Jones and Kitt
[2014] FCCA 1527
•17 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JONES & KITT | [2014] FCCA 1527 |
| Catchwords: FAMILY LAW – Property – de facto property application – whether a de facto relationship existed between the parties – whether there is a de facto financial cause – whether application incompetent – whether the Court has jurisdiction to make the orders sought – where the applicant claims to have reconsidered whether the Court has jurisdiction to entertain his application – where applicant now claims that the parties were not in a de facto relationship. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90RD,90SB, 90SE, 90SG, 90SK, 90SL, 90SM, 114 |
| Cases cited: Dahl & Hamblin [2011] FamCAFC 202; (2011) 46 Fam LR 229; FLC 93-480 Fenton & Marvel [2013] FamCAFC 132 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 42; FLC 93-286 Jonah & White [2011] FamCA 221; (2011) 45 Fam LR 460 Jonah & White [2012] FamCAFC 200; (2012) FLC 93-522; (2013) 48 Fam LR 563 Lee & Hutton [2013] FamCA 745 Locke & Norton [2013] FCCA 1154 McMaster & Wyhler [2013] FamCA 989 Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447 Norton & Locke [2013] FamCAFC 202 Todd & Todd (No.2) (1976) FLC 90-008; 9 ALR 410 Vaughan & Bele [2010] FamCA 436 |
| Applicant: | MR JONES |
| Respondent: | MS KITT |
| File Number: | WOC 1060 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 24 April 2014 |
| Date of Last Submission: | 24 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Harpley |
| Solicitors for the Applicant: | Access Law Group |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Jordan Djundja Lawyers |
ORDERS
It is declared that the Court has jurisdiction to hear the Application for property orders arising out of a de facto relationship filed on 17 December 2013.
Any party seeking an Order for costs must file and serve a written submission setting out the amount of costs sought and the basis upon which those costs have been calculated within one (1) month of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Jones & Kitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1060 of 2013
| MR JONES |
Applicant
And
| MS KITT |
Respondent
REASONS FOR JUDGMENT
Application
This is, to say the least, a most unusual Application. It is an application by the Applicant for a finding that his substantive Application to the Court is incompetent, in that the Court does not have the jurisdiction to make the Orders that he sought in that Application. Whilst he claimed in his Initiating Application that he and the Respondent were parties to a de facto relationship that has broken down, he now claims that the parties were not in a de facto relationship at all, or, at least, not in such a relationship that would give the Court the jurisdiction to make the orders he originally sought.
The Respondent opposes that application, claiming that the Court does indeed have the jurisdiction to make orders, as there is evidence of a de facto relationship.
It can readily be seen that the Applicant finds himself in a difficult position, as a finding that the Court does not have jurisdiction would be likely to lead to an order for costs against him, amongst other things. If, on the other hand, his application to discredit his original Application does not succeed, there would again be a possibility of a costs order against him.
Background
The Applicant filed an Initiating Application on 17 December 2013, seeking both final and interim orders.
The final orders sought are:
1. That the pool of assets available for distribution between the applicant and the respondent be identified and quantified.
2. That the asset pool be distributed between the parties on the basis that the applicant receives 100% thereof and the respondent receives nil% thereof.
3. That the respondent pay the costs of and incidental to this application.
The interim orders sought are:
1. That the applicant be provided with exclusive occupation and possession of the property with folio identifier (omitted) known as Property P in the State of New South Wales.
2. Pursuant to Section 114 of the Family Law Act 1975, the respondent be restrained from living in the property with folio identifier (omitted) known as Property P in the State of New South Wales.
3. That the respondent be restrained from entering into any area within two (2) kilometres of which that residence is situated.
4. That the respondent pay the costs of and incidental to this application.
The Application was supported by a Financial Statement and an affidavit affirmed by the Applicant on 17 December 2013. The Application was returnable on 1 April 2014.
On 14 January 2014 the Respondent filed a Notice of Address for Service.
The Applicant filed a further affidavit on 27 February 2014, sworn the day before.
On 28 February 2014 the Applicant filed an affidavit of one Mr J, affirmed that same day.
On 1 April 2014, the return date of the Application, the Respondent filed a Response, supported by a Financial Statement and an affidavit of the Respondent sworn on 28 March 2014.
