FEDERAL CIRCUIT COURT OF AUSTRALIA
| JARROW & MANARD | [2020] FCCA 2598 |
| Catchwords: COSTS – Order for costs in favour of witness of credit and truth – section 117(2A) factors considered – obligation on parties to resolve controversy in a manner consistent with efficient use of Court resources – circumstances where one party is the controller of all assets – circumstances where party has deal with assets whilst resisting Court’s jurisdiction – circumstances where applicant wholly successful in establishing credit and discharging burden of proof. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Sch. 1; pts 14, 24; div 21 |
| Taisha & Peng and Anor [2012] FamCA 385 Calverley & Green (1984) 155 CLR 242 Penfold & Penfold (1980) FLC 90-800 Other Sources Bianca Hall, ‘Surge in ‘urgent’ Family Court cases… |
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- AGLC
- Jarrow and Manard [2020] FCCA 2598
- Case
- [2020] FCCA 2598
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were to determine whether a de facto relationship existed between Ms Jarrow and Mr Manard, and if so, when it commenced and concluded. This determination was crucial for establishing the Court's jurisdiction under section 90RD of the *Family Law Act 1975* (Cth) to make property orders. Additionally, the Court was required to consider allegations of family violence and the appropriate orders to be made in light of the parties' financial circumstances and the alleged disposal of assets. The Court also had to address the issue of costs, particularly in light of the parties' conduct during the proceedings and the successful establishment of Ms Jarrow's case.
Judge Harman found that a de facto relationship existed between the parties, commencing approximately in August 2003 and concluding on 10 June 2017. This finding was based on a comprehensive assessment of the factors outlined in section 4AA of the *Family Law Act 1975* (Cth), including the duration of the relationship (nearly 14 years), common residence, the existence of a sexual relationship, and a degree of financial interdependence, particularly in relation to the acquisition of property and the support of their two children. The Court accepted Ms Jarrow's evidence as more credible, especially concerning the personal aspects of the relationship and the allegations of coercive and controlling violence, which were found to be consistent with the sole ownership of assets by Mr Manard. The Court also noted a mutual commitment to a shared life, evidenced by their co-parenting and public declarations regarding property acquisition.
Consequently, the Court declared that the parties lived in a de facto relationship from August 2003 to 10 June 2017. Mr Manard was ordered to pay Ms Jarrow's costs fixed at $25,000 within 42 days, with these costs to be a charge upon his interest in a specific property. Mr Manard was also restrained from dealing with this property without Ms Jarrow's consent or leave of the Court, and was ordered to consent to a caveat being placed on the property. Further orders were made regarding the filing of amended applications, disclosure of financial documents, and the listing of the matter for a final hearing on 18 September 2020. Leave was also granted for Ms Jarrow to provide an affidavit to the Child Support Registrar to correct records concerning child care arrangements.
Orders
Orders of the court
1.
Pursuant to section 90RD of the Family Law Act 1975 (Cth), it is DECLARED that the parties Ms Jarrow and Mr Manard lived in a de facto relationship with each other, commencing approximately August 2003 concluding 10 June 2017.
2.
Mr Manard shall pay Ms Jarrow’s costs of and incidental to the proceedings to date, such costs fixed in the sum of twenty-five thousand dollars ($25,000) to be paid by Mr Manard to Ms Jarrow or as she may direct in writing, within forty-two (42) days of today’s date, failing which:
(a) Interest shall then accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by the Federal Circuit Court Rules 2001.
(b) Ms Jarrow shall be entitled to commence proceedings to recover that sum interest accrued thereupon and costs of recovery in a court of competent jurisdiction;
3.
The above costs shall be a charge upon Mr Manard’s interest in the parcel of real estate B Street, Suburb C, NSW being all that parcel contained in Certificate of Title Folio Identifier ... and Ms Jarrow shall be entitled to record the charge created by this Order and this Order itself as against title to that property.
4.
That the Respondent be restrained from selling, transferring, mortgaging or in any way further encumbering or otherwise dealing with the property situate at and known as B Street, Suburb C, NSW, being the whole of the land contained in Folio Identifier Certificate of Title ... (the Property) and specifically shall not drawdown any further monies, nor incur any further indebtedness (including without limitation under any credit card facility), secured by the Property without the prior written consent of the Applicant, or by leave of the Court.
5.
