FAIRBAIRN & RADECKI
[2020] FCCA 1556
•15 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIRBAIRN & RADECKI | [2020] FCCA 1556 |
| Catchwords: FAMILY LAW – De facto relationship – property settlement application – jurisdictional issue as to whether there has been a “breakdown” of the relationship in circumstances where wife has lost capacity, is residing in an aged care facility and the NSW Trustee and Guardian bring the proceedings on her behalf – husband asserts that relationship is still on foot – consideration of the actions of the parties and the test to be applied. |
| Legislation: Family Law Act 1975, ss.4AA, 48 |
| Cases cited: Aitken v Deakin [2010] FMCAfam 35 Cadman & Hallett [2013] FamCA 819 Dobson v Seabrook [2015] FCCA 1503 Falk & Falk (1977) FLC 90-247 Hibberson & George (1989) 12 Fam LR 725 Jonah v White (2011) 45 Fam LR 460 Lynam v Director General of Social Security (1983) 52 ALR 128 Pavey & Pavey (1976) FLC 90-051 Price & Underwood [2008] FamCAFC 46 S & B [2004] QCA 449 Sinclair v Whittaker (2013) FLC 93-551 Stanford & Stanford (2012) FLC 93-518 Teh & Muir [2017] FamCA 138 Todd & Todd (No. 2) (1976) FLC 90-008 |
| Applicant: | MS FAIRBAIRN |
| Respondent: | MR RADECKI |
| File Number: | NCC 2636 of 2019 |
| Judgment of: | Judge Betts |
| Hearing date: | 5 March 2020 |
| Date of Last Submission: | 5 March 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 15 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Powe & White |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Self-represented |
ORDERS
Pursuant to section 90RD of the Family Law Act, the court declares that the de facto relationship between the parties had broken down by no later than 25 May 2018.
The Wife’s costs are reserved.
The proceedings are adjourned to 4 August 2020 at 9.30am for directions.
IT IS NOTED that publication of this judgment under the pseudonym Fairbairn & Radecki is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2636 of 2019
| MS FAIRBAIRN |
Applicant
And
| MR RADECKI |
Respondent
REASONS FOR JUDGMENT
Overview:
In 2005/2006, Ms Fairbairn (“the Wife”) and Mr Radecki (“the Husband”) entered into a de facto relationship.
The parties were each in their fifties. The Wife was a widow living on a farm at Town A formerly owned jointly with her late husband. She had two (2) adult children.
The Husband owned two real properties, one being his former family home and the other an investment property. He had four (4) adult children from a previous marriage.
The parties remained living in the Town A property. By 2015 the Wife began a cognitive decline, later diagnosed with a progressive form of dementia. In November 2017 the Wife was admitted to hospital after a fall at home. She has since been placed into an aged care facility as she has high needs which require ongoing nursing care and support.
The Husband has remained living in the Town A property.
The ongoing management of the Wife’s personal and financial affairs has been highly conflictual. Put shortly, the Husband has an acrimonious relationship with the Wife’s children and they are in conflict as to how the Wife’s needs should be met. They repeatedly found themselves embroiled in litigation in the NSW Civil and Administrative Tribunal (NCAT) – the upshot of which is that the NSW Trustee & Guardian (TAG) have been appointed to act as the Wife’s guardian and financial manager.
TAG have determined to sell the Wife’s only substantial asset – the Town A property valued at around $700,000 - so that the Wife can pay a refundable accommodation deposit (RAD) of $370,000 to the aged care facility she is living in. Paying a RAD will remove the daily accommodation payment (DAP) presently levied on the Wife’s estate, saving her estate around $21,000 per annum. Selling the Town A property will also enable TAG to discharge the modest mortgage still encumbering the property, which is not presently being paid. It would clear any future liabilities for Council Rates and the like and free up capital some of which could potentially be applied towards making the Wife more comfortable.[1]
[1] For instance providing her with therapeutic goods and services
The Husband disagrees with TAG’s decision to sell the Town A property and pay a RAD. He generally resents their involvement in the Wife’s financial affairs. He will not voluntarily move out of the Town A property. He says that his continuing to live there is consistent with the Wife’s wishes.
If the relationship between the parties is still on foot, then TAG can bring civil proceedings in the NSW State Courts to seek the Husband’s eviction from the Town A property. But TAG contend that there has been a breakdown of the de facto relationship, and so have commenced proceedings in this court seeking property settlement orders – including a sale of the property.
The Husband denies that there has been a breakdown of the relationship. If he is correct, then the court has no jurisdiction. As the applicant for orders, TAG concedes that it carries the onus of proving the breakdown necessary to enliven jurisdiction: Jonah v White (2011) 45 Fam LR 460.
I therefore need to determine that jurisdictional issue as a threshold question. Given the Wife’s incapacity I have to do so without any direct evidence from her.
De facto relationships – the law:
A “de facto relationship” is statutorily defined in s 4AA of the Family Law Act which relevantly provides as follows:
SECTION 4AA DE FACTO RELATIONSHIPS
Meaning of de facto relationship
4AA(1) A person is in a de facto relationship with another person if:
(a)…
(b)…
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
4AA(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their ;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
4AA(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
4AA(4) A 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.
4AA(5) …
4AA(6) …
In Jonah v White (2012) FLC 93-522, the Full Court held that the touchstone for the determination of whether a de facto relationship exists is and remains the finding that the parties to it are a “couple living together on a genuine domestic basis”. [2] This is the seminal test to which the various “circumstances” prescribed in s 4AA(2) are all directed. Importantly, a court’s discussion and consideration of particular circumstances found to be relevant in any one case should not be seen as giving rise to binding principles of law or as substituting for the words of the statute: Sinclair v Whittaker (2013) FLC 93-551.[3]
[2] Joint judgment of May, Strickland & Ainslie-Wallace JJ reported at 86,682
[3] Paragraph 94 of the joint judgment of Bryant CJ, Thackray & Aldridge JJ reported at 87,398
In Sinclair (supra), the Full Court cited with approval the observations of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at page 131:
… Each element of a relationship that draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitude and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
When is there a “breakdown” of a de facto relationship?
