Forman and Petchey

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORMAN & PETCHEY

[2018] FCCA 535

Catchwords:
FAMILY LAW – De facto relationship – challenge to jurisdiction – applicant asserting de facto relationship on 1 March 2009 and respondent denying
– evidence overwhelming – jurisdictional objection clearly not established – consideration of competing proposals about property division – applicant’s proposal clearly just and equitable in the unusual circumstances of the case.

Legislation:

Family Law Act 1975, ss.4AA, 44(6)

Cases cited:
Fenton & Marvel [2013] FamCAFC 132
Stanford v Stanford [2012] HCA 52

Applicant:

MS FORMAN

Respondent:

MR PETCHEY

File Number:

DGC 931 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

7 & 8 February 2018

Date of Last Submission:

8 February 2018

Delivered at:

Dandenong

Delivered on:

26 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Sheen

Solicitors for the Applicant:

Guthrie & Associates

The Respondent:

In person

ORDERS

The Respondent forthwith pay the Applicant the sum of $15,000.
Within 60 days of the date of these Orders:
(a)the Respondent do all things and sign any such documents as required to transfer to the Applicant the real property situate at Property A (“the Property A property”), at the cost of the Applicant (the transfer); and
(b)both parties sign the Discharge Authority for the (omitted) Bank Mortgage, and the Applicant refinance the mortgage and indemnify the Respondent in respect of any liability associated with the Property A property.
That pending the transfer and payment:
(a)the Applicant will have sole occupation of the Property A property and be responsible for the payment of Water rates and utilities as and when they fall due;
(b)the Respondent shall be responsible for the payment of the mortgage and the Council rates, including any arrears, as and when they fall due; and
(c)neither party will, without the written consent of the other, further encumber the property.
That within 28 days of the date of these Orders, the Respondent will organise for the collection of all items from within and surrounding the garage at the Property A property. The Respondent will be responsible for leaving the garage area at the Property A property in a clean and tidy manner. The Respondent must attend with a truck to remove the items and organise for the attendance of the Police. In the event that the Respondent fails to remove items within and surrounding the garage at the Property A property within 28 days, having been given the opportunity to do so, the Applicant may dispose of all items at her sole discretion.
The Respondent be liable for and indemnify the Applicant against all payments in respect of any liability registered in his name.
The Applicant be liable for and indemnify the Respondent against all payments in respect of any liability registered in her name.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these of any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Applicant; and the chattels and items located in and surrounding the garage at the Property A property being deemed to be in possession of the Respondent);
(b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of the property to which that party is entitled pursuant to these Orders; and
(e)
any joint tenancy of the parties in any real or personal property

be expressly severed.
In the event that any party refuses or neglects to comply with any provision of these Orders:
(a)a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and
(b)the defaulting party pay all reasonable costs incurred by the other party for the purpose of exercising this Order.
For the purpose of Order 7 hereof, an affidavit setting out the defaulting party’s failure to comply with the Orders shall be sufficient evidence of neglect and default.
There be liberty to apply to the parties in respect of implementation of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 931 of 2016

MS FORMAN

Applicant

And

MR PETCHEY

Respondent

REASONS FOR JUDGMENT

Introductory

This is a property dispute between two persons who had four children between 1990 and 1996. It has had a peculiar history which it will be necessary to refer to at an early stage. The applicant seeks that there be a property division between the parties and says that they were in a de facto relationship from 1989 until 2014, albeit with some interruptions.
The respondent, whose position seemed to vary throughout the currency of the hearing, nonetheless has pressed a preliminary objection. He says the de facto relationship ended very substantially earlier and in any event before 1 March 2009. If he is correct in this assertion, of course, the Court has no jurisdiction to entertain the claim.
It should be noted that although the respondent has pressed the jurisdiction objection, he has conducted the case not just in relation to the jurisdictional question but in its entirety. Given his self‑representation, and the very obvious distress that the proceeding was engendering in not only the applicant but the two daughters that she called as witnesses, I permitted the case to proceed as it were in toto, even though self-evidently the existence or otherwise of a de facto relationship that concluded on or after 1 March 2009 is a vital one

(see Fenton v Marvel [2013] FamCAFC 132 at [53]-[55] per Murphy J).

The Procedural History

The applicant first instructed solicitors to act on her behalf in March 2013. She concedes that the relationship with the respondent had at that time ceased. She says that she withdrew her then instructions to her lawyers because the parties re-partnered later in the year. This failure to proceed is of relevance for a number of reasons, but for present purposes it is sufficient to note that she filed her initiating application on 6 April 2016.
Given that the relationship ended in 2014, on any view, the applicant required leave pursuant to s.44(6) of the Family Law Act 1975 (“the Act”). The matter ultimately came before Judge Baumann on 10 May 2017. His Honour granted the applicant leave to proceed with her application after the end of the standard application period pursuant to s.44(6) of the Act.
It should be noted that the response filed on 2 June 2016, which has never formally been withdrawn or amended, sought that the family home at Property A, be sold at auction or before, and that “the family members at the above address find somewhere else while I prepare the house for sale” and the proceeds of sale be divided equally. In those circumstances it is wholly unsurprising that his Honour did not address the issue of the de facto relationship.
Nonetheless, the affidavit material filed by Mr Petchey from time to time has brought the question of the Court’s jurisdiction into play. I make this observation notwithstanding that the applicant filed a Notice to Admit Facts on 21 April 2017 which inter alia required the respondent to admit that separation took place on or after 1 March 2009 and the respondent did not file any notice of dispute.
I grant, in a sense, the respondent the indulgence of being able to dispute the date of separation because he has argued it with a sufficient clarity both in his materials and his submissions to the Court and because he has at all times been self-represented (brief prior legal representation is not of any moment).
This is not, however, the end of the procedural matters. At the very outset of the proceeding Mr Petchey raised what he described as a preliminary objection pursuant to s.39A of the Act. Clarification revealed that this was an objection pursuant to s.39A(2) of the Act. (This had previously been outlined, unintelligibly, in an email the respondent sent to the Court on 8 February 2018). Mr Petchey’s point, as best I understood it – like a number of his utterances it was not easy to follow – was that the initiating application had been filed by someone who was not an Australian citizen.
As I pointed out, however, while the applicant, Ms Forman, is not – as I understand it – an Australian citizen, there is only a requirement that at least one of the parties to the proceedings be an Australian citizen, albeit ordinarily resident in Australia or present in Australia on the day following the application. This objection was plainly totally misconceived.
This brings us to the preliminary jurisdictional fact.

