Griffin & Turner (No 2)
[2024] FedCFamC2F 1415
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Griffin & Turner (No 2) [2024] FedCFamC2F 1415
File number(s): DGC 2791 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 15 October 2024 Catchwords: FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AA, 44(5), 44(6), 90RD, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15
Cases cited: Aleksovski & Aleksovski [1996] FamCA 111
Cizek & Mihov [2024] FedCFamC1A 151
Fairbairn v Radecki [2022] HCA 18
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Jacenko & Jacenko (1986) FLC 91-776
Krueger & Krueger [2023] FedCFamC1A 203
Lambertson & Lambertson [2021] FamCAFC 48
Lee Steere & Lee Steere [1985] FamCA 57
Locke & Norton [2014] FamCA 811
Omacini & Omacini [2005] FamCA 195
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Slocomb & Hedgewood [2015] FamCAFC 219
Waldmann & Paddack [2024] FedCFamC1A 100
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Whisprun Pty Ltd v Dixon [2003] HCA 48
Whitford & Whitford (1979) FLC 90-612
Division: Division 2 Family Law Number of paragraphs: 126 Date of hearing: 5 - 6 August 2024 Place: Dandenong Counsel for the Applicant: Mr Byrne Solicitor for the Applicant: Ressan Lawyers Counsel for the Respondent: Ms Ferrari Solicitor for the Respondent: Morrison & Sawers Lawyers ORDERS
DGC 2791 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GRIFFIN
Applicant
AND: MS TURNER
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The respondent’s application for leave out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to bring an application pursuant to section 90SM of the Act is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This matter concerns the question of whether there was a de facto relationship, and if so, over what period and whether leave should be granted out of time for a property division.
The parties in this matter are Ms Turner and Mr Griffin. Mr Griffin originally initiated proceedings in relation to parenting, however as Ms Turner was the one asserting the de facto relationship and seeking a property division out of time, she was treated as the applicant for the purposes of this hearing. To save any confusion I shall refer to the parties by their names.
Ms Turner says the parties were in a relationship from November 2012 until October 2016. She says she made substantial contributions during that time and that she would suffer hardship if she were not permitted to now bring an application. Furthermore, she says the delay in bringing proceedings was due to poor legal advice, an ongoing expectation that Mr Griffin would make good on a payment that he had promised her, the death of her daughter in 2019 and because she could not afford to bring proceedings.
Mr Griffin denies the parties were ever in a de facto relationship, but, if they were, it commenced in April 2014 and ended in about March 2015. He says that if the court finds there was a de facto relationship that due to the short period of cohabitation, Ms Turner’s negligible contributions and the substantial delay in seeking a property settlement, she should not be granted leave out of time to bring a property application in this court.
BRIEF BACKGROUND
Ms Turner is 38 years old.
Mr Griffin is 45 years old.
The parties have one child together, X born in 2014, aged nine years old.
X lives with Ms Turner and her new partner Mr B in Town C. X spends alternate weekends and holidays with Mr Griffin pursuant to final parenting orders made by her Honour Judge Burt in 2023.
Each party also have children from former relationships. At around the time that Ms Turner met Mr Griffin, her children were residing with her mother as a result of child protection intervention but were being transitioned back into her care.
Up until Ms Turner entered the witness box her case was that the parties were in a de facto relationship from 2010, however at the commencement of her evidence in chief she stated, notwithstanding the contents of her outline of case, amended response, and her trial affidavit filed only a month before, that the relationship commenced in 2012.
In her evidence in chief, Ms Turner said she met Mr Griffin in October 2012 and moved in with him at 1 E Street, Town O in November 2012 (with her children moving in December of that year). Despite not mentioning it in her trial affidavit, under cross-examination Ms Turner conceded that she rented another property in Town O for the first half of 2013. However, she said she did so due to the parties having six children between them but maintained the parties spent about five nights each week together during that period.
Mr Griffin has an entirely different recollection of the relationship and says that in 2012 he became friends with Ms Turner. He says that in November 2012, she asked if she could stay with him as she was having issues with housing. Mr Griffin said that she and her children lived with him for a couple of weeks before obtaining another home for rent. He says that in the middle of 2013, Ms Turner’s home had been broken into, so he arranged for her to move into his home at 1 E Street. He says the parties occasionally had sex but otherwise he considered her to be a boarder in his home.
Mr Griffin says that upon Ms Turner becoming pregnant in 2014 he felt that he should commit to the relationship. His case is that Ms Turner and he were “giving it a go” until a couple of months after their child, X, was born at which time Mr Griffin realised it was not working out. He says Ms Turner then moved into a property that he owned at 2 E Street, Town O and she paid him rent.
