JARROW & MANARD
[2020] FCCA 2598
•12 June 2020
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 as COVID-19 pressures boil over’, The Sydney Morning Herald (online) 25 March 2020, accessible at court-cases-as-covid-19-pressures-boil-over-20200424-p54mxl.html Matthew Doran, ‘Coronavirus concerns see family courts rush through applications linked to COVID-19’, ABC New Online (online) 25 April 2020, accessible at Family Court of Australia & Federal Circuit Court of Australia, Joint Practice Direction 1 of 2020 – Core Principles in the Case Management of Family Law Matters (2020) |
| Applicant: | MS JARROW |
| Respondent: | MR MANARD |
| File Number: | PAC 2593 of 2019 |
| Judgment of: | Judge Harman |
| Hearing dates: | 11 & 12 June 2020 |
| Date of Last Submission: | 12 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 12 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stenhouse |
| Solicitors for the Applicant: | Bell Lawyers |
| Counsel for the Respondent: | Mr J Shaw |
| Solicitors for the Respondent: | Pannu Lawyers |
ORDERS
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.
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;
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.
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.
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.
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.
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.
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.
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.
The listing 3 August 2020 is hereby vacated.
The matter is listed for Final Hearing before Judge Harman at 9.30am on 18 September 2020 and to continue until completion.
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym Jarrow & Manard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARAMATTA |
PAC 2593 of 2019
| MS JARROW |
Applicant
And
| MR MANARD |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court for hearing.
The matter has concluded within the two days allocated to it.
The issues to be determined as a consequence of the hearing and delivery of these reasons are threefold:
a)Firstly, the address of an Application pursuant to section 90RD of the Family Law Act 1975 (Cth) for the declaration of the existence of a de facto relationship for specified periods. That declaration is resisted;
b)Secondly, a number of restraints are sought in accordance with an Application in a Case filed in the proceedings on 23 April 2020. That Application is notionally returnable on a future date, however, it was signalled at the time that these hearing dates were fixed that all Applications would be determined at this hearing. Accordingly, I propose to determine that Application and vacate the listing date of 3 August 2020;
c)Thirdly, there is an issue of costs which flows from the determination of, particularly, the first issue above, but also the second.
The parties to the proceedings are Ms Jarrow and Mr Manard, the applicant and respondent respectively.
I do not propose, for the reasons discussed, for example, by Cronin J in Taisha & Peng and Anor [2012] FamCA 385, to refer to the parties by generic terms such as “husband” and “wife”. The parties are alleged, on Ms Jarrow’s Application, to be the parties to a de facto relationship subsisting for a period from 2003 until 10 June 2007. Mr Manard denies that contention.
Mr Manard concedes that the parties lived together in a de facto relationship from 2003 until a date in 2006, possibly as late as 10 October 2006, but that thereafter he contends that they have not lived together in a de facto relationship at any time. That is a matter of some significance as the termination of the relationship - if it were ultimately so found, in 2006, irrespective of the date - would predate the referral of power to this Court with respect to de facto relationships. Accordingly, there would be nothing that could be addressed by reference to, for example, leave to proceed out of time. That is also an issue that is raised in Mr Manard’s material.
Mr Manard suggests that the date of separation, if the Court were to find that a relationship had subsisted as late as 2017, was 12 May 2017 - Mother’s Day, as it transpires - which would be some four weeks or so prior to the necessary date of commencement of these proceedings.
Ultimately, the latter controversies need not occupy any significant time as I make clear from the outset, for the benefit of these parties if nothing else, (these reasons being delivered on an ex tempore basis late on a Friday afternoon), that I propose to make a declaration as sought by Ms Jarrow. I propose also to impose restraints as sought by Ms Jarrow and to make an Order for costs in her favour.
I also propose to make an Order, although I am not satisfied it would be entirely necessary, by reference to section 121 of the Family Law Act (supra) or any express or implied undertaking by Ms Jarrow by reference to the “Harman principle” that would allow and permit her to provide to the Child Support Registrar a copy of Mr Manard’s most recent affidavit in these proceedings, so as to address and quell any controversy before the Registrar. Reasons will be given with respect to each of those matters in some detail.
Ex tempore reasons
These reasons are delivered on an ex tempore basis, as I have already indicated, and late on Friday.[1] The matter will conclude well after Court sitting hours.
[1] This footnote was not part of the ex tempore reasons as delivered but is included as an addendum. A request to settle these reasons was received 2 July, 2020 and the transcript of reasons received by Chambers on 10 July, 2020 both events being during a period of leave taken 26 June-19 July, 2020.
Ex tempore reasons are somewhat discouraged by appellate Courts. That is on the basis that a more considered, nuanced, and edited judgment might be preferable. However, in this case, I intend to proceed to deliver reasons on an ex tempore basis. There are a number of reasons for that.
Firstly, and perhaps most importantly, the evidence could not be clearer in my mind than it is at present. I am unlikely, two to three months hence, when the first opportunity to revisit the matter would likely arise, to have a clearer recollection of the evidence than I do at present.
I make clear that whilst these reasons are given on an ex tempore basis, it is not done with the intention of rushing the determination of the proceedings. If I felt that the evidence was not clear in my mind, I would defer and reserve judgment so as to permit a more extensive review of the matter.
I have read and re-read the material on several occasions, as well as having had the benefit of cross-examination of parties and certain of the witnesses, and submissions by counsel for each of the parties. Each of the parties is competently represented.
There would be significant delay if judgment were reserved. In these current times of pandemic, matters are being addressed by telephone and Microsoft Teams. That circumstance of itself is not particularly relevant. What flows, however, are the pressures upon this Court to continue to undertake its work. As observed by Justice Hamill of the Supreme Court of New South Wales:[2]
It is important in times such as these that the fundamental institutions of society, including courts seized with responsibility for the administration of justice, continue their work when and wherever possible.
[2] Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323 at [13].
It is a consequence thereof that the workload of the Court has not decreased during these times but has, in fact, increased. It is commonly observed that:[3]
The workload of the court and the number of urgent applications in particular have increased by possibly as much as 40 per cent.
[3] Bianca Hall, ‘Surge in ‘urgent’ Family Court cases as COVID-19 pressures boil over’, The Sydney Morning Herald (online) 25 March 2020, accessible at court-cases-as-covid-19-pressures-boil-over-20200424-p54mxl.html; see also: Matthew Doran, ‘Coronavirus concerns see family courts rush through applications linked to COVID-19’, ABC New Online (online) 25 April 2020, accessible at >
It is, as it were, “all hands on deck” to ensure that work can be addressed.
As consequence thereof, the next two weeks of my docket and calendar are entirely filled - indeed, significantly overfilled. There will then be a period of leave before returning to the same, as it were, tsunami of work. That includes regular address of matters in the COVID-19 list, as well as work already before the Court.
These are issues to be addressed from the perspective of the parties. I am conscious of that which is opined, albeit without intending to trivialise the issue by reference to popular culture, by the singer Darren Hanlon, in that “certain things should be said to the face”. Whilst that cannot occur in a face-to-face hearing at present, I am conscious that the parties all have the benefit of being able to observe these reasons given, to hear them and to see their delivery, by AV means. There is benefit to that.
These parties, to my mind, deserve the closure and termination of the matter in that fashion. It is also an efficient manner to dispose of the proceedings when the evidence is abundantly clear and, to my mind, understood and able to be properly collated and considered.
Practice Direction 1 of 2020[4] requires that the Court’s resources be used efficiently. There could be nothing more efficient than concluding a case with ex tempore reasons when it is possible for it to be done without significant concern as to the efficacy of the reasons.
[4] Family Court of Australia & Federal Circuit Court of Australia, Joint Practice Direction 1 of 2020 – Core Principles in the Case Management of Family Law Matters (2020), 1.
There are also other pressing issues peculiar to this case. As would be apparent, there is an Application for certain restraints to be imposed with respect to dealings with a parcel of real estate. There have already been dealings with that parcel of real estate since May 2017, when, on Ms Jarrow’s allegation - which I accept - the de facto relationship of the parties came to a conclusion. Those dealings have reduced, at least potentially, the funds that would be available for consideration in any determination under Part VIIIAB of the Family Law Act (supra). .
It is also clear and apparent from the material filed by Mr Manard, who is the respondent in the proceedings and who has effective control of all assets and resources of the relationship, that there have been a number of developments, as it were, with respect to those assets.
