HANNIGAN & MURRAY (No.2)
[2011] FMCAfam 1359
•12 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HANNIGAN & MURRAY (No.2) | [2011] FMCAfam 1359 |
| FAMILY LAW – Declaration sought as to when de facto relationship ended – applicants states 2009 – respondent states 2006 – applicant failed to establish that relationship ended in 2009 – finding made that de facto relationship ended in mid 2006 – separation date therefore occurred prior to the commencement date of the legislation – court does not have jurisdiction to make any declarations or determine the property settlement in the de facto matter – all outstanding applications dismissed. |
| Family Law Act 1975, Pt.VIII AB, VIIIB, sub-s.114(2A), ss.4AA, 39B, 90RD, 90SM Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, Sch. 1, Div. 2, Item 86(1) |
| Moby & Schulter (2009) FamCA 1285 Roy & Sturgeon (1986) 11 FLR S v B (No.2) (2004) 32 Fam LR 429 Jones v Dunkel (1959) |
| Applicant: | MS HANNIGAN |
| Respondent: | MR MURRAY |
| File Number: | DNC 602 of 2010 |
| Judgment of: | L. Turner FM |
| Hearing dates: | 31 October 2011 & 4 November 2011 |
| Date of Last Submission: | 4 November 2011 |
| Delivered at: | Darwin |
| Delivered on: | 12 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Snell |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the Respondent: | Ms Truman |
| Solicitors for the Respondent: | DS Family Law |
ORDERS
All outstanding applications are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hannigan & Murray (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 602 of 2010
| MS HANNIGAN |
Applicant
And
| MR MURRAY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties agree that they were in a long term de facto relationship which commenced in 1985.
The parties dispute however when the relationship ended, with the applicant maintaining the relationship ended in August 2009 and the respondent stating that it ended sometime in late 2005 or early 2006.
Issues
The issues that I am required to determine are:-
a)When did the de facto relationship end?
b)What impact if any does the end date of the de facto relationship have on the power of the court to either make a declaration or to determine the de facto property settlement?
In addressing each of the issues I have:-
a)Read all the material as marked in the court file including the exhibits;
b)Considered all oral and written submissions;
c)Considered the relevant sections of Part VIII AB of the Family Law Act 1975 and in particular section 90RD and section 90SM.
Findings of fact are made on the balance of probabilities, having regard to the evidence and the observation of witnesses and in what follows statements of fact constitute findings of fact.
When did the de facto relationship end?
The applicant maintains that the de facto relationship ended in August 2009 when she left the [B] property and is seeking a declaration by the court to that effect.
The respondent maintains that the relationship ended some three years earlier in late 2005 to early 2006 when the [H] property was transferred into the respondents name only and the applicant was paid $98,650.
Further the respondent states that if that finding is made, then the court can no longer deal with the matter, either to make a declaration as to an end date for the de facto relationship or a determination of the property division, as the court will not have the required jurisdiction.
The jurisdiction of the Federal Magistrates Court to hear and determine issues regarding de facto partners is set out in section 39B of the Family Law Act1975.
Pursuant to section 90RD (2) (a) the court has the power to declare when a de facto relationship ended.
What constitutes a “de facto relationship” is defined in section 4AA as a “relationship as a couple, living together on a genuine domestic basis” and regard must be had to “all the circumstances of their relationship” in making a determination as to the existence of a de facto relationship.
Cronin J in Moby & Schulter (2009) FamCA 1285 describes the definition as “vague” giving “the court a very wide discretion to define what a relationship really means.”
Powell J in Roy & Sturgeon (1986) 11 FLR at [274] and [275] analyses what constitutes a “genuine domestic basis” stating:-
“With respect, it seems to me, to attempt to dissect the phrase ‘living together as a husband and wife on a bona fide basis domestic basis’ into discrete elements, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis, which will vary from case to case. The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.”
As noted by Dutney J in S v B (No.2) (2004) 32 Fam LR 429 at [49] and [50] the onus to prove that the parties were living together on a “genuine domestic basis” as at the date of the alleged separation lies with the applicant:-
“In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality…the party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove ‘the negatives’.”
