L and P
[2008] FCWA 43
•29 APRIL 2008
[2008] FCWA 43
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA ACT : FAMILY COURT ACT 1997 LOCATION : PERTH CITATION : L and P [2008] FCWA 43 CORAM : CROOKS J HEARD : 19, 20 & 21 NOVEMBER 2007 & WRITTEN SUBMISSIONS
RECEIVED 5 DECEMBER 2007DELIVERED : 29 APRIL 2008 FILE NO/S : PT 547 of 2006 BETWEEN : L Applicant AND P
RespondentCatchwords: De facto property claim - court's jurisdiction to determine claim
Legislation:
Family Court Act 1997, Part 5A, s 205Z
Interpretation Act 1984, s 13AFamily Legislation Amendment Act 2006 (WA), s 68, s 70, s 72, s 77, s 237, Part 2 Division 9
Category: Not Reportable
[2008] FCWA 43
Representation:
Counsel:
Applicant : Mr L Durand Respondent : Mr P Dowding SC Solicitors:
Applicant : Durand Gangemi Respondent : Butcher Paull & Calder Case(s) referred to in judgment(s):
FO v HAF [2007] 2 Qd R 138
George v Hibberson (1987) DFC 95-054
Jones v Dunkel (1959) 101 CLR 298
LeMay and Clark [2005] FCWA 23
Pavey and Pavey (1976) FLC 90-051
Thomson v Badger (1989) 13 Fam LR 559
Todd and Todd (No 2) (1976) FLC 90-008[2008] FCWA 43
1 On 2 February 2006, [Ms L] commenced proceedings under the Family Court Act 1997 against [Mr P] seeking orders for property settlement. [Ms L] asserts that she lived in a de facto relationship with [Mr P] for about six years.
2 [Mr P] disputes the parties have lived in a de facto relationship as alleged by
[Ms L] and asserts that the Family Court of Western Australia does not have jurisdiction to make orders for property settlement against him. He seeks to have [Ms L]’s applications dismissed.
Background
3 [Ms L] is 42 years old and was born [overseas]. She is employed as a Manager.
[Mr P] is 43 years old and was born in Australia. He is [a professional] operating his own business in Western Australia. Each of the parties has a child from a previous relationship. They have no children together.
4 The parties met at [Mr P]’s business in about July 1998 and thereafter socialised
together before [Ms L] returned [overseas]. [Mr P] followed [Ms L] [overseas] in September 1998 where they holidayed for about two weeks and commenced a sexual relationship. After this holiday, [Mr P] returned to Perth.
5 The romance between the parties continued and on 5 December 1998 [Ms L] returned to Perth and moved into the home [Mr P] was renting [in the suburbs].
[Ms L]’s position
6 She says that the de facto relationship between the parties existed during the following periods:
• 5 December 1998 to 4 December 2000. • 5 October 2001 to 7 February 2005. 7 [Ms L] submits that the relationship did not end on 5 December 2000 when she
moved from [Mr P]’s house. She says this period of separation should be treated as a “break in the continuity of the relationship, but their original relationship was resumed when they got back together on 5 October 2001”.
8 [Ms L]’s case is therefore that the parties have been in a de facto relationship for
at least two years and the Court has jurisdiction to determine her claim for property
settlement.
[Mr P]’s position
9 [Mr P] asserts that the parties lived together during the following periods:
• 5 December 1998 to June 1999. • July 1999 to September 1999. • December 1999 to May 2000.
[2008] FCWA 43
• August 2000 to December 2000. • 5 February 2003 to 29 January 2005. 10 [Mr P] submits that:
(a) the parties were in an on-again, off-again relationship throughout the duration of their association; (b) from December 2000 to February 2003 the parties did not live in the same residence and had no mutual commitment to a shared life; (c) the Court should only consider the period following February 2003 as the relevant period in assessing whether the parties were in a marriage-like relationship for the required period of time; (d) notwithstanding that the parties resumed living in the same residence on about 5 February 2003, they did not live in a marriage-like relationship from that time; (e) he only formed the intention of a permanent commitment when he proposed marriage to [Ms L] in November 2003; (f) as a result of an argument with [Ms L] on either 29 January 2005 or 30 January 2005, [Mr P] decided to end their relationship which he communicated to [Ms L] and asked her to leave the home. The de facto relationship ended at this time. The law 11 Part 5A of the Family Court Act 1997 confers jurisdiction on the Family Court of Western Australia to make orders in relation to the property of parties who have lived in a de facto relationship.
12 Section 205Z of the Act provides as follows:-
“205Z(1) [Requirements to be satisfied]
A court may make an order in relation to a de facto relationship only if satisfied −
(a)
there has been a de facto relationship between the partners for at least two years;
(b)
there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c)
the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c)
[2008] FCWA 43
and failure to make the order would result in serious injustice to the
partner.
