Harriott and Arena

[2013] FCCA 1604

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRIOTT & ARENA [2013] FCCA 1604

Catchwords:
FAMILY LAW – De Facto relationships – where application commenced in New South Wales – where parties not ordinarily resident in New South Wales during at least a third of the relationship – where the relationship of the parties took place almost entirely in (country omitted) – where the geographical requirement under Family Law Act 1975 (Cth) s.90SK not satisfied.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 90SK, 90SL, 90SM

Cases cited:
Webb & Douglas [2012] FMCAfam 1049

Applicant: MS HARRIOTT

Respondent: MR ARENA

File Number: SYC 1615 of 2013

Judgment of: Judge Scarlett

Hearing date: 23 September 2013

Date of Last Submission: 23 September 2013

Delivered at: Sydney

Delivered on: 16 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: Williams The Law Firm

Counsel for the Respondent: Mr Blackah

Solicitors for the Respondent: Gibsons Lawyers

ORDERS

1. The Application filed on 27 March 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1615 of 2013

MS HARRIOTT

Applicant

And

MR ARENA

Respondent

REASONS FOR JUDGMENT

Application

1. This is an argument about jurisdiction. The Respondent seeks summary dismissal of the Applicant’s Application for property orders under s.90SM of the Family Law Act 1975 (Cth) on the basis that the geographical requirement under s.90SK has not been met. The Respondent also seeks a declaration that the parties were not in a de facto relationship within the meaning of s.90SK(1) of the Act.

Background

1. The parties met at the (omitted) in Sydney on (omitted) 1999. The Respondent had been living in (country omitted) for a number of years and at the time the parties met was employed as the (omitted) of a (omitted) in (country omitted).

2. The parties spent some time together at (omitted) in New South Wales, where the Respondent owned a property. The Respondent returned to (country omitted).

3. The Applicant visited (country omitted) in (omitted) 1999 and again in (omitted) of that year. She travelled to (country omitted) in (omitted) 2000 and they commenced living together.

4. In October of that year the Respondent was advised by his employer that his contract had been terminated. The (omitted) was placed in receivership in December. The parties negotiated a takeover of the (omitted) business. The Applicant says that the Respondent received 50% of the business in lieu of accrued wages and entitlements and she obtained 50% by paying $30,000.00 out of the proceeds of sale of her home.

5. In 2003 the parties purchased a property at Property D for $120,000.00. The Applicant paid $30,000.00 toward that purchase. They also purchased another property, for which they borrowed the money.

6. The parties separated in December 2011.

Issue

1. The issue is whether the Court has jurisdiction to make the order under s.90SM that the Applicant seeks. To establish jurisdiction, the Applicant must satisfy the geographical requirement set out in s.90SK. New South Wales is a participating jurisdiction for the purposes of s.90SK.

2. Section 90SK prescribes, relevantly, that:

   (1)A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:

   (a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and

   (b)     that either:

   (i)          both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

   (ii)    the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a),(b) or (c);

   in one or more States or Territories that are participating jurisdictions at the application time;

   or that the alternative condition in subsection (1A) is met.

   (1A)The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

Evidence

1. The Applicant relies on her affidavits of 25^th March and 13^th September 2013.   

2. In her affidavit of 25^th March the Applicant deposed that she first met the Respondent on or about (omitted) 1999 at the (omitted) in Sydney. They developed a relationship which resulted in her moving to (country omitted) to live with the Respondent in about (omitted) 2000.

3. The Applicant deposed that when she went to (country omitted) she did not immediately resign from her job in Sydney, but kept the job “on hold” for 3 years.[1] She resigned three years later, as she was still living in (country omitted).  

   [1] Affidavit of Ms Harriott 25.3.2013 at paragraph [7]

4. Prior to moving to (omitted) in about (omitted) 1999, the Applicant sold her home in (omitted), New South Wales, for $240,000.00, from which she received a net balance of about $80,000.00.

5. The Applicant deposed that when she travelled to (country omitted) she resided with the Respondent at the (omitted). The Respondent was the (omitted) of a business called (omitted). After about 12 months, the business went into receivership. The Applicant and the Respondent were able to negotiate a takeover of the business without debt. The Applicant paid $30,000.00 out of the proceeds of sale to purchase 50% of (omitted).

