Irwin & May
[2025] FedCFamC2F 628
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Irwin & May [2025] FedCFamC2F 628
File number(s): NCC 204 of 2022 Judgment of: JUDGE BETTS Date of judgment: 15 May 2025 Catchwords: FAMILY LAW – De facto property settlement proceedings filed out of time – where the respondent seeks that the application be dismissed on the basis that she disputes the existence of a ‘de facto relationship’ and in the alternative that the application has been filed out of time – where the Court considers that a de facto relationship existed – consideration of hardship – where the Court considers that leave should be granted to apply out of time. Legislation: Family Law Act 1975 (Cwlth), Pt VIIIAB Cases cited: Fairbairn & Radecki (2022) 275 CLR 400
Jonah v White (2012) FLC 93-522
Mayson & Wellard [2021] FamCAFC 115
Owens & Benson [2014] FamCAFC 243
Sinclair v Whittaker (2013) FLC 93-551
Division: Division 2 Family Law Number of paragraphs: 144 Date of last submission/s: 28 October 2024 Date of hearing: 11, 12 and 13 September 2024 and 28 October 2024 Place: Newcastle Counsel for the Applicant Mr Bithrey Solicitors for the Applicant Aubrey Brown Partners Counsel for the Respondent Mr Livingstone Solicitors for the Respondent Peter Mitchell Law ORDERS
NCC 204 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR IRWIN
Applicant
AND: MS MAY
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cwlth) (“the Act”), the Court declares that a de facto relationship existed between the Applicant Mr Irwin and the Respondent Ms May between approximately April 2012 and July/August 2019.
2.Pursuant to s 44(6) of the Act, the Applicant be given leave to commence Part VIIIAB proceedings against the Respondent out of time.
3.The parties’ costs are reserved.
4.The proceedings are otherwise adjourned to 30 June 2025 at 9.30am for further case management before Judge Betts, including the making of filing directions, orders for disclosure, orders for participation in a mediation or Conciliation Conference and the expedited listing of the proceedings for final hearing if practicable. IT IS NOTED THAT in the interim the parties are encouraged to engage in meaningful discussions with a view to agreeing upon the appropriate directions to be made in order to progress the matter expeditiously.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION
On 31 January 2022, Mr Irwin filed an Initiating Application against Ms May to seek an adjustment of their respective property interests pursuant to the provisions of Part VIIIAB of the Family Law Act 1975 (Cwlth) (“the Act”) which apply to de facto relationships.
Ms May seeks that his Initiating Application be dismissed. Her primary position is that the parties had never been in a ‘de facto relationship’ as defined in the Act and thus the Court had no jurisdiction to make property settlement orders. Her fallback position was that, even if a ‘de facto relationship’ was established, his Initiating Application should still be dismissed as it was filed outside the time limitation period prescribed in the Act, being two (2) years from the date of breakdown of the relationship.
Mr Irwin concedes that his Initiating Application was filed late; he seeks the Court’s leave to apply out of time.
The existence or non-existence of the de facto relationship was the major focus and the Court was required to hear oral evidence spanning the better part of three (3) days. Ultimately, the evidence in support of the de facto relationship - including Ms May’s own concessions in that respect – proved to be compelling.
For the reasons which follow, I am satisfied that:
(a)between approximately April 2012 and July/August 2019, the parties were in a de facto relationship as defined in the Act; and
(b)Mr Irwin should be given leave to apply out of time.
THE HEARING BEFORE ME
The matter proceeded to hearing from 11 – 13 September 2024; closing submissions were made on 28 October 2024. Mr Bithrey of counsel appeared for Mr Irwin and Mr Livingstone of counsel appeared for Ms May throughout.
Mr Irwin relied upon a Case Outline Document filed 10/09/24, his affidavit filed 18/10/23, the affidavit of his son Mr B filed 07/03/23, the affidavit of his friend Ms C filed 13/03/23, and the written submissions of Mr Bithrey handed up on 28/10/24.
Ms May relied upon a Case Outline Document filed 10/09/24, her Amended Response filed 08/03/24, her affidavit filed 18/10/23, the affidavit of her son Mr D filed 18/10/23, the affidavit of her sister Ms E filed 04/03/23 and the written submissions of Mr Livingstone handed up on 28/10/24.
The parties tendered numerous exhibits which will be referred to as relevant.
I have had the benefit of seeing and hearing both parties in the witness box, as well as Mr Irwin’s support witnesses. (Ms May’s support witnesses were not required for cross-examination.)
Neither of the parties gave entirely reliable evidence.
Mr Irwin admitted that he was “not good with years” and that he looked at Facebook to jog his memory. His Initiating Application asserted that the parties’ relationship started in January 2012, but they hadn’t even met at that time and their first date was in February 2012. His affidavit ultimately deposed that the relationship started in March 2012 but in the witness box he said that even this date was only “ballpark”.
Nor was Mr Irwin good at record-keeping. Despite Ms May’s requests for disclosure, [1] he was only able to produce a scant number of documents. He was not a good record-keeper when it came to his business affairs either, as will be seen. It is apparent that he has conducted a number of failed businesses and, even now, his financial position remains somewhat opaque.
Mr Irwin had also given false evidence to NCAT at a hearing in early 2021. In particular, Ms May had applied to NCAT to evict him from her Town F home on the basis that they had a residential lease in place that he had breached by failing to pay her rent. Mr Irwin denied that any such lease existed and her claim was accordingly dismissed on the basis that Ms May could not prove that it did. [2] But later on, in the course of these proceedings, Ms May subpoenaed her mortgagee G Bank - who were able to produce a copy of the lease executed by the parties in late 2014. Shown a copy of the lease in the witness box, Mr Irwin was forced to concede that most of the ‘blanks’ in the document had been filled in in his handwriting and that the document contained his signature.
Mr Livingstone pounced on this matter in his Case Outline, asserting that:
4. If litigation were a game the lease could be described as a “game changer”.
However, it is not quite so black and white. At the hearing before me, it became apparent that it was not a genuine lease entered into between parties at arm’s length. Rather, the purpose of the lease had been to support Ms May’s then application for finance to buy the Town F home. This is why her mortgagee bank was able to produce a copy. Ironically, the lease is evidence of their financial interdependence and not their financial independence. So while Mr Irwin was at best careless and at worst dishonest with NCAT, Ms May’s attempt to portray and enforce the lease in those proceedings was also disingenuous.