205Z(2) [Considerations to determine length of relationship]
In deciding whether there has been a de facto relationship between the partners for at least two years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
205Z(3) [Matters for consideration not limited]
Subsection (2) does not limit the matters the court may consider.”
13 Section 13A of the Interpretation Act 1984 provides inter alia:
“(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship. (2) The following factors are indicators of whether or not a de facto
relationship exists between 2 persons, but are not essential -
(a) the length of the relationship between them; (b) whether the 2 persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually); (g) the degree of mutual commitment by them to a shared life; (h) whether they care for and support children; (i) the reputation, and public aspects, of the relationship between them.”
14 Those matters set out in s 13A of the Interpretation Act 1984 are not essential but rather indicators or relevant considerations as to whether or not a de facto relationship exists between two persons.
15 In relation to the commencement of a de facto relationship Keane JA in
FO v HAF [2007] 2 Qd R 138 at paragraph [21] said:
[2008] FCWA 43
“The commencement of the legal relationship of marriage is readily established by the solemnities and formalities by which the parties declare that relationship to each other and to the world. By contrast, questions as to whether and when a relationship has become a de facto relationship may be attended with considerable uncertainty.”
The evidence and materials relied upon at trial
16 [Ms L] was represented at trial by Mr Durand of counsel. [Ms L] gave evidence
in support of her application and was cross-examined. She also relied upon the
following documents:
(a) her trial affidavit sworn 28 February 2007; and (b) affidavit of [Mr J] sworn 16 March 2007.
17 [Mr P] was represented at trial by Mr Dowding of senior counsel. [Mr P] gave evidence in support of his application and was cross-examined.
18 [Mr P] also relies upon the following:
(a) his trial affidavit sworn 6 March 2007; (b) affidavit of [Ms S] sworn 7 March 2007; (c) affidavit of [Ms R] sworn 14 September 2007; (d) affidavit of [Ms B] sworn 5 November 2007; (e) affidavit of [Ms A] sworn 21 May 2007; (f) affidavit of [Ms T] sworn 6 March 2007; (g) affidavit of [Mr G] sworn 21 May 2007; and (h) affidavit of [Ms E] sworn 22 October 2007.
Conflicting evidence
19 In this case there is conflicting evidence between [Ms L] and [Mr P] on many
issues. I have concerns about the accuracy of both parties’ evidence on particular matters. This is not a case where I am able to say that I accept the whole of the evidence of one party where it conflicts with the evidence of the other. I propose to make findings assisted by such objective and independent evidence as there is when I consider those matters relevant to the existence of a de facto relationship.
Manner of dealing with [Ms L]’s application
20 I intend to set out my conclusions by reference to the two periods during which
[Ms L] says the parties were living in a de facto relationship. It is for her to satisfy the
[2008] FCWA 43
Court on the balance of probabilities that she lived with [Mr P] in a de facto relationship for at least two years.
5 December 1998 to 4 December 2000
[Ms L]’s position
21 [Ms L] claims that her de facto relationship with [Mr P] commenced on
5 December 1998 when she returned from [overseas] at [Mr P]’s invitation and moved into the [suburban] property which [Mr P] was renting. There is no dispute that after [Ms L] moved in with [Mr P] they slept in the same bed and had a sexual relationship together.
22 [Ms L] further claims that from 5 December 1998:
• The [suburban] property became the common address for both of them, other than for business related mail which was sent to [Mr P]’s business premises. • She carried out the majority of the home duties for the parties’ benefit and would assist [Mr P] in caring for his son [Kane] who would spend weekends and holiday time periods with his father. This would include shopping, cooking, doing laundry for the parties and for [Kane] when he stayed with them. She would assist [Mr P] by working in his [business] for which she was not fully remunerated. • The parties visited [Mr P]’s parents in [the South-west] as a couple and were accepted as a couple by family and friends. • [Mr P] told her that he loved her and wanted to live with [Ms L].
[Ms L]’s position
23 In response to [Ms L]’s claims, [Mr P] asserts:
• [Ms L] did some housework which he describes as “minor”. After [Ms L] moved in with him, she did not work or attempt to find work. [Ms L] did not contribute to the rent on the [suburban] property, nor did the parties have any joint finances. Whilst [Ms L] cooked the “odd” meal, the parties usually bought meals on three to four nights per week and each of the parties supported themselves. [Mr P] would pay for their entertainment and would contribute to the costs of any groceries that were purchased for the home. • After [Ms L] commenced to live with him, there were no discussions about her wanting to stay in a permanent relationship with [Mr P] and the parties had no mutual commitment to a shared life together. [Ms L]’s intentions were to return [overseas] after the property settlement proceedings with her then husband in the Family Court at Perth were finalised. • In summary the parties did not live together in a “marriage-like relationship”.
