Falek v Gilboa (Ruling)
[2013] VCC 1466
•21 October 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-13-04351
| JADWIGA FALEK | Plaintiff |
| v | |
| HAIM GILBOA | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2013 | |
DATE OF RULING: | 21 October 2103 (Revised) | |
CASE MAY BE CITED AS: | Falek v Gilboa (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1466 | |
RULING
---
Subject: DOMESTIC PARTNERSHIPS
Catchwords: Jurisdiction – whether the domestic relationship ceased after 1 March 2009 – whether the jurisdiction of the Court no longer exists
Legislation Cited: Relationships Act 2008 (Vic); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic)
Ruling: The plaintiff’s proceeding be dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Corrigan | Morley Naughton Pearn & Cook |
| For the Defendant | Mr A Strum | Taussig Cherrie Fildes |
HIS HONOUR:
Introduction
1 The plaintiff filed an Originating Motion on 23 August 2013 alleging that she was/is the domestic partner of the defendant and is entitled to an order for adjustment of property interests of property of the parties pursuant to s41(1) of the Relationships Act 2008 (“the Act”).
2 By a Summons filed 18 September 2013, the defendant seeks an order pursuant to Rule 23.01(1), (3) and/or 47.05 that the plaintiff’s proceeding be summarily dismissed.
3 Mr M Corrigan of Counsel appeared for the plaintiff, and Mr A Strum of Counsel appeared for the defendant.
4 The evidence relied upon by the parties in the application was:
· An affidavit of the plaintiff sworn 21 August 2013
· An affidavit of Avi Gilboa sworn 18 September 2013.
The issues
5 Section 1 of the Act provides, among other things, that the purpose of the Act is to provide for adjustment of property interests between domestic partners and the rights of domestic partners to maintenance.
6 By agreement between the State of Victoria and the Commonwealth of Australia, the jurisdiction of the State of Victoria relevant to domestic partners was referred to the Commonwealth of Australia. The Commonwealth Powers (De Facto Relationships) Act 2004 (Vic) (“the Commonwealth Act”) created that referral as and from 1 March 2009.
7 Section 1 of the Commonwealth Act provides that the referral is limited to “certain financial matters arising out of the breakdown of de facto relationships”.
8 Mr Corrigan submitted that the evidence relied upon by the plaintiff did not disclose a breakdown in the domestic relationship between the plaintiff and the defendant, and therefore, in the absence of a breakdown, this Court retains jurisdiction under the Act.
9 Mr Corrigan submitted, therefore, that the Summons should be dismissed. However, in the course of Mr Corrigan’s submissions he applied for an adjournment of the application to provide supplementary affidavit material from the plaintiff, and also to amend the Originating Motion to include a cause of action based upon a constructive trust.
The facts
10 The plaintiff was born on 19 November 1936. She is now 76 years of age. The defendant’s date of birth is not disclosed in the affidavit material; however, it discloses that he is 78 years of age.
11 The plaintiff and the defendant met some time in 1992. They entered into a domestic relationship in 1996 or 1998. The plaintiff says the relationship commenced in 1996, but the defendant says it commenced in 1998. For the purpose of this application, the date of the commencement of the domestic relationship is of no consequence.
12 Mr Strum submitted that the domestic relationship has ceased, and ceased on a date subsequent to 1 March 2009. Mr Corrigan submitted that the domestic relationship persists.
13 The relevant evidence of the plaintiff is contained in her affidavit. The relevant passages from her affidavit are as follows:
“5In March 2007 the Defendant being unable to climb stairs at my Elwood unit due to his problems with his legs purchased the property at 35 Gladesville Drive, Bentley East in his own name … Both the Defendant and myself moved into the property in or about November 2007 and have resided there continuously until 27th day of August 2012 when the defendant went to Israel on holiday. Whilst he was in Israel the Defendant became incapacitated and has been put in Aged Care. He will never return to Melbourne. He cannot walk and he suffers from dementia.
…
10I am deeply upset and disturbed by the Defendant being unable to return to me from Israel.
…
15I am seeking payment from the net proceeds of sale of the said property to assist me financially to purchase a Unit similar to my Elwood Unit which will give me security of tenure for the rest of my life. I require a Unit close to shops and transport and to my friends.”
14 The defendant has not sworn an affidavit. The affidavit upon which he relies in support of the application was sworn by his son, Avi Gilboa. Avi is one of the defendant’s financial attorneys under an Enduring Power of Attorney dated 1 August 2011.[1] Mr Corrigan did not object to the defendant relying upon the affidavit sworn by Avi, save in connection with whether the domestic relationship has ceased, which is something Mr Corrigan submitted should have been the subject of direct evidence from the defendant.
[1]Exhibit "AG1"
15 Avi responded to the affidavit sworn by the plaintiff on the critical aspects of the defendant's departure from Australia and his residence in Israel. Firstly, he denied that his father travelled to Israel in 2012 on holiday. Secondly, he said that his father will not return to Australia.
