MANDLEY & DEBBINS
[2020] FCCA 523
•12 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANDLEY & DEBBINS | [2020] FCCA 523 |
| Catchwords: FAMILY LAW – PROPERTY – Where the de facto wife made an application for property settlement four and a half years out of time – refusal to grant leave to extend time under s.44 of the Act – where the de facto wife filed an Amended Initiating Application that did not include an application for an order for leave – no jurisdiction to entertain the Amended Initiating Application – Amended Initiating Application be dismissed – no evidence of any circumstance of a de facto relationship existing. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Montano v Kinross [2014] FamCAFC 231 |
| Applicant: | MS MANDLEY |
| Respondent: | THE ESTATE OF MR DEBBINS |
| File Number: | MLC 702 of 2019 |
| Judgment of: | Judge C E Kirton QC |
| Hearing date: | 26 February 2020 |
| Date of Last Submission: | 26 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 March 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Sweeney |
| Solicitors for the Respondent: | David Gibbs & Associates |
ORDERS
The Applicant’s Initiating Application, filed on 23 January 2019 is dismissed.
The Applicant’s Application in a Case, filed on 17 February 2020 is dismissed.
The Applicant’s Contravention Application, filed 17 February 2020 is dismissed.
Order 7(c) of the Orders made on 27 February 2019 as amended by Order 5 of the Orders made on 2 October 2019 are hereby discharged.
Any application by the Respondent for costs against the Applicant be made within 28 days in accordance with r.21.02(1)(b) of the Federal Circuit Court Rules 2001 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Mandley & Debbins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 702 of 2019
| MS MANDLEY |
Applicant
and
| THE ESTATE OF MR DEBBINS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Ms Mandley, seeks leave pursuant to s.44(6) of the Family Law Act 1975 (Cth) (Act) to commence property settlement proceedings against the Respondent, the Estate of Mr Debbins (Respondent), outside the two year time limit prescribed by s.44(5) of the Act.
The Applicant claims to have been in a de facto relationship with Mr Debbins from 2008[1] to 26 July 2012[2]. Therefore the application for leave to proceed pursuant to s.44(6) of the Act is some four and a half years out of time, on the Applicant’s case.
[1] Initiating Application, at [Item 25] and Affidavit of the Applicant, filed 6.2.20, at [17].
[2] Initiating Application, at [Item 27], filed 23.1.19.
The family of Mr Debbins allege that the Applicant was not in a de facto relationship with Mr Debbins, but had been in a de facto relationship with Mr Debbins’s son, Mr A (Mr A). Mr A passed away in 2018, prior to the commencement of this proceeding. Mr Debbins passed away in 2019, five months after the commencement of this proceeding on 23 January 2019.
The Applicant was self-represented throughout this proceeding.
Synopsis
I have determined that the Applicant should not be granted leave pursuant to s.44(6) of the Act to commence property settlement proceedings against the Respondent pursuant to s.90SM of the Act.
Background
Mr Debbins was born in 1929 in City B, Country C. At the time that Mr Debbins passed away in 2019 he was aged 89.
The Applicant was born in 1949 and is presently aged 71.
The property at D Street, Suburb E (D Street, Suburb E) was purchased by Mr Debbins and his wife Ms Debbins in 1973. Ms Debbins passed away in 2006[3].
[3] Affidavit of Ms G, filed 11.2.20, at [3].
Mr Debbins and Ms Debbins had three children, Mr A, Ms F and Ms G.
The Applicant commenced a de facto relationship with Mr A in about 2005, when the Applicant moved into Mr A’s flat at the rear of the D Street, Suburb E Property[4]. There were periods of time when the Applicant moved out of Mr A’s flat and then returned.
[4] Applicant’s Affidavit, filed 6.2.2020, at [4] and [5].
Procedural History
On 23 January 2019 the Applicant filed an Initiating Application (Initiating Application) and an Affidavit sworn on 15 January 2019 (Applicant’s First Affidavit). The Applicant prepared the Initiating Application and the only order sought was:
Order for settlement payment of two hundred thousand dollars ($200,000). defacto relationship of four (4) years (sic).
On 25 February 2019 a Response was filed seeking:
a)Final orders that the Initiating Application be dismissed with costs.
b)Interim orders that:
i)Mr Debbins’s daughter Ms F be appointed as litigation guardian on behalf of Mr Debbins.
ii)Caveat Number …F (Caveat) be removed from the D Street, Suburb E Property at the Applicant’s cost.
iii)The Applicant pay the Respondent’s costs.
The proceeding first came before the Court on 27 February 2019. Orders were made, which may be summarised as follows:
a)The proceeding be listed for a defended hearing on 26 February 2020, with an estimated hearing time of one day. Trial directions were also made.
b)The Applicant file a Financial Statement and any further affidavits on which she intended to rely at least 28 days prior to the defended hearing.
c)Ms F was appointed as Litigation Guardian on behalf of Mr Debbins.
d)The Litigation Guardian file a Financial Statement reflecting the assets, liabilities and income of Mr Debbins, and any affidavits upon which she intended to rely 14 days prior to the defended hearing.
e)The Applicant to do all things necessary within 7 days to remove the Caveat, at the Applicant’s expense.
f)In the event of the sale of the D Street, Suburb E Property:
i)Mr Debbins’s solicitor to advise the Applicant within 7 days of the D Street, Suburb E Property being sold;
ii)Mr Debbins’s solicitor to advise the Applicant of the details of the settlement of the sale at least 24 hours prior to settlement taking place; and
iii)The sum of $200,000 from the net proceeds of sale of the D Street, Suburb E Property, be held in the Respondent solicitor’s trust account, pending further order.