[2008] FCWA 43
Conclusions as to the nature of the parties’ relationship between 5 December 1998 and
4 December 200024 Whilst I am satisfied that a number of the indicators set out in s 13A of the
Interpretation Act 1984 existed in the relationship between [Mr P] and [Ms L] from the time she moved in with him on 5 December 1998, I am not satisfied that the parties were from this date living in a de facto relationship. I accept that when [Ms L] first moved in with [Mr P], she was not committed to remaining in Perth with him. [Ms L] extended her return air ticket [overseas] and I accept that when she moved in with [Mr P] on 5 December 1998, more likely than not, her intention was to return [overseas] when she completed the property proceedings matters with her then husband in Perth. In such circumstances, I am unable to find any degree of mutual commitment to a shared life.
25 I find support for this conclusion from the Financial Statement sworn by [Ms L]
on 19 March 1999 in connection with her property settlement case in the Family Court
(Exhibit 14).26 That document records [Ms L]’s address as being [an overseas address]
Section D of the statement requires parties to disclose any other members of her household and their contribution to the household. [Ms L]’s response to this section was to put “Nil”. That document also confirms that [Ms L] was living from investment income together with a small pension benefit and was paying rent/board for her accommodation of $100 per week. There is no reference at all to [Mr P] in that document.
27 [Mr P] says that [Ms L] returned [overseas] in about mid 1999 where [Ms L]
remained for about four weeks before returning to Perth to live with [Mr P]. [Ms L] denies having returned [overseas] at this time and says that she and [Mr P] travelled [overseas] on holidays on 21 December 1999. I accept her evidence. The date of [MsL]’s departure from Australia is confirmed by the immigration document produced (Exhibit 1), [Ms L] also produced a photograph of her and [Mr P] socialising with another couple [overseas]. The photograph is marked as having been taken on 31 December 1999 (Exhibit 2).
28 [Mr P] alleges the parties separated in about September 1999 when, following an
argument, [Ms L] left the [suburban] property and moved in with her brother, [Mr L]. He says the parties then lived apart for about three months before [Ms L] returned to live with him. [Ms L] denies that any separation occurred. It is very difficult to determine where the truth lies on this issue. No evidence was called from [Ms L]’s brother nor was any explanation given as to why the brother was not called. [Ms L] admitted that her brother lives in [a suburb] near to her, that he was self-employed and present in Western Australia at the time of the trial. It would have been natural for [Ms L] to call her brother in these circumstances and I conclude that the brother’s evidence would not have helped [Ms L]’s case (Jones v Dunkel (1959) 101 CLR 298). I cannot be satisfied that the parties were not separated for a number of months in 1999.
[2008] FCWA 43
29 The physical separation of parties will not of itself sever a de facto relationship.
Although dealing with different legislation, Cohen J in George v Hibberson (1987)
DFC 95-054 said at 75,609:“The use of the words “living or having lived together as husband and wife on a bona fide domestic basis” suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention …
It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that the intention existed. Once that intention or indication is found to exist then, as occurred in McRae v. McRae [(1997) 68 SR (NSW) 361], the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together.”
30 Whilst [Ms L]’s departure from the [suburban] property would not without
more, bring an end to the relationship, in my opinion a de facto relationship had not
commenced between [Mr P] and [Ms L] by September 1999.31 I am satisfied however, that by December 1999 [Ms L] and [Mr P] had resumed
living together at the [suburban] property. Exhibit “15” is a Notice of Address for Service signed by [Ms L] and dated 15 December 1999. This Notice was prepared for the proceedings between [Ms L] and her then husband and records [Ms L]’s address as the [suburban] property. The document also appears to have been faxed to the Family Court from the husband’s business premises on 15 December 1999.
32 On 12 April 2000 [Ms L] executed an Application for Remission of Fees
(Exhibit 20) and the Application for Divorce (Exhibit 16). [Ms L] gives her address as the [suburban] property in each of these applications and in the Remission of Fees document [Ms L] refers to [Mr P] as being a member of her household. This document is also relevant in that [Ms L] makes reference to her being supported by her partner and having placed her motor vehicle which had been returned [overseas] from Perth in 1998 on the market for sale. In her divorce application, [Ms L] states her intention is to live indefinitely in Australia.