The De Facto Dispute

As Murphy J made plain in Fenton v Marvel at [52]-[53], for this Court to have jurisdiction in this case the Court must be satisfied that “the relationship which broke down after commencement was a de facto relationship, and that the period, or total periods, of the de facto relationship is at least two years.” Murphy J further refined the matter at [63] when his Honour said:
“In order to establish that the court has jurisdiction to entertain the applicant’s claim under s 90SM, the legislation required his Honour to ask and answer a number of interrelated questions^5.:
Was there a relationship between the applicant and the respondent that broke down finally before 1 March 2009?
If the question is answered yes, the court has no jurisdiction to entertain the s 90SM claim, irrespective of whether the relationship might satisfy the definition of a de facto relationship and irrespective of its length. If the question is answered no, further questions must be asked.
Was the relationship that broke down finally after 1 March 2009 a relationship that meets the definition of “de facto relationship” as prescribed by s 4AA of the Act? If that question is answered no, the court has no jurisdiction to entertain the s 90SM claim irrespective of the length of the relationship. If the answer to that question is yes, a further question needs to be asked.
Did the de facto relationship exist for “at least 2 years” (noting that the requisite period can be established by aggregating the periods of relationship)?”
As his Honour observed, these various questions are of course inter‑related. Before coming, however, to the various facts alleged, it is appropriate to set out s.4AA of the Act, which relevantly prescribes:
“(1) A person is in a de facto relationship with another person if:
…
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
Then section 4AA(2):
“(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.”

Some Agreed or Uncontested Uncontroversial Facts

The applicant was born on (omitted) 1960. She has worked as a (occupation omitted) full-time since 2000. The respondent was born on (omitted) 1960. His employment history is hard to fully ascertain but it would seem he has not been in full-time paid employment for a considerable number of years.
The parties met in (country omitted) where the respondent was on holiday in 1988, and came to Australia in 1989. They cohabited at the very least from then on. In the fullness of time the applicant obtained permanent residence. They have four children: [W], born (omitted) or (omitted) 1990 (both dates are asserted in the applicant’s materials); [X], born (omitted) 1992; [Y], born (omitted) 1993, and [Z] born (omitted) 1996.
As earlier indicated, the applicant commenced proceedings in 2013 (see exhibit HJG1 to the affidavit of Ms Guthrie filed 15 June 2016), but those proceedings were discontinued. I note that exhibit HJG3 to Ms Guthrie’s affidavit asserts, on the mother’s behalf, a separation in 2009 and a subsequent reconciliation.
The parties owned the former matrimonial home in Property A, which was bought in (omitted) 1992 in the respondent’s sole name. The respondent also owns four blocks at Property B. He owns likewise various chattels, including a yacht, a bus and a car.
Three of the children continue to live with the mother in the matrimonial home. The husband built a bungalow on the matrimonial property in 2010 and divided the property by fence in 2013.

