Martoulis & Valas
[2022] FedCFamC2F 1781
Federal Circuit and Family Court of Australia
(DIVISION 2)
Martoulis & Valas [2022] FedCFamC2F 1781
File number: MLC 11009 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – property application – whether the matter is a de facto or matrimonial cause – allegation of reconciliation of matrimonial relationship after final orders – counter allegation of husband living in wife’s home as a boarder – common ground parties lived in same house during part of time of alleged reconciliation – where applicant asserts implied consent to setting aside of final orders – section 79A(1A) – alternatively husband seeks declaration of a de facto relationship – whether part VIIIAB (de facto) relief available – burden of proof – inconsistencies in both parties’ cases – applicant does not discharge burden of proof. Legislation: Evidence Act 1995 (Cth), s 140
Family Law (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Family Law Act 1975 (Cth) ss 4AA, 90RD, 79, 90SM, 90SF
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 139
Cases cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Blass & Blass (2022) FLC ¶94-085
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Colburn& Cleese (2020) FLC 93-995
Colburn & Cleese (2022) FLC 94-105
Dadic & Dadic (1987) FLC 91-825
Dahl & Hamblin (2011) FLC 93-480
Emerald & Emerald (2018) FLC 93-870
Fox v Percy (2003) 214 CLR 118
Halinan & Witynski [1999] FamCA 1127
Harrington & Harrington (2007) FLC 93-317
Johnson v Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
Kessey and Kessey (1994) FLC 92-495
Kowalski and Kowalski (1993) FLC 92-342
Kuligowski v Metrobus (2004) 220 CLR 363
Mabb & Mabb (2020) FLC 93-947
McCabe & McCabe (1995) FLC 92-634
MNJ and MEB [2004] FMCAfam 259
O’Hurley & O’Hurley [2008] FamCAFC 57
Oxley & Oxley [2021] FedCFamC1A 98
Parshen & Parshen (1996) FLC 92-720
Sommerville & Sommerville (2000) FLC 93-042
Waterman & Waterman (2017) FLC 93-762
Division: Division 2 Family Law Number of paragraphs: 304 Date of last submission: 13 July 2021 Date of hearing: 6-7 May 2021 and 12-13 July 2021 Place: Melbourne Counsel for the Applicant: Mr P Testart Solicitor for the Applicant: JosephDavid Lawyers Counsel for the Respondent: Dr R Smith Solicitor for the Respondent: Sterling Walters Lawyers ORDERS
MLC 11009 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARTOULIS
Applicant
AND: MS VALAS
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 Decmber 2022
THE COURT ORDERS THAT:
1.The Husband’s amended application filed 24 February 2021 be and is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Martoulis & Valas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The question I must decide is whether the applicant husband should be permitted to bring an application for property alteration orders despite the parties agreeing to final orders for property alteration pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’) back in 2006, or whether the proceedings should be dismissed. The parties contend that after those orders they lived in the same house from 2007 to 2020 (Husband’s version) or from 2012 to 2020 (Wife’s version). The parties disagree about why they lived in the same house and they hope that I can determine what the relationship between them was, back in 2007 or, back in 2012, until 2020.
BACKGROUND
The applicant Mr Martoulis (‘the Husband’) was born in 1967 and was aged 54 years on the last day of hearing. The respondent Ms Valas (‘the Wife’) was born in 1968 and was aged 53 years on the last day of the hearing. The parties married in 1995 and separated, or first separated, in June 2005. The parties have two children born in 1998 and 2001, now adults. The parties divorced on 23 June 2007.
Final Orders made
Final property and parenting orders were made by consent in May 2006 (‘the 2006 Final Orders’) and the parties made a Child Support Agreement in April 2006. The parties agree the Husband moved out of the common dwelling, then owned solely by the Wife, after she applied for an intervention order ex parte in 2020 (‘the interim IO’).
The Husband alleges that the parties reconciled their relationship and lived, or cohabited, as man and wife from 2007 until about May of 2020. The Wife denies any reconciliation and/or cohabitation as man and wife and/or living together as a couple after the 2006 Final Orders and alleges that from 2012 until the interim IO the Husband was a boarder and not a partner. She asserts the Husband lived in a separate part of her home as a boarder, and she agreed to this because of his necessitous circumstances in 2012 relating to his mental health, financial circumstances and her concern about him spending time with the children away from her home.
The Husband sought a declaration pursuant to section 90RD of the Act as to the existence of a de facto relationship between the parties from July 2007 to May 2020 in order to proceed with a de facto property settlement application (pursuant to Part VIIIAB of the Act) in this Court. In the alternative he sought to set aside the 2006 Final Orders on the basis of what he says is, the implied consent of the parties pursuant to section 79A(1A) of the Act, arising from their long cohabitation after the Final Orders. This would, he says, facilitate him then bringing a property division application pursuant to section 79 (Part VIII) of the Act. Part VIII applies to married or once married parties. He relied on the principles of the line of authorities that include of McCabe & McCabe (1995) FLC 92-634 (McCabe), Sommerville & Sommerville (2000) FLC 93-042 (Sommerville) and Waterman & Waterman (2017) FLC 93-762 (Waterman) and which I will refer to as the Waterman chain of authority.
The Wife opposes those applications and asserts that the Court cannot find that the parties impliedly consented to setting aside the Final Orders. Further, she says that Part VIIIAB of the Act does not apply to the parties because the principles of Kowalski and Kowalski (1993) FLC 92-342 (Kowalski), Sommerville and Emerald & Emerald (2018) FLC 93-870 (Emerald) apply and which I will refer to as the Emerald chain of authority. She asserts that an application for property division after the marriage of the parties, whether divorced or not, remains a matrimonial cause and hence only Part VIII of the Act (the provisions for property division for married or once married, couples) can apply and not Part VIIIAB (the provisions for property division for de facto couples) of the Act.
The Wife’s case was that, consistent with the Waterman and Emerald chains of authority, a second property order could only be made if the first was set aside.
As the case progressed, the Husband’s alternative case, to set aside the final orders pursuant to section 79A(1A) of the Act, became his primary argument and the previous primary case, for a section 90RD or Part VIIIAB declaration, was pressed in the alternative.
If the 2006 Final Orders are set aside by implied consent, provided it is just and equitable, at the next hearing the whole of the parties contributions as described by sections 79(4)(a), (b) and (c) would be considered. That would be from marriage in 1995 (or before if there is a relevant contribution) to the time of hearing. That is 27 or so years.
If the Final Orders are not set aside, the Husband asserts that property adjustment orders can still be made based on the post-divorce de facto relationship of the parties, from 2007 until 2020, but pursuant to Part VIIIAB of the Act. If that is the case then it is likely, without determining the point, that the assessment of the parties contributions pursuant to section 90SM(4)(a),(b) & (c) would commence with what they brought into the de facto relationship in 2007 or 2012 (or whatever other date the Court determines) until hearing (likely in 2023). That would be an assessment based on contribution over 11 or 15 or so years rather than 27 or so years.
The defended hearing
The Husband issued these proceedings on 10 October 2020. The matter was first heard by a Registrar on 9 December 2020. On that day, procedural orders were made by consent and the matter was set down for a one day defended “threshold” hearing before me on 21 April 2021. On 23 March 2021, consent orders were made in Chambers vacating the 21 April 2021 hearing and adjourning the matter for a two day hearing to commence on 6 May 2021, with each of the parties to file and serve contentions as to fact and law. In short, this had come about because the parties wrote to my associate advising they would require two days on 21 April 2021, which could not be accommodated at that time.