33 In my opinion, by December 1999 the relationship between the parties had become a de facto relationship for these reasons:
(a)
[Ms L] and [Mr P] were living together at [the suburban address] where they were sharing a bedroom and having a sexual relationship;
[2008] FCWA 43
(b) by December 1999 the parties had known one another for more than 12 months and I accept that during most of this period they had an active sexual relationship with one another; (c) I am satisfied that by December 1999, it was no longer [Ms L]’s intention to return to reside [overseas]. [Ms L]’s evidence, which I accept, is that by December 1999 she had the right to live permanently in Western Australia; (d) I accept the parties were sharing the home duties at the [suburban] property for their joint benefit; (e) [Ms L] was assisting [Mr P] in his [business]. I accept that [Ms L] was not fully remunerated for all of the work she did in the business which included helping with the refurbishment of [Mr P]’s business premises in late 1999. [Ms L]’s support for [Mr P] included doing deliveries for the [business] after [Mr P] lost his licence in late 1999 and driving him around during his suspension period. From the time [Mr P] lost his licence, if not before, he included [Ms L] as a nominated driver on his motor vehicle insurance; (f) I accept that [Ms L] would assist in looking after [Ms L]’s son [Kane], who spent time with his father at the [suburban] property on a regular basis; (g) I am satisfied that the parties went out together regularly as a couple, would mix with family and friends and holidayed together which included their trip [overseas] in December 1999; (h) there is no suggestion that either party had other sexual partners during this period; (i) the degree of financial dependence or inter-dependence between the parties and any arrangements for financial support between them is also a relevant consideration. The parties each maintained their own bank accounts and kept finances separate. This is, however, apart from those periods where [Mr P] made distributions of income to [Ms L] from his Family Trust (the K Family Trust) which I will come to later. [Mr P] paid the rent on the [suburban] property and contributed to [Ms L]’s support. His support included meeting the usual outgoings associated with the [suburban] property. I accept that [Ms L] contributed to the food expenses for the household. She purchased household supplies for both herself and [Mr P] but was not solely responsible for these purchases. [Mr P] also contributed; and
(j)
[Mr P] denies there was any mutual commitment by the parties to a shared life at this point in the parties’ relationship. He says that he only formed an intention of a permanent commitment when he
[2008] FCWA 43
proposed marriage to the applicant in November 2003. [Ms L], however, says the parties loved one another and she regarded herself and [Mr P] as building a future together.
Whilst the parties’ individual views of the nature of their relationship may have been very different, it is necessary also to consider the objective facts as to what occurred between them during their relationship. In this case, other indicators I have found to exist go to support a conclusion that the parties did have a commitment to a shared life after December 1999.
Alleged separation in May 2000 and purchase of [a suburban residence]
34 [Mr P] says that following an argument in about mid May 2000, [Ms L] again left the
[suburban] property and moved in with her brother. It was following this separation [Mr P] says that he made an offer to purchase the [suburban residence] and that [Ms L] was not involved in the purchase. The Contract of Sale relating to the purchase is dated 25 May 2000.
35 As to the circumstances relating to the purchase, [Ms L] says that she was aware
of this property having lived in the same street some years earlier when she was married to her former husband. [Ms L] says that she saw the [residential property] being advertised for sale and suggested to [Mr P] that they look over the property with a view to purchasing it. According to [Ms L], she and [Mr P] looked over the [residential property], they both liaised with the owner and were “excited” over the prospect of purchasing the property. In relation to the events surrounding the purchase of the [residential property], I prefer [Ms L]’s evidence. Whilst [Ms L] did not contribute to the deposit paid by [Mr P], I do not accept his assertion that [Ms L] was not involved in the purchase.
36 In this relationship, there were a number of separations arising from conflict
between the parties. As to the alleged separation in May 2000, [Ms L] denies that any separation in fact took place. I do not regard [Ms L]’s evidence as to the periods when the parties resided apart as being accurate. After separating in December 2000, [Mr P] says at paragraph 86 of his trial affidavit that the parties resumed living together on 5 February 2003. When being cross-examined, [Mr P] admitted that [Ms L] moved back into the [l property] for a short period in 2001. He conceded also there may also have been periods in 2002 when [Ms L] lived with him. In my opinion, it is more likely than not that the parties did separate for a period in about mid 2000, although not for as long as the period alleged by [Mr P] being from May 2000 until early August 2000. I do not, however, regard this separation as an event which was intended to end the relationship. The parties resolved their differences and resumed living together.
37 In Thomson v Badger (1989) 13 Fam LR 559, Young J dealt with a situation where the parties had a history of separations following conflicts in their relationship. These separations included four periods of more than three months at one time. Finding that the parties could still be living in a de facto relationship, notwithstanding such a pattern of behaviour, his Honour cited and approved the statements of
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Cohen J in George & Hibberson to which I have earlier referred and ultimately found that notwithstanding the many separations and conflict which occurred between the parties in the case before him that a de facto relationship could still be found to exist between them.
38 There is no dispute that the parties moved together into the [rented] property on
24 August 2000 and they were living together at the [rented] property before moving
to [the new residential property].39 I accept [Ms L]’s evidence that she did most of the packing and shifting of the
items from the [suburban] rental property to the [new residence] and did most of the
unpacking of boxes and setting up the [new home] for both of them.40 I am satisfied the parties’ living arrangements and circumstances at the
[new residence] continued as they were at the [rented suburban] property from December 1999. [Ms L] and [Mr P] shared the same bedroom and an active sexual relationship.