On 25 March 2019 the Applicant filed an Appeal in the Appellate Jurisdiction of the Family Court of Australia, in relation to the Orders made on 27 February 2019 (Appeal).
On 25 March 2019 the Applicant also filed an Amended Initiating Application in which the Applicant sought an order for half of Mr Debbins’s assets, which she stated were valued at a total of $1,719,000.
On 10 April 2019 the Litigation Guardian, Ms F, filed an Affidavit consenting to act as Litigation Guardian.
On 17 April 2019 the Litigation Guardian, Ms F, filed an Application in a Case (First Application in a Case). An affidavit deposed to by Ms F[5] was also filed in support of the First Application in a Case. The First Application in a Case sought interim orders that:
a)The interim Order made on 27 February 2019 that the Applicant remove the Caveat within 7 days be enforced[6].
b)An Order that the Registrar of Titles sign a Withdrawal of Caveat in relation to the Caveat.
c)The Applicant pay the costs of the First Application in a Case.
[5] Affidavit of Ms F, filed 10.4.19.
[6] Order 6 of the Orders made on 27 February 2019.
On 11 July 2019 Justice Strickland, sitting in the Appellate Jurisdiction of the Family Court of Australia, dismissed the Appeal.
On 26 July 2019 Ms G, Mr Debbins’s other daughter, filed an affidavit deposing that Mr Debbins had passed away in 2019 and that she was the surviving Executor of Mr Debbins’s Will. Ms G deposed that it was her intention to apply to the Supreme Court of Victoria for a Grant of Probate of the Will. As Executor of Mr Debbins’s estate, Ms G sought to be appointed as the litigation guardian for this proceeding.
On 29 July 2019 the hearing of the First Application in a Case was adjourned to 2 October 2019, until Probate was granted.
On 30 September 2019 the Litigation Guardian, Ms F, filed another Application in a Case (Second Application in a Case), together with an Affidavit of David Gibbs, Solicitor. The Second Application in a Case sought orders that:
a)Ms F be removed as Litigation Guardian for the Respondent and be replaced by Ms G.
b)A Registrar of the Court sign all documents necessary for the removal of the Caveat.
c)The Applicant withdraw the Second Caveat and in the event that the Applicant did not do so within 5 working days, a Registrar of the Court sign all documents necessary for the removal of the Second Caveat.
d)The Applicant be restrained from lodging any further caveats in respect of the D Street, Suburb E Property.
On 30 September 2019 Ms G filed a further affidavit applying to be the litigation guardian in this proceeding. Ms G also deposed that the Applicant had not only failed to withdraw the Caveat, but had lodged another Caveat on the D Street, Suburb E Property, being Caveat Number …S, registered on 25 July 2019 (Second Caveat). The grounds of the claim for the Second Caveat were stated to be:
Part Performed Oral Agreement with the following parties: Mr Debbins, Mr A[7].
[7] Affidavit of Ms F, filed 30.9.19, at [9] and Exhibit “3”.
In the Affidavit of David Gibbs, filed on 30 September 2019, the Solicitor deposed that Probate of Mr Debbins’s will was granted to Ms G on 26 September 2019[8]. Mr Gibbs also deposed that he had been instructed by Ms G to act on her behalf in relation to the sale of the D Street, Suburb E Property and that he would ensure that $200,000 from the proceeds of sale would be placed into his Trust Account pursuant to the Orders of this Court on 27 February 2019[9].
[8] Affidavit of David Gibbs, filed 30.9.19, at [2] and Exhibit “DGG1”.
[9] Affidavit of David Gibbs, filed, 30.9.19, at [3].
The hearing of the First Application in a Case and the Second Application in a Case took place on 2 October 2019. Orders were made, which may be summarised as follows:
a)Ms G replace Ms F as Litigation Guardian for the Respondent.
b)The Applicant do all things necessary to remove the First Caveat and the Second Caveat (Caveats) within 7 days.
c)In the event that the Applicant failed to remove the Caveats as ordered, a Registrar of the Court be appointed pursuant to s.106A of the Act to execute all necessary documents to enable the removal of the Caveats.
d)The Applicant be restrained from lodging any further caveats against the D Street, Suburb E Property.
e)The Orders made on 27 February 2019 be amended so that the whole of the proceeds of sale of the D Street, Suburb E Property be held in an interest bearing trust account by the solicitor for the Respondent, save for the sum of $70,000 which was to be released to the Respondent on account of past and future costs.
f)Costs of the Respondent were reserved.
On 17 February 2020 the Applicant filed:
a)An Application in a Case (Applicant’s Application in a Case) seeking orders that:
i)The Respondent comply with Orders 5, 7(a), (b), and (c) of the Orders made on 27 February 2019;
ii)“The Respondent comply with the handwritten orders in Court on 2 October 2020 (sic)”.
b)An affidavit sworn by the Applicant that day.
c)A Contravention Application addressed to Mr Debbins (Contravention Application) alleging that:
i)The Respondent had not filed a Financial Statement at least 14 days prior to the defended hearing;
ii)The Respondent’s solicitor had not advised the Applicant within 7 days of the D Street, Suburb E Property being sold;
iii)The Respondent’s solicitor had not advised the Applicant of details of settlement at least 24 hours prior to settlement;
iv)The proceeds of sale had not been held in Respondent Solicitor’s Trust Account.
