L & C
[2005] FCWA 23
•1 MARCH 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | L and C [2005] FCWA 23 |
| CORAM: | THACKRAY J |
| HEARD: | 22 NOVEMBER 2004 |
| DELIVERED: | 1 MARCH 2005 |
| FILE NO/S: | PT 3924 of 2004 |
| BETWEEN: | L |
Applicant
AND
C
Respondent
Catchwords:
JURISDICTION - de facto property claim - 2 year relationship before commencement of Part 5A; one year separation; further period of de facto relationship of less than 2 years duration, ending after commencement of Part 5A.
STATUTORY INTERPRETATION - beneficial interpretation to be given to remedial legislation.
Legislation:
Family Court Act 1997, s 205Z, s 205U, s 205X
Category: Reportable
Representation:
Counsel:
| Applicant: | Mr P Ward |
| Respondent: | Mr J Hedges |
Solicitors:
| Applicant: | Peter Ward |
| Respondent: | Dawson Davies |
Case(s) referred to in judgment(s):
Badger v Badger (1990) DFC 95-078
Black v Black (1991) DFC 95-113
Khoury & Anor v GIO of NSW (1984) 58 ALJR 502
Lipman v Lipman (1989) DFC 95-068
McKone v Maretta (1999) DFC 95-213
1 C and L lived in a de facto marriage relationship from August 1997 until January 2002. They had two children. The applicant and the children left the home in which the family was residing in January 2002. The couple resumed cohabitation in January 2003, before separating finally in May 2004. The applicant mother has now commenced proceedings for property settlement.
2 Mr C asserts that the Family Court of Western Australia has no jurisdiction to deal with the mother’s application. She argues that there are two grounds on which the Court has jurisdiction pursuant to the Family Court Act 1997, namely:
(a)
there was a de facto relationship of more than two years (s 205Z(1)(a));
(b)
there are infant children of the relationship, and failure to make an order for property settlement would result in serious injustice to [the mother](s 205Z(1)(b)).
Relevant legislative provisions
3 [The mother]’s application is made pursuant to Part 5A of the Family Court Act. This Part permits parties to some failed de facto marriage relationships to make application to the Family Court of Western Australia for resolution of disputes regarding division of their property.
4 Section 205U provides that Part 5A “does not apply to a de facto relationship that ended before the commencement of this Part.” Part 5A came into effect on 1 December 2002, after [the father] and [the mother] separated for the first time.
5 Section 205X sets out certain jurisdictional requirements to ensure the proceedings have a sufficient connection with Western Australia. There is no doubt these requirements have been met in this case.
6 The dispute surrounds the application of Section 205Z, which 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) 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.”
Relevant authorities
7 The amendments to the Family Court Act 1997, by which Part 5A was introduced, have been in force for a comparatively short time. Some of the issues I am required to consider appear not to have been considered in any other decisions of this Court.
8 In particular, I was not referred to any authority that might indicate whether the Court has jurisdiction in a case where the parties lived in a de facto relationship for more than two years prior to the commencement of Part 5A; separated before the commencement of that Part; but later lived again in a de facto marriage relationship for less than two years, which ended after Part 5A came into effect.
9 A similar issue arose in another matter that came before me soon after the trial in these proceedings. One of the parties in that matter was represented by most eminent Queens Counsel. He too was unable to refer to any relevant authority. (It became unnecessary for me to decide the point in that case, as a settlement was reached.)
10 There are some New South Wales cases that are of some assistance, even though the legislation in that State is different. I will refer to these later.
Background
11 It is common ground [the father] and [the mother] lived in a de facto marriage relationship from 1997 until 2002.
12 [The mother] and the children moved out of the rental home in which the family was living in January 2002. She obtained rental accommodation of her own.
13 Some time after [the mother] left, [the father] bought the home in which the parties had been living. He says he paid the deposit using funds from the sale of a car he owned before he met [the mother].
14 In about November 2002, [the father] and [the mother] decided to resume their relationship. It was agreed [the mother] would move back into [the father]’s home when her lease came to an end. [The mother] says she effectively moved back into the home in about December 2002. [The father] acknowledges she moved some things back into the property then, but says she continued to live in her own house until January 2003.
15 In any event they lived together in a de facto marriage relationship from at least January 2003 until May 2004, when [the mother] and the children again left the home.
Serious injustice – s 205Z(1)(b)
16 I will deal with this claimed head of jurisdiction first, as it is most easily resolved.
17 There are, of course, two infant children of the relationship. However, to ground jurisdiction under this subparagraph, [the mother] must also establish she will suffer “serious injustice” if the Court declines to make an order adjusting property interests.