Ms Turner says the parties and their children continued to live together in 2 E Street as a family until October 2016.
Notwithstanding that Mr Griffin says the parties were no longer in a relationship, in early 2016, the parties entered into a contract together to purchase a property at D Street, Town F. His evidence was that he did so because he wanted to ensure Ms Turner had security for the future because they had a son together.
In October 2016, when Ms Turner says the parties relationship came to an end, Mr Griffin bought Ms Turner out of the contract.
DOCUMENTS RELIED UPON
Ms Turner relied upon the following documents:
·her case outline filed 2 August 2024;
·her further amended response to initiating application filed 4 July 2024;
·her trial affidavit filed 4 July 2024;
·her financial statement filed 20 September 2022;
·the affidavit of Ms G, Mr Griffin’s former partner and mother of X’s half-brother, filed 9 February 2023;
·the affidavit of Ms H, maternal grandmother, filed 9 February 2023; and
·the affidavit of Ms J, Ms Turner’s sister, filed 9 February 2023.
Mr Griffin relied upon the following documents:
·his case outline filed 2 August 2024;
·his amended initiating application filed 30 October 2023; and
·his trial affidavit dated 22 July 2024.
In addition, the following exhibits were tendered in this matter:
·A1 – Westpac bank statements belonging to Ms Turner dated October 2014 to October 2016;
·A2 – social media post of Ms Turner dated September 2014;
·A3 – photograph of the parties and their children;
·A4 – handwritten invoice statement from Mr Griffin to Ms Turner dated June 2018;
·A5 – series of text messages between the parties dated 2020; and
·A6 – Mr Griffin’s social media post of Ms Turner dated October 2013.
Ms Turner’s counsel also provided two aide-memoires which were labelled as:
·Aide-memoire 1 – financial balance sheet relied upon by Ms Turner; and
·Aide-memoire 2 – closing submissions of Ms Turner’s counsel.
THE PROPOSALS
Ms Turner sought a declaration under section 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the parties between 2012 and 2016, that leave be granted out of time for a property division, and that she receive 60% of the total net non‑super property pool and for an equalisation of the superannuation interests of the parties.
Mr Griffin sought that Ms Turner’s application be dismissed.
THE EVIDENCE
The final hearing of this matter commenced on 5 August 2024 and concluded on 6 August 2024. Although some of the evidence was heard over Microsoft Teams, I am satisfied that this did not interfere with the fair conduct of the trial.
In terms of evidence, I have taken into account the contents of each of the affidavits to the extent that the contents were relevant to the parties’ respective cases. However, I have not read any subpoenaed material, information provided by external agencies or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits. As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
It is not possible to refer to every relevant piece of evidence in this judgment. Therefore, if a particular fact or issue is not mentioned in these reasons, it does not mean that I have failed to consider it. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
Ms Turner
For the two years prior to the trial and in all of her trial material, Ms Turner asserted the relationship commenced in 2010. However, as discussed, upon entering the witness box, Ms Turner changed her evidence to state that the relationship commenced in November 2012. Despite these proceedings being on foot since 2022, Ms Turner only apparently realised her error shortly before the trial.
Ms Turner also said in earlier affidavit material that the parties separated in October 2015, but at trial maintained that it was actually October 2016.
Ms Turner’s explanation for the incorrect date for the commencement of the relationship was that she had been using drugs at the time the relationship commenced, had suffered significant trauma as a child, and had been in a previous violent relationship and this all led to her confusion. She said upon receiving Mr Griffin’s trial affidavit and other evidence supplied on the day of the hearing, she realised the dates were wrong. Then, upon a closer examination of historic social media posts, she was able to form “a proper timeline.”
It was curious that all of Ms Turner’s supporting witnesses also had last minute epiphanies about the date of the commencement of the relationship.
What seems more likely is that Ms Turner, upon being confronted with irrefutable evidence of the commencement of the relationship, was forced to make the concession, and that she discussed this with each of her witnesses so they could likewise adjust their evidence for consistency.
In addition, it was evident that Ms Turner was either prepared to lie to this court or to Centrelink, from whom she claimed single parent benefits from 2015. It is also not a dispute that she told a psychologist preparing a report for a traffic matter in the Magistrates’ Court that she was not in a relationship with Mr Griffin in early 2016. Ms Turner says she was forced by Mr Griffin to apply to Centrelink and to portray to third parties, including the psychologist, that she was not in a relationship with him. For reasons I shall return to, I do not accept this. As such, I am of the view I must treat Ms Turner’s evidence with a degree of caution.