That Respondent do all acts and things necessary to consent to a caveat to be placed on the property by the Applicant within 7 days of a request to do so and the Applicant is hereby granted leave to file such caveat.
6.
That in the event that the Respondent refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document he court appoints and authorises a Registrar of the Federal Circuit Court of Australia, Parramatta Registry, to execute such deed, instrument or document in the name of the Respondent pursuant to section 106A of the Family Law Act 1975 and further appoints that Registrar or Deputy Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.
7.
Each of the applicant and respondent shall, by close of business 28 August 2020 file and serve any Amended Application or Response together with such Affidavit material as they propose to rely upon at trial and not otherwise, such that material filed other than in accordance with this order will not be admitted into evidence, save with the leave of the Court first had and obtained prior to filing.
8.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules 2001 and within 21 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a) Copies of income tax returns, assessment notices and BASs for the last
(b) Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(c) Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(d) Market appraisals with respect to any parcel of real estate in which any party has an interest;
(e) Any document within the possession, custody or control of that party proving, disproving or tending to prove or disprove any allegation of fact contained in either party’s Financial Statement or Affidavit or which will be raised as an allegation of fact at hearing;
(f) Copies of market appraisals or computer site print outs as to value of any motor vehicle the value of which is not agreed;
(g) All documents relating to or evidencing the source of funds applied to purchase the property at B Street, Suburb C NSW.
9.
Any document which is, at the date of this Order, in the possession, custody or control of a party and which is not disclosed and a copy provided to the other party in accordance with the above Order will not be admitted into evidence.
10.
The listing 3 August 2020 is hereby vacated.
11.
The matter is listed for Final Hearing before Judge Harman at 9.30am on 18 September 2020 and to continue until completion.
12.
Direct each party to electronically file a Case Outline no later than close of business 4 September 2020, such Case Outline to incorporate:
(a) The material that is relied upon by that party, being one Affidavit per witness together with any Affidavit in reply;
(b) The material from which tender is to be made in that party’s case;
(c) A chronology of events;
(d) A schedule of objections to be taken to material (and the parties shall confer prior to hearing and endeavour to reach an agreed position on how those objections will be dealt with).
(e) A draft trial plan (preferably agreed) to ensure the matter is contained to its allocated time and with evidence and submissions to finish by 1pm on the last listed day of trial and so as to allow judgement to then be delivered.
13.
Leave is granted to the parties jointly and severally to provide to the Child Support Registrar a copy of any Affidavit filed in these proceedings which they believe to be relevant to the assessment of child support or departure from assessment and, to the extent that leave is required, it is granted so as to avoid infringement of section 121 of the Family Law Act 1975 (Cth) or any express or implied Harman principle obligations of the parties.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
By reference to section 4AA, the factors that I must have regard to are:a)The duration of the relationship. I am satisfied that the relationship subsisted, as Ms Jarrow alleges, for nearly 14 years. b)The nature and extent of their common residence. I am satisfied, as would be apparent from the above discussion, that the parties have shared a common residence from 2003 through to 10 June 2017. c)Whether a sexual relationship exists. I accept on the basis that Ms Jarrow’s evidence is the more credible, although it is not a determinative factor, that the parties did, in fact, engage in a sexual relationship with each other from 2003 until their separation in 2017. The manner in which Ms Jarrow gives her evidence with respect to that aspect of her relationship - extremely personal and invasive evidence - is somewhat compelling. I accept that Mr Manard opines that he has engaged, both during separation under the one roof as he alleges from 2006 to 2009, and during the period that he suggests they were again separated under the one roof, 2013 to 2017, that he may well have engaged in sexual relationships with others. It is at that point that I return to Ms Jarrow’s earlier evidence. It is her evidence that the initial brief separation under the one roof arose from infidelity, thus, it is entirely consistent that it may have occurred again. Indeed, the demeanour adopted by Ms Jarrow in addressing that very issue would suggest that she may well be accepting of that proposition. In any event, a relationship, whether marriage or de facto relationship, need not, irrespective of vows or expectations, be monogamous or exclusive. Whether it was or not is not the factor that I must consider. The parties, I am satisfied, continued post-2006 to engage in a sexual relationship with each other. d)The degree of financial dependence or interdependence. As I have indicated, it is an agreed fact that these parties have never operated a joint bank account but they have intermingled their finances and substantially so. I accept that Ms