The defended hearing ended up proceeding over four days. With trial by affidavit, a “four day hearing” means four days of cross-examination and submissions. In this case the evidence in chief covered disputed events over about 25 years, but mainly from 2007 to 2020, about 13 years. A trial with oral evidence in chief evidence of the factual density of this matter would likely have taken weeks. The same rules of evidence apply as to a dispute over one contract or one event apply to this case, notwithstanding the dozens of disputed events over two or more decades. I acknowledge the hard work, skill and discipline of the parties’ lawyers to reduce such a dispute to four days of cross-examination and submissions.
The matter was first heard face-to-face on 6 and 7 May 2021. It did not finish and was adjourned part-heard for a further two days of face-to-face hearing on 12 and 13 July 2021. This matter dodged the COVID-19 pandemic lockdowns and was able to be heard in person on both occasions.
The delay of the delivery of this judgment significantly exceeds this Court’s guideline of judgments being delivered no more than three months from the conclusion of the case. This is not the fault of the parties. I apologise to the parties and their practitioners for having to wait so long for a decision. I have a clear recollection of the evidence and the demeanour of the witnesses, including the parties. I have a clear recollection of the parties’ submissions. In writing these reasons, I have reread the parties’ affidavits of evidence in chief, the parties’ written submissions, the exhibits tendered and a transcript of the proceedings, including final addresses. I have read and reread the authorities counsel referred to. I have a clear recollection of the issues and evidence involved in this dispute and of the evidence and demeanour of the witnesses.
It is frequently the case that what is sometimes described as a “threshold” hearing will likely be more factually dense and require considerably more fact-finding in the face of disputed evidence than the actual determination of a property division or alteration hearing where there is agreed, or not disputed, power. Although I have not heard the property alteration hearing this case is likely to be one of those cases.
Material RELIED UPON
The Husband relied upon the following material:
·Contentions of Fact and Law filed 20 April 2021;
·Amended Initiating Application filed 24 February 2021;
·Affidavit of Husband filed 9 October 2020; and
·Affidavit of the Husband filed 24 February 2021;
·Affidavit of Ms B (the Husband’s sister) filed 24 February 2021;
·Affidavit of Husband filed 28 April 2021 with 66 photographs at -14, five “stills” of video at -14, divorce application at -16, sketch of house plans at -17, health insurance records at -18, telephone purchase receipt at -19, the Wife’s VISA card and “everyday” account and Husband’s ‘Bank C’ account for Nov-Dec 2019 at -20 and 3 more photos at -21.
The Wife relied upon the following:
·Responding Contentions of Fact and Law filed 3 May 2021;
·Response filed 27 November 2020.
·Affidavit of Wife filed 11 March 2021;
·Affidavit of Wife filed 27 November 2020; and
·Affidavit of Ms B filed 9 March 2021;
·Affidavit of Mr E filed 3 December 2020;
·Affidavit of Ms F filed 1 December 2020.
Prior to the commencement of the defended hearing, the Husband’s solicitor provided a 1355 page electronic court book (now referred to herein as ‘CB’) which contained affidavits of both parties, subpoenaed documents and documents to be tendered.
In these reasons the description of an annexure commencing with the initials ‘…’ is a reference to an annexure to the Husband’s affidavit of evidence in chief filed 24 February 2021 unless otherwise described. In these reasons the description of an annexure commencing with the initials ‘…’ is a reference to an annexure to the Wife’s affidavit of evidence in chief filed 11 March 2021 unless otherwise described.
Exhibits tendered during the course of the proceedings were as follows:
W1 Husband’s S2 Bank Accounts (July 2005 - September 2010) (pages 1034-1035 of CB) W2 Husband’s S1 Bank Accounts (August 2007 - November 2007) (pages 916-946 of CB) W3 Husband’s Tax Return 2013-14 (pages 1038-1057 of CB) W4 Wife’s Tax Return 2013-14 (pages 1269-1307 of CB) W5 Husband’s Bank Account (31 August 2013 - 30 September 2013) H1 Photographs from realestate.com.au of the Suburb G property THE RELEVANT LAW
Standard of Proof: Burden of proof
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(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.
It is also important to note in a case where in substance each party alleges the other is lying that I bear in mind the guidance of the Full Court in Blass & Blass [2022] FedCFamC1A 63; (2022) FLC ¶94-085 at [39] and [40] which is as follows:
[39]The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities. It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.
[40]While the failure to accept a witness’s evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.
In this proceeding it is common ground that for a significant number of years the parties lived in the same house in which their children also lived. In this proceeding there is evidence that supports the broad case of each of the parties. The parties’ cases are entirely contradictory of the central issue of whether or not the parties reconciled their marital and intimate relationship, which for practical purposes is the same thing as whether they lived together as a couple on a genuine domestic basis at all after 2007.
The demeanour of the parties and the witnesses that each called meant that, standing alone, substantial parts of each party’s case was credible. Evidence and circumstances contradict parts of each party’s case and evidence. This case calls into sharp focus just what is required for a court to be satisfied of a state of affairs on the balance of probabilities in accordance with section 140 of the Evidence Act. Discussion of this area of law frequently intermingles section 140 of the Evidence Act with the broad statements of the law by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’). I am assisted by the discussion in the 17th edition of Odgers at page 1414 and note that an early authority referred to is the Full Court in Johnson v Page (2007) FLC 93-344 where it was stated that reference to the Evidence Act rather than Briginshaw was appropriate.
I have regard to and apply the helpful summary of authority from Odgers at page 1414 part of which I reproduce here:
In the Full Court of the Federal Court judgment of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition & Consumer Commission (2007) 162 FCR 466; 242 ALR 643; [2007] FCAFC 132 (Weinberg, Bennett and Rares JJ) it was observed at [31]:
Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361–363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact.
…Subsequently, in Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273; [2008] FCAFC 69, Branson J (with whom French and Jacobson JJ agreed at [110]) simply observed at [139] that:
references to, for example, "the Briginshaw standard" or "the onerous Briginshaw test" … have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides.
…
…In 2010, the Court of Appeal in Morley v Australian Securities & Investments Commission (2010) 247 FLR 140; 5 BFRA 364; [2010] NSWCA 331 stated at [750]–[753]:
References in the authorities to "actual persuasion" should be understood as equivalent to the state of "satisfaction", as that word is used in s 140. It should not be understood as requiring a subjective "belief". … In order to be satisfied on the balance of probabilities, within the meaning of s 140, the tribunal of fact must reach an affirmative conclusion, or a definite conclusion, or an actual persuasion.
…
Similarly, the Victorian Court of Appeal has emphatically adopted the view that this provision [section 140] embraces the "Briginshaw principle", notwithstanding the language used and the clearly stated view of the ALRC to the contrary. In NOM v Director of Public Prosecutions (2012) 38 VR 618; [2012] VSCA 198, Redlich JA, Harper JA and Curtain AJA, after a discussion of the authorities, concluded at [124] that there is now a "settled" view that a "[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found”.
Hence, I proceed on the basis that it is necessary that I must have an actual persuasion of the state of affairs in question, a reconciliation and/or a couple living together on a genuine domestic basis, for the Husband’s application to succeed.
Reliability & credibility
In Fox v Percy (2003) 214 CLR 118, a High Court case concerning the skid marks of a Kombi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
I have endeavoured to follow that guidance.
Key authorities
Both parties acknowledged the decision of the Full Court in Kowalski, Nicholson CJ, Nygh and Purdy JJ, as one relevant and leading authority. It was not disputed Kowalski remains good law.