The most recent financial statement filed by Mr Manard on 10 June 2020 - that is, the day before this trial - makes clear that three assets of some significance are alleged to have been disposed of;
a)The first of these assets is a Motor Vehicle 1 which previously had an insured value of $52,500. Indeed, on the basis of material tendered, it would appear to continue to be insured in Mr Manard’s name and for that value. I need not determine any controversy as to whether the vehicle remains in Mr Manard’s effective possession, custody or control, (or not) - merely to observe that its agreed value, compared to that which it is alleged it was disposed of after being damaged, is significant - a factor of at least eight times or so. That is leaving aside the contention raised by Mr Manard in cross-examination, but not addressed anywhere else in his evidence, that an insurance claim was, in fact, made with respect to the car. What is absent, of course, is any indication or evidence as to the conclusion of that claim - whether it was, for example, successful and, if so, whether the agreed value was paid out;
b)A motorbike has been disposed of, or so it is alleged. Some contention is raised by Ms Jarrow as to whether that is likely or probable but, again, I need not determine the issue. All that need be observed is that its suggested sale price is significantly less, although Mr Manard is clear in his evidence, brief as it is, that it was damaged and is far less than that which the vehicle is suggested to have been purchased for or its actual worth.
c)Finally, the most recent financial statement suggests that a prime mover has recently been written off and, one can infer therefrom, an insurance claim of $41,950 made and potentially paid out. That vehicle had been purchased with finance in the joint names of the parties - or at least of which both parties had contributed their support and security. That loan, however, was refinanced, (no criticism is raised that it is so), and consolidated with the mortgage encumbering the parcel of real estate. Thus, any insurance claim that might have been paid out need not have been applied towards retirement of debt. There is no suggestion on Mr Manard’s evidence, and he alone would be seized with that knowledge, as to whether funds have been received and, if so, how they have been used.
Finally, there is a conceded withdrawal from the mortgage encumbering the parcel of real estate that comprises the most substantial asset potentially in dispute between these parties - in excess of $40,000 - which is suggested, without any further particularisation, to have been entirely expended - a significant portion of which relates to a suggested long-term gambling problem.
Accordingly, those factors of themselves suggest that some expedition of any final determination of the proceedings should occur.
The matter is arbitrable but the parties have not, to date - even though it has been discussed at a number of Court events - consented to such a referral. Accordingly, I can only presume the matter will proceed to a defended hearing before the Court.
The hearing of the matter can be accommodated in quick measure - September this year. It will involve the surrender of a judgment writing day to make it so. The parties will have sufficient time to prepare for a hearing in that timeframe.
Of course, if judgment were reserved and delayed, and a delay of even two months were to occur – and, in all probability and in all reality, such a delay would be the very bottom end of the range that could be expected for delay - the hearing date could not be taken. That, again, is not a significant or compelling reason to deliver reasons on an ex tempore basis, as I have commenced.
The fundamental reason that this judgment is delivered on an ex tempore basis is because I am satisfied the parties should hear the reasons delivered to them orally. It is, for example, why in the criminal jurisdiction that even when typed notes of sentencing comments are prepared, those comments are still read out for the benefit of the victim (if they are present), the jury, the public and the defendant.
Of course, open justice is somewhat curtailed in these times of pandemic. As far as the Court is aware, the only persons online and participating are the parties and their legal representatives. Thus, the public will not have the benefit of these reasons, although they may well be required to be settled at some point, in which case that aspect of the rule of law can also be addressed. I hasten to add, as the Federal Court has been clear, that:[5]
Curtailment to the practice of open justice is permissible, indeed, justified in current pandemic times as a public health issue.
[5] Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664, [1]-[6].
It also speaks to the issues addressed, for example, by Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment)[6] and is what is required to ensure that the rule of law can continue to be practised.
[6] Capic v Ford Motor Company of Australia Limited (Adjournment)[2020] FCA 486, [10]-[25].
Teams Hearing
As would be apparent, the matter has been heard and determined using Microsoft Teams as the relevant platform. It is not ideal for the hearing of Court events. It serves its purpose in many ways, but it is certainly not purpose built or designed for the conduct of litigation. It is intended to be used for meetings within enterprises - hence, perhaps, its name - to allow “teams” of people within an organisation to gather together in a virtual or remote environment.
It has, in this case, however, served its purpose and there have been a number of collateral benefits, albeit there have been some difficulties. I do not suggest for one moment that the matter would ideally proceed on this basis. As observed by Perram J at paragraphs 23 and 25 of Capic, if there was any certainty as to when the matter might proceed as an in-person hearing, it would be preferable that the matter be adjourned so that it could be conducted in that fashion. However, there is no certainty.
As recently as this afternoon, updates have been provided as to when limited in-person hearings can commence. But they are very much limited and confined, in accordance with the direction of the Chief Judge of the Federal Circuit Court, to urgent trials and matters which simply cannot be put off, as a consequence of urgency. This is no such case, (although there are matters, some of which have already been touched upon, that compel the conclusion of the proceedings).
The matter advancing is certainly supported by authorities such as Capic, as well as McDougall v Nominal Defendant,[7] a determination of the District Court of New South Wales which is accorded the same position in the hierarchy of courts as the Federal Circuit Court.
[7] McDougall v Nominal Defendant [2020] NSWDC 194, [8]-[9]]
The matter has previously been not reached. The matter is prepared and ready to advance. Both parties, through their legal representatives, have consented to the matter proceeding on this basis. There are a number of matters which might obviate against the case being heard by Teams, but they were considered and have been continuously considered in my mind as the matter has progressed.
There are significant issues of credit to be determined in this case. Indeed, the matter stands and falls on a determination of credit to a very large extent. On that basis, matters such as the direction of the President of the Family Law Division of the High Court of Justice England and Wales,[8] as well as similar directions issued by my Head of Jurisdiction,[9] which suggest that some caution might be shown in advancing the matter to trial using Teams or remote hearing platforms are relevant and germane and would urge some caution in proceeding. Similarly, the decisions of the Court of Appeal of England and Wales in Re A[10] and Re B[11] would suggest that, if the matter could be put off, it might be preferable to do so notwithstanding the consent of the parties.
[8] Family Division of the High Court of the United Kingdom, COVID 19: National Guidance for the Family Court, (2020), accessible at:
[9] Federal Circuit Court of Australia, Practitioner and litigant guide to virtual hearings and Microsoft Teams, (2020) and accessible at Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583, especially paragraphs 8 and 9.
[11] Re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.
I am also conscious in that regard of authorities such as Australian Securities and Investments Commission v GetSwift Limited. [12] The matter, whilst involving issues of credibility, can be adequately addressed and, indeed, as their Honours observed in Getswift, there are potentially some real benefits.
[12] Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504.
If the matter had proceeded as an in-person hearing, one party would be in the witness box for the majority of time that the other party was seated with their counsel. That has the practical and logistical difficulty, within my courtroom, that the party in the witness box cannot be seen. There are a bank of computer screens between myself and the witness box which requires me to cease taking notes and sit bolt upright to be able to see them at all. It is rare that the party not giving evidence would be seen, thus, their reactions to the evidence being given, for example, would be obscured. It is simply not possible in a busy first instance trial court, in which daily transcripts are not obtained, to have the luxury of observing parties whilst evidence is being given. Attention is given to cross-referencing evidence or legislation using the computer and taking handwritten notes.
The benefit of a remote hearing in a case such as this is that each of the parties can be “pinned” on the screen at all times. That the parties can be seen is a requirement of section 69 of the Federal Circuit Court Act 1999 (Cth), namely, that all parties can see and hear all others at all times.[13] It is a collateral benefit to the Court that even though the parties are not physically present, they are far more readily observable - perhaps even though they were not fully aware of that - at all times as the hearing progresses. Thus, each party giving their evidence can be observed and the other party’s reactions similarly observed. As their Honours discussed in GetSwift, that is a real benefit to the court.
[13] The Federal Circuit Court of Australia or a Judge must not exercise the power conferred by subsection 66(1), 67(1) or 68(1) in relation to a video link unless the Federal Circuit Court of Australia or the Judge is satisfied that the following conditions are met in relation to the video link [namely that] the courtroom or other place where the Federal Circuit Court of Australia or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person ) who is giving the testimony,…appearing or…making the submission as the case may be, by way of the video link.
There have certainly been technical difficulties, including continuous reverb or echoes across the line for various reasons (which have never been fully understood), but which have been sufficiently and tolerably addressed. They have not been difficulties, however, to the extent as experienced by Fullerton J in R v Obeid and Macdonald.[14] They have been problematic and troublesome, but they have not gotten to a point where, as Perram J observed at paragraph 25 of Capic, it has ever been necessary to consider the trial being aborted or otherwise adjourned.
[14] R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382.
Notwithstanding that the matter progresses by way of remote Teams hearing, it is still necessary for the court to ensure that justice is done and that appropriate procedure, albeit with some small modification, is followed and addressed (see Sharp v Conroy[15] as well as Motorola v Hytera[16]). I am satisfied that this has been accommodated in this hearing.
[15] Sharp v Conroy [2020] NSWSC 271.
[16] Motorola Solutions Inc v Hytera Communications Corporation Ltd (Second Adjournment) [2020] FCA 987, [30]
There have been some peculiar aspects of the matter. Mr Manard has attended from the same table, it seems - certainly the same room - as his counsel. I do not raise that to suggest any misgivings or any concern, although, it was pointed out by Ms Jarrow’s counsel, appropriately so, that it was contrary to the practical guidelines issued by Federal Courts as to the conduct of remote hearings and the notice to the profession regarding such hearings. It may have contributed to some of the technical issues I have referred to, but it has been far from difficult in conducting the matter. Any specific issues have been raised and addressed as the matter has progressed.
