Henry & Cuso
[2022] FedCFamC1F 190
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Henry & Cuso [2022] FedCFamC1F 190
File number: WOC 108 of 2021 Judgment of: MCGUIRE J Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – PROPERTY – Application by wife for the alteration of property interests – where wife argues that parties were in a genuine de facto relationship from 2004 until the time of the parties marriage in 2018 – application opposed by the husband who asserts the parties were not in a de facto relationship – application dismissed Legislation: Family Law Act 1975 (Cth) s 4AA(2) Cases cited: Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman (2014) FLC 93-592
Dawes v Dawes (1990) FLC 92-108
Elias vElias (1977) FLC 90-267
Jordan & Jordan (1997) FLC 92-736
Nelson & Nelson (1995) 184 CLR 538
Stanford & Stanford [2012] HCA 52, (2012), 247 CLR 108
Watts G, Lies, Damned Lies and Tax Returns (2000) Television Education Network
Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 18 January 2022 Place: Brisbane, delivered Hobart Counsel for the Applicant: Ms Treherne Solicitor for the Applicant: Shoalhaven Lawyers Counsel for the Respondent: Mr Steward Solicitor for the Respondent: Hanson Lawyers ORDERS
WOC 108 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HENRY
Applicant
AND: MR CUSO
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.That the initiating application of the wife, Ms Henry, filed 2 February 2021 be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 of Henry & Cuso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATIONS
These are proceedings on the wife, Ms Henry’s, initiating application filed 2 February 2021. The husband, Mr Cuso’s, response is filed 3 August 2021. The wife seeks orders that would give her 40 per cent of a property pool which she values at $530,375 inclusive of superannuation. The husband's primary position is that the wife's application be dismissed as considerations of justice and equity would not provide for any adjustment to the wife.
This matter is significantly complicated by the ages and infirmity of the parties each of whom now appear by litigation guardian. The wife's sister, Ms C, was appointed by order of Baumann J of 5 November 2021. The husband's son, Mr B, was appointed as litigation guardian by Judge Neville by order of 24 March 2021. Mr B has also been appointed by the state orders as the Financial Manager and Legal Guardian of his father by orders of 15 July 2020.
The husband’s litigation guardian, Mr B, has provided an affidavit being effectively his father's trial affidavit sworn 3 August 2021. The wife swore an affidavit on 29 January 2021 and that affidavit was read into evidence although the deponent was not available for cross-examination due to her infirmity.
The wife is 63 years of age. She currently resides in shared accommodation funded by the National Disability Insurance Scheme (‘NDIS’). She has recently suffered a stroke. Her evidence as to her disabilities are unchallenged including that she will not to return to the workforce.
The husband is 81 years old. He suffers a dementia diagnosis which the wife says is alcohol related. He resides in an aged care home. The evidence is that he has been dependent upon others for some time for his day-to-day care.
BACKGROUND
Given the disabilities of the parties, there may be dispute as to the relevant background facts. Where, however, the wife provides a chronology in her case outline but the husband does not, I borrow from that chronology but on the understanding that there may be a dispute as to fact, detail, or accuracy.
The husband was born in 1940 – aged 81 years. The wife was born in 1958 – aged 63 years.
The parties met in 1991 when the wife started working at the husband's business at Suburb D. In 1996 the husband purchased a business at E Place where the wife says she worked seven days per week from 8.00am to 12.00am.
In early 2000 the husband was charged with common assault with the wife listed as victim.
In mid-2001 the husband was charged with common assault with the wife listed as victim.
In early 2003 the husband and the wife purchased a property at 1 Q Street, Suburb D for $260,000.
In early 2004 the husband and the wife entered into and signed documents towards a purported property settlement whereby the wife transferred her half share in the Suburb D property to the husband in return for a cash payment of $12,500. The “settlement” was not made with the imprimatur of the Family Courts.
In early 2005 husband was recorded as a person of interest in a domestic violence complaint.
In early 2005 the husband was charged with common assault with the wife listed victim.
In late 2005 the husband was charged with breaching an apprehended violence order (‘AVO’) obtained against him by the wife.
In late 2005 the husband was charged with breaching the AVO obtained against him by the wife.
In 2009 the wife was declared bankrupt.
In February 2010 the husband sold the property at 1 Q Street, Suburb D (unencumbered) for $379,000.
In mid-February 2010 the husband purchased a property at R Street, Suburb F for $317,500.
In mid-2012 the wife injured herself in a workplace accident while employed at EE Company.
In November 2013 the husband purchased a property at S Street, Suburb F for $276,000.
In December 2013 the husband sold the property at R Street, Suburb F for $350,000.
During 2013 the wife says that she paid for improvements to the matrimonial home particularised at [32] of her affidavit.
From 2016 – early 2020 the wife says that she was employed as an assistant for X Company and was also the husband's carer (which the husband disputes).
The parties married in 2018.
In 2019 the wife alleges that the husband became aggressive and flipped a coffee table toward her which hit her leg and foot such requiring medical treatment.