6. In 2003 the parties purchased what was to become their home. The Applicant states:

   In or about 2003 we purchased the former matrimonial known as the Property D (“Property D”), for $120,000.00. I paid $30,000.00 towards the purchase of the Property D, the balance of the purchase price was funded through a joint mortgage between the Respondent and I with (omitted) Bank, (country omitted).[2]

   [2] Affidavit of Ms Harriott 25.3.2013 at [18]

7. The parties purchased another property in bout 2003, for which they borrowed the money necessary for the purchase price. Later, in 2010, they purchased land on Property D, (country omitted), for approximately $150,000.00. The purchase was funded by a mortgage to the (omitted) Bank.

8. The Applicant also deposed that:

   The $20,000.00 left after my contributions of $30,000.00 each respectively for the purchase of the (omitted) business and the Property D property was diminished over the period of our relationship when needed.[3]

   [3] Ibid at [22]

9. In her later affidavit, sworn on 13^th September 2013, the Applicant gives a different account of the commencement of the de facto relationship, which she now claims commenced in (omitted) 1999.

10. The Applicant deposes that:

    a)The parties lived together at the Respondent’s property in Property O, New South Wales, for a period of time in (omitted) 1999 until the Respondent returned to (country omitted) in late August;[4]

    b)The Respondent travelled to Australia in (omitted) 1999 and they lived together in a caravan park at or near the (omitted) until late (omitted) 1999, when the Respondent returned to (country omitted);[5]

    c)The Applicant travelled to (country omitted) in late (omitted) 1999 and lived with the Respondent at (omitted) for three weeks before returning to Australia;[6]

    d)The Respondent returned to Australia on (omitted) 1999 and the parties stayed at the Applicant’s home at (omitted) before  moving to Property O;[7]

    e)The parties travelled to (country omitted) in (omitted) 2000 and lived at the (omitted) “for four weeks…we lived together at the (omitted) until (omitted) 2000 as my visitor’s permit had expired”[8];

    f)The Applicant applied for permanent residency in (country omitted) “during 2000”;[9] and

    g)The Applicant returned to (country omitted) on (omitted) 2000 and lived with the Respondent at the (omitted).[10] 

    [4] Affidavit of Ms Harriott 13.9.2013 at paragraph [5]

    [5] Ibid at [6]

    [6] Affidavit of Ms Harriott 13.9.2013 at [7]

    [7] Ibid

    [8] Ibid

    [9] Ibid

    [10] Ibid

11. The parties separated in December 2011 and the Applicant returned to live in Australia.

12. The Applicant sets out her commitment to the relationship with the Respondent in paragraph [12] of her affidavit:

    Between (omitted) 1999 I lived in Sydney and Mr Arena lived in (country omitted). On a daily basis Mr Arena sent me a fax and we spoke to each other on the telephone once per week. Both in the faxes and on the telephone Mr Arena said to me, “I love you and want to be with you. I miss you. I love you heaps. I can’t wait to see you again.” I responded to his faxes and he responded to my faxes. Both by fax and telephone we discussed our future together. I told Mr Arena that I loved him and wanted to live with him. Mr Arena by fax advised me that he wanted to live with me and that he wanted me to visit (country omitted). I travelled to (country omitted) in (omitted) 1999. Whilst I was there we discussed our future living arrangements. I said words to the effect to Mr Arena, “I know I will love it here it is beautiful. I will move here. I knew I would love it. I have already put my house on the market for sale.”[11]

    [11] Ibid at [12]

13. The Applicant went on to depose that at the time she met the Respondent there were parenting Orders in place between her former husband and herself relating to their younger son. She applied to the Family Court of Australia to vary those Orders to enable the child to stay with her in (country omitted) during the school holidays. Copies of her Application, which was returnable on 2^nd December 1999, and her affidavit in support were tendered in evidence.

14. In her Application to the Family Court, the Applicant sought to discharge the Orders made by that Court on 16^th January 1997 and substitute fresh orders providing that:

    a)The child would live with his father, who was to have sole parental responsibility for him; and

    b)The child would spend time with her on specified occasions:

    3.1As from 9:00 am on 20 December, 1999 until 6:00 pm on 3 January, 2000.

    3.2On up to 12 occasions every year within the Sydney metropolitan area, with each such occasion being of not more than 24 hours duration, and upon the wife giving to the husband 14 days notice, of her intention to exercise such contact.

    3.3On up to 3 Occasions every year within the Commonwealth of Australia, with each such occasion being of not more than 3 weeks duration, and upon the wife giving to the husband 28 days notice of her intention to exercise such contact.

