property Settlement” and bears a “received” stamp dated “19/9/12”. An extract of the numbered paragraphs read:
(3) Our separation was 22nd November 2007. This is the date agreed in the domestic relationship agreement prepared by [MS EDEN]’s previous solicitors and revised to final revision 7. I have nominated a different date.
(4) I returned to reside at [O Street, Suburb G] on 6th October 2008. This is the date also agreed in the domestic relationship agreement prepared by [MS EDEN’s] previous solicitors.
(5) I have not engaged in a “marital relationship” as “de facto partners” with [MS EDEN] since prior to leaving on 22nd November 2007.
(6) The bed is king size and definitely not marital. We sleep often at different times and separated by a wall of pillows. The reason I am in this bed is because the other five bedrooms in the house are occupied. Since November 2007 [MS EDEN] has been renting the other bedrooms (three or four of them) to overseas students at $275 a week each.
(7) [MS EDEN] has not declared this income to CSA when claiming child support from me for the past four years. This has significantly inflated my contributions.
(7) [sic] We have been living as “separated under the same roof” because of financial difficulty, because of a need to support our children through school, and because of an inability to agree about the separation of assets.
During the final day of the hearing on 15 October 2020, and in his written submissions on behalf of the Applicant, Mr White submitted that the relevant paragraphs in the letter from Newnhams to Di Lizio of 26 February 2018 about the date of separation amounted to an admission by the Respondent that came within rule 15.30 of the then-operational Federal Circuit Court Rules 2001 (Cth), and that the Respondent “should be prevented from departing from his admission in relation to the date of separation in accordance with rule 15.30”.
Mr White does concede in his written submissions “This rule in and of itself cannot give the court jurisdiction where it has none.”
Rule 15.30 of the Federal Circuit Court Rules 2001 (Cth), which was in force at the time of the hearing, is found in “Part 15 – Evidence – Division 15.5 – Admissions” and provides:
Rule 15.30 Admission
If an admission is made by a party, the court may, on the application of another party, make an order to which the party applying is entitled on the admission.
It is followed by Rule 15.31 – Notice to Admit Facts or Documents.
It may be that the “admission” referred to in Rule 15.30 is an admission consequent upon service of a notice to admit facts or documents. I regard the “admission” made in the correspondence referred to as a qualified admission by the Respondent, made not as his assertion of a fact, but as a device to overcome the expense of having to engage in, first, a hearing on jurisdiction and, if the court finds jurisdiction, thereafter a hearing on the merits of the section 90SM property adjustment proceedings.
The Applicant is not entitled to “an order … on the admission” other than an order confirming the Court’s jurisdiction, and if that Rule in the Court’s former Rules does vest a discretion in the Court to act upon such an admission as is represented in the correspondence, I would decline to do so on the basis of what I find to be the purpose of that “admission” – and I find that that purpose is to, in effect, by consent, vest the Court with jurisdiction that on all of the rest of the Respondent’s evidence it would not have.
Finally, there is exhibit A1, being a Statement of Claim issued in the Region AL Local Court in 2009 whereby the Respondent made claim on his former partner, Ms W, for a sum of $16,550 inclusive of interest, filing fees, and service fees, as a liquidator claim relating to moneys asserted by the Respondent to be owed to him by Ms W. Under the heading “Pleadings and Particulars” in the Statement of Claim, the Respondent states:
1 [I left my de facto partner of 19 years and two children on 22/11/2007 to live separately. At that time I was forming a relationship with the defendant. We worked in the same company. She asked for financial assistance to payout a court debt to her previous partner for an unpaid loan. $1074][16]
…
3 The Defendant told me her cousin was coming from [Country Q] in May 2009 and she wanted to stay with him. In May I rented a 3 bedroom unit to accommodate myself, the defendant and her cousin …
4 In September 2009 the defendant rented a two bedroom townhouse and the three of us moved there with the furniture and electrical goods.
5 Prior and after moving I was suffering more and more from guilt from leaving my children, financial stress from the global crisis, work stress, and stress from not being able to meet the defendant’s expectations. I left the defendant and returned to my children and previous partner on 6 October 2008.
6 Over Christmas 2008 I suffered a complete breakdown and was off work for six weeks …
[16] Square brackets in original.
