Luk and Choy
[2016] FamCA 534
•30 June 2016
FAMILY COURT OF AUSTRALIA
| LUK & CHOY | [2016] FamCA 534 |
| FAMILY LAW – JURISDICTION - De Facto – Where the applicant sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) in relation to property settlement proceedings, that a de facto relationship existed between the applicant and the respondent – Where the proceedings were commenced in the Supreme Court of New South Wales and they were transferred to this Court – Where the parties were in a relationship for less than two years – Where English is not the first language of each of the parties – Where the affidavit relied upon by the respondent had not been verified by him prior to affirming it – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Whether the parties were living together on a “genuine domestic basis” – Where the parties engaged in sexual relations – Where the parties purchased a property together as joint tenants – Where there are no children of the parties’ relationship –Where the nature of the parties’ relationship does not meet the statutory definition – Application seeking declaration for a de facto relationship dismissed. |
| Family Law Act 1975 (Cth) – ss 4AA, 90RD, 90SB, 90SK, 90SM Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) De Facto Relationships Act 1984 (NSW) Family Law Rules 2004 (Cth) r 15.10 |
| Barry and Dalrymple [2010] FamCA 1271 Harriott & Arena [2016] FamCAFC 69 Redmond & Mullins [2015] FamCAFC 69 Roy v Sturgeon (1986) 11 Fam LR 271 V and K [2005] FCWA 80 |
| APPLICANT: | Ms Luk |
| RESPONDENT: | Mr Choy |
| FILE NUMBER: | SYC | 246 | of | 2015 |
| DATE DELIVERED: | 30 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 26 – 27 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Morahan |
| SOLICITOR FOR THE APPLICANT: | Choy Shan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Cohen |
| SOLICITOR FOR THE RESPONDENT: | Ren Zhou Lawyers |
Orders
The Application filed 18 November 2015 is dismissed.
For the purposes of proceedings pursuant to s 90SM of the Family Law Act 1975, the Court declares pursuant to s 90RD that a de facto relationship never existed between the applicant and the respondent.
The proceedings are adjourned to a date to be fixed in relation to the respondent’s application for a determination by sale of the parties’ joint ownership of a property pursuant to s 66G of the Conveyancing Act 1919 (NSW).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Luk & Choy 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 246 of 2015
| Ms Luk |
Applicant
And
| Mr Choy |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Luk (“the applicant”) and Mr Choy (“the respondent”) were in a relationship from 15 July 2012 to 7 February 2014. By her Application filed 18 November 2015, the applicant sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties’ relationship was a de facto relationship of a kind that attracts the jurisdiction of this Court to make orders for settlement of property.
The respondent, by his Response filed 17 December 2015 sought a declaration that the relationship was not of a kind that attracts that jurisdiction and a declaration that a de facto relationship never existed between the parties. In the alternative, the respondent sought other orders and declarations.
The onus is on the applicant to establish that a de facto relationship, within the meaning in s 4AA of the Act, existed between the parties.
Consequential Proceedings
In the event that the declaration sought by the applicant is made, she seeks that the proceedings be listed for a property settlement hearing.
There are also proceedings before the Court for a determination by sale of the parties’ joint ownership of a property at Suburb B pursuant to s 66G of the Conveyancing Act 1919 (NSW). Those proceedings were commenced by the respondent in the Supreme Court of New South Wales and were transferred to this Court. In the event that the applicant is not successful in her application for a declaration under s 90RD of the Act, directions will be required for the hearing of those proceedings.
Written Evidence
The applicant relied on:
· Initiating Application filed 18 November 2015;
· Affidavit of Ms Luk (the applicant) affirmed 5 November 2015;
· Affidavit of Ms Luk (the applicant) affirmed 19 May 2016;
· Affidavit of Mr C affirmed 16 May 2016; and
· Financial Statement of the Applicant affirmed 5 November 2015
The respondent relied on:
· Response to Initiating Application filed 17 December 2015;
· Affidavit of Mr Choy (the respondent) sworn 30 August 2015; and
· Affidavit of Mr D affirmed 27 February 2016.
The Hearing
The matter was listed for hearing over two days commencing 26 May 2016 with respect to the de facto threshold issue. Judgment was reserved on 27 May 2016.
The Parties
The applicant was born in 1980 and at the time of the hearing she was 36 years of age. The respondent was born in 1978 and at the time of the hearing he was 38 years of age.