On that basis, I am satisfied that the integrity and efficacy of the hearing process has been preserved and that both parties have been afforded due process.
Material Considered
In dealing with these proceedings, I have read and considered the material that would be readily apparent from a transcript. But for the sake of clarity, it is identified as follows.
As regards Applications and Responses, I have read and considered each of the documents filed, comprising:
a)The Initiating Application filed by Ms Jarrow on 4 June 2019;
b)The Amended Initiating Application filed 6 August 2019;
c)A further Amended Initiating Application filed 13 December 2019;
d)Together with the Application in a Case, (to which reference has already been made), filed 23 April 2020.
An earlier Application in a Case had been filed by Mr Manard relating purely to an extension of time with respect to filing directions. Thus, I have not further considered it, nor the material filed in support of it. Although some slight reference is made to those documents in Ms Jarrow’s evidence, it is not germane nor fundamental to the determination of any fact in this case.
I have had regard to Mr Manard’s Response filed 17 September 2019. Mr Manard’s position has not changed since the Response was filed and, thus, there has been no need for amendment.
Mr Manard seeks two Orders and two Orders only, namely:
a)Firstly, that Ms Jarrow’s Application be dismissed as the proceedings are commenced more than two years after the parties separated. Indeed, on Mr Manard’s allegation, the parties had separated some 13 years prior to the commencement of proceedings;
b)Secondly, Mr Manard seeks an Order for the payment of his costs of and incidental to the proceedings. That is consistent with the Order also sought by Ms Jarrow.
As regards affidavit material, that which is read and considered, and as identified in the Case Outline documents filed by each of the parties, has expanded somewhat. During cross-examination, reference has been made to documents that were not specifically identified as read and, thus, each of the affidavits that have been referred to, either in a Case Outline document or during cross-examination, are read. They comprise three affidavits by Ms Jarrow. They are sworn or affirmed on 6 August 2019, 12 December 2019 and 29 May 2020 respectively.
There is an affidavit by Ms Jarrow’s mother, Ms D, sworn or affirmed 23 August 2019. There is an affidavit of Ms Jarrow’s sister, Ms E, sworn or affirmed 13 December 2019 and finally, an affidavit of Ms Jarrow’s niece, Ms F, sworn or affirmed 10 December 2019. Each of the above deponents, with the notable exception of Ms F, have been required for cross-examination.
I have also read and considered Ms Jarrow’s Financial Statement filed on 29 May 2020. An earlier statement was filed, but it was not read nor need it have been. In addition, there is the Case Outline document provided by counsel for Ms Jarrow which was also read and considered.
In the case of Mr Manard, I have read and considered a number of affidavits sworn by him - three in total - being documents sworn or affirmed 16 September 2019, 29 May 2020 and 1 June 2020. The last affidavit in time is, perhaps, the most significant, as will become apparent in a discussion of the evidence.
There are two affidavits by Mr Manard’s mother, Ms G. The first is sworn or affirmed on 16 September 2019, the second on 10 December 2019. Both Mr Manard and his mother have been required for cross-examination.
I have also read and considered the three Financial Statements filed by Mr Manard which are sworn or affirmed on 16 September 2019, 20 January 2020 and 10 June 2020 respectively. I have also received a Case Outline document from counsel for Mr Manard which is read and considered.
There were a number of tenders made in the proceedings - quite a significant number by number of pages - and comprising in Ms Jarrow’s case three tenders:
a)Exhibit A1, certain material from H Insurance relating to vehicles owned by Mr Manard;
b)Exhibit A2, material from New South Wales Police as tagged and identified in a helpful index provided under the heading Tender Bundle; and,
c)Exhibit A3, a screenshot of a bank statement with respect to a Westpac account maintained in Ms Jarrow’s name and covering the period 21 February to 11 March 2013.
In the case of Mr Manard, there are a number of tenders:
a)Exhibit R1, a Facebook Messenger post-dated 17 December 2017;
b)Exhibit R2, a photograph with respect to the graduation from year 6 of the parties’ youngest child, J, that occurred in 2018;
c)Exhibit R3, a copy of the certificate of title of a property at B Street, Suburb C - the parcel of real estate to which reference has already been made without having previously identifying its address;
d)Exhibit R4, certain material from Centrelink relating to Ms Jarrow;
e)Exhibit R5, an individual tax return for Ms Jarrow for the 2014/15 financial year;
f)Exhibit R6, certain material with respect to residential leases, rent and payment of utilities for properties in which Ms Jarrow has resided. On Ms Jarrow’s allegation, she has resided in those properties with Mr Manard and, ultimately, I make clear, I find that it is so;
g)Exhibit R7, Mr Manard’s tax returns for the period 2013 to 2017;
h)Exhibit R8, certain photographs set out at pages 66 to 68 of the tender bundle;
i)Exhibit R9, a cash receipt with respect to a payment made by a corporation, “K”, of which Mr Manard would appear to be the sole shareholder and director, and paying a sum of $3,500 to Ms Jarrow. The receipt is dated 17 February and does not have a year completed. Ms Jarrow’s evidence is the receipt was issued in 2018 or 2019;
j)Exhibit R10, certain materials with respect to child support assessments regarding the two children of these parties;
k)Exhibit R11, a screenshot of the myTax portal for Mr Manard;
l)Exhibit R12, a singular page of a bank statement with the National Australia Bank in the name of Mr L. Mr L is the partner of Ms G and, thus, whether by marriage or otherwise, Mr Manard’s stepfather. That document was purported to be tendered with an additional document being what purports to be a photocopy of a cheque butt from a cheque book, presumably corresponding with the cheque number on the bank statement, ie, cheque 57. I make clear the cheque butt has not been admitted. That can and should be addressed forthwith.
The tender of the National Australia Bank statement of Mr L was initially opposed – indeed, the tender initially rejected. Upon review, I indicated my intent to admit the document. No submission to the contrary was put. The tender is, however, with respect to the bank statement alone.
There are certain handwritten entries on the document. They are not part of the tender. That arises for a number of reasons.
Firstly, the document was not disclosed or discovered. Its existence was not made known to Ms Jarrow or those representing her interests until late on the morning of the second day of trial. The duty of disclosure attaches to the parties personally, not their legal representatives. It is certainly clear that the document has been in existence for some little time. It is a bank record from seven years ago. The document can and should have been discovered.
I am extremely conscious of Full Court authorities such as Somers & Collier [2017] FamCAFC 123 and Norton & Locke [2013] FamCAFC 202 which restrict the Court’s ability to make Orders, even with respect to disclosure and discovery, unless and until jurisdiction has been appropriately established. In this case, as there is contest and challenge as to whether a de facto relationship of sufficient categorisation to establish jurisdiction has ever existed, no such Order has been made. However, the common law duty of disclosure arises the moment litigation is commenced. Indeed, Parts 14 and 24 of the Federal Circuit Court Rules 2001 make that abundantly clear.
There is no obligation upon the Court to make an Order that a document be discovered. Indeed, unless the Court was aware the document existed, it would be a nonsense to suggest it could be so. The document clearly existed and has clearly been available to Mr Manard for some little time. He chose to produce it on the second day of hearing whilst he was in the process of being cross‑examined, and after the matter had been adjourned and stood in the list for a period of time to enable Mr Manard to attend, or perhaps again attend, upon his bank, the Commonwealth Bank of Australia, to seek to obtain a copy of his own bank statement for the same period. I will return to that in due course, particularly as regard to discussion of evidence and credit.
The statement that is produced thus could be excluded purely on the basis that it has not previously been discovered and it takes Ms Jarrow and those representing her interests entirely by surprise.
The handwritten portion is excluded as Mr L is not a witness in these proceedings. That applies both to the comments appended to the statement itself and to the cheque butt. There is no evidence to address the providence of the document or whether the handwriting is that of Mr L, Mr Manard, or any other person.
The authenticity of the document cannot be in any way assessed or addressed. Ms Jarrow cannot challenge any assertion made with respect to those handwritten comments because the person who could answer those questions, and the only person who could answer them, is not called in Mr Manard’s case. Only Mr Manard would have knowledge or control of facts or circumstances that would permit Mr L to be called. It would not be open, for example, to Ms Jarrow to know that she might seek to call him through subpoena or otherwise. Indeed, until the second day of hearing, the contention that arises with respect to the document, now produced and tendered, and, indeed, admitted, was not known or clearly distilled to Ms Jarrow or those representing her interests.
Importantly, sections 135 and 136 of the Evidence Act 1995 (Cth) would be basis to exclude the document. Admission would create prejudice to Ms Jarrow that cannot be addressed in any form. Accordingly, it is the document itself that is admitted.
It should be observed that the document itself proves nothing of relevance to these proceedings. Indeed, evidence with respect to the financial transaction which forms a pivotal aspect of the evidence is not relied upon for any purpose other than credit. The Court is not hearing or determining a claim under Part VIIIAB at this point, merely determining whether a declaration can or should be made as to the existence of a de facto relationship to found jurisdiction. The transactions will thus be discussed in due course as I have already indicated.