In Kowalski, the husband married for the second time in 1974 and his daughter was then 17. Five months later the parties separated and divorced on 2 November 1976. The husband retained his significant assets. The parties agreed that they then cohabited from 1980 to February 1992 and for the latter part of that time lived in the husband’s residence on land he had retained from before the marriage. Although in business on her own account from 1987 the wife was impecunious and relied upon the husband for her accommodation.
In Kowalski, the husband’s health seriously declined. In February 1992, the wife issued an urgent application for leave pursuant to section 44(3) of the Act to bring a property and maintenance application out of time and for urgent spousal maintenance and orders restraining the husband or his agents from having her removed from the husband’s property where she had been living for some years. On the face of the wife’s allegations, there was a very short marriage but a long cohabitation after divorce as de facto partners.
The matter came before Fogarty J on 6 March 1992 for an urgent hearing on the papers. The husband was in precarious health and the wife had little assets and no income. It was argued that leave should not be given on the usual suspects in such applications (that the wife had not adequately explained her delay and had not established a prima facie case). It was asserted that the circumstances were of a very short marriage and that the wife’s claim was based on a long post-divorce cohabitation without remarriage. It was asserted that the wife’s claim was really based on a de facto relationship since 1980, and hence was made in the wrong place. It was asserted that there was, pursuant to the Property Law Act 1958 (Vic), jurisdiction to bring a de facto property claim in the state courts of Victoria but not under the provisions for property division of married couples.
Fogarty J granted the Wife’s application and delivered detailed and considered reasons, which had the benefit of his Honour’s long experience as a Justice of the Family Court of Australia. His Honour’s reasons noted the “unusual facts” and “the more than unusual uncertainty about the law”. Part of those reasons are recited in the subsequent Full Court judgement and it is unnecessary to recite those here.
The husband appealed the decision of Fogarty J. The same arguments were advanced. The Full Court overruled previous authority and decisively observed, at 79,627, as follows:
The main issue in this case is whether the proposed proceedings for property settlement will be proceedings arising out of the marital relationship within the meaning of paragraph (ca)(i) of the definition of “Matrimonial Cause'' in section 4(1).
It is reasonably clear on the evidence that the marital cohabitation of the parties was very short indeed and it may be conceded that, had the wife brought her proceedings immediately following the dissolution of the marriage she would not have received much, if anything, by way of property settlement. However, the cohabitation of the parties following the dissolution of the marriage was substantial even if one disregards the period from 1974 to 1980 when the parties occupied separate households.
…
And the Full Court continued at 79,630-1 as follows:
…If that proposition were to be accepted as the law it would follow that any claim based for the main part on contributions arising out of post-marital cohabitation would lack the sufficient nexus. In our view this cannot possibly be the law. In the first place it conflicts with the view expressed by the High Court in Williams v Williams (1985) FLC 91-628 that contributions to the welfare of the family do not cease upon the termination of cohabitation or for that matter the dissolution of the legal marital tie: see Dadic and Dadic (1987) FLC 91-825. It also would sit uneasily with the well-established proposition that contributions made during pre-marital cohabitation can be taken into account even when the period of pre-marital cohabitation by far exceeds the period of marriage: Collins and Collins (1977) FLC 90-286; Olliver and Olliver (1978) FLC 90-499.
…
A more logical and consistent approach is one which is based on the proposition that once a marriage has been celebrated between the parties, the entire relationship between the parties whether arising out of contributions before, during or after the formal tie of marriage was entered into or dissolved, falls within the ambit of Part VIII of the Family Law Act 1975. This principle explains why contributions made between cohabitants who later marry are judged according to the criteria set out in the Family Law Act 1975 and not according to those set out in the Property Law Act 1958 (Vic) or the De Facto Relationships Act 1984 (NSW). It is also consistent with the proposition that post-separation and post-divorce contributions continue to be taken into account. These parties are before the Family Court because they were once married and hence the proceedings can be said to arise out of the marital relationship, even if the property, the subject of such proceedings, does not. As Ross-Jones J remarked in Dadic at p 76,214:
‘A resumption of cohabitation after dissolution... between parties who have previously been married to each other is clearly distinguishable from a de facto relationship as such where the parties have never been married to each other.’
…The decision and the reasoning of the Full Court in Skoflek and Baftirovsky is inconsistent with the principle we have arrived at in this case and must be regarded as overruled.
Once it is determined that the proceedings fall within paragraph (ca) of the definition of “Matrimonial Cause” and the whole of the relationship can be taken into consideration including the post-marital cohabitation from 1980 up to the date of the husband's hospitalization, the other grounds of appeal raised by the husband, such as that the wife was unlikely to receive much or was unable to explain the delay, must also fail.
(Emphasis added)
Paragraph (ca)(i) of the definition of “Matrimonial Cause'' in section 4(1) of the Act was then (1993), and is now, as follows:
(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i)arising out of the marital relationship;
…
Emerald was a 2018 full Court decision that turned on section 44(3) application for leave to bring a property settlement claim out of outside the standard time limit, being within 12 months of divorce. The case also turned on whether there was jurisdiction for the once married parties to bring a claim concerning there still jointly owned property in state courts.
In Emerald the parties had married in or around 1977 and divorced in 1984. In 1996, the parties purchased a home together. The parties, their children and the husband’s second wife lived in that property until 2004 and according, to the first wife, finally separated at that time. 13 years later, and about 33 years after divorce, the husband issued VCAT proceedings about the property jointly owned by himself and his first wife. In response, the first wife issued proceedings in the Family Court of Australia seeking leave to bring a property settlement claim more than 30 years after the standard time limit had expired.
The trial judge refused to leave out of time and observed that the wife had a remedy in the state courts.
In concluding that VCAT did not have jurisdiction the majority made statements consistent with the ratio of Kowalski. The majority, Alstergren DCJ, as he then was, and Strickland J observed as follows:
95. Here, the claim by the wife is a claim pursuant to s 79 of the Act, and such a claim is within paragraph (ca) of the definition of matrimonial cause in s 4 of the Act. That paragraph provides that a matrimonial cause means:
Proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties…
96. Importantly, this claim cannot subsequently lose its character as a matrimonial cause as a result of the outcome of, or a determination made in, the proceedings, for example, as here, a refusal to grant leave. That is what Nygh J in Rennie and Higgon was referring to in describing the application for leave as a procedural provision, only affecting the remedy but not the right (see [89] above; see also DMW v CGW (1982) 151 CLR 491).
97. Thus, as a result of the proceedings instituted by the wife being a matrimonial cause, VCAT has no jurisdiction to entertain either the claim already made by the husband, or any claim that may be sought to be made by the wife.
Murphy J, in dissent on the leave question, but not on the matrimonial cause point, in an observation approving Kowalski, said as follows:
161. The fact that contributions are made post-divorce and post-separation does not alter their nature as contributions; the attribution of weight being a matter for trial and dependent upon the particular circumstances of the case (see, eg, Kowalski and Kowalski (1993) FLC 92-342)…
However, in Emerald the final separation occurred before the operation of Part VIIIAB. Hence, the subsequent de facto relationship point raised by counsel for the Wife in this case did not arise in Emerald, notwithstanding the robust statements about a matrimonial cause consistent with Kowalski.