The Applicant’s Application in a Case and the Contravention Application were made returnable to the defended hearing.
The defended hearing took place on 26 February 2020. The Applicant relied on the following documents:
a)Applicant’s Amended Initiating Application, filed 25 March 2019 (Amended Initiating Application).
b)Applicant’s Application in a Case.
c)Contravention Application.
d)Applicant’s First Affidavit.
e)Applicant’s Financial Statement, filed 30 January 2020 (Applicant’s Financial Statement).
f)Affidavit of the Applicant, filed 6 February 2020 (Applicant’s Second Affidavit).
g)Affidavit of the Applicant, filed 17 February 2020 (Applicant’s Third Affidavit).
h)Affidavit of Mr H, sworn 20 September 2019, filed 2 October 2019.
The Respondent relied upon the following documents:
a)Response.
b)Outline of Case filed on Behalf of the Respondent, filed 21 February 2020.
c)Affidavit of Ms F, filed 10 April 2019.
d)Affidavit of Ms G, filed 26 July 2019.
e)Affidavit of Ms G, filed 30 September 2019.
f)Affidavit of David Gibbs, filed 30 September 2019.
g)Affidavit of Mr J, filed 11 February 2020.
h)Affidavit of Ms G, filed 11 February 2020.
i)Affidavit of Mr K, filed 11 February 2020.
j)Affidavit of David Gibbs, filed 11 February 2020.
k)Affidavit of Ms F, filed 13 February 2020.
l)Affidavit of Mr L, filed 17 February 2020.
m)Affidavit of Ms M, filed 17 February 2020.
n)Affidavit of Ms N, filed 17 February 2020.
Relevant Legal Principles
The Applicant in her Initiating Application purported to commence property settlement proceedings against Mr Debbins pursuant to s.90SM(1) of the Act.
Section 90SM(1) of the Act provides:
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
[…]
Court’s Jurisdiction
Section 39B of the Act relates to the Court’s jurisdiction in relation to de facto causes. Section 39B(1) provides:
Jurisdiction is conferred on:
[…]
(b) the Federal Circuit Court of Australia; and
[…]
with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act.
The relevant definition of “de facto financial cause” in s. 4 of the Act is:
(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;
Standard Application Period
A claim pursuant to s.90SM of the Act must be brought within 2 years after the end of the de facto relationship. Section 44(5) of the Act provides:
Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
[…] or
(b)both parties to the de facto relationship consent to the application.
Section 44(6) provides:
The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted;
[…]
If hardship is established, the Court’s discretion to grant leave is enlivened. The principles relevant to the granting of an extension of time in respect of a de facto relationship mirror those applicable pursuant to s.44(3) of the Act in respect of marriage[10].
[10] Montano & Kinross [2014] FamCAFC 231, at [5].
In this case the Applicant filed the Initiating Application some four and a half years after the end of the standard application period, pursuant to s.44(5)(a)(i) of the Act[11]. After the Applicant filed the Initiating Application, Mr Debbins did not consent, pursuant to s.44(5)(b) of the Act to the Application being brought outside the standard application period. Therefore at the first return date of this proceeding on 27 February 2019, the Applicant was informed by the Court that she would need to obtain leave of the Court pursuant to s.44(6) of the Act, before she could apply for property settlement proceedings pursuant to s.90SM(1) of the Act. The proceeding was accordingly set down for the defended hearing on 26 February 2020, for the Applicant to seek leave to commence property proceedings against Mr Debbins pursuant to s.90SM(1) of the Act.
[11] Initiating Application, at [Item 25] and [Item 27].
In the Amended Initiating Application the Applicant did not include an application for an order for leave to commence property settlement proceedings against Mr Debbins pursuant to s.44(6) of the Act. The defended hearing nevertheless proceeded on the basis that this was the application that was being made by the Applicant against the Respondent.
Death of a Party
In this case Mr Debbins passed away five months after the Initiating Application was filed and three months after the Amended Initiating Application was filed.
Section 90SM(2) of the Act provides:
If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
Section 90SM(8) of the Act provides:
(8)If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before property settlement proceedings are completed:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b)if the court is of the opinion:
(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii) any of the property of the parties to the de facto relationship or either of them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship
(c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
A “property settlement proceeding” in relation to a de facto relationship is defined in s.4(1) of the Act as follows:
Property settlement proceedings means:
[…]
(b)in relation to the parties to a de facto relationship – proceedings with respect to:
(i) the property of the parties or either of them;
[…]
In Simonds (Deceased) & Coyle [2019] FamCAFC 47, the de facto wife filed her Initiating Application for property settlement adjustment orders after the standard application period, without first obtaining leave of the Court in that case. The de facto wife filed the Initiating Application on 10 May 2017, some two months prior to the de facto husband’s death in late July 2017. An Amended Initiating Application was filed on 25 May 2018, which included an application for leave to commence proceedings out of time, and an application for an order for property settlement.