18 There was little or no evidence on which the Court could make such a finding. All the Court was told was that during the time the parties lived apart, [the father] bought the house. [the mother] said nothing in her affidavit to show what s 205ZG(4) contributions she had made, although I can infer she was involved in the care of the children. [The father] gave evidence of what might be described as [the mother]’s “negative contributions”, and he was not challenged on these assertions.
19 There was no evidence (apart from that given from the bar table) concerning the extent of the equity in the property. In the absence of even the most basic evidence, it is impossible to begin to guess the extent of [the mother]’s entitlements (if any). It is therefore impossible to determine whether she would suffer serious injustice if the Court decides not to make the orders she seeks.
20 The argument that the Court has jurisdiction pursuant to s 205Z(1)(b) fails.
Two year relationship – s 205Z(1)(a)
21 The second claimed head of jurisdiction raises more difficult
issues.
22 There is no doubt the parties lived in a de facto relationship of two years’ duration. [The father] says this relationship “ended” in January 2002, when [the mother] left the first time. He then points to s 205U, which says Part 5A does not apply to de facto relationships that ended before December 2002. The period during which the parties subsequently lived in a de facto relationship was less than two years, and he says s 205Z(1)(a) therefore does not apply.
23 The argument presented by [the mother]’s counsel was a little harder to follow. However, I understand it was put in two parts. First, there was a de facto relationship of more than two years, which is all that is required to ground jurisdiction, provided the parties also lived in a de facto relationship of any length that ended after Part 5A commenced. Alternatively, he argues there was only one de facto relationship – the continuity of which was broken by the period of separation. The two periods should be aggregated, and together they amount to much more than the required two years.
24 In the absence of binding authority, the result turns on my interpretation of the provisions of the statute. In approaching this task, I should have regard to the fact that the Family Court Amendment Act 2002, which introduced Part 5A into the law of this State, was remedial legislation. It was designed to overcome the complexities of equity and the cost of approaching the Supreme Court for relief, often in relation to estates of modest value. Remedial legislation is to be given a beneficial construction (Khoury & Anor v GIO of NSW (1984) 58 ALJR 502; and see particularly Black v Black (1991) DFC 95-113 where a beneficial construction was given to provisions of the legislation which reformed the law relating to property owned by de facto couples in New South Wales).
25 S 205Z, on its face, allows orders to be made in relation to “a de facto relationship” so long as there has been “a de facto relationship” between the partners for at least two years. The use of the indefinite article, in my view, is significant. Subsection 205Z(1)(a) is satisfied if the parties have been in “a de facto relationship” for two years. There is no link, grammatically, between the de facto relationship “in relation” to which orders are made, and the de facto relationship that lasted two years. On this construction, the s 205U hurdle is overcome, so long as at some stage after 1 December 2002 the parties lived in a de facto marriage relationship.
26 Whilst arguably a strict construction of s 205Z(1)(a) might require the de facto relationship “in relation” to which the order is made, to have itself lasted for at least two years, a beneficial construction would not. Failure to adopt such a beneficial construction would leave [the mother], at best, dependant upon pursuing an expensive and complicated claim for equitable relief in the Supreme Court, over what is likely to prove to be a very modest pool of assets.
27 It would not be in accordance with the remedial intention of the Act to deny access to the Family Court to parties who lived in a de facto relationship that lasted from 1997 to 2004, with only one year’s interruption. I therefore do not consider it appropriate to read down the plain words of the section to deny relief to a party who undoubtedly lived in a de facto relationship for more than two years, and lived in such a relationship for some time after the reform legislation commenced.
28 There is an alternative analysis to support a finding the Court has jurisdiction. This requires consideration of whether the parties’ de facto relationship in fact “ended” in January 2002, when [the mother] left for the first time. Although it could be perceived that in one sense the relationship ended when [the mother] moved out, it can also be said they resumed their relationship when she and the children moved back in with [the father] one year later. The question then becomes, were there two distinct de facto relationships, or only one?
29 I suspect it would only be a lawyer (or Judge) who would be tempted to think [the mother] and [the father] had two different de facto relationships. Anyone else who knew them would simply have seen them getting back together and resuming their original relationship. To use the words of Master Macready of the NSW Supreme Court in McKone v Maretta (1999) DFC 95-213, “In one sense having resumed their relationship one might regard it as a continuance of what was the former de facto relationship which existed…”.
30 However, in Lipman v Lipman (1989) DFC 95-068 Powell J in the Supreme Court of New South Wales had occasion to consider a dispute between parties to a failed de facto marriage, who had separated for five months during what otherwise would have been a relationship of more than 12 years duration. His Honour said:-
“First, one must determine whether the relationship between the parties is to be regarded as having been but one “de facto relationship” or as having involved two discrete de facto relationships''.