In 2007 the applicant came to Australia on a student visa. She completed a Master’s degree in 2009 and continues to reside in Australia. She now has permanent residence status in Australia. The respondent is a resident of China.
There are no children of the parties’ relationship.
Background Facts
In approximately May or June of 2012, the parties met through a dating website and commenced communicating. At this time and at all relevant times, the applicant lived in Australia and the respondent lived in China.
On 15 July 2012 the respondent travelled to Sydney and the parties met in person.
On 16 July 2012 the parties were sexually intimate for the first time.
While the respondent was in Sydney at that time he opened a bank account with the assistance of the applicant. He also purchased for the applicant a watch for approximately $7,450 and a handbag for approximately $3,360.
On 28 July 2012 the respondent returned to China.
On 25 September 2012 the respondent travelled to Sydney.
During this stay, the parties decided to purchase a property at E Street, Suburb B (“the Suburb B property”) off the plan, for the sum of $794,000. The respondent paid $3,000 as a holding deposit. The respondent said that the applicant agreed to fund half the purchase price. The applicant made arrangements for a mortgage to the Westpac Bank in the sum of $500,000.
On 9 October 2012 the parties both attended an appointment with a conveyancer. The conveyancer was employed by the firm of solicitors that represent the respondent in these proceedings. The respondent obtained a bank cheque for $76,400 as the deposit for the property.
On 11 October 2012 the respondent returned to China.
On 12 October 2012 contracts were exchanged on the Suburb B property.
In February 2013 the applicant travelled to City F, China, to visit her relatives. The respondent attended for approximately four days and stayed in a hotel. During this stay, the applicant deposed that the parties agreed to get engaged. The respondent purchased the applicant an engagement ring. It is the respondent’s evidence that he was pressured into buying the ring. At a family dinner, the applicant’s uncle announced the parties’ engagement to her extended family. The respondent said that this announcement was made without consultation with him.
After attending the applicant’s family celebrations in City F, the parties went on to visit the respondent’s province of G. They stayed there for eight days. During that visit the respondent introduced the applicant to one of his friends, a former work colleague.
The respondent deposed that at that time, the applicant asked him to sign a document relating to a mortgage in the sum of $500,000 that she arranged with the Westpac Bank for the purchase of the Suburb B property. The respondent said that he signed it on the basis that the applicant would pay the principal and the interest repayments of that loan.
In March 2013 the applicant undertook negotiations with the solicitor acting for the vendor of the Suburb B property, to fix a flooring issue.
On 19 April 2013 the respondent returned to Sydney as the property was due to settle. The respondent paid a further $248,839 towards the purchase price of the property. The parties continued to be sexually intimate.
The purchase of the property settled on 23 April 2013.
Between 23 April and 10 August 2013 the applicant purchased furniture for the property in the sum of $33,411.04.
The respondent returned to China on 28 April 2013.
In May 2013 the applicant moved into the Suburb B property.
In June 2013 the applicant undertook negotiations with the building manager of the Suburb B property to have some windows fixed.
The applicant deposed that in June 2013 she discovered that the respondent was using another dating website.
From 11 to 23 August 2013 the respondent spent time in Sydney, staying in the Suburb B property with the applicant.
From 17 to 20 September 2013 the respondent spent time in Sydney. There is no evidence about where the respondent stayed at this time.
On 23 January 2014 the respondent returned to Sydney and stayed in the Suburb B property with the applicant.
On 7 February 2014 the parties discontinued their relationship. The applicant deposed that on the following day, the respondent physically prevented her from leaving the house. She said that she hid in the toilet, that he kicked the door in, gripped her neck and attempted to force her to give him the contract of purchase for the property. The respondent said he left the property when he was evicted by the applicant. Neither party was cross-examined about those circumstances.
On 9 February 2014 the applicant’s mother came to Sydney.
On 21 February 2014 the respondent filed a Statement of Claim in the Equity Division of the Supreme Court of New South Wales (case number …) seeking a sale of the property and equitable distribution of the proceeds of the sale.
On 22 February 2014 the respondent returned to China.
On 21 July 2014 the applicant filed a Motion in the Supreme Court proceedings alleging that she lived in a de facto relationship with the respondent and seeking a transfer to the Family Court of Australia.