Jarrow has withdrawn money from, initially, her Centrelink benefits and then her wages and provided that into the account of Mr Manard. Whether that is for the totality of the relationship or not, I need not be concerned. Indeed, Ms Jarrow does not suggest it is so. Ms Jarrow is clear that she did not, for quite some years, lodge a tax return as she did not have an income which warranted or required it. However, the degree of financial dependence and interdependence is demonstrated, if nothing else, by the fact that these parties have, and have continued to maintain, during the periods that they have lived together at least, two children. They have both provided financially in that regard and that is financial dependence between them. Whether they maintained a joint bank account or not is not the sole determinant or test of financial dependence. e)Ownership, use and acquisition of property. As I commenced, the assets of this relationship, as I find it has been, are predominantly, if not solely, controlled by Mr Manard. The home is registered in his name. I am satisfied that, in due course, by reference to Stanford & Stanford (2012) 247 CLR 108, it will be necessary to address the issue of whether any order is to be made with respect to adjustment of interests in property, (although as their Honours made clear in Stanford, the very fact that the parties have intermingled their affairs with each other, financially and otherwise, and acquired assets, irrespective of the registered proprietorship of same, would in most circumstances be a sufficient precondition). The parties have, during their relationship, acquired property. That has included, curiously, the establishment of a business that Mr Manard continues to operate. Whilst Mr Manard denies there has ever been financial interlinking between these parties, it is clear that he could not obtain a loan in his own name and, accordingly, the loan was obtained in the joint names of the parties as Ms Jarrow was then working. It was her income that enabled the loan to be obtained it would seem, at least inferentially, from Mr Manard’s evidence (a Calverley & Green[20] contribution if you will). [20]Calverley & Green (1984) 155 CLR 242.That, of itself, is a significant interdependence of these parties and their financial arrangements. Again, as I have observed at the outset, that loan has since been discharged by consolidation of the mortgage and, thus, equity available for consideration for division between the parties is reduced (whilst there is no explanation of what has occurred with any funds paid out with respect to the writing-off of the truck). The ownership, use and acquisition of property does not obviate against a finding that a de facto relationship exists, particularly when one has regard to my acceptance of the allegations of coercive and controlling violence led by Ms Jarrow. Indeed, the sole ownership and sole registered proprietorship of assets would be entirely consistent with that evidence. f)Degree of mutual commitment to a shared life. This must, from the discussion above, irresistibly fall in favour of a relationship being found. These parties have co-parented their two children until quite recently. A curious aspect of the evidence - something which I sought submissions with respect to but received none - is that it is common ground that: i)Mr Manard has advised the child support agency that he has 51 per cent of care of the children; ii)This impacts upon Ms Jarrow’s Centrelink benefits, family tax payments or otherwise; andiii)It is incorrect. Mr Manard’s affidavit concedes that he has, at best, five per cent time with the children. He offers an explanation as to why that is so, but it does not change the objective, mathematical reality. Accordingly, whilst no submission has been put in opposition and, thus, I accept it is unresisted, I propose to make an Order, to the extent that it is necessary, granting leave to Ms Jarrow, pursuant to section 121 of the Family Law Act (supra) and irrespective of any express or implied Harman obligation, to provide a copy of that affidavit to the Child Support Registrar so that their records might be corrected as well, as Centrelink’s, and so that Ms Jarrow can receive that to which she is entitled. The mutual commitment to a shared life, however, during the period 2003 to 10 June 2017 is well established on the above evidence to my satisfaction. g)Whether the relationship is registered. It is not. So few are. h)Care and support of children. It is conceded by Mr Manard that Ms Jarrow has made a contribution to the children’s support and upkeep throughout their lives. Indeed, it is irresistible on his evidence, even though I do not accept it, that it must be so. If the children were living solely with Ms Jarrow, albeit spending time with their father one to three days per week as Mr Manard asserts, she must have provided the predominant care and support of the children. But I also accept that both have been involved in providing hands-on care at different times during their cohabitation. i)Reputation and public aspects of the relationship. Again, Ms Jarrow is clear that there has been limited ability for that to be practised and has given plausible and accepted evidence as to why that might be so. But it has not stopped a public acceptance and a public holding out. Again, one need go no further than Ms F’s unchallenged evidence that, for example, the purchase of the home was announced by Mr Manard and Ms Jarrow jointly, as the evidence satisfies me, sitting holding hands and joyously announcing that they were in the process of purchasing a home together. That would suggest a significant element of reputation and public holding out of a relationship.