16 What is apparent from Avi’s affidavit is that the defendant is not only an elderly man of 78 years, but he is suffering from vascular dementia. He has been diagnosed as being in a moderately demented range. He suffered a fall while Israel in the early part of 2013 which has apparently robbed him of his capacity to walk. It would appear that as a consequence of his dementia he is now a resident in a high-care aged facility near Tel Aviv, and has been since September 2012.
17 In relation to the defendant’s reasons for travelling to Israel, Avi said in his affidavit:
“I say that my father departed Australia permanently on 27 August 2012 and returned to live in Israel, from where he had migrated to Australia in or about 1968. Over approximately 5 years prior to my father’s departure and increasingly as the years passed, Ms Falek participated in numerous discussions with my father, my sister and me about his wish and, ultimately, the decision to return to Israel where he grew up and where his siblings and extended family continue to reside. She was fully aware of his wish and the decision and she was supportive thereof. During that time, I corresponded on my father’s behalf with various aged care facilities in Israel, as well as with Kupat Holim, a major Israeli health fund, in relation to his right to health care as a returning Israeli citizen … .”
18 Avi exhibited a copy of a medical report of Dr McFarlane, consultant psychiatrist, dated 19 June 2012. The report was addressed to Avi. Dr McFarlane was of the opinion that the defendant’s cognition had declined to the point where he considered that he was in the moderately demented range. He also considered that the defendant was suitable for low-level permanent residential care within a hostel environment.
19 It would appear that Dr McFarlane discussed the defendant’s intention to leave Australia and travel to Israel. He recorded the following as the substance of his understanding of the purpose in the defendant travelling to Israel:
“… In view of the plan for him to depart shortly to Israel, however, it was judged best to defer any commencement of Ebixa until he has settled within his new environment.
I wish your father every success in his journeys, and sincerely hope that he finds the new arrangement to his liking.”
20 The substance of what I have quoted from the report is somewhat equivocal in supporting the evidence of Avi; that the defendant intended to travel to Israel for the purpose of residing there. However, it does carry the flavour that it was the defendant’s intention to take up residence in Israel.[2]
[2]Exhibit "AG2"
The referral of power
21 Mr Corrigan submitted that there is no evidence that the domestic relationship has broken down. In the absence of such evidence, then I must conclude that the domestic relationship is extant, and if it is, then the Court has jurisdiction to hear and determine a proceeding relevant to property and maintenance under Part 3.3 of the Act.
22 Mr Corrigan pointed to the language of the Commonwealth Act which, by s1 and s4(1)(a) and (b), that the referral of jurisdiction to the Commonwealth emanates from “the breakdown of de facto relationships”.
A breakdown?
23 I have considered the evidence and the submissions of Mr Corrigan and Mr Strum. I am satisfied that the plaintiff and the defendant entered into a domestic relationship as defined by the Act either in 1996 or 1998 which subsisted until the time when the defendant abandoned the relationship and left Australia permanently to live in Israel.
24 Mr Corrigan appeared to me to be submitting that there needs to be some sort of declaration made by the defendant that the domestic partnership has ceased for me to be satisfied that that is the case. I disagree. In a general sense, a domestic relationship and marriage cease to be when the characteristics of a domestic relationship and a marriage no longer exist between the parties.
25 The Court cannot exercise the jurisdiction given to it under Part 3.3 unless it is firstly satisfied that there is a domestic relationship. Section 42 of the Act, which is headed “Eligibility for orders-unregistered domestic relationships” provides the test which an applicant needs to satisfy for the Court to declare the existence of a domestic relationship. Once that declaration is made then the Court is invested with jurisdiction to exercise the powers under Division 3 to adjust interests in property, and under Division 4 to make orders for maintenance.
26 The legislature contemplated that there might well be cases where whether there was a domestic relationship is in issue. It is for that reason that it provided, in s35(1), a definition of a domestic relationship, but expanded upon that in ss(2) by referring to a number of matters to aid the Court in making such a declaration:
“In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.”
27 Whether a domestic relationship persists as between the plaintiff and the defendant is not only to be measured by all the circumstances of their relationship, but also by having regard to the matters referred to in ss(2). Paragraphs (a), (c), (d), (e) and (h) are relevant. The plaintiff and the defendant no longer have a mutual commitment to a shared life. The plaintiff lives in Israel and the defendant lives in Australia. Furthermore, by reason of where each of them live, they no longer have a common residence, a sexual relationship, provision of financial support by one to the other, and the reputation and public aspects of the relationship are non-existent.
28 It appears to me that the submission made by Mr Strum is more to the point. There does not need to be a declaration by one party that the domestic relationship has ceased. It can be inferred from the lack of characteristics consistent with a domestic relationship, some of which I have referred to in the preceding paragraphs.
29 Furthermore, Mr Strum submitted that there does not need to be mutuality for the Court to determine that the domestic relationship has ceased. One party can unilaterally end the relationship, and as a matter of general experience, that is fairly commonplace in the context of domestic relationships and marriages which fail.