41 In addition to the other indicators I found to exist in December 1999, I am also
satisfied that [Ms L] helped establish and maintain the garden areas at the [new residence] which included doing manual labour and purchasing plants for the garden from her funds. [Ms L] also assisted in making the necessary arrangements with sub-contractors who worked on the [new] property.
42 In determining that the parties were living in a marriage-like relationship after
December 1999, I have also taken into account that for the financial year ending 30 June 2000, [Mr P]’s family Trust (the [K] Family Trust), which operated the [suburban business], made a distribution of income to [Ms L] of $31,429 which she returned in her tax return. The Trust distribution was not received by [Ms L].
43 In the absence of any evidence to the contrary, I am satisfied the only basis upon
which this distribution could have lawfully been made to [Ms L] from the [K] Family Trust was that she was [Mr P]’s de facto spouse during the relevant period. [Mr P] explains this decision “on the basis that it was a tax driven decision on my part”. It may well have been a tax driven decision but as a result of the distribution by [Mr P], he was able to save tax and it could no longer be said there was no intermingling of finances between the parties. [Mr P] did not make distributions of income from his Trust to anyone other than [Ms L] for this period.
Separation in December 2000
44 It is clear that by December 2000, there were serious difficulties in the
relationship and [Ms L] left the [residence] in December 2000. [Ms L] says that she commenced to receive Centrelink benefits on 4 December 2000. I intend to use this date for the date on which cohabitation ceased between the parties.
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Summary of position in relation to first cohabitation period
45 In my opinion the de facto relationship which I find existed from December 1999 continued until the parties separated on 4 December 2000.
Alleged de facto relationship period from 5 October 2001 to 7 February 2005
46 [Ms L] says that when she left the [residence] she initially moved in with her
brother for a few months and then started house-sitting. [Ms L]’s evidence, which I accept, is that after separating in December 2000, the parties did not see one another for about six weeks and then started going out together and resumed their sexual relationship. When they separated, [Ms L] ceased to have any involvement in [Mr P]’s business.
47 [Ms L] says that she returned to live with [Mr P] at [the residence] on
5 October 2001 and the relationship with [Mr P] resumed much as it was before, except that by this time [Mr P] had employed a new receptionist for his [business]. [Mr P] disputes [Ms L]’s version of events and in his affidavit evidence, [Mr P] says that [Ms L] resumed living with him in [the house] on 5 February 2003. During his cross-examination, [Mr P] acknowledged that [Ms L] did live with him for a short period in 2001 and may also have lived with him for periods in 2002.
48 What then was the nature of the relationship from October 2001?
49 [Mr P] called [Ms CB] who signed a house-sitting agreement with [Ms L] on 18 February 2002 (Exhibit 13). [Ms L]’s address in the agreement is shown [as another suburban address which I assume to be the address of [Ms L]’s brother, [Mr L]. The agreement provides for [Ms L] to occupy the [CB]s’ property [in a nearby suburb]between 20 March 2002 and 2 May 2002. The agreement further provides for [Ms L] to sleep in the house every night.
50 I found [Ms CB] to be a reliable and credible witness. The house-sitting
agreement was made through an agency and [Ms L] was paid for the house-sitting work she did for [Ms CB] and her husband. [Ms CB] said that [Ms L] asked her if people could visit when she was house-sitting at her home.
51 [Mr P] also called [Ms B] who describes herself as a friend to both parties.
[Ms B] says [Ms L] stayed at her home for a short period in November 2001, leaving some personal items in her home which [Ms L] used as her home base. She says that over this period, [Ms L] would often go out with a female friend from work or with groups of people. [Ms L] also house-sat for her for about two weeks in December 2001. There is no reason to believe that [Ms B] was other than a frank witness whose evidence I accept.
52 Whilst I accept that [Ms L] would stay over at [his residence] periods from late
October 2001 and [Mr P] would have spent time with [Ms L] at the homes she looked after in 2001 and in the first half of 2002, I am not satisfied that the parties resumed living a de facto relationship on 5 October 2001. The evidence of [Ms B] and [Ms CB] in relation to the periods [Ms L] house-sat for them in late 2001 and the first half of 2002 are not supportive of [Ms L]’s case. I find it highly unusual [Ms L]
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would take on house-sitting jobs through an agency as she did with [Ms CB] for about six weeks during the first half of 2002 if she was living in a marriage-like relationship with [Mr P] over that period.