Act number 115 of 2008, the Family Law (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (the Amending Act), came into effect from 1 March 2009. The insertion of Part VIIIAB provided for property division for de facto couples on almost identical principles as that for married couples. The Amending Act followed the referral of power to deal with de facto financial matters by the states to the Commonwealth Parliament. Definitions were added to the Act as follows:
de facto financial cause means:
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or
(b) proceedings between:
(i) a party to a de facto relationship; and
(ii)the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the maintenance of the first‑mentioned party after the breakdown of the de facto relationship; or
(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; or
(d) proceedings between:
(i) a party to a de facto relationship; and
(ii)the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or
(e)without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii)the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); or
(f)third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or
(g)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.
de facto property settlement or maintenance proceedings means proceedings with respect to:
(a)the distribution of the property of the parties to a de facto relationship or of either of them; or
(b)the distribution of the vested bankruptcy property in relation to a bankrupt party to a de facto relationship; or
(c) the maintenance of a party to a de facto relationship.
de facto relationship has the meaning given by section 4AA.
Section 4AA of the Act provides:
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.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The Amending Act amended the definition of matrimonial cause, but not paragraph (ca)(i).
In Kowalski no property orders had been made, the parties had merely divorced and later reconciled. However, the wide and clear statement of principle in Kowalski would apply to parties who had been married, divorced or had final property alteration orders made and then reconciled, unless qualified or distinguished.
Hence, if there was a reconciliation in this case the question arises whether Part VIIIAB altered, qualified or avoided the strong statement of the law in Kowalski as to post divorce contributions after a “reconciliation” being referrable to the fact of the prior, but dissolved, marriage. In this case, the parties divorced and made final property orders and then reconciled (on the Husband’s case). If I find on the facts that there was a reconciliation (at least at some time), the legal issue is whether Part VIII applies and whether the final orders are set aside by implied consent, or if final orders are not set aside, whether Part VIIIAB applies.
As discussed in Sommerville and MNJ & MEB, the concept that there can only be one final property order pursuant to Part VIII of the Act raises an impediment to a further Part VIII property order after one has been made. That is even if there has been a reconciliation and decade after decade of disparate contributions under section 79(4) of the Act by both parties. That is unless one of the provisions of section 79A or section 79A(1A) apply and it is appropriate to set aside the previous order. Both Sommerville and MNJ & MEB were decided before Part VIIIAB was inserted into the Act.
Hence, if the Emerald chain of authority meant the de facto provisions of Part VIIIAB did not apply then there was only power to make another final property order between the Husband and the Wife if the first order was set aside. If the Part VIIIAB de facto provisions provided power to make an order where the parties had cohabited within the definition of section 4AB after divorce, as the Husband contended, then the earlier Part VIII final property order did not need to be set aside for a further property adjustment to be made.
Colburn & Cleese [2022] FedCFamC1A 147; (2022) FLC 94-105 (Colburn) is a Full Court de facto property decision about different periods of cohabitation, and hence reconciliation, determined pursuant to section 90RD of the Act. That decision turned on the consequences of prior NSW Supreme Court orders (“the Supreme Court orders”) pursuant to then applicable state law about property division for de facto couples. The existence of the breakdown of the de facto relationship was the premise for the Supreme Court orders.
The Full Court found that the parties were bound by the Supreme Court orders and the finding of a resumption of the de facto relationship prior to the Supreme Court orders was inconsistent with facts incontrovertibly established before the Supreme Court (see [56]) and thus in error (see Fox v Percy (2003) 214 CLR 118). The Full Court found that the Family Court of Australia would have accrued jurisdiction to set aside the Supreme Court orders but that, in this case, accrued jurisdiction did not arise.
In Dahl & Hamblin (2011) FLC 93-480 (Dahl & Hamblin), the Full Court confirmed (at [24]), that there is but one de facto relationship but that different periods of cohabitation may be added together to satisfy the conditions necessary for the powers of property division of Part VIIIAB to be activated. The Full Court observed that the provisions of section 90RD refers to “a” de facto relationship. In doing so the Full Court approved the first instance court adopting earlier authority at [16] as follows:
[16]Relying on observations made by Thackray J in L and C (2006) DFC 95-327, her Honour answered this question in the following way:
[63]In essence, it seems to me, that if two people commence or renew a relationship, then absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. It would appear to be a fiction to suggest that two earlier intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous relationship. And it would seem, that within the realms of human experience, having another intimate relationship for either a short or longer time, in the midst of another relationship, is not of itself extraordinary. (Footnote omitted)
The Full Court also observed that Part VIIIAB was ‘remedial legislation’ to be given a beneficial interpretation at [39] and [49] after referring to the substance of the second reading speech by the Attorney-General, the Honourable Robert McClelland MP, as he then was.
The observation at [16] of Dahl & Hamblin sits comfortably with the observation in Dadic & Dadic (1987) FLC 91-825 approved in Kowalski and recited earlier in these reasons.
The point of Colburn, touching on the competing positions of the parties as to the law in this case, is the consequence for the parties of a reconciliation of their de facto relationship and cohabitation after Supreme Court property alteration orders. The Full Court observed as follows:
[57]It was open for the primary judge to find on the evidence that the parties resumed their de facto relationship at some point after 28 November 2006, but not before. Ground 1 succeeds.
…
[84]It was open for the primary judge to find on the evidence that the parties resumed their de facto relationship at some point after 28 November 2006, but not before. Ground 1 succeeds.
[85]Consequently, it is necessary to remit the proceedings for re-hearing, though the remitter will be conditional, so as to align with these reasons for judgment. The Supreme Court judgment still stands and the parties cannot go behind it. The residual dispute under Pt VIIIAB of the Act must be confined to any period of the parties’ de facto relationship which occurred after the Supreme Court judgment was entered on 28 November 2006. The parties agreed a different judge should re-hear the matter.
…
Applying Colburn, it appears that parties who cohabit in a de facto relationship, separate and make final property orders and then, upon reconciliation and further cohabitation and the end of that part of the relationship, may bring proceedings for property division pursuant to Part VIIIAB relating only to the period of cohabitation after the final property orders and without setting aside the previous orders.
On the Wife’s case, the Waterman and Emerald chains of authority mean that a married couple who go through the same process and divorce and then reconcile and then end that relationship or that part of it, cannot bring property proceedings relating to the cohabitation and contributions made after divorce unless the prior final orders are set aside. At first brush, given the extent to which the married and de facto provisions are alike or almost identical, it is difficult to see why Parliament intended to create such a situation by the Amending Act.
The effect of the Wife’s argument, on one view, is consistent with adding the words, “unless previously married” to section 4AA(1)(a).
The parties were never married in Coburn and were never divorced in Waterman. In Oxley & Oxley [2021] FedCFamC1A 98 (Oxley) the Full Court did not find any error in the first instance Judge failing to find that the previously married parties had not impliedly consented to set aside final property orders because of a reconciliation after final property orders. But in Oxley the parties were not divorced during the subsequent reconciliation and cohabitation. Hence, the alternative point the Husband makes in this case did not arise in Oxley. Nor did it arise in Waterman or Emerald. Counsel did not identify an authority of a Sommerville type situation (married, divorced, final orders and reconciliation and subsequent separation and property application) after the insertion of Part VIIIAB into the Act, being remedial legislation with the statutory interpretation conventions that brings.