The principal issue on the appeal was whether the trial judge had jurisdiction to entertain the Amended Initiating Application that had been filed on 25 May 2018, amending the Initiating Application filed on 10 May 2017.
Strickland J said the following:
[19]As can be seen, that application was filed after the death of the de facto husband in late July 2017, and at that date there was no valid or competent proceedings for property settlement before the Court. As referred to above, there had been an Initiating Application filed by the de facto wife on 10 May 2017 seeking an order for property settlement, but that application was void and of no effect because leave to file that application had not been given by the Court pursuant to s 44(6) of the Act.
[20]Pursuant to s 39B(1) of the Act, jurisdiction is conferred on the Federal Circuit Court of Australia “with respect to matters arising under [the] Act in respect of which de facto financial causes are instituted under [the] Act”.
[21]Here, no de facto financial cause had been instituted prior to the death of the de facto husband, and none could be instituted after that death, even though there are legal personal representatives of the deceased de facto husband, namely the appellants.
[22]As was said in 1981 by the Full Court in Sims and Sims [1981] FamCA 102; (1981) FLC 91-072 (“Sims and Sims”) at 76,534:
The jurisdiction of this Court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of a deceased party...
[23]There is no express provision providing for proceedings such as these to be instituted after the death of the de facto husband, and any right to seek a property settlement abated upon the occurrence of that event (Sims and Sims, Phillips and Phillips [1985] FamCA 19; (1985) FLC 91-634, Parker v Arcus and Castiglione (1984) FLC 91581).
[24]There is of course s 90SM(8) which allows for property settlement proceedings that are not completed at the date of death to be continued in certain circumstances by or against the legal personal representative of the deceased party, but that subsection does not apply here because there were no property settlement proceedings before the Court as at the date of the death of the de facto husband. To repeat, the necessary leave had not been given to institute such proceedings.
[25]I say again, his Honour did not have jurisdiction under s 39B(1) of the Act to entertain the Amended Initiating Application filed by the de facto wife on 25 May 2018, because there was no financial de facto cause instituted. The relevant definition of de facto financial cause in s 4 of the Act is as follows:
...(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;
...
[26]Plainly, there were no such proceedings here[12].
[12] Simonds (Deceased) & Coyle [2019] FamCAFC 47, at [19]-[26].
In Simonds (Deceased) & Coyle [2019] FamCAFC 47 Murphy J (with whom Kent J agreed) said the following:
[48][…] The de facto wife’s Initiating Application could only be effective to institute s 90SM proceedings if she first obtained leave to proceed pursuant to s 44(6) of the Act.
[49]The deceased died after the date of the breakdown of the relationship, as found by his Honour, and before the property settlement proceedings commenced by the de facto wife were completed.[13] Those facts, stated in that manner, prima facie avail the de facto wife of s 90SM(8) of the Act such that the property settlement proceedings may be continued against the deceased’s legal personal representative.[14] However, crucial to the issue on this appeal, the “property settlement proceedings” must meet the relevant statutory definitions. The terms of s 90SM make it clear that the Court’s power under that section can only arise in the defined “property settlement proceedings”:[15]
[13] As to the proceedings not being “completed”, see analogously Gilbert v Estate of the late Gilbert (1990) FLC 92-125.
[14] The statements by the Full Court in Sims and Sims (1981) FLC 91-072 and Parker v Arcus and Castiglione (1984) FLC 91-581 must be seen in light of the fact that s 79(8) was inserted into the Act by the 1983 amending legislation and, s 90SM(8) by amendments in 2008.
[15] The Act, s 4. The definition was inserted by 2008 amendments to the Act which also introduced Part VIIIA dealing with “Financial Matters Relating to De Facto Relationships”.
[50]That expression is defined in s 4 of the Act as (again relevantly):
property settlement proceedings means:
…
(b)in relation to the parties to a de facto relationship - proceedings with respect to:
(i) the property of the parties or either of them …
[51]“Proceedings” is defined separately to “property settlement proceedings” in s 4 and, relevantly, “means a proceeding in a court … and includes … an incidental proceeding in the course of or in connexion with a proceeding”.
[52]Taken together, those provisions might be seen to permit of an argument that an application for leave pursuant to s 44(6) constitutes “an incidental proceeding” which is “in connexion with” s 90SM proceedings and is “with respect to” the property of the parties or either of them. (Further, a party to a de facto relationship includes a person who “has lived” in a de facto relationship).[16]
[53]In Slater and Slater,[17] just such an argument was raised in respect of the analogous s 79(8) applicable to marriages. In rejecting that argument, Ellis J said:[18]
Adopting a broad and liberal interpretation, it cannot, however, be said that proceedings brought pursuant to sec. 44(3) for leave to institute proceedings of a kind referred to in para. (ca) of the definition of “matrimonial cause” in sec. 4(1) are proceedings with respect to the property of the parties to a marriage. Such proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them.
[54]Slater was followed in Phillips and Phillips[19] and Rampling and Rampling.[20]
[55]There is no material difference between the principle there set out and that which is applicable to s 90SM(8). Indeed, the separate definition of “property settlement proceedings” to which reference has earlier been made, which is directly referable to the s 90SM power, might be seen to reinforce that principle.
