Lee & Hutton
[2013] FamCA 745
FAMILY COURT OF AUSTRALIA
| LEE & HUTTON | [2013] FamCA 745 |
| FAMILY LAW – DE FACTO RELATIONSHIP – where the applicant seeks declarations pursuant to s 90RD about the period of a de facto relationship; whether there is a child of the de facto relationship; and whether one of the parties made substantial contributions – where it was conceded the parties were in a de facto relationship – where it was held the parties’ de facto relationship was for a period just short of two years – where the applicant asserted there was a child of the relationship – where the applicant had two pregnancies, one ending in foetal demise, and the other ended by a termination – where it was held a foetus or embryo was not a child as described in s 90SB(b) – where it was held that the gateway under s 90SB(b) requires a child to be living at the date the order is made – whether the applicant made substantial contributions of a kind referred to in s 90SM(4)(a), (b), or (c) – where it was held that the applicant’s contributions to the welfare of the family constituted by the applicant and respondent were substantial particularly given her contributions in attempting to have a child with the respondent – where a finding was made that a failure to make an order would result in a serious injustice to the applicant |
| Births, Deaths and Marriages Registration Act 1995 (NSW) Property (Relationships) Act 1984 (NSW) |
| A v A (family: unborn child) [1974] 1 All ER 755 Aslan v Al Nahyan [2012] NSWSC 57 Attorney-General (QLD) (Ex rel Kerr) v T (1983) 46 ALR 275 Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237 Barrett v Coroner’s Court of South Australia [2010] SASCFC 70 Brown v Brown (1905) 3 CLR 373 Dahl & Hamblin (2011) FLC 93-480 Ex parte McLean (1930) 43 CLR 472 Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCAFC 28 In Re the estate of the late K (1996) 5 Tas R 365 In the Marriage of Diessel (1980) 6 Fam LR 1 In the marriage of F and F (1989) FLC 92-031 In the marriage of G and G (1984) FLC 91-582 In the marriage of Mehmet and Mehmet (No. 2) (1987) FLC 91-801 In the marriage of Simpson and Hamlin (1984) FLC 91-576 In the marriage of Shaw and Shaw (1989) FLC 92-010 Jacob & Lawrence [2013] FamCA 188 Kennon v Kennon (1997) FLC 92-757 Miller v Miller (1978) 141 CLR 269 Miller & Trent [2011] FMCAfam 324 R v Iby [2005] NSWCCA 178 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 Street v Bell (1993) DFC 95-144 Talbot & Norman (2012) FLC 93-504 V and K [2005] FCWA 80 Victoria v Commonwealth (1937) 58 CLR 618 Wall & Mitchell [2012] FamCA 114 Watt v Rama [1972] VR 353 Wentworth v Wentworth (1995) 37 NSWLR 703 Wilcock v Sain (1986) DFC 95-040 Yunghanns v Candoora No. 19 Pty Ltd [1999] VSC 524 |
| APPLICANT: | Ms Lee |
| RESPONDENT: | Mr Hutton |
| FILE NUMBER: | SYC | 6889 | of | 2012 |
| DATE DELIVERED: | 30 September 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 11 - 12 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Moylan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Pearson Family Lawyers |
declarations and findings
A declaration is made that a de facto relationship existed between the applicant and the respondent from 8 February 2009 to 24 January 2011.
A declaration is made that the applicant made substantial contributions of a kind mentioned in paragraph 90SM(4)(c) Family Law Act 1975 (Cth).
I find that a failure to make an order under s 90SM Family Law Act 1975 (Cth) would result in serious injustice to the applicant.
A declaration is made that each of the parties was ordinarily resident in New South Wales during the de facto relationship.
The application for declarations is otherwise dismissed.
The Docket Registrar list this matter for the next appropriate court event.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lee & Hutton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6889 of 2012
| Ms Lee |
Applicant
And
| Mr Hutton |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In this de facto property case, where it was agreed a de facto relationship existed, I am asked to decide whether there is any gateway in the Family Law Act 1975 (Cth) (“the Act”) which would allow the court to entertain the applicant’s substantive application for a property adjustment order.
The applicant points to three different portals:
2.1.She says that the period of the relationship is at least two years. For reasons discussed, I find the period falls 16 days short of two years.
2.2.She says that either of her two planned pregnancies satisfy the condition of there being a child of the de facto relationship. For two different reasons, I find that those pregnancies do not satisfy the necessary jurisdictional condition.
2.3.She says she made substantial contributions to property and/or to the welfare of the family and failure to make the order would result in serious injustice to her. The applicant has not made substantial contributions to property. However, the applicant’s contributions to the welfare of the family constituted by the applicant and the respondent, particularly arising from the first unsuccessful pregnancy and the second aborted pregnancy, were substantial. I explain why failure to recognise these contributions would result in serious injustice to the applicant.
Consequently the applicant passes through the third gateway and the court will consider her substantive application.
APPLICATION AND RESPONSE
The applicant, by way of an Initiating Application filed 16 November 2012, seeks a final order for property settlement in the amount of $200,000 within 28 days (with leave to amend once the respondent has made full and frank disclosure). Otherwise, each party would retain assets in their respective control and possession.
Before me, the applicant seeks declarations pursuant to s 90RD of the Act about the characteristics of their de facto relationship sufficient to establish a gateway requirement under either s 90SB(a),(b) or (c) of the Act which would enable her to maintain her claim for alteration of property pursuant to s 90SM of the Act. In the “Summary of Argument for Applicant” (Exhibit 1), the applicant indicates that in this hearing she seeks the following declarations and orders:
1.Declaration that a de facto relationship existed between the applicant and respondent from 18 December 2008 and ceased on or about 27 January 2011.
2.Declaration that the applicant made substantial contributions of a kind mentioned in subsections 90SM(4)(a),(b) or (c) of the Family Law Act 1975.
3.Declaration that failure to make the order sought under section 90SM of the Family Law Act 1975, or the declaration in paragraph 1 herein, would result in serious injustice to the applicant. [This application is misconceived.]
4.Declaration that the parties were ordinarily resident for more than a third of the length of the de facto relationship in New South Wales a participating jurisdiction at the application time.
5.Declaration that there is a child of the de facto relationship.
6.Order that the respondent pay the applicant’s costs.
7.Such further or other orders as the Court deems appropriate to prepare the matter for hearing in relation to the application for alteration of property interests.
In a Response to Initiating Application filed 13 February 2013, the respondent seeks that the applicant’s Initiating Application filed 16 November 2012 be dismissed. In relation to this jurisdictional threshold hearing, the respondent opposes any declarations as sought by the applicant.
The documents the parties relied upon are set out in Schedule 1.
There is no issue in this case that a de facto relationship existed between the applicant and the respondent or that the requirements of s 90RG of the Act are satisfied and that both persons were ordinarily resident in NSW when the primary proceedings were commenced. I will make a declaration to that effect.
THE STATUTORY BASIS FOR THE APPLICATION
The provisions of s 90SB of the Act state:
A court may make an order under section … 90SM, … 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.
Note: For child of a de facto relationship, see section 90RB.
Section 90RD(1) of the Act permits the court to declare that a de facto relationship existed.
Section 90RD(2) of the Act is in the following terms:
A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Note: For child of a de facto relationship, see section 90RB.
As discussed during submissions, there seems to be a lacuna in s 90RD(2)(c) which only gives power to make a declaration in relation to substantial contributions (the first limb of s 90SB(c)) and not in relation whether the failure to make an order would result in serious injustice to the applicant (the second limb of s 90SB(c)).[1] Both counsel were invited to provide further written submissions on this issue but failed to do so.
[1] Although the explanatory memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) states: “The aim of s 90RD is therefore to facilitate early determination of these ‘gateway’ issues that parties are required to establish”, there is no explanation as to why power to make a declaration that the s 90SB(c)(ii) requirement is satisfied, has been omitted.
I am of the view, however, that given the way this case was presented, if a declaration is made that the applicant did make substantial contributions, a finding can be made by me about whether or not a failure to make the order would result in serious injustice to the applicant.
SHORT HISTORY
The respondent was born in 1963.
The applicant was born in 1969.
The respondent was married on two prior occasions.
The applicant says the de facto relationship started 18 December 2008 and ended 24 January 2011.
The respondent says the de facto relationship started mid June 2009 and ended 23 November 2010.
The applicant became pregnant for the first time in August 2009.
The applicant miscarried and she underwent dilation and curettage on 4 November 2009.
The applicant became pregnant for a second time at Christmas 2009.
The applicant terminated the second pregnancy on 20 February 2010.
CREDIT
There are many points of difference between the parties in the evidence they give about the same matter.
The applicant gave her evidence in a straightforward manner. There were some minor differences in her evidence about what was said between the respondent and herself on 15 January 2011, but given the emotions surrounding that event, those differences do not significantly affect her credit.
In relation to her second pregnancy, the applicant refers to experiencing pregnancy symptoms for “three months”. She also refers to the respondent insisting she have a termination after “three months had elapsed”. Given that I will find that the applicant fell pregnant around Christmas 2009, and terminated the pregnancy on 20 February 2010, I find the applicant was only approximately eight weeks pregnant. The applicant may have been calculating from her last menstrual cycle. This part of the applicant’s evidence was not tested in cross examination. Again, it is not a matter which goes significantly to the applicant’s credit.