On 8 August 2014 Justice Darke of the Supreme Court transferred the parties’ proceedings to this Court pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). For reasons that are not apparent, the proceedings came before a judge of the Federal Circuit Court of Australia on 17 April 2015. That judge transferred the proceedings to this Court, noting the terms of the transfer order pronounced by the Supreme Court.
The applicant deposed that for the period until April 2016, she had paid a total of $73,083.52 in mortgage payments. In addition to this, for the period until the first quarter of 2016, she had paid utility bills of approximately $6,217 and strata costs of $13,360.52. She had paid council rates for the period up to August 2016 of $2,815.22.
On 13 April 2016 orders were made to list the hearing over two days commencing 26 May 2016 in relation to the existence of a de facto relationship as a separate issue.
Credit
English is not the first language of the applicant and the respondent has little or no facility in English. Each of the parties was assisted during the trial by a Mandarin interpreter. There were difficulties of communication in the course of cross-examination of both parties, but particularly with the respondent. On several occasions it was asserted that a concept could not readily be rendered from English to Mandarin or vice versa. Miscommunication is common enough in cross-examination in English, particularly where the witness is from another cultural background. Those problems are magnified where there is no common language. Great care is needed in those circumstances, in making findings of credit.
In seeking to understand the case and the evidence of each of the parties, there were particular problems of nuance. It is likely that cultural differences exist between traditions for the parties and those for the broad community in Australia. References to the applicant as the respondent’s “wife” and “girlfriend” were mistakenly transposed in the translation of the respondent’s cross-examination. The respondent said that he was variously “tricked” or “trapped” into buying the applicant a $AUD30,000 engagement ring while the parties were visiting the applicant’s family in City F in China. The terms were used by the respondent as if he acted under duress or his will was overborn. The fact is that the respondent claims that the applicant cried at a jewellery store. He then bought and allowed the applicant to retain, a $AUD30,000 ring. Without wanting to trivialise the respondent’s disquiet about the circumstances surrounding the purchase of the ring, for the purposes of these proceedings, those facts reveal that he bought the ring of his own volition. When two people negotiate about a future course of conduct, it is highly likely that one will be more eager or committed to the course than the other. However, if the respondent did not want to buy the ring then nothing said or done by the applicant of the nature of her conduct as described by him on the occasion in question, forced him to make the purchase against his will.
All of that said, a fundamental problem arose with the respondent’s written evidence. During cross-examination, the respondent said that he understands some English words but does not otherwise speak or understand English. The respondent relied on one affidavit affirmed by him. It was executed by him on 30 August 2015. The jurat of the affidavit does not bear a certificate that the affidavit was translated into Mandarin for the deponent. Indeed, the respondent confirmed that the affidavit was never read to him in Mandarin. He said that parts of the affidavit were summarised for him by an assistant of his solicitor. The necessary assumption is that the summary was in Mandarin. Understandably, the respondent could not say which parts of the affidavit were summarised for him.
No attempt was made to remedy the problem created by that evidence, nor to have the respondent update, correct or adopt the affidavit. The affidavit is wrong in some aspects. When the respondent was first sworn in, he stated that he had not been in paid employment since May 2014. In paragraph 3 of the affidavit he deposed that he is a general manager. In cross-examination he confirmed his oral evidence and explained that he no longer holds the described position and, having left the job in May 2014, did not hold that position when he affirmed the affidavit. When pressed about the error in his affidavit, the respondent said that the affidavit was based on an affidavit he executed in February 2014, and which was filed in proceedings commenced by him against the applicant in the Supreme Court of New South Wales by Statement of Claim filed 21 February 2014.
Rule 15.10 of the Family Law Rules 2004 (Cth) deals with the swearing of affidavits and provides among other matters:
(2) If a deponent does not have an adequate command of English:
(a)a translation of the affidavit and oath must be read or given in writing to the deponent in a language that the deponent understands; and
(b)the translator must certify that the affidavit has been translated.
Therefore, in oral evidence the respondent acknowledged that his affidavit is wrong in a material way and that he did not verify the contents of the document when he executed it. Suffice it to say, I cannot rely on the respondent’s affidavit on any issue where there is credible evidence to the contrary. Although revealed at the commencement of the respondent’s cross-examination, it was not until the problem was raised in the course of oral submissions, that learned counsel for the respondent asked for leave to rely on the earlier (Supreme Court) affidavit. The applicant opposed the granting of leave. The application for leave came at a point in the trial, after the close of evidence and during final oral submissions in response. Leave was refused. However, as I reminded learned counsel for the respondent, she had opened her client’s case on the basis that the hearing would proceed without any cross-examination and on submissions only. It was her contention at that time, that the applicant could not succeed on her own case and that there should be no cross-examination.