Ms G
Ms G, Mr Griffin’s ex-partner, stated in her affidavit that between 2010 and 2015 she was aware the parties were in a relationship although she could not recall exact dates. However, upon entering the witness box she too gave evidence that the parties might have commenced in 2012, although, her evidence was that it was “none of my business” whether they were in a relationship, and she was not “nosy” about these things. Ms G said she had based her calculation on her son’s approximate age at the time however did not explain why that calculation was more accurate now than at the time she prepared her affidavit. Her date as to the conclusion of the relationship was also inconsistent with Ms Turner’s evidence. Consequently, I can place no weight on her evidence.
Ms H
Ms H, Ms Turner’s mother, also filed an affidavit in this matter in which she asserted the commencement of the relationship as being approximately 2010. Like Ms Turner she sought to correct this to 2012 in her viva voce evidence. Ms H gave evidence that the error had come to her attention the night before the hearing.
Like Ms Turner, her explanation for the date in her affidavit material was trauma based. She stated that her earlier evidence had been impacted by her husband’s illness and that he had been in out of hospital, which was a very difficult and stressful time. Ms H could not explain why her memory now would be any better than then save to say she had thought about it and believed that she had Ms Turner’s children in her care until 2013. However, Ms H also conceded she had problems with dates. In addition, where Ms H refers to visiting the parties, she provides no dates save to confirm she saw the parties sharing a bedroom in 2014 which is not in dispute. Ms H does not say when she witnessed the parties together at family gatherings save to specify her 50th birthday, which she clarified under cross examination was also in 2014. For all of these reasons Ms H’s evidence was of no assistance in this matter.
Ms J
Ms J, Ms Turner’s sister, says in her affidavit that she met Mr Griffin in early 2012, when he was visiting Ms Turner and Ms J’s father in hospital. However, when it was pointed out that Ms Turner gave evidence that she did not meet Mr Griffin until October 2012, Ms J stated that it could have been a hospital visit in 2013, as her father was in hospital in both 2012 and 2013. Ms J was also unclear about when the relationship ended, stating in the witness box it could possibly have been later than 2015. I was therefore not assisted by the evidence of Ms J.
Mr Griffin
Mr Griffin’s evidence was just as problematic. In particular, Mr Griffin repeatedly changed the characterisation of the relationship. In his earlier affidavit material, Mr Griffin denied ever being in a committed relationship with Ms Turner describing their relationship as a “friendship” and asserting that for the most part she stayed in separate rental premises although she did stay with him “from time to time” after she gave birth to X. However, in material filed in February 2023, he described the relationship as “a boyfriend/girlfriend relationship” which came to an end in 2014. Under cross-examination, he conceded that they were in a committed relationship from when he found out she was pregnant until a few months after the birth of X.
Furthermore, although Mr Griffin denied in his affidavit recalling any event in which he became engaged to Ms Turner, whilst under oath he conceded that he did propose, that he later purchased a ring, and he intended to follow through with the marriage.
I am therefore loath to place much weight on Mr Griffin’s uncorroborated evidence.
Mr Griffin’s witnesses
Furthermore, the affidavits of Mr Griffin’s witnesses do not greatly assist me in my determination of this matter. None of the witnesses say how frequently they visited or interacted with the parties, and otherwise consist mainly of opinions, without any factual basis.
For example, it was submitted that I ought to accept the evidence of Mr K, Mr Griffin’s childhood friend, which was unchallenged that Mr Griffin was in another relationship with a person called Ms L in 2015. However, I cannot ascertain from that statement what he means by “relationship”, and it does not negate the possibility Mr Griffin was in two relationships at the same time.
Ultimately, I am concerned about the veracity of the evidence given by all of the witnesses in this case. As such, where possible, I have based my decision upon facts which are not in contention, on documentary evidence, and evidence which otherwise appears inherently reliable.
THE LAW
Section 4AA of the Act defines a de-facto relationship as follows:
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection 6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect to subsection (5):
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
…
(Emphasis added)
Section 4AA(3) of the Act provides that it is not necessary for the court to make any particular finding in relation to the circumstances in deciding whether a de facto relationship exists.
Furthermore, section 4AA(4) of the Act provides that the court can attach such weight to any such matter as the court thinks is appropriate.
In Fairbairn v Radecki [2022] HCA 18 the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia in Radecki & Fairbairn [2020] FamCAFC 307. The High Court held at [6]:
‘The Act contains no exhaustive definition of the term ‘breakdown’, save that s 4 of the Act relevantly provides that in relation to a de facto relationship, it ‘does not include a breakdown of the relationship by reason of death’ …
…
The High Court continued at [33] and [39]:
… cohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
…
The language of s 4AA of the Act and its reference to ‘living together’ requires no different approach to determining whether a relationship exists of the kind defined. ‘Living together’ … should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist.…
(Emphasis added)
It is therefore clear that none of the criteria set out in section 4AA(2) of the Act are definitive. Nonetheless, I have taken each into consideration, although I shall only discuss the matters which are relevant to my decision.