As for Ms May, she had clearly denied the existence of a de facto relationship throughout the proceedings, including filing a detailed forty-five (45) page affidavit. She asserted that the parties had had arm’s length relationships as ‘employer and employee’ and as ‘landlord and tenant’. At most, she conceded that they had had a ‘close personal relationship’.[3] Mr Livingstone therefore vigorously cross-examined Mr Irwin and both of his support witnesses in an endeavour to disprove the existence of a de facto relationship.
Yet when shown her own past representations to both H Insurance Company and to G Bank that she was in a de facto relationship with Mr Irwin, Ms May promptly conceded that her own personal view was that the parties had been in a de facto relationship. While her own perception was not strictly determinative of that question,[4] the fact that she did not personally believe in the case she was running was clearly a significant concession. [5] Mr Livingstone ultimately dealt with this forensic problem by rather implausibly suggesting that although both parties had made prior representations about being in a de facto relationship, both were wrong.
Both Ms C and Mr B were reliable witnesses. Their evidence, and that of Ms May’s support witnesses, will be referred to later. For now it suffices to observe that Ms C observed the parties to be a couple during the time she was staying at the Suburb J property in the period from December 2012 to April 2013. Mr B witnessed the parties living together as a couple and had always had Ms May’s name recorded in his mobile phone as “[Ms May]’s Dads Mrs.”
Ms E’s affidavit was of limited compass. I accept her evidence that she only met Mr Irwin at two (2) specific social gatherings. The first was Ms May’s 50th birthday party in 2012 and the second was at Christmas 2013. She and her sister hardly ever discussed the parties’ relationship; whenever Ms E raised the subject her sister would simply say things were “good”. Overall, Ms E confirms that there was limited intermingling as between Mr Irwin on the one hand and Ms May’s family members on the other - which is broadly consistent with the other evidence.
Mr D had greater involvement with Mr Irwin and, to the extent his evidence is relevant, I will refer to it later.
DE FACTO RELATIONSHIPS: THE LAW
Relevantly, s 4AA(1)(c) of the Act provides that a person is in a ‘de facto relationship’ with another person if:
“having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
To assist the Court to determine whether a relationship meets that statutory definition, s 4AA(2) goes on to provide that the ‘circumstances’ of the relationship 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.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship: s 4AA(3). A Court is entitled to have regard to such matters, and to attach weight to any matter, as may seem appropriate in the circumstances of the case: s 4AA(4).
In Jonah v White (2012) FLC 93-522, the Full Court identified the touchstone for the existence of a de facto relationship as whether or not the parties are “a couple living together on a genuine domestic basis”. This is the seminal test to which the various “circumstances” prescribed in s 4AA(2) are all directed. A Court’s consideration of particular circumstances found to be relevant in any one case should not be seen as giving rise to binding principles of law or as substituting for the words of the statute: Sinclair v Whittaker (2013) FLC 93-551. [6] As for cohabitation, the High Court observed in Fairbairn & Radecki (2022) 275 CLR 400 that:
“Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless may be in a de facto relationship in the sense required by s 4AA.” [7]
Mr Irwin carries the onus of proving that the relationship met the s 4AA definition at all material times. Proof that the relationship met the statutory definition at a given date is not proof that it continued to meet the definition thereafter. [8]
RELEVANT FACTUAL FINDINGS ABOUT THE PARTIES’ RELATIONSHIP
I begin by observing that, amongst other things, the parties dispute various aspects of their financial history together. Determining whether or not they were in a de facto relationship does not require me to make positive findings about all of those disputed matters. Moreover, it would be inappropriate to try to resolve all of the financial disputes in the more limited s 4AA context. My findings should not unduly impinge on either party’s right to fully agitate such disputes later on at a substantive property settlement hearing.
Against that background, Mr Irwin was born in 1961, Ms May in 1962.
The parties meet
The parties first met in on or about February 2012. [9] At that time:
(a)Mr Irwin was single, 50 years old, and had three (3) adult children, being two sons and a daughter. He was a tradesperson by trade for his own business “L Pty Ltd” earning around $90,000 per annum. His work was largely based in Region M but at that stage his business was under some financial stress and he was therefore living with his brother at City N rather than living independently. He owned Motor Vehicle 1, some tools of trade and had an estimated $110,000 in superannuation;
(b)Ms May was single, 49 years old and living in Sydney at O Street, Suburb P with her two (2) sons Mr Q (then about 18 years old) and Mr D (then 14). Ms May was working three (3) days a week in Sydney as an educator, as well as coaching children’s sports. She earned a modest income. She does not depose to her asset position but inferentially it must have been relatively modest and, like Mr Irwin, superannuation was likely her major asset.
This first date seems to have gone so well that, even though Mr Irwin remained living with his brother, he soon began staying regularly at Ms May’s home. He helped with some of the cooking and cleaning as well as buying some takeaway food.
At this early stage of the relationship, the parties had sexual intercourse a couple of times. Sexual intercourse was not a major feature of their relationship however as Mr Irwin had various health issues which greatly inhibited his sexual capacity and, although he did not discuss those problems with her, she accepted him for who he was. There was some physical intimacy in their relationship; they hugged, kissed and held hands. According to Ms May, Mr Irwin only ever called her “Darl”. [10]
Mr Irwin moves in with Ms May & begins paying money to her
In April 2012, Ms May and her sons moved into another rental home up the road. In an affidavit filed earlier in the proceedings, Ms May’s son Mr Q deposed that Mr Irwin moved into that home shortly afterwards, which evidence I accept. [11] It is also consistent with Mr D’s affidavit evidence. [12] Ms May herself conceded that Mr Irwin had been living there albeit she suggested that it was only “for a short period” which I do not accept.
At that stage Mr Irwin was either sharing the main bedroom with Ms May or sleeping on the lounge. She wanted him to be on the lounge by morning because her sons were uncomfortable with him being there. Mr Irwin often sat up late, drinking on the couch in front of the TV in order to fall asleep.
It is convenient here to observe that Mr Irwin and Ms May were very different people; as intimate partners they were not a natural ‘match’. He was a smoker and a reasonably heavy drinker. Ms May was very health-conscious; she drank much more moderately then he did and she abhorred smoking, particularly inside the home.
In her draft Further Amended Statement of Claim (DFASC) prepared for the purposes of her related Supreme Court proceedings against Mr Irwin, the content of which Ms May adopted as true, she pleaded that the parties entered into an oral agreement for Mr Irwin to pay board to her in an unspecified sum. Mr Irwin deposed that he was paying her $500 - $1,000 per week but these are obviously ‘ballpark’ amounts at best. In the witness box he clarified that “she took money [from him] almost daily”.