In late 2019 the husband was diagnosed with dementia which the wife claims is alcohol related.
In early 2020 the wife claims there to have been an incident whereby the husband “choked” her saying “you'll go before me”.
In April 2020 the wife received $52,500 in payment of her compensation claim in respect of her EE Company employment.
On 28 May 2020 the wife says there was an incident at the former matrimonial home whereby the wife suffered a ruptured aneurysm and/requiring brain surgery on that day.
On 2 July 2020 the wife had further surgery whereby a shunt was placed to release fluids and pressures on her brain.
On 5 July 2020 the wife says that she disclosed to her daughter that the husband had choked and pushed her and stomped on her when she fell.
In July 2020 the wife settled her claim against EE Company with a further payment of net $120,529.56.
In October 2020 the wife received $69,529.57 in full payment of a claim against EE Company less legal costs of approximately $51,000.
On 13 November 2020 NSW TAG approved the sale of the S Street, Suburb F property.
ISSUES
The primary issues for determination are the following:
(1)A determination as to what, if any, alteration or distribution of the matrimonial property pool is just and equitable in the circumstances of this case.
(2)Where the parties apparently met and established some relationship in 1991 or soon thereafter and where the parties themselves entered into a form of property settlement in 2004, the status of their relationship, if any, between 2004 and their marriage in 2018, where the wife argues that they were in a genuine de facto relationship for at least the majority of that period, but where the husband asserts that their relationship during the relevant period was no more than boyfriend/girlfriend at different times and otherwise without emotional or financial commitment.
There is an issue between the parties as to how the Court should treat the wife's workers compensation payment which netted her $121,779.57.
Where the wife asserts her in her case summary that the major assets of the parties are:
(a)her workers compensation payment $121,779.57;
(b)the proceeds of sale of the former matrimonial home $425,488.32; and
there remain some issues as to detail and minor aspects of the property pool noting that by the end of the evidence and by way of an agreed the balance sheet, the parties seem to agree that the proceeds of sale held by the husband's trustee and guardian amount to $371,538 but where the wife claims some add-backs for expenditure by the husband from those accounts.
The husband, through his litigation guardian, initially raised issues as to the validity of the marriage and sought a declaration that the marriage in 2018 be declared void. That application was not prosecuted.
Finally, there is an issue raised by the husband in respect of what is colloquially known as the “Elias principle”.[1] Such might not properly be or any longer entitled “principle” but where the husband challenges the admissibility of assertions made by the wife, in this case being as to a de facto relationship, where it may be that the wife has previously made contradictory assertions in respect of the same factual platform in order to obtain benefit. Whilst the “principle” is primarily in respect of admissibility, this matter proceeds by way of submissions and with the affidavit material read into evidence without the benefit of cross-examination and where, as such, the issue for me is essentially of credit and weight in respect of such assertions which may be contradictory.
[1] Elias v Elias (1977) FLC 90-267.
THE RELEVANT LAW
In circumstances such as this where the parties were married, s 79 of the Family Law Act (Cth) (‘the Act’) provides for settlement or alteration of the parties' property where at subsection (1) the Court is accorded a broad discretion but within the parameters of the legislation and where the Court “may make such order as it considers appropriate”.
Importantly for the matter now before me, s 79(2) requires that the Court not make an order “unless it is satisfied that, in all the circumstances, it is just and equitable to make an order”. It is submitted here on behalf of the husband that the Court should not be satisfied as to the just and equitable requirement in s 79(2) and that no s 79 order need or ought to be made where the parties then would retain their separate legal and equitable interests in property in the possession or control of each free from claim by the other party.
The High Court in the well-known decision of Stanford & Stanford[2] emphasised the actual and chronological importance of s 79(2) which previously trial judges had tended to consider as a final “stand back” step in a “four–stage process”. Following Stanford, however, the just and equitable requirement in s 79(2) is considered separately and prior to any consideration of alteration of property interests and where their Honours emphasised that this consideration of “just and equitable” is not simply to be conflated with a consideration of contributions at s 79(4). Their Honours in Stanford assisted by setting out what they refer to as three “fundamental” propositions in respect of the consideration as follows:
[37]First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing (emphasis added) legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (original emphasis). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
[38]Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. …
[40]Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down".[3] To conclude that making an order is "just and equitable" only (emphasis added) because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[2] [2012] HCA 52, (2012) 247 CLR 108.
[3] Footnote omitted.
The just and equitable requirement at s 79(2) was given some clarification by the High Court in Stanford as follows:
[42]In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
Subsequent to Stanford the majority of the Full Court in Bevan & Bevan[4] opined in respect of the above:
[70]In our experience, the circumstances described in the paragraph above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to trial judges that the precondition to making any order is a finding that it is just and equitable to do so.
[4] (2013) FLC 93-545.
Their Honours in Bevan summarised the three fundamental propositions from Stanford as:
(i)the Court needs to consider the existing property interest of the parties and to identify those interests by reference to common law and equity;
(ii)the discretion must be exercised in accordance with legal principles and not in respect of any assumption that the parties’ interests should be different from those determined by common law or equity; and
(iii)section 79(2) cannot be conflated by reference to matters in s 79(4).