53 I am satisfied, however, that by the end of June 2002 [Ms L] was living on
a full-time basis at the [residence] and the parties’ living arrangements were much the same as I have described during those periods when I found the parties were living in a de facto relationship, save that [Ms L] was longer working in [Mr P]’s business as she was prior to the parties’ separation in December 2000. The parties holidayed together to [overseas destinations] in August 2002 and shared expenses for this trip. On the travel insurance certificate relating to the trip, [Ms L]’s address is shown as the [address] of [Mr P]’s property (Exhibit 6). I am also satisfied that [Ms L] continued to assist with looking after [Kane] during the times he spent with his father as well as working to maintain the [residential] property and did most of the home duties for their joint benefit.
54 For the financial period ending 30 June 2003, [Mr P] again distributed income to
[Ms L] from his Family Trust in the sum of $12,000. This amount was never paid to her. [Ms L] says that as a result of this distribution of income from [Ms L]’s business which she agreed to accept, she was no longer entitled to the tax refund she was expecting of approximately $3,000 in connection with her previous employment at [another company]. This evidence was not challenged. One wonders why [Ms L] would have agreed to this Trust distribution, which was never paid to her, unless there was, at least from her side, a commitment to a shared life with [Mr P]. [Mr P] acknowledged that no distributions of income from his Family Trust were made to any person other than [Ms L] during this tax year.
55 [Mr P]’s case that the parties were not residing as a de facto couple until
November 2003 is not supported by the income tax returns the parties lodged with the Australian Taxation Office for the year ended 30 June 2003. In his return, [Mr P] named [Ms L] as his spouse and specifically acknowledged [Ms L] was his spouse for the full tax year from 1 July 2002 to 30 June 2003. In [Ms L]’s return she also acknowledged that she had a spouse for the full taxation year. When questioned about these taxation arrangements, [Mr P] agreed that by entering into these taxation arrangements, he used [Ms L] for his own financial gain. The fact that [Mr P] declared to the tax office that [Ms L] was his spouse for the whole of the 2003 tax year and yet denies that this was the position in these proceedings does him little credit.
56 [Ms L] was making telephone calls from the home phone at the [residence] at
least from July 2002 which also does not support [Mr P]’s affidavit evidence that the
parties did not resume living together until about 5 February 2003.
57 Following further conflict in the relationship, [Ms L] travelled to the [North-west] on 18 December 2002, having purchased a one-way plane ticket.
58 [Mr P] says that [Ms L] called him from [the North-west] and told him she was
dating another man. [Ms L] denies this. Following discussions between the parties, [Mr P] flew to [the North-west] and the parties stayed together for the Australia Day long weekend period commencing on 24 January 2003. I accept that over this weekend the parties agreed to resume living together. I do not accept that [Ms L] was
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dating another man. During this weekend, the parties saw an engagement ring that [Ms L] liked and without telling her, [Mr P] arranged to purchase the ring on 5 February 2003. It cost $4,000.
59 In his trial affidavit at paragraph 4.4, [Mr P] described purchasing “an
engagement ring”. At the hearing, [Mr P] said the ring was originally purchased as a friendship ring. I do not accept [Ms L]’s evidence that when he purchased the ring he was unsure about the future of the relationship and “wanted to see how things went before proposing”. This was the most expensive piece of jewellery [Mr P] purchased for [Ms L] and I do not believe he would have made such a purchase if he was unsure about the future of his relationship. I am satisfied [Mr P] purchased this as an engagement ring for [Ms L] intending to surprise her with it at a later date.
60 I also accept [Ms L]’s evidence that [Mr P] told her he loved her and asked her
to return to him. [Ms L] returned to Perth on 5 February 2003. She was picked up from the airport by [Mr P] and the parties resumed living together at [his home]. Whilst the parties’ relationship was at times volatile, the parties enjoyed a very close and supportive relationship at other times.
61 [Ms L]’s evidence, which I accept, is that after 5 February 2003 she returned to
the [home], she resumed her regular home duties for the parties’ joint benefit and continued to assist [Mr P ]with the care of [Kane] when he stayed with the parties. I also accept that she continued her gardening work at the [home] and assisted [Mr P] on a part-time basis with the [business] at least from the latter part of 2003 until July 2004 when she commenced work at [another company].
62 On 16 November 2003 [Mr P] asked [Ms L] to marry him and she accepted his
proposal. [Mr P] gave [Ms L] the engagement ring he purchased in February. The parties celebrated their engagement on 24 January 2004 with a large party for family and friends. Although [Mr P] says that “no concrete plans were ever made to actually get married” at paragraph 60 of his trial affidavit, he concedes the parties made a commitment to marry and celebrated this commitment with many friends and family members.