I accept that Mr Irwin was making regular and significant cash payments to Ms May.
I accept Mr Irwin’s oral evidence that he periodically dropped Ms May’s children to and from school and gave them some money. However, it is also apparent that he clashed with both boys quite early on and that his relationship with both of them broke down very quickly.
Difficulties emerge between Mr Irwin and Ms May’s sons
I accept Ms May’s evidence that in mid-2012 Mr Q rang her to say that Mr Irwin had abused him and asking that she come home. She did; Mr Irwin was intoxicated and briefly left the home at her request. On another occasion in mid-2012 Mr Irwin, while intoxicated, had words with Mr D in relation to Mr D’s mental health concerns, with Mr Irwin essentially telling him to ‘harden up’. The confrontation escalated and became physical; Mr D ended up on the ground with Mr Irwin on top of him. Ms May yelled at Mr Irwin to get off Mr D, which he did.
After this, Mr D immediately went to live with his biological father for several weeks.
The parties remain together
If Ms May’s relationship with Mr Irwin at that time was merely that of a close friend, or a casual boyfriend/girlfriend relationship, Ms May could of course have decided then and there to ‘nip it in the bud’ and prioritise her relationship with her sons over her relationship with him.
There is dispute about whether or not Ms May did in fact ‘evict’ Mr Irwin from her home at that time; she says she did and he denies it. What is clear however is that from this point on:
·Mr Irwin and Ms May continued their intimate relationship and were still seeing each other regularly;
·this put strain on Ms May’s relationship with both of her sons, neither of whom liked Mr Irwin and the feelings seem to have been mutual; [13]
·Mr Irwin broadly stayed away from Mr Q and Mr D and they did likewise. To help keep the peace, Ms May decided that as a general rule she would not invite Mr Irwin to her family events, particularly where her sons were going to be present;
·even so, Mr D positively resented his mother because from his perspective she was not standing up for his needs, but was instead putting Mr Irwin’s needs first.
When Mr Irwin had a work trip to City R in mid-2012, Ms May accompanied him. They shared a bed.
When Ms May turned 50 in 2012, she invited Mr Irwin to her birthday party although regrettably it led to another schism in their social life. He did not want to mix with her friends (who he described in the witness box as “too lardy-dar” for him) and instead acted as the DJ. When Ms May was making a speech, he thought it would be a good joke to turn off her microphone. His joke went over like a proverbial ‘lead balloon’, her friends deciding he was simply uncouth and telling Ms May as much. Nonetheless, the parties’ intimate relationship continued on. The parties simply did not socialise with Ms May’s friends in any meaningful way thereafter. Nor for that matter did Ms May socialise much with his (relatively small) circle of friends.
Ms May inherits money & wants to buy a home / Mr Irwin employs her in his business
That same year, Ms May inherited around $115,000 from the estate of her late father. She used approximately $55,000 to purchase Motor Vehicle 2.
Though the parties always had separate bank accounts, their finances began to become intertwined. They loaned (and repaid) each other money. Ms May used Mr Irwin’s credit card to buy groceries and household items and to pay bills; from time to time Mr Irwin had access to Ms May’s credit card.
Ms May wanted to buy a home. This was not going to be easy; her assets were modest and her income seasonal in nature. Mr Irwin did not own a home either. His assets were modest and he was under financial pressure. The financial affairs of his business were in some disarray; for instance the ATO was pursuing him in relation to tax compliance issues. Moreover, Mr Irwin had a poor credit rating as a result of a previous failed business or businesses. (In the witness box he colourfully said that he had “phoenixed” his previous business as a result of customers not paying him.)
The Suburb J property:
In mid-2012 Ms May and Mr Irwin inspected a run-down home at S Street, Suburb J. The home required such substantial work that, in Ms May’s opinion, it was “in no state for anybody to live there.” [14] It needed a new kitchen, bathroom, laundry/sunroom, new flooring; it needed painting and landscaping.
This was Ms May’s chance to enter the property market, albeit she needed Mr Irwin’s help.
Ms May signed a contract to purchase the property for $285,000 with settlement in late 2012. She used inheritance moneys to pay the deposit and borrowed the balance of the purchase price from G Bank with the assistance of mortgage lender’s insurance. She told G Bank that her assets comprised savings of $28,000, two (2) motor vehicles, home contents and $210,000 in superannuation. Mr Irwin witnessed Ms May’s signature on the relevant mortgage documents; his stated address was O Street. [15]
There is a dispute about whether the parties intended Mr Irwin to have any beneficial interest in the Suburb J property. Ms May says that the property was hers alone and denies that there was any intention for Mr Irwin to have a beneficial interest. Mr Irwin says that it was their joint intention that he have an interest in the Suburb J property.
It is not necessary for me to make a specific finding about Mr Irwin’s intended interest in the Suburb J property (if any). It seems to have been somewhat ambiguous. What was certainly agreed was that Mr Irwin would live in the home while it was being renovated and that he would undertake some of the renovation work himself as well as engaging and supervising other tradespeople working there.
It was agreed that Mr Irwin would pay ‘rent’ (so-described at least, on paper) to Ms May which she would then apply towards the mortgage repayments. (Ms May’s DFASC in the Supreme Court proceedings alleges that the parties orally agreed that on an initial rental of $350 per week which in mid-2013 was increased to $400 per week.)
I accept Ms May’s evidence that she asked Mr Irwin not to smoke inside the Suburb J home and that he complied.
For her part, Ms May continued to live primarily with her sons at O Street. On weekends the parties would commute to see each other although Ms May commuted to Region M more often than Mr Irwin commuted to Sydney. The parties sometimes slept in the same bed; sometimes Mr Irwin slept on the couch. I accept Ms May’s evidence that Mr Irwin attempted to have sex with her at the Suburb J property only once and that this was unsuccessful. I reject her evidence however that their relationship was only ‘platonic’ thereafter and refer back to paragraph [31] of these Reasons.
In late 2012, Mr Irwin posted onto Facebook a photograph of Ms May using a hair dryer to dry clothing, with the caption:
My new clothes dryer lol.
Ms May posted in reply:
Hey [Ms T] we are renovating and living. Between two houses at the moment. Temporary fix com [sic] I am on holidays.
In the witness box, Ms May accepted that her use of the word “we” was a reference to herself and Mr Irwin. [16] She accepted that at that time she referred to Mr Irwin as her “boyfriend”.