Evidence of the parties
The parties agree on very little, and, accordingly, the Court must hear and determine the plea before anything further can be advanced between these parties and their competing claims for substantive relief. I use that phrase in its broad sense as Ms Jarrow has before this Court a claim for Part VIIIAB relief. Mr Manard does not yet have any such plea before the Court. As I have already indicated, Somers & Collier and Norton & Locke, amongst other authorities, make clear that the Court cannot, until seized of jurisdiction, determine the substantive claim.
This is a case in which a discussion of relevant case law might be more appropriate prior to a consideration of evidence. However, I propose to touch upon the evidence and particular matters raised therein with respect to credibility, if nothing else, before returning to the case law that would apply, the relevant legislative provisions and the determination of the matter. The case, as indicated, very much succeeds or fails upon issues of credibility.
As regards that which is ultimately to be found from the evidence - and for reasons that I will expand upon - I prefer and accept the evidence of Ms Jarrow and the witnesses called in her case - one of whom, Ms F, is entirely unchallenged - in preference to the evidence of Mr Manard and his mother. That is not necessarily to suggest that one or more witnesses are telling untruths. However, these are not proceedings in which such findings are necessary.
These are civil proceedings determined on the balance of probabilities. In that regard, an erudite and useful discussion of what is required in that sense is undertaken, for example, by Cronin J in Taisha & Peng and Anor - particularly his statement at paragraph 78 that the onus is upon the applicant, Ms Jarrow, to prove the existence of a de facto relationship. However, to the extent that either party agitates for a finding of fact, the onus falls upon the party so agitating. He who alleges must prove, as it were.
It is upon the evidence that the Court must be satisfied that the case is made out. The proceedings are, of course, determined on the balance of probabilities.
The parties are in agreement as to very few facts. The parties do agree that their cohabitation with each other, in what both agree was a de facto relationship, commenced in 2003. The parties are then wildly apart as to when their relationship concluded, if it concluded at all, prior to 10 June 2017. Those issues are perhaps best dealt with by consideration of the evidence and credibility together. I will turn to credibility very shortly.
It is germane to outline the broad propositions advanced by each of the parties - their case theories, as it were.
It is Ms Jarrow’s case that, subject to a period of separation of approximately one month which occurred at some time in 2009 when the parties separated under the one roof, they never terminated their relationship, that they continued in a relationship and continued living together on a full-time or substantial basis until their eventual separation on 10 June 2017.
Mr Manard’s contention, or case theory, is that the parties separated some time in 2006, albeit continuing to reside under the one roof until some time in 2009.
During his cross-examination, Mr Manard pinned, for want of a better description, the separation under the one roof to an event recorded by police on 10 October 2006. That is in itself problematic, for reasons that I will return to. Mr Manard’s case theory is then that the parties, from 2009, when he took himself from the then shared rental accommodation of the parties, until some time after August 2013, lived separately and apart and did not share accommodation.
True it is that Mr Manard asserts that he visited the accommodation that Ms Jarrow occupied with the children of the parties from time to time, but he makes clear on his evidence that this was solely for the purpose of maintaining a relationship with the children - something advanced somewhat emotively, perhaps, as he had grown up absent a father and was concerned to ensure that these children did not have the same disadvantaged experience that he did.
It is conceded by Mr Manard that, during that period - indeed, through to and including June 2017 and beyond - these two parents continued to engage in family activities with each other but purely as friends and co-parents. It is suggested on Mr Manard’s case that any such family events, whether visiting Ms Jarrow’s relatives, Mr Manard’s relatives or other activities, cannot and should not be seen as implying or importing a relationship between these parties other than as mutually cooperative co-parents putting on a brave face, perhaps, at times, for the sake of the children.
Indeed, cross-examination of Mr Manard commenced with the proposition that his case is founded on three essential bases to explain any interaction between these parties:
a)That it was either for the benefit of the children;
b)At the request of the children; or,
c)At the insistence of Ms Jarrow that absent his compliance with her demand, the children would not be available to him.
There are a number of problems with those propositions, each of them, but particularly the last, particularly having regard to the issues of family violence that are raised by Ms Jarrow and which - again, accepting her evidence in preference to that of Mr Manard - I accept.
It is improbable on an acceptance of Ms Jarrow’s evidence with respect to family violence, including what is suggested to be physical violence, verbal violence, financial control, and coercive and controlling behaviours towards her, that Mr Manard would yield to her demands or threats. Indeed, that is, to some extent, contraindicated by material that is tendered from police post‑June 2017 when Mr Manard is clear, through those records, that he will take action necessary to secure his continued relationship with the children irrespective of Ms Jarrow’s cooperation.
It begs, perhaps, the rhetorical question, which need not be answered for present purposes, as to why such an attitude was not or could not have been demonstrated earlier so as to bring to an end, as Mr Manard asserts he had desired fairly stridently at different points in time prior to June 2017, the termination of cohabitation between these parties. Indeed, those propositions are somewhat contrary to Mr Manard’s own evidence as to how interaction between these parties occurred, bearing in mind that this is a case that can only be determined, to a large extent, based upon findings of credit as there is little, if any, agreed fact, and little, if any, corroboration, (that is, the issue of corroboration is something that will also be touched upon as regards credit).
Mr Manard’s case is that between 2009 and 2013, he was somewhat indigent and itinerant - living at different accommodation, the homes of various friends - some of whom are known by both fore and surname, some by forename only, some of whom have addresses known to and articulated by Mr Manard, some of whom are simply identified as places where he stayed and would know how to get to but does not know the address. Some of the persons that Mr Manard suggests he stayed with include family: his brother, (or, if not with his brother, at accommodation owned or leased by his brother), and his own mother, Ms G, who now lives some short distance from him in Suburb C.
One of the difficulties for Mr Manard is the operation of the rule in Jones & Dunkel (1959) 101 CLR 96. As is clear, if not already made apparent, and by reference to the authorities I have referred to above regarding the matter of proceeding as a remote hearing, the drawing of inferences, pursuant to Jones & Dunkel and the body of the case law following thereafter, might be tempered by difficulties created by remote hearings and health regulations arising from the pandemic.
That is not the case here. For example, Ms G is called to give evidence. Her evidence is entirely silent on the important issue of periods of time when Mr Manard might have stayed at her home, notwithstanding that Mr Manard’s clear evidence is that he did do so from time to time. There is no explanation offered for why those witnesses could not be called. Indeed, in the case of Ms G, she was called. It is simply that her evidence does not speak to the issue at all.
One can only infer - and I am satisfied the inferences are drawn appropriately by reference to relevant authority[17] - that:
a)The evidence that would be given by Ms G would not support Mr Manard’s contention that he had stayed with her from time to time; and,
b)That I should accept, with more confidence, the evidence of Ms Jarrow that the parties did, in fact, continue to live together.
[17] The “rule” is eloquently discussed in Manly Council v Byrne (2004) NSWCA123 at 51 “Thus, if a witness is not called two different type of results might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. "
There are other aspects of that evidence that are also troubling and do not assist Mr Manard. I will deal with them separately and shortly.
In 2013, the property at Suburb C was purchased. It would seem, by the conclusion of the evidence, fairly clear that the conveyance settled in August 2013. It is Mr Manard’s evidence that the transaction was entirely undertaken by him with funds provided from his savings or from his family and that any endeavour relating to the purchase, locating the property, inspecting it and the like were undertaken absent Ms Jarrow.
Ms Jarrow’s evidence contradicts Mr Manard’s. It is, of course, her evidence that must establish the proposition that the parties lived in a de facto relationship. It is not for Mr Manard to disprove that proposition. However, on an acceptance of Ms Jarrow’s evidence in preference to that of Mr Manard, it becomes somewhat irresistible that Ms Jarrow would be found to have discharged her evidential duties and discharged the burden of proof, which she carries and she alone carries, to establish that fact. It is, to my mind, so established. The difficulties in that regard are myriad, but I will, as indicated, address those by reference to the evidence.
Credibility
A convenient starting point for a consideration of credibility is that observed in Moby & Schulter [2010] FLC 923-447 at paragraph 8. Therein, Mushin J, an excellent jurist, commenced in reciting the dilemma faced in those proceedings – the circumstances of which are very much reflected in these proceedings - namely:
The parties disagree on nearly all of the important facts in these proceedings. Accordingly, it is necessary for me to make findings with respect to credibility. During the trial, both parties gave cause for concern with regard to the reliability of their evidence.
I pause to observe that Mushin J’s comment regarding the parties before him is not necessarily referable to this case.
There is only one very minor aspect of Ms Jarrow’s evidence that is in any way controversial as regards the totality of evidence, and particularly the corroborative material tendered in her case, that is, a suggestion in one police record during the period 2009 to 2013 that Mr Manard stayed “substantially” at the accommodation which Ms Jarrow and the children occupied rather than totally. However, even that is reconcilable, as it is Mr Manard’s clear evidence - and I accept that it is so, (findings of credit need not dismiss the reliability of each and every aspect of a party’s evidence) - that he often, during that period, travelled away for work. Thus, Ms Jarrow’s statements are not necessarily, on their face, inconsistent at all.