Whereas the majority in Bevan suggested that an interpretation of the decision in Stanford might allow a consideration of contributions within the just and equitable consideration of s 79(2), a later Full Court in Chapman & Chapman[5] cited extracts from Stanford which suggested a greater demarcation of s 79(4) factors from the s 79(2) question.
[5] (2014) FLC 93–592.
Consequently, and whilst not embarking on the historical four-stage process, it seems clear that the Court must establish the property of the parties, including assets and liabilities with a consideration of financial resources and usually such that exist at the date of the hearing. The Court attributes value to the elements of the property pool and again as at the date of the hearing. For these purposes, superannuation is to be “treated as property” although not strictly an asset in the sense of tangible assets being capable of crystallisation.
After consideration of the just and equitable requirement of s 79(2) which again in the majority of cases does not present any factual or intellectual complexity, the Court turns to consider the contributions of the parties to the acquisition, improvement, and maintenance of the elements of the property pool. Contributions might be of a direct or indirect financial type or of a non–financial type including contributions as homemaker and parent. The Court in its consideration then further turns to the factors set out in s 79(4)(d)–(g) including the relevant factors under s 75(2) of the Act. To my mind, the notion of justice and equity permeates this process of consideration.
DE FACTO RELATIONSHIP
There is evidence of an Agreement reached between the parties on 26 March 2004 executed under a State Property (Relationship) Act 1987 where at its preamble states that the parties lived together between “about 1992 and January 2004”. That Agreement purported to settle their property and financial issues at that time by way of a payment to the wife by the husband of $12,500 with the wife to transfer to the husband all her right, title and interest in a property at 2 Q Street, Suburb D which the parties agree was the only property jointly owned by them “apart from household furnishings and contents and those furnishings and contents have been by agreement divided between them”.[6] The parties further recite that:
F..…neither party has any significant money or property other than [2 Q Street, Suburb D] nor any superannuation or other significant resource and each party has made a full disclosure of his or her property and financial resources and circumstances to the other.
…
4. Each party agrees that he or she has received advice from a Solicitor Instructed Independently to the effect as set out in the certificate there of and annexed hereto.
[6] Husbands Tender Bundle page 1, Recital C of the Agreement dated 26 March 2004.
For the purposes of the application now before me the wife claims that the parties were in an “on and off” de facto relationship from 1991 and for a period of 27 years until their marriage in 2018. At [5] of her trial affidavit the wife deposes:
[The husband] and I commenced a relationship/cohabitation in 1991 and for the following 27 years we were in and on off relationship until we were married in about 2018. We separated sometime in 2020 after a medical episode…
The wife claims that the relationship was punctuated by periods of separation due to her being the victim of family violence at the hands of the husband. She says that Centrelink evidence before the Court in respect of her carer’s pension, and showing different addresses for the wife than for the husband, is consistent with her claims of domestic violence.
The wife also claims that the husband misreported his relationship status to Centrelink resulting in a debt by him to Centrelink in an amount of $13,367.70 raised for a period of early 2018 to 29 July 2019 but which, of course, roughly coincides with the period of marriage of the parties rather than for the wife's claimed period of de facto relationship.
The husband denies that the parties were in a de facto relationship substantially between 2004 and 2018. He acknowledges the Agreement reached between the parties as to a property settlement following the demise of their relationship in 2004. He describes the subsequent relationship until their marriage in 2018 as “boyfriend/girlfriend”.
The husband points out that the wife's applications to Centrelink for a carer’s pension at all times declared herself to be a single person without a partner as she similarly declared in other documents including to her personal injury solicitors and to medical practitioners. He argues that the wife has not previously disclosed any beneficial or equitable interest in property in the husband's name. The husband claims that Centrelink documents prepared and proffered by the wife accurately describe their relationship evidenced by their different addresses. The husband does concede, however, cohabitation for a short duration during the period in dispute from 14 June 2014 – 27 February 2015 as evidenced by Centrelink documents and thereby demonstrating by contrast their non-cohabitation for the other periods between 2004 and 2018. Notably, and as emphasised by the husband, the wife even during that period declared to Centrelink that she was merely a carer and friend to the husband.
A significant issue is raised, therefore, in respect of the credit of the parties and on what is generally known as the Elias principle.[7] The principle is essentially one of admissibility of evidence or evidence estoppel. The original “principle” as identified in a subsequent judgment of Jordan & Jordan[8] which considered the effect of “Elias” is:
When a party has made representations of fact to third parties and has gained advantage from so doing, it is open for the court in subsequent proceedings under section 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
[7] Elias & Elias (1977) FLC 92-267.