Mr Irwin becomes a member of Ms May’s H Insurance family health insurance policy:
In late 2012 Ms May joined Mr Irwin onto her H Insurance family health insurance policy. [17]
Her affidavit explained that this was purely a money-saving exercise to help Mr Irwin who needed some surgery. Yet when shown the relevant H Insurance paperwork she had completed for this purpose, Ms May promptly conceded that she believed him to be her ‘de facto spouse’ at the time and had told H Insurance as much.
Renovation works at Suburb J:
In practical terms, the Suburb J renovation was something of a joint venture between the parties. Ms May was simply not in a position to do the substantial renovation work that was needed. Mr Irwin was in a much better position to do the work given his tradesman qualifications, experience and contacts. Moreover, Mr Irwin was essentially living at the property full-time.
Mr Irwin set about the renovation work, including supervising other tradesmen.
It was in this early renovation period (from around December 2012 to April 2013) when Ms C temporarily moved into the Suburb J property. Ms C met Ms May on weekends “a dozen times if not more”. I accept Ms C’s evidence that on those weekends she saw the parties cuddling, holding hands and sharing a bedroom. In short, they presented as an intimate couple.
I accept Ms C’s evidence that she paid rent each week while she was there. Initially she thought she paid it to Ms May but later conceded that it could have been paid to Mr Irwin. The latter is more likely, especially given that Ms C was friends with Mr Irwin and that Ms May was never particularly happy with Ms C living at the home in its incomplete and potentially hazardous state.
While Ms C was living at the Suburb J property, in January 2013 the parties went away to Queensland for a five (5) day holiday with Ms May’s family - one of the few family holidays they had together.
Mr Irwin did go on to undertake significant renovation works at the Suburb J property. He did some of the manual work himself, most notably installing new, high-quality flooring. He also assisted with work in the bathroom, the laundry/sunroom, as well as doing painting work and some of the landscaping. According to Ms May, he also paid for and installed a spa bath, apparently over her objection. [18] Mr Irwin also engaged and supervised other tradesmen at the property.
Mr Irwin’s labour component for the renovations was provided without charge to Ms May. The parties dispute the amounts actually spent. In total, Mr Irwin estimates that he spent $75,000 of his own (or his business’s) money on renovations, but this is clearly only a ‘ballpark’ figure and is uncorroborated. Part of the difficulty is that Mr Irwin paid cash for tradesmen and materials.
Ms May made some significant lump sum withdrawals from her superannuation in FY 2013 and at least some of that money was used to fund the renovations. [19] She allowed Mr Irwin use her keycard to draw money for renovation work. Ms May’s bank statements produced for the purposes of the hearing are by no means a full accounting of what was spent. [20] Ms May did not require a full accounting from Mr Irwin; he was not an arms’ length tenant but her intimate partner.
In around late 2013, the parties came up with a mutually beneficial arrangement whereby:
·Ms May would do Mr Irwin’s business bookwork, as well as liaising with the ATO on his behalf, thereby taking some of the pressure off him;
·In return, Mr Irwin would pay her around $1,000 per week even though Ms May did not have formal bookkeeping qualifications as such;
·Ms May’s wage would have the effect of substantially increasing her income and strengthening her future borrowing capacity; and at the same time
·would be tax-deductible for Mr Irwin’s business.
2014:
In 2014 the renovation work was completed and Ms May briefly moved into the Suburb J home full-time. However, after a few months she found the weekday commute to Sydney for work was too much and that she again returned to her primary base in Sydney.
In May 2014 Ms May leased a two (2)-bedroom apartment in the Sydney suburb of Suburb U. The property was somewhat meagre in that her sons slept in the bedrooms and Ms May had to sleep out on the sofa bed in the lounge room. Mr Irwin was not involved in the lease, although I accept that Ms May had access to his bank account and would sometimes ask him for money which he gave her. He did not go to the Suburb U property much. He admitted that in the period of Ms May’s lease (from May 2014 until February 2018) he only stayed there a maximum of ten (10) times. This is unsurprising given the modest nature of the property and the less-than-ideal sleeping arrangements.
By then Mr Irwin had closed down L Pty Ltd and established a new business entity in its place, V Pty Ltd. Mr Irwin’s business had become Ms May’s primary source of income. Her FY 2014 Income Tax Return discloses that V Pty Ltd paid her a taxable income of $39,245 and that her other employer that year, W Company, paid her a taxable income of $13,197. [21]
The Town F property:
Around August 2014, the parties inspected a home at X Street, Town F. In September 2014 Ms May signed a contract to purchase the property for $440,000.
To finance the purchase, Ms May borrowed $463,500 from G Bank with the assistance of mortgage insurance. Her finance application [22] gave her address as the Suburb U property, and stated that she worked part-time as a bookkeeper for V Pty Ltd and had done for two (2) years, which was inaccurate as the entity had not been established that long. (She had done some work for L Pty Ltd, the predecessor entity).
Asked in the finance application whether she had a spouse or a partner, Ms May ticked the box marked ‘yes’. In the witness box she conceded that she was referring to Mr Irwin. Her finance application opined that the value of the Suburb J home had increased to around $390,000. [23] She disclosed $1,954 in savings.
As with the Suburb J property, the parties had again agreed that Mr Irwin would live there and undertake renovation work. In December 2014, Y Company, Town F gave a written opinion that the rental value for the Town F home was $510 per week. [24] A week later the parties executed the residential lease (exhibit 1) which is referred to in paragraphs [14] – [16] of these Reasons. The lease provided, inter alia, for a twelve (12) month term commencing January 2015 (being at or around the date of settlement) and ending in January 2016. The rent was prescribed at $510 per week payable by direct debit into Ms May’s nominated bank account.
Upon Mr Irwin vacating the Suburb J property in January 2015 and moving into Town F, Ms May began renting out the Suburb J property to arms’ length tenants for $460 per week.
At this point it is worth referring back to Ms May’s DFASC for the Supreme Court proceedings. It alleges, inter alia, that during Mr Irwin’s occupation of Suburb J he was supposed to have paid Ms May total rent of $46,350 but that he had only paid her $26,700 – leaving him in arrears by $19,650. It also alleges that Mr Irwin misused her G Bank keycard by making unauthorised withdrawals including for cigarettes, alcohol and groceries, that as a result she had removed the keycard from him in or about June 2013 and that he had thereafter neglected or refused to account to her in respect of those unauthorised withdrawals. The DFASC also alleges that Mr Irwin owed Ms May thousands of dollars in unpaid loans.