The major difficulty I had with the evidence of the respondent centres around what he said were his reasons for wanting the termination of the second pregnancy. He gave two reasons. Firstly he said that he and the applicant had not agreed that they would try for another child. Secondly, he said that he did not believe that the child was his because he and the applicant stopped having sex after the applicant miscarried.
In oral evidence, the respondent indicated that he had communicated to the applicant his decision that he did not want to attempt to have another child in mid November 2009.
The respondent was questioned about records from two different doctors which evidenced his attendance with the applicant at two medical consultations. The first was with Dr B (a doctor at “C Medical Practice”) on 27 November 2009 and the second was with Dr D, an obstetrician and gynaecologist, on 1 December 2009.
Dr B records on 27 November 2009 that he had a conversation with the applicant and the respondent in relation to “miscarriage, fertility and age and the chance of recurrence”. Dr B further says “following today’s consultation, [the applicant] will attempt to conceive after her first normal menses”.
When the respondent was shown the letter Dr B wrote in cross examination, the respondent conceded it appeared he was present at the consultation but said he did not recall it.
What follows is part of the conversation I later had with the respondent after discussing the reasons why he wanted a termination:
HIS HONOUR: Well, how do you explain your attendance at the doctor’s surgery at the end of November?
THE RESPONDENT: [The applicant] wanted me to attend the doctor’s surgery, because after she came back from China, after the miscarriage, she was concerned that she didn’t get the proper treatment in China and wanted to check up on that, so I went with her. The miscarriage occurred in a Chinese hospital.
HIS HONOUR: What the doctor has recorded is that he had a conversation with you and [the applicant] that went far beyond the miscarriage. It went to issues of fertility, her age, her chances of an occurrence of the miscarriage and an attempt in the future to conceive?
THE RESPONDENT: Yeah, [the applicant] was concerned about her fertility, for sure.
HIS HONOUR: No, but, the discussion with the doctor went far beyond historical health issues?
THE RESPONDENT: Yep.
HIS HONOUR: It went to the issue of further conception?
THE RESPONDENT: That’s right. Yes.
HIS HONOUR: And you were part of that conversation?
THE RESPONDENT: I was in attendance. Yes.
HIS HONOUR: Do you remember it now? You didn’t remember it when you were first asked?
THE RESPONDENT: I still don’t remember it in detail, no. In fact, it’s fair to say I don’t remember it at all.
As can be seen, although the respondent initially said he could not recall attending upon Dr B, he later seemed to remember going to the doctor’s surgery at the end of November 2009 and provided his understanding of the reasons for that consultation but almost in the same breath, went on to again say that he had no memory of it at all.
Thereafter in his evidence, the respondent maintained that he did not remember the visit to Dr B.
When listening to the respondent’s evidence, I formed the strong impression that the respondent had changed his story when he realised that what was in Dr B’s letter was inconsistent with his assertions relating to the second pregnancy.
The respondent initially had a greater memory in relation to an attendance on Dr D on 1 December 2009. His evidence was as follows:
COUNSEL FOR THE APPLICANT: And you told [Dr D] in December 2009, on 1 December 2009, that you are a [scientist] with a [relevant degree] from the [government agency concerned with that field] – you went to the [government agency concerned with that field] and then into your own business?
THE RESPONDENT: Yes.
COUNSEL FOR THE APPLICANT: And you told [Dr D] you had a child, [E], aged 17?
THE RESPONDENT: Yes
The respondent then immediately corrected himself:
COUNSEL FOR THE APPLICANT: And ‑ ‑ ‑?
THE RESPONDENT: Can I just say I don’t recall saying those things but those things are true.
Dr D records in his notes that there was a long discussion (inter alia) about grief, age and future pregnancies.
The respondent said that although he remembered the appointment with Dr D and visiting Dr D with the applicant, he had no memory whatsoever as to what was discussed in this consultation with Dr D.
I find the respondent’s evidence about his memory of the two appointments with Dr B and Dr D as highly implausible. What happened at those two appointments was a discussion between the respective doctors and the parties about the miscarriage and future pregnancies. I find that it is not something that the respondent would easily forget.
I find that the applicant and the respondent attended Dr B and Dr D at the end of November 2009 and the beginning of December 2009 respectively for the purposes of discussing future pregnancies.
That finding is inconsistent with the respondent’s evidence that he had informed the applicant no later than the middle of November 2009, that he did not want to try for another child and that he was reluctant to have sex with the applicant without some kind of protection. I do not believe the respondent’s evidence that he stopped having sex with the applicant from the time of the miscarriage through to the time when the applicant informed him that she was pregnant for a second time.
I had a further conversation with the respondent about whether or not he raised with the applicant his doubts about the paternity in respect of the second pregnancy:
HIS HONOUR: Sorry, just pause there. You raised it with [the applicant] and she insisted that the child was yours?
THE RESPONDENT: She did.
HIS HONOUR: Even though you both knew you hadn’t had sex?
THE RESPONDENT: Correct.
I find that it is highly implausible that the applicant would say to the respondent that she was pregnant and he was the father if they both knew he could not have been the father because there had been no sexual relationship after the miscarriage.
The respondent admitted that the parties had sexual intercourse on the 16 January 2011. The respondent did not appear to me to be giving truthful oral evidence when he said, that on this occasion, the applicant had sex with him “by force” and that, when referring to his consent to having sex, he “d[id]n’t believe it was consensual” on his part.
Another matter which goes adversely to the respondent’s credit relates to the time in December 2008 when the parties both travelled to Melbourne separately. The respondent arrived in Melbourne shortly before the applicant and he had hired a car which was valeted parked at the hotel accommodation over two nights. During the cross examination of the applicant, counsel for the respondent put to the applicant that the respondent did not sleep with her overnight on those two nights but he did go to her room to pick her up to take her out to dinner. The respondent says that on those two nights he slept at his father’s apartment in Melbourne. That evidence does not sit easily with the valet parking records. The applicant did not have a licence and did not drive and I am satisfied that those valet parking records (which were paid for on the applicant’s credit card) evidence that the respondent had a car parked at those premises on those two nights. It is inherently unlikely that the respondent slept at his father’s apartment in Melbourne on these two nights and I accept the applicant’s evidence that he did not.
I did not find plausible the respondent’s evidence about the skype message he sent on 17 February 2009 (the text and what the respondent said about it are set out later in these reasons).
Unless I indicate otherwise, where the versions of the two parties differ, I prefer the version given by the applicant.
LENGTH OF THE RELATIONSHIP
The end of the de facto relationship
Although counter intuitive, I deal with the question of the end of the de facto relationship first as it is an easier question than when the de facto relationship commenced.
The applicant initially asserted that the de facto relationship had ended by 27 January 2011. By the conclusion of the hearing, the applicant accepted that on her case, the relationship had ended on 24 January 2011.
It is the respondent’s case that the relationship ended on 23 November 2010. The respondent points to:
50.1.An email exchange between the parties on 23 November 2010 where the respondent wrote to the applicant “[c]learly we are not right for each other. Yes, we get on well – but there is no passion, no trust and no respect. I am not happy. You are not happy. Let’s move on. I would like you to please move out before you leave for India…And you will pay me back all the money you owe me before you leave for India”;
50.2.An SMS sent by the respondent on 6 January 2011 where he said “[y]ou are probably back in Singapore now. Just letting you know that I am arranging for your stuff to be moved out. I can’t stand seeing anything to do with you around me anymore now. Hope you had fun with [Mr F].”;
50.3.The fact that on an incoming passenger card dated 11 January 2011, the applicant did not list the respondent as her emergency contact but rather her travelling companion Mr F.
The respondent’s communication on 23 November 2010 seems to have been triggered by a suspicion in the respondent’s mind that the applicant was having an affair with Mr F. I am comfortably satisfied that she was not. Mr F is a friend of the applicant and was the applicant’s travelling companion on a trip to India between the period of 24 December 2010 and 11 January 2011. I accept both his written and oral evidence that he was in a long term permanent relationship with another woman who was fully aware of his travelling arrangements to India over the 2010/2011 Christmas period.
The applicant denies that the relationship broke up as early as 23 November 2010. I accept the applicant’s evidence that there were a number of occasions during the relationship where the respondent would oscillate widely in his expression of feelings for the applicant. I accept that there was a sexual relationship on a continuing basis after 23 November 2010. The respondent accepts that the parties had sexual intercourse on 16 January 2011 but says that he only did that because the applicant came to him saying that she “wouldn’t leave unless she had sex with him one more time”.
There was a dramatic event on 15 January 2011 where the applicant grabbed a knife. The versions of what happened are slightly different and little turns upon the difference. In her affidavit, the applicant says that on that night, the respondent told her face to face that he wished to end their relationship. She goes on to say “[The respondent] refused to talk about the issue and in desperation I grabbed a knife and asked him to kill me. [The respondent] called the police. I was taken to … hospital and stayed there overnight”. In cross examination, the applicant said, “I didn’t say a word about anything”. In re-examination she said, “I just said to prove my love to him, he could kill me”. The respondent asserts the applicant used the words “I will kill myself to prove how much I love you”. During cross examination, it was put to the applicant that she had threatened to take her own life on this occasion. I accept the applicant’s evidence that that was not the case. The applicant’s version is corroborated by hospital records of 15 and 16 January 2011. The hospital was in communication with the respondent by telephone during the applicant’s admission to hospital. The hospital records record the respondent as the applicant’s “partner”.