[8] (1997) FLC 92-737 at p 83, 927
The principle in “Elias” appears to have received endorsement and support in subsequent cases including in the Full Court in Dawes v Dawes[9] where their Honours say:
… that a party to proceedings in this Court cannot be allowed to have his cake and eat it too. If, during the course of the marriage, the party represents to the Commissioner of Taxation that his or her spouse is a partner in a business operated by that party, or is a bona fide employee of such a business and is paid a salary as such, that party cannot be heard to say, in subsequent proceedings in this Court, that his or her spouse was not in fact a partner or was not in fact a bona fides employee, as the case may be… We think that it is a very sound principle, and its enunciation by Goldstein J in Elias & Elias (supra) was given at least tacit approval by the Full Court in Lee Steere and Lee Steere (1985) FLC 91–626 at p 80,078. We are aware that it has received more explicit approval by other Judges at first instance in unreported cases.
[9] (1990) FLC 92–108 at p 77,725.
Later jurisprudence cast doubt on the status of Elias as “principle” or being mandatory. Chisholm J in Jordan & Jordan[10] did not apply such a principle in circumstances where the husband had not relied on the representation of the wife and that such representation was by a single statement rather than course of conduct. His Honour considered the proportionality of potential penalty from the prior false misrepresentation as against the advantages gained. Chisholm J stated at [83,925]:
In these circumstances, it is necessary to consider the basis of the Elias principle. For reasons already given, while it may well be that the facts of such cases as Elias would justify a decision based on equitable estoppel, the rule acted on in the Family Court authorities is not expressly based on reliance, and it would do violence to the language of the decisions (and the actual decision in Cestaro) to limit it to circumstances falling within the equitable principles. It follows, I think that the basis for the rule must lie in the Family Law Act: as argued by the husband, it is a rule specific to family law.
[10] (1997) FLC 92-736.
In a helpful publication, Garry Watts (later Watts J)[11] in discussing Jordan & Jordan (supra) and the finding of Chisholm J that the rule is discretionary not absolute, summarised such application of the “Elias principle” from Chisholm J as:
[11] Lies, Damned Lies and Tax Returns – Television Education Network – November 2000.
•The “Elias principal” is a rule of law not just an evidentiary presumption.
•Reliance is not an essential element of the rule and as a result the rule is much wider than the concept of equitable estoppel.
•The rule is not confined to parties who simultaneously assert inconsistent propositions.
•The rules is not limited to some categories of representation.
•The rule does not require a course of conduct, a single representation will suffice.
•The rule is not limited to representations to revenue authorities.
•Because the principal has no basis in the general law, it is a rule specific to family law.
•The rule therefore must be based upon one or more of the following:
•Section 79(2) of the Act – the just and equitable principal.
•The well established full and frank disclosure principle.
•Section 75(2)(o) of the Act – that is, any other matter the justice of the case requires.
•And – the key aspect in the Jordan case – that the rule must be discretionary not absolute.
Contemporaneously with the decision in Jordan, the High Court considered such an issue in Nelson v Nelson[12] as to whether a person could give evidence to rebut the presumption of advancement after placing a property into the names of her children to conceal the asset from a government means test. McHugh J opined contrary to the strictness of Elias in formulating the following:
… the courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless: (a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or (b)(i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct; (ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and (iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies.[13]
[12] (1995) 184 CLR 538 at p 613.
[13] Footnote omitted.
As Garry Watts observes in his publication, it seems that the contemporaneity of Jordan and with Nelson, resulted in Chisholm J not being made aware of the High Court's decision in Nelson.
I am generally satisfied, therefore, that the “Elias principle” represents a rule of law specific to the Family Law Act 1975 but to be applied together with a discretion commensurate with the facts and circumstances of each case. Whilst mindful of the equitable principle that “a party must come to equity with clean hands”, equally there remains the general principle of justice not only being done but being seen to be done. Consequently, the strictness of such a contradictory statement being inadmissible as articulated in Elias is no longer, in my view, good law but where importantly the admission of evidence does not preclude the testing of same by cross-examination or, as in the case now before me where there is no cross-examination, the general scrutiny of the Court.
I am satisfied therefore, and consistent with recent authority, that the relevant evidence of the wife is admissible subject to challenge by the husband and scrutiny by the Court.
Although by reason of the parties’ marriage in 2018, I do not have an issue as to the jurisdiction of the Court, there remains a primary dispute between the parties as to whether or not they were in a de facto relationship between 1991 and 2018 or, more particularly, given the “property settlement” and recitals in 2004, whether they were in a de facto relationship between 2004 and 2018.
Generally speaking, the determination as to whether or not parties are living in a de facto relationship, sometimes described as a relationship of a couple living together on a genuine domestic basis, is circumstantial on the particular factual platform and where no one circumstance is determinative. Section 4AA(2) of the Act gives some assistance in the exercise of the discretion but where these factors are not exclusive:
(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.
The standard of proof for the Courts determination is one of on the balance of probabilities consistent with s 140 of the Evidence Act 1995 (Cth) where the determination is one for the Court as distinct to the perception of the parties or either of them at the time which, whilst relevant, is not of itself determinative.
In making this determination I am mindful of s 90SC(1) of the Act to the effect that Division 2 of Pt VIIIAB ceases to apply in relation to a de facto relationship if the parties later marry, as was the case here.