The Affidavits of the Parties

Additionally to the matters noted immediately above, the parties have deposed as to various further matters. In her affidavit filed 6 April 2016, the applicant asserted that cohabitation commenced in 1989, and that they separated on 1 March 2013, but resumed the relationship in December 2013, and finally separated in about May 2014 (corrected to March 2014 in a later affidavit). She deposed to in excess of 20 years of verbal abuse from the respondent. She deposed to an Intervention Order taken out against the respondent by the police. The affidavit deposed that that Intervention Order followed an assault by the respondent upon their daughter [X].
The respondent’s first affidavit was filed on 2 June 2016. He denied family violence or verbal abuse. I note that the materials annexed to the affidavit by Mr Petchey assert in part:
“I was mostly working while the children were little.
Ms Forman was a good friend and mother to the children and did (employment omitted) on the side.
Ms Forman didn’t appear to like my family and Ms Forman wouldn’t share her past or family affairs with me. We didn’t share friends. Ms Forman gave me three more wonderful children.”
The material also asserts:
“2003, I didn’t have the skills to make it on my own. I was depressed and frustrated at that time. I suggested to Ms Forman if she didn’t want to help me with some of the office type work, she ought to go back to (country omitted). A threat was made and I realised there was no commitment to the family as a whole.
I started to sleep elsewhere and in the caravan or the bus in the backyard.
In (omitted) 2008 I was dismissed unfairly from my job and suffered a breakdown.
2010, I built a bungalow in the yard with some help from the children.
2013, I constructed a fence, dividing the yard, Ms Forman and the dogs from my stuff.”
I note that the affidavit appends a letter to Mr Petchey at Property A, dated 29 December 2009, in which he was assessed as obtaining Family Tax Benefits. He also appends a Child Support Assessment dated 23 July 2010, by which the applicant was assessed to pay child support to the respondent.
A further assessment dated 29 August 2013 details the child support that the respondent, Mr Petchey, was to pay the applicant from 1 October 2013 to 16 March 2014. Also appended to the affidavit are various documents which include inter alia a health card that expired on 19 February 2014 showing Mr Petchey as having no fixed address in (omitted), and a fine for illegal camping issued by the (omitted) Council on 14 March 2014.
The applicant filed a further affidavit on 21 June 2016. She deposed to a short separation in 2013 following which there was reconciliation. She deposed that she and Mr Petchey went away on (omitted) 2013 to the (omitted) together. She deposed that the respondent was still in the family home until he threatened [Z] with physical violence. “At this time, the relationship ended completely and Mr Petchey was told to leave the family home and never come back.” (Paragraph 7).
The affidavit deposed that Mr Petchey’s sister visited him shortly after this and took him back to (omitted) for a while. The affidavit went on to depose relevantly to a contribution to the mortgages. At paragraph 12 she deposed:
“… Mr Petchey purchased a letterbox, placed it in the house and locked it. We all had to pay board money in an envelope and put our names on it. Mr Petchey would then take out money to cover the mortgage and what was left to help with bills, etc. I recall that [W] and [Y] and I would put money in the letterbox and $250 p/week was taken for the mortgage.”
The affidavit then dealt at paragraphs 13-14 with Centrelink in the following terms:
“13. When I went to Centrelink in respect of the Child Support, Mr Petchey came with me. The man at the counter asked if I knew what I was doing. I looked at Mr Petchey and he just glared so I said “yes.” It’s just easier. I was also threatened by him.
In respect of Mr Petchey’s employment, he only ever fleetingly had employment. He couldn’t hold a job down for very long. Mr Petchey also worked on the (employment omitted). He lasted 3 days. Apparently the (employer omitted) didn’t know what he was doing.
14. I confirm that I was always responsible for the cooking, cleaning and general chores around the house. I was also the primary carer of the children. I also worked, commencing upon [Z] starting school. I have made substantial financial and non financial contributions towards the assets of the relationship, including both real properties, that is, the former matrimonial home in Property A and the Property B properties.”
The next affidavit filed was that of [Z] on 3 May 2017. She is a child of the relationship born (omitted) 1996. She lives in the former matrimonial home with the mother. Relevantly she deposed at paragraph 4:
“I recall that my mother and dad finally separated in early 2014. Prior to this I always thought that mum and dad continued to be in a relationship. There were no discussions with me prior to this time about mum and dad being separated. I just thought that dad would go travelling and then return.”
It should be noted that I only admitted paragraphs 1-5 and 8 of this affidavit as the other materials were, in my opinion, irrelevant. Paragraph 8 reads:
“Mum was often at work so Mr Petchey often looked after us. I can’t recall when mum found out about what happened or if she knows everything that occurred when she was not there.”
The next affidavit relevant for present purposes is that of the applicant filed on 3 May 2017. This was contemplated quite clearly to be a trial affidavit. Relevantly at paragraph 5 the affidavit deposed:
“We initially separated on or about March 2013 but resumed our relationship in late 2013 then finally separated in or about February 2014. I originally believed that the final separation occurred in May 2014. My memory of parts of the relationship has been extremely difficult for me to recall and I believe this was as a result of the breakdown I suffered. It has taken me some time, but many memories have now come back to me and I recall the relationship in detail when it is related to specific events. I now say that final separation occurred in February 2014 rather than May 2014 as it was just prior to the 18^th birthday of our youngest child, [Z], which was in (omitted) 2014”