On 16 January 2011, the applicant was discharged into the respondent’s care. They went home together. I have earlier said that the respondent agreed the parties had sex on this occasion (although the respondent denied it was with his consent).
Whilst the respondent had on more than one occasion announced to the applicant his intention to end the relationship, his actions, particularly on 15 and 16 January 2011 are not consistent with the expression of those intentions.
The respondent underwent a hip operation on 18 January 2011. The applicant visited the respondent in hospital every day. On 22 January 2011, the respondent was discharged from hospital.
On 24 January 2011, the respondent sent the applicant an email demanding she move out. In cross examination, the applicant agreed she realised then the relationship was over.
The police attended a domestic dispute at the parties’ home on 26 January 2011.
On 30 January 2011, the applicant vacated the home.
Given the ambivalent nature of what the respondent said and did, I find that the relationship did not end until 24 January 2011.
The start of the relationship
A more difficult question is when the de facto relationship commenced. To decide whether or not there was a two year de facto relationship, particular focus must be placed on whether it had commenced in the period between 18 December 2008 and 24 January 2009, given that I have found that the relationship ended on 24 January 2011.
It is the applicant’s case that the de facto relationship commenced on 18 December 2008.
The respondent says that a de facto relationship did not commence until mid June 2009.
The parties met online through a dating website in November 2008.
The parties met face to face for the first time on 3 December 2008. I accept that from that day the parties became close and intimate companions seeing each other on almost a daily basis.
On 13 December 2008 the applicant, at the respondent’s invitation, attended the respondent’s company staff Christmas party at his home. At that time the respondent introduced the applicant as his girlfriend to those who were there.
On 14 December 2008 at the respondent’s invitation, the applicant joined his office staff for a trivia event.
On 15 December 2008 the respondent invited the applicant to Melbourne to meet his family in Melbourne for Christmas.
The applicant considers the de facto relationship commenced on 18 December 2008. On that day the respondent booked flights for the applicant to travel from Sydney to Melbourne. The applicant booked hotel accommodation in Melbourne for the parties to stay together in Melbourne.
As I have already found, the parties were together over two nights at hotel accommodation in Melbourne.
It is agreed that the applicant met the respondent’s mother in Melbourne for coffee on 23 December 2008.
The applicant said in oral evidence that although the respondent invited her to attend his family celebration on Christmas Day, she was not able to take up that opportunity because that celebration was at a location a couple of hours out of Melbourne and she would not have made it back in time for a flight to connect the next day to an international flight she was taking to Singapore.
On 26 December 2008 the applicant flew to Singapore alone and stayed at her sister’s home in Singapore.
On 28 December 2008 the respondent arrived in Singapore. The respondent asserts that 28 December 2008 was the first overnight the parties were together. Consistent with my earlier finding, I find that that is not accurate. The parties travelled together until 4 January 2009 according to the applicant, but 6 January 2009 according to the respondent. It is likely that the applicant is the more reliable historian as the skype history between the parties at this time indicates the respondent left Singapore on 4 January 2009. A skype message on 4 January 2009 from the respondent saying “I took one of your Imodium before I left. Left two with you”. There is another skype chat on 5 January with the applicant saying “I miss you… I am sad you are alone when you are sick. I wish I was there to look after you.”
On 5 January 2009 the respondent booked his trip from Sydney to Singapore to depart Sydney on 27 January 2009.
On 6 January 2009 the applicant travelled to China to visit her parents as had been previously organised by her prior to meeting the respondent.
During January the parties communicated by text, telephone and skype for many hours almost every day. Their exchanges were intimate.
On 26 January 2009 the respondent left Australia to fly to Singapore. The parties reunited in Singapore on 27 January and then commenced to travel to Vietnam together.
On 5 February 2009 the parties returned to Singapore from Vietnam.
On … February 2009 the parties celebrated the applicant’s birthday in Singapore.
On 8 February 2009 the parties returned to Sydney together. After dropping by the applicant’s rental accommodation at Suburb G, they proceeded to the respondent’s home at Suburb H. It seems common ground that this was the first evening which the parties spent together in the usual residential accommodation of either of them.
During February 2009 the respondent asserts that the parties spent three to four nights per week together at his home and he did not spend any nights at the applicant’s rented accommodation at Suburb G.
It is an agreed fact that between 16 February 2009 and 18 February 2009 the parties had a disagreement and the applicant stayed at her unit in Suburb G. The applicant says that apart from those two nights, and when she was travelling, she and the respondent “resided together in the same home”. She said she only made brief visits to her unit when the respondent drove her to pick up clothes, shoes and check on her mail. This part of the applicant’s evidence was not tested in cross examination and I accept the applicant’s version.
The applicant maintained the lease on her unit at Suburb G up until 3 July 2009. The applicant’s evidence is that that was by mutual agreement between the parties because she was looking for jobs in a specific sector, most of which would be found in the CBD of Sydney and that the travelling time by public transport from Suburb H to Sydney CBD was about one hour.
On 2 March 2009 the applicant attended for blood tests at a medical centre at Suburb A. I find that the tests undertaken by the applicant related to a mutually planned pregnancy. The applicant points to a statement the respondent made over skype on 17 February 2009 where he said “I don’t want to give up on the chance to have a family.” In oral evidence, the respondent denied that statement meant that he wanted to start a family with the applicant. I have already said I do not accept his evidence about this as being plausible.
The parties looked at houses and had conversations about appropriate accommodation. I accept that the applicant and respondent inspected a number of properties and agreed that a property at Suburb A would be purchased. The applicant had discussed with the respondent the pest inspection reports for the Suburb A property on 9 March 2009 and had called the inspector with inquiries.
The contract to purchase the property at Suburb A was signed either on 12 March 2009 or 13 March 2009 (the evidence is ambiguous and nothing turns on it).
On 17 April 2009 the respondent had joined the applicant into his Medibank private health cover in anticipation of the planned pregnancy. It is the respondent’s case that it was not until April 2009 that the parties discussed having children together. I do not accept that is so.
In April 2009 the respondent attended advisory appointments with the applicant with her medical practitioner.
In April and May 2009 the applicant purchased furniture for the Suburb A property and organised the moving of furniture. The applicant also organised a house warming party for the new property which took place on 13 June 2009. The applicant was cross examined about a draft of the invitation which only had the respondent’s name on it. I accept the applicant’s evidence in relation to that draft. The actual invitation that went out to the invitees had both parties’ names on it. There is no doubt that by June 2009 the parties were living in a de facto relationship.
I accept the applicant’s evidence that in her mind, she committed to a de facto relationship with the respondent when she travelled to Melbourne to be with the respondent in December 2008. However, there is insufficient evidence to enable me to find that that commitment was reciprocated by the respondent at that time.
What happened in the relationship between the applicant and the respondent between 8 December 2008 and 24 January 2009 could not, in my view, be described as them having a relationship as a couple living together on a genuine domestic basis. When all the circumstances of that period are looked at, I am unable to find that the parties in that period were in a de facto relationship. There was no common residence (and I am not, in the circumstances of this case, prepared to find that overnight or holiday accommodation was a common residence). There is no evidence that in that period the parties developed a degree of financial dependence or inter-dependence. They did not own, use or acquire property together. There is nothing to indicate that the reputation and public aspects of their relationship would be described as a de facto relationship. The arrangements that the applicant and the respondent had during December 2008 and January 2009 had all the hallmarks of a “boyfriend/girlfriend” or “partner” relationship where they agreed to spend time interstate and overseas on holiday together. I am on balance satisfied that the parties commenced to live together as a couple on a genuine domestic basis in the same residence from 8 February 2009.
I consequently conclude that the parties’ de facto relationship commenced on 8 February 2009 and ended on 24 January 2011. It follows that I am not able, pursuant to s 90RD(2)(a) of the Act, to make a declaration of the existence of a de facto relationship for the period or periods of at least two years.
THE APPLICANT’S TWO PREGNANCIES
It is not a matter of controversy that the parties during the de facto relationship, intended to, and unsuccessfully attempted to, have a child.
I accept that in February 2009 the applicant and respondent discussed having a child together and that as at 17 February 2009 the respondent was indicating to the applicant that he did not want to give up on the chance of having a family. I accept the applicant’s evidence that in February 2009 there were numerous conversations to the following effect:
[THE RESPONDENT]: What do you think of making a baby together? You and I are not growing younger…
[THE APPLICANT]: I have never wanted to have a child before as I mentioned to you on our first date. That’s why I had an IUD inserted all these years. All I wanted was to travel the world as you knew. Maybe I have never really been in love with anyone before. But things are different now… You make me think of life differently now. I am so much in love with you and I want to be with you for the rest of my life. And yes, I want to have your baby.
…
[THE RESPONDENT]: I love you so much too. We should get started…
I accept that the parties decided that the applicant would take folic acid and attempt to fall pregnant when the minimum three month intake period was over.
The decision to have a baby influenced the choice of house that the respondent purchased in early March 2009.