[56]The Amended Initiating Application, filed by the de facto wife after the death of the deceased, instituted proceedings different to the s 90SM proceedings commenced by her Initiating Application; that Amended Initiating Application instituted “proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them”. The Court’s jurisdiction depends upon the terms of any legislative grant of jurisdiction. There is no statutory grant of jurisdiction which provides for an application for leave to institute proceedings to be excluded from the principle that the deceased’s death prevented those proceedings being instituted.[21]
[57]Without that specific grant of jurisdiction and power, an application invoking s 44(6) after the death of the deceased could not be made. Without that application and an order accordingly pursuant to s 44(6), the application for a s 90SM order could not be made; the Court had no such power unless and until a s 44(6) order was made.
[16] Definition of “party to a de facto relationship”, the Act s 4.
[17] (1985) FLC 91-641 (“Slater”).
[18] Slater at 80,173.
[19] (1985) FLC 91-634 per Elliott J.
[20] (1988) FLC 91-902 per Mullane J.
[21] See Fisher v Fisher (1986) 161 CLR 438; Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383.
De Facto Relationship Requirements
The Court may only make an order pursuant to s.90SM if it is satisfied of at least one of the factors in s.90SB of the Act. Section 90SB provides:
A court may make an order under section 90SE, 90SG, or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or total of the periods, of the de facto relationship is at least two 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.
For an order to be made pursuant to s.90SM(1) of the Act, the Court must find that there was a de facto relationship between the parties as prescribed by the Act. The Act provides the following in relation to de facto relationships in s.4AA:
Meaning of de facto relationship
4AA(1) A person is in a de facto relationship with another person […]if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
[…]
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.
Evidence
The standard of proof in this case is the balance of probabilities: s.140 Evidence Act 1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The Applicant was cross-examined by Counsel for the Respondent. The Applicant called one witness, Mr H, who was cross-examined by Counsel. Ms G gave evidence on behalf of the Respondent, following which the Applicant asked Ms G some questions.
The evidence of the Applicant was such that I could not attribute any weight to the Applicant’s evidence, unless it was independently corroborated by a third party. The Applicant presented as a witness who would say whatever necessary to achieve the objective she desired. The Applicant is a person who is prepared to defy Court orders. In this regard I refer to the Applicant’s deliberate failure to withdraw the Caveat. Not only was the Applicant prepared to defy Court orders, she was prepared to actively act against Court Orders. In this regard I refer to the Applicant lodging the Second Caveat in a deliberate act which was against previous Court Orders. When the Applicant was asked by Counsel why she did not obey the Court Order to remove the Caveat, the Applicant’s response was:
Well, I wanted the caveat on it to protect my interest, you see?[22]
[22] Transcript T47:19-20.
When cross-examined the Applicant confirmed that she had been diagnosed with bi-polar disorder[23]. This may perhaps explain the Applicant’s behaviour and the Applicant’s casual and brazen attitude towards her untruthfulness during the hearing.
[23] Transcript T40:26.
Mr H, who gave evidence on behalf of the Applicant, served no forensic purpose in supporting the Applicant’s case. Mr H corroborated the Respondent’s case. Mr H did not have a clear recollection of any relevant dates.
Consideration
The preliminary question that I must consider is whether I have jurisdiction to entertain the Amended Initiating Application. Following the reasoning of the Full Court in Simonds (Deceased) & Coyle [2019] FamCAFC 47, I determine that I do not have jurisdiction under s.39B(1) of the Act to consider the Amended Initiating Application because there was no financial de facto cause instituted by the Applicant, within the meaning of s.4 of the Act, at the time Mr Debbins passed away. No financial cause within the meaning of s.39B(1) of the Act had been issued prior to the death of Mr Debbins. Therefore any right to seek a property settlement abated upon the death of Mr Debbins: Sims & Sims (1981) FLC 91-072; [1981] FamCA 102; Phillips & Phillips (1985) FLC 91-634; Parker & Arcus and Castiglione (As Executors Of The Will Of Arcus, L.M., Deceased) (1984) FLC 91-581; Simonds (Deceased) & Coyle [2019] FamCAFC 47.
Therefore I determine that the Amended Initiating Application be dismissed on the basis that I do not have jurisdiction to entertain the Amended Initiating Application.
Further, for the Applicant to have succeeded in obtaining an order for leave to proceed pursuant to s.44(6) of the Act, the Court must be satisfied that a de facto relationship, within the meaning of s.4AA and s.90SB of the Act, existed between the Applicant and Mr Debbins. The indicia of a de facto relationship are contained in s.4AA(2) of the Act. I will now consider each of these indicia in the context of the evidence in this case.
Section 4AA(2)(a) the duration of the relationship
The Initiating Application claimed that the relationship was of four years’ duration[24] from an unknown date in 2008 to 26 July 2012[25]. The dates alleged in fact make the claimed relationship three and a half years in duration. When the Applicant was asked under cross-examination to identify when the de facto relationship commenced, all the Applicant was able to say was that she recalled that it was the “festive season”[26]. The Applicant had no independent recollection of the relationship commencing in 2008.
[24] Initiating Application at [2].
[25] Initiating Application at [25] and [27].
[26] Transcript T9:34-47.
Centrelink sent an Income Statement dated 2009 to the Applicant at an address at O Street, Town P[27]. The Income Statement stated that the Applicant was not partnered. The Applicant admitted that at that time she was up at Town P and that “[…] I did have that place at O Street. I had it for months”[28].
[27] Exhibit, R1.