Whatever the truth or otherwise of the above assertions, it is clear that at that time Ms May was not genuinely pressing them with Mr Irwin. On the contrary the parties were continuing their intimate relationship and their financial intertwinement. In the witness box, Ms May accepted that in signing the Town F lease Mr Irwin was assisting her financially and that he was not an ‘arms length’ tenant. She also admitted receiving tax advice from an accountant who was aware that Mr Irwin was her ‘spouse’ at the time the lease was signed.
Ms May’s DFASC alleges that the parties agreed that in fact Mr Irwin would pay ‘rent’ or ‘board’ of $600 per week. Mr Irwin and Ms May both understood that these payments were to be used to meet the mortgage, Council rates and utilities. Initially Mr Irwin’s internal bank transfers to Ms May labelled the payments as ‘mortgage’ but at her request he later changed it to ‘rent’.
Mr Irwin’s evidence is that the parties jointly acted as though the Town F home was his and that Ms May told him she bought the property so that ‘each of them’ had a home – all of which Ms May denies. Again the intentions of the parties seem to have been somewhat ambiguous. Ms May was the sole purchaser and borrower, and managed all the mortgage repayments, Mr Irwin not being aware of the mortgage balance. That said, Mr Irwin was very much in the background having assisted Ms May financially to acquire the home and with the joint intention that he would be living there and renovating it. Moreover, when the home was insured with Z Insurance Company both parties were named as insured persons. [25]
Once he moved in, Mr Irwin maintained the property. He met the utility bills. Over Ms May’s objection, he smoked inside the home and treated the place like it was his.
Ms May initially lived full-time with Mr Irwin at the Town F home for several months. Again the commute to and from Sydney became too much and she moved back to Suburb U. By agreement with Mr Irwin, Ms May’s two dogs remained living full-time at the Town F home and Mr Irwin was looking after them. Ms May continued regularly staying at the Town F home, particularly during the sports ‘off’ season when she was there up to five (5) nights per week. [26] At his request Ms May sometimes brought alcohol or cigarettes with her when she came. She cooked for him if she thought he was going to be home; he sometimes cooked for her on weekends.
At Christmas 2014 the parties hosted a get-together for Mr Irwin’s family and friends at the Suburb J property. [27]
Continuing to act as a couple:
The parties jointly travelled to Country AA in 2015, along with Mr Irwin’s sister, father and stepmother. I have a photograph of the parties standing together at a landmark with their arms around each other in an intimate manner; Mr Irwin is wearing a t-shirt. [28] Asked about her obvious display of affection to Mr Irwin in the photograph, Ms May said in the witness box that it was “like any other friend”. I do not accept that evidence; the parties were a couple.
In early 2015 Ms May messaged Mr B to thank him for caring for the two (2) dogs – “our babies” - while she and Mr Irwin were away. [29] Ms May’s Facebook posts from mid-2015 show a photograph of Mr Irwin patting the two (2) dogs, with the accompanying message: “My 3 loves of my life”. Mr Irwin posted in response: “Thanks my Sweetheart but I know it’s 3 of 6 [laughing emoji] xxx”. Ms May’s next post then includes as ‘loves of my life’ her mother, her sons Mr Q and Mr D and then in another post she refers to “the puddy cats” and her sisters/brother, observing that “this list is extending fast.” It was all good-humoured banter between an intimate couple. Ms May also posted a selfie of the parties facing the camera together with their heads touching. [30]
In 2015 the parties went as a couple to the wedding of one of Mr Irwin’s contractors.
In 2015 the parties went as a couple to Ms May’s niece’s wedding. The same day one of the dog’s was bitten by a tick and Mr Irwin deposed that he later paid $5,000 to Ms May on account of vet expenses. Ms May conceded a figure of $1,045 for which Mr Irwin received a $326 refund. Her figures seem more reliable but I do not need to make a specific finding; the fact is that Mr Irwin paid some of the vet bills. When the other dog died, Mr Irwin bought Ms May another dog, who also lived at the Town F home.
In late 2015 the parties jointly attended a concert in Region BB.
Sometime around then, Ms May’s nephew Mr CC got into trouble with the Police. To assist him, Ms May wrote a letter of support for him. The letter was written on V Pty Ltd letterhead and signed by Mr Irwin; the Town F home was given as the business address. Addressed ‘To whom it may concern’, the letter read:
This letter is to confirm that I, [Mr Irwin] owner/director of [V Pty Ltd] has [sic] offered employment for [Mr CC] when he is available to start. My partner [Ms May] ([Mr CC]’s Aunty) and I have a house at the above address where [Mr CC] can live if needed. We have 3 bedrooms and 2 living rooms where [Mr CC] can share the house. I am happy to support [Mr CC] with employment, guidance and carer [sic] or as the court sees fit to help [Mr CC].
If the court requires any further information or confirmation please do not hesitate to contact me.
Yours in business,
[signed [Mr Irwin]] [31]
Mr CC later moved into the Town F home for a few months, as did Ms May (seemingly to support him). Mr CC did not end up working for V Pty Ltd.
In 2016 the parties went together on a holiday, accompanied by Ms May’s mother, and her sons Mr Q and Mr D. The parties shared a cabin though they did not have sexual intercourse. The parties also travelled to Country DD together that year.
In mid-2016, Facebook were running a gimmick/campaign styled as “Post your partner.” In response, Ms May posted (or re-posted) a ‘selfie’ of the parties which shows their heads touching in an intimate manner. [32] She also posted a photograph of herself and Mr Irwin leaning against each other in a small boat on the water in an exotic location in Country DD. Though the complete post is not before me, what is there includes the words “7th day post your partner [Country DD].” Ms May also messaged Mr Irwin: “How much fun was this.” He responded: “It was [smiling emoji] time for another holiday…[Country EE] sounds good, what do you think? [wincing emoji]” [33] I reject Ms May’s oral evidence that these posts merely reflected the parties’ friendship.
Ms May’s bank statements around mid-2016 [34] show that V Pty Ltd was making regular $600 payments to her bank account which were recorded as ‘rent’. In the meantime, Mr Irwin was continuing to undertake renovation work at the Town F property. He estimates that he spent around $15,000 on painting, floor work, landscaping and general maintenance. (At some point he built a cabana for the pool and removed a pergola, although Ms May claims not to have known about the work and, moreover, that some of the work was non-compliant with Council by-laws.)
Mr Irwin and Ms May hosted a Christmas get-together in 2016 for Mr Irwin’s family and friends. [35]
In 2017 Mr Irwin spent $3,000 on a car for Ms May’s son Mr D.