On 2 March 2009, the applicant went to see her General Practitioner, Dr I at J Medical Practice, who ordered antenatal blood on 6 March 2009. A pathology report was prepared. As already mentioned, on 17 April 2009, the respondent upgraded his health insurance to cover the applicant so that the waiting period for obstetrics under the health insurance policy would start to run. On 16 April 2009 the applicant obtained a referral to a gynaecologist, Dr K, for preconception advice, pap smear and removal of the applicant’s intrauterine contraceptive device (“IUD”). On 21 April 2009 Dr K advised against the removal of the IUD until rubella vaccinations were carried out. After completing rubella vaccinations, the IUD was removed in order to prepare for pregnancy.
In August 2009 the applicant fell pregnant. The applicant gives evidence that the respondent was the father and I accept her evidence (notwithstanding the gratuitous doubts expressed by the respondent in oral evidence).
Upon the applicant falling pregnant, she was referred by Dr L (a General Practitioner) to Dr B who was an obstetrician and gynaecologist. On 13 October 2009, Dr B confirmed that the applicant was pregnant at 7 weeks and 3 days gestation. Her expected date of confinement was 29 May 2010. The applicant was booked to have the baby at M Hospital.
During the pregnancy, the applicant felt nauseous most of the time and was vomiting. The applicant could not sleep well at night. She describes her symptoms as having a pounding heart and feeling sick. Her appetite was greatly reduced to the extent that she could only eat small amounts at a time. During this time, she continued to cook meals solely for the respondent.
By the end of October 2009 she began to feel better and took the opportunity of travelling to China to see her parents before the baby was born. Whilst in China she started bleeding and was hospitalised. An ultrasound confirmed that the foetus had suffered foetal demise at approximately 10 weeks gestation. On 4 November 2009 in China the applicant underwent a dilation and curettage to remove the deceased foetus in an operation that she described as painful. The applicant was heartbroken and cried for many days. After that procedure, she bled for 14 days. The residual tissue was stated by her treating doctor as likely to pass through menstruation.
The respondent joined the applicant in China and they went to Japan together (a trip associated with the respondent’s business) and then returned to Sydney.
I have, when discussing credit, referred to the consultations between the parties and Dr B on 27 November 2009 and with Dr D on 1 December 2009. The parties planned a second pregnancy. Dr B advised the parties the best time for the parties to attempt conception was after the applicant’s next menstrual period.
In December 2009 the parties went to Melbourne to have Christmas with the respondent’s family. The applicant later confirmed that she fell pregnant during that trip to Melbourne. I find that the parties had sexual intercourse at that time and that the respondent’s impregnation of the applicant led to the second pregnancy.
The parties went on a ski trip to Japan in January 2010 and were joined by the respondent’s first ex-wife. Upon return to Sydney the applicant confirmed the pregnancy. At that time the respondent changed his mind and insisted that he no longer wanted to have a child with the applicant and expressed the view that the applicant should have a termination.
On 25 January 2010, Dr D records “[the respondent] does not want to continue pregnancy. [The applicant] does. Marital conflict.” At a review conducted on 4 February 2010, Dr D records “relationship conflict. Seeing counsellor. Very distressed. [The applicant] clearly wants to continue pregnancy. [The respondent] feels relationship issues need to be resolved.” Dr D further records on 12 February 2010 “very distressed… [the applicant] wants to continue pregnancy. [The respondent] immovable.”
I accept the applicant’s evidence however that the respondent changed his mind about having the baby just about every other day and wavered between wanting to have the baby and insisting on an abortion. The applicant says she “nearly had a mental breakdown”. I accept the applicant’s evidence about the significant emotional trauma she experienced during this period. Also, during the second pregnancy the applicant suffered what she described as “nauseas [sic] and sickness symptoms” that were worse than the first pregnancy. She also suffered sleep deprivation and loss of appetite that was worse than the first pregnancy.
After the pregnancy was confirmed, the respondent started to threaten the applicant. On one occasion the respondent said to the applicant that he had left his first wife when their daughter was born and “[w]hat makes you think I won’t do it again?”. At another time the respondent said to the applicant that she would “never see the baby if you insist on continuing the pregnancy”. The respondent also said to the applicant that a termination was the only way that they would be able to continue to live together.
I accept the applicant’s evidence that it was her belief that the respondent knew that she loved him.
I accept that the applicant’s emotional state led her to fear that her condition may harm the baby’s brain and nervous system during the first trimester.
On the night of 17 February 2010, the respondent reiterated his threats that the applicant would never see the baby “as he had got three lawyers in his family”.
On 18 February 2010 the applicant booked an appointment at N Clinic in Suburb O for a termination.
During the initial assessment on 19 February 2010, the applicant started crying and said “I want the baby but my partner forced me to undergo an abortion”. The applicant said to the doctor “my relationship wouldn’t survive the pregnancy and a termination was the only way he would be with me”. The doctor at N Clinic refused to carry out the abortion on 19 February 2010.
The respondent was upset when the applicant informed him that she had not gone through with the abortion. The applicant saw communication on the respondent’s mobile telephone with his first ex-wife which indicated her endorsement of the respondent’s continuing pressure to require the applicant to have an abortion. The parties booked into another clinic in Suburb P and went on the next day together. The respondent said to the applicant not to “mess it up again”.
At the clinic, after a scan assessment, the nurse told the parties that the wall of the applicant’s uterus was thinner than normal and that there was a high risk of piercing holes in the uterus wall if the abortion was carried out. There was also a risk of infection and permanent infertility. The nurse indicated that the procedure could be fatal in extreme cases. The applicant remained silent, the respondent told the nurse to “go ahead”.
The respondent makes no reference to the second pregnancy or the termination in his evidence in chief.
The applicant experienced the termination as a very traumatising experience. She cried for hours every night for many months following the termination. The applicant consumed half a box of tissues each night from crying. On some nights the respondent would move to another bedroom so that the applicant’s crying would not bother him. The applicant had nightmares for many nights and still has them up until the present time. Her recurring nightmare is one where she sees her baby’s ghost.
The applicant reports that in the short term the respondent’s attitude towards her improved after the termination.
WERE THERE CHILDREN OF THE DE FACTO RELATIONSHIP?
As mentioned already, the gateway test in s 90SB(b) of the Act is “that there is a child of the de facto relationship”.
The applicant argued that the jurisdictional requirement that “there is a child of the de facto relationship” is satisfied in this case, notwithstanding the fact that no live child was born to the parties.[2] Counsel for the applicant submitted that both a demised foetus and a terminated embryo[3] are a “child” for the purposes of determining whether there is a child of the de facto relationship. In the alternative, counsel for the applicant argued that in this case there were two births; being two stillbirths. In developing this argument, counsel for the applicant pointed to the proposition approved by the Full Court in Dahl & Hamblin (2011) FLC 93-480 that s 90RD of the Act is to be given a “beneficial interpretation”.
[2] Although the applicant says at paragraph 5 of her affidavit that “there are no children of the relationship”, I infer the applicant meant there were no children born or currently living. She relies upon either of her two pregnancies to satisfy the jurisdictional requirement.
[3] Miller-Keane, Encyclopedia & Dictionary of Medicine, Nursing & Allied Health, (6th ed, 1997) defines a “fetus” as “the developing young in the uterus, specifically the unborn offspring in postembryonic period, which in humans is from the third month after fertilization until birth.” An embryo is defined as “a new organism in the earliest stage of development; the human young from the time of fertilization of the ovum until the beginning of the third month…”
Counsel for the respondent submitted neither a foetus nor an embryo is a child and that neither foetal demise nor a termination is a stillbirth.
Section 90RB of the Act provides the following definition for the purposes of Part VIIIAB:
…a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.
The word “born” is not included in the definition. This is in contrast with s 60F(1)(b) of the Act which states that a child of a marriage includes “a child of the husband and wife born before the marriage” and s 5(3) Property (Relationships) Act 1984 (NSW) which defines “child of the parties to a domestic relationship” as including a “child born as a result of sexual relationships between the parties” (emphasis added).
“Child” is defined in s 4 of the Act but not in a relevantly useful way because the qualification by the word “includes” means the definition does not say what a child is not. Also, the definitions are confined to Part VII of the Act.
Counsel for the applicant submitted that the ordinary dictionary meaning of “child” includes “a baby or infant...any descendant”[4] and that the ordinary meaning can also include “[t]he unborn or newly born human being; foetus, infant.”[5] I do not think the ordinary use of the word “child” excludes applicant’s argument. The Oxford Dictionary of English 2nd edition also provides what it refers to as an archaic definition of the phase “with child” to mean “pregnant”. Whilst no doubt an expression of antiquity words such as “she is carrying a child” is still used more naturally than “she is carrying a foetus”.[6]
Is it possible to have a consistent definition of child in the Act?
[4] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th Edition, 2009).
[5] Oxford English Dictionary <
[6] I acknowledge that Lindenmayer J in In the Marriage of Diessel (1980) 6 Fam LR 1 at page 10 described any reference to this meaning of the word “child” as “somewhat facile and almost question-begging”.
The High Court has said “[i]t is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”.[7]
[7] Justice Mason with whom Barwick CJ and Jacobs J agreed in Registrar of Titles (WA) v Franzon (1975) 132 CLR 611.
In Brown v Brown (1905) 3 CLR 373, the High Court considered a case where the wife was pregnant at the time final custody orders were made under the Matrimonial Causes Act 1899 (NSW) (“1899 Act”) in favour of her husband in respect of the children who had up until that time been born. The relevant wording of s 60 1899 Act was:
the Court may… make such orders as it deems just and proper with respect to the… maintenance and education of the children the marriage of whose parents is the subject of…proceedings…
For the purpose of this discussion, there is no difference between the words used in the 1899 Act and the words used in the Family Law Act1975 (Cth) (ss 64B(2)(f); 64B(5) and 66G).