[28] Transcript T24:34-46.
The Applicant conceded that she was in an “on again, off again” relationship with Mr A for many years[29]. The Applicant also conceded that when she obtained an Intervention Order against Mr A’s daughter Ms Q, she alleged that she had been a de facto of Mr A’s for the previous 14 years[30]. The relevant Application and Summons for Intervention Order, dated 13 September 2018, is exhibited to the Applicant’s Second Affidavit[31]. The Intervention Order Application stated:
THE AFM IS THE DOMESTIC PARTNER OF THE RESPONDENT’S FATHER WHO IS CURRENTLY IN HOSPITAL WITH CANCER. THE AFM LIVES AT THE ADDRESS WITH HER PARTNER. THEY HAVE BEEN IN A RELATIONSHIP FOR 14 YEARS. THE AFM AND HER PARTNER ARE THE FULL TIME CARERS OF THE PARTNER’S FATHER, WHO IS THE RESPONDENT’S GRANDFATHER WHO IS 89, LIVES AT THE ADDRESS AND HAS ADVANCED DEMENTIS (SIC)[32].
[29] Transcript T10:18-19.
[30] Transcript T10:32-38.
[31] Applicant’s Second Affidavit, at [54] and Exhibit “05”.
[32] Applicant’s Second Affidavit, Exhibit, “05”.
The Applicant agreed that she had left the D Street, Suburb E Property by April 2012, as she had a flat in R Street in March 2012[33].
[33] Transcript T23:9-16.
Mr H said that the Applicant and Mr A had been in a long term de facto relationship, which began in the early to mid-2000’s and continued through to 2016[34].
[34] Transcript T53:17-22.
The Court is unable to come to any conclusion about the duration of the alleged de facto relationship between the Applicant and Mr Debbins, on the basis of the evidence before it.
Section 4AA(2)(b) the nature and extent of their common residence
The Respondent subpoenaed Mr Debbins’s medical records from the Suburb E Medical Centre for the period 1 December 2008 to 1 December 2012[35]. On 22 October 2010 Dr S, at the Suburb E Medical Centre, recorded Mr Debbins say the following:
[35] Subpoena, Addressed to the Practice Manager, Suburb E Medical Centre, issued 28.11.19
Lives in his own home.
His mood’s improved over the last year, although he still misses his wife very much.
Recently joined the seniors planning some trips with them.
Lives independent. Self-caring.
Has fortnightly home help[36].
[36] Transcript T18-19:40-19.
The Applicant was cross-examined about having home help, when she would have been available to assist Mr Debbins with housework. The Applicant justified having fortnightly home help as follows:
[…] but the home help was so cheap. What’s wrong with having some help?[37]
[37] Transcript T19:24-25.
The Applicant did not file any affidavit evidence that she performed the role of a homemaker or any other information relating to the nature and extent of her cohabitation with Mr Debbins.
The Applicant was asked to explain why the subpoenaed notes from the Suburb E Medical Centre did not refer to her accompanying Mr Debbins to appointments at the Suburb E Medical Centre. The Applicant responded by saying that she had been to see one of Mr Debbins’s doctor’s the week before the hearing, and had asked for a letter saying that she never missed an appointment with Mr Debbins and got all his test results, however the doctor refused to provide such a letter[38].
[38] Transcript T19:37-43.
On 15 March 2011 Dr S, at the Suburb E Medical Centre, recorded the following in relation to Mr Debbins: “Single again”[39]. The Applicant explained this note by reference to paragraph 6 of the Applicant’s Second Affidavit. The Applicant claimed that Ms F forced Mr Debbins to make her leave the D Street, Suburb E Property every six months. The Applicant said that she returned to the D Street, Suburb E Property after the periods of being forced out.
[39] Transcript T21:11.
The Respondent subpoenaed records from the Victorian Department of Health and Human Services – Housing in relation to the Applicant’s applications for assistance for housing[40]. Under cross-examination, the Applicant gave evidence that she had originally applied for accommodation with the Ministry of Housing from 2002 and that she had made further applications for accommodation each year from 2008 to 2012[41]. The Applicant conceded that she had written many letters to the Ministry of Housing. Counsel put the following to the Applicant:
Counsel:But most of the time between 2008 and 2011/12 you were basically homeless; is that a fair comment?
Applicant:Well, yes, I was homeless and that’s why I was living with Mr A and then that’s why I lived with Mr Debbins. When I moved in with Mr Debbins, I was homeless. Yes, I had nowhere else to go. If Mr Debbins hadn’t have taken me in, I would have had nowhere else to go[42].
[40] Subpoena, Addressed to The Proper Officer, Department of Health and Human Services-Housing, issued 28.11.19.
[41] Transcript T11:11-23.
[42] Transcript T31:13-17.
On 10 January 2012 the Applicant wrote a letter to the Housing Officer, Ministry of Housing, Suburb T Office, Suburb T. This letter included the following:
Please provide me with a Ministry form of accommodation as soon as possible. I have been on the waiting list for 14 years from when my son, aged 10 years, was still with me.
I have been homeless numerous times in the last 14 years owing to violent partners and low income.
[…]
Living in a Town U caravan park for months I developed severe asthma attack necessitating me being ambulanced to Suburb T Hospital where I was admitted for five (5) days. I could not return but am presently staying in D Street, Suburb E with friends but cannot stay here much longer.