The references to May 2009 and September 2009 are errors in the document and should be reference to 2008, as evidenced by the signature of the Respondent on the document, being dated 27 July 2009, and the affidavit verifying the document being completed by the Respondent and witnessed on an unspecified date in July 2009.
The Respondent was cross-examined about the document by Mr White. After being taken to the document the cross-examine was as follows:
MR WHITE: Now, firstly, do you recognise this document? Is this your statement of claim?
RESPONDENT: Yes, it is.
MR WHITE: At paragraph 1 you said there; “I left my de facto partner of 19 years and two children on 22.11.2007 to live separately.”?
RESPONDENT: Correct.
MR WHITE: Continuing: “At that time I was forming a relationship with the defendant.” And then if I take you down to paragraph 5, the last sentence of which says: “I left the defendant and returned to my children and previous partner on 6 October 2008.”?
RESPONDENT: Yes.
MR WHITE: Well, you resumed the relationship, didn’t you, and you put it there in black and white?
RESPONDENT: I physically returned. It doesn’t say I returned into a relationship with my partner. Where does it say that?
MR WHITE: Well, I say that the first paragraph says you were in a relationship there and then the last paragraphs say you returned to your children and your previous partner?
RESPONDENT: It doesn’t say I returned to a relationship at all. You’re just reading that into it.
MR WHITE: I suggest to you that paragraph 5 you are admitting that you resumed a relationship on 6 October 2008?
RESPONDENT: Not true. It doesn’t say that.
I have considered carefully the submissions made by Mr White on behalf of the Applicant in his written submissions under the heading “Evidence supporting a finding on the date of relationship breakdown” and have already referred to his submissions in relation to the “admission” as he terms it in the letter from Newnhams to Di Lizio of 26 February 2018 and his submissions on the effect of Rule 15.30 of the Federal Circuit Court Rules 2001 (Cth).
I have considered his further submission on that issue based upon the decision of the High Court in Aon Risk Service Australia Ltd v Australian National University (2009) 239 CLR 175 which he quotes as authority for the proposition that costs thrown away is not always ample compensation for wasted effort caused by a change in a party’s approach to litigation, considering also the interests of the public and the Court system at large. However, I cannot find that such authority would lead to a finding of jurisdiction where on the evidentiary basis in the hearing I make a finding that there is no jurisdiction.
The balance of Mr White’s carefully presented submissions in relation to the issue of jurisdiction contained in his written submissions have also been carefully considered by the Court.
FINDINGS
I find that the relevant statements in the statement of claim, being exhibit A1, do not constitute an assertion or admission by the Respondent that he was resuming a de facto relationship with the Applicant. On the Applicant’s own evidence, she did not resume a de facto relationship with the Respondent when he returned to live in the Suburb G property on about 6 October 2008 – she asserts that the resumption of the de facto relationship was some time after.
I find that the statements contained in the letter of 26 February 2018 from Newnham Solicitors to Di Lizio and Associates that the Respondent:
… has made an economic decision to not press the jurisdictional argument in light of the significant costs that have and will continue to be incurred in respect of the hearing on 2018.
and:
We are instructed that our client asserts that separation occurred shortly after the legislative amendments in relation to de facto relationships, that is shortly after March 2009.
are statements made by the Respondent to his solicitors solely upon the basis of seeking to “jump over” the jurisdictional issue and proceed with the settlement hearing and avoid the costs of ‘double hearing’. The Respondent has maintained in all of his sworn evidence on hearing and the exhibited documents upon which he relied on in hearing that final separation between the parties occurred on 22 November 2007.
I find that exhibit A3, being the domestic relationship agreement prepared by the Applicant’s solicitors on her instructions, that never completed between the parties, and the financial agreement pursuant to section 90UD of the Family Law Act prepared by the Respondent’s solicitor on his instructions, though never completed between the parties, both evidence a separation between the parties on 22 November 2007 and do not evidence any resumption of a de facto relation between them after that time.[17]
[17] Respondent’s affidavit, “attachment E”; exhibit 11.
Recital C to the domestic relationship agreement (exhibit A3) was adopted by the Respondent on an unknown date, but on all of the evidence it was at some time in 2009 by his execution of the agreement, witnessed by his then-solicitor, the document having been prepared by the Applicant’s solicitors. It recites that:
The parties agree to reside together whilst separated until the provisions of this agreement are effected.