Mr Irwin shuts down V Pty Ltd & begins trading as “FF Pty Ltd”:
It seems that around mid-2017, V Pty Ltd was shut down and Ms May’s wage ceased. Mr Irwin created a new business entity at the Town F address, “FF Pty Ltd”. [36] When she lodged her 2017 income tax return, Ms May nominated the Suburb U property as her address and disclosed taxable income of $45,460 from V Pty Ltd for the year, and a taxable income of approximately $10,500 from other employers. Although Ms May claims to have continued doing bookwork for FF Pty Ltd, the evidence is somewhat murky as her tax return does not disclose receipt of any income from that entity. [37]
In late 2017, Mr Q spent about five (5) days at the Town F home. He observed that Mr Irwin was there although he did not see the parties spend much time together. Ms May went to bed before Mr Irwin, who stayed up late watching TV on the couch. [38]
2018:
In February 2018 the Suburb U lease expired. Ms May’s sons moved out and Ms May moved her own furniture into the Town F home. She also decided to store some of her sister Ms GG’s furniture at the Town F home, without demur from Mr Irwin.
Thereafter from April 2018 to January 2019 Ms May lived either at Town F with Mr Irwin, or with her sister Ms GG at Suburb HH. When she was at Town F, the parties generally slept in different bedrooms. Though not sexually active, there was some intimacy between them as set out in paragraph [31] of these Reasons.
In mid-2018 Ms May posted a ‘selfie’ of the parties onto Facebook in which they are both dressed up, facing the camera and resting their heads on each other in an intimate manner. In response to the photograph, various people who knew them responded with comments including: [39]
·[…], who said “Beautiful couple…hi friend”; and
·[…], who said “Beautiful photo. [Ms May] you looke [sic] gorgeous [Mr Irwin] doesn’t look to [sic] bad either [followed by a ‘crying with laughter’ emoji and two ‘blowing a kiss’ emojis].”
Ms May’s bank statements still show regular receipt of ‘rent’ from Mr Irwin from July 2018 onwards although the amounts are variable and he also made other payments to her not specifically labelled as ‘rent’, but which potentially could have been. [40]
When she lodged her FY 2018 Income Tax Return, Ms May again nominated the Suburb U property as her address.[41]
I accept Mr B’s evidence that he saw Ms May at the Town F home reasonably often during work weeks when he attended there to collect Mr Irwin for work. (Mr B was also a tradesperson and at some point employed his father to work for him.) I accept Mr B’s evidence that on multiple occasions at the Town F home, Ms May told him words to the effect that “This is your Dad’s house as much as it is mine” and “It’s in my name, but even if we split up I’d never sell up from under your dad.”
In mid-2018 Mr D – who had been living in Europe – returned to Australia. He chose to live with Ms May’s sister Ms GG at Suburb HH. He resented his mother’s ongoing relationship with Mr Irwin, especially given the way he felt Mr Irwin had treated him. In December he went to the Town F home to confront her about it, becoming very upset.
The next day when Ms May was driving Mr D to the train station, she was ‘torn’. She wanted to make amends to him and she told him on the drive that she and Mr Irwin had not been happy together for some time.
In my view, Ms May’s heart-to-heart discussion with Mr D reflected that she was ‘torn’ about continuing her relationship with Mr Irwin. She found herself in an impossible position. It was at that point that she seems to have decided to ease into a separation.
I say ‘ease into’ a separation because it was no easy thing to do. Mr Irwin had been Ms May’s only intimate partner ever since they met. Moreover, even though their sexual relationship had been limited, they had nonetheless been monogamous and their intimate relationship exclusive. Financially they remained intertwined and as noted earlier their respective interests in the two (2) real properties were somewhat ambiguous notwithstanding that Ms May was the registered owner.
Ms May also says she was fearful of Mr Irwin at that time. Her fears dated back to a statement he had made to her years earlier about “organising a hit” on his ex-partner and then cancelling it. While I prefer Mr Irwin’s evidence that he had merely made a joke to the effect that he had “felt like” organising a hit on his ex-partner, it is clear that his joke disturbed Ms May to some extent. She had also physically seen Mr Irwin have a physical altercation with Mr D years before. So while I do not accept that Ms May was ‘living in fear’ of Mr Irwin thereafter, I do accept that she was anxious not to unduly upset or offend him.
2019:
In early 2019 Ms May found a reasonably cheap rental home in Suburb JJ to lease. She invited Mr D to move in with her and he agreed. But there was a problem; in order to secure the property she needed Mr Irwin to go onto the lease as well. He agreed to do so, and paid the bond for her. Ms May moved in there with her two (2) dogs.
The letting agent issued keys to both parties, but when Mr D moved in Ms May asked Mr Irwin to return his set of keys for Mr D’s use. Mr Irwin handed them over.
At that time, Ms May was still working in Sydney for around three (3) days per week as she had always done, including coaching sports teams and running sporting competitions. [42] But in early 2019 the sporting seasons were not yet in full swing, so her cashflow was tight and she initially borrowed money from Mr Irwin to cover the rent.
Ms May moved her furniture from the Town F home to the Suburb JJ property. Mr Irwin deposes that he also spent $8,000 on furniture for Ms May but concedes that he has no documents to corroborate that figure. Ms May denies that he spent $8,000 but accepts that he did buy her a portable air-conditioning unit at a furniture store for $1,500. Whichever figure is correct, it was still a significant amount.
Nonetheless, the frequency of the parties’ interactions began dropping off. Pointing to his lack of keys, Ms May alleges that Mr Irwin in fact only went to the Suburb JJ property a couple of times in total. Mr Irwin deposed that he visited the Suburb JJ home around twice per week. He gives detailed evidence of how he gained access through the side gate and that Ms May would leave the back door unlocked. But he ‘walked back’ this evidence in the witness box and agreed that he had only slept at the Suburb JJ property about four (4) times -“mainly in [early] 2019”. He also admitted he had never met the neighbours at the Suburb JJ home.
On 15 and 18 March 2019 Mr Irwin made two (2) payments to Ms May totalling $11,990 which he says was to meet the costs of a proposed joint trip to Country KK. Her bank statements corroborate this amount. [43] Ms May disputes that there were any holiday plans and says that the money was to pay arrears of rent and Council Rates that he owed her for the Town F property, including a fine she had received from the Council in respect of non-compliant works at the home. I prefer her version that the moneys were paid on account of the Town F property rather than for a holiday although such trip may have been a point of discussion. Moreover, Mr Irwin agreed that by March 2019 the parties’ relationship had come under strain and that he barely saw Ms May for the rest of that calendar year. (The $11,990 payment must have left Mr Irwin ‘short’ as, not long after, Ms May had to loan him $1,300. Mr Irwin separately alleges that Ms May used his $11,990 to purchase a property in City R with her son Mr Q. Ms May denies it.)