The nature and extent of the parties’ common residence
It appears on the evidence that Ms Turner and her children moved in with Mr Griffin for a short period in late 2012 before obtaining another rental in Town O. Ms Turner says that the parties spent about five nights per week at each other’s home during this period. Mr Griffin denies this.
It is not in dispute however that Ms Turner and her children moved into Mr Griffin’s property at 1 E Street in 2013. Mr Griffin says at this point Ms Turner was a boarder, and she was paying him $150 per week. Ms Turner denies this but says she was unable to get bank statements from that time to support her case.
It is also common ground that in late 2014 the parties and their children moved into 2 E Street.
Ms Turner says the parties lived together in that property until October 2016.
Mr Griffin says various things about the living situation:
(a)In his affidavit of 9 February 2023, he says Ms Turner began renting 2 E Street from him in 2014 and left there in November 2015;
(b)In other evidence he says she moved into 2 E Street in early 2015 when the relationship ended; and
(c)In his trial affidavit, he says Ms Turner did not start paying rent at 2 E Street until December 2015 and did so until August 2016 – although he says she remained there until October 2016 when the “friendship” broke down.
Ms Turner’s bank accounts indicate she was transferring amounts of $250 to Mr Griffin from about early 2015. Ms Turner says she was forced to make these transfers and to mark them as “rent” by Mr Griffin so that he could demonstrate rental income for a future bank loan but that she was really transferring these amounts for his phone bill. In support of the latter assertion, she has handwritten phone bill on each of the transfers. This evidence is problematic for three reasons. Firstly, the majority of the transfers were not marked as rent. Secondly, if Ms Turner is right, Mr Griffin’s phone bill amounted to exactly $250 per week, each week. Thirdly, her bank statements otherwise show BPAY payments to telecommunications providers.
Ms Turner also says that Mr Griffin had a history of controlling her finances and that she was required to give all of her Centrelink benefits each week to Mr Griffin, and that he would supply her with $120 per week which she had to use to “feed the family,” and pay for the household expenses. She says the budget was so tight she had to make all the food from scratch, and that she was also not permitted to do online banking.
However, this was simply not borne out by her bank statements which do not show Ms Turner transferring all of her Centrelink to Mr Griffin. Even if the cash withdrawals she made were given to Mr Griffin, she still used her own account to purchase items at supermarkets, retail outlets, cafes and the like. In terms of the budget being tight, it is evident that a number of times Ms Turner made discretionary purchases such as at McDonalds. In addition, she was able to make BPAY payments so clearly had access to online banking in some format. For this reason, I do not accept Ms Turner’s evidence that she was being coerced by Mr Griffin and as such do not accept that she was pressured by him into applying for Centrelink in early 2015, or to lie to the psychologist, Mr M, who assessed her for the purposes of her Magistrates Court hearing.
Whether a sexual relationship exists
Ms Turner says the parties commenced a sexual relationship in or about October/November 2012. Mr Griffin says this commenced an intermittent sexual relationship in July 2013.
Although it is common ground that from July 2013 the parties shared the house at 1 E Street with Ms Turner’s children, and Mr Griffin’s children when they spent time with him and that this meant there was only one bedroom for the parties to use, Mr Griffin gave evidence that he slept mainly in the loungeroom because he had to go to work early in the morning, and that on weekends, Ms Turner went to stay at her mother’s home.
Given I cannot rely on the evidence of either party where it is not corroborated, it is not possible to determine on the evidence how frequently the parties were intimate at any point in their relationship.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
Despite what was otherwise in his evidence, under cross-examination Mr Griffin says that from when he discovered that Ms Turner was pregnant, the parties lived as a couple, and he supported Ms Turner financially. However, he says the relationship broke down in early 2015 and from then Ms Turner moved into 2 E Street, paid him rent and was responsible for all utilities which were in her name.
As already discussed, Ms Turner says the parties were still in a relationship and that this was all a rouse by Mr Griffin so that he could benefit from her single parent benefits and so that he could demonstrate rental income for the purposes of a future bank loan.
Ms Turner says she continued to pay bills on behalf of Mr Griffin throughout 2015 including a phone bill. Mr Griffin agrees she paid that bill, but says she let herself into his house to pay it.
Again, it is not possible to rely on what the parties themselves have to say, however it is evident that in early 2015 Ms Turner applied for single parent benefits from Centrelink and was thereafter required to apply for child support.