Otherwise the affidavit repeats details of the relationship in greater detail than that had previously been set out. The affidavit shows details of the parties’ common endeavours to advance their circumstances in the 1990s, which do not appear to me to be materially in issue. The applicant deposed to starting work when the youngest child went to school and noted the relatively small amount of work that the respondent ever did.
The applicant deposed to often working 60-hour weeks, sometimes seven days a week. At paragraph 26 she nonetheless deposed:
“… However before I left for work I would do all the cleaning and prepare meals for everyone. He didn’t really have to do much other than being in the house watching them.”
At paragraph 28 the applicant deposed:
“My wage was always contributed to the expenses of the family. We had the mortgage, rates, utilities as well as food and clothing for the children as well as Mr Petchey and I. Finances were tight but I tried as well as I could to support everyone, with little assistance from Mr Petchey. Mr Petchey only paid the mortgage.
In paragraph 30 the applicant dealt with the purchase of the Property B properties in these terms:
“It was whilst Mr Petchey was at (employer omitted) that it was decided to buy land, the house was almost paid for. Mr Petchey made a promise that he would work and pay for it. He told me that he couldn’t get a mortgage on land and that he would have to use the Property A property as collateral. He went ahead and bought the land. Mr Petchey also built a bungalow. The bungalow remains at the Property A property.”
Having deposed to the respondent losing his job at (employer omitted) in about 2008 or 2009, the affidavit deposed at paragraph 35:
“Mr Petchey commenced spending more time in his Bus, which was parked in the backyard. Mr Petchey was still welcome inside the Property A property and we were still in a relationship. I continued to cook, clean and do his laundry for him. We were also in a committed sexual relationship as far as I knew.”
At paragraphs 37-39, the affidavit deposes:
“37. Mr Petchey also suggested that we go to Centrelink and apply for what I thought was the Family Tax Benefit so that Mr Petchey could get more money. Mr Petchey told me he couldn’t afford the mortgage and if I didn’t complete the form I would have to pay for absolutely everything including the mortgage, which I couldn’t afford. Mr Petchey told me that he had told Centrelink that we were living separately under the same roof. I have no idea what form Mr Petchey made me sign.
38. I believed we were still in a relationship at this time and the children lived with me full time. Mr Petchey said “it was ok and I wouldn’t be breaking any law, and “everybody was doing it”. So I agreed.
39. Mr Petchey took me to Centrelink with the form. He came with me and stood next to me at the counter. The man at the counter asked if I knew what I was doing. I looked at Mr Petchey and he just glared so I said “yes”. Mr Petchey frequently ominously glared or made threatening silent gestures towards me when he wanted me to behaviour [sic] in a certain way. It’s just easier to do what he wanted. I didn’t want to argue with him. You can’t argue with hijm.”
The affidavit also deposed to the sort of interaction the parties had. At paragraphs 40-42 she deposed:
“40. Trying to talk to Mr Petchey wasn’t an option as his response to anything I had to say was “always crap”, “arseholes”, “bullshit”, later on he added “fuck off” to it.
41. Later on in our relationship, Mr Petchey started to accuse me of not talking to him. I recall that I would often reply that I didn’t see any point when the only response I got would be “crap”, “arseholes”, “bullshit” or “fuck off”.
42. You couldn’t have a conversation about things with Mr Petchey because if you disagreed with him it would turn into an argument or as Mr Petchey would call it “a debate”. He has these debates with friends of his, but I just tried to keep out of the way. I found it extremely embarrassing.”
At paragraphs 44-46 the affidavit deposes:
“Mr Petchey informed me at this time that I would be getting a phone call from Child Support. Mr Petchey told me to tell them the Child Support Agency we have a personal arrangement. I told Mr Petchey that there was no way I was going to pay him child support as the children were living with me.
45. I never paid any Child Support to Mr Petchey.
46. Mr Petchey changed his address with Centrelink to a property in (omitted). I had no idea he had done this or why. Mr Petchey was still living at our house. Sometimes he stay in the bus or at Property B. When he was at Property B he told me that he was “doing work”. Property B was our holiday and weekender. He was always in and out of the house though.”
At paragraph 48 the affidavit deposes:
“From 2008 to early 2013 Mr Petchey and I continued to be in a relationship. Mr Petchey never left Property A and there were extended periods of stability. There were short periods that Mr Petchey would stay at (omitted), or Property B or went travelling in his van. He would go to (omitted) or Property B because he was doing work there. We always communicated frequently notwithstanding where Mr Petchey was. I continued to look after the children and the house. When he was at home I cooked and did his washing. I did not start a relationship with anyone else and I believed that Mr Petchey and I continued to be in a relationship. Mr Petchey and I were still in a sexual relationship.”
Having deposed to the construction of the fence to separate the yard in March 2013, and a subsequent nervous breakdown in about May 2013 on the part of the applicant, the affidavit continues at paragraph 56:
“Mr Petchey and I reconciled our relationship later in 2013. I recall that Mr Petchey invited me to the Bungalow. The relationship recommenced. Mr Petchey frequented the house, I cooked for him, did his washing, we went out together.”
While I have regard to the other matters in the affidavit that touch on the relationship, these seem to me to be the most pertinent parts.
The next affidavit is that of [X] filed 4 May 2017. She is a child of the relationship. I admitted paragraphs 1-5 and 9 of her affidavit. Paragraphs 4 and 5 read as follows:
“4. Mum and Mr Petchey hadn’t completely separated until we started locking the back door at home in Property A. This was just before [Z]’s 18^th birthday which was in (omitted) 2014.
5. On reflection it now appears that Mum and Mr Petchey’s relationship was stuck in a domestic violence cycle insofar as I recall times when there was tension between mum and Mr Petchey, particularly after an incident of domestic violence but mum was consistently kept in the relationship for fear of leaving. Mum never said to us, until she said to lock the back door and not let Mr Petchey in the house, that mum and Mr Petchey had separated.”
At paragraph 9 the affidavit reads:
“Mum then got a job that she worked and she often worked in the afternoon. There was only a short period of time that she worked in the day. I believe that mum would get home about 9.30pm or 10pm at night. However before mum left for work she got everything organised for us in the afternoon. Mum would cook dinner, cover it and put it out on the table for us all and then go to work. Mum still did everything around the house and provided for us as best she could. Mum looked after us from after school, or mid-afternoon, until we went to bed.”
The next affidavit filed on 9 August 2017 is that of the respondent. He denied violence and denied a genuine domestic relationship. At paragraph 2, and this is perhaps the clearest articulation of his preliminary objection, the affidavit deposes:
“Declare that I am not, and was not in a de facto relationship with the applicant at the time of the applicants [sic] initiating application, or in the two year period prior. That leave to apply was not sought. The applicant is employed and financially independent.”
The rest of the affidavit is not pertinent to this aspect of the case. The respondent filed another affidavit on 9 August 2017 in which he responded to an affidavit of Ms Guthrie, but this likewise takes the matter no further.
The final affidavit of the applicant filed 20 December 2017 is not relevant for these purposes.
This slightly turgid recitation of the pertinent parts of the parties’ affidavits touching upon the de facto relationship issue has been necessary because of Mr Petchey’s self-representation. As I have already indicated, his true position in relation to this issue is by no means clearly spelt out. Even at the hearing his position appeared from time to time to equivocate.
It is also important to be aware of the applicant and her witnesses’ assertions in detail, because in large part they were not traversed in cross‑examination in any event.