A question that fell for determination by the High Court was whether or not it was open to the wife to make an application for maintenance for the unborn child.
At page 388, Barton J said:
...the mother knew very well that there would soon be another child to be maintained, and it was open to her to make an application in respect of it. And there can be no doubt that the Court had jurisdiction to make an order affecting that child.
Both Griffith CJ and O’Connor J in separate judgments, agreed that notwithstanding the mother was “enceinte” with a child at the time, the court had jurisdiction to make an order with respect of the maintenance of that child.
The only judicial consideration of these statements which I can locate is In the Marriage of Diessel (1980) 6 Fam LR 1. Whilst acknowledging the eminence of these members of the High Court, Lindenmayer J said:
From the foregoing quotations it is apparent that all three distinguished members of the High Court who decided that case were clearly of the opinion that in terms of the statute there under consideration the wife could have applied for and obtained an order for the maintenance of her unborn child at the time of the granting of the decree of judicial separation by the Supreme Court of New South Wales. Inferentially, therefore they interpreted the word “children” in the section which they were considering as including an unborn child. However, the basis upon which they did so is not clear, and none of the learned judges undertook any analysis of the section or of the Act nor approached the matter as if it involved a question of interpretation. Rather they all seem to have simply assumed that the child (which by the date of their deliberations was of course in being) came within the ambit of the section at the time of the original proceedings notwithstanding that he was not then born. Perhaps the explanation for this is to be found in the arguments of counsel. In the report of the argument it appears (at 376) that counsel for the appellant (husband) said: “By s 60 of the Matrimonial Causes Act 1899 the Supreme Court then had exclusive jurisdiction in questions relating to the maintenance of the children born or unborn, and the wife had power to apply at any time for alimony.” Then, at 378 it is recorded that counsel for the wife said: “No doubt the wife could have asked for maintenance for the child, but she confined her claim to relief for herself.” Thus it seems that the wife's counsel conceded the jurisdiction of the Supreme Court to make a decree for the maintenance of the child even though then unborn, and no argument was therefore addressed to the court upon this point. Therefore the decision of the court on the point, whilst not per incuriam, is less persuasive than it might otherwise have been, and, having been made in relation to a different statute and in an entirely different context from that which I am now considering, is certainly not binding upon me.
With respect to his Honour, in my view, he is being somewhat adventurous to suggest that each of the members of the High Court approached their task without proper “analysis” or “interpretation” or that their Honours found jurisdiction as a result of the parties conceding it.
Brown v Brown, unless overturned by a subsequent High Court or legislative intervention, is authority, more than a century old, for the proposition that there is power to make a child maintenance order in favour of a child not yet born[8] and that the word “child” in s 64B(2)(f) of the Act includes an unborn child.
[8] Since 1989, s 66E of the Family Law Act1975 (Cth) and various sections of the Child Support (Assessment) Act 1989 (Cth) provide for the support assessments to be made for a child once born. Given that is so, it is not surprising that I am unable to find a case where the power to make a child maintenance order in favour of a child not yet born has been exercised.
Given the ratio in Brownv Brown, the question arises as to whether it is possible to have a consistent definition of child in the Family Law Act 1975 (Cth).
There are three single instance decisions of this Court which focus on individual sections of the Act and conclude that the word “child” in those sections does not include a child not yet born. Those authorities are In the Marriage of Diessel (1980) 6 Fam LR 1 (Lindenmayer J); In the marriage of F and F (1989) FLC 92-031 (Lindenmayer J) and Talbot & Norman (2012) FLC 93-504 (Murphy J).
In Diessel, Lindenmayer J considered a divorce application in circumstances where the respondent wife was pregnant. The question arose as to whether a child en ventre sa mère was a “child” when considering if a declaration should be made that proper arrangements in all the circumstances had been made for the care, welfare and development of that child (s 63 in the Act as it was in 1980, the equivalent of s 55A of the Act as it currently is). His Honour concluded that the respondent’s foetus was not a child within the meaning of that section of the Act. His Honour relied upon the context and purpose of the use of the word “children” in that section, referring to the following matters:
138.1.The word “children” in that section is followed by the words “who have not attained the age of 18 years” and his Honour observed that “a child’s age is invariably measured from its birth not from its conception.”
138.2.The section envisaged that the name of the child would be “specified in the order” and that there was no ability to specify the name, sex and date of birth of an unborn child who “cannot be identified independently of its mother in whose womb it lies”.
138.3.The section spoke of “proper arrangements” and proper arrangements “cannot be made for the welfare of a foetus independently of the mother” (including the foetus’ health, protection and sustenance).
138.4.Section 55A(2) of the Act allows the court to adjourn proceedings to obtain a report from a family consultant (previously referred to as a court counsellor) to resolve any doubts as to whether the arrangements made for the care, welfare and development of a child are proper. His Honour concluded that “a court counsellor, …being essentially a social scientist and not a medical scientist, would not be qualified to report on the “arrangements” for the “welfare” of a foetus”.
His Honour concluded that at least for the purpose of s 55A of the Act, it was abundantly clear that the child must be a born child with a separate existence and that statements by the High Court in Brown v Brown in the opposite direction did not bind him in respect of the section of the Act he was considering.
In In the marriage of F and F (1989) FLC 92-031, the husband applied for an injunction to prevent his wife ending a pregnancy. He relied upon the equivalent of s 68B(1)(a) of the Act which is in these terms:
…the court may…grant such injunction as it considers appropriate for the welfare of the child including…for the personal protection of the child…
In In the marriage of F andF, the husband, inter alia, argued that the word “child” in that section includes an unborn child and that the husband could make an application on behalf of that child. Consistent with part of his discussion in Diessel, Lindenmayer J rejected that argument and said:
The only clear authority on this point is to the contrary, namely, that a foetus has no legal personality and cannot have a right of its own until it is born and has a separate existence from its mother. That was stated categorically by Sir George Baker, President, in Paton's case, to which I have already referred, at p. 279, and confirmed by G.N. Williams J. of the Supreme Court of Queensland in the case of K. v. T. (1983) 1 Qd. R. 396 at p. 401.
That conclusion was affirmed by the Full Court of Queensland on appeal in that case — see Attorney-General (ex rel. Kerr) v. T. (1983) 1 Qd.R. 404 at pp. 406 to 407, and by the Chief Justice of the High Court of Australia, Sir Harry Gibbs, in dismissing an application for special leave to appeal in the same case — see Attorney-General for the State of Queensland (Ex rel. Kerr) and Anor v. T. (1983) 57 A.L.J.R. 285 at p. 286.
True it is that in confirming the correctness of that view, Gibbs C.J. said:
“As at present advised, I would agree with the judgment of Sir George Baker P., in Paton v. B.P.A.S. Trustees,... that a foetus has no right of its own until it is born and has a separate existence from its mother...”
and that he ultimately decided the case on other grounds; but his Honour cast no doubt whatsoever upon the correctness of that proposition, and I am of the opinion that there has been no basis shown for me to do so in this case. I therefore conclude that this alternative basis of alleged jurisdiction also fails.
Justice Lindenmayer went on to say:
… In my opinion, as a foetus has no legal personality it is, in law, a non-person, and it therefore cannot have an inchoate legal right any more than it can have a fully developed one….
In Talbot & Norman (2012) FLC 93-504, Murphy J (also dealing with an application to restrain a woman from having an abortion) agreed with Lindenmayer J:
32. It is of some significance as it seems to me that in In the Marriage of F, it was specifically argued that the word "child" wherever it appears in the Act includes an unborn child. If that proposition was, and is, correct, this Court has jurisdiction by reason of the fact that the referring legislation, and in turn section 69ZE, confers jurisdiction in respect of an ex-nuptial child.
33. So, too, if that proposition is correct and the Court has jurisdiction, the Court has power to order injunctions in respect of a "child" by reference to section 68B of the Act.
34. Lindenmayer J rejected that argument, holding that the word "child" as used in the Act means a child once born. Again, with great respect to his Honour; I agree with that conclusion. In my view that conclusion is consistent with common law authority. (See, more recently, e.g., Barrett v Coroner's Court of South Australia [2010] SASCFC 70, applying Re [sic] Iby (2005) 63 NSWLR 278). Special leave to appeal was refused by the High Court in Barrett (Barrett v Coroner's Court of South Australia [2011] HCATrans 166).”
In order to have a consistent meaning of the word “child” in the Family Law Act 1975 (Cth) I would have to be of the clear view that the first instance decisions I have just discussed were wrongly decided.
In Brown v Brown at the time the matter was before the High Court a child had in fact been born. What was unwritten in their Honours’ reasons was that any order made for child maintenance in relation to the child that was in utero was an order that only had effect once the child was born.[9] Looked at in that way, their Honours’ approach would be consistent with the common law notion in a number of areas of the law that a foetus or embryo can be treated as a person if there is a benefit that that person obtains once born.