As it transpired there was cross-examination because the applicant’s counsel wanted to cross-examine the respondent and thereupon the respondent’s counsel indicated that, in those circumstances, she would cross examine the applicant.
Relevant Law
This Court has jurisdiction in relation to financial matters relating to de facto relationships because of Part VIIIAB of the Act. That Part was inserted into the Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009.
The substantive relief claimed by the applicant and for which she seeks a declaration is found in s 90SM. For the purposes of these proceedings s 90SM relevantly provides:
SECT 90SM
Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)either or both of the parties to the de facto relationship; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Note 1: The geographical requirement in section 90SK must be satisfied.
Note 2: The court must be satisfied of at least one of the matters in section 90SB.
.....
As to the two further requirements noted at the conclusion of that section, the sections provide as follows:
FAMILY LAW ACT 1975 - SECT 90SK
Geographical requirement
(1)A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and
(b)that either:
(i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.
(1A)The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
(2)For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship.
(3)If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.
Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.
(4) If:
(a)a Proclamation under subsection (3) is in force; and
(b) a State ceases to be a referring State on a particular day;
the Proclamation is revoked by force of this subsection on and from that day.
(5)If, under subsection (4), a Proclamation under subsection (3) is revoked:
(a)this section has effect as if the revoked Proclamation had not been made; but
(b)the effect of the revoked Proclamation on applications made before the specified day is not affected.
SECT 90SB
When this Division applies--length of relationship etc.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship , see section 90RB.
The immediate relief sought by the applicant is a declaration pursuant to s 90RD of the Act. That section provides:
Declarations about existence of de facto relationships
Subdivision C—Declarations about existence of de facto relationships
90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)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.
90RE Effect of declarations
(1) A section 90RD declaration has effect as a judgment of the court.
(2) For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.
90RF Applying for declarations
Any party to the primary proceedings may apply for a section 90RD declaration.
90RG Geographical requirement
A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.
As to what constitutes a de facto relationship for present purposes, s 4AA of the Act relevantly provides:
4AA De facto relationships
Meaning of de facto relationship
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
As is referred to by Coleman J in Barry and Dalrymple [2010] FamCA 1271 at [227], in Roy v Sturgeon (1986) 11 Fam LR 271, an early case decided pursuant to the provisions of the De Facto Relationships Act 1984 (NSW), Powell J of the Equity Division of the Supreme Court of New South Wales suggested that to dissect the phrase appearing in the New South Wales legislation:
“…living together as a husband and wife on a bona fide domestic basis” into discrete “elements” and then testing the facts of a particular case by reference to set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
I respectfully agree with the further observation of Coleman J in Barry and Dalrymple, that: “Without resorting to dictionary definitions, ‘genuine’ and ‘bon[a] fide’ mean largely the same thing.”
What relevant facts are agreed?
It is common ground that:
a)the applicant is ordinarily resident in New South Wales and she was ordinarily resident there when she commenced these proceedings;
b)whatever its nature, the parties’ relationship endured from 15 July 2012 to 7 February 2014, which is less than two years; and
c)there are no children of the parties’ relationship.
The applicant has met the geographical requirement for a declaration under s 90RD of the Act (s 90RG).
What findings are required?
The question to be answered in these proceedings is whether the parties were in a de facto relationship after 1 March 2009 and if so, for what period/s. It is for the applicant to establish that the de facto relationship between her and the respondent extended or resumed after 1 March 2009.
If the applicant cannot establish that fact, a declaration in the nature of that sought by the respondent will be made and the applicant’s application for leave to file her application under s 90SM of the Act will be dismissed.
If the applicant can establish that fact, a declaration will be made about the duration of the relationship. In that event the applicant can then proceed with her application for leave to bring proceedings pursuant to s 90SM out of time.
Discussion
The Court is to have regard to all the circumstances of the parties’ relationship and decide whether or not they had a relationship as a couple living together on a genuine domestic basis. Those circumstances may include all or any of the s 4AA(2) matters. No particular finding is necessary and the Court is at large to identify those particular matters that seem appropriate in the circumstances of the case. Similarly, the Court is permitted to attach such weight to any matter, as may seem appropriate in the circumstances of the case.