The Evidence Given at Court – the applicant Mother

What follows is taken from my notes.
The applicant adopted her affidavits and Financial Statement as true and correct. Cross-examination by the self-represented respondent presented a number of difficulties. Understandably at times he found it difficult to formulate questions and tended to make addresses of his own. The matter was further complicated by the fact that he referred to himself uniformly in the third person as Mr Petchey. It took me some little while to realise that the constant references to Mr Petchey in his questions were in fact references to himself.
The applicant confirmed that she had contacted Guthrie’s in early 2013. She recalled the letter sent in March 2013 following separation. The applicant confirmed that she had a breakdown which was in September 2013, as far as she could recollect. She was unable to leave the house. She could not recall if the respondent went to New South Wales. She remembered he was fired from (employer omitted) in 2008, and was very difficult in the house at the time thereafter.
They had a genuine domestic relationship in 2008. She had been to Centrelink with the respondent as he needed extra money. She was working as a (occupation omitted). In 2008, Centrelink had a document she had to sign. As she understands it now, she signed the two younger children over to the respondent. She said she was coerced to sign. Later on the respondent told her she would get a call from Child Support. He always lived with her. She did not remember a social worker. She went to the Department of Health and Human Services when the children were much younger. She wanted to put cameras to check his behaviour.
The applicant said that the respondent told her to say, “Tell them we’ve come to a private agreement to Child Support.” She was still cooking and doing the laundry of the respondent and they were still having sex. They went away for Christmas in 2013 and had sex during this time. The applicant said, “I had absolutely no doubt.” She said, “We never split as far as I was aware.” The bungalow in the backyard was for the Property B property. There was a fence built between the house and the bungalow. She said that the respondent wouldn’t agree to anything; she wanted home security; he took everything away and she had nothing.
The applicant confirmed that they met in (country omitted) and spent weeks together before coming to Australia. Mr Petchey was a drinker and smoker. When it was put to her that they had moved around a lot, she responded that she was the mother; she looked after the respondent as well. They went out together with friends. She had never been with the respondent to the local church.
It should be noted that at times during the questioning process the applicant became both labile and explosive. She asserted that the respondent had said to her, “You’re a fucking squatter and I’m going to evict you.” She denied separation in 2001. She accused the respondent of being a liar. She said that the respondent had said to her, “Fuck off back to (country omitted), because your parents have died.”
She remembered [Y] being diagnosed; this was the first year at high school in year 7 or 8, 2004 to 2005. The applicant denied separation under one roof in 2008. She said they were still in a relationship and that she was not paying the mortgage, although common funds were being placed in envelopes. The children eventually refused to contribute to the mortgage. This episode was longer than six weeks. The applicant said that the respondent throws things and breaks things when he is angry. He threatened the children and hit [Y] when he was young. He broke the bedroom door. He grabbed [W] over the back of the settee. None of these had been reported. She was frightened of the respondent and intimidated by him. She said it seemed like forever.
The applicant said that when challenged as to his behaviour in 2013, he said, “I’m allowed to do whatever I like in my own home.” [Z] was 16 or 17 at the time. The applicant denied that separation took place when she started work. She started her own bank account although they had a joint account. Her pay went into her account. The joint account was set up at the very beginning of the relationship and she only used it a couple of times.
They were still living together; they were sleeping together; she was still cooking and washing. She would get up in the mornings and pack the respondent’s lunch.
The applicant denied being manipulated by her lawyers. When she was questioned as to whether the relationship continued until 2014, the applicant said that an argument between Mr Petchey and [Z] finished the relationship. An Intervention Order was taken out by the police which covered her, [X] and [Z]. The relationship did not end in 2008 or 2013 but in 2014. The respondent went to New South Wales after the end of the relationship. Then he sent messages saying he would always be there for her. He wanted her to post stuff to him at (omitted). She described as “utter lies” an assertion that they had not spoken since 2008. She said they were in a relationship he was making life very difficult. Sneaking out at night. No one could communicate with him.
The applicant accepted that there had never been a joint mortgage. A lawyer prepared it and she signed the relevant documentation. They moved in in 1992 and she had tax benefits. The respondent had bought a boat with the money she had brought over from (country omitted). She started work when the youngest daughter went to school. The police took out an Intervention Order 12 months after the end of the relationship. She got a phone call at work to come home. When she arrived, the respondent asked for money for the rates. She replied, “You called me a squatter. You are going to evict me. I’m not paying what’s not mine.” The applicant said she had paid the water rates and everything else.
It should be noted that I ceased cross-examination at this point. I had given the respondent notice, after about one and a half hours of cross-examination that I would cease in the half hour later. It seemed clear to me that the cross-examination would not produce further information of sufficient significance to make the provision of further time appropriate.
It should be noted further that the transcript will not reveal the prevaricatory and manipulative nature of the way in which the respondent expresses himself. As I have said, all his questions were about what Mr Petchey had done. It took me some time, as I said, to work out that this was, in fact, him. I formed the clear view that if not prevented, the respondent would have cross-examined almost interminably. The process of cross-examination was extremely distressing and stressful for the applicant, and this was a further consideration. In my view, I gave the respondent a sufficient amount of time to fairly test the evidence, but as said, any further amount of time was not likely to take the matter further.
In re-examination, the applicant said that she started work at 5 pm and then worked till 8.30pm or up till 10 o’clock for five days a week. This impacted on her social life. They were together living in the house. She cooked, cleaned and washed, did his washing, and they slept in the same bed. They had intimate relations until 2013. The final straw was the attack on [Z] and the respondent thereafter saying he could do what he wanted in his own home. Even after final separation, the respondent occasionally came over. She told him he was not welcome.