    3.4On one occasion every year in (country omitted), such occasion to be for a duration of not more than 2 weeks, and upon the wife giving to the husband 42 days notice of her intention to exercise such contact.  

15. The Applicant swore an affidavit on 29^th November 1999 in which she set out her intentions about living with the present Respondent. She deposed:

    10.On the (omitted) 1999 I commenced a relationship with Mr Arena, who is 46 years of age and is a (occupation omitted) at (omitted), (country omitted). Although Mr Arena presently lives in (omitted), he also supervises a small business, “(omitted)”, in (omitted) near (omitted) in the New South Wales (region omitted). I have formed a close relationship with Mr Arena and I wish to live with him in (country omitted). I believe that Mr Arena and I are in a stable and enduring relationship with the prospect of it becoming permanent.

    11.I have now listed my home at (omitted for sale and Contracts have been exchanged for the sum of $235,000.00. After my mortgage is discharged and other debts and expenses are met, I propose investing $70,000.00 in an interest bearing account her in Australia, probably on a fixed tem of six to twelve months.[12]

    [12] Affidavit of Ms Harriott 29.11.1999 at paragraphs [10]-[11]

16. The Applicant went on to depose:

    13.I propose leaving Sydney on the (omitted) 1999 to travel to (omitted) to visit Mr Arena’s family. On the (omitted) 1999 Mr Arena and I propose travelling to the (omitted) in Brisbane after which, on the (omitted) 2000, we will be flying to (country omitted).

    14.I expect to be living in (country omitted) for at least the next twelve months and probably the next three years.[13]

    [13] Ibid at [13]-[14

Submissions

1. Counsel for the Respondent, Mr Blackah, submitting that the evidence shows that the parties commenced living together in (omitted) 2000. He further submitted that the Court would not accept the Applicant’s later contention in her second affidavit that the de facto relationship commenced in (omitted) 1999. It is submitted that the Applicant is seeking to establish an earlier commencement date for the relationship in order to characterise various things done by her as contributions in relation to the de facto relationship.

2. Mr Blackah submitted that the term “living together” in the definition of a de facto relationship in s.4AA(1) of the Family Law Act contemplates something permanent, not a short term arrangement whilst someone is visiting from overseas. Contributions made prior to the commencement of a de facto relationship cannot be said to be “in relation” to the de facto relationship.

3. The Respondent’s case is summarised in the final paragraph of the Respondent’s written submission:

   There are no substantial contributions in New South Wales of the type specified in Family Law Act s. 90SK(1)(b)(ii). Any substantial contributions made by the Applicant either pre-date the de facto relationship or took place in (country omitted).

4. Counsel for the Applicant, Mr Givney, submitted that the Applicant has clearly made indirect financial contributions to the Respondent’s property at Property O. He submits, correctly in my view, that the Applicant’s case on the threshold issue should be taken at its highest.

5. It is the Applicant’s case that the decision by the parties that they would live together in a de facto relationship was made in Australia, not (country omitted).

6. The submission is that the evidence to support the contention that the parties commenced to live together comes from these three facts:

   a)That the Applicant sold her property in (omitted);

   b)That she took leave of absence from her employer; and

   c)That she forwent a shared care arrangement with respect to her younger son.

7. Mr Givney submitted that the Applicant’s contributions during the course of cohabitation can be identified as:

   a)The sale of her property at (omitted);

   b)Taking leave of absence from her job;

   c)Living in (country omitted) to support the Respondent;

   d)Entering into consent Orders in relation to her younger son;

   e)Contributing the sum of $30,000.00 towards the purchase of the (omitted) business in (country omitted);

   f)Contributing $30,000.00 to the purchase of the parties’ home in (country omitted);

   g)Miscellaneous homemaker contributions; and

   h)Direct financial contributions from time to time.

8. The Applicant relies on the decision of Altobelli FM[14] in Webb v Douglas[15]at [19] that the word “substantial” in the phrase “substantial contributions” in s.90SK(1)(b)(ii) means “something more than usual or ordinary”.

   [14] As his Honour then was

   [15] [2012] FMCAfam 1049

9. The Applicant’s case is that:

   In those circumstances: the selling of the property; taking a leave of absence; the foregoing of a relationship with her child; and the decision to move to another country can only be regarded as “substantial”. In the circumstances of this case it is respectfully submitted there cannot be any other conclusion other than those contributions as being substantial.

The Duration of the Relationship

1. De facto relationships are defined by s.4AA(1) of the Family Law Act 1975 in this way:

   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.