I find having taken into account “all the circumstances of their relationship” that on the balance of probabilities the applicant has not proven any “positive aspects” of the relationship and has not established that the parties were living together on a “genuine domestic basis” as at August 2009 based on the following:-
a)The undisputed facts alone support that separation did not occur in August 2009 but in mid 2006 with both parties leading very separate lives as illustrated by the following:-
i)By April 2006 the applicant is living in rental property at Property L, [L] initially with the daughter Ms S, who then moves out to live with friend’s family at [P]. All the rent for the [L] property is paid by the applicant;
ii)In May 2006 the [H] property is transferred from joint names of the applicant and the respondent to the respondent only;
iii)In June 2006 the applicant receives $98,650 from the respondent, an amount almost half of the valuation obtained on [H] property. This money is used exclusively by the applicant;
iv)In early December 2006, the respondent without the knowledge of the applicant commences plans to purchase a rental property;
v)In early December 2006 the applicant travels to Germany with plans to be away for only one month. The applicant leaves the sum of $3,000 with the daughter Ms S to pay for rent for the [L] property and for food and fuel;
vi)In January 2007 the respondent without informing the applicant purchases the [B] property in the name of [C];
vii)In late March 2007 the applicant returns to Darwin from Germany;
viii)In late May 2007 the applicant moves in alone to the [B] property. The applicant has not contributed to the mortgage repayments on the [B] property;
ix)On 28 March 2008 the respondent purchases work clothes for the applicant in the sum of $229.85. This is the only evidence of a purchase made by the respondent for the applicant during the three years;
x)Christmas 2008 is the only specific time both children observe the respondent and applicant together at the [B] property. No other independent evidence is before the court of persons observing the applicant and the respondent together either at the [B] property or any other location;
xi)In 2009 the applicant plans a “[omitted] Tour of Europe” holiday to be taken at a later date. The respondent is not included in the list of persons to attend the tour;
xii)In 2009 the respondent does his own trip to Europe without the applicant;
xiii)In August 2009 the applicant leaves the [B] property without informing the respondent;
xiv)In October 2009 the applicant rents a neighbouring property at [B] to live in, again without informing the respondent;
xv)In November 2009 the applicant without the respondent’s knowledge rents out the [B] property for $250 per week, signing the agreement on behalf of [C].
xvi)The applicant retains a large amount of the rental and leaves a note for the respondent (Annexure “G” of the respondent’s October 2011 affidavit) towards the end of the tenancy which in part reads “these guys have another 3 x months lease left….which gives you $3,500 to bank, I don’t want to touch their money anymore!”
xvii)In November 2009 the applicant informs the respondent that she has left the [B] property;
b)The nature of the parties’ relationship as reflected in its history is very different between 1985 and 2005 than from 2006 to 2009. It is not disputed that during much of the relationship the respondent was away for long periods of time with his fishing commitments. It is further not disputed that the parties did not have joint bank accounts. But whilst in the past the parties consulted each other about the properties they acquired and the business ventures they were pursuing, the communication in the last three years is non existent from both the applicant and the respondent. Further the parties in the past intermingled their finances, again something that has not occurred between 2006 to 2009.
c)Despite giving extensive evidence in cross-examination as to the names of at least 15 individuals available in the Darwin and [B] area who could support the applicant’s position that she was in a de facto relationship with the respondent leading up to the alleged separation in August 2009, affidavits were not filed by any witnesses nor were subpoenas issued for witnesses to give evidence. Further the applicant deposes in her March 2011 affidavit at [43] that “Other people including work colleagues are able to give evidence”. No satisfactory explanation was provided as to why the witnesses were not called. The applicant when asked why she had not called the witnesses replied “I don’t know”. Her legal representative was equally as vague stating that perhaps they did not want to get involved. I have no alternative but to infer in accordance with Jones v Dunkel (1959) that the witnesses were not called and affidavits were not prepared as the evidence would not have assisted the applicant’s case.
d)The applicant did not call the two people, one of whom she describes as a good friend, that were named on her Centrelink Separation detail form which was lodged in May 2010 as persons who “can confirm your separation” (Annexure “RUH 5” of the applicant’s October 2011 affidavit) to give evidence.