[… ]
Please give my application a special consideration as I am on disability on permanent basis now. I am single and sick […] (emphasis added)[43].
[43] Exhibit R4.
On 8 February 2012 the Applicant wrote to the Minister for Housing, at the Ministry of Housing Melbourne requesting accommodation. The Applicant said:
Where I am staying at present is only a “stop-gap” type thing, on the goodwill of some friends but I cannot stay here indefinitely and am being constantly asked how my Ministry of Housing application is proceeding as it is inappropriate really for me to stay here (emphasis added)[44].
[44] Exhibit R4
The Applicant was asked by Counsel whether the passage from her 8 February 2012 letter referred to in the preceding paragraph was a true representation of her situation and the Applicant agreed that it was[45].
[45] Transcript T39:1-18.
In the 8 February 2012 letter the Applicant also said:
At times though, when living in my car and at night with the darkness and rain on the windscreen I have become very low indeed […][46].
[46] Exhibit R4.
The Applicant agreed that she had spent quite an amount of time living in her car in the period between 2008 and 2012, saying it was every six months. She said that in the summer she would sleep on the beach at Town U. The Applicant also said that she went to visit relatives in Town P every six months[47]. The Applicant admitted that in 2011 she was living in a caravan in Town U for some of the year and that she used this address for her driver’s licence address[48]. The Applicant also left the D Street, Suburb E Property in December 2010 and sought crisis accommodation in Town V for a month. A letter from the Region W Sexual Assault Unit, dated 2 February 2012 states that the service accommodated the Applicant from 3 December 2010 to 31 December 2010[49].
[47] Transcript T40:7-20.
[48] Transcript T41:17-42:9.
[49] Exhibit R4.
The Court concludes that the nature of the Applicant’s residence at the D Street, Suburb E Property was that it was a “stop gap” measure until the Applicant obtained accommodation from the Ministry of Housing.
Section 4AA(2)(c) whether a sexual relationship exists
The Applicant conceded that Mr Debbins would have been about 80 years old at the time that she claimed to have commenced a de facto relationship with him. The Applicant was twenty years younger than Mr Debbins and the Applicant said that she was the same age as Mr Debbins’s son Mr A[50]. There was no evidence of a sexual relationship between the Applicant and Mr Debbins.
Section 4AA(2)(d) the degree of financial dependence or interdependence, and any arrangements for financial support between them
[50] Transcript T11:1-9.
The Applicant’s pension was consistently paid into her Westpac Banking Corporation account throughout the period from December 2008 to July 2012. The Applicant said that she only had one bank account and her bank statements for the period from November 2008 to July 2012 were exhibited to the Applicant’s Second Affidavit (Westpac Account)[51]. The Applicant continued to claim the single pension throughout the period from December 2008 to July 2012, notwithstanding that she claimed to have been in a de facto relationship with Mr Debbins. The Applicant agreed that the Westpac Account statements showed that she received the single pension throughout the period from November 2008 to July 2012[52]. When cross-examined as to why she had not informed Centrelink that she was living in a de facto relationship, the Applicant responded:
I never thought about it. I mean, even when I was living with Mr A, I never thought about it[53].
[51] Applicant’s Second Affidavit, Exhibit “M04”.
[52] Transcript T12:1-15.
[53] Transcript T13:43-44.
The Applicant subsequently provided the following reason for not disclosing to Centrelink that she was living in a de facto relationship:
Because I didn’t know how long I would last there. I was homeless and could have been thrown out on the street at any time and, actually, over the years I was with him, I was thrown out. Nothing was permanent with the Debbins. Nothing[54].
[54] Transcript T14:5-8.
The Applicant agreed that she had never had a joint bank account with Mr Debbins[55].
[55] Transcript T12:25-26.
In paragraph 36 of the Applicant’s Second Affidavit the Applicant claims to have contributed $37,379.70 to Mr Debbins’s household expenses. A review of the Westpac Account statements reveals that the Applicant paid for food and alcohol and made cash withdrawals from the Westpac Account. The Applicant did not make any payments for utilities associated with Mr Debbins’s household or the D Street, Suburb E Property. The Applicant agreed that she had not at any stage been named on any household account, such as the gas or electricity account, or the rates notice. There was no evidence that the Applicant had ever paid any such accounts[56]. The Applicant agreed that she withdrew cash from the Westpac Account and also paid for food and alcohol[57].
[56] Transcript T16:9-18.
[57] Transcript T15:16-28.
There is no evidence of financial dependence or interdependence or any financial arrangements between Mr Debbins and the Applicant.
Section 4AA(2)(e) the ownership, use and acquisition of their property
There was no ownership or acquisition of any property by the Applicant with Mr Debbins. Ms G deposed that the D Street, Suburb E Property was purchased by Mr Debbins and her late mother Ms Debbins in 1973[58]. The Applicant made no allegations that she had contributed to the maintenance or upkeep of the D Street, Suburb E Property. The Applicant’s Financial Statement disclosed that the Applicant has no assets or savings.
[58] Affidavit of Ms G, filed 11.2.20, at [3].
Section 4AA(2)(f) the degree of mutual commitment to a shared life
There was no evidence of a commitment to a shared life. I refer to paragraphs 69 and 70.
Section 4AA(2)(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of a relationship
This is not a relevant consideration.