THE HUSBAND’S CASE
The Husband’s Initiating Application filed 9 October 2020 put all his eggs in the de facto relationship, or Part VIIIAB, basket when he sought the following final order:
1.That there be a property settlement, including superannuation splitting Orders, pursuant to section 90SM and section 90XT of the Family Law Act 1975 (Cth) (the ‘Act’) and the Applicant de facto Husband be excused from particularising the final orders sought by him…
In his Amended Initiating Application filed at the same time as his affidavit of evidence in chief on 24 February 2021, the Husband widened the scope of the power he relied upon to support the orders he sought with his eggs now in two baskets, as follows:
That there be a property settlement, including superannuation splitting Orders, pursuant to sections 79 or 90SM and section 90XT of the Family Law Act 1975 (Cth) (the ‘Act’) and the Applicant
de facto Husbandbe excused from particularising the final orders sought by him…(Emphasis added)
In his contentions of law and fact document filed on 20 April 2021, the Husband summarised his case as including the following factual assertions:
1.1The following contentions as to the law assume that the fall of the evidence will favour the contentions of fact made by the Applicant to the effect that:
1.1.1.the parties separated in about June 2005;
1.1.2.they divorced in or about 2006;
1.1.3.consent property orders were made on or about 3 May 2006, and were carried out according to their terms;
1.1.4.the parties reconciled, and resumed cohabitation, in or about July 2007, and
1.1.5.the parties’ cohabitation continued from 2007 to 2020.
As to the law, his submissions accepted the Full Court decision of Kowalski, discussed later, in the following terms:
1.4The reasoning in Kowalski has been applied with approval, and considered in details in cases since judgment was handed down, and remains good law.
(Citations omitted)
His submissions relied upon the 1995 Full Court case of McCabe, with section 79A(1A) of the Act. Section 79A(1A) was then and is now as follows:
Section 79A setting aside of orders altering property interests
…
(1A)A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The Husband’s submissions summarised the facts of McCabe and adopted the following passage from McCabe at 82,369-70 as follows:
2.1.8In McCabe & McCabe, the Full Court dealt with a case where the parties separated in 1989 and shortly afterwards consent property orders were made. Two months later the parties reconciled without taking any steps to implement the terms of the orders which had been made. The parties separated four years later, and the wife instituted proceedings under s 79A of the FLA to have the consent property orders set aside. The husband opposed her application and sought to have it dismissed on the ground that it disclosed no reasonable or arguable cause of action. The husband's application for summary dismissal of the wife's application was dismissed.
2.1.9The Full Court said:
“In cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile or, as in this case, to write to the court. Their intention may crystallise into a more precise form as time progresses and as the parties' reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion...
There is no reason to doubt that parties can expressly or by their conduct consent to the discharge of prior orders so as to enable the court to make a fresh property order. Indeed, this would be a more likely conclusion in most cases of this type.”
(Citations omitted)
The Husband’s submissions also referred to and adopted the extensive review of the authorities, as they then were, in MNJ and MEB [2004] FMCAfam 259, by FM Walters, as his Honour then was, a case determined about 4 ½ years before the Act was amended to include the de facto provisions of Part VIIIAB and the definitions referred to above.
However, the Husband’s contentions of law and fact, consistent with the two baskets approach of his Amended Initiating Application, went on to submit as follows:
1.5.However, it may be that there is now, in all jurisdictions where ‘referring states’ have devolved power to deal with de facto property settlement to the [C]ommonwealth to deal with property settlement, a “distinction without a difference”, as it were, by reason of Part VIIIAB of the FLA inculcating a regime of de facto property indistinguishable in any material respect from the principles previously applicable only to marriages. Accordingly:
1.5.1.judicial comments to the effect of the differences between marriages and de facto property settlement regimes, predicated upon the (then applicable) proposition that there were different laws applicable to the two situations, are now moot;
1.5.2.In this present case, it is clear that Part VIIIAB of the FLA would apply to the parties’ post-reconciliation relationship, in any event, it being the case (if the Applicant’s contentions as to the fact are accepted) that the ‘post-reconciliation relationship’ manifested every characteristic of the de facto relationship within the meaning of s 4AA of the FLA.
(Citations omitted)
A significant aspect to the Husband’s case was what was said to be the sheer implausibility and inconsistency inherent in the Wife’s case. That was put to her as follows:
MR TESTART: Yes. And so by the first half of 2005 when you decided that you wanted to end the marriage, you had a depressed, mentally unstable, financially irresponsible, preoccupied and disengaged parental support person in your spouse- - -?
THE WIFE:Correct.
MR TESTART: - - -that you needed to get rid of. Correct?
THE WIFE:Correct.
MR TESTART: And it took some getting rid of him, didn’t it? According to your version of events, you went to the law firm, H Law Firm?
THE WIFE:I went to the law firm, H Law Firm, yes.
MR TESTART: Yes. [The Husband] didn’t get legal representation, did he?
THE WIFE:That is incorrect.
MR TESTART: He had legal representation?
THE WIFE:That’s my understanding.
MR TESTART: And your lawyers nutted things out, did they?
THE WIFE:My understanding, that he had legal representation.
MR TESTART: “[The Husband] was very difficult during the negotiations, but we eventually agreed to a resolution.” That’s paragraph 15 of your affidavit of November 2020?
THE WIFE:Correct.
MR TESTART: You filed an application for consent orders?
THE WIFE:That’s correct.
MR TESTART: And then in 2007, you filed an application for divorce- - -?
THE WIFE:Yes.
MR TESTART: - - -and you formally got a divorce?
THE WIFE:Correct.
MR TESTART: It was very important to you to obtain a final property settlement against [the Husband], wasn’t it?
THE WIFE:It was a divorce process, so that was the final stage.
MR TESTART: No, no. Listen carefully. It was very important to you to get a final property settlement with [the Husband] because you wanted your financial relationship with [the Husband] to end?
THE WIFE:Correct.
MR TESTART: You wanted there to be a break between you and [the Husband] financially?
THE WIFE:Correct.
MR TESTART: You wanted to be protected from [the Husband] financially?
THE WIFE:Correct.
MR TESTART: And you wanted to make sure that [the Husband]’s behaviour financially didn’t impinge upon you?
THE WIFE:Upon my family, yes.
MR TESTART: Or your family?
THE WIFE:Yes.
MR TESTART: Your evidence is that from 2005 to 2012 – a seven-year period, you didn’t have much to do with [the Husband]?
THE WIFE:Correct.
MR TESTART: During that time that you didn’t have much to do with [the Husband], you saw develop, or you saw continuing to develop the problems that [the Husband] had with [[Child Ms F]] and [[Child Mr U]], didn’t you?
THE WIFE:Yes.
MR TESTART: And they progressed to get worse, according to your evidence?
THE WIFE:Correct.
MR TESTART: To the extent that you took them to see the child psychologist, [[Ms J]] – paragraph 20 of the affidavit, I’m referring to, your Honour?
THE WIFE:Correct.
MR TESTART: You were able – notwithstanding the fact that you weren’t having anything to do with [the Husband], you were able to get him to go to some sessions with [[Ms J]]?
THE WIFE:Correct.
MR TESTART: When you separated, the children were six and- - -?
THE WIFE:Four.
MR TESTART: Four. And by the time [the Husband] moved into [the [Suburb G] property] with you – according to your evidence, they were early teens?
THE WIFE:Correct.
MR TESTART: Correct. And in that seven-year period, they had increasing problems in their relationship with their dad, according to your evidence?
THE WIFE:Correct.
MR TESTART: [The Husband] was not a responsible parent, according to you?
THE WIFE:Correct.
MR TESTART: He would transport the children inappropriately. Correct?
THE WIFE:Correct.
MR TESTART: He would not follow up [[Mr U]]’s nut allergy – this is paragraph 21?
THE WIFE:Correct.