The wife says that there was a de facto relationship of 27 years duration from about 1991 until marriage in 2018. She acknowledges periods of separation but says that these were as a result of the incidents of family violence but where subsequent reconciliations demonstrate no cessation of the relationship. The implication of the wife's argument is that there is a concession as to a de facto relationship until 2004 together with a marriage in 2018 with there being a continuing relationship during the intervening time, albeit punctuated by some short separations. Again by implication the wife says that her being the carer of the husband is circumstantially consistent with the nature of their committed relationship.
The wife acknowledges the Agreement for a property settlement made on 26 March 2004 but says that in the circumstances this simply defines the parties' financial positions as of that date with the only notable asset being a property at 2 Q Street, Suburb D.
In her trial affidavit the wife says:
[20]In or around 2005, when [the husband] was aged 65 years, he retired, and it was around this time that we purchased a property at [1 Q Street] in [Suburb D] in the state of New South Wales ([Q Street]).[14] I do not recall the purchase price of [Q Street]. I subsequently moved into [Q Street] and live with [the husband]. During the time that I live at [Q Street], I was solely responsible for caring and maintaining (cooking, washing, cleaning) our home. I also contributed toward the costs of building renovations/improvements to [Q Street] in the sum of at least $15,000, including but not limited to:
[14] Original emphasis.
(a) pergola (approximately $10,000)
(b) bathroom renovation
(c) re-tiling downstairs (approximately $4000)
(d) painting
(e) electrical works
(f) fencing works
(g) vinyl flooring
…
[22]During the late 2000s, [the husband] and I were in and on–again–of–again relationship. I do not recall the exact periods of time when we separated but I do recall that when we did separate for a short period of time, I solely owned and lived in properties at [U Street] in [Suburb H] and at [T Street] in [Suburb K]. I do not recall when I purchased or sold these properties.
…
[25]In about 2009, I was also running my own business in [Suburb D] called [L Business]. The business was not successful, and I was not able to keep up with the [Y Street] home loan repayments. I was subsequently declared bankrupt and [L Business] closed. I recall that [the husband] and I were in a relationship and living separately at this time. [The husband] often called me and said words to the effect:
“are you going to come around [the wife]? Come around.”
[26]After I was declared bankrupt, I required government assistance and was allocated a house in social housing in [Suburb Z]. I also began working for [EE Company]. [The husband] and I were in a relationship during this time and I would often travel from Sydney to [AA City] to see him.
[27]During my employment with [EE Company], in or about 2010, I was involved in a work accident, in or about 2020, I received a lump sum work injury compensation payment in the sum of $69,000.
[28]In or about 2010, and after several months of me travelling from Sydney to [AA City] to see [the husband], [the husband] and I had the following conversation, words the effect of:
[The husband]: “you’re too far away. Come and live with me, [the wife].”
Me: “ok”.
Shortly after the above conversation, I moved in with [the husband] at [Q Street].
[29][The husband] and I lived together on–and–off in the early 2010s. I recall that for a short period I rented property on [BB Street] in [AA City]. I do not recall the exact address of this property.
The implication of the above is that the wife asserts an ongoing de facto relationship with the husband including during her employment with EE Company albeit not one where the parties always resided in the same residence and noting the evidence of the wife herself that she purchased residential properties registered solely in her name during this period.
The husband says that the parties were not in a de facto relationship for the relevant period. He does concede a period of approximately eight months in or about 2014. He relies on representations made by the wife to Centrelink and to other bodies contrary to her current representation of an ongoing de facto relationship. The husband also relies upon the Agreement of 2004 as to a property settlement but in his case as to the demise of that relationship.
CONSIDERATION AND FINDINGS
The wife says that the parties were in a continuing relationship but on an on–and–of basis from 1991 until their marriage in 2018. The husband says that the relationship did not assume the status of a de facto one during the relevant period save and except for a period of approximately eight months in 2014.
The difficulty for the Court, of course, is that the disabilities of the each of the husband and the wife means that their evidence and assertions cannot be tested by cross-examination. As such, the Court is essentially left with noncontroversial or undisputed fact including any corroborative evidence in which to make determinations of fact. Similarly, where issues of credit are to the fore, the process for the Court is seriously limited by their being no testing of the evidence. My consideration and determination is consequently made within these limitations.
I have found the wife's affidavit of 29 January 2021 to be of relatively little assistance. I make this comment with respect and understanding of the of the wife's infirmity. The affidavit, however, lacks particularisation in respect of issues and assertions that may help me in my determination. For example, the affidavit lacks particularisation as to points in time such as at [22] where the wife deposes:
During the late 2000s, [the husband] and I were in and on–again–of–again relationship. I do not recall the exact periods of time when we separated but I do recall that when we did separate for a short period of time, I solely owned and lived in properties at [U Street] in [Suburb D] and at [T Street] in [Suburb K]. I do not recall when I purchased or sold these properties.