His Honour continued:
There is great antipathy between them [I pause to observe that is most assuredly the case here] and, quite naturally, each of them sees the contentious facts through her or his own eyes. At times, that led to each of them exaggerating their respective versions.
Again, the later comment is not, to my mind, applicable to Ms Jarrow’s evidence. I accept the submission put by her counsel that her evidence has been balanced, has made appropriate concessions, and has not sought to exaggerate, embellish or to manufacture. She has not disagreed with propositions for the sake of it, nor has she dismissed them. When she has been unclear, she has been clear as to that uncertainty.
I quickly seek to differentiate those observations of Mushin J, largely applicable but not entirely to the circumstances of this case, for those reasons.
The criticism is apt as regards Mr Manard and, to some extent - perhaps less so, but I need not mathematise the issue - Ms G. Their evidence is, as submitted by counsel for Ms Jarrow, wont to be given in terms of absoluteness. The responses of Mr Manard to any proposition put to him during cross‑examination that was contrary to his position and which proposition may have been of assistance to Ms Jarrow was to deny absolutely.
There was no doubt in Mr Manard’s mind - no nuance, no shades of light and dark - purely black and white. He was telling the truth. Ms Jarrow, and, it seems, all the witnesses called in her case, except Ms F, (who was not required for cross‑examination and whose evidence I thus accept, on its face, as more probably correct than not and without challenge), were lying.
The evidence of Mr Manard would appear, at times, although no finding need be made, to be opportunistic. That is perhaps a consequence of the longitudinal fashion in which these parties have chosen to lead their evidence. Rather than file one consolidated affidavit – and I do not raise the issue to criticise the legal representatives of the parties – their evidence is given across a number of affidavits which each update or add to that which preceded it. That is not problematic in the case of Ms Jarrow. Her evidence is, throughout, internally consistent and plausible. When she has added, it has been to further expand upon and explain evidence that she has already given.
However, when Mr Manard has given evidence - and, similarly, his mother - the evidence has changed. That is, in some respects, significant. What is particularly important, though, and as will, I would hope, become tolerably apparent, is that the very simple material that would have corroborated matters which are perhaps tangential to the issue that must be determined - a declaration as to when a relationship commenced and ended, there being no dispute that one did commence - it has simply not been produced, and without explanation.
The evidence of Ms Jarrow was far closer to perfect. I do not suggest that it was, but it was internally consistent, plausible, consistent across each of the three affidavits and through cross‑examination, and, through no fault of counsel, unshaken. Her evidence has stood up well to testing and examination and scrutiny.
I am also conscious of that opined by Tree J in McMaster & Wyhler [2013] FamCA 989, commencing at paragraph 11:
The credibility of the applicant was not seriously impugned. However, the credibility of the respondent was strongly challenged on several fronts.
That does not, as is submitted - appropriately so - by counsel for Mr Manard, shift the burden of proof. The burden of proof rests with Ms Jarrow at all times. She must prove her contention that a de facto relationship existed which terminated 10 June 2017.
However, when there is contra-agitation - when it is suggested by Mr Manard that Ms Jarrow is incorrect and that a different version of events occurred - whilst Ms Jarrow retains that overwhelming burden of proof, Mr Manard is required to prove the fact that he asserts in contra‑agitation. His inability to do so in most, if not all, circumstances in this case is somewhat fatal to the acceptance of him as a witness of credit.
I am also conscious of that which fell from Cronin J, again, in Taisha & Peng and Anor at paragraph 77. Perhaps in contradistinction to the circumstances of this case:
The secretive nature of the asserted relationship, the various circumstances of the living arrangements which changed from time to time and which are as consistent with a mother and daughter relationship as they are of a sexual relationship, the absence of any significant corroborative material to support the major assertions and the absolute denials of the family and the respondent’s other witnesses, all lead me to doubt the case of Ms Taisha. I cannot guess because that is exactly what the trial judge did in Briginshaw. I find that I am not persuaded to the appropriate standard as to the existence of a de facto relationship.
As I commenced, I referred to that passage from his Honour, a notable and excellent jurist, as a contradistinction in this case. The relationship between these parties was not, to my mind, the evidence now all having been led and tested, (save Ms F’s evidence which is unchallenged), suggests that the relationship was not secretive and that it was held out to various persons.
Importantly, although I do not suggest for one moment that the children can or should, as minors, be embroiled as witnesses in the case, what is entirely absent in any evidence is the children’s perspective or perception of their parents’ relationship with each other, they now being teenagers. But what is asserted and held out by the parties, including, importantly, Ms F’s unchallenged evidence, is that the parties did hold out their relationship to others not as co‑parents, not as supporting each other as housemates, but as a committed relationship with each other.
That extends to and includes a consideration of the periods of time between 2009 and 2013 when Mr Manard suggests the parties maintained entirely separate residences, (although Mr Manard is somewhat unclear and less than precise, although bearing in mind it is 11 to 8 years ago). Memory may well fade as to those arrangements. The contraindication of acceptance of that proposition, however, is the absolute certainty with which Mr Manard gives that evidence. The persons with whom he stayed are lifelong friends who he has known since childhood. Thus, they are available to be called as witnesses, but were not. Hence, Jones v Dunkel inferences are available and I am satisfied, in this case, appropriately drawn.
That Mr Manard cannot elucidate any details with respect to them, including their surnames or addresses – addresses at which he says he stayed and from which, on his own evidence, mail was redirected – is somewhat concerning. It causes significant doubt in my mind as to acceptance of that evidence as plausible, let alone credible.
There are certainly limited social interactions by Mr Manard and Ms Jarrow with others. However, that is also explained on Ms Jarrow’s evidence, which, having regard to the corroborative material with respect to violence, I find credible and accept. She asserts in her material that it was Mr Manard’s desire that there be limited interaction with, particularly her family, but generally.
There are aspects of Mr Manard’s evidence which I will now turn to which are otherwise simply, and as politely as can be described, implausible and smack of recent invention and opportunistic manufacture to address a circumstance. I will turn to that evidence now by dealing with certain specific aspects of the evidence rather than its totality.
Separation and the Relationship between the Parties
Ms Jarrow describes the relationship between the parties, commencing at paragraph 5 of her affidavit 6 August 2019, as subsisting from August 2003 until 10 June 2017, that is, a period of nearly 14 years. At paragraph 8, she describes separation on 10 June 2017, and at paragraph 11 advances a brief separation between these parties that occurred some time in 2009. That is of significance as Ms Jarrow does not seek to simply introduce that brief period of separation under the one roof after an allegation is raised by Mr Manard. She started her evidence with it.
The second affidavit of 12 December 2019 repeats exactly the same evidence at paragraphs 5, 9 and 13 respectively. The affidavit of 29 May 2020 does not address the dates or periods of cohabitation, as the affidavit updates evidence already given. Thus, I am not critical of its absence.
Mr Manard’s first affidavit, filed 16 September 2009, concedes at paragraph 3 a relationship from an unspecified date in 2003 to an unspecified date in 2006. At paragraph 5, Mr Manard describes that the parties separated under the one roof some time in 2006 and that this continued until an unspecified date in 2009 when he left the home.
He then describes that from 2013, certainly after August, when the Suburb C property was purchased, until 12 May, Mother’s Day, 2017, that the parties again lived under the one roof. He describes that this was on a number of bases, initially because Ms Jarrow desired it as she was struggling financially and the property which she was then renting, alone, on Mr Manard’s evidence, (but which I accept the parties shared substantially if not full time), was being sold and no longer available to her.
Mr Manard advances in his latter affidavit material that he was also conscious to assist Ms Jarrow save money so that she could afford to buy or obtain accommodation of her own at some point, which would benefit the two children of these parties (I have not identified these children by name as there is no parenting issue before the Court). They were born, respectively, in 2005 and early 2006.
At paragraph 20, Mr Manard indicates that in 2006 there was a discussion between he and Ms Jarrow and at that time that he had indicated to Ms Jarrow:
This isn’t going to work. I’m done.
Ms Jarrow is suggested to have replied:
If that’s how it’s going to be, fine, but I’m not moving out. We need to still live together. M needs to be in the same house as both his parents.
Curiously, at that point, the suggested desire of Mr Manard is to ensure, (indeed his motivation for enduring what must have been an unpleasant time for both of these parties, let alone their children, of living together under the one roof for significant periods of time), that the children have two parents living together, no matter, it would seem, how unhappy they were. That conflation of desire suggests that the motivation was initially evinced and expressed by Ms Jarrow.
Mr Manard concludes with the comment in response:
Fine. Only because I know what it’s like not to have a dad. But this is over. I’m only going to live in the same house as you for M [It would seem, ultimately, also the younger child born some little time after].