Although I accept that the concept of “a de facto relationship” does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from “the matrimonial home”, and although I do not discount the possibility that “a de facto relationship” may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the “de facto husband” requires the “de facto wife'' to leave the “matrimonial home” and instals another in her place. As Mahoney J.A. said in Hibberson v. George ((supra) at p. 75,766):
"The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.”
I therefore conclude that, in this case, there were two discrete
“de facto relationships''.”
31 Powell J’s approach is of considerable persuasive value, but not binding upon me. With the greatest of respect to him, it may be that his Honour posed the wrong question. It is not necessarily helpful to consider whether the de facto relationship was “continuing” during the period when the parties were living apart In the context of Part 5A, the important question is whether the relationship has “ended”. The answer to that question may depend on when it is asked.
32 Legal marriages usually “end”, in popular parlance, when a couple separate. But as a matter of law, such marriages “end” only when a Court dissolves them. Human relationships are very complicated. Many married couples separate, often on more than one occasion. Frequently this occurs without any thought of “working through some difficulty”, to use Powell J’s expression. In such cases it appears at the time that the marriage is over – it has “ended”. However, after the elapse of time – in some instances a very long time - some married couples get back together. No one suggests they have had two marriages, unless of course they have been through the formal process of divorce and subsequent remarriage.
33 These formal, public options are not available to those who live in de facto relationships. Those living in such ex-nuptial relationships, in my view, should be treated in the same way as their married neighbours – after a separation they simply resume their former “marital” relationship – they don’t start another one.
34 Portion of what Powell J had to say in Lipman was cited with approval by his brother, Young J, in Badger v Badger (1990) DFC 95-078 at 76,104. However, Young J did not refer to the conclusion reached by Powell J concerning the existence of two discrete de facto relationships. Indeed his Honour went on to refer, with approval, to Hibberson v George (supra) where Cohen J had said:
"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 that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v. McRae [(1967) 68 S.R. 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." (my emphasis added).
35 Although the remarks I have highlighted are only obiter, I consider they point to a better way to conceptualise cases in which there is a break in the continuity of a de facto marriage relationship. Although the de facto marriage may appear to have ended when one party withdraws from the relationship, later events may demonstrate that the relationship was not, in fact, at an end. Instead the parties resume or - to use Cohen J’s word - “renew” their de facto marriage relationship.
36 I conclude, with the benefit of hindsight, that the de facto marriage relationship between [the father] and [the mother] did not end when [the mother] left the home on the first occasion. There was a break in the continuity of the relationship, but their original relationship was resumed when they got back together in late 2002/early 2003. Aggregating the two periods of cohabitation, their de facto marriage lasted much more than two years and ended after the commencement of Part 5A, thereby providing an alternative basis for the Court to exercise jurisdiction.
S 205Z(2)
37 In arriving at my decision I have found it unnecessary to discuss the application of s 205Z(2).
38 That provision is expressly designed to deal with cases where the issue is whether the parties were actually in a de facto marriage relationship for at least two years. Its likely application will be in matters where the beginning and end of the relationship span more than two years, but there is a break in the continuity of the relationship, which, if excluded from the calculation of time, would result in a finding the relationship did not last two years. Because of the manner in which I have interpreted and applied s 205Z(1)(a), I did not consider s 205Z(2) was of assistance in resolving the present dispute.
39 However, in case there is an appeal, it may be helpful to record my broad findings in relation to the extent of the breakdown of the relationship between January 2002 and the resumption of cohabitation. This was the main issue on which the parties differed in their evidence.
40 In assessing the reliability of their respective claims, I did not find either [the father] or [the mother] to be a particularly satisfactory witness. Both of them appeared inclined to give the answer that best suited their case. However, I formed the impression [the father] was a more reliable witness than [the mother]. [The father] was not challenged in cross-examination in relation to his claims that suggest [the mother] is a fairly dishonest person.
41 I found [the mother]’s evidence about an earlier period of separation to be particularly unconvincing. [The father] had drawn attention in his affidavit to the fact he had discovered that [the mother] had informed the pension authorities she had been separated from [the father] in 2001. He claims to have been unaware of such a separation, and [the mother] had not mentioned it in her affidavit. Her explanation gave the strong impression of being an ex post facto rationalisation for having claimed social security when she was not separated.
42 Accordingly, I am more inclined to accept [the father]’s version of what occurred during the period of separation. In particular, although I am satisfied the parties maintained a civil relationship, I was not persuaded their association was anywhere near as close as [the mother] asserts. Although they appear not to have completely disentangled themselves emotionally, there was a serious rupture, evidenced particularly by each of them pursuing other romantic and physical interests.
43 Had the question been posed during most of the time [the father] and [the mother] were living apart in 2002, it would have been proper to conclude their relationship had “ended”. However, as later events showed, this was not the case.
Directions
44 Upon hearing from counsel, I will make directions for the further conduct of the proceedings.
I certify that the preceding [44] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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