MR TESTART: Yes. And come 2012, things had progressed to the stage where you say: “I could see [the Husband] was really struggling.” Paragraph 27?
THE WIFE:Correct.
MR TESTART: You noticed that he had a different car, truck or van, and that you concluded from that that he was finding it difficult to hold down a job. Correct?
THE WIFE:Correct.
MR TESTART: And you got the impression he didn’t even have permanent accommodation?
THE WIFE:Correct.
MR TESTART: Yes. He was obviously experiencing poor mental health. Obviously, according to you?
THE WIFE:Yes.
MR TESTART: Is that correct?
THE WIFE:Correct.
MR TESTART: That’s not an exaggeration?
THE WIFE:No.
MR TESTART: So the first nine-and-a-half years of your cohabitation, from 1995 to 2005, [the Husband] develops a series of difficult behavioural issues and mental health issues. Correct?
THE WIFE:Correct.
MR TESTART: He’s not much of a parent?
THE WIFE:Correct.
MR TESTART: He’s difficult with money, and he exposes you and your family to financial losses?
THE WIFE:Correct.
MR TESTART: And as a result of that, you decide to bring the relationship to an end?
THE WIFE:Correct.
MR TESTART: And it gets worse?
THE WIFE:Correct.
MR TESTART: It gets worse. In what universe could it possibly be to your children’s benefit to have a person like that brought back into your home under any circumstances?
THE WIFE:I’m not quite sure what you mean.
…
MR TESTART: So, you see, the impression that you’re giving to his Honour – I’m going to suggest this to you. The impression that you’re giving to his Honour is that [the Husband] is so dangerous – so dangerous that he would manipulate the whole of the legal system to stymie you – to the detriment of your children, unless you let him back into the house?
THE WIFE:Correct.
MR TESTART: And can I suggest to you that that’s entirely fanciful. It’s just entirely fanciful, just a made-up thing by you to explain the circumstance that you lived together under the one roof for, on your version of events, at least eight years- - -?
THE WIFE:I disagree.
MR TESTART: - - -after you got divorced?
THE WIFE:I disagree.
MR TESTART: You see, on your version of events, [the Husband] was – and continued to be, a viper in your family. He continued to damage your children, didn’t he?
THE WIFE:Yes.
MR TESTART: And you let him do that?
THE WIFE:Yes.
There is an implausible aspect to the Wife’s case. However, apparently implausible events do occur. But I do take the implausibility of the Wife’s case into account.
The Husband’s affidavit of evidence in chief at [25] and [26] set out the personal circumstances of how the reconciliation in 2007 had come about. That evidence included the following:
[25]By around 2006, I came to realise my mistake in forsaking my family for my admittedly radical beliefs and I wanted to reconcile with the Respondent. I missed my children greatly and missed being involved daily in their lives, as I had been before the separation. The Respondent reciprocated my feelings for reconciliation, and we started seeing each other again romantically around early 2007. Essentially, we were dating – while I lived in my apartment in [Suburb K], the Respondent and our children lived in the [Suburb G] property. I visited the Respondent and the children over the weekends when the children were home or for dinners during the week and the Respondent visited my apartment in [Suburb K] during the daytime hours during the week, where we were intimate. On other occasions, the Respondent and I had restaurant dinners and move dates. There were times when the Respondent even stayed overnight at my apartment in [Suburb K] while her mother cared for our children in the [Suburb G] property.
[26]From sometime in early 2007, during one of my visits with the children at the [Suburb G] property, the Respondent and I decided to reconcile. I apologised to the Respondent for my mistaken beliefs and agreed to reconcile to live together as a family once more. I reassured the Respondent that I left the [U] group entirely, which I genuinely did, and that I no longer wanted any part of those previous beliefs that I once held. The Respondent accepted my apology and remorse.
[27]We made up, enjoyed sexual intimacy at the [Suburb G] Property and recommitted ourselves to our family and relationship. I started living with the Respondent and our children at the [Suburb G] Property from mid-2007.
Reconciliation – Mid-2007
[28]Even though we had a sexual intimacy and decided to live together again, the Respondent was still cautious about protecting the assets and finances. I was more concerned that my family (the Respondent and our children) was not lacking financially, and so I put my family’s interests ahead of my own preservation of assets. I did not bring up the topic of any remarriage, or amalgamation of assets. I was content simply to again be a family and to again be involved in our children’s lives and invest in our relationship.
[Emphasis added]
The Wife’s evidence as to these alleged events was the complete opposite and was as follows:
[25]Over the period from separation until 2012, [the Husband] and I had very little to do with each other. I would see him briefly at contact changeovers, and I would also invite [the Husband] (and his parents if they were available) to the children's birthday celebrations. My brother also invited [the Husband] to his wedding in 2009 to avoid the scenario of [the Husband] refusing to agree to [the children] being there if the wedding fell on his weekend with the children.
…
[60]I deny the contents of paragraph 25. Following our separation, we did not ever rekindle a romantic relationship and there was certainly never any reconciliation between us. I only went to [the Husband]'s apartment in [Suburb K] twice and on both occasions this was for contact changeover. I was never intimate with [the Husband] at his apartment or at any other location. I never stayed overnight at his place, nor did we go on any dates. The contents of this paragraph are a complete fabrication.
[62]I deny the contents of paragraph 28. I deny there was ever any sexual intimacy between us following separation or that we started living together again.
The Husband was cross-examined about the likely impact of the Wife’s 2007 application for a divorce in the midst of the alleged reconciliation. That evidence included the following:
DR SMITH:And those property orders which provided for you to receive that payment of $77,000 and the transfer of the [Suburb G] – house in [Suburb G], they were complied with, weren’t they? You received a cheque and your former wife received – you all executed whatever documents that were required to transfer the property to her?
THE HUSBAND: Yes.
DR SMITH:And then it’s common ground, then, that you certainly for the rest of 2006, remain separated; correct?
THE HUSBAND: Yes.
…
DR SMITH:You say you realised you had made a big mistake and you want to reconcile with your former wife?
THE HUSBAND: Yes.
DR SMITH:You then say at paragraph 26, from sometime in early 2007, the two of you did indeed decide to reconcile?
THE HUSBAND: Yes.
DR SMITH:Can you be a bit more precise about that, sir? When you say sometime in early 2007, is that 2 January or is that 5 May? Can you give us a sort of a - - -?
THE HUSBAND: It was the very early part of 2007.
DR SMITH:Very early part of 2007, so sort of January/February sort of time?
THE HUSBAND: Yes.
DR SMITH:You then say – so you’ve decided to reconcile, but in your case you don’t – this is at now the end of paragraph 27 – you don’t then move back into [Suburb G] until mid-2007?
THE HUSBAND: Yes.
DR SMITH:Again, can you be a bit more precise with us in relation to that? What do we call mid-2007? Is that sort of June time or later or a bit earlier?
THE HUSBAND: July 2007.
DR SMITH:July 2007. Bear with me. Also, it must have come as a bit of a shock to you, then, when you were served with an application for divorce on 10 April?
THE HUSBAND: No.
DR SMITH:It didn’t?
THE HUSBAND: No.
…
DR SMITH: Would you agree with me, being served with an application for divorce two/three months after that, seems to be the complete antithesis of the two of you deciding to reconcile?
THE HUSBAND: Yes.
…
DR SMITH:At no point did you contact the court or make an application with the court to say, “Well, hang on, we have, in fact, already reconciled”?
THE HUSBAND: No.
DR SMITH:Well, could the answer to that be because you simply weren’t reconciled at all, in whether it’s early or mid-2007?