Section 4 of the Act provides that a “breakdown” of a de facto relationship excludes a breakdown by reason of death. Beyond that, the statute does not assist.
By way of analogy, s 48 of the Act provides that in cases of married couples, a spouse may apply for a divorce only where there has been an “irretrievable breakdown” of the marriage. This is established by proving that the parties have “separated”, that they have thereafter lived separately and apart for a continuous period of at least 12 months, and that there is not a reasonable likelihood of cohabitation being resumed.
In s 48, the concepts of “separation” and “breakdown” go hand in hand. Case law seems to use the two expressions interchangeably.
In Todd & Todd (No. 2) (1976) FLC 90-008, Watson J held that:
In my view, “separation” means more than physical separation – it involves destruction of the marital relationship (the consortium vitae). Separation can occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.[4]
[4] At 75,709
In Pavey & Pavey (1976) FLC 90-051, the Full Court [5] approved of the above test, save that, to be consistent with the wording with the Act, they would use the term “breakdown” of the marital relationship rather than “destruction”.[6] The Full Court also highlighted that the constituent elements of the marriage relationship, and the significance of each element, vary from couple to couple. In determining separation it is necessary to compare and contrast the state of the marital relationship before and after the alleged separation.
[5] Evatt CJ, Demack & Watson JJ
[6] At 75,211
In Falk & Falk (1977) FLC 90-247 [7] the Full Court held that:
Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.
In some cases some fairly dramatic event can be pointed to after which there has been such a significant alteration in the nature of the relationship between the parties…
In other cases which may be more typical, no such dramatic event can be pointed to. The various components of the marriage disappear one by one with the passage of time…
[7] Per Evatt CJ, Fogarty & Bulley JJ at 76,333
In Price & Underwood [2008] FamCAFC 46, the Full Court[8] applied Falk & Falk, concluding that the husband’s failure to communicate his alleged intention to separate from the wife was fatal to his case that there had been a separation.
[8] May, Boland and Ryan JJ
The s 48 authorities have since been carried over to de facto relationships under s 4AA.
This seems to have first occurred in Aitken v Deakin [2010] FMCAfam 35 wherein McGuire FM [9] said (omitting footnotes):
[9] As his Honour then was
8.In making my determination counsel for both parties agree that
I should be guided by the early decisions of the Family Court
of Australia in respect of separation under the one roof in relation
to divorce applications.9.Those authorities make it clear that there are three elements
of separation in a legal sense. They are:a)The development of an intention to separate. That intention need not be mutual.
b)The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c) Some form of action upon the determination to separate.
10.I am of the view that the test of the element of “communication” is an objective one.
11.…
12.The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken, it should be unequivocal, unconditional and unambiguous.
In Cadman & Hallett [2013] FamCA 819, Rees J reviewed the authorities on s 48, concluding that:
The Full Court [in Price & Underwood…] stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.
Thus the authorities establish that in order to establish that a relationship has “broken down” for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.[10]
[10] Paras 133 & 134 of the reasons for judgment
This decision went on appeal to the Full Court, reported as Cadman & Hallett (2014) FLC 93-603.[11] The Full Court cited these statements by Rees J without adverse comment.
[11] Strickland, Ainslie-Wallace and Aldridge JJ
In Dobson v Seabrook [2015] FCCA 1503, Jarrett J noted that there appeared to be some controversy around the requirement that an intention to separate must be expressly “communicated” to the other party.
His Honour referred to the Queensland Court of Appeal decision in S & B [2004] QCA 449, in which Dutney J (with whom McPherson and Williams JJ agreed) cited with approval the NSW Court of Appeal decision in Hibberson & George (1989) 12 Fam LR 725. In that case, Mahoney JA (with whom Hope and McHugh JJA agreed) said:
…The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases…[12]
[12] At 740
Applying this passage, Dutney J went on to hold in S & B that:
…[A] de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate that intention to the other necessary providing the party that is desirous of ending the relationship acts on his or her decision... [13]
[13] Para 48 of Dutney J’s Reasons
Jarrett J ultimately reconciled those authorities with Aitken v Deakin:
Acting on an intention to bring a de facto relationship to an end must necessarily mean that the intention is communicated to the other party. It need not be communicated by express words, but might be communicated by acts which are unequivocally indicative of and consistent only with cessation of the relationship.[14]
[14] Para 133 of his Honour’s Reasons
With respect, Jarrett J’s observations are consistent with human experience; actions can speak as loudly as words.
In Aitken v Deakin, McGuire FM noted:
13.Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey at [75,214]:
…it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
In S & B, Williams JA said that:
Virtually by definition all de facto relationships will not be precisely the same and in consequence there can be no single test to determine if, and when, such a relationship has ceased to exist.
By definition, the actions of a party or parties which are said to be unequivocally indicative of and consistent only with, the cessation of the de facto relationship will vary from case to case. As the Full Court emphasised in Sinclair v Whittaker, every relationship is different. And as a marriage relies upon the continued existence of the consortium vitae, so too a de facto relationship relies upon the parties continuing to live as a couple on a genuine domestic basis as required by s 4AA.
These proceedings:
TAG commenced these proceedings on the Wife’s behalf on 22 August 2019. The Husband filed a Response on 2 October 2019.
The proceedings have been given priority and, after some interlocutory debates concerning subpoenas and disclosure, the matter was able to proceed to final hearing on 5 March 2020.
At trial, TAG relied upon:
(a)a Case Outline filed 03/03/20;
(b)List of objections to the Husband’s trial affidavit filed 03/03/20;
(c)Affidavit of Ms B, a legal officer employed by TAG, filed 31/01/20;
(d)Affidavit of the Wife’s adult daughter, Ms C, filed 22/01/20;
(e)Affidavit of the Wife’s adult son, Mr D, filed 21/02/20.