What does the applicant need to establish?
The applicant must establish that:
a)her relationship with the respondent was a de facto relationship as defined in the Act; and
b)she made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(c) a failure to make the declaration would result in serious injustice to her.
I turn to the evidence about the topics set out in s 4AA(2) of the Act.
(a) Duration of the relationship
The duration of the relationship as opposed to its character or import, is agreed. The parties commenced communicating online in approximately May 2012. The relationship in question commenced when they met in person on 15 July 2012 when the respondent travelled to Sydney to see the applicant.
The relationship broke down on 7 February 2014, when the respondent left the Suburb B property.
The dispute is about the nature of the relationship.
(b) The nature and extent of their common residence
It is the contention of the respondent that the parties lived under one roof for 77 nights. There was no challenge to that evidence.
Some of the cohabitation occurred on holidays or in hotels or other accommodation in Sydney. For a total of something like four to five weeks the parties lived at the Suburb B property together.
(c) Whether a sexual relationship exists
It is common ground that the parties had a sexual relationship.
(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
The respondent bought gifts for the applicant, including a watch for approximately $7,450 and a handbag for approximately $3,360. It is common ground that following the joint purchase of the Suburb B property the applicant lived in the property and the respondent joined her there when he was in Australia. The respondent bought the applicant an engagement ring at a cost of something like $AUD30,000.
The conveyancer acting for the parties on the purchase of the Suburb B property spoke Mandarin. When she explained the relevant documents to the parties, the respondent largely left the discussions to the applicant. I take it that he relied on her. The respondent paid all of the initial contribution to the purchase of the property. Both parties signed up to a mortgage to secure their borrowings from the Westpac Bank. The applicant lived in the Suburb B property and she alone paid the mortgage instalments.
The applicant bought furniture for use in the Suburb B property. She paid other outgoings on the property.
The respondent gave the applicant a credit card which she used for a period of time. The parties had an argument about the applicant’s use of the credit card for the purchase of some furniture. The applicant later returned that amount, and the credit card, to the respondent.
(e) The ownership, use and acquisition of their property
The Suburb B property was bought by the parties as joint tenants. The parties jointly borrowed $500,000 from the Westpac Bank by way of a mortgage secured on the property but otherwise the respondent paid the balance of the purchase price. The applicant paid the mortgage repayments. She said that she increased her work days from five to six days per week in order to pay the relevant mortgage payments.
(f) The degree of mutual commitment to a shared life
There is the evidence of the parties’ electronic communications after they met on the internet.
It is the applicant’s evidence that the parties met on the internet in May 2012. She put into evidence the terms of her communications with the respondent by social media on 17 June 2012 and 25 June 2012. The evidence is as follows:
Respondent
Applicant
No.
To remit the money to Australia, is it the same as in America that you need to pay tax again?
I want you to find out first.
Do you remit the money to Australia just to avoid paying tax?
To buy property and car for you.
I don’t believe it.
You then find someone else, right?
You said it.
I am serious anyway. You just like being aggressive.
Do I?
You want to back out, don’t you?
It seems a little bit. Heh-heh.
I don’t.
Neither do I.
Heh-heh. Then it is good.
Heh-heh.
In fact you are a bit little lady.
Yes.
Because I care.
In fact you should tell me what kind of future life you want.
To be with my husband.
I come to Australia just for you.
Love each other.
Work hard together.
Heh-heh. How lovely.
To create a life envied by others.
Children can win from the starting line.
I am really a person with a strong will power. It is easy to create life. All you say is correct. The key is whether to go back to your country in future.
In fact I want a good husband with a sense of responsibility most. Have a desire to advance. Live abroad.
I now know what you want. I will start disposing my assets in my country.
What do you think?
If it is uncertain, there is a possibility that I keep some of them. It is mainly around you.
You are so good.
I feel so happy.
The evidence about the communication on 25 June 2012 is as follows:
Respondent
Applicant
Hi, how are you? (smiley face)
How are you? I just had a shower. Heh-heh. Did you finish eating?
Heh-heh, yes.
What did you eat?
Heh-heh, you weren’t there.
I went for a shower just then.
Shanghai local cuisine. Heh-heh.
Must be delicious.
I was afraid of you. So I came back early. It was ok.
How many people were there eating?
I am timid. Heh-heh. Four people.
Oh, are you going back tomorrow?
Yes, tomorrow afternoon.
What time is the flight?