[9] Section 67B(a) of the Act allows a pregnant mother to make an application for maintenance for herself for child birth expenses. If a child is stillborn or dies and the death is related to the birth, the reasonable expenses of the child’s funeral are covered. These however are expenses paid to the mother and are not otherwise covered by s 66E of the Act which precludes the making of a child maintenance order if an application could be properly made at that time by the applicant under the Child Support (Assessment) Act1989 (Cth) for the respondent to be assessed in respect of the costs of the child.
In tort law it is clear that an unborn child may possess rights. The unborn child is deemed to be a “person” where the right is for his or her benefit, so that if he or she survives birth, he or she is entitled to recover compensation for damage caused by a breach of duty by a defendant, notwithstanding that the child was unborn at the time the breach occurred (Watt v Rama [1972] VR 353[10]).
[10] A case where a claim in negligence was brought by a child who was born with brain damage and epilepsy after her mother was in a motor vehicle accident caused by the negligence of another driver.
In succession law, a child en ventre sa mère has a contingent interest dependent upon birth. Even a frozen embryo can be taken to be an existing person. In In Re the estate of the late K (1996) 5 Tas R 365, a couple who wished to have children entered into an in-vitro fertilisation program. One child was born. It was the intention of the couple to have another child. Two other embryos that were produced were frozen. The father died intestate. It was held that “a child, being the product of his father’s semen and mother’s ovum, implanted into the mother’s womb subsequent to the death of his father is, upon birth, entitled to a right of inheritance afforded by law”.
In trust law, the interests of an unborn child can be protected. In Yunghanns v Candoora No. 19 Pty Ltd [1999] VSC 524, the trustee would have been able to amend the trust deed in a way that would exclude the unborn child from having rights in the trust once born. The plaintiff was allowed to commence proceedings on behalf of his unborn child. The court granted an interlocutory injunction to protect contingent rights of an unborn child who, if born, would have rights under the family trust.
As can be seen those areas of the law where a legal fiction exists to treat a child en ventre sa mère as a living child, the fiction does not operate unless it is invoked to provide a benefit to the child once born.
Notwithstanding Lindenmayer J’s reasoning in Diessel, it would have been possible to have considered making a declaration that proper arrangements in all the circumstances had been made for the care, welfare and development of the child in anticipation of that child being born. Such an interpretation would have been consistent with the notation that a declaration could be made for the benefit of the child once born.
It may also have been possible in the abortion cases to argue that there was a jurisdictional basis to be found in s 68B(1)(a) of the Act for granting an injunction for the protection of the child,[11] because the ability to be born was a benefit to the foetus. The difficulty with any such argument is the law in the abortion cases has developed in a different way to the way the law has developed in tort, succession and trust law.
[11] It should be remembered that Lindenmayer J in In the marriage of F and F actually did find that s 114(1) of the Act provided power to grant the injunction sought. He went on to set out reasons why as a matter of discretion, that power should not be exercised in that case.
As I have already mentioned, Lindenmayer J in In the marriage of F and F observed that by way of obiter Gibbs CJ in Attorney-General (QLD) (Ex rel Kerr) v T (1983) 46 ALR 275 (a case in which an injunction was sought from a State court to prevent an abortion) said:
The second argument is that an unborn child is to be regarded as a person whose existence can be protected by the courts. As at present advised, I would agree with the judgment of Sir George Baker P in Paton v BPAS Trustees [1979] 1 QB 276 at 279, that a foetus has no right of its own until it is born and has a separate existence from its mother.
Consistent with this view, in criminal and coronial law, the “born alive” rule holds that “for a foetus to achieve legal personhood, the infant must have been born alive”.[12] The “born alive” rule provides that a newborn baby is a person within the law when it is fully extruded from its mother (whether or not the umbilical cord has been cut or the placenta is attached) and living by virtue of the functioning of its own organs with or without medical stimulus or assistance (see R v Iby [2005] NSWCCA 178).[13]
[12] Barrett v Coroner’s Court of South Australia [2010] SASCFC 70
[13] In New South Wales, the destruction of a foetus (other than in the course of a medical procedure) constitutes grievous bodily harm to the mother (not to the foetus), regardless of whether the mother suffered any harm (see s 4 Crimes Act 1900 (NSW)).
Whether a child needs to be born is dealt with differently in other pieces of legislation.
In the Child Support (Assessment) Act1989 (Cth), although the word “child” is not defined, the child support scheme only applies to children who are born.[14]
[14] See ss 19, 20(1)(a), 21, 24(1)(a)(i) Child Support (Assessment) Act 1989 (Cth).
Under current Commonwealth legislation, a stillborn foetus of more than 20 weeks gestation qualifies the mother to claim the Commonwealth baby bonus.[15]
[15] See s 36 A New Tax System (Family Assistance) Act 1999 (Cth) and s 3 (the definition of “stillborn child”).
There is a temptation to import a meretricious symmetry into the law[16], so that there is a consistent approach taken to what the word “child” means through the Act. That however, will not be possible. Justice Lindenmayer in Diessel agreed with Bagnall J in the English decision of A v A (family: unborn child) [1974] 1 All ER 755 that a “potential child en ventre sa mère” is not to be treated as a “child” “for all the purposes of matrimonial legislation”. I accept in conclusion that in the Act as currently written, the word “child” can have different meanings in different parts of the Act.
[16] To use the words of Fullagar J in Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237 at 285.
Finally then, turning to the meaning of “child” in s 90SB(b) of the Act. Section 90SB contains four gateway tests. Subsections (a), (c) and (d) in s 90SB focus upon how significant features of the de facto relationship have to be before jurisdiction is conferred upon a court exercising jurisdiction under the Act to, amongst other things, alter the property of persons living in a de facto relationship. It cannot be said that the use of the word “child” in s 90SB(b) is about conferring a benefit on the child once born. It is about allowing the applicant to pass through a gateway which would allow her to make a claim under s 90SM for alteration of property.
Whilst it is true that an order altering property may have an indirect benefit for a child once born, that benefit is insufficient for me to conclude that the type of test applied in the law of tort, succession and trusts should be adopted when interpreting the word “child” in s 90SB(b) of the Act. Whilst it is also true that if the gateway test is met, then circumstances in relation to the child once born are relevant,[17] there is nothing in the explanatory memorandum that would indicate that the gateway test in s 90SB(b) was framed with the benefit of an unborn child in mind.
[17] Pursuant to s 90SM(4)(c) and (e) of the Act and those relevant subsections under s 90SF(3) of the Act, particularly sub-s (c), (d)(ii), and (l).
Given that I find that s 90SB(b) of the Act is not about conferring a benefit on a child once born, I find that the words “child” in that section cannot mean a “child” yet to be born.
Were there “stillbirths” in this case?
Counsel for the applicant argues that emotionally, psychologically and in terms of the definitions used in the Act, what happened in this case were two stillborn births, which should be considered to be births.
The definition of “child” in Part VII is extended to include “a stillborn child”. Although the explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) said the extended definition was to have “generic application”, the extended definition of “child” to include “stillborn child” only applied in relation to proceedings under Part VII of the Act.[18] Given that limitation, I would be hesitant to extend the definition to apply to the whole of the Act, even though the definition is not expressed in exclusive terms.
[18] The extended definition which is limited to Part VII would allow, for example, parenting orders to be made about the name or funeral arrangements for a stillborn child.
There is a more general definition of “birth” in s 4(1) of the Act. It states that “birth” “includes stillbirth” but the word “birth” or “born” is not used in s 90SB(b) of the Act.
Even if the definition of “stillborn child” was extended to s 90SB(b), it would not be possible to find on the facts of this case that there was a stillbirth.
There is no definition of stillbirth in the Act.
A “stillborn child” is defined in the Births, Deaths and Marriages Registration Act 1995 (NSW) as:
a child that exhibits no sign of respiration or heartbeat, or other sign of life, after birth and that:
(a) is of at least 20 weeks’ gestation, or
(b) if it cannot be reliably established whether the period of gestation is more or less than 20 weeks, has a body mass of at least 400 grams at birth.[19]
[19] Subparagraphs (a) and (b) are replicated in the definition of an “unborn child” in the Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013 (NSW). In its current form, the Bill seeks to introduce in New South Wales a range of criminal offences of intentionally or recklessly causing grievous bodily harm to a foetus (other than in the course of a medical procedure). The new proposed amendments do not apply to murder or manslaughter. The definition in this context has attracted criticism from both the medical and legal professions and at the time of delivery of this judgment the future passage of the Bill is uncertain.
In this case, the foetal demise was at approximately ten weeks’ gestation and the termination was at approximately eight weeks’ gestation.
I am unable to find on the facts of this case that either the foetal demise or the termination could be described as a stillbirth.
Conclusion about the definition of “child”
In this case I find that neither the foetus lost through miscarriage, nor the embryo terminated by the applicant, was a child for the purpose of s 90SB(b) of the Act.
Does the child have to be alive at the time of the order?
There is a second reason why the applicant’s submissions in respect of s 90SB(b) of the Act must fail. That reason arises out of the tense used in s 90SB(b) of the Act. In order to understand why, it is useful to set out the whole text used in s 90SB (with emphasis on the tenses used in each subsection).
Section 90SB of the Act has been set out above but for convenience I repeat it here:
A court may make an order under section … 90SM, … 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;
(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.
Note: For child of a de facto relationship, see section 90RB. [emphasis added]
The verbs in section 90SB are expressed in both present and past tense. The word “is” in s 90SB(a) of the Act is used in circumstances where it clearly is not referrable to the date of the order that is being made but rather to the past period or periods of a de facto relationship, the duration of which, in circumstances where the parties have separated, will not change over time.