Similarly, and where the wife asserts that the separations occurred as a result of domestic violence, she does not particularise any such instances save and except for allegations in respect of the period after the 2018 marriage. For instance, in her affidavit at [48] such allegations in respect of the relevant period of the asserted de facto relationship are limited to:
From the early 2000s to early 2020, I always had a fear that [the husband] was trying to harm me.
To the contrary, and albeit also untested, the husband through the affidavit of his son and litigation guardian, Mr B, offers greater particularity. For example, in the affidavit appears the following:
[12]I am aware that [the wife] has stated that she commenced a relationship with [the husband] in 1991. I was in a business partnership with [the husband] in 1991 and had not seen or met [the wife] until she commenced working for [the husband] and in approximately around 1995 – 1996. I have always understood that [the wife] and [the husband] were first acquainted by work in the business. We employed [the wife] for a few shifts only at [the husband’s] business and we no longer required her when we split the business.
[13]I am now aware after receiving the Centrelink Marital Status Screen for [the wife] that (sic) did not cease her marriage until 1992. Annexed hereto and marked with the letter “A” is a copy of the Centrelink Marital Status Screen history for [the wife]. (Original emphasis)
…
[15]I am now aware after receiving the Centrelink Customer Address History for [the wife] that she commenced living at [FF Street Suburb GG] on 23 October 1995 and ceased living there on 6 November 1995. …
[16]I am now aware after receiving the Centrelink Customer Address History for [the wife] that she commenced living at [HH Street Suburb JJ] on 6 November 1995 and ceased living there on 9 February 1998. …
[17][The husband] had a year (sic) went overseas and then bought the business in [E Place] in 1996. … I recall that my father's friend, [Mr CC], stayed with [the husband] in [E Place] alternately whenever he came over from [Country KK] to stay with [the husband] and to help him out with the business. [Mr CC] has since said to me “[the wife] wasn’t living with [the husband] at [E Place] any of the times I stayed there”.
[18]I am now aware after receiving the Centrelink Customer Address History for [the wife] that she commenced living at [T Street, Suburb K] on 10 February 1998 and ceased living there on 4 April 2001.
…
The husband through the affidavit of his litigation guardian gives similar particularised chronologies for the years 2000–2002; 2005–2009; 2009–2013; 2014 – marriage.
Whereas the application relied on an affidavit of the wife herself and where the wife was not capable of giving evidence in court or being cross-examined, notably the husband’s litigation guardian was not required for cross-examination on the contents of his affidavit including his personal observations.
The husband's case outline summarises the chronology from the affidavit asserting that the parties cohabited prior to their marriage in 2018, and after the property's settlement agreement of March 2004, for one period of approximately eight months being between 11 June 2014 and 27 February 2015 at S Street, Suburb F.
In November 2011 the wife filed an application with Centrelink for a carer's payment in respect of the husband. That application is produced. In respect of the question “does this person (the husband) live with you?” the wife deposed “no”.
The unchallenged evidence of the husband’s litigation guardian is that the husband travelled overseas in 1995/96 and in the early 2000's. The wife in her Centrelink application deposes that the husband had not lived or travelled outside Australia since 1 September 1994 (including for short trips or holidays). The implication is that should the parties have been in a relationship then the wife would have known of the husband's overseas travel.
Significantly at [28] of that application and in respect of the question as to the relationship between the proposed carer and the person being cared for, the wife deposes to the husband being “family friend.” She does not depose to having been in any relationship with the husband at that time.
In June 2012 the wife suffered an injury in her employment with EE Company. Produced to this Court is a copy of a letter dated 30 January 2013 from her lawyers. In November 2009 the husband purchased a property at R Street, Suburb F and in September 2013 he purchased a property at S Street, Suburb F. The purchases were registered in the husband's sole name.
On 18 June 2014 the wife executed a further application for a carer payment/allowance from Centrelink in respect of the husband. The wife did not deposed to having been in a relationship with any person. She described herself as “separated and divorced”. At [31] the wife again does not depose to be living with any partner. At [61] in respect of a question as to marriage, registered relationship, or partner, the wife ticks the “no box”. She does, however, tick the “yes box” in respect of the question “does the person live with you?” but goes on to describe that person again as “family friend”.
Where the wife does not particularise the asserted dates of cohabitation or separation during the period between 2004 and 2018, an examination of the documents produced from Centrelink, which do not disclose any assertion of a de facto relationship by the wife, corroborate the husband’s assertion that the only period of cohabitation during the relevant time was for approximately eight months in 2014/2015.
On 18 July 2016 the wife made a Statement in respect of her damages claim. She asserts as to the accuracy of the statement. She does not reference any relationship with the husband. At [4] and prima facie contrary to her assertions as to a de facto relationship from 1991 the wife said:
[4.4]In 1988 my husband and I bought a B in [Suburb W]. I was the receptionist. We operated this for about five years.
[4.5]After this we (emphasis added) moved to the [AA City] area and I stopped work until about 2000.
[4.6]I then became the Business Manager of [E Place] near [J Place] in the [AA City] area which I did from about 2000 to about 2005.