e)The applicant deposes in her March 2011 affidavit at [43] that “….I do not wish for Ms S to have to give evidence in any dispute between her parents, but she is able to attest to the fact that [Mr Murray] and I continued in our relationship until August 2009.” The daughter of the relationship Ms S did give evidence but it was not in support of the applicant, deposing at [1] and [2] of her affidavit that “to the best of my knowledge and belief, settlement of financial matters between them occurred when my father paid a lump sum… to my mother in return for receiving her 50% interest in the [H] property. I cannot accept the assertion that she continued to reside in a de facto domestic relationship with my father until August 2009.”
f)The applicant called only one witness, her daughter from a previous relationship, Ms H. I give no weight to Ms H’s evidence for the following reasons:-
i)Ms H has not lived with the parties for a number of years and has never lived at the [B] property;
ii)The belief of Ms H that the applicant and respondent were living together in the [B] property until August 2009 is fuelled primarily by information provided by the applicant;
iii)Ms H’s only independent knowledge is based on two issues, firstly that she saw the respondent on a few occasions at the [B] property and secondly that she saw clothing, a few tools and toiletries at the [B] property which she assumed belonged to the respondent as the applicant informed her of this. The respondent does not deny that he has been at the property even staying overnight on one occasion, but that his visits were in relation to the maintenance and checking of the property. As to the men’s clothing and toiletries the applicant admits that she cared for another male at the [B] property for a number of months;
iv)As Ms H’s recollection of events lacked detail and specificity, I find that it does not support the applicant’s contention that she and the respondent were living together on a genuine domestic basis from 2006 to 2009.
g)The only independent evidence that the applicant relies upon apart from her daughter’s evidence are documents pertaining to the respondent’s business [C] using the post office box and the respondent’s taxation documents where the address given was the [B] property. The respondent admits that he has always used the [W] Post Office box which until June 2009 had been in the name of the applicant. The taking over of the post office box was one of the main reasons why the relationship ended according to the applicant. The respondent states that he had no choice but to take it over into his name because accounts were outstanding and he wanted to retain that post office number. As to the [B] property, this is a property that was acquired by the respondent in the respondent’s name only and therefore it is within the respondent’s right to use the property address for his taxation returns. I therefore give no weight to this evidence as supporting the applicant’s position as to the existence of a de facto relationship until August 2009.
h)The applicant has failed to produce documents that may have provided evidence in support to the de facto relationship ending in 2009, such as applications for market licences. The documents that were produced were selective and provided little assistance to the court in considering the application. For example the diary entry extracts (Annexure RUH-1 to the applicant’s October 2011 affidavit) make no specific mention of the respondent.
i)The applicant’s trial affidavit does not speak of the “positive aspects” of the de facto relationship during 2006 and 2009. Any reference to the relationship is in very general terms, and does not provide specific details as to, for example, how often the respondent was away at work, what their routine was upon his return, whether they holidayed together, what hobbies they pursued and what family functions they attended. The lengthiest passage refers to the parties being involved in markets together, but apart from vague diary notes prepared by the applicant, none of which make mention of the respondent’s attendance at the markets, no documents were produced in support of their attending the markets and no witnesses were called attesting to the parties’ joint involvement at the markets.
j)Much was made of Christmas 2008 where the children saw the respondent with the applicant and the respondent stayed the night. This incident is not disputed by the respondent who states that he wanted to catch up with his daughter Ms S and ended up staying the night as he had to wait to get fuel. This one event alone is insufficient to establish that a de facto relationship was in existence at the time.