The Husband relied upon:
(a)a Case Outline filed 04/03/20;[15]
(b)Response filed 02/10/19;
(c)Affidavit of the Husband filed 20/01/20;
(d)two documentary exhibits.
[15] There were two Case Outlines filed on the same day, one being 9 pages and other 12. The 12 page document is the one he relied upon.
At all times, TAG has had the benefit of legal representation, including experienced counsel at trial. The Husband has been self-represented. This was a voluntary choice by him as he has significant assets and in my view he could well afford representation.
Although an intelligent and articulate man, the Husband’s lack of legal representation has been unhelpful.
The Husband misunderstood the law. His original Response had correctly sought dismissal of the application on the basis that there had not been a relationship breakdown. But in the leadup to trial, he filed an Amended Response in which he sought orders effectively that either:
(a)the Town A property be transferred to him and that he pay the DAP for the Wife until she died, with TAG to submit the relevant accounts to him for approval;
or
(b)alternatively that he be granted a life estate in respect of the Town A property, that he be appointed the Wife’s financial manager and meet her care costs;
and in either case he proposed that upon his own death, his estate pay a cash sum of $700,000 to the Wife’s estate for distribution in accordance with her will. That figure represents the current valuation of the Town A property.
His proposed orders were effectively designed to secure his ongoing occupancy of the Town A property, provide for the Wife’s accommodation fees to be paid by way of DAP and largely sideline TAG. Such orders would effectively reverse the NCAT decisions that had gone against him.
Having regard to the orders sought in the Amended Response, TAG’s counsel submitted at trial that the Husband must now be conceding the fact of separation. Such a conclusion was logical - but when I raised this issue with the Husband it was immediately apparent that he had misunderstood the effect of the High Court’s decision in Stanford.[16] In particular, he thought that he could seek a property settlement order even if the parties were not separated. He did not appreciate the legal difference in that respect between a married couple and a de facto couple.
[16] (2012) FLC 93-518
I could not hold the Husband to that error. In the interests of justice I therefore permitted him to rely upon his original Response. TAG’s counsel appropriately raised no objection.
The Husband’s trial affidavit had also been prepared without legal assistance; as a result it contained many irrelevancies. It focussed heavily on TAG’s perceived failings as the Wife’s financial administrator. It made general and largely sweeping statements about the nature of the parties’ relationship.
TAG’s counsel objected to the overwhelming bulk of the Husband’s affidavit on the basis that it was strictly inadmissible or should otherwise be struck out. At trial, TAG’s counsel did not formally press the objections per se. Instead he pointed to the objections to support TAG’s contention that the affidavit should simply be given no weight.
TAG’s counsel elected not to cross-examine the Husband on his affidavit.
Relevant relationship history:
To understand TAG’s case, it is necessary to set out the history of the relationship so that the more recent actions of the parties – which are said to show a separation - can be seen in their proper context.
The Husband and the Wife first met through work in the 1990s. They worked together on a large project and thereafter remained in touch and would have the occasional coffee as friends, at times joined by Wife’s daughter Ms C or the Husband’s daughter Ms E.
The Wife’s husband passed away in 2001. Thereafter she was living alone at the Town A property, which inferentially required quite a bit of maintenance.
In 2004 the Wife appointed her two adult children Ms C and Mr D to be her Enduring Attorneys and Guardians.[17] She also executed a Will which appointed them executors and bequeathed them her estate.[18]
[17] Afft of Ms B, para 13(e)
[18] Afft of Ms B, para 17(b) & ann “K
By way of background, the Wife’s daughter Ms C works as a professional and at all material times she has lived in the same general locale. She would see the Wife regularly. The Wife’s son Mr D and his wife have been based in Melbourne. Mr D would see the Wife every three to six months – either when he visited her in the Region F or when she visited him in Melbourne.
In or about late 2005, the Husband and the Wife went for a coffee together and on that occasion she invited him to move into the Town A property. He took up her invitation, initially living in a separate room of her home and paying board to the Wife.
Their de facto relationship commenced not long after. The Husband started attending the Wife’s family dinners. He also began accompanying the Wife on some of her visits to Melbourne to visit Mr D.
The parties appear to have had a very practical and supportive relationship. In annexure “5” to the Husband’s affidavit, he gives general evidence going to the nature of their relationship over the years, which includes:
a)that the parties enjoyed each other’s company and enjoyed going on outings together. This included both interstate and overseas travel;
b)that the Husband assisted the Wife with general maintenance and repair of the Town A property, including maintaining the house as well as the bushland walking tracks and fences;
c)that the Husband assisted the Wife with Centrelink applications and lodgement of tax returns;
d)that when the Wife’s parents were ill, the Husband accompanied her on visits and he assisted the Wife with the clean up and sale of their home after they passed away.
TAG objected to the contents of that annexure on the basis that it is allegedly “conclusionary replete with submissions, conclusions and generalisations and has no relevance to issues to be determined.” While it is true that the annexure contains broad and sweeping statements, it does give the court a general picture of the relationship and in that sense provides some relevant context.
One significant feature of the parties’ relationship was that they always agreed to keep their assets strictly separate. This was formalised by way of two written agreements.
In 2010 the parties executed a “Domestic Relationship Agreement (Cohabitation Agreement)”. The agreement recorded that the parties were in a de facto relationship and that they expressly agreed to quarantine their respective property. Relevantly, the Town A property was to remain the Wife’s absolutely.[19]
[19] Afft of Ms B, paras 22 - 26 & ann “L”
By 2012 - 2014, Ms C had begun to observe some tension between the parties. The Husband stopped coming to their family dinners. It is common ground that these tensions did not result in a separation. But by this stage there had clearly been something of a “falling out” between the Husband and the Wife’s children and in my view the Wife had become somewhat “wedged” in the middle. It is unsurprising that in those circumstances she might have complained about the Husband’s behaviour when talking to her children and vice versa.