The provision of that agreement were never effected.
I find that the Respondent’s answer to the Applicant’s then-solicitor’s question in the email from Ms M to the Respondent of 18 June 2009
But in the meantime, have you and [MS EDEN] made a decision on whether you have finally separated or know?
answered by the Respondent in his reply email of 18 June 2009 as:
[MS EDEN] and I have decided currently not to finally separate.
can be interpreted either as:
(1)The Respondent affirming that the parties were at that time (June 2009) in a relationship, though what form of relationship is not made clear on either document as they had not “finally separated”; or
(2)In line with the draft domestic relationship agreement under discussion in those emails as the Respondent confirming that the parties did not intend to divide their assets and “finally separate” by ‘going their separate ways entirely’[18] and intended to keep residing together at the Suburb G property as separated in terms of their former de facto relationship and under the same roof.
[18] This is not a quote and is an idiomatic only.
I consider that a crucial part of the evidence in this matter is the evidence relating to the Applicant’s receipt of child support payments under assessment through the relevant legislation, paid to her by the Respondent throughout the period from 31 July 2008 to 28 March 2014 (shortly before the youngest child [Y] turned 18 years of age in 2014).
As discussed between myself and Mr White during the hearing, the relevant child support legislation provides that if there is an assessment for child support and the liable parent and the relevant parent reconciled for a period of six months, then such reconciliation for six months becomes a terminating event and liability for child support payment ceases. There was no notification by the Applicant to the Child Support Agency that she had reconciled for any period of time with the Respondent.
The Respondent gave evidence in paragraph 26 of his trial affidavit that he was “present on a number of occasions up to 2013 when I helped the Applicant complete Centrelink forms and on each occasion she put the date of our separation as November 2007”. The Respondent was not cross-examined in relation to that evidence, no objection was taken to that evidence.
In earlier times a “principle” was followed in family law proceedings stemming from In the Marriage of Elias (1977) FLC 90-267, also found in In the Marriage of Dawes (1989) 98 FLR 375 where the Full Court comprising Lindenmayer, Strauss, and Cohen JJ said:
…a party to proceedings in this Court cannot be allowed to have his cake and eat it too. If, during the course of the marriage, the party represents to the Commissioner of Taxation that his or her spouse is a partner in a business operated by that party, or is a bonafide employee of such a business and is paid a salary as such, that party cannot be heard to say, in subsequent proceedings in this Court, that his or her spouse was not, in fact, a partner or was not, in fact, a bonafide employee, as the case may be. That point was made by Goldstein J in Elias & Elias (1977) FLC 90-267, drawing upon the authority of such cases as Tinker v Tinker (1970) 2 WLR 331; Gascoigne & Gascoigne (1918) 1 KB 223; and In Re Emery’s Investment Trusts (1959) Ch 410. We think that that is a very sound principle, and its enunciation by Goldstein J in Elias & Elias (supra) was given at least tacit approval by the Full Court in Lee Steere & Lee Steere (1985) FLC 91-626 at page 80,078. We are aware that it has received more explicit approval by other judges at first instance in unreported cases.[19]
[19] In the Marriage of Dawes (1989) 98 FLR 375, 390.
However, in Nelson v Nelson (1995) 184 CLR 538, the High Court of Australia, particularly in the judgment of McHugh J at 548, found that such a rigid application of such principle should not be so rigidly applied.
In JPDJ v DADJ [2005] FMCAfam 86 Ryan FM (as her Honour then was) noted at paragraph 44 that:
[44] … In the Marriage of Jordan (1997) FLC 92-736 Chisholm J considered the Elias principle. Writing extra-judicially in an article titled, “Exclusion of Evidence Inconsistent with earlier statement: the rise and fall of the Elias principle” Chisholm J argued that although such a principal seems to be asserted in a number of Family Court decisions, it is inconsistent with High Court authority [Nelson] and does not represent the law.