k)I find that the applicant is not a credible and reliable witness for the following reasons:-
i)There are a large number of inconsistencies in her evidence as compared to her previous affidavits filed in this matter such as the date of separation, the amount of money she received from the applicant in 2006, the nature of that payment, how and why the refinancing of the [H] property took place, how and why the [B] property was acquired, why the [H] property was transferred into the respondent’s name and her receipt of income and her employment;
ii)After giving evidence that any important events are captured in her diary, there was nothing in the applicant’s diary as to the separation in August 2009 or to the events that allegedly occurred leading up to the separation. When questioned why the diary is silent, the applicant responded that her separation was not a "huge event” and that is why it wasn’t the subject to a diary entry;
iii)Whilst being adamant in cross-examination that her memory is excellent, her memory failed her in her recollection that the respondent collected her upon her return from Germany at 3.00pm in the afternoon and took her out to the [B] property in the afternoon whereas her diary entry notes that she arrived in Darwin at 4.30am and makes no mention of being collected by the respondent with a further notation of “Ms H? Car?” next to the entry;
iv)There are further inconsistencies with when the applicant moved to [B]. In her first affidavit filed in December 2010 at [5] the applicant deposes “On my return to Australia the respondent collected me from the airport and we returned home at Property B, [B].” In her affidavit filed 27 October 2011, the applicant refers to moving into the property in April 2007. In cross –examination the applicant admitted that she was not told as to the purchase of the [B] property and was not made aware of its existence until her return to Australia. When it was put to her that the move didn’t occur until 26 May 2007, as evidenced by the Move Yourself trailer invoice at Annexure “D” of the respondents October 2011 the applicant conceded that this was the date. This was further confirmed by her diary entry for 26 May 2007 of “move [B];”
v)The applicant left significant details out of her affidavit such as a purported conversation between herself and the respondent whereby the respondent informed her that he couldn’t rent the [B] property out for two years and that is why he wanted them to live there and purported conversations as to improvements to [B] which took place between the applicant and the respondent in front of friends;
vi)Further the applicant left out all details pertaining to the rental of the property across the road from the [B] property and how she didn’t tell the respondent until November 2010 that she had vacated the [B] property;
vii)The applicant seems to falter in her own belief that it was a de facto relationship referring to it during cross-examination as “our relationship or whatever you might call it;”
viii)The applicant states that she did not inform the respondent of the separation until some 3 months after the event;
ix)The applicant’s overall demeanour during cross-examination was aggressive and confrontational, showing repeated resentment towards the respondent’s counsel. This together with the applicant’s vagueness and deliberate avoidance and the advantageous rewording of answers to repeated questions I find is indicative of the applicant not being entirely truthful in the delivery of her evidence.
l)The respondent denies that the parties have been in de facto relationship since 2005 or 2006. His uncertainty as to the exact date is because he describes the relationship as having been “rocky” for many months, leading eventually to an informal property settlement in mid 2006 whereby the [H] property was transferred into his name and a large sum of money representing roughly one half of the value of the [H] property was paid to the applicant. I find that respondent to be a credible witness.
m)Aside from the respondent’s own evidence, the independent evidence before the court supports that separation occurred in 2006 based on the following:-
i)The affidavit by Ms B a Licensed Conveyancer, provides a snapshot of what happened in 2006. The applicant chose not to call Ms B for cross-examination. The following evidence is of importance:-
· In Annexure “A” to her affidavit, Ms B in her notes taken 16 May 2006 states that the respondent spoke to her in respect to the [H] property which was valued at $160,000 (Annexure “E”) in order to arrange to pay out his partner in respect to a “de facto split” and to put the property into his name.
· Ms B makes enquires with the Stamp Duties office as to whether the respondent could be exempt from stamp duty as the property was held as tenants in common. On 16 May 2006 the respondent completes and signs an “Exemption Settlement of property – de facto relationship” form (Annexure “B”) resulting in an exemption being granted.
· On the same day the applicant and the respondent sign a transfer to the respondent of the [H] property, the consideration for which is noted at $80,000 which was half of the value attributed to the property.
· On 19 May 2006 the respondent secures a loan for $100,000. On 21 June 2006 Ms B organise the settlement cheques of $98,650 to the applicant, the balance being used to pay loan fees and settlement fees. It was the applicant that provided her bank details to Ms B for the direct deposit.
ii)The affidavit by Mr B, a Mortgage Broker from [E] Loans corroborates the evidence of Ms B. Mr B was not called for cross-examination by the applicant;
· Mr B recalls when completing the loan forms that the purpose of the loan was to pay out the respondent’s partner.
· The checklist completed in May 2006 (Annexure “A”) notes “to buy wife’s share of the block.”
· In the fax to the lender (Annexure “B”) Mr B confirms that the respondent “just wishes to borrow $100,000 to buy out his partner and cover a few incidental costs.”
· On 15 December 2006, Mr B confirms (Annexure “D”) to the lender that the $100,000 was used to “buy out a partner’s share” and notifies the lender of the respondent’s intention to purchase an investment property.