The evidence of [Z]

[Z] adopted her affidavit as true and correct. She is a carer of her young child and lives with the applicant, [Y], [X] and her partner at the former matrimonial home. They are no longer putting money into a box. Money goes directly into her mother’s account each fortnight. This has been in place since October 2016. Everyone contributes. She gives the mother close to $100. Her 18^th birthday was in 2014. There was a party but not at the home. The father was travelling at the time and had left after an altercation a couple of months before in about mid-January 2014. [Z] was positive this was 2014. She said the respondent disappeared and travelled a lot.
The witness described her experience at school, but this is not of any moment. She said there were a lot of arguments between the applicant and the respondent. The mother took care of her schooling needs. She was the sole provider. She did this as a couple. She remembered [X] going interstate to school and, in fact, went to two different schools. She said, “You still behaved as a couple.” They mostly shared a bedroom. The mother did the laundry and meals. She said, “You behaved as a couple would.”
She remembered the mother not being able to leave the house but could not say which year. It was after the visit to (omitted). She said that, “You shared a bed throughout the years. You built the bungalow, but we still saw you in the mum’s room.” She did not remember when the bungalow was built. She remembered the bus and the caravan and remembered the mother being in a caravan which he was not using. She remembered going to Property B with her mother and father until she was 16 or 17.

The evidence of [X]

[X] adopted her affidavits as true and correct.
[X] remembered her mother started working probably when she was in primary school. She worked till late, starting in the afternoon. She would have dinner ready before she left. She came home at about 9.30pm to 10.00pm and she waited up sometimes. She went to New South Wales for school but returned when she was 18, having been there two years. She visited home while she was in New South Wales. Her mother did not come up to see her with the father but came on her own, maybe in 2009.
She came back in 2010 and did a couple of courses and worked. She lived at home on and off. She was 80 per cent or more of the time at Property A. She had undertaken a (omitted) course with the father, with whom she had had good relations for a while. She remembered that the respondent threatened to punch [Z] just before her 18^th birthday. The party was held somewhere else. Her mother has sprayed the words “you’re not wanted” on the back fence after the fight with [Z]. She could not remember the father being in New South Wales in 2014. She said the parties split in 2014.

The respondent Father

In his opening, the respondent, whose remarks were largely unintelligible, said that he would rather let them keep the house. The applicant could use the rent money to pay the mortgage until it was discharged and then she could get half of the property. Property B was not part of the pool. The property was purchased with an inheritance and then he put money in himself. He wants to give the Property B property to the children when they are adults.
I should interpolate that this opening is typical of the equivocal position adopted from time to time by the respondent. It would suggest that he, in fact, actively seeks a property distribution in circumstances where, in substance, he has asserted the court has no jurisdiction to make it.

The respondent adopted his affidavits as true and correct. He was cross-examined about his employment history. It was not entirely clear what this was, notwithstanding the questions. The respondent did, however, say that between 2008 and 2012 he had no job because he was doing another course. He had also had a case for about two years in the Industrial Relations Commission. In 2001 to 2004, he had been involved in hot water systems. He had tried to start a business but it did not happen. He is presently distracted by this case but might get a job. He was unaware of the mother’s health. He was cross-examined about the non-provision of documents but said that he did not have access to the property where they were stored. He went so far as to assert that the letters from the applicant’s solicitors seeking disclosure constituted harassment.
The respondent was cross-examined about a number of substantial withdrawals from the mortgage account. He said some of these were probably shares. He had had some shares starting in about 2007 to 2008 but there are none left. He said he took cash out of the loan because Centrelink was going straight in. He conceded that the mortgage on 18 June 2014 stood at $64,938, some $33,000 in advance, but is now, on 18 June 2016, $90,514 with an advance of $63.
When it was put to him that the bungalow was supposed to be for (omitted), he said it was a kit that he had built. He said he cannot move it to (omitted) because he has lost his mojo. He said things were difficult after 2008. His laundry was not cleaned by the applicant. There were occasional meals at the house and he did not have sex with her. He had had sex once after 2008, in the summer. He thought he had built the fence before 2013.
He denied that there was a resumption of the relationship in 2013. He said he came back from New South Wales in May 2014. He was not sure about August 2013. He went to the (omitted) first and then New South Wales. This was after the wife had filed proceedings. He said they had painted on the fence in 2013. He was camping in March 2014, in (omitted), in his van. He said this was 2013. He admitted receiving the notice for unlawful camping in early 2014.
He denied ever seeing the document relating to probate of his father’s estate until it was shown to him in court (an assertion I find completely unbelievable). His father had died on (omitted) 2016 and left a will. His property was sold for $620,000 and the respondent received $115,000 by bank transfer as a result. The money has been frittered away, but he still has about $80,000.
He denied verbal abuse to the applicant over 20 years and denied smashing things. He said he smashed the Xbox once. He had not forced her to sign a note saying she was a liar. The only argument they ever had was about her going back to (country omitted). He was not a regular drinker but let off steam on occasion after he stopped using marijuana. He conceded that the applicant got a job in 2000 and is still there 17 years later. He did not know about 60-hour weeks. He remembered 3.30pm to 8.30 and 9 o’clock. He conceded that she made the children’s meals before work. This was up until 2008. He said there was separation before then but it was ambiguous.
There was a time when there was a letterbox to collect board money. The money was for whatever. He was unemployed. He denied that the applicant paid groceries and that he was paying the mortgage. He said he did the maintenance and she kept the house tidy. He said he had been to (omitted) Bank for a loan and had not declared the applicant as a dependent. He did not remember if they asked. In re-examination, the respondent was adamant that he was in New South Wales in 2013 to 2014 and that the applicant’s evidence was entirely false. He tendered, as exhibit R1, a series of computer records which he said showed photographs on particular dates when he was away from the home.