Section 4AA(2)(h) the care and support of the children
This is not a relevant consideration.
Section 4AA(2)(i) the reputation and public aspects of the relationship
The Applicant said that Mr Debbins was very secretive about their relationship and that Mr Debbins used to introduce her as his “daughter-in- law” as “It saved any difficulty”[59].
[59] Transcript T16:40-43 and Transcript T21:7-8.
A number of notations in the medical records of the D Street, Suburb E Medical Centre for the period 1 December 2008 to 1 December 2012, were inconsistent with the Applicant’s account of being in a de facto relationship with Mr Debbins.
On 15 October 2009 it was noted by the management team at the Suburb E Medical Centre that Mr Debbins “Lives by self in own house”[60]. Counsel cross-examined the Applicant in relation to this notation as follows:
Counsel:Well, would Mr Debbins have been telling an untruth or a lie at that stage, would he?
Applicant:Yes. Yes. Yes.
Counsel:He just didn’t realise you were there as a de facto?
Applicant:No, he knew, but he wouldn’t have admitted it to them because if he says he is on his own he gets more attention and that. You know, the women give him more attention and that[61].
[60] Transcript T18:27.
[61] Transcript T18:17-38.
In January 2011 there was a note of Suburb E Medical Centre, which records: “Has female friend”. Counsel put the following to the Applicant:
Counsel: Why wouldn’t he refer to a de facto wife?
Applicant:No, he would not.
Counsel:Do you think he just doesn’t regard you as a de facto wife?
Applicant:He does, but he was very - he was - he was from Country C -, and they have a very - a very acute awareness of what people think.
Counsel:I see?
Applicant:And so because I was with his son, and then for him to take me in when his son got with another woman, and live with him as his de facto, he would not advertise that[62].
[62] Transcript T20:36-45.
[…]
Counsel:[…] You say that he was very secretive about the relationship out in public?
Applicant:Well, he used to just introduce me as his daughter-in- law[63].
[63] Transcript T21:6-8.
Mr H did not provided any evidence of the Applicant and Mr Debbins going out socially or seeing them together.
There was therefore no evidence of any reputation or public aspect of a de facto relationship between the Applicant and Mr Debbins.
Conclusion De Facto Relationship
I have considered each of the indicia of a relationship as a couple, as set out in s.4AA(2) of the Act. I find that there is no evidence of any circumstance of a de facto relationship existing between the Applicant and Mr Debbins, as set out in s.4AA2(a) to (i) of the Act.
I determine that the Applicant and Mr Debbins did not have a relationship as a couple living together on a genuine domestic basis. I determine that the Applicant and Mr Debbins were not in a de facto relationship within the meaning of s.4AA(1) of the Act. Consequently The Applicant and Mr Debbins were not in a de facto relationship for the purposes s.90SB of the Act. The Court therefore has no statutory authority to make an order for leave to commence property settlement proceedings pursuant to s.44(6) of the Act or an order for property settlement proceedings pursuant to s.90SM of the Act.
Therefore I determine that the Amended Initiating Application also be dismissed on this basis.
Applicant’s Application in a Case
The Applicant’s Application in a Case has no basis by reason of the Orders I will make dismissing the Amended Initiating Application. I will however address the issues raised in the Applicant’s Application in a Case briefly.
The Respondent has in substance complied with Order 5 of the Orders made on 27 February 2019, by filing the Affidavit of Ms N on 17 February 2020. The deponent is a Law Clerk employed by the Respondent’s solicitors and has the care and conduct of Mr Debbins’s Estate file[64]. The Respondent also tendered in evidence the Respondent Solicitor’s Preliminary Statement of Account as at 20 February 2020 for Mr Debbins’s Estate[65].
[64] Affidavit of Ms N, filed 17.2.20, at [1].
[65] Exhibit R3.
It appears that the Respondent’s solicitors overlooked compliance with Orders 7(a) and 7(b) of the Orders made on 27 February 2019. When this oversight was drawn to their attention by the Applicant, the Respondent’s solicitors immediately wrote to her with the relevant information and apologised for the oversight[66]. The Applicant’s position was at all times protected by reason of the fact that all of the proceeds of the sale of the D Street, Suburb E Property were to be paid into the Respondent’s solicitors’ trust account, save for the sum of $70,000[67].
[66] Applicant’s Third Affidavit, at [4] and [5] and Exhibit “JM01”.
[67] Order 7(c) of the Orders made on 27 February 2019 and Order 5 of the Orders made on 2 October 2019.
The Respondent did comply Order 7(c) of the Orders made on 27 February 2019, as varied by Order 5 of the Orders made on 2 October 2019. The Applicant’s Third Affidavit in paragraph 5 and Exhibit “JM01” demonstrates that the Respondent’s compliance with these orders.
The Applicant’s Application in a Case is therefore dismissed.
Contravention Application
The Contravention Application is addressed to Mr Debbins. As Mr Debbins is deceased the Contravention Application is dismissed.
Costs
The Respondent seeks costs. Pursuant to r.21.02(1)(b) of the Federal Circuit Court Rules 2001 (Cth) an application for an order for costs may be made within 28 days after a final decree or order is made. Should the Respondent seek to pursue an order for costs, an application should be made pursuant to r.21.02(1)(b) and an Order is made accordingly.
I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Date: 12 March 2020
0
6
4