In her Response, the Respondent sought orders providing that:
a)the parties should do all things necessary to sell the property at Property P and divide the net proceeds equally between them; and
b)the parties should do all things necessary to sell a property at Property M and divide the net proceeds equally between them.
When the Application came before the Court on the return date, his Honour Judge Altobelli was informed that the Applicant’s position had changed. His Honour listed the matter to 24 April 2014 for interim hearing and directed the parties to file and serve short written submissions on the issue of the Court’s jurisdiction by 18 April 2014.
His Honour noted:
a)The Applicant is reconsidering whether the Court has jurisdiction, whereas the Respondent asserts that the Court does have jurisdiction.
b)The purpose of the interim hearing is to establish whether or not this Court has jurisdiction.
The Applicant filed a document headed “Case Outline Document” on 17 April 2014. The Respondent filed a document entitled “Submissions on behalf of Respondent re Jurisdiction” on 22 April 2014.
Submissions
The Applicant’s submission states that the Applicant “is reconsidering his application and seeks an order that the jurisdictional facts of the Act are not established and that a de facto relationship did not exist.”[1]
[1] Case Outline Document filed on behalf of the applicant paragraph 4
The submission refers the Court to the definition of a de facto relationship in section 4AA(1) of the Family Law Act 1975 (Cth) which prescribes that:
4AA(1) a person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Subsection (2) provides:
Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependent or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The Applicant contends that he and the Respondent were not a couple living together on a genuine domestic basis for at least two years, as required by the Act.
It is submitted that whether a de facto relationship exists or not is a determination of fact (Jonah & White[2] per Murphy J at [39]). It was held by the Full Court of the Family Court, on appeal, that:
It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.[3]
[2] [2011] FamCA 221; (2011) 45 Fam LR 460
[3] Jonah & White [2012] FamCAFC 200; (2012) FLC 93-522; (2013) 48 Fam LR 562 at [32](568) per May, Strickland and Ainslie-Wallace JJ
The Applicant relies on the recent decision of the Full Court of the Family Court in Norton & Locke[4] where it was held that there is no de facto financial cause until a de facto relationship is established and the additional ss.90SK and 90SB conditions are met.
[4] [2013] FamCAFC 202
Section 90SL allows the Court to make a declaration about the title or rights, if any, that a party has in respect of property after the breakdown of a de facto relationship but the geographical requirements in section 90SK must be satisfied and the Court must be satisfied of at least one of the matters in section 90SB.
Section 90SB provides:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b), or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
The Applicant contends that none of the requirements of s.90SB are satisfied. First, he contends that the period, or the total periods, of the relationship did not amount to two years. He claims that he first met the Respondent in about June 2010 but that they did not commence cohabitation until around October 2011, at which time the Respondent moved into the property at Property P, although his original affidavit says something different.
The Applicant also relied on the decisions of McMaster & Wyhler[5]; Moby & Schulter[6]; and Vaughan & Bele[7].
[5] [2013] FamCA 989
[6] [2010] FamCA 748; (2010) FLC 93-447
[7] [2010] FamCA 436
The Applicant claims that the date of separation was 3 August 2013, when he moved out of the premises at Property P. The respondent remained there for another six months.
Thus, the Applicant asserts that the total period of the de facto relationship was around 22 months and not the necessary 2 years.
There was no child of the relationship.
The Applicant submits that the Respondent did not make substantial contributions of the kind mentioned in paragraphs (a), (b) or (c) of subsection 90SM(4).
The Applicant denies that the Respondent made any non-financial contributions over the period of the relationship.
Thus, it is the Applicant’s case that he and the Respondent were not in a de facto relationship and were not living together as a couple on a domestic basis for the minimum period of 2 years. Further, the Applicant claims that the Respondent did not make any substantial financial contributions or non-financial contributions.
The solicitor for the Respondent, Mr Jordan, submitted that the evidence shows that the parties’ relationship subsisted for a period of two years or more, making the point that the relationship period is not necessarily identical with the period of cohabitation, as parties often physically separate but maintain the relationship consortium (see Todd & Todd (No.2[8]). Further, the requirement for the two year period can be established by aggregating the periods of the de facto relationship (Dahl & Hamblin[9]; Fenton & Marvel[10]).
[8] (1976) FLC 90-008; 9 ALR 410
[9] [2011] FamCAFC 202; (2011) 46 Fam LR 229; FLC 93-480
[10] [2013] FamCAFC 132
Mr Jordan also referred to the decision of Watts J in Lee & Hutton[11].