Findings about the credit of the Witnesses

As earlier indicated, it was entirely clear that the applicant found being cross-examined by the respondent in person extremely distressing and stressful. It is clear that she had a significant episode of mental ill health in 2013 during the period of separation that then took place. At times, she shouted very loudly at the respondent words such as, “Don’t dare go there” and the like. She was, at times, in tears. Nonetheless, and to her credit, throughout the ordeal I got the clear impression that she was a witness of truth, notwithstanding certain fallibilities in memory relating to her experiences of and with the respondent and her mental health difficulties which she has described.
The two daughters who were called, and most particularly [Z], were composed, mature and clearly truthful.
Regrettably, it is not possible to avoid criticism of the respondent. His answers tended to be extremely prevaricatory. His answers, for example, about disclosure were exceptionally evasive and obviously untruthful. His manner, as was the case when he was cross-examining, was domineering and unpleasant. What he said and the way that he said it led me to have the greatest doubts about those aspects of his evidence that were in dispute. He struck me as being domineering and bullying, evasive in his responses, and manipulative to his own advantage.

Findings on the Preliminary Issue

The respondent was not able, in truth, to posit any particular date for the final separation that he alleged. He said in his submissions that he had regarded the relationship at an end but the applicant had not accepted this. He appeared to suggest that separation might have occurred in 2001, or 2008, but was adamant it was not after 1 March 2009. He was well aware of the significance of that last date.
In my view, the evidence of the applicant and her two daughters is convincing. The applicant’s evidence that she continued to cook for the family and do the washing for the family, including that of the respondent, and have intimate relations with him up until 2013 is evidence that was given with conviction and which I accept. Her two children, who by the latter stages of this relationship were either adult or approaching it, confirmed that they saw their parents as a couple until 2014, although everyone agrees there was a separation in 2013. It would seem, from the correspondence first addressed by the applicant’s solicitors to the respondent, that there may have been a separation in 2009 as well.
If one turns to the indicia in s.4AA of the Act, and noting that there is no question that the parties were never legally married, I would make the following findings:
a)The duration of the relationship: on any view, this was a long relationship. The parties commenced their relationship in 1989, and their children were born between 1990 and 1996. They moved into the matrimonial home in 1992. I appreciate that there is a dispute as to when it ended, but it is noteworthy that the husband is not in a position to isolate any particular date or occurrence at which he says this took place.
b)The parties lived in a common residence until 2013, when the respondent built a fence across the property. Although he was plainly absent from time to time and appears to have led, at times, an itinerant lifestyle, there can be no question that the parties lived in their common residence until something very close to the end of the relationship.
c)There clearly was a sexual relationship until 2013. I accept the evidence of the applicant and reject that of the respondent.
d)There was clearly financial interdependence. Albeit that it occurred in some fashion not easy to understand, it seems that the respondent, by and large, paid the mortgage, and the applicant, by and large, paid for everything else. Although they appear largely to have had separate bank accounts, even though there was a joint account which was only very occasionally used by the applicant, it is equally clear that the parties, in substance, pooled their funds. This was not only when there was the arrangement with the letterbox, however long that was. It plainly was the case that the parties committed to their joint financial position throughout. Given that the respondent was not at work for substantial periods of time, it can only have been the case that he was assisted by the contributions made by the applicant.
e)The parties bought the matrimonial home together, although the applicant was not registered on title. I do not accept the respondent’s denials in relation to his revealing the existence of the applicant to the lending bank. It is more probable than otherwise, given his general lack of veracity, that he did indeed deliberately set out to ensure that the applicant was not on title both in respect of the matrimonial home and the Property B property.
f)Although the relationship plainly had its ups and downs, there was undoubtedly a mutual commitment to a shared life. While obviously from 2000 onwards the parties’ social life suffered because the applicant had to work as she did, the evidence of not only the applicant but her daughters is telling. The parties were a couple until final separation.
g)Is not relevant.
h)Plainly the parties both contributed to the care and support of the children. There is no meaningful suggestion otherwise.
i)Clearly, in this regard, not only the evidence of the applicant, but more importantly that of her two children is telling. They still saw the parties as a couple until final separation.
Taken overall, and notwithstanding certain anomalies, such as the generally separate bank accounts and the respondent’s, it would appear, quite frequent absences, the overall picture could not be clearer. These parties were in a relationship that broke down well after 1 March 2009. The relationship was one that does meet the definition of a de facto relationship as prescribed by s.4AA of the Act. The relationship lasted vastly in excess of two years.
There is a further aspect of the matter which, in a sense, may touch upon the question of the de facto relationship more generally. In divorce, it is required not only that the party seeking the divorce form the intention to do so. In order to obtain a decree of divorce, it has to be established that this is communicated to the other party to the marriage and that the person seeking the divorce has taken actions on their expressed intention. I have not been able to find authority directly on point, but by way of analogy, those requirements would seem to me properly to be required in any event in a de facto relationship.
Thus, even if, as he says (and I do not accept) he had formed the view by the early 2000s that the relationship was at an end, it is quite clear that he had never communicated this state of mind to the applicant. None of his evidence, nor the questions he put to the applicant, suggested the contrary. Not only did he not communicate any intention that he might be thought to have had, but he certainly took no action on it. These considerations would, in any event, even if, contrary to the conclusions I have reached, I had accepted the respondent’s evidence, suggest that the relationship might be thought not to be at an end until the time posited by the applicant.
Having answered the questions on the jurisdictional threshold issue,

it is now appropriate to turn to the property distribution issues.