· Mr B deposes at [8] “There is no doubt in my mind that throughout my dealings with [Mr Murray] over this period, he and his de facto partner were going ‘their separate ways’ and their relationship was at an end. [Mr Murray] was simply buying out her ‘half’ of the [H] property.”
· Then at [9] “On one occasion, when [Mr Murray] attended my offices to sign some further documentation in connection with the loan, his ex-partner came with him. There was clearly “no love lost” between them, and I recall that she demonstrated quite a hostile attitude towards both [Mr Murray] and myself. In particular I formed the view that she had come along with [Mr Murray] just to make sure that he was actually signing the documents, because she asked me to show the paperwork that [Mr Murray] had just signed… She then specifically asked me ‘So when do I get my money?’ When I explained to her that it would probably take a week or two for all the paperwork to be completed and for the settlement to go through, she became agitated and got out of her chair, shouting ‘This isn’t good enough, [Mr Murray]!’ before storming out of my office.” This is the only occasion that Mr B met the applicant.
iii)The respondent obtains the [B] property in the name of his business [C] on 29 January 2007 (Annexure “L” and “M” of Ms B’s affidavit). The settlement statement and letter were sent to the PO Box at [W] which accords with the respondent’s claim that he used that PO Box number even after separation occurred. Annexure “G” of Mr B’s affidavit confirms that the loan was in the respondents name only for the purchase. The respondent does not inform the applicant of his intention to purchase prior to her departing to Germany in December 2006, and the applicant only finds out about it after her return in March 2007;
iv)The respondent’s bank statements (Exhibit “C” and “D”) which span from April 2007 to July 2009 show only three transactions at the [B] General Store, two transactions from the restaurant at the [B] Resort and two transactions from the [omitted] tavern. These transactions are not indicative of a person living in [B] for over two years. The respondent explains that when he went to [B] to do maintenance or to check the property he would often put fuel in the car and would purchase a meal before returning to [H]. In view of the limited transactions I find that this explanation on the balance of probabilities is plausible. In contrast the transactions in Darwin and surrounds, especially for food shopping are numerous, and the combined transactions in [H] are over thirty, mainly for food and fuel. This is consistent with the respondent living at [H] or on his boat;
v)A “Credit Application and Assessment Report” by Esanda dated 14 March 2008 when the Respondent purchases a motor vehicle for one of the children, records the respondent’s marital status as “single” (Annexure “I” in the respondent’s October 2011 affidavit);
vi)In the respondent’s taxation return for the 2008/2009 year (Exhibit “B”) the respondent in response to the question whether “married or de facto” answers “no”. This is in sharp contrast to the [E] Loans application (“Exhibit “A”) made in February 2006 where the respondent answers “yes” to a similar question;
vii)All utility bills produced to the court for electricity and telephone for the [B] property are in the name of [C] only and make no mention of the applicant.
Conclusion
Taking into account all the circumstances as well as the history of this relationship there is no evidence before the court to establish that the parties were in any form of a domestic relationship as at August 2009.
I find on the balance of probabilities that the relationship ended sometime in the first half of 2006 and that by June 2006 when the applicant was paid out in exchange for the transfer of the [H] property to the respondent that the de facto relationship had ceased completely.
I further find that upon the applicant’s return to Darwin in March 2007 that the relationship did not resume.
What impact if any does the end date of the de facto relationship have on the power of the court to either make a declaration or to determine the de facto property settlement?
With the introduction of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 the Family Court and the Federal Magistrates Court were provided in 2009 with jurisdiction pursuant to Part VIIIAB, Part VIIIB, and subsection 114(2A) of the Family Law Act 1975 to determine financial matters in respect to de facto relationships.
One necessary criterion which must be satisfied before the court can exercise their jurisdiction in financial matters in de facto relationships is that the de facto relationship must have broken down after the commencement of the legislation.
This requirement is set out in Schedule 1 Division 2 Item 86(1) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008:-
(1) Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation to a de facto relationship that broke down before commencement.”
The commencement date is the 1 March 2009.
Conclusion
As I have made a finding that the de facto relationship had completely ceased by June 2006, then I find that the court has no jurisdiction either to make a declaration as the end date of a de facto relationship, or a determinate a de facto property settlement.
I therefore dismiss all outstanding applications.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of L. Turner FM
Date: 12 December 2011
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