Unfortunately, after an overseas trip with the Husband in 2015, the Wife began to suffer a fairly rapid cognitive decline. Initially this was characterised by periods of confusion but over time her condition steadily worsened. She stopped work later that year.
At the Husband’s instigation, in 2015 the parties executed another “Domestic Relationship Agreement (Cohabitation Agreement)”. The agreement updated the earlier agreement by specifically quarantining an additional real property that the Husband had by then acquired in his own name.[20]
[20] Afft of Ms B, paras 28 – 32 & ann “M”
In 2016, the wife executed an updated Will. Her son and daughter remained executors and primary beneficiaries – but she specifically provided that the Husband be allowed six (6) months to vacate the Town A property in the event of her death.[21]
[21] Afft of Ms B, para 17(a) & ann “J”
By mid-2016 the Wife was experiencing frank visual hallucinations. She was depressed and having problems with her memory. She started complaining to Ms C about the Husband “telling her what to do all the time”. But as her condition worsened, the Wife probably needed increasing direction to attend to her usual day-to-day tasks. Moreover it is common ground that the relationship remained on foot notwithstanding the Wife’s complaints.[22]
[22] As conceded in the last two sentences of para 34 of Ms C’s afft
During 2016, the Husband arranged to go by himself on a 3 month overseas trip in April 2017. The Wife spoke to Ms C about the Husband’s trip. They discussed the Wife going into holiday-style apartment accommodation while the Husband was away, at a place close by to Ms C. The Wife at that stage expressed a desire to Ms C to move out of the home sooner rather than later.
But the Wife did not in fact move out, nor did she arrange any other accommodation or make any attempt to sell the Town A property. She and the Husband simply remained living there.
On 31 January 2017, the Wife’s treating specialist thought she had dementia with clear Parkinsonian features and a shuffling gait. The specialist recorded that:
She is currently living with her partner but there are concerns as he is going overseas for a couple of months later in the year…[23]
[23] Report of Dr G to the Wife’s GP dated 31/01/17; ann “E” to afft of Ms B
On 23 February 2017, the Wife undertook an ACAT assessment at home. The Husband was present. There was no attempt to administer the K10 questionnaire to the Wife as she was “unable to answer questions independently.” The issues specifically identified by the ACAT team included “changes to memory and thinking, safety concerns in the home, speech difficulties, carer strain.”
The upshot was that the Wife was assessed as eligible for a low level home care package.[24]
[24] Letter from Region F Health to the Wife’s GP dated 22/02/17; ann “G” to afft of Ms B
Ominously, there was a proverbial “tug-of-war” between the Husband and Ms C at this time concerning the management of the Wife’s internet banking. The Husband had been attending to this on the Wife’s behalf for some time, but the Wife became frustrated as she no longer knew the passwords herself. She told Ms C she wanted her to take over the banking. Ms C communicated this to the Husband. He indicated a willingness to show her what to do, while making clear that he considered himself the Wife’s full-time financial manager and that Ms C should not be doing so.
The Wife soon rang Ms C to tell her that the Husband was pressuring her not to change things - and that he was “right”.
The course of the relationship from April 2017 (when TAG submits that it would be open to find that separation first occurred):
In April 2017, the Husband went overseas for his 3 month holiday.
To be sure, the Wife’s health was quite precarious when the Husband went away. She was anxious about taking her medication and making sure she took the right dose. Her anxiety was understandable.
But in his absence the Husband arranged for his daughter Ms E to move in and care for the Wife. The Wife went along with that.
While the Husband was away, Ms C assisted her to de-clutter the garage at the Town A property. On one occasion the Wife complained bitterly about the Husband, accusing him of controlling everything, taking her for a ride, saying he was on a “bloody good wicket and I’m a bloody idiot.” She said that:
“When he gets back, things are going to change. I am going to give him his marching orders.”
Ms C observed that at that stage the parties occupied separate rooms, with each having their own personal belongings in their respective room.
Mr D visited the home for about three days at the start of April. The Wife also complained to him about the Husband “taking her for a ride” and trying to get all her money. On several occasions she said to him that “When he comes home, I will be getting him to pack his bag. I have to get him out.” His response was to tell her not to make any hasty decisions but to think about things. [25] He then returned to Melbourne but remained in regular telephone contact with her.
[25] Afft of Mr D, para 19
On 13 May 2017, the Wife was taken to the Emergency Department of the Town H Hospital, with vomiting thought to be secondary to her medication. Their notes recorded that the Wife “lives at home with partner who is carer…currently looked after by partner’s daughter while partner away on holiday.”[26]
[26] Town H Hospital Discharge Referral; ann “F” to afft of Ms B
This appears to be the same event described in Ms C’s affidavit when she says the Wife accidentally overdosed after Ms E had failed to return home, leaving the Wife alone at the Town A property.[27]
[27] Ms C deposes that this event occurred in June 2017
Ms C moved in with the Wife after this. She also arranged for the Wife to have some further medical assessments.
Around that timeframe, the Wife told Mr D over the telephone that she had needed to sell the house and to get the Husband out. At her request, he arranged for a valuer to inspect the property. On 23 May 2017 the valuer provided a written valuation report.
Sadly, the Wife’s health was by then in steep decline. Ms C’s evidence is that the Wife’s thinking was disorientated and she was experiencing hallucinations. She would oscillate between raging anger towards the Husband for leaving her, hating him and wanting him out of the house, and missing him.
By this time I consider that the Wife’s capacity to make considered long-term decisions was largely, if not completely, absent. This included making decisions as to sale of the home, moving into alternative accommodation, or ending the relationship.
On 22 June 2017, the Wife’s GP advised the Wife’s solicitors, Emery Partners, that the time had come to enact the Enduring Power of Attorney.[28] At the Wife’s request her children, in reliance upon that Enduring Power of Attorney, changed the Wife’s internet banking passwords and undertook some banking for her. For her protection, they stopped the Wife’s own access to banking.
[28] Note from Wife’s GP dated 22/06/17; ann “H” to afft of Ms B
They informed the Husband. They also said that the Wife was “missing him” and that two (2) weeks after he returned to Australia they all needed to sit down and talk about her future.