At paragraph 34 of that affidavit, Mr Manard indicates that in 2013, after he had purchased the property at Suburb C in his sole name – and there is no dispute that it was so – Ms Jarrow came to him and stated:
I want my dad to think we are together and stable. Can we live together until he passes away? He is not well. I just want to make him happy. I would also be able to save if we move in together and you pay the bill. I’m still studying. I want to set the kids and I up properly. You can also see them every day this way too. I said, “Fine, but you need to move out as soon as you get a job and save enough money for a house and your dad passes away, whether both are intended as conditions precedent or otherwise”.
Again, what is curious about that suggestion is that it imports, implies and conflates to Ms Jarrow the very motivation that Mr Manard expresses of why he endured such periods of separation under the one roof - in the case of the property at Suburb C, nearly four years of living under the one roof together. That, of itself, is problematic. It would imply a degree of philanthropy to Mr Manard that is not at all apparent in any of his behaviours as recorded in the police material or his attitudes towards Ms Jarrow as expressed throughout his evidence in these proceedings.
At paragraphs 41 to 45 of that affidavit, Mr Manard gives detail as to what he says occurred at the time of separation between these parties, commencing with a deterioration between them in December 2016. Shortly prior thereto, Ms Jarrow’s father had, sadly, passed away. Accordingly, a conversation is suggested by Mr Manard as follows:
Mr Manard: It’s been a few weeks since your dad passed away. We should talk about the situation. As I’ve been paying for everything, you should have enough saved now for a deposit on a house.
Ms Jarrow: There is nothing to discuss. This is my house too.
Mr Manard: But that’s not we discussed, and you know it.
It is then suggested that in early May 2017, a further conversation occurred:
Mr Manard: When are you moving out? We had an agreement.
Ms Jarrow: This is my house too.
It then has the simple statement (paragraph 43):
I recall on 12 May 2017 Ms Jarrow moved out of the property (and continuing in paragraph 44) I recall we had a conversation that day in words to the following effect:
Mr Manard: When are you moving out? You’ve had enough time to make arrangements.
Ms Jarrow: You need to move out. This is my house. I’ll take the kids away from you, and you will never see them again. So you get out.
Mr Manard: No. I’ve had enough. Get out. The kids can stay but you can’t. You remember the deal. I think you were taking advantage of the situation to take what is mine.
Mr Manard, again: This is the last fucking time I’m going to ask you. Get out. The kids can stay, but you need to leave.
Ms Jarrow: Fine. I’ll leave, but the kids are coming with me, though.
Paragraph 45 relates:
I then saw Ms Jarrow pack an overnight bag and leave with the children.
That is expanded upon by the affidavit of 29 May 2020. Therein, at paragraph 16, the suggested separation in 2006 has become motivated by a suggested assault upon Mr Manard by Ms Jarrow. Mr Manard describes in that paragraph:
Some time in 2006, Ms Jarrow and I separated. Our separation occurred after an argument which became ugly, with Ms Jarrow attempting to stab me with a knife. We then had a discussion in the course of which [Mr Manard said] This isn’t going to work. I’m done.
Continuing on from that related in the earlier affidavit at paragraph 20, Mr Manard, of course, does not indicate at that point that he contacted the police or had any report to any other person. In the context of Full Court authority such as Amador & Amador [2009] 43 Fam LR 268, I do not suggest that such report to external authorities is necessary to accept Mr Manard’s evidence. The difficulty with the evidence comes later, particularly during Mr Manard’s cross-examination, and by Mr Manard’s affidavit of 1 June 2020, wherein, at paragraph 8 thereof, Mr Manard again asserts that separation on a final basis occurred in 2006.
During cross-examination, it was put to Mr Manard by Ms Jarrow’s counsel that a Police COPS entry that was tendered in Ms Jarrow’s case, that of 10 October 2006, is the occasion that was referred to by Mr Manard. Mr Manard accepted that this was so. What is clear is that on that occasion, the police were called. It may well be by Ms Jarrow and that Ms Jarrow then called again after things had settled down in an attempt to call the police off, but attend they did.
The entry on that date makes no reference whatsoever to a knife. I do not accept that put by Mr Manard, when he was challenged on the issue by counsel for Ms Jarrow, that this arose not because he had failed to mention the knife and the attempted stabbing but because the police had either not recorded it at all or had recorded it in a notebook but then failed to transcribe it to the COP system. I reject that evidence. If the police had been told by Mr Manard that he had been attacked by Ms Jarrow wielding a knife, it would have been recorded within the document.
I accept that that which fell from the New South Wales Law Reform Commission Report 1973,[18] that:
The acceptance of a document as admissible is proof that the document, not necessarily its contents but that the contents of the document when the author of the document is someone seized with prosecutorial and investigative responsibilities should, unless there is clear evidence to the contrary, be accepted on its face.
[18] New South Wales Law Reform Commission, Evidence (Business Records), Report 17 (1973).
I adopt that approach. If a knife had been mentioned, then it would have been referred to in the COPS entry. It is not. Of course, until that time, there was no date provided, or even a period of time within 2006, when Mr Manard suggested separation occurred. That then pins the separation to 10 October, albeit separation under the one roof.
What is also important with respect to that event is that there is some real issue between these parties as to whether they were ever engaged. It is not a dispositive fact of any issue, but it is, of course, like all other contentions in these proceedings, put into issue.
It is Ms Jarrow’s evidence that the parties had become engaged prior to, or proximate to, the birth of the first child. Mr Manard does not initially address that in his evidence, but ultimately indicates that there was no engagement and that Ms Jarrow had desired it, whereas he had not, he had never proposed, he did not want to be married to Ms Jarrow and that Ms Jarrow had purchased a ring for herself, and wore it as an engagement ring, notwithstanding the absence of that engagement.
The record on this occasion - a contemporaneous record, produced nearly 14 years ago - refers to the argument arising from an attempt by Mr Manard to take from Ms Jarrow her engagement ring. Whilst a knife is not mentioned, an engagement ring most assuredly is. The evidence thus led by Mr Manard, again, would lend itself to a consideration, at the very least, that, having sighted the police record which had been subpoenaed some little time ago, it was seized upon by him as proof positive of his contention that some argument had occurred in 2006 that was, as it were, the point when the relationship ended.
If that was in fact the intention – and I make no such finding that it is – it was very misguided and ill-advised. That is particularly so because the document simply does not corroborate Mr Manard’s evidence. It doses quite the contrary. It supports and corroborates Ms Jarrow’s evidence.
It is also curious that it is described by Mr Manard with respect to the 2017 separation that, calmly, it would seem, Ms Jarrow packed a bag to leave the property that she had otherwise stridently insisted was hers, or hers jointly with Mr Manard, and left. That is not consistent with any evidence in this case which is credible and plausible, including, again, the unchallenged evidence of Ms F.
Ms F was, at that point in time - May – June 2017 - living with Ms Jarrow’s mother. She had recently separated from her partner, Mr N, who had been involved in a number of events and activities with Mr Manard and Ms Jarrow previously, one of which is also referred to in the affidavit and of some significance. Ms F gives unchallenged evidence that on 10 June, Ms Jarrow, together with both children, arrived late at night after everyone had already gone to bed and the front door had been locked.
She describes that Ms Jarrow and the children were crying and distressed. The children were dressed in their pyjamas, and Ms Jarrow “had only her handbag”. Ms Jarrow sent the children to the back lounge room so that the adults could talk. Ultimately, it was agreed that all would stay there, M sleeping in the lounge room, J with Ms F, and Ms Jarrow sleeping with her sister, Ms E. That is consistent with Ms Jarrow’s evidence, - as well as that of her sister, Ms E, and her mother - that the decamping from the property at Suburb C occurred late at night and with Ms Jarrow and the children driven by a neighbour who had heard the commotion.
They are small differences, the very nuance that is absent Mr Manard’s evidence, but important. They lend significant support to acceptance of Ms Jarrow’s version over that of Mr Manard. That extends to and includes the circumstances of suggested separation and when separations occurred.
I am satisfied that beyond Ms Jarrow’s evidence, there was a brief separation under the one roof in 2009, (she suggests it is a consequence of infidelity on the part of Mr Manard, although nothing turns upon that other than issues of credit, which, again, I will return to) and that the parties lived together continuously, perhaps all subject to Mr Manard’s work absences, until 10 June 2017.
The parties’ residences between 2009 and 2013
I have already touched upon this evidence to some extent.
Ms Jarrow’s evidence in her affidavit of 6 August 2009 at paragraph 6 sets out the addresses of which she suggests that she, together with the children and Mr Manard, lived during that period. Her affidavit of December 2019, at the same paragraph, repeats the same evidence. The affidavit of 29 May 2020 does not take the issue a great deal further, for the reasons already given.
Mr Manard’s evidence, in his affidavit of 16 September 2019 at paragraph 33, is merely that in 2009 he moved out of the then shared accommodation. Nothing further is really led.
The affidavit of 29 May 2020 at paragraphs 28 and 29 expand upon what is suggested from Mr Manard’s perspective to have occurred during that period, that to which I have already referred. Mr Manard acknowledges that Ms Jarrow and the children lived at three specified addresses and that during that period –
I resided at various places, including sleeping at a friend’s house, at my mother’s house whilst her partner was away [although, as I have observed, Ms G is completely silent on that issue, although well-able to corroborate the evidence, if it were capable of corroboration] and also at my brother’s business.