Final separation
63 [Ms L] says the parties separated for the final time on 13 February 2005 when
she moved from [his home]. Whilst [Mr P] agrees that [Ms L] finally left on this date,
he says the relationship was over before [Ms L] left [his home].64 [Ms L] agrees there were problems in the relationship in January 2005 after [Kane] came to live with the parties. [Mr P] says that on either 29 January or 30 January 2005 the parties had a heated argument and the following day he told [Ms L] the relationship was over and asked her to move out. [Mr P] says [Ms L] agreed to leave the home but said she would need time to organise somewhere to stay. [Ms L]’s position is that from the time of the argument on either 29 or 30 January 2005 his intention was to end the relationship with [Ms L]. From that point he says the parties slept separate rooms, they did not eat together or socialise. [Ms L] denies [Ms L]’s evidence and says that until she left the home on 13 February 2005, the parties
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continued to share the same bedroom and maintained a sexual relationship. [Mr P] says that on 31 January 2005 he had a long telephone discussion with his mother, [Mrs P] during which he explained that his relationship with [Ms L] was over. The fact that this telephone conversation took place is confirmed by the evidence of [Mr P]’s mother who annexes to her affidavit a photocopy of a telephone account showing the call [Mr P]made to her on 31 January 2005. Although [Mr P]’s mother did not personally attend the hearing for health reasons, she was cross-examined by telephone linkup and confirmed she was not mistaken about what [Mr P] said during the telephone discussion on 31 January 2005 namely that his relationship with [Ms L] was over for good and he had moved into another room in the house. Whilst I did not have the opportunity to observe [Mrs P], I regard her as a reliable witness. [Ms L] says that she saw an advertisement to share a house during the first week of February 2005 and that she told [Mr P] on about 7 or 8 February 2005 she intended to move into the house that was advertised. [Ms L] says she formed an intention to leave the home on about 7 February 2008 and told [Mr P] of her decision at this time.
Applicable law
65 In Pavey and Pavey (1976) FLC 90-051 the Full Court considered the issue of separation in a situation where the parties had been married. In that matter the Full Court affirmed the decision in Todd and Todd (No 2) (1976) FLC 90-008, where the Court stated:
"In my view, “separation” means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed."
66 These principles should also apply to de facto situations.
Conclusion as to when the parties separated
67 Notwithstanding that the parties continued to share the same residence until 13 February 2005, in my opinion the parties separated on or about 30 January 2005 when [Mr P] told [Ms L] that the relationship was over and asked her to move out. I accept that [Mr P] thereafter moved out of the main bedroom. [Ms L] thereafter looked for alternative accommodation which she secured on about 7 February 2005 and told [Mr P] of her decision. There was no suggestion that [Ms L] was intending to stay away only temporarily. I am satisfied that [Mr P] formed the intention to separate and that intention was acted upon.
Summary of conclusions in relation to second period of the parties’ relationship
68 In my opinion, the parties resided in a de facto relationship from 1 July 2002 until about 30 January 2005 for these reasons:
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(a) other than during the period [Ms L] spent in [the North-west] without [Mr P] during December 2002 and January 2003, [Ms L]and [Mr P]lived together at the [residence]where they were sharing a bedroom; (b) I accept the parties were sharing home duties at the [residence] for their joint benefit. [Ms L] was also assisting with the care of [Kane] during those periods he stayed at [the home]; (c) the parties socialised together as a couple on a regular basis and would spend time with family and friends. They holidayed together including overseas trips in 2002 and 2004; (d) the parties had an active sex life; (e) at least from late 2003, [Ms L] assisted [Mr P] on a part-time basis in his [business] until July 2004 when [Ms L] found employment elsewhere. From the income [Ms L] received during this period, she contributed to the purchase of food and household supplies for the household and was otherwise supported by [Mr P]; (f) I am not satisfied either party had other sexual partners during this period; (g) whilst the parties maintained separate bank accounts and held no assets together, [Mr P] benefited financially by being able to make distributions of his business income to [Ms L] through his Family Trust for the financial year ended 30 June 2003. [Ms L] further assisted [Mr P] by agreeing to guarantee a loan taken out by [Mr P] for approximately $160,000 to enable him to acquire an interest in [property]. This took place in about December 2004; (h) [Ms L] contributed to the maintenance and perhaps also the improvement of the [residential] property by her gardening work and acquiring plants to establish the garden area of the property. [Ms L] also assisted [Mr P] by doing some painting and labouring work on the investment property [Mr P] purchased in [another suburb] in October 2002. I accept that [Ms L] made these contributions to [Mr P]’s assets because she believed they were building a future together;
(i) [Mr P] declared to the Australian Taxation Office that [Ms L] was his spouse for the financial year ended 30 June 2003;
(j)
the parties expressed their love for one another and on 16 November 2003 [Mr P] asked [Ms L] to marry him and she accepted. This engagement was celebrated in the presence of a large number of family and friends;
(k)
the abovementioned factors support in my view a conclusion that the parties did have a commitment to a shared life.