On 29 June 2017, the Wife had another ACAT assessment. In just five (5) months since the last assessment, her condition had so deteriorated that she now qualified for full-time placement into an aged care facility.
At that stage, according to the Wife’s treating specialist:
“Altogether the severity of the above cognitive deficits, hallucinations, and fluctuating alertness and confusion (at times she has the capacity to appear lucid and unaffected) would in our opinion imply a lack of capacity to make decisions about her care and placement, as well as decisions about finances. It also makes her vulnerable to social and financial abuse.” [29]
[29] Report of Dr G dated 19/12/17; ann “J” to afft of Ms C
The Husband returned to Australia on or about June 2017, very unhappy with what the Wife’s children had done in his absence. Upon his return, Ms C promptly moved out again.
The Wife did not vacate the Town A property. Nor is there any evidence that she gave the Husband “his marching orders”.
On the contrary, within a matter of days the Wife telephoned her children, accusing them of taking her money, selling her house, and putting her into an institution.[30] When Ms C tried to explain, the Wife was confused and could not remember the recent ACAT assessment.
[30] Para 26 of NCAT’s Reasons for Decision; ann “B” to afft of Ms B; afft of Ms C para 61
The Husband’s evidence is that it was the children’s actions while he was away that had distressed the Wife.[31] In my view, this was not so at the time. The upset on the Wife’s part only arose after the Husband returned and spoke to her.
[31] Husband’s afft, ann “4”, page 3
I am satisfied that the Husband was greatly offended by the actions of the Wife’s children and that he would have made the Wife well aware of it, in turn upsetting her. The Husband is a strong-willed person; NCAT and TAG have observed this first hand. In my view the Husband effectively manipulated the Wife into making these emotionally fraught calls to her children when she was in a vulnerable and confused state.
This was followed by an email from the Husband to the Wife’s children of 5 July 2017 advising them that the Wife wanted to suspend the Enduring Power of Attorney in their favour. Various short letters were annexed – all handwritten by the Husband and signed by the Wife. The letters said that the Wife loved her children unconditionally but that their behaviour and actions in recent times had caused her concern. She said she wanted them to remain involved in decision-making for her but that she expected them to support the Husband in his ongoing good care of her.
Just 5 days after this email, the Wife’s treating specialist assessed that she was suffering from moderate dementia. [32]
[32] Para 30 of NCAT’s Reasons for Decision; ann “B” to afft of Ms B
On 18 July 2017, the Husband drove the Wife to the Town H Courthouse. There she executed a formal revocation of the Enduring Powers of Attorney in favour of her children, instead appointing the Husband and her brother Mr J as Enduring Attorneys. The documents were all witnessed by the Court Registrar, who was not informed about the Wife’s dementia or provided with any medical reports.[33] Ms C’s name was spelt incorrectly in the documents. Moreover, the revocation stated that the Enduring Powers of Attorney had been executed in 2016 when in fact they had been executed in 2004.
[33] Para 35 of NCAT’s Reasons for Decision; ann “B” to afft of Ms B
Ms C and Mr D challenged the validity of the 18 July 2017 documents in NCAT.
Thus began a number of hotly-contested NCAT hearings and reviews.
The Wife’s hospitalisation in November 2017 & updated Will:
In November 2017 the Wife fell over at home and had to be hospitalised.
While in hospital on 29 November 2017, the Husband arranged for a solicitor to attend upon the Wife to take her instructions for an updated Will. The Will was drawn by them and signed by the Wife. It was much more favourable to the Husband than the 2016 Will as it now conferred a life estate upon the Husband in respect of the Town A property. Notably, Ms C and Mr D were no longer Executors; instead she appointed her brother and her daughter-in-law to those roles.
The solicitors who drew the Will had not previously been retained by the Wife. They were paid $1,981 in professional fees, which with respect seems very high for what is a relatively straightforward document. The Husband arranged payment from the Wife’s bank account.
Husband purchases a wheelchair-accessible vehicle for the Wife in her name:
In December 2017 the Husband used the Wife’s funds to purchase a van, which has a wheelchair lift. He registered it in the Wife’s name and began using it to transport her. When TAG suggested selling it, he vigorously opposed that course. (To be fair to him, Ms C agreed in the witness box that there was a benefit to the Wife in having a wheelchair-accessible vehicle available to her).
Centrelink:
On 15 December 2017 the Husband filled out a Centrelink income and assets assessment form, nominating himself as the Wife’s “spouse”. But he omitted to answer any questions relating to his own assets or income. TAG had to follow him up to request the missing information.
NCAT hearings / Wife placed into aged care:
In January 2018, NCAT revoked the Wife’s July 2017 Enduring Power of Attorney and appointed the Public Guardian to make health and welfare decisions on behalf of the Wife. The question of who should be the Wife’s financial manager was adjourned to a later hearing.
That same month, the Wife was discharged from Town H Hospital and the Public Guardian placed her into an aged care facility at Town K.
On 20 February 2018, NCAT conducted a further hearing as to the July 2017 attorney documents. They took evidence from a number of witnesses, including the Wife who they noted was unable to answer questions coherently; she could not remember attending the Town H Court House in July 2017; she was fearful and anxious about people harming her.
NCAT were satisfied that the Wife was significantly cognitively impaired and that she lacked capacity at the time of execution; that she was heavily reliant upon the Husband’s advice and did not understand the full import of what she was signing. She specifically thought that the power related to banking only.[34]
[34] Paras 169 – 173 of NCAT’s Reasons for Decision; ann “B” to afft of Ms B
NCAT found that the Wife would not have intended to give the Husband and her brother the authority to deal with the Wife’s Town A property, noting particularly the terms of the parties’ previous cohabitation agreements.