THE HUSBAND: No, it could not be.
…
DR SMITH:That’s why I was trying to clarify. I will put it to you this way in the old-fashioned way. I put it to you, the reason why you didn’t contest the divorce, the reason is because you weren’t, in fact, reconciled at that point?
THE HUSBAND: At that – at that point in time, we were on the path to reconciliation, formalised by my vacating the [Suburb K] property, which by – whereby the lease expired around about that time in July. So we were in the process of reconciliation.
That the Wife prepared, issued and then proceeded with an application for divorce in the middle of what is alleged to be a process of reconciliation does not accord with the apparent logic of events. Such a chain of events is, on its face, implausible. That an alleged event is implausible to an outside observer, does not of itself, mean the event did not happen. However, I take the discordance of this allegation with the apparent logic of events into account when assessing the reliability of the Husband’s account against the Wife’s account.
The Husband was cross-examined about the different time of reconciliation (December 2007) that he had alleged in the affidavit accompanying his initiating application in October 2020. He relied upon that affidavit in his list of documents to be relied upon. That evidence included the following:
DR SMITH: You say:
“… About December 2007, around the Christmas period.”
That’s what you wrote in your affidavit at paragraph 21 of your October affidavit?
THE HUSBAND: Yes.
DR SMITH:Now, that’s very different, again, to what you’re currently relying upon …certainly inconsistent between the two affidavits, isn’t it, sir?
THE HUSBAND: Yes.
DR SMITH:What has changed between the evidence that you swore in October and the evidence that you’ve sworn in February?
THE HUSBAND: Documents I obtained from the residential tenancy bond authority, which weren’t clear to me at the time, I obtained those later. And that assisted with my memory of the exact – of the exact time frames.
[Emphasis added]
…
DR SMITH:Seems to me, sir – well, I will start from the top again. You swore an affidavit – you swore your affidavit in October?
THE HUSBAND: Yes.
DR SMITH:You obviously took a lot of care in drafting that affidavit?
THE HUSBAND: Yes.
DR SMITH:You had assistance from your lawyers, I assume, in drafting it. It’s not a criticism; it just looks like it has been drafted by a lawyer?
THE HUSBAND: Yes.
DR SMITH:You gave appropriate instructions to your lawyer about it?
THE HUSBAND: Yes.
DR SMITH:And you went through it very carefully?
THE HUSBAND: Yes.
DR SMITH:When you swore it, you understood that you were swearing or affirming a document that would ultimately be relied on in court?
THE HUSBAND: Yes.
DR SMITH:And the contents of it, from the best of your knowledge, were true and correct?
THE HUSBAND: To the best of my recollection and knowledge were true and correct, yes.
DR SMITH:Yes. Well, I’m putting to you, sir, is that one of the reasons why you said on the 21st – in paragraph 21, you could – you were – you recall it as being December in your mind because it was around the Christmas period?
THE HUSBAND: Yes.
DR SMITH:That’s your evidence. Yes?
THE HUSBAND: Yes.
DR SMITH:That’s different, isn’t it, to now saying, “Well, it wasn’t, in fact, around Christmas, because I’ve got other documents that conflict with that, so it must have been earlier”?
THE HUSBAND: Yes. So I’ve corrected myself.
DR SMITH:Well, I’m going to put to you, sir, is, in fact, that was wrong from the outset as well, wasn’t it? Paragraph 21, that you had reconciled in December. Complete fabrication?
THE HUSBAND: No.
I infer that the documents the Husband refers to as explaining the difference in the date were the documents being annexure -7 that show that the Husband and the Wife were recorded as co-tenants of the Suburb L property from 23 November 2009 until 23 November 2011. The Husband relied upon his October 2020 affidavit that, as discussed above, put the time of reconciliation and resumption of cohabitation at the end of 2007 rather than the middle.
An important part of the Husband’s case and evidence in the final hearing before me was that the parties were recorded as the co-tenants of the Suburb L property between November 2009 and November 2011. Also, he asserted that they had been living together with the children as man and wife and/or as a couple living together on a genuine domestic basis for two years prior to that and continued to do so in the Suburb G property. The fact of the co-tenancy supports the Husband’s case and is inconsistent with the broad thrust of the Wife’s case.
The Husband’s October 2020 affidavit at [25] put the occupation of the Suburb L by the parties from “On or about 2008”. Hence, it is easy to see how having the documents of annexure -7 would cause that two-year tenancy to be corrected from “about 2008” to November 2009. But the reliance upon this document to “correct” the date of the start of the reconciled relationship does not, on the evidence, make sense.
Those documents related to events at the end of 2009 until the end of 2011. It is difficult to see how they would shed light on or assist the Husband’s recollection that the reconciliation and time when he moved into the former matrimonial home was not December 2007 but July 2007. That is almost 2 ½ years earlier, not 2 years earlier than the co-tenancy. How this assisted the Husband to change or correct his recollection or account of the time of that alleged event (resuming cohabitation in the Suburb L property) was not explained. It is possible, but not in evidence or likely, that something about the 2009 to 2011 documents triggers or causes the Husband’s recall, or as he puts it to “correct”, his assertion as to when that important event occurred. However, that change and the explanation for the change is discordant with the apparent logic of events and I take that discordance into account in assessing the reliability of the Husband’s evidence, standing alone and also against the reliability of the Wife’s evidence.
The Husband’s affidavit of evidence in chief at [30] addressed how he said he had contributed the bulk of his 2006 property settlement back into the finances of the relationship of himself and the Wife and the children after he moved back into the former matrimonial home in 2007. Such a matter was clearly relevant to the issue of reconciliation and also implied consent to the setting aside of the 2006 Final Orders and to the issue of contribution upon the hearing of the property alteration case, were the parties to get to that point.
Order 7 of the final orders made soon after the application for consent orders lodged on 1 May 2006 was as follows (-1):
7. Within 30 days of the date of these Orders:-…
(r) The Wife will pay to the Husband the sum of $77,000 as follows;
(i) $7,000 paid to the Husband [on] 14 June 2005;
(ii) $70,000 upon full compliance with subparagraph (s) below;
(s)The Husband will transfer to the Wife at the expense of the Wife all his right title and interest in the real property situate at and known as [the Suburb M property]
(t)The Wife will be solely responsible for and indemnify the Husband in respect of the mortgage with the [[N] building] secured against the [Suburb M property] together with all rates, taxes and like apportionable outgoings relating to the said property…
The Husband asserted as follows:
[30]I contributed about $60,000.00 of my $70,000.00 'payout' from our family law consent orders settlement back into the family finances and genuinely invested totally into our family unit. I did not retain any significant savings or separate bank account or finances for myself. We used all of my funds for the family expenses - around the time of reconciliation, the Respondent had plans to subdivide the [Suburb G] Property. The earliest bank statements I have are my disclosed [Bank O] statements, from 2012. At that time, I had only about $2,000.00 in my sole accounts - I invested everything else back into the family, without retaining anything for myself.
[Emphasis added]
The Wife addressed that assertion in the following terms:
[64]As to paragraph 30, I deny [the Husband] contributed $60,000 - $70,000 or any other portion of the payment he had received in our settlement back into the family finances. [The Husband] told me when he moved into the [[Suburb G]] that he had lost a significant portion of the settlement funds he received on the share market and had only $35,000 remaining just one year later. [The Husband] and I maintained separate bank accounts following separation. To the best of my knowledge, [the Husband] spent the remaining funds on personal expenses, including interstate travel, a collection of expensive watches, clothing and dining out with family and friends. After he moved into [the [Suburb G] property] as a boarder, he paid me board on a sporadic basis. In all, he paid $49,805 over the period he lived in my home.