Stanford v Stanford

The Court’s first task is to identify the parties’ legal and equitable interests and determine whether a property division is appropriate. Here, as in so many cases, the basis on which the parties conducted their affairs during the relationship has come to an end. The applicant seeks a property division. The husband, in truth, also seeks a property division, but it is one in which the applicant would get very little. It is plainly just and equitable that there be a division.

The pool

The matrimonial home has been the subject of a valuation by Mr M, whose affidavit was filed on 5 May 2017. Mr M valued the property at $360,000. He gave evidence by telephone. He confirmed that he had, as it were, re-checked his valuation in the light of the sale of a property just across the road from the matrimonial home. He was cross-examined at some length by the respondent. It is sufficient for present purposes to say that although he was tested, the methodology he described for his calculations was entirely persuasive, and I accept that that is what the matrimonial home is worth.
The property at Property B has not been valued, but the applicant accepts, as an admission against interest, the respondent’s Financial Statement estimate of $200,000. The husband also has a Mercedes car worth $4,500, the bus worth $10,000, the boat and other matters worth $10,000 and a yacht worth $4,500. All of these figures are taken as concessions against interest from the respondent’s Financial Statement filed 2 June 2016. Additionally, the respondent has (omitted) Superannuation estimated at $168,000 and (omitted) Super at $5,000. There is a mortgage on the matrimonial home of $90,000. These are the assets and liabilities of the relationship.
Additionally, of course, the respondent still has some $80,000 odd left over from his post-relationship inheritance.

Contributions

Counsel for the applicant pointed out that both parties contributed to the relationship. The respondent had a job at (employer omitted), but it is clear there was a substantial amount of time when he was not working. The mother raised four children and then went back to work in 2000 and has worked ever since. She had three months off work in 2013 as a result of ill health. It was submitted that the contributions of the parties were not equal. Not only was the applicant working for the last 14 years of the relationship, but she was also doing, effectively, all the looking after the children and household work. Counsel pointed to the failure of the respondent properly to discharge his obligations in relation to disclosure.
The respondent’s submissions were by no means altogether easy to follow. He said that it had been a 10-year relationship and he had moved on but the respondent could not do so. He had a fair degree to say, but he did not, in terms, address the issue of contribution.

Future needs

I accept the submission of counsel for the applicant that the respondent can work. He has undertaken a number of courses over the years. Whether, as he says, he has ADHD or other difficulties, there is no objective evidence to support any ill-health impediment to employment on his part. The circumstances of the applicant are both better and worse. Her treating practitioner, Dr C, has filed an affidavit attesting her ill health arising from her treatment by the respondent. Nonetheless, the fact is she has been in full-time employment for 17 years and there seems no reason why she should not continue.
Although the applicant has three of her children living with her, and all of whom, it may be presumed, make some contribution to the family income, her income is modest as a (occupation omitted) and she is keen to provide a family home for her children (and grandchild) for the foreseeable future.

The applicant’s proposed solution

The applicant proposes that she retain the matrimonial home and that there be no equalisation of superannuation but that the respondent pay her a lump sum sufficient to enable her to keep the family home. She has put in evidence approval for a mortgage of $85,000. The mortgage is presently just over $90,000.
As earlier noted, the respondent still has $80,000 in a bank account.
Counsel submitted that if the respondent retains his various chattels as described and the Property B property and the superannuation (which he is of an age to access shortly), the division would be some 57 per cent to the respondent and 43 per cent to the applicant.
The respondent, apart from the vague suggestions made in his opening that the applicant keep the property until it was paid off and then receive 50 per cent of the outcome, had really nothing to say as to what the Court should do.

Conclusion

In my view, and in the particular circumstances of this case, the matter can be put shortly. The orders that the applicant seeks are fully justified. They do not, on one view, represent a just and equitable outcome because she ought to receive more. Nonetheless, the Property B property is not valued. There is no evidence as to how easy they would be to sell and for what price. One may assume that the respondent would do everything to obstruct any orderly sale in any event.
In my opinion, if one were to approach the matter in a conventional way, I would assess the contributions of the parties to the current pool as being 60 per cent to the applicant and 40 per cent to the respondent. I would also assess their future needs as not requiring any further adjustment.
Accordingly, the orders that the applicant seeks are well within the range that I would describe as being just and equitable. It is also a sensible and practical resolution, save that I will order the respondent to pay the applicant $15,000 rather than an unspecified sum to reduce the mortgage and discharge other liabilities, the latter being only likely to foment further litigation. In the strange and unusual circumstances of this case, this is a practical outcome and one which I regard as just and equitable in the peculiar circumstances that obtain.
I will grant liberty to apply in respect of the implementation of these orders in case any difficulties arise.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 26 March 2018

[2018] FCCA 535

26 March 2018

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Family Law

Property Law

Civil Procedure

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Injunction