Though the effect of NCAT’s decision was that the 2004 Enduring Powers of Attorney remained valid, NCAT did not appoint Ms C and Mr D to act as the Wife’s financial managers. NCAT’s rationale was significant – they noted that the Husband and the Wife’s children did not communicate and the Husband would not cooperate with them as he did not accept the validity of their 2004 Enduring Power of Attorney. Thus their appointment could lead to delays in managing the Wife’s affairs, which would be to her detriment.
The Husband had sought that he be appointed. At the hearing the Husband told NCAT that he would pay for the Wife’s accommodation costs so that the Town A property could be retained.[35]
[35] Husband’s afft, ann “6”, page 5
But although NCAT’s reasons for decision describe him as the Wife’s “partner” and in the list of witnesses as her “spouse”, NCAT rejected the Husband as a prospective financial manager for her. They observed that while the Wife had a longstanding reliance upon him to manage her affairs, he was not open to any proposal that the Town A home may have to be sold to pay for the Wife’s care needs. This meant that the Husband was not prepared to consider all possible options open to effectively manage the Wife’s estate to meet her needs. [36]
[36] Paras 147 & 148, 174 – 192 of NCAT’s Reasons for Decision; ann “B” to afft of Ms B
In the result, NCAT appointed TAG to be the Wife’s financial manager, to be reviewed in 12 months. (The Husband appealed that decision but his appeal was dismissed.)
Wife moves into aged care / Husband not funding her care costs and not agreeable to selling the Town A property:
TAG decided to move the Wife into the L aged care facility at Town M. The day prior, on 13 March 2018, the Husband emailed TAG in relation to the Wife’s pending change of aged care facility:
Our collective resources are planned to be utilised for Ms Fairbairn’s ongoing care and we will need to be involved from this aspect. We have collectively been discussing these plans with a financial planner in developing an appropriate approach.
TAG emailed the Husband in reply, referring to the RAD of $370,000 and asking his view on how it should be paid. The email advised that:
Generally the sale of a property is involved unless there is other cash you can advise me of, that can be used to make payment.
I understand you own separate properties, will you be relocating to one of those to facilitate a sale and payment of the RAD?
The email also went on to request information from him for Centrelink purposes:
I will need you to complete the information that relates to “Partner” and return to this office, so that a combined response can be forwarded for assessment. As you would be aware, Centrelink and the Department of Human Services consider assets or [sic] a married or defacto couple jointly, and then attribute half the combined value to each member of the couple…
The Husband responded by email on 14 March, relevantly stating that:
As Ms Fairbairn’s long-term partner it has been expected and a wish of Ms Fairbairn that I remain on the property. It has therefore been planned that our collective cash and other financial resources will be utilised to pay the DAP and this will result in an annual payment of both fees to around $40k…
By this email, the Husband was attempting to put in place with TAG some alternative financial arrangement for the Wife whereby the Town A property would not be sold and he would stay living there. He was also still proposing that the Wife might move back home with him.
On 15 March 2018, TAG rejected the Husband’s proposal to move the Wife back home.
TAG determined that the Town A property should be sold to enable the Wife to pay the RAD. The Husband remained strongly resistant.
At trial Ms B confirmed that TAG assess payment for aged care placements matters on a case-by-case basis and that payment of a RAD is not an automatic or default position they take. In some cases a DAP is paid instead, as the Husband was suggesting.
But TAG had the power of financial management, not the Husband. And TAG had made a determination which they considered to be in the Wife’s financial interests.
At this point “the gloves were off” in terms of the Husband and the Wife’s children. The Husband was accusing them of stealing items from the Town A property (not merely de-cluttering) and Mr D threatened in turn to sue him for defamation. The Husband responded by accusing Mr D of intimidating tactics and said amongst other things that on numerous occasions Mr D had made “false” statements, behaved in a “dumb” manner. Ultimately the Husband’s email made the point that:
Now that you have succeeded in getting your mother restrained into an institution and putting all your efforts in not allowing her any of her past months to be where she wanted to be, it might be time to give it a rest before there is no more time. [37]
[37] Afft of Mr D, para 37 & ann “D”
In May 2018, because the Husband had still not disclosed his financial circumstances to Centrelink, they suspended the Wife’s income support payment. So from Centrelink’s perspective the parties were relevantly a couple.
On 25 May 2018 the Husband spoke to a TAG employee, advising that he and the Wife were still in a relationship and that they had spoken about the daily care fee (DAP) before she went into care. The Husband agreed that he needed to contribute to the fee, but suggested that the Wife use her superannuation in the first instance to pay the daily care fee, which he calculated would last about 9 years following which he would then start contributing. This proposal plainly favoured the Husband’s financial interests over the Wife’s. While the Wife’s resources were being depleted, he would remain living in the Town A property effectively rent-free. In the meantime the mortgage repayments, Council Rates and other property outgoings would continue to be incurred.
TAG were clearly frustrated by the Husband’s continuing failure to disclose his finances to Centrelink and they kept pressing him to do so. On 21 March 2019 the Husband emailed TAG querying the workings of the Department of Human Services (Centrelink). His email went on:
The particular issue of concern relates to the current and on-going situation with Ms Fairbairn’s children and the agreement between Ms Fairbairn and myself in regard to the use of assets.
I am seeking to enter into an agreement with TAG as Ms Fairbairn’s financial guardian on Ms Fairbairn and her estate’s behalf.
In effect the agreement would confirm that any expenditure by me on Ms Fairbairn’s needs would later be recovered upon the sale of her property… [38]
[38] Afft of Ms B, ann “X”
The Husband was thus willing to meet the Wife’s care costs in the first instance, provided he was reimbursed later. TAG refused to agree. Again, the proposal involved the Husband’s financial interests being favoured over the Wife’s.
Further proceedings in NCAT:
Not having been able to reach an agreement with TAG on his terms, the Husband applied to NCAT for a review and revocation of TAG’s 12 month financial management order. He again sought an order for his own appointment.
NCAT found that the Husband had standing to apply as the Wife’s “long standing partner”. The Husband’s evidence to NCAT was that, at that time, he was bringing the Wife home to the Town A property each week in the interests of her general wellbeing.