In paragraph 46, Ryan FM (as her Honour then was) considered the effect of the High Court’s decision in Nelson:
[46] The conclusion reached by Chisholm J is compelling. He writes:
If the argument in this paper is accepted, the Elias line of authorities is wrong insofar as it suggests that there is a principle [that] apart from estoppel the court may or must prevent a party from leading evidence of a proposition that is inconsistent with an earlier statement made to a third party. It follows that in property cases the court will consider all the evidence and make findings about the property of the parties and about their contributions. Earlier inconsistent statements of the kind that feature in the Elias cases will of course be relevant to this fact finding exercise. The court will have to consider whether the earlier statement or the later statement is more likely to be true. Further, the contradiction will be taken into account in determining what confidence the court will have in that party’s evidence generally. That all of this falls into the ordinary process of fact finding: no evidence would be excluded, and there would be no presumptions that one or other of the inconsistent statements is more likely to be true.
I accept that JPDJ v DADJ accurately states the current law in relation to the Elias principle. I have been greatly assisted by the same finding may be Judge Riley in Tang & Vo [2016] FCCA 880.
Accordingly, there is no application of a rigid principle, as in the old Elias principle, that the Applicant’s holding out to the child support agency from 31 July 2008 to 28 March 2018 that she and the Respondent were separated and had at no time during that period reconciled for a period of six months does not automatically debar her from asserting before this Court, as she does, the contrary.
However, I find that evidence in relation to the child support payments to be entirely consistent with the Respondent’s case, entirely inconsistent with the Applicant’s case, and I find her explanation for the uninterrupted receipt by her, through the Child Support Agency, of child support as assessed from the Respondent past 28 February 2009 to be far less than convincing.
When it comes to making a finding as to which parties’ evidence is preferred, I find that the evidence of the Respondent is preferred to that of the Applicant.
I make this finding on the basis of my observation of each of the parties in the witness box under cross-examination, but most particularly in their manner of responding in cross-examination. I found the Applicant to repeatedly prevaricate in giving her answers, obfuscating the issue at hand in her answers, and effecting a confused state and asserting that she did not understand the question in the pursuit of avoiding giving answers at any time they may have been to the detriment of her case. In making this assessment, I have taken fully into account the Applicant’s comparatively lesser command of English than the Respondent’s, and I find that this comparative difficulty did not meaningfully contribute to the general evasiveness of her answers.
By comparison, I found the Respondent to be most forthright in the giving of his evidence and prepared to make such concessions against interest as were plain on the evidence.
In considering the question of the credit of the parties and evaluating which party’s evidence I would prefer where they conflict, I have given close attention to Mr White’s written submissions and particularly as they go to the evidence in the final hearing about the Commonwealth Bank compensation payments received by the Respondent, reflected against his obligation to make full and frank financial disclosure, and I find that taking all of that fully into account I still prefer the evidence of the Respondent to that of the Applicant where same conflicts.
Taking all of the evidence that I have reviewed in these Reasons into account, I find on the balance of probabilities that the parties were in a de facto relationship between some time in 1989, commencing with co-habitation in City AM, and concluding on 22 November 2007;
I find that the parties at no time thereafter resumed a de facto relationship within the meaning of that term in section 4AA of the Family Law Act, in that at no time after 22 November 2007 did the Applicant and the Respondent have a relationship as a couple living together on a genuine domestic basis.
In making these finding, I remain acutely aware of the evidence going to the nature and extent of their common residence from October 2008 until either December 2012 or later into 2013, the degree of financial dependence or interdependence between them during that period, their ownership, use and acquisition of property during that period, and their care and support of children.
I have no evidence in relation to the reputation of public aspects of any asserted relationship between the parties between October 2008 and December 2013 and I accept the evidence of the Respondent over that of the Applicant in relation to any sexual relationship between them during that period in that I accept that there was none.
I accept that during the relevant period neither party had any degree of mutual commitment to a shared life.
Accordingly, there is no de facto relationship between the parties that occurs after 1 March 2009. The Court therefore does not have jurisdiction to entertain the Applicant’s application for property adjustment orders under section 90SM of the Family Law Act and her application must be dismissed.
I remain acutely aware of the course of correspondence between the parties’ solicitors in February 2018 and the position of affairs represented to the Court by the parties on 20 April 2018, which led on the proceedings continuing in the Court until the final hearing, and then going to full final hearing on 3 September 2020, 4 September 2020, and 15 October 2020, rather than the Respondent maintaining his evidentiary position as it was prior to that correspondence in February of 2018 and at all relevant times on an evidentiary basis after 20 April 2018 that the final separation occurred on 22 November 2017 without any resumption of a de facto relationship thereafter between the parties.
I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 8 July 2022
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