Tickets for the morning flight were sold out.
What time?
Only first class for the 2.30 pm flight left.
Oh, it’s ok, won’t be very tiring.
Heh-heh. I can fly first class again. Yes.
You must be happy going back. You can eat your favourite again, mushroom.
Yes, maybe I will come back again a week later. Heh-heh.
Yes, going back and forth.
It’s really troublesome buying property in [China].
Yes.
You wouldn’t have bought it if you had known. Come and buy in Sydney. Sigh
Then I hope the deal won’t close. Heh-heh. Can’t sell to you then.
Heh-heh. Is that right?
Do you want to buy it or not? You are rather struggling.
I do
You still do. Heh-heh.
I’m struggling that it is troubling doing business in [China]. Restrictions on non-locals.
Then let’s hope he sells to you. Yes.
Got to pay tax every year.
Need to pay for how many years?
Now thinking of it I have to buy it. Until the property is sold in future. It’s over 30,000 at the moment.
Really expensive.
I have already given them 2.2 million. There is a penalty of 220,000 if I don’t buy it. Over 7 million altogether.
[Mr Choy] has money after all. Just pay it. Heh-heh.
Aren’t you my wife? Don’t you worry about me?
How do you judge how seriously I worry about? Who asked you to buy it? You don’t even live there.
Because I wanted to study English for half year to one year in [China].
Sigh.
Then I could stay at home and study. That was the plan.
The price you paid is really high. But it’s ok now.
Wall Street English is just next to the property I bought. It was really convenient.
It is fixed assets after all. You can’t lose much. You can always sell it. Maybe you can make a profit.
Heh-heh. Moreover, if I don’t live there in future I can lease it out to some other people. The monthly rent can be over 30,000.
Now the property price in [China] is not going up or down. I won’t make a profit or a loss. The value will increase in the future.
It’s a long term view.
Because it is in a good location, in the city centre.
The value can increase if there is a space.
That’s true. The cost can be recouped in 30 years under the current rent. Forget it. I will buy a property in Sydney. But the precondition is that you’ve got to accept me.
It will depend on how you behave. As long as you treat me sincerely, don’t cheat me and hurt me, it will be ok then.
Heh-heh. I am really serious to you. My attitude is good too.
Do you have anything that you haven’t confessed?
There was no challenge from the respondent about the accuracy of the transcript but it was his case that some communications are missing and therefore what is reported is out of context. Without the detail it is not possible to draw any inferences from communications that are not in evidence.
The conversations in evidence hold the promise of a future relationship but they occurred prior to the parties meeting face to face, that is to say, prior to the agreed commencement date of the relationship. Importantly, there is no suggestion of written communication between the parties of a similar nature after those initial rounds of correspondence and after the parties met in person and commenced the relationship under consideration.
(g) The care and support of children
There are no children of the parties’ relationship.
(h) The performance of household duties
It is the applicant’s evidence that she did all of the housework at the Suburb B property, including cooking, washing, laundry and cleaning. Obviously, the parties were living together at the Suburb B property for a very short time.
The reputation and public aspects of the relationship
There is scant evidence on this topic.
The applicant gave evidence that there was a housewarming party at the Suburb B property in August 2013. Some of her friends were in attendance. There was no challenge to that evidence by the respondent.
In February 2013 the parties attended a dinner with members of the applicant’s family in City F, China. During the dinner the applicant’s uncle announced the parties’ engagement to the family. The respondent said that this announcement was made without consultation with him. However, he does not say that he challenged or sought to correct the announcement, whether to the assembled group or to any individual.
After attending the applicant’s family celebrations in City F, the parties went on to visit the respondent’s province of G. They stayed there for eight days. During that visit the respondent introduced the applicant to one of his friends, a former workmate. When asked in cross-examination the respondent could not recall how he referred to the applicant on that occasion but he said that he might have referred to her as “girlfriend” or “friend from Australia”.
The respondent did not introduce the applicant to any members of his family during the visit despite the fact that his parents were present in that city while the parties were there in February 2013.
Conclusion
In my view the parties did not have a relationship as a couple living together on a genuine domestic basis. There was the promise of such a relationship in the parties’ early internet communication but that was not born out after their relationship commenced.
The parties met on the internet. Their early communications were suggestive of them both having aspirations for a long term, meaningful, personal relationship. They bought a house together, put it in joint names and jointly borrowed for that purpose. They stayed together at those premises and elsewhere during holidays but that amounted to short periods of time and accounted for only a small fraction of the duration of their relationship. They had a sexual relationship when they were together.