The Husband clearly remained in high conflict with the Wife’s children and none of them wanted to revert to the 2004 Enduring Powers of Attorney. The Husband asserted to NCAT that he and the Wife had agreed to care for each other during their life and that any associated costs borne by the carer would be recouped out of the sale of the other party’s assets later. He said the Wife wanted him to stay living at the Town A property.
TAG advised NCAT that the Town A property may not have to be sold, but that they were in a difficult position given that the Husband had not reached a satisfactory agreement with them for payment of the Wife’s accommodation costs.
The Wife’s children told NCAT that the Wife did want the Town A property sold and that she did not want the Husband to remain living there.
At trial, the Husband pointed to the written submissions filed with NCAT by Ms C and Mr D for that hearing.[39] Therein, the Wife’s children refer to the Husband as being the Wife’s de facto partner at the time she executed the documents at the Town H Court House on 18 July 2017.
[39] Dated 19 February 2019
I can understand why the Husband relies upon that assertion given that the children (and TAG) now contend that the relationship had broken down as early as April 2017. Certainly there is an inconsistency there but in truth the jurisdictional issue does not require proof of a breakdown on a particular date. Notably the children’s submission does not contend that at the time of that hearing the Husband was still her de facto partner. On the contrary, it poignantly observes that that the Husband was “maintaining his own financial independence while denying our mother hers.”
On 1 May 2019, the Husband advised TAG that he would consider payment of aged care fees prior to the Wife’s own funds being depleted.[40]
[40] Husband’s afft, ann “6”, page 5
That same day, Centrelink advised TAG that they had now been provided with details of the Husband’s financial circumstances and could commence their assessment process for aged care purposes. Initially they paid the wife an aged pension of $40 per fortnight. [41] (In October 2019, this was reduced to nil on the basis that the parties’ combined assets exceeded the relevant threshold.) [42]
[41] Husband’s afft, ann “6”, page 3
[42] Afft of Ms B, para 81
Ultimately, by decision of 15 May 2019 NCAT affirmed its earlier decision that TAG be appointed and decided that the appointment should now be made permanent.[43] The Husband was not considered appropriate given his potential conflict of interest.
Husband starts making payments towards the Wife’s aged care fees:
[43] NCAT’s Reasons for Decision; afft of Ms B, ann “C”
Having been unable to negotiate an agreement with TAG on his terms, and having been unsuccessful in NCAT, the Husband belatedly started making payments himself towards the Wife’s ongoing accommodation expenses (by way of DAP). This was some fifteen (15) months after the Wife had first gone into the L Care facility at Town M, during which time her estate had been depleted to meet the DAP fees.
By January 2020, the Husband had paid a total of $16,000 towards the Wife’s accommodation fees.[44] At trial, Ms B accepted that the Husband’s payments of $1,000 per fortnight were keeping the aged care facility debt at around the same level.
[44] Afft of Ms B, para 71
Ms B also conceded that the Husband continues to regularly visit the Wife at the L Care facility to assist at meal times, noting the Wife has feeding issues. The facility arranges times so that the Husband does not come into contact with Ms C.
By this stage there was a clear “stand-off”. TAG were not changing their position that the Town A property be sold to pay a RAD. The Husband was not changing his position that he stay living there and that the DAP be paid instead.
Though the Husband told TAG that this is what the Wife wanted, I have no sworn evidence from him directly on point and there is no evidence from the Wife or from anyone else that corroborates this assertion. The financial adviser who the Husband said had been involved was not called as a witness, nor were his business records subpoenaed.
Having regard to the Wife’s progressively declining state of health, the Husband’s position of influence over her and the events in July 2017 (power of attorney documents) and November 2017 (updated Will), I am unable to accept that this was the Wife’s wish, or, that if it was her wish that she had the capacity to fully understand and comprehend what it meant in terms of her assets.
Lead up to these proceedings:
On 3 July 2019, Powe & White Solicitors wrote to the Husband asserting that, as the parties had separated in April 2017, TAG was seeking to enter into negotiations on the Wife’s behalf for a property settlement.
The Husband took offence at the suggestion of an April 2017 separation. His response letter of 10 July 2019 was combative.[45]
[45] Afft of Ms B, anns “Y” & “Z”
The very next day (11 July 2019) the Husband was off to NCAT again, this time seeking a review of their decision to revoke the 2017 Power of Attorney documents. That review application was dismissed.
On 11 August 2019, TAG then filed the present proceedings.
So has there been a breakdown of the de facto relationship?
TAG carries the onus of establishing a relationship breakdown. There is no onus on the Husband.
At trial, TAG advanced a number of possible breakdown dates:
a)April 2017 - when the Husband travelled overseas despite the Wife being quite unwell and physically dependent upon him;
b)May 2017 - when the Wife spoke to her children about separating and instructed her son Mr D to have her home valued;
c)July 2017 - when the Husband arranged for the Wife to sign hurtful letters to her children as to their actions while he was overseas. Then on 18 July 2017 he had the Wife revoke the Enduring Powers of Attorney in favour of her children and instead appoint the Husband and the Wife’s brother as Attorneys. These actions were said to be a form of emotional abuse (or elder abuse), incompatible with the ongoing existence of a de facto relationship;
d)November 2017 - when the Wife moved out of the home permanently (initially being hospitalised and later moving into aged care). TAG also point to the circumstances surrounding the updated Will executed by her that month (including its terms) which were said to be a form of emotional abuse (or elder abuse);
e)The subsequent period through 2018 and up to June 2019 when the wife was in aged care and the Husband was making no payments towards her fees. His proposal to TAG during that period that he pay her fees, but be reimbursed later by the Wife’s estate, was also said to show a separation on his part;
f)TAG also make the general contention that, in her present state of health and given that they now live apart, the Wife is simply incapable of continuing to participate in a de facto relationship with the Husband.
The Husband’s affidavit deposes, albeit in broad and sweeping terms, that he still considers himself and the Wife to be de facto partners and that he continues to provide the Wife with social, welfare and financial support. His affidavit deposes to her continued visits to the Town A property.