2. Subsection 4AA(2) provides a guide to working out if persons have a relationship as a couple:

   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.

3. Applying those tests, it is clear that there is evidence of a de facto relationship having been in existence during the time that the parties resided together in (country omitted), commencing from their arrival together on (omitted) 2000.

4. The Applicant contends that the relationship commenced in New South Wales on a date in (omitted) 1999, but her evidence in paragraph [12] of her affidavit of 13^th September 2013 and paragraphs [10], [11], [13] and [14] of her affidavit of 29^th November 1999 does not support that contention. Rather, those paragraphs describe the parties exchanging declarations of love and expressing a desire to live together in a relationship in the near future.  

5. The affidavits also describe the steps taken by the Applicant to get ready to enter into this relationship with a view to its being a permanent relationship.

6. Whilst it may be argued that the parties’ de facto relationship may have commenced a few days before they set off to (country omitted) together on (omitted) 2000, in my view the evidence clearly shows a de facto relationship that commenced by (omitted) 2000.

The Geographical Requirement

1. In order for the Court to have jurisdiction to make an order under s.90SM of the Act, the Court must be satisfied that the requirements of s.90SK have been met.

2. I am satisfied that the Applicant was ordinarily resident in a participating jurisdiction, namely New South Wales, when the Application was made on 27^th March 2013 (s.90SK(1)(a)).

3. I am not satisfied that both parties to the relationship were ordinarily resident in a participating jurisdiction during at least a third of the relationship (s.90SK(1)(b)(i)), as it is clear that from (omitted) 2000 until the relationship ended in (omitted) 2011, the parties were residing in (country omitted).

4. I am not satisfied that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down (s.90SK(1A)), as the evidence is that the relationship broke when the parties were residing in (country omitted).

5. The Applicant needs to show that she made substantial contributions in relation to the relationship of a kind mentioned in paragraphs 90SM(4)(a),(b) or (c) in one or more States or Territories that are participating jurisdictions at the application time in order to comply with the requirement in paragraph 90SK(1)(b)(ii).

6. The contributions under s.90SM(4) are:

   a)financial contributions made directly or indirectly to the acquisition, conservation or improvement of any of the property of the parties;

   b)contributions other than financial contributions made directly or indirectly to the acquisition, conservation or improvement of any of the property of the parties; and

   c)contributions to the welfare of the family including any contribution made in the capacity of homemaker or parent.

1. The evidence shows financial contributions made by the Applicant towards the purchase of the (omitted) business, the purchase of the parties’ home in (country omitted), and contributions to meet the parties’ various expenses from time to time. However, these contributions were all made in (country omitted).

2. I am not satisfied that those contributions can be characterised as having taken place in New South Wales because the funds used to make those contributions were held in various accounts with the (omitted) branch of the (omitted) Bank.[16] The money was paid on each occasion in (country omitted) and it is in (country omitted) that the contributions were made.

   [16] Affidavit of Ms Harriott 13.9.2013 at [22]

3. The steps taken by the Applicant in Australia, such as selling her home, taking leave of absence from her job, and rearranging the parenting arrangements relating to her child of her earlier marriage, were all taken before the de facto relationship commenced.

4. Thus, I am not satisfied that the Applicant has satisfied the geographical requirement set out in s.90SK of the Act, in that she has not shown that she made substantial contributions of a kind mentioned in s. 90SM(4)(a),(b) or (c) in a State or Territory that is a participating jurisdiction at the application time. Hence, the test in s. 90SK(1)(b)(ii) has not been met.

Conclusions

1. As the geographical requirements, as set out in either s.90SK(1) or s.90SK(1A) have not been met, it follows that the Court does not have the jurisdiction to make an order under s.90SM of the Act.

2. The Application will be dismissed.

3. In his Amended Response, the Respondent seeks a declaration that the parties were not in a de factor relationship within the meaning of section 90SK of the Family Law Act. In my view, s.90SK does not give the Court power to make a declaration that parties were or were not in a de facto relationship.

4. Section 90SK sets out a geographical requirement that must be satisfied before the Court has power to make a declaration of interests in property under s.90SL or an order altering the property interests of parties to a de facto relationship under s.90SM. It is not concerned with whether a de facto relationship existed or not. It is only concerned with making a declaration or an order in relation to a de facto relationship that has a connection to a participating jurisdiction.

5. It may well be that the Applicant has a right of action under the law of (country omitted). That is a matter for the judicial system of that country. It is not a matter for this Court.      

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 11 October 2013