Ms May suggested that in 2019 she only went back to the Town F property to collect belongings. But in the witness box she admitted she may have slept there some nights. Mr B also saw her there some weekdays during 2019. At any rate, I am satisfied that her visits to the Town F property dropped off. In the period from 10 April to 10 May 2019 for instance, her bank records only place her in Region M on around four (4) of those days. [44]
The reality is that Mr D and Mr Irwin did not like each other; Mr D had moved into the Suburb JJ home; he had been given Mr Irwin’s keys; Ms May was prioritising her relationship with Mr D over her relationship with Mr Irwin and spending less and less time at the Town F property. The intimate couple relationship between the parties was quietly, mutually, inexorably, being drawn to a close.
Ms May began confiding in her friends about her relationship with Mr Irwin and she began thinking about seeing other men. In June 2019 she told Mr Q she was no longer living with Mr Irwin and wanted to get away from him. He was not surprised. A month or two later Ms May told him she had started to see other people and that she and Mr Irwin had not had sex for four (4) years. [45]
Mr Irwin’s regular payments to Ms May fell away. In the witness box he said that:
If I wasn’t seeing her, I wasn’t paying her.
In July or August 2019 Ms May started using some online dating apps. She removed Mr Irwin from her health insurance policy at around the same time. [46]
I consider that at around July/August 2019 the relationship between the parties ceased to meet the statutory definition of a de facto relationship. Every de facto relationship is different. This particular de facto relationship had never been characterised by regular sexual activity, nor by family intermingling, Mr Irwin had not been involved with any of Ms May’s sporting or coaching-related work activities in Sydney, and, as a general statement, the parties had always maintained separate residences. But it had been intimate, the parties had always been monogamous and their relationship was characterised by regular interactions, holidays, and significant financial intertwinement including their mutual use and enjoyment of the real properties at Suburb J and Town F. They had presented as a couple to the outside world, including to family and friends as well as making positive representations to that effect to H Insurance and G Bank. By July/August 2019, their relationship had lost these essential features and devolved into an awkward and rather tense ‘standoff’ where Mr Irwin was left living in the Town F home and both parties wanted a ‘clean break’ from each other albeit that they had markedly different views of what that looked like.
CONCLUSION ABOUT THE EXISTENCE OF A DE FACTO RELATIONSHIP
I am satisfied that the parties were in a de facto relationship as defined in the Act from approximately April 2012 until June/July 2019.
LEAVE TO PROCEED OUT OF TIME: THE LAW
Upon the breakdown of a de facto relationship, a party has two (2) years to bring property settlement proceedings against their former de facto spouse: s 44(5) of the Act. A Court may give a party leave to apply out of time if satisfied that the party would suffer ‘hardship’ if leave was not granted: s 44(6)(a) of the Act.
‘Hardship’ does not mean the mere loss of the applicant party’s right to sue, or the limitation period would be meaningless. ‘Hardship’ instead refers to the consequences to the party of losing that right; it is a prospective question. The party must demonstrate that they would suffer a substantial detriment if leave were not granted. The granting of leave must be likely to alleviate the hardship. In practical terms this means weighing up the party’s likely costs of litigation against the likely fruits thereof.
The Court’s power to grant leave should be exercised liberally in order to avoid hardship, but without rendering the time limit nugatory. So, while hardship is the touchstone for these types of applications, the Court still has a discretion whether or not to grant leave. Without limiting the possible range of relevant circumstances, the Court may consider how late the application is; whether the delay is explained; and whether the respondent will be prejudiced in the conduct of the litigation by reason of the effluxion of time (including possible loss of relevant documents, or the absence or fading memories of witnesses); and whether the respondent may suffer ‘hardship’ if leave is granted although I hasten to add that hardship to a respondent, unlike to an applicant, is not a touchstone per se.
Cross-examination is generally eschewed on the hearing of applications for leave. The Court is only required to make a prima facie assessment, usually on the basis of the applicant party’s evidence taken at its highest. So even though I now have the benefit of further oral and documentary evidence, I intend to adopt the same approach, albeit tempered to some extent by such evidence.
Hardship:
Mr Irwin’s only Financial Statement was filed in 2022 and was not read for the purposes of the hearing; Ms May never filed a Financial Statement because she denied that there was a de facto relationship. Accordingly I have an incomplete picture of the assets available for division.
That said, it is tolerably clear that the major assets referable to the period of the relationship comprise:
·the Town F home which at the hearing date had an estimated value of $840,000, a mortgage balance of $339,000 and therefore equity of around $500,000;
·the net sale proceeds of the Suburb J property which were $336,000 according to Ms May’s bank statements. [47]
The parties also have other, lesser assets. Each of them has superannuation; the wife has Motor Vehicle 2 with an estimated value of $15,000; Mr Irwin has a work vehicle and tools; each party has personal effects and furniture. For present purposes I disregard those as being de minimis in value or otherwise unlikely to be the subject of any order. My focus is on the major assets at paragraph [126].
Ms May acquired the major assets during the relationship, with Mr Irwin’s financial assistance and support as noted earlier. Those assets substantially increased in value and Ms May holds sole title to both. Mr Irwin’s case is that he has exited the relationship without being given any share thereof. That said, has also enjoyed ongoing occupation of the Town F home without having to pay rent/the mortgage since either September 2020 (his evidence), or perhaps April 2021 (according to a bank statement). [48] He has however continued maintaining the Town F property, including the pool and gardens.
Mr Bithrey contended that Mr Irwin’s overall entitlements to the major assets could credibly exceed 40%. Mr Livingstone contended that it would not be just and equitable to make any order in Mr Irwin’s favour but that even if it was, any such order would not exceed 10%.
Mr Irwin’s case could potentially be struck out on the basis that it is not just and equitable to make any order. But he has an arguable claim to a percentage greater than 20% and perhaps as high as 40%. This is a significant sum of money from his perspective and in my view the loss of such right does amount to ‘hardship’ even allowing for likely legal costs.
Should the discretion be exercised in Mr Irwin’s favour?
His application was filed approximately five (5) or six (6) months late, which is not substantial. Ms May cannot point to any particular prejudice arising from the effluxion of time. Moreover, she is presently embroiled in Supreme Court proceedings with Mr Irwin in an attempt to regain possession of the Town F home, which proceedings will involve the investigation of factual matters that will overlap with those arising in the present proceedings.
The major criticism of Mr Irwin is that his delay is entirely unexplained.