The use of the word “made” in s 90SB(c)(i) of the Act refers to past contributions.
The language “is or was” in s 90SB(d) of the Act refers to the past or current registration status of the relationship.
A literal interpretation of the word “is” in s 90SB(b) of the Act would lead to a conclusion that a child must be alive at the date of the order.
Having regard to the maxim of construction expressio unius est exclusio alterius, I find that Parliament’s failure to use the words “is or was” in s 90SB(b) indicates that Parliament intended the s 90SB(b) gateway to refer to a living child at the date of the order.
Even if the foetus or the embryo were “children” for the purposes of s 90SB of the Act, in the circumstances of this case they do not currently exist.
I acknowledge this interpretation leads to the circumstance where the death of a child born to the parties that were in a de facto relationship (which does not meet any of the other tests in s 90SB) extinguishes the possibility of a claim being made by a party under the Act. It also seems that an applicant who had a valid application at the time the application was filed ceases to have any right to have an order made in circumstances where a child of the relationship died between the time of the application and the time of the order (if s 90SB(b) of the Act is the only gateway relied upon).
WHETHER OR NOT THE APPLICANT MADE SUBSTANTIAL CONTRIBUTIONS OF THE KIND REFERRED TO IN PARAGRAPH 90SM(4)(a), (b) or (c) OF THE ACT
Meaning of the word “substantial”
In V and K [2005] FCWA 80, when discussing the equivalent section under the Family Law Act 1997 (WA), Holden CJ said:
18 There is little assistance in the authorities as to what will amount to a "substantial" contribution. It is a term that appears in State de facto property legislation (see, for example, De Facto Relationships Act, 1984 and the Property Law Act 1958 (Vic)). I have been unable to locate any cases decided under State legislation where what may be termed usual contributions as homemaker during a short relationship have been regarded as substantial.
19 As the learned authors of the CCH De Facto Relationships commentary observe, it will be a matter of degree, in a relationship which lasts a short time when a "normal" spousal contribution becomes "substantial".
20 Mallet and Mallet [1984] HCA 21; (1984) FLC 91-507 requires that contributions as homemaker and parent be assessed (not merely in a token way, but in terms of its true worth to the building up of the assets. In that case, members of the High Court adopted the language of the Full Court of the Family Court in Rolfe and Rolfe (1979) FLC 90-269 that contributions to home and family should be recognised not in a token, but in a substantial way.
21 Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependant children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, s 205X(b)(ii) [Family Court Act 1997 (WA)] is aimed at more exceptional circumstances where serious injustice may be caused by the application of sub-section (i).
His Honour’s view that substantial means something more than usual or ordinary has been followed in a number of cases (see Miller & Trent [2011] FMCAfam 324 (Coates FM, as Judge Coates then was); Wall & Mitchell [2012] FamCA 114 (Johnston J); Aslan v Al Nahyan [2012] NSWSC 57 (Black J); Jacob & Lawrence [2013] FamCA 188 (Macmillan J)).
Other definitions that have been given to the word “substantial” include “of ample or considerable amount, quality or dimensions” (Black J in Aslan v Al Nahyan); “considerable or large” or “not illusory” (Wentworth v Wentworth (1995) 37 NSWLR 703 at 752).
It is worth noting that within a particular context whether something is substantial is a matter of “fact and degree” (see In the marriage of Simpson and Hamlin (1984) FLC 91-576), and care must be taken to avoid placing any “gloss” on the word “substantial” as used in legislation (see a comment in Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCAFC 28 at [29] in relation to the word “exceptional”).
Has the applicant made a substantial financial contribution (s 90SM(4)(a) of the Act) or a substantial non-financial contribution (s 90SM(4)(b) of the Act) to the acquisition, conservation or improvement of property?
Sections 90SM(4)(a) and (b) of the Act state that when considering making an order to alter property, the court must take into account the financial and non-financial contributions made directly or indirectly to the acquisition, conservation or improvement of property.
The applicant’s main claim that she made a contribution to property was that she made direct non-financial contributions to the improvement of the respondent’s business assets (in accordance with s 90SM(4)(b) of the Act). I accept the applicant assisted the respondent’s business interests by introducing him to colleagues and discussing business strategies. She provided suggestions and feedback on names for various products, for example “[Product Q]” and “[Product R]”. The respondent implemented her suggestions.
The applicant wrote an email for the respondent to send to Company S senior management in circumstances where Company S (the major shareholder of the respondent’s business) was dissatisfied with the respondent’s management of the business. The letter was well received and helped improve the strained relationship between Company S and the respondent. The applicant participated in meetings in August and September 2009 and revised documents for the respondent’s company. In January and February 2010, she coordinated the production of a promotional video for the respondent’s company. Whilst I accept the applicant’s evidence about what she did in a period of just less than two years, I am unable to conclude she made “substantial” contributions under s 90SM(4)(b) of the Act.
The applicant contends that she financially contributed to the purchase of furniture for the parties’ home. Annexure 38 to the applicant’s affidavit is a copy of her credit card statement for the period 28 March 2009 to 28 April 2009. There are two transactions; $1,185.20 at Freedom on 14 April 2009 and $3,900 at Myer on 19 April 2009. In her affidavit, the applicant says that during April and May 2009 she “put a total of about $25,000 on [her] NAB Visa card for the purchase of furniture, bedding and television screens for the [Suburb A] house.”
The respondent says he repaid these monies to the applicant. He points to his bank statement for the period 17 March 2009 to 15 June 2009 (exhibit 11). That statement includes net transfers with the following descriptions:
20 April – [The applicant’s first name] bed repay $1,185.00
20 April – [The applicant’s first name] TV repay $3,900.00
11 May – [The applicant’s first name] furnit purch $8,000.00
11 May – [An abbreviation of the applicant’s first name] Furn Pur 2 $7,000.00
The applicant asserts the parties undertook joint investment in relation to shares. Counsel for the respondent submitted that the respondent wholly funded the share purchases. I accept that even though the applicant may have viewed the purchase of shares as a joint venture, she did not financially contribute to that venture. The applicant’s direct financial contributions to property, pursuant to s 90SM(4)(a) of the Act, could not be considered substantial.
Has the applicant made a substantial contribution to the welfare of the family (s 90SM(4)(c) of the Act)?
Section 90SM(4)(c) of the Act states:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
…
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; … [emphasis added]
The relevant wording of s 90SM(4)(c) of the Act is identical to the wording of s 79(4)(c) of the Act. Section 79(4)(c) was inserted into the Act in 1983 to eliminate any argument about whether the contribution of a party as a homemaker or parent had to be connected to a contribution to the acquisition, conservation or improvement of property.
Cases such as In the marriage of G and G (1984) FLC 91-582 and In the marriage of Shaw and Shaw (1989) FLC 92-010 emphasised that an adjustment order, in relation to an asset, may be made on the basis of a party’s contribution to the welfare of the family even though those contributions had no connection with that asset.
Importantly in this case, the word “any” in s 90SM(4)(c) of the Act excludes any argument that Parliament intended the court to only take into account contributions by a partner in a de facto relationship to the welfare of the family if there were children. The word “family” in s 90SM(4)(c) clearly includes a family constituted by an childless couple.
As Nygh J said in In the marriage of G and G at page 79,694:
The reference to a “family” in para.(c) is not a term of art referring only to a marital cohabitation, but can include any unit of persons who are cohabiting whether in or out of marriage.
In In the marriage of Mehmet and Mehmet (No. 2) (1987) FLC 91-801, the Full Court considered the phrase in s 79(4)(c) of the Act; “welfare of the family constituted by the parties to the marriage and any children of the marriage”. Justice Nygh[20] considered the phrase must be seen within the context of the following words in that subsection (“including any contribution in the capacity of homemaker or parent”) and that those words indicated that a contribution on behalf of “the welfare of the family” would be “the contribution made by a spouse to another spouse or the contribution made by a mother or father towards his or her children”.
[20] Strauss J explicitly and Kay J implicitly agreed.
A contribution made by one party in a childless de facto relationship for the welfare of both parties, is also a contribution to “the welfare of the family”.
In the context of the “gateway” argument, the word “substantial” needs to be judged within the confines of a period of less than two years (otherwise there will be no controversy in relation to the gateway argument as a de facto relationship of at least two years satisfies s 90SB(a) of the Act).
In this case, the applicant has made a contribution to the welfare of the family in a number of ways. They include contributions in the role of homemaker and loving partner. I accept the applicant “did the laundry, washed the dishes and did the cooking, cleaning and [she] walked and fed the dog…everyday” and that when the parties moved into the Suburb A house she “did a lot of the work organising and cleaning in relation to the move, including organising furniture delivery, ordering furniture, organising removal and cleaning, internet account, contacting pest control agencies, assembling two king bed bases, attending to garage repair and organising a gardener.” The applicant contacted Telstra, AGL and Austar to change the respondent’s address. She organised the housewarming party. The applicant researched websites in relation to the respondent’s headache condition, and researched orthopaedic surgeons for him to consult. In 2010, when the respondent had to take time off work because of ongoing headaches, the applicant served food and soup to him in bed. The applicant conceded in cross examination that the respondent employed a cleaner and gardener.