The ownership, use and acquisition of their property
It is common ground that the parties did not at any time have a joint bank account and nor did they have any joint property. Although Ms Turner says that the parties purchased 2 E Street together both the title and mortgage to that property, as well as 1 E Street, were in Mr Griffin’s name and Ms Turner does not says she directly contribute any funds to the purchase of 2 E Street.
Nonetheless, Ms Turner says she contributed both financially and physically to the renovation of 2 E Street. Mr Griffin says this is not possible because the renovations did not occur until 2017 when she had already left the property, although his witness says the renovations occurred in 2016. There is otherwise no evidence to corroborate Ms Turner’s assertions in this regard.
In 2016, the parties entered into a contract to buy Town F. Ms Turner says this was because the parties were still in a relationship and intended to develop the land together. Mr Griffin says he did this to provide Ms Turner with some sort of financial security going forward as they had a child together. It appears that whatever deposit was paid was largely paid by Mr Griffin. It is not clear on Ms Turner’s evidence how much she says she contributed to the purchase. Mr Griffin says that Ms Turner did not pay anything but rather purchased livestock for the property.
Mr Griffin says that in late 2016, Ms Turner asked to be bought out of the contract because she could not afford it and that he paid her $2,500 for the livestock she had bought for Town F and agreed to pay her a further $10,000 upon proof of purchase of a new property so she would not “waste it.” This amount was never paid as no such purchase of property was ever made.
Ms Turner says that upon the relationship breaking down in October 2016, Mr Griffin forced her to sign over the title and agreed to pay her $2,500 so that she could pay the bond and four weeks rent at a new rental property and a further $10,000 if she purchased a new property. It was put to Mr Griffin that this was further evidence of his controlling behaviour, however, for reasons already stated I do not accept Ms Turner’s evidence that Mr Griffin was coercive and controlling of Ms Turner. Furthermore, his concerns about paying that money appear consistent with her history of being a previous drug user.
The degree of mutual commitment to a shared life
It is evident from the authorities that there is a difference between a situation where one party believes (or hopes) they are in a committed relationship and a situation where both parties share that same commitment. In Locke & Norton [2014] FamCA 811, Rees J said as follows at [163] – [165]:
The respondent made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social relationship and he financially supported her.
The applicant had a commitment to a life where she and the respondent would eventually live together once they were married.
There was no mutual commitment between the parties. Each party was committed to a different relationship.
(Emphasis added)
As stated by Austin J in Cizek & Mihov [2024] FedCFamC1A 151 at [61]:
It is difficult to see how their commitment to a shared life could be mutual unless they were committed to the same type of shared life. Without such mutuality of commitment, it is just as difficult to see how the parties could be a “couple” in a “genuine domestic” sense.
(Emphasis added)
Ms Turner says she believed the parties were in a committed relationship from November 2012. Mr Griffin maintained that the commitment only came about when Ms Turner became pregnant with their child, and that he realised he could not sustain that commitment to a shared life within a few months of X being born.
Both may be telling the truth in this regard. However, if this was the case they were both committed to a different relationship. Otherwise, there was little independent material to demonstrate a commitment to a shared life after about March 2015. Although the parties became engaged in late 2014, the parties never put in place any concrete plans to marry. The only evidence of any commitment to a shared life beyond that was the purchase of Town F with each party giving differing reasons for same.
The reputation and public aspects of the relationship.
Ms Turner says the parties attended social and family functions together throughout their relationship including Mr Griffin visiting her father in hospital when he was sick in 2013, and Mr Griffin attending her father’s funeral in 2013. Ms Turner also says they spent Christmas’s together, holidayed together with their children, and that Mr Griffin attended her mother’s 50th birthday.
Mr Griffin says he visited Ms Turner’s sick father and attended his funeral as a friend of Ms Turner’s. Otherwise, he says the camping trips, attendance at the mother’s birthday, and Christmas all occurred in the brief period he agrees he was committed the relationship. He concedes that after the relationship ended that Ms Turner has “popped in” on Christmas Day when he was spending time with X and would “say hello” to his family. Otherwise, Mr Griffin says they attended one holiday post-separation when they had a wedding to attend but had separate bedrooms.
Ms Turner’s sister, Ms J, only specifically mentions the Christmas in 2014. Under cross‑examination she could recall Mr Griffin attending another Christmas, but she thought this was in 2016, after separation. In any event for reasons already stated I cannot rely on her evidence or that of the other witnesses in this case.
In late 2013, Mr Griffin posted a picture of Ms Turner on his social media page with the caption “my sexy girl” but this is equally consistent with a boyfriend/girlfriend type of relationship.