[11] [2013] FamCA 745
It was submitted on behalf of the Respondent that:
a)There should be a finding that the Court has jurisdiction;
b)There should be an order for costs against the Applicant on an indemnity basis; and
c)The court should make directions for the future progress of the matter, noting that the Respondent would seek to amend her claim for interim relief to include spousal maintenance.
Consideration
It is clear that a finding of the existence and duration of a de facto relationship is a matter of fact, which must be established by evidence.
It is well-known that in an interim hearing, which is an abridged procedure where the Court is unable to test the parties’ evidence by way of cross-examination, the Court will not be able to make conclusive findings of act where facts are disputed (see Goode & Goode[12] at [68]). However, in this case, Mr Jordan for the Respondent told the Court at the hearing that the Respondent did not take issue with the Applicant’s evidence. Thus, the factual issues as set out in the Applicant’s affidavits are conceded.
[12] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The Applicant has filed two affidavits:
a)The first was affirmed and filed on 17 December 2013; and
b)The second was sworn on 26 February 2014 and filed on 27 February 2014.
In his affidavit of 17 December 2013, the Applicant deposed that the Respondent moved into his property at Property P “In around January 2011”.[13] He also deposed that the parties separated “In August 2013, when I moved out of my property. The defacto relationship was relatively short, some 2 years and 8 months”.[14]
[13] Affidavit of Mr Jones 17.12.2013 at paragraph [4]
[14] Ibid at [8]
The Applicant went on to describe how “at the commencement of cohabitation”[15] the Respondent had some furniture. In January 2011 he moved most of the Respondent’s possessions into a storage unit but later built a shed at the rear of his property and moved the Respondent’s possessions into that shed to save her money.[16]
[15] Ibid at [10]
[16] Ibid at [13]
The Applicant made “considerable renovations” to his property to make enough space for the Respondent’s two children[17].
[17] Ibid at [12]
The Applicant deposed that during the relationship “I financially supported Ms Kitt[18] and her children”.[19] He paid for all the mortgage and household bills, the children’s schools fees and their uniforms and school expenses.
[18] The Respondent
[19] Ibid at [16]
When the Respondent obtained full time employment, which involved long hours, the Applicant cooked and cleaned the house, drove the Respondent’s daughter to sporting events and drove the Respondent’s son to the shops.[20]
[20] Ibid at [22]
When the Applicant’s mother became very ill in Queensland, the Applicant and the Respondent flew to Queensland on a number of occasions to assist his mother. The Applicant travelled on about ten occasions and the Respondent accompanied him for half of those. The Applicant deposed that:
I paid for all of these flights, accommodation and car hire on behalf of both of us.[21]
[21] Affidavit of Mr Jones 17.12.2013 at [24]
At paragraphs [31] to [35] of his affidavit, the Applicant sets out how the Respondent deposited a cheque into one of his bank accounts, against his wishes, and subsequently withdrew amounts of $800.00 over a period of days. He went on to depose:
Up until the time of separation, I provided Ms Kitt with a credit card which she utilised to pay for all household expenses, including groceries.[22]
[22] Ibid at [37]
The Applicant refers to the relationship as “the defacto relationship” at paragraphs [45] and [54] of his affidavit.
The Applicant annexes to his affidavit at Annexures “E” and “F” a letter dated 17 October 2013 from the Respondent’s solicitors and his solicitors’ reply dated 29 November 2013.
The Respondent’s solicitors’ letter states:
We are instructed that the relationship between our clients became intimate in December 2010 when our client commenced residing at your client’s premises 3-4 nights per week.
She moved in together with the children at the end of 2011 and the cohabitation continued right up until the date that your client vacated the property.
The letter in reply by the Applicant’s solicitors is curious, to say the least. It says, inter alia:
You have advised the parties did not commence living together until the end of 2011, when your client moved into our client’s property at Property P.
We are instructed that separation occurred on or around August 2013, and so the defacto relationship was relatively brief in duration, some 1 year and 8 months. On this basis, the defacto relationship does not even satisfy the requisite minimum 2 years period for a defacto relationship required by Section 90SB(a) of the Family Law Act 1975 (Cth).