If this was the extent of the applicant’s contributions to the welfare of the family, I would not find them to be unusual or out of the ordinary. But it was not the extent of those contributions. In this case, the applicant relies upon more than “domestic duties”. In oral argument, counsel for the applicant made it plain that he relied upon the applicant’s contributions under s 90SM(4)(c) as “an intended parent”.
I accept that in this case, the applicant’s contributions to the welfare of the family also include her participating with the respondent in attempting to enlarge their family by having a child. The extent of those contributions have been already described in detail but include the applicant committing to carry a child to term on two occasions; being involved in medical consultations; her physical discomfort during the two pregnancies and the physical effects and emotional and psychological pain arising from the foetal demise and from the termination of the second pregnancy.
Although the conduct of the respondent, particularly in respect of the circumstances that led to the termination, was a particular focus of the evidence and cross examination, it was not suggested by counsel for the applicant that the respondent’s conduct made the applicant’s contributions to the welfare of the family significantly more arduous than they ought to have been or that the respondent’s conduct had a significant adverse impact on the applicant’s contributions to the welfare of the family (in the way described in Kennon v Kennon (1997) FLC 92-757). The applicant would not be precluded from advancing arguments to that effect at the final hearing. Evidence about the respondent’s conduct was admitted without objection simply to put in context the nature of the contributions she made to the welfare of the family constituted by herself and the respondent and I do not otherwise take the respondent’s conduct into account when considering the question as to whether or not the applicant’s contributions were substantial.
I acknowledge that minds might differ about what factual circumstances might satisfy the requirement that there be a substantial contribution to the welfare of the family. In exercising the discretion to make a declaration, the court must consider the facts of a particular case. For example, Macmillan J in Jacob & Lawrence decided that on the facts of that case that a woman who had forgone employment and given up the security of a home had not made contributions to the welfare of the family which were “substantial”. The authors of the CCH Australian De Facto Relationships commentary suggest at 8-195, in the context of the Property (Relationships) Act 1984 (NSW) (which is in similar terms, as I discuss below), “one example of a contribution to the welfare of the family outside the homemaker/parenting role may be in the nursing of an injured or sick member of the family.”
Based upon the facts detailed above, the applicant’s contributions to the welfare of the family in attempting to have a child with the respondent lifts her overall contributions to the welfare of the family out of the ordinary. For the purpose of s 90SM(4)(c) of the Act, I find that the applicant’s contribution to the welfare of the family constituted by the respondent and herself when evaluated within the context of their relationship and their mutual expectations was substantial.
The second limb of s 90SB(c) of the Act
Section 90SB(c)(ii) of the Act creates a second requirement in relation to the issue of substantial contributions and that is “a failure to make the order or declaration would result in serious injustice to the applicant”. The gateway test, which requires the court to find that failure to make an order would result in serious injustice, is one which necessitates that the Court takes a “broad brush” approach.[21] This is so because a precise result cannot be known until there is full testing of the evidence at a final hearing.
[21] See Street v Bell (1993) DFC 95-144
The applicant comes to this Court as a result of a threat by the respondent to sue her in a state court for $169,733.02. The respondent says this is an amount the applicant owes to him (including interest at a rate of 10 per cent). Annexure C to the applicant’s affidavit sworn 7 June 2013 is a letter dated 22 September 2011 from the respondent’s lawyers. The letter says, inter alia, “if payment is not received by 4pm on Friday, 7 October 2011, we are instructed to commence proceedings for recovery in the Local Court of New South Wales without further notice to you.”
As already mentioned, although there is no power to make a declaration about serious injustice I am able on the evidence to make a finding as to whether or not a failure to make an order would result in serious injustice to the applicant.
It would be problematic for the applicant to attempt in a NSW court to establish a claim under the Property (Relationships) Act 1984 (NSW) (“PRA”).
The gateway provisions under the PRA are similar to but, importantly, not identical to those in s 90SB of the Act.
Section 17 PRA is in the following terms:
(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years.
(2) A court may make an order under this Part where it is satisfied:
(a) that there is a child of the parties to the application, or
(b) that the applicant:
(i) has made substantial contributions of the kind referred to in section 20 (1) (a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or
(ii) has the care and control of a child of the respondent,
and that the failure to make the order would result in serious injustice to the applicant.
I have already found that the parties were in a de facto relationship for less than 2 years. A de facto relationship is a “domestic relationship” for the purposes of the PRA (see s 5(a) PRA).
Section 5(3) PRA defines a “child of the parties” as including a “child born as a result of sexual relations between the parties”. I have found no child was “born” as a result of sexual relations between the parties. The applicant does not have care and control of any child of the respondent (s 17(b)(ii) PRA).
The only gateway available to the applicant would be s 17(b)(i) PRA, which refers to s 20(1) PRA.
Section 20(1) PRA is in the following terms:
(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:
(i) a child of the parties,
(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.
I have found that the applicant has not made substantial financial or non-financial contributions.
It is s 20(b) PRA which is drafted in words which are different to those in s 90SM(c) of the Act. The PRA specifically excludes childless couples from being defined as a “family”.
In Wilcock v Sain (1986) DFC 95-040, Young J when referring to s 20(1)(b) PRA, said at page 75,454:
A family just cannot be created by two people, not related to each other, living together and it would seem to me that one must find a series of related people living together in a group which would be broadly recognisable by the community as being a family and this has been the test in the English housing cases; see e.g. Holm v Royal Borough of Kensington and Chelsea (1968) 1 Q.B. 646. Thus the homemaker contribution to be recognised in this case must be a contribution not to be property, not to the relationship, but to the welfare of the other de facto partner. Of course, where the contribution is to property it may be that it can be classified as a non-financial contribution under sec. 20(1)(a).
Given this interpretation of s 20(1)(b) PRA, to take advantage of the State law, the applicant would need to argue that the contributions she made in attempting to have a child with the respondent was a contribution to his welfare. That is a more difficult argument than one which asserts that the contribution was to the welfare of the family constituted by them as a childless couple. The applicant would have to pass through a smaller “eye of a needle” than the one I have found she can pass through. It is not clear she would be able to successfully argue such a case in the State court.
For reasons which I now set out, it is the case that, if the applicant successfully invokes the provisions of Part VIIIAB of the Act, then State law is excluded and the ability of the respondent to sue the applicant for a debt in a State court is abrogated.
Section 39A(5) of the Act is in the following terms:
(5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act.
The definition of a “de facto financial cause” can be found in s 4 of the Act. It includes:
de facto financial cause means:
…
(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;
…
I note section 90RC(2) is in the following terms:
(2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:
(a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and
(b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).
Proceedings in respect of the debt the respondent alleges the applicant owes him also fall under the definition of “financial matters” (see s 4 of the Act).
I am of the view that s 39A(5) and s 90RC(2) of the Act are an express intention by the legislature to enact a law that, if enlivened, “completely, exhaustively, or exclusively” deals with financial matters relating to these parties arising out of the breakdown of their de facto relationship (see Ex parte McLean (1930) 43 CLR 472 at 482 per Dixon J and Victoria v Commonwealth (1937) 58 CLR 618 at 630). To the extent that State law purports to legislate on a field that the Commonwealth “evince[s] a clear intention to be the whole law on the matter”, section 109 of the Constitution would render that State law inoperative (see Barwick CJ in Miller v Miller (1978) 141 CLR 269).
If the applicant failed to enliven the jurisdiction of this court, the respondent would not be barred from suing the applicant for a debt in a State court, in circumstances where the State court could largely not take into account the history of the parties particularly their efforts to have a child together.
On the evidence that I have, there is a substantial financial disparity between the parties in the respondent’s favour. The respondent is yet to file a financial statement but he said in oral evidence he estimated his net wealth to be $4 million to $5 million.
I find that the applicant’s ability to rely in this court firstly upon all her contributions including those contributions to the welfare of the family which I have found to be substantial and secondly, seek an adjustment pursuant to s 90SM(4)(e) (that is relying upon the matters referred to in s 90SF(3) of the Act) means that the result she will get in this court is significantly better than if those matter are not taken into account. I consequently find there would be a serious injustice if she was precluded from obtaining the order under s 90SM of the Act.
I observe of course that I am purely dealing with “substantial contribution” and “serious injustice” in the context of the gateway requirement in s 90SB(c)(ii) of the Act. What adjustment is made to existing assets and liabilities (including the liability the respondent asserts is owed to him by the applicant) is another question. I do not say anything specific about what the final outcome might be. That is a matter for the trial judge if the matter does not otherwise resolve. I will order that the docket registrar list this matter for the next appropriate court event.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 September 2013.
Associate:
Date: 30.9.2013
SCHEDULE 1
The applicant relied upon:
1.1.Initiating Application filed 16 November 2012
1.2.Her affidavit sworn 19 May 2013
1.3.Her affidavit sworn 7 June 2013
1.4.Her financial statement filed 16 November 2012
1.5.Affidavit of Mr U sworn 16 May 2013
1.6.Affidavit of Ms V sworn 16 May 2013
1.7.Affidavit of Mr F sworn 15 May 2013
The respondent relied upon:
2.1.Response to Initiating Application filed 13 February 2012
2.2.His affidavit sworn 2 May 2013
2.3.Affidavit of Ms Hutton sworn 17 April 2013
2.4.Affidavit of Ms T sworn 30 April 2013
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