During cross-examination, that list of premises expanded, although details did not emerge. One would wonder why Mr Manard’s brother is not available to give evidence regarding the circumstance he suggests. Mr Manard concedes, having by then read Ms Jarrow’s earlier evidence regarding his mail arriving at the premises that she says they shared jointly, that his mail was redirected, including his payslips, and the principal reason for that being to reassure Ms Jarrow and allay her concerns that he was not being truthful regarding his income, as regards child support obligations. I will come to those shortly. That is a curious basis upon which to engage in such behaviour. I find some difficulty accepting that it is so.
During Ms Jarrow’s cross-examination, Ms Jarrow indicated that whilst the parties were still living together in 2006 to 2009, correspondence that was forwarded by the child support agency to Mr Manard was sent to him at an address identified by her - and, graphically, if nothing else, the benefit of being able to see both parties on the screen simultaneously, also by Mr Manard - to the address of a friend of Mr Manard’s identified only as “O”. Whether “O” is one of the persons that Mr Manard suggests he stayed with is unclear, but nor need it be made clear.
What that suggests is some tacit support to the proposition that is advanced by Ms Jarrow in her evidence, and which I accept, that during the brief period of separation under one roof in 2009, which Ms Jarrow points to as being in the middle part of the year, June – July, that she applied for an increase in Centrelink entitlements. She was already entitled to and was receiving certain Centrelink payments, and would have been required, as a consequence of making that application, to also seek, as she concedes she did, a child support assessment.
I accept that it is less than desirable that a significant portion of earlier case law would be incorporated within an ex tempore judgment without it being read painstakingly, page by page, to the parties. However, both parties are competently represented and the authorities referred to therein are the very authorities and parts thereof to which I have been referred by counsel, including Taisha & Peng, to which I have already made reference, Moby & Schulter, Tree Js decision and erudite summary of relevant principles from earlier decided cases in McMaster & Wyhler, amongst others.
As those authorities make abundantly clear, I must be satisfied, by reference to the totality of the evidence, that a de facto relationship is established. It is not necessary to establish each and every one of the factors referred to as non-exhaustive illustrative examples of matters that might constitute proof of a de facto relationship, nor that any specific factor be found.
As the Federal Court and Full Court of the Federal Court have previously observed, albeit in a migration context, commencing with the lyrics of Frank Sinatra,[19] a marriage need not be loving, it need not involve a sexual relationship.
[19] Angkawijaya v Minister for Immigration [2015] FCCA 450 and Minister for Immigration and Border Protection v Angkawijaya[2016] FCAFC 5.
I must be satisfied that the parties are not legally married. They are not.
The parties must not be related by family. They are not.
I must undertake a factual determination whether, having regard to all of the circumstances, I am satisfied that the parties have had a relationship as a couple living together on a genuine domestic basis.
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; and
iii)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.
For all of those reasons, I am satisfied that Ms Jarrow has established the existence of a de facto relationship between she and Mr Manard from August 2003, or thereabouts, until 10 June 2017 and, accordingly, she has discharged her burden of proof.
That then leaves the remaining issues which can be dealt with in short measure, the evidence having already been addressed above.
Section 114 relief
Ms Jarrow seeks, by her Application in a Case filed 23 April 2020, Orders to restrain Mr Manard from selling, transferring, mortgaging or in any way encumbering or further encumbering the property at Suburb C, that he do all things to permit and allow Ms Jarrow to record a caveat against the property, (although other alternatives are available in the nature of a charge, writ or recording or notation), and that a section 106A Order be made authorising a registrar of the Court to sign such documents on Mr Manard’s behalf should he fail or decline to do so.
As I had commented during submissions by counsel for Ms Jarrow, at the very least, such relief is, on the evidence of Mr Manard alone, irresistible. It is clear, as I have enumerated at the commencement of these reasons as regarding why the matter is addressed by ex tempore judgment, that there have been at least four transactions of significance:
a)The disposal of a motorbike;
b)The disposal of a car;
c)The disposal of a truck; and,
d)A further redrawing upon the mortgage which is suggested to have been gambled away and, thus, by reference to Kowaliw & Kowaliw (1981) FLC 91-092, appropriately described as “wasted”.
They are significant transactions and Ms Jarrow has thus, to my satisfaction - noting the standard required per section 114, and Full Court discussion thereof,[21] demonstrated and discharged her burden of proof that:
a)There is a risk that transactions will occur. There must be a risk. They have occurred.
b)That absent the Court’s intervention that those transactions may occur so as to prejudice Ms Jarrow’s position, possibly even to render her position nugatory.
c)That such relief is appropriate.
[21] For example, Norton & Locke [2013] FamCAFC 202.
Whilst those reasons are brief, I am satisfied that the order that is sought is essentially and inherently interlocutory. Thus, I am satisfied that they are adequate and sufficient for present purposes.
Notice to child support and Centrelink
I have already addressed that above and for the reasons given, I propose to make that Order.
Costs
Both parties were made aware before the trial commenced, indeed, at each of the procedural mentions of the proceedings, that as this determination involves discharge by the Court of its role as a tribunal of fact in its purest sense, an Order for costs would be considered in favour of the party who ultimately was accepted as the witness of credit and truth. That is Ms Jarrow. Accordingly, I propose to deal with the issue of costs. It is not something that can or should be left for latter determination. The evidence is clear and fresh.
Costs are addressed by section 117 of the Family Law Act (supra).
Subsection (1) creates what the High Court has referred to (see Penfold[22]) as “the general rule” that each party should bear his or her own costs.
[22] Penfold & Penfold (1980) FLC 90-800.
Subsection (2) reserves a general discretion to award costs subject to satisfying the dual test of both justification and justice.[23] In determining whether that discretion is to be exercised, I must have regard to each of the factors in subsection (2A). They are a prescriptive but non-exhaustive list of considerations concluding with the catchall “…such other matters as the Court considers relevant”.
[23] See Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184 for discussion thereof.
Subsections (3), (4), (4A) and (5) are not relevant to this determination dealing, as they deal with applications by or involving Independent Children Lawyers or Child Welfare Agencies.
I propose to address each of the facts and circumstances in subsection (2A).
Financial circumstances of each of the parties
The Court is well placed to address this issue as each of the parties has filed a statement of financial circumstances.
Mr Manard’s statement of financial circumstances deposes to his being self-employed within the business that was established within, as I have now found, the relationship between these parties. That business is suggested to produce for Mr Manard a weekly salary or income of $1250.
Mr Manard suggests that he has expenses of $1648.07. It is not possible to discern exactly how that amount is made up. Part N is not completed and the amounts that are referred to within part G do not appear to equate to the amount that is alleged as total expenditure. It would appear to fall well short.
The concerning aspects with respect to Mr Manard’s financial circumstances, however, are the transactions to which I have already referred - the sale of the Motor Vehicle 1, a T Motorcycle, the write-off of the truck and the drawdown of funds. Those amounts, if one were to treat, for example, those items at their agreed insured value, (and Mr Manard gives evidence that an insurance claim was made with respect to the Motor Vehicle 1 - simply no other evidence as to whatever occurred), then those transactions would, of themselves, approach, if not equal or exceed, the property presently available in non-superannuation assets for consideration in the substantive proceedings.
What it does suggest, on the basis of question 59 alone, is that in somewhat recent times – Mr Manard does not give evidence as to what happened to the truck or when it was written off, merely that it was – Mr Manard has received $41,950. It is clear from the material previously filed, particularly in support of an application for extension of time to prepare for the earlier listed hearing, that Mr Manard meets his own legal fees. What costs have been met or the source from which they have been met is not known, nor need it be.
I am satisfied that Mr Manard’s financial position, by reference to income and assets, would be sufficient to meet an Order for costs if one were made. But that, of course, is not the test. The test is justification and justice.
Justification would arise in this case, as it is, as has been remarked, purely an exercise of fact finding. The Court must determine who is accepted as a witness of truth. It is Ms Jarrow and the witnesses called in her case. It is not Mr Manard. I have real doubts and concerns with respect to certain aspects of Mr Manard’s evidence, as discussed above, as being, at best, disingenuous if not entirely implausible. Whether those aspects of the evidence are invented, manufactured, exaggerated or otherwise, I need not determine - merely that it has not been accepted.
It would seem, based on the uncontroverted evidence now before me, that a concession might and should have been made by Mr Manard as to jurisdiction, rather than the strident resistance to the Court’s jurisdiction to this point.
In that regard, I am conscious of authorities such as Bryant & Hawkesbury Radio Communication Co-operative Society Limited [2014] NSCSC 848, stating that even a litigant who feels that they have a strong case, perhaps even an unassailable case, has an obligation to seek to resolve controversy in a manner that is consistent with what is now Practice Direction 1 of 2020, and efficient use of the Court’s resources having regard to the forensic proof available and what is at stake.