This letter was written by the Applicant’s solicitors on 29 November 2013, yet on 17 December 2013, less than three weeks later, the Applicant commenced proceedings in this Court seeking property orders and interlocutory relief arising out of a de facto relationship.
The Applicant’s affidavit of 17 December 2013 contradicts the solicitors’ letter of 29 November, in that it asserts that there was a de facto relationship that commenced in around January 2011 and lasted for some 2 years and 8 months.
Obviously, they cannot both be right. The Applicant’s later affidavit of 26 February 2014 does not take the matter any further, although it refers to the Applicant’s earlier affidavit in its first paragraph and concludes with this paragraph:
37.I am writing this Affidavit in support of my Order for exclusive possession of the property and that Ms Kitt is restrained from approaching the property at Property P, on any further occasions.[23]
[23] Affidavit of Mr Jones 26.2.2014 at [37]
However, by 1 April 2014, the Applicant’s solicitor told the Court that the Applicant was reconsidering whether or not the Court had jurisdiction, and, the Applicant’s submissions dated 17 April 2014 asserted that the total period of the de facto relationship was not two years “and the gateway requirements are not met.”
What, then, should be made of the Applicant’s two changes of mind, first in December 2013 and then between February and April 2014?
It must have been the case that the Applicant’s instructions to his solicitor changed at some point between 29 November and 17 December 2013. If not, in the light of the strenuous denial of a de facto relationship lasting for two years in the Applicant’s solicitors’ letter of 29 November, it would be the case that the Applicant affirmed his affidavit on 17 December, knowing its contents to be false.
Again, as the same solicitor was acting for the Applicant on both 29 November and 17 December, she, too, must have known that the contents of the affidavit were not true. This would lead to the conclusion that the affidavit was contrived to purport to show a de facto relationship in order to show that the Court had jurisdiction to make the interlocutory orders sought, in particular the injunctive order under s.114 of the Family Law Act 1975. Clearly, if this were the case, the Application and its supporting affidavit would constitute an abuse of the Court’s process.
The Court would require some very convincing evidence to make the above findings, which would involve the Applicant knowingly affirming a false affidavit and a solicitor knowingly being involved in the deception, which would, if true, constitute professional misconduct.
The alternative to this scenario is that the solicitors’ original letter of 29 November was incorrect and the Applicant’s affidavit of 17 December is correct. The Respondent’s solicitor told the Court that the Respondent did not take issue with the Applicant’s evidence.
It must follow that what is stated in the Applicant’s affidavit of 17 December 2013 is factually correct and the discrepancy between the contents of the affidavit and the assertions in the Applicant’s solicitor’s letter of 29 November can be explained by a change in the Applicant’s instructions to his solicitor.
The Applicant’s later affidavit does not contain any statement to the effect that his earlier affidavit was wrong, so he is bound by it, in my view.
Conclusions
The Applicant’s affidavit of 17 December 2013 allows the Court to make the following findings:
a)That the total period of the relationship between the parties was from January 2011 to August 2013, a period in excess of two years, namely two years and eight months;
b)That the parties resided in the one property at Property P;
c)That the Respondent was financially dependent on the Applicant, who gave her access to a credit card and paid the majority of bills;
d)The parties demonstrated a commitment to a shared life, in that the Applicant cooked and cleaned whilst the Respondent was at work and the parties travelled together to Queensland to see the Applicant’s sick mother;
e)The Applicant drove the Respondent’s children to sporting activities and to the shops and paid for expenses involving the children, including the cost of surgery for the Respondent’s son; and
f)The parties spent time with each other in public, including travelling together to see the Applicant’s mother.
I am satisfied that the evidence shows that the parties were in a de facto relationship for a period in excess of two years. I am satisfied that the Court has jurisdiction to make the Orders sought.
Accordingly, the Application must proceed.
The Application was commenced in Wollongong and the hearing of this Application took place in Wollongong. Both parties give their residential address as Property P. The Applicant’s solicitor is located in Wollongong and the Respondent’s solicitor is located in (omitted), a suburb of Sydney. Noting the availability of hearing dates in the Wollongong and Sydney Registries I am satisfied that this matter should remain in the Sydney Registry.
The Respondent has indicated in her submission that an order for costs will be sought, on an indemnity basis. If either party seeks an order for costs, they should file and serve a written submission within one month, particularising the amount sought and the basis upon which the costs have been calculated.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 17 July 2014
0
10
2