It is common ground that he purchased a wheelchair-accessible vehicle specifically for her use, and that he continues to visit her at the L aged care facility.
In the NCAT proceedings, the Husband has been recognised by TAG and by the Wife’s children as being the Wife’s partner. The Husband correctly observes that TAG’s May 2019 submissions to NCAT refer to him as the Wife’s “partner” at the time she moved into aged care.[46]
[46] Husband’s afft, ann “6”, para 1
For means testing purposes, Centrelink have treated, and continue to treat, the Husband as being the Wife’s partner. At trial, Ms B advised that Centrelink will review this upon delivery of my judgment.
Having weighed up the evidence, I do not accept that the Husband’s overseas trip in April 2017 constituted a breakdown of the relationship. The Husband had children of his own living in Country N; the last time he had taken the Wife with him (in 2015) her health had substantially deteriorated afterwards. He made arrangements for his daughter to live at the Town A property and care for the Wife while he was away. This is incompatible with him intending to end the relationship. On the contrary, he was making sure that the Wife had someone to support her while he was away – in circumstances where, sadly, he and the Wife’s children by then had a somewhat tenuous relationship.
While the Wife talked to her children while the Husband was overseas about giving him his “marching orders” there is no evidence that she ever did so. She had by then suffered a substantial cognitive decline and I do not think that I can give weight to statements she made to anyone at this stage, including telling her son to arrange a valuer. In my view, the Wife was emotionally “torn” and was equivocating. To be frank, she was in an untenable position given her declining state of health and the “tug-of-war” between her children and the Husband. It is noteworthy that at the NCAT hearing on 20 February 2018 she told them that she felt she was “between the devil and the deep blue sea”.
I am however much more troubled by the Husband’s actions concerning the Wife’s finances, commencing in July 2017.
In this case, a core element of the parties’ relationship throughout was that they agreed to keep their assets strictly separate. Their cohabitation agreements were at pains to specify this. They never purchased any property jointly during their years together. This was an understandable arrangement, voluntarily entered into by them as mature-age persons with adult children. At the very most, the Wife was willing to let the Husband stay living at the Town A property for 6 months after her death.[47]
[47] Pursuant to her 2016 Will
On 18 July 2017, the Husband began to act as though he was no longer bound by that fundamental premise upon which their relationship had consistently been based, by having the wife execute power of attorney and revocation documents. He did so in circumstances where the Wife was labouring under an incapacity and by then dependent upon him to abide by their financial agreements and their common understanding.
The power of attorney document in his favour purported to give the Husband powers and authorities which favoured his rights over hers. In taking those actions, the Husband was acting in a manner which was fundamentally incompatible with the foundations of their relationship. [48]
[48] As noted in NCAT’s Reasons for Judgment para 151; afft of Ms B ann “B”
Moreover, the Husband’s subsequent instructions to new solicitors in November 2017 to prepare an updated Will, on terms vastly more favourable to him, was incompatible with the foundations of their relationship.
Having failed in NCAT concerning the powers of attorney documents, the Husband’s unwillingness to cooperate with the Wife’s children to enable them to administer the Wife’s affairs in 2017 / 2018 was specifically noted by NCAT, and resulted in TAG being appointed financial managers. This was not an outcome that the Wife had ever sought or in my view envisaged. At a time when she was most vulnerable, the Wife’s express wishes as to management of her estate were thwarted as a direct result of the Husband’s actions.
The Husband’s subsequent and persistent refusal to comply with TAG’s determination that the Town A property be sold to pay a RAD, while himself neglecting to pay any of the Wife’s care costs, depleted the Wife’s estate and was incompatible with the ongoing existence of the de facto relationship. His proposal to TAG on 25 May 2018 that the Wife’s super be used in the first instance to meet her costs, following which he would start contributing, was in my view confirmation that the de facto relationship had by that time broken down.
The Husband’s later proposal to TAG that he pay the DAP fees in the first instance and be reimbursed by the Wife’s estate later, remained incompatible with the ongoing existence of the de facto relationship.
The Husband’s ongoing and deliberate frustration of TAG’s lawful administration of the Wife’s financial affairs is also incompatible with the ongoing existence of the de facto relationship. The Wife’s present accommodation in the aged care facility has a degree of financial tenuousness. This is only because the Husband will not permit TAG to sell the Town A property to clear her liabilities and give her financial security. She needs that security in her present vulnerable position. He owns a home of his own. If that was unsuitable, he could rent a property. In that sense, there is real force in the children’s submission to NCAT that the Husband is maintaining his financial independence while denying the Wife hers.
Overall, in the circumstances of this particular relationship, the actions of the Husband referred to in paragraphs 154 – 160 herein, taken at a time when the Wife was labouring under an incapacity, were unequivocally indicative of and consistent only with, the cessation of the de facto relationship as it previously existed. Whether the Husband subjective intentions at the time he took those actions, it is my view that the law should objectively impute to him the requisite intention to separate. His intentions have been communicated to TAG on the Wife’s behalf, and also to the Wife’s children.
In passing I would also refer to Teh & Muir [2017] FamCA 138, a decision of Berman J in which the applicant had taken advantage of the respondent’s obvious dementia by financially benefitting herself. His Honour observed that such conduct was “entirely inconsistent with a relationship underpinned by love, affection and mutual respect.” [49]Though the applicant’s conduct in that case was at a much higher level than the present case, an analogy can be drawn in principle.
[49] Para 169 of his Honour’s Reasons
In summary, while there remains affection between the parties, and some ongoing relationship of sorts, on balance the relationship that they now have no longer falls within s 4AA.
Conclusion:
I am satisfied that there has been a breakdown of the de facto relationship between the Applicant and the Respondent, and that the breakdown occurred by no later than 25 May 2018.
I will reserve the Wife’s costs.
I will adjourn the proceedings to 4 August 2020 for further consideration.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 15 June 2020
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