The respondent did not introduce the applicant to the members of his family and there was evidence that his parents were in the same city in G, China while the parties were there in early 2013.
Having found that the nature of the parties’ relationship was not such as to meet the statutory definition, no further inquiry is required. It falls to the applicant to bring the parties’ circumstances within the scope of Part VIIIAB and she cannot. The applicant’s application filed 18 November 2015 will be dismissed.
Other Issues
In case it would be of assistance to the parties in another context I will make some observations about the balance of the case which the applicant had to make. In the event that the nature of the relationship could be brought within the terms of the legislation, given its short duration she had to show that she made “substantial contributions”. In my view she may have been able to do that. She took on the obligations of a $500,000 mortgage and met other outgoings. She negotiated for work to be done on the property and furnished it.
In V and K [2005] FCWA 80, Holden CJ was of the view that “substantial” means “something more than usual or ordinary”. That formulation has been followed in numerous decisions. More recently, the Full Court comprising of Thackray, Ryan and Murphy JJ in Harriott & Arena [2016] FamCAFC 69 examined “substantial contributions”. The Full Court said at [62] that their Honours “are not attracted to the ‘something more than usual or ordinary’ definition”.
Their Honours noted that although it has been touched on (for example, in Redmond & Mullins [2015] FamCAFC 69) the meaning of “substantial contributions” has not been closely examined by the Full Court of this Court. Their Honours cited authority for the meaning of “substantial” which has been the subject of discussion in other courts. At [63]:
63. To the best of our knowledge, the meaning of “substantial contributions” has not been the subject of careful consideration by this Full Court, although the matter was touched on in Redmond & Mullins [2015] FamCAFC 69, where V and K was cited. However, the meaning of “substantial” has been the subject of much discussion by other courts. Our review of those authorities indicates support for these observations of Deane J in Tillmans Butcheries Pty Ltd v The Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 382:
The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ( … [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case…
64.Clearly the “substantial contributions” test is a subjective one. Any effort to elucidate its meaning by use of other words or phrases will simply replace one subjective test with another. It will remain a matter of impression whether the contributions are considered to be “substantial”. While recognising that the test is subjective, we are nevertheless inclined to agree with Thackray J, who said in Thorburn and Oswald [2007] FCWA 43 at [54] that a trial judge
would need to interpret the word “substantial” in the context of the financial position of the parties. What might appear to be a “substantial contribution” for people of limited financial resources, might not be substantial in a case involving very wealthy parties.
In the circumstances of this case, the applicant’s investment in the Suburb B property was a unique commitment by her. She does not hold a portfolio of investment properties and there is nothing to suggest that but for the respondent’s involvement, she would have made a commitment of the proportions involved here. True it is that she lived in the property but she did not have a free hand to use it as she wished. The respondent would not allow her to rent out rooms, for example.
Lastly, the applicant would have needed to demonstrate that a failure to make the declaration would result in serious injustice to her. I have some doubts about whether she could make that case. Presumably the argument would run that by a severance of the joint tenancy under New South Wales law, the applicant would lose the potential allowance for contributions of a non-financial kind and those of homemaker. In this case the latter contributions amounted to something done in four to five weeks, in the context of a relationship of about 18 months duration.
Next, she would lose the opportunity for argument in relation to adjustments that might arise from a consideration of the factors in s 90SM(4)(d) and (e). It is far from clear that the applicant would benefit under those paragraphs. In respect to s 90SM(4)(d), there was no evidence about the potential for orders to impact on the income earning capacity of the parties. As to s 90SM(4)(e), the respondent said that he owned two properties, respectively bought some time ago for RMB300,00 and RMB800,000. There is no evidence that the applicant has other real estate but she told the respondent and confirmed in her oral evidence that she has a prospect of inheriting three properties in China. Strangely, the applicant’s mother, who was a witness in her daughter’s case, gave conflicting evidence about that matter. However, the respondent is out of paid employment and has been unemployed since 2014. The applicant is employed as a Manager, and was earning in the order of $50,500 at the commencement of the parties’ relationship in July 2012. In her recent Financial Statement the applicant deposes to earning $1,269 per week, before tax.
I certify that the preceding ninety nine (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 June 2016.
Associate:
Date: 30 June 2016
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