That is the very thing that I opened with - the Registrar’s comments on the first return date in the Family Court, prior to transfer to this Court, that the parties should consider “proportionality”. That would appear to have been completely disregarded.
It is not a case in which the financial circumstances of Mr Manard as regards income could be seen as being akin to, by reference to the corporate jurisdiction, oppression of a minority shareholder. But as I have laboured, all assets considered in this litigation are controlled or in the possession of Mr Manard. Thus, Ms Jarrow is, as it were, powerless. She prosecutes her case or she receives what she already has - nothing.
Ms Jarrow’s evidence is that upon receiving the assistance of a neighbour to remove herself and the two children from the Suburb C property late on the evening on 10 June 2017, that she left with her handbag and possibly a few clothes hastily put into, as Mr Manard describes it, an overnight bag. That would appear to be about all she has received, save a payment of $3,500 for a lounge suite that the parties had jointly purchased between them whilst living in that property together in a de facto relationship.
I am satisfied that the financial circumstances of Mr Manard in that context, he being the controller of all assets and having, by reference to the four transactions to which I have already referred, dealt with those assets somewhat contemptuously as regards Ms Jarrow’s claim, whilst resisting any jurisdiction, let alone any ability to make an Order for adjustment, would be a justification for costs. It would also make it just that an Order for costs be made.
It would be unjust to expect Ms Jarrow to bear the entirety of her costs which will, after all, significantly impact upon and deprive her of the fruits of her litigation, whatever they may ultimately be, in circumstances where she has been wholly successful - and wholly successful not in the exercise of discretion but a finding as to whether a de facto relationship has existed – as well as being wholly successful in establishing credit and discharging her burden of proof.
Whether a party is in receipt of legal aid
Neither is.
Conduct of the parties
That is touched upon in the above discussion. The fact that a document is produced midway through the second day of hearing, and shortly before the evidence closes, that has not previously been alluded to, let alone discovered, is high-handed at best. The explanation offered for the absence of material that would prove the very fact that would have won the day for Mr Manard, if it had corroborated his version of events, is problematic at the very least.
Again, as Frankfurter J described, litigation is the pursuit of practical ends, not a game of chess. These proceedings would appear to have advanced on the basis that once Ms Jarrow puts pen to paper and leads her evidence, then Mr Manard will give an answer to it. Whether that answer is acceptable or plausible would not appear to have been a consideration, at least as regards, for example, paragraphs 26 and 29 of the most recent affidavit. That conduct would again give some support to justification and would make it at least unjust for an order for costs to not be considered in some sum.
Whether the proceedings are necessitated by the failure of a party to comply with a previous order
Not relevant. What is relevant is that the proceedings are necessitated, as Ms Jarrow leads in her evidence, by the reality that her claim was about to be out of time. Accordingly, it was commenced.
It is quite clear from the evidence that there is no ability for these parties to negotiate a consensual resolution of their business. It assists somewhat as regards justification.
Whether a party has been wholly unsuccessful
Mr Manard has been. This is nothing but a factual determination. Did the parties live together in a de facto relationship? Ms Jarrow has been wholly successful and, as the Full Court has been clear[24] that is also a relevant consideration under subsection (g) if nothing else.
[24] Davida & Davida (Costs) [2011] FamCAFC 61.
And Mr Manard has been wholly unsuccessful. He has not proven any fact that he has alleged and he has not assisted the Court in being able to accept disproof of any allegation that Ms Jarrow has alleged. Indeed, Mr Manard’s evidence has, in some respects, assisted in corroborating and demonstrating the reliability of Ms Jarrow’s evidence.
Whether a party has made an offer in writing
Not relevant.
Such other matters as the Court considers relevant
To my mind, in matters such as this, as I have discussed in Benedict & Peake [2014] FCCA 642, to which I have been referred by counsel, as a purely fact finding exercise, a party runs the grave risk that costs will be ordered against them if they are unsuccessful. That is not because there is a presumed departure from the general rule but because justification is somewhat irresistible. If a party alleges facts that they cannot prove and/or which are disproven, then that would, of itself, justify costs, and I am satisfied that that is so.
Quantum of costs
In dealing with the quantum of costs, I must, as Division 21 of the Federal Circuit Court Rules require, have regard to schedule 1. Schedule 1 is an event-based, indicative scale of costs and nothing more. It is not prescriptive. It does not bind the Court, although, as the rules make clear, departure should occur with some caution and with reason and explanation.
In this case, I have not had the benefit of submissions as to whether costs should be ordered or the quantum of costs if ordered. That is not because the opportunity has not been afforded. I have made clear, particularly with respect to Mr Manard’s position, that such submissions were sought. Accordingly, I intend to quantify costs.
I do not propose to leave costs as agreed. That agreement is so improbable it will simply generate further costs to the litigation. The same would apply if costs were left to be assessed. That is such a cumbersome process that will take such time and, again, cost great money, that it is a burden on both parties. That is why the indicative scale exists so that parties might have some basis to understand what might be ordered if costs are, in fact, ordered.
By reference to the scale, I am conscious of the history of the proceedings. The matter was commenced in the Family Court. Accordingly, at that point, the Family Law Rules 2004 would have applied, although I am satisfied, perhaps as a departure from Division 1 if nothing else, that the entire proceeding should be addressed by reference to schedule 1. If nothing else, the matter was transferred on the first return date and the matter was then effectively commenced, certainly for case track purposes and statistical purposes, afresh before this Court.
On that basis, I am satisfied that the appropriate item with respect to the commencement of the proceedings is item 2, commencing proceedings involving an Interim or Interlocutory Application. The Application, when it was initially filed, did not include such a claim but by the time the matter came before the Federal Circuit Court, it most assuredly did (and as a consequence of Mr Manard having attended in person at the case assessment conference before the Registrar and indicating the controversy that he sought to generate, although having not yet filed a Response or material). Accordingly, it was necessary for Ms Jarrow to start again, as it were, to file an Amended Application to address that jurisdictional issue.
I am satisfied item 2 is appropriate, an amount of $2,802. The also includes an allowance for time at Court. There is the appearance before the Registrar for the case assessment conference, but as that occurred in the family Court, I do not propose to include it at this time. I will deal with the costs which have occurred before this Court.
The costs before this court have included the first return date of the proceedings when the Bench sheet makes clear it was a half day attendance, thus, item 13, $1,120.
The matter was then moved directly to trial with directions made and the matter fixed for 28 January 2020. The matter, regrettably, was not reached on that occasion. The matter was listed as a one day hearing. The matter was, however, prepared and counsel retained. Accordingly, I am satisfied preparation for the not reached hearing should be allowed per item 6, $4,775, a one day hearing, and that there should be an allowance with respect to the hearing itself. Counsel was briefed and retained, the matter was stood for the day and, sadly, adjourned later to a date the same week with an expectation that it might be heard.
Other business then commenced and the parties were advised the following day that the matter would not be heard on 30 January (the date to which it had been adjourned), thus counsel were released and the legal representatives only appeared on that date. For the hearing on 28 January, I propose to allow item 13, full day, $2,241, plus advocacy allowance, item 12, $1,120.50. For 30 January, it is a short appearance, $305. Similarly, for the mention created by the Court but which the parties needed to attend, 23 March 2020, and the callover, 8 May 2020 - $305.
Each of those three appearances, 30 January, 23 March and 8 May are, thus, $305 or $915 in total.
When the matter was listed, it was then fixed as a two-day fixture, the controversy being broadened and distilled. Accordingly, further preparation was required. I am satisfied that a further allowance should be made, item 8, for an additional day of preparation, $1,268.
There is then this hearing itself. I am satisfied both days should be allowed at the full day rate, $2,241, item 12, plus advocacy loading, $1,120.50 per day.
Those costs produce for the hearing itself, $4,482 and $2,241, respectively.
There is then the Interim and Interlocutory Application that Ms Jarrow has been put to the expense of, that which has been dealt with today at hearing. I propose to allow the relevant item for the Application in a Case - $1.867. I do not propose to allow any further amount for hearing as it is dealt with as part of the hearing I have already addressed.
That would then produce total costs by reference to the scale of $22,831.50. But there are then disbursements allowable under the scale and which I am satisfied have been incurred.
There is the filing fee on commencement of the proceedings, $470, the setting down fee, $640 and the hearing fee for the second day, another $640. Those amounts, when added, then produce a total of $24,581.50.
There are then other expenses, photocopying and the like, without even venturing into the controversy as between whether item 12 is intended to address all expenses for legal representation, including both counsel and instructing solicitor, (who has diligently attended throughout with Ms Jarrow) or not.
I am satisfied the amount should simply be rounded up to accommodate photocopying and the like. I do not suggest counsel falls within the same category as photocopying but some further adjustment can and should be made.
I am satisfied that adjustment should, thus, round the amount up by $418.50 to a round figure of $25,000. That amount will need to be paid. It will need to be secured and, on that basis, I propose to make further and ancillary Orders to achieve that very end.
For those reasons, Orders are made as follows.
I certify that the preceding two hundred and eight-four (284) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 21 September 2020.
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