Mr Irwin was clearly on notice to bring proceedings earlier. His relationship with Ms May was well and truly over in 2020 and the parties thereafter found themselves in a ‘standoff’; a “For sale” sign went up outside the Town F home in January 2021; Mr Irwin sent Ms May threatening messages suggesting that she was behaving dishonestly towards him suggesting that he would be coming to the Suburb JJ home to collect the dog he had bought for her.
Mr Irwin saw his solicitors for advice about de facto property settlement issues in January 2021. On 30 January 2021, they sent an initial letter to Ms May inviting disclosure and negotiations. She responded with a letter on 9 February, denying that there had ever been a de facto relationship. A mediator friend of hers had written the letter which was lengthy, combative, insulting, peppered with quasi-legal jargon and amongst other things accused Mr Irwin of behaving in a fraudulent manner for which he may face future legal action. [49] Like some of Mr Irwin’s own messages to Ms May, her letter also had a threatening undertone. The parties were ‘meeting fire with fire.’
Thereafter Mr Irwin elected not to file proceedings but instead to ‘sit tight’ in the Town F home. He did so knowing that Ms May wanted him out, that he would not be leaving voluntarily, and that a Court order of some sort was likely to be unavoidable.
Ms May subsequently followed through with the NCAT proceedings discussed earlier. At the NCAT hearing, Mr Irwin said that he had taken legal advice in relation to a family law claim and was collecting his evidence in the expectation that he would file family law proceedings the very next week. [50]
In mid-2021 Ms May made a report to Police about Mr Irwin’s messages. [51]
In around mid-2021 Ms May sued Mr Irwin for unpaid rent in the Local Court, which was around the time that the limitation period ended. In late 2021 she commenced Supreme Court proceedings, which are presently ‘on hold’ pending the outcome of the instant proceedings. It was still another month before Mr Irwin filed these proceedings.
Ultimately the delay is inadequately explained and this is a relevant, though not determinative matter. I also accept that Ms May will suffer some ‘hardship’ herself in having to defend family law proceedings.
But dismissal of the instant proceedings as being ‘out of time’ will not in fact end the litigation between these parties, at least insofar as it relates the Town F home. Mr Livingstone indeed contended that there was no ‘hardship’ to Mr Irwin in refusing to grant leave because, on the basis of Mr Irwin’s asserted facts, he could cross-claim in the Supreme Court for equitable relief in respect of that home, perhaps in the form of a trust for which there is no statutory limitation period. [52] While I accept Mr Bithrey’s submission in reply that such equitable cross-claim has never been brought, is vague and would not offset the hardship that Mr Irwin would suffer if his present claim is dismissed, it highlights what I see as a bigger point.
In particular, dismissal of the instant proceedings still leaves the parties embroiled in Supreme Court litigation. I also think it relevant in the exercise of discretion that dismissal of these proceedings will not quell the justiciable controversies as between these parties. Moreover, while the Federal Circuit and Family Court of Australia (Division 2) is also a Court of both law and equity and can potentially hear and determine any associated equitable claims between the parties, the breadth of the statutory remedies available to parties pursuant to Part VIIIAB the Family Law Act is so broad as to make such applications rare in practice.
CONCLUSION & ORDERS
On the basis of the above analysis, I am satisfied that the Court’s discretion to extend time ought to be exercised in Mr Irwin’s favour.
I therefore make the declarations and orders set out at the commencement herein.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 15 May 2025
[1] See for instance exhibits 13 & 35.
[2] Exhibit 2.
[3] Mr Livingstone’s Case Outline, paragraphs 18 & 21.
[4] Sinclair v Whittaker (2013) FLC 93-551.
[5] Noting also ss 95 & 96 of the Act and the ‘overarching purpose’ of the family law practice and procedure provisions, which includes amongst other things the just resolution of disputes as quickly, inexpensively and efficiently as possible.
[6] Taken from paragraph 94 of the joint judgment of Bryant CJ, Thackray & Aldridge JJ reported at 87,398.
[7] At page 415. Footnote has been omitted.
[8] See Owens & Benson [2014] FamCAFC 243; Mayson & Wellard [2021] FamCAFC 115.
[9] Consistent with Ms May’s evidence and also her bank statement which is exhibit 3.
[10] Ms May’s affidavit, paragraph 264.
[11] Exhibit 37, paragraph 9 in particular.
[12] Paragraph 6 of his affidavit.
[13] The resentment seems to have been mutual and longstanding; see for instance the texts exchanged between Mr Irwin and Mr D in the period 2014 to 2018 when Mr D was living at the Suburb U property: exhibit 6.
[14] Ms May’s affidavit, paragraph 250.
[15] Exhibit 21.
[16] Exhibit 22.
[17] Exhibit 15.
[18] Ms May’s affidavit, paragraph 194.
[19] Exhibit 25.
[20] Ms May’s bank statements show thousands of dollars withdrawn at ATMs, paid to Mr Irwin, drawn as cheques or otherwise spent on what appear to be renovation costs (such as payments to hardware stores). There is also a $3,000 flooring payment, presumably for the flooring material laid installed by Mr Irwin: see exhibit 14.
[21] Exhibit 28.
[22] Exhibit 23.
[23] Exhibits 23 & 27.
[24] Exhibit 24.
[25] Exhibit 31.
[26] This is consistent with the earlier affidavit of her son Mr Q: see exhibit 37, paragraph 33.
[27] Exhibit 32.
[28] Exhibit 19. The photograph was posted to Facebook in early 2018.
[29] Exhibit 32.
[30] Exhibit 16.
[31] Exhibit 30.
[32] Exhibit 20, posted in mid 2016.
[33] Exhibit 17, posted in mid 2016.
[34] Exhibit 36.
[35] See exhibit 32.
[36] Exhibit 12. The letter sent by Ms May to Mr Irwin on 30/01/21 (ex.35) asserts that the business became insolvent (bankrupt) in 2017.
[37] Exhibit 5.
[38] Exhibit 37, paragraphs 38 & 39.
[39] Exhibit 18.
[40] Exhibit 4.
[41] Exhibit 11.
[42] This was for different employers; she also had a COVID layoff for a time.
[43] Exhibit 4.
[44] Exhibit 33.
[45] Exhibit 37, paragraphs 46 & 47.
[46] Exhibit 15.
[47] Exhibit 38.
[48] Exhibit 34.
[49] Exhibit 35.
[50] Exhibit 2.
[51] See exhibits 7 & 8.
[52] Such a claim would still however be subject to a possible defence of laches.
0