[4.7]In 2005, I moved back to Sydney and stayed with family at [Suburb V]. Upon moving back to Sydney, I believe I worked at the [LL Business] in [Suburb M] for a period of time.
[4.8]I did assistant work, sometimes at [MM Services] and sometimes for [NN Services]. I carried out this job until approximately 2012.
The Statement gives a chronology until 2016. At [10] the wife states:
[10.2]In about March 2014 I resigned from [EE Company].
[10.3]At that time I moved to [Suburb F] near [G Town], south of [AA City] where I became a personal carer to [the husband].
[10.4]I received a Carer's Pension from Centrelink of about $900 per fortnight.
[10.5]I also did part-time work for [PP Business] … I worked there about 30 hours per fortnight from about 28 July 2014 to December 2014.
…
[10.7]My leg became so bad that I had to stop being a carer and stop working for PP Business in about December 2014.
…
[10.9]From approximately September 2015 to date I returned to work on a part-time basis for [PP Business]. Since September 2015 to date I have worked 48 hours per fortnight and (sic) am receiving approximately $1200 gross per fortnight. Even though I am working, I am doing so through pain however I need to work in order to financially support myself.
By letter of 18 September 2013 Dr N reported to NSW Compensation Lawyers in respect of the wife where under the heading “social history” appears the following:
She is single. She has two married children. She lives her on her own in a unit. She manages all domestic activities. She is independent in self-care.
In the NSW health report in respect of the husband of 25 July 2018, the wife is referred to in the text as “partner” but later under “social history” as “carer”. In any event, this report is only a matter of some few months prior to the marriage of the parties.
In her affidavit the wife annexes an application for an Apprehended Violence Order in which she deposes to having been in a de facto relationship with the husband “for the past 20 years”. That application was made in July 2020. That application further lists a chronology of domestic violence incidents and the charges.
The wife's counsel in her submissions correctly points to evidence corroborating the wife's claims of domestic violence. Whilst emphasising that any form of domestic violence is abhorrent, and accepting that separation frequently accompanies incidents of violence, at its highest, the wife's evidence and the submissions of her counsel serve only to highlight that there were periods when the parties were not residing together as noted by the wife's various residential addresses. That is, whilst domestic violence may have been the reason for the parties not residing together, it is the fact of them not living together that is relevant for my determination. I accept, however, to some degree the implication in the argument that a series of domestic violence incidents might arguably support a continuing relationship albeit one punctuated by short periods of separation due to the violence.
The wife also says that the husband's failure to disclose to Centrelink the marriage of 2018 resulting in an overpayment to him shows a tendency in him not to disclose a previous de facto relationship. On the wife's own evidence, however, the husband was suffering some serious dementia issues at this time and without evidence directly from each of the parties with such evidence being tested by cross-examination, I am unable to give any real weight, and certainly not determinative weight, to this omission by the husband noting, as I do, that the wife was his carer during this period of the husband being infirmed.
The wife says that the she made only two successful applications to Centrelink over a lengthy period of time, together with one failed application, in respect of her carer’s allowance. She says that this is evidence by way of the parameters of the application as to the duration of the relationship punctuated, as she says, by separations due to domestic violence.
The wife says that the Court should pose minimal, if any, weight on the typical “statement” attributed to her on 18 July 2016 in respect of her workers compensation claim. It is properly noted that this is a statement only and not a statutory declaration or affidavit.
Similarly, the wife says that the Agreement of 26 March 2004 and the marriage of 2018 in themselves offer parameters to a relationship which continued between those dates.
FINDINGS AND CONCLUSIONS
On the balance of probabilities and with emphasis on the fact that the assertions and denials of each of the parties as to a de facto relationship between 2004 and 2018 cannot be tested by cross-examination, I cannot be satisfied that there was a de facto relationship. An onus sits on the party making an assertion of positive fact to prove that fact on the balance of probabilities. That onus sits in this case with the wife. She has previously made contrary representations as to the status of her relationship with the husband to Centrelink and in respect of her workers compensation claim. Centrelink documents show numerous addresses of the wife during the relevant years none of which coincide with the husband's residential address. She herself says that she purchased and lived in various properties during these periods giving by implication some duration to the parties being apart. There is no corroboration of the wife's claimed status in circumstances where she mentions in affidavits that her daughter might be available to give such corroboration. The wife herself could not be in court to give evidence or to explain the contradictory statements she made to various authorities during periods she now deposes to having been in a relationship.
There is little if any evidence, and no undisputed evidence, as to significant mingling of finances between the parties. There is no independent evidence of any public exposure or acknowledgement of a committed de facto relationship between the parties. There is no jointly owned real estate during the relevant period.