Finally, Ms Turner annexes social media posts from early 2016 which give the impression that at least one person viewed the parties as being “a family”. The person who made the post was not called to give evidence so this could never be tested.
FINDINGS
The question of whether the parties were in a de facto relationship and for what period, is not a discretionary decision. It is a determination which is based on findings of fact. Unfortunately, due to the problematic nature of the evidence of each of the witnesses, including the evidence of the parties themselves, and the limited documentary evidence, it is very difficult to make concrete findings in this matter, even on the balance of probabilities. Nonetheless, I make the following limited findings:
(d)The parties met in late 2012;
(e)Ms Turner and her children stayed with Mr Griffin for a short period at the end of 2012 whilst she was looking for rental accommodation;
(f)Ms Turner and her children moved into 1 E Street with Mr Griffin in about mid-2013;
(g)Ms Turner and Mr Griffin shared the master bedroom when he was not working and had some form of sexual relationship from that time;
(h)In 2014, Ms Turner became pregnant with the parties’ son X;
(i)Mr Griffin proposed to Ms Turner in late 2014 and intended at that time to marry her;
(j)Mr Griffin purchased the property next door at 2 E Street in late 2014 using the equity in 1 E Street and the parties moved into that property together;
(k)X was born in 2014;
(l)In early 2015, Ms Turner applied for single parent Centrelink benefits and child support from Mr Griffin and she did so of her own freewill;
(m)From 2015, Ms Turner made regular payments to Mr Griffin of $250;
(n)The payments of $250 were not for Mr Griffin’s phone bill;
(o)In early 2016, the parties signed a contract to purchase the Town F property;
(p)In mid-2016, Ms Turner paid a phone bill on behalf of Mr Griffin;
(q)In late 2016, Ms Turner moved out of 2 E Street;
(r)In late 2016, Ms Turner transferred her interest in Town F to Mr Griffin; and
(s)In late 2016, Mr Griffin paid Ms Turner $2,500 and promised to pay her a further $10,000 upon proof of purchase of a new property which was never forthcoming.
Based on these facts, I find the parties were in a de facto relationship between April 2014 and March 2015 and that they rekindled that relationship in late 2015/early 2016 before finally separating in October 2016. I do not accept Mr Griffin would have entered into a purchase of joint property with Ms Turner unless the parties were in a committed relationship. Nor do I accept the assertion that Ms Turner would break into his property to pay a phone bill, which occurred in that year. The only motivation for doing so would be if Ms Turner was seeking to create evidence for her claim of being in a de facto relationship however, this seems unlikely given she failed to take any action in that regard for a further six years.
Pursuant to section 90SB of the Act, given the parties have a child together, it is not necessary to determine whether the relationship was for a period of two years or more. However, as I have found the de facto relationship ended in October 2016, pursuant to section 44(6) of the Act, Ms Turner requires leave out of time to pursue her substantive property application.
THE LAW: LEAVE OUT OF TIME
Section 44(5) of the Act relevantly provides:
Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM; or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found the be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
(Emphasis added)
As was observed by the Full Court in Lambertson & Lambertson [2021] FamCAFC 48 at [48]:
... It is well accepted that to allow the commencement of an action beyond a statutory time limit is prima facie prejudicial to the respondent (Brisbane South Regional Health Authority v Taylor [1996] HCA 25 … ). A respondent is entitled to believe that the cause of action has expired and to arrange their affairs accordingly.
However, section 44(6) of the Act provides:
The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
hardship would be caused to the party or a child if leave were not granted…
(Emphasis added)
Hardship was discussed in Whitford & Whitford (1979) FLC 90-612 at [78,144] – [78,145]:
The hardship referred to in section 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the court that the applicant would probably succeed if the substantive application were heard on the merits…
…In ordinary parlance, hardship means something more burdensome than “any appreciable detriment.” We consider that in subsection 44(4) the word should have its usual, though not necessarily it’s most stringent, connotations. … As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. … Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted.
(as per original)
The court must therefore consider the merits of Ms Turner’s claim for property and pursuant to authorities such as R v Watson; Ex parte Armstrong (1976) 136 CLR 248 (“R v Watson”) whether there is a “significant likelihood of success.” Then, pursuant to authorities such as Krueger & Krueger [2023] FedCFamC1A 203, the court must consider the likely costs of pursuing any claim and whether granting leave would address any hardship identified.
Significant likelihood of success
The relevant sections of the Act which set out the factors to be taken into consideration in a property division are found in section 79 for married couples and section 90SM in relation to de facto relationships. Except for some minor matters, they are largely the same and the authorities relating to section 79 of the Act equally applicable to section 90SM.