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Conclusion as to length of de facto relationship
69 I have found that the parties lived in a de facto relationship during the following
periods:
From December 1999 to 4 December 2000
From 1 July 2002 to 30 January 2005
70 The total of these periods is approximately three years six months.
71 In LeMay and Clark [2005] FCWA 23, Thackray J considered whether it is possible to aggregate periods during which parties have lived in a de facto relationship in order to establish the two year period necessary to give the Court jurisdiction that it was possible. Given my finding that the party lived in a de facto relationship from 1 July 2002 to 30 January 2005 the Court’s jurisdiction is established without having to rely on the earlier de facto period. Had it been necessary to aggregate the two separate periods to establish the two year period, I would have aggregated the two periods in the circumstances of this case. Whilst there was a break in the continuity of the relationship, the parties’ relationship was renewed when they commenced to live together as a de facto couple on 1 July 2002.
Is leave required to commence proceedings?
72 [Ms L] filed her application for property orders on 2 February 2006. At the time
of filing s 205ZB(1) required that proceedings be commenced within one year of the parties’ relationship having ended. This section was amended by s 72 of the Family Legislation Amendment Act 2006 (WA) which inserted a period of two years in s 205ZB(1) in place of the one year period.
73 The Explanatory Memorandum to the Family Legislation Amendment Bill 2006
provides:
“Clause 73 – Section [205ZB] amended
This clause provides that under breakdown of a de facto relationship, an application for property settlement maintenance must be made within 2 years after the relationship ends and not 1 year.
The equivalent section in section 44 (3) of the Family Law Act 1975 (Cth) provides that a former partner to a marriage is to take action for a property settlement and spousal maintenance within 1 year after divorce. As divorce proceedings cannot be instituted until there has been a 1 year separation there is effectively a 2 year period for married persons to make application. De facto partners ought to be treated equally before the law.”
74 [Mr P] submits that [Ms L]’s application filed 2 February 2006 was out of time
and should fail given that no leave to commence proceedings after the expiry of the
time limit was granted.
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75 [Ms L] makes the following submissions:
• It is not necessary for leave to be granted to her given the amendment to s 205ZB(1). In the event that I find the two year period does not apply retrospectively, then [Ms L] submits she should be granted leave to commence proceedings in the circumstances. • There is no provision in the Family Legislation Amendment Act 2006 which states that all of the amendments by that Act are to operate to applications made, or events occurring after the commencement of the Act. • The Family Legislation Amendment Act 2006 does provide that particular provisions are to apply only after the commencement of the 2006 Act. [Ms L]specifically refers to s 68(3) and s 70(3) which state: “The Family Court Act 1997, as amended by this section, does not apply to, or in respect of admissions or disclosures made under that Act before the commencement of this section”.
• S 77(3) of the Family Law Legislation (Amendment Act) 2006 (which amends s 237 of the Family Court Act 1997) states: “The Family Court Act 1997, as amended by this section, does not apply to, or in respect of, proceedings instituted under that Act before the commencement of this section.”
• All of these provisions in the Family Legislation Amendment Act 2006 appear in Part 2 Division 9 of the Act, which contains s 72 which effected the extension of the time limitation from one year to two years in s 205ZB(1). • When the Western Australian parliament intended that the provisions of the 2006 Act should have only prospective effect, it made this clear by a specific provision on this point. There is no such provision in respect of s 205ZB(1). The clear inference from this is that all other provisions apply retrospectively as well as prospectively.
Conclusion
76 I set out s 205ZB(1) in full:
“205ZB(1) A de facto partner whose de facto relationship has ended may apply for an order under this Division in relation to the relationship only if the application is made within 2 years (“the application period”) after the relationship ended.”
77 I accept [Ms L]’s submissions that the extension of the period for
commencement of proceedings from one year to two years which came into effect on 14 July 2006 makes it unnecessary to seek leave to commence proceedings out of time. Where Parliament intended the provisions of the amending legislation, such as the amendments to s 237, to apply only to proceedings instituted after commencement of the amending legislation, it provided for this. The transitional provisions having specifically provided against retrospectivity for some of the “Other miscellaneous amendments” in Part 2 Division 9 Subdivision 9 of the Family Legislation Amendment
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Act 2006, the absence of any transitional provision supports an inference that Parliament intended that the amendment made by s 72 have retrospective effect. It is my conclusion the amendment made by s 72 of the Family Legislation Amendment Act 2006 applies to applications made or proceedings instituted before the Act commenced. [Ms L]’s application was brought within the application period as extended.
Proposed orders
1. There be a declaration that the parties have been in a de facto relationship for at least two years and therefore the Court has jurisdiction pursuant to s 205Z(1) of the Family Court Act 1997.
I certify that the preceding [77] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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