The wife's explanation of separations by reason of domestic violence can, in fact, be evidence of there not being a de facto relationship and particularly seen in the context of the various residential addresses given by the wife to Centrelink and her sole ownership of property. Statements by the wife in support of her application for an AVO after the marriage give some credence to the wife's assertion but can also be seen as self–serving and contrary to the weight accorded other facts. Where the wife is understandably not available for cross-examination on her assertions, the husband’s litigation guardian as a deponent to his affidavit was not required for cross-examination, although obviously available. Relatively, the husband through his litigation guardian particularises the chronology of the relationship whereas the wife's affidavit lacks particularisation in favour of generalisations. Similarly, the wife does not particularise her claims of domestic violence prior to the marriage in terms of either fact or time. On a weighing and balancing of all of these factors, I cannot be satisfied to the requisite standard of proof that the wife has made out her case of a de facto relationship between 2004 and 2018.
Where the husband also disputes, through his litigation guardian, that there may have been a de facto relationship from 1991, I do place some considerable weight on the Agreement made on 26 March 2004 and where both parties were in receipt of legal advice, that the parties were in a relationship from “about 1992… until they separated in January 2004”. Obviously by reason of the marriage, I accept that the parties were in a relationship between in 2018 and separated on 28 May 2020 a period of approximately 18 months.
Consequently in broad terms the relationship between the husband and the wife can be categorised as firstly being a de facto relationship, as evidenced by their Agreement for a property settlement, between about 1991/92 until early 2004. Secondly, I am unable to find that the parties lived in a de facto relationship, as claimed by the wife, between 2004 and 2018. There was then a marriage of approximately 18 months duration from 2018 until mid-2020.
THE PROPERTY POOL
As the wife claims in her case outline document, the two main assets of the parties are:
(a)the wife's workers compensation payout – $121,779.57; and
(b)the proceeds of sale of the home at S Street, Suburb F registered a solely in the name of the husband and purchased by him in September 2013 with proceeds of sale $425,488.32.
Both parties have disbursed or expended some monies from their respective damages payment and proceeds of sale. They have each paid legal costs being $23,100 by the wife and $20,194 by the husband.
The wife has superannuation with DD Company of $28,708. The husband has no superannuation. The wife asserts a payment to her daughter, Ms P of $30,000 from her damages payment where the evidence is limited to that at [59] of her affidavit as follows:
I have given [Ms P's] $30,000 for renovations so I can live with her and she can care for me. I still require further modifications including handrails.
The wife's daughter did not give evidence to further particularise this advancement. There is no evidence of equitable or legal entitlement of the wife in respect of the property. There is no evidence of the so called renovations themselves.
Broadly speaking, therefore, and where I am not required to conduct any form of mathematical audit of the parties financials positions, it seems that, in accordance with the wife's own financial statement, the parties property consists of the husband proceeds of sale of the G Town property now held in trust and the wife's damages payment which brought her $121,779.
Issues of contributions must now be seen within the context of my findings as to the duration of the relationship which effectively is of the 18 months marriage where I am satisfied that as long ago as 2004 the parties by written agreement distributed the property from a previous de facto relationship. The passing of time between 2004 and the marriage in 2018 is obviously relevant.
The parties each contributed by way of the wife's damages payment and the husband’s proceeds of sale of G Town to the limited property pool that now exists. The husband's financial contribution is therefore superior to that of the wife. I accept that the wife contributed in a non-financial way to the husband's care and as home keeper during the relationship but where she received a Centrelink benefit accordingly and, on her on admissions, then as an employee and not as a partner. There is little or no evidence of further mingling of their finances. There is no evidence of joint bank accounts. Where I did not have the benefit of cross-examination, I find a sense of autonomy in their financial affairs during the course of the short marriage. Bank statements which show some financial expenditure by the wife do not cause me to give any considerable weight to those asserted contributions and particularly where there is dispute as to their asserted contributions and a dearth of documents supporting those assertions. Importantly and relevantly, bank statements provided by the wife, in fact, support the conclusion of financial autonomy where some transactions are labelled as “loan [the husband]”. Such autonomy is also evidenced by the fact that the wife's personal injuries damages payment was not, on the evidence before me, used for the joint benefits of the parties or put towards any joint asset and is therefore effectively preserved in her possession or personal use.
Each of the parties is now of mature age and considerably infirmed. They each have litigation guardians appointed for this litigation. They each have high needs in respect of their residences and care. The unchallenged evidence of the husband through his litigation guardian is that the delay in conclusion of this litigation has incurred further and higher daily nursing home fees for the husband where he has been unable to pay the required $350,000 deposit. As mentioned above, the wife's evidence appears to be that she will be residing with her daughter and has made a contribution accordingly.
CONCLUSION
In all of these circumstances and with emphasis on my findings as to the nature and duration of these parties’ relationship, I am not satisfied that it would be just and equitable to make any alteration of their current property interests. The marriage was short. There was effectively no de facto relationship between 2004 and 2018 (excepting for one short period) and the parties with legal assistance settled their property in 2004 from their previous de facto relationship and on a presumption of justice and equity at the time. The husband made greater initial financial contributions. They each have high needs in respect of their personal care and residence. There are no jointly owned properties or assets. In such circumstances I am of the view that the appropriate order is therefore that the wife's initiating application filed 2 February 2021 be dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 April 2022
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