As stated in R v Watson, in assessing the likelihood of success of a party’s claim the court must at least “broadly engage” with the criteria set out in the Act and consider the likely range of outcomes based on the evidence before the court.
In her response Ms Turner seeks a 60 per cent division of the asset pool in her favour, however in final submissions her counsel advised the court that Ms Turner was only seeking between 25 to 30 per cent of the total pool, including superannuation.
Although the court is to undergo a broad assessment, in doing I am still guided by the four-step process set out in cases such as Lee Steere & Lee Steere [1985] FamCA 57; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395; and Omacini & Omacini [2005] FamCA 195.
The first step is to identify the parties’ legal and equitable interests in the existing assets and liabilities. The second step is to assess each party’s contributions to those assets in accordance with sections 90SM(4)(a), 90SM(4)(b) and 90SM(4)(c) of the Act. The third step requires the court to consider the range of factors set out in sections 90SM(4)(d), 90SM(4)(e), 90SM(4)(f) and 90SM(4)(g), including the factors identified in section 90SF(3) of the Act. The final step is to consider whether any resulting division would be just and equitable in all of the circumstances.
THE ASSET POOL
The parties had divergent views over the pool, given full disclosure had yet to be provided. However, in applications for leave out of time, pursuant to the authorities such as Jacenko & Jacenko (1986) FLC 91-776 at [75,643]:
… the court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted…
In final submissions, counsel for Ms Turner handed up an aide memoire setting out the net pool as asserted by Ms Turner, which was $818,097.52. I note that this does not include any capital gains tax which would have to be paid if the properties were sold, however, I only have Mr Griffin’s evidence that the properties are currently on the market.
Therefore, taking Ms Turner’s case at its highest I accept the pool for the purposes of this application to be $818,097.52.
CONTRIBUTIONS
The approach of the court when assessing contributions was set out in Aleksovski & Aleksovski [1996] FamCA 111 (“Aleksovski”) at [83,437] in which it was stated the Court must:
…weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
In Aleksovski at [83,443] his Honour Kay J further said:
The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital… What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.
SECTION 90SM(4) CONSIDERATIONS
Financial contributions to the property of the parties
It is not in dispute that Mr Griffin owned 1 E Street at the commencement of the relationship and used the equity in that property to secure the entire purchase of 2 E Street.
Ms Turner asserts that during the relationship, Mr Griffin worked long hours and that he earned in excess of $100,000. Ms Turner received Centrelink benefits and worked at a local business on weekends. Ms Turner says she applied her income for the benefit of the parties and that she contributed her finances to the renovation of 2 E Street, by way of purchasing second hand materials.
Non-financial contributions to the property of the parties
Ms Turner’s evidence is that she physically renovated 2 E Street, in particular that she “assisted with tasks such as demolition, hanging plaster, general clean up and acting as a courier to collect the items required for the renovations from various suppliers.”
Ms Turner says she was primarily responsible for the care of the parties’ children and the running of the home which enabled Mr Griffin to work long hours, at times leaving home at 2:30am and returning at 4:00pm to sleep until 8:00pm each day. In this way, Ms Turner asserts she made an indirect financial contribution to the property.
Contributions to the welfare of the family
Ms Turner says she cooked and cleaned for the family and took the children to and from school.
Ms Turner has also been X’s primary carer since October 2016.
Child support paid
Mr Griffin has been assessed to pay child support however Ms Turner says at trial, he was in arrears of $4,075.55.
FACTORS PURSUANT TO SECTION 90SF(3)
(a) age and health of the parties
Ms Turner is aged 38 years old and Mr Griffin, 45 years of age. I am not aware that either party has any significant health issues.
(b) the income, property and financial resources of the parties
Mr Griffin is an apprentice tradesperson who earns about $75,000 per year. He expects to finish his apprenticeship sometime this year but does not believe his income will increase substantially.
Ms Turner is working at N Company earning about $1,700 per week.
(c) care of a child
Ms Turner has primary care of X, since she relocated to Town C. X spends time with Mr Griffin each alternate weekends and half of the school holidays.
(k) Impact of the duration of the relationship on a parties earning capacity;
Given the length of the relationship, it is unlikely to have substantially impacted Ms Turner’s ability to earn an income.
(m) finances of others in the parties household
Ms Turner has since re-partnered but there is no evidence about her current partner’s earnings. She has not filed an updated financial statement since 2022, and her partner’s earnings were not contained in that document.
(q) Any child support paid
Ms Turner’s evidence is that Mr Griffin has been assessed to pay child support of $176.92 per month, however, she says he only pays intermittently and due to his arrears cannot be relied upon to pay in future. However, I note she is now seeking to have the agency collect the payments on her behalf.