30 I am fortified, in any event, that there has been a breakdown in the domestic relationship confirmed by the conduct of the plaintiff. The plaintiff has taken two steps which appear to me utterly foreign to the position which she wants to occupy; that the domestic relationship persists. Firstly, she brought this proceeding seeking an adjustment of property interests, and secondly, she has lodged a caveat over the defendant’s property which Mr Corrigan informed me will be the subject of further litigation in the Supreme Court on the return of a summons which I assume will involve whether the caveat is sustainable.
31 There is nothing to prevent parties from bringing such a proceeding where the parties are in a harmonious persisting domestic relationship; however, it would be odd in the extreme if such a proceeding were brought because it would serve no purpose. Why would parties expend fees on legal representation in seeking declaratory orders from the Court in those circumstances?
32 Inherent in Part 3.3 is a statutory cause of action based upon a domestic relationship breaking down to such an extent that the jurisdiction of the Court must be invoked for the purpose of the parties obtaining orders, among other things, adjusting their interest in properties which seem just and equitable in all the circumstances. Lodging a caveat demonstrates the very same thing. It is a step permissible to prevent real property being dealt with where the caveator maintains an interest in the real property.
33 It appears to me that the plaintiff has accepted that the defendant has abandoned their domestic relationship. She is aware that Avi intends to sell the defendant’s property, and hence the lodging of the caveat to protect what she maintains is her interest in that real property, and the bringing of this proceeding to realise what she maintains is that interest in the defendant’s property.
34 It is unnecessary for me to determine when the domestic relationship ceased, but only to determine that it has ceased, and ceased subsequent to 1 March 2009. I think it is more likely than not that it ceased at the time when the defendant left Australia and commenced residing in Israel.
The other applications
35 During Mr Corrigan's submissions I made it plain that I did not consider that there was any merit in the primary submission he made that the Court has a persisting jurisdiction because the domestic relationship has not broken down. Subsequently, Mr Corrigan made a number of oral applications which I likewise consider have no merit and I refuse them.
36 The first application was for an adjournment of the summons for the purpose of the plaintiff filing further affidavit material, and for the defendant to make any reply he wished to. However, Mr Corrigan was unable to inform me what that further affidavit material might disclose.
37 The second application was for an adjournment of the summons to allow the plaintiff to amend the Originating Motion to allege a constructive trust. It appeared to me that perhaps the plaintiff can establish a constructive trust, but I consider that also to be without merit, because what the plaintiff can do is to bring a proceeding in the Family Court applying to a Judge of that Court for the very relief which she seeks to obtain in this Court under the Act. There appears to me to be no contest that the plaintiff and the defendant were in a domestic relationship which must mean that the Family Court will have jurisdiction to hear the plaintiff’s application in a specialist Court applying Part 3.3 and 3.4 of the Act.
38 The third application appeared to me to be allied to the first application that there should be further affidavit material from the parties because Avi is in the position of a conflict of interest acting pursuant to the Enduring Power of Attorney and having a claim against the defendant for reimbursement of monies which he has expended on the medical and aged care of the defendant. Avi said in his affidavit that he has expended monies in excess of $100,000 for the benefit of the defendant, and that he will seek reimbursement from the monies obtained through the sale of the defendant’s property.
39 I fail to see how that constitutes a conflict of interest. It appears to me that all Avi has said in his affidavit is that he has expended monies for the benefit of the defendant and expects reimbursement. There is nothing in the evidence which suggests that his judgment has in some way been coloured or influenced by the fact that he wants reimbursement. There was no suggestion that he is in some way acting in bad faith relevant to the interests of the plaintiff. In any event, the caveat will prevent the sale of the property so whatever interest the plaintiff has in that property will not be denuded before a trial.
Orders
40 In summary, I am not satisfied that there is any merit in the submissions made by Mr Corrigan that there has not been a breakdown in the relationship of the parties. I think the evidence I have referred to demonstrates that.
41 I am not prepared to adjourn the summons, because it appears to me there is no basis upon which I should do that. I cannot see that an adjournment will improve upon the evidence that was put before me. In any event, the denial of this proceeding in this Court will not result in any prejudice to the plaintiff because she can bring a proceeding immediately in the Family Court.
42 In the end, the order I propose to make is that the plaintiff's proceeding be dismissed. I reserve the question of costs to be heard at a later date.
After word
43 It is a most regrettable state of affairs that two elderly people whose lives together have ended are now embroiled in litigation. I cannot but feel the greatest sympathy for the plaintiff and the defendant. If I had the jurisdiction I would have referred the plaintiff and the defendant to a judicial settlement conference presided over by myself in order to make every effort to settle this proceeding.
44 It appears to me that both the plaintiff and the defendant are hardly wealthy people who are in the twilight of their lives who no doubt want certainty for the future in terms of where they will live and their financial resources. This proceeding will achieve nothing if only a bleeding of their modest asset position through legal costs.
45 It may be that if their affidavits demonstrate the whole of their financial position then if there is some inequity which needs to be balanced by an adjustment of property interests that can be done with ease at a formal or informal mediation. I urge the parties to attempt to do that as expeditiously and cost effectively as they can.
---
0
0
0