ANALYSIS
Having found this was a relatively short relationship and taking Ms Turner’s evidence at its highest, it is evident that contributions still significantly favour Mr Griffin.
In terms of factors to be considered under section 90SM of the Act it is not apparent that Ms Turner’s future needs are significantly greater than Mr Griffin. Her income is seemingly higher than his and she has re-partnered, and, although she has the primary care of X, Mr Griffin is assessed to pay child support, and any arrears could be enforced by the child support agency.
Based on the aforementioned factors and taking Ms Turner’s evidence at its highest, I do not believe there is a significant likelihood that she will receive 25 to 30 per cent of the pool. Rather, it is likely she would receive up to but not more than 15 per cent of the pool.
Based on the pool as asserted by Ms Turner, being approximately $818,000, this would amount to a payment to her of about $122,000. Albeit that the costs of further proceedings may significantly reduce the payment to Ms Turner, I am still satisfied that if she were deprived of the opportunity to litigate for such an outcome that this would cause her hardship.
However, in determining whether to exercise my discretion and grant Ms Turner leave to litigate the matter, I must factor in the reasons for the delay and the prejudice to Mr Griffin.
DELAY
Ms Turner filed her application for property proceedings on 20 September 2022, almost six years after separation and almost four years out of time.
Ms Turner provided various reasons for this delay including:
(1)Her lawyer told her in 2018 she had no case;
(2)She believed Mr Griffin would make good on his promise to pay her the additional $10,000;
(3)She believed they might get back together;
(4)Her daughter passed away; and
(5)She did not have the money to file proceedings.
In regard to her lawyer’s advice, as was held in the case of Waldmann & Paddack [2024] FedCFamC1A 100 at [120] – [121]:
…ignorance of the law, including ignorance as a result of inadequate information being provided by a party’s legal advisor, is not a valid reason to extend time. Were it otherwise, any self-represented litigant or poorly advised litigant would be able to circumvent the relevant statutory limitation period …
…
If a litigant were able to avoid time limits by asserting ignorance of the law, including as a result of negligent or neglectful legal advice, those important public policy considerations would be circumvented.
(Emphasis added)
In terms of Ms Turner’s’ belief that the parties might get back together, there is no objective evidence to support this belief but, in any event, on her evidence, she says she realised there was no hope when her daughter passed away in 2019 and Mr Griffin refused to pay for her funeral. Further to this, whilst the death of her daughter was no doubt very traumatic, she was already out of time, and it was another three years before Ms Turner took any action.
In regard to Ms Turner’s asserted belief that Mr Griffin would make good on his promise to pay her the additional $10,000, the last communication Ms Turner had with Mr Griffin was in a text exchange in November 2020. In that exchange, which was initiated by Ms Turner upon finding the initial receipt whilst cleaning up, Mr Griffin says he will try to pay her but needs time to do so. Ms Turner consequently tells Mr Griffin that she will be seeking legal advice however takes no further action until Mr Griffin filed his application for parenting orders in August 2022.
Finally in terms of Ms Turner’s financial situation, she says she has had to borrow from family and the church to make ends meet and that she has had unexpected bills including paying for her daughter’s funeral. Whilst finances may have contributed to her delay, it seems some of those matters arose after the time limit expired and, in any event, many litigants are forced to represent themselves.
I am not satisfied that any of the aforementioned reasons proffered by Ms Turner adequately explain her delay in bringing proceedings.
DETERMINATION
Counsel for Ms Turner, in reliance upon the Full Court decision of Slocomb & Hedgewood [2015] FamCAFC 219, submitted that notwithstanding a failure to provide adequate reasons for delay the court could, and in this case, should, exercise its discretion to grant Ms Turner leave to proceed out of time. However, in exercising my discretion, I must also take into consideration the prejudice to Mr Griffin.
Given Ms Turner took no further action after 2020, and that at that time she was only seeking a further $10,000, Mr Griffin was within his rights to assume he could otherwise conduct his financial affairs without threat of being pursued for a property division.
Furthermore, it was readily apparent in these proceedings, that the evidence of the witnesses was severely impacted by the passage of time and that documents, such as bank statements, that may have assisted were no longer available. This is likely to significantly prejudice Mr Griffin.
Whilst acknowledging the hardship that will be caused to Ms Turner, given the delay, the inadequate reasons for same, and the prejudice to Mr Griffin, I do not propose to exercise my discretion to grant Ms Turner leave to pursue a property division in this court.
Accordingly, Ms Turner’s response will be dismissed.
For all the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 15 October 2024
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