The $49,805 figure over the eight years (2012 to 2020) of being a “boarder” as alleged by the Wife is about $520 per month on average and less than the $800 per month alleged to be paid every month. The evidence of the Husband in cross-examination included the following:
DR SMITH:The orders provided for you to receive $77,000, correct?
THE HUSBAND: Correct.
DR SMITH:You, in fact, end up receiving a cheque in July for $60,000 – gets paid into your bank account; is that right?
THE HUSBAND: Yes.
DR SMITH:Was there another [$17,000] that went somewhere? Was it to pay lawyers or something? Where did the other [$17,000] go?
THE HUSBAND: I don’t know.
DR SMITH:Okay. But actually, that cheque for $60,000 that arrives in your bank account in July, that’s the payment for these – pursuant to the orders; correct?
THE HUSBAND: Yes.
…
DR SMITH:So this is your S2. Do you agree with that?
THE HUSBAND: Well, it states S2 but nothing underneath it. Yes.
DR SMITH:Well, then, it has all the transactions starting on 1 June, the opening balance of one cent, and then the sixth – on 14 July 2006, we have $60,000 come in. So on page 1, sir. You see in the middle of the page there- - ?
THE HUSBAND: Yes.
DR SMITH:- - -we have credit, $60,000, being the cheque deposit?
THE HUSBAND: Yes.
DR SMITH:On 14 July 2006. That’s the cheque for the property settlement coming in, isn’t it, sir?
THE HUSBAND: Yes.
DR SMITH:Okay. And if we follow that through, turn over the page, then, sir. You will see by 17 July 2007, there’s nothing in the account. Then you get paid a little bit of interest, And then there’s nothing in the account again. Agree with me there?
THE HUSBAND: 17 July.
DR SMITH:Do you agree with that? By 17 July, there’s a couple of – withdrawal for $6,288, and it goes down to nothing.
…
DR SMITH:I will ask the question. Do you accept then, sir, that across those two accounts you had a little less than $14,000 as at the middle of July 2007?
THE HUSBAND: That’s what it shows.
DR SMITH:And to the best of your recollection, does that sound about right? If you don’t know, you don’t know, sir. I’m not – we’re not trying to fabricate your evidence?
THE HUSBAND: I don’t know.
DR SMITH:And you’ve not produced any other accounts that you had at that time, did you – have you?
THE HUSBAND: No.
DR SMITH:Okay. Now, I’m right in saying the only person who had access to these accounts was you – the S1 and the S2 account?
THE HUSBAND: You are right, yes.
…
DR SMITH:…No one else had a – it is correct to say no one else had a secondary card or something similar?
THE HUSBAND: It is correct.
The Husband obfuscated about whether his [30] statement of “I contributed about $60,000 of my $70,000 ‘payout’…back into the family finances” was correct or not, asserting that he believed that it was when the affidavit was filed, but he eventually returned to assert it was still correct. It is apparent that the Husband’s bank statements were not available to him when his first affidavit was filed. I infer they were produced on subpoena.
The Wife says the Husband’s claim that he brought into the ‘reconciled’ relationship in mid-2007 $60,000 from the property settlement he had received in 2006 was simply not correct and the reality was far from what was asserted. At the time of the asserted 2007 reconciliation, as recorded in the disclosed bank statements, the Husband had available to him a bit less than one quarter of the asserted $60,000 that made up the bulk of the 2006 property settlement. The point the Husband tried to make by the $60,000 assertion was an important one. The Husband asserted in cross-examination that he had other funds in financial trading accounts at that time but was not able to obtain records of those funds. The Husband had not made such assertion in either his first affidavit, his trial affidavit or his reply affidavit. The manner of how that evidence came out raised the possibility of recent invention or at least unreliability of his evidence on this point.
Although I was not taken to them, the entries in exhibit W1 (the Husband’s bank statements) do inform this issue. Page 1034 of 1355 of W1 shows that the Husband had $60,000 deposited into his “S2” account on 14 July 2006 and it was common ground this came from the $70,000 payment described in the 2006 Final Orders. On 17 October 2006 the Husband transferred $10,000 to “Account 1” from his S2 account. On both 27 April 2007 and 30 April 2007, the Husband transferred $10,000 (total $20,000) to ‘Account 2’. On 27 April 2007 the sum of $10,099.99 (page 937 of 1355 of W2) came into the Husband’s S1 account from “Account 3 Withdrawal.” On 28 Nov 2007 (page 946 of 1355 of W2) $3,000 came into the Husband’s S2 account from “Account 4”. These records are consistent with the Husband’s assertion of having funds in “financial trading accounts” as well as in his bank accounts in July 2007 and hence support the possibility of his contributing to the family finances.
Exhibit W1 shows that $60,000 was deposited to his S2 account on 14 July 2006 from the proceeds of the 2006 Final Orders. Of that $60,000, a total of $30,000 went to either Account 1 or Account 2. The Account 1 $10,000, I infer, was returned to him to his S1 account before the $14,000 total of his two accounts in the middle of July 2007 point raised in the cross examination recited above. Otherwise before that point, W1 shows that by transfers, between 1 September 2006 and 27 April 2007, $5,000, $3,000, $1,500, $1,500, $800, $1,000, $500, $1,500, $518 and $5,000, a total of $20,318, was transferred from his S2 account (that had held the $60,000) to his S1 account and in between those dates, none came back.
It was not suggested in affidavit or oral evidence that any of the remaining $20,000 sent to Account 2 (noting $3,000 returned from there to the S1 account in November of 2007) was ever paid to the Wife or was “contributed” to the family finances, other than possibly funding the $800 per month payment.
I am satisfied from those contemporary materials and those objectively established facts as well as the Husband’s demeanour and evidence when cross-examined on this point, that the Husband did not “contribute $60,000 of his $70,000 ‘payout’” or any other significant amount “back into the family finances”. That the Husband made such an assertion goes to the reliability of his evidence and his case.
The Husband’s affidavit of evidence in chief included as follows:
[22]On or about July 2005, when [[Ms F]] was about 7 and [[Mr U]] was about 5, the Respondent and I decided to separate, as she did not agree with my views and beliefs pertaining to a common-law movement called [[P]] that I had become enamoured with. In hindsight, I agree that I was mistaken in my beliefs. The Respondent was concerned to protect her financial security for herself and the children, as she believed that my beliefs could pose a risk to our joint property and assets.
(Emphasis added)
The Wife responded to [22] at her [57] as follows:
[57]As to paragraph 22, the children were in fact aged 6 years and 4 years when we separated. I agree that [the Husband]’s involvement in [[P]]. was a cause of friction between us which contributed towards the breakdown of our marriage, although it was not the only factor which led to our separation. [The Husband]'s abusive, coercive and controlling behaviour, his inability to hold down any kind of employment for extended periods, his financial risk-taking and mismanagement of investment properties were other factors.
I will return to the highlighted passage when I address the issue of section 79A(1A).
The Husband’s cross-examination included the following;
DR SMITH:Okay. Is it fair to say that you continued to – well, I will take a few steps back then. The property settlement happens in 2006; yes?
THE HUSBAND: Yes.
DR SMITH:Of which, at that point, joint bank accounts, if there were any, were closed?
THE HUSBAND: Yes.
DR SMITH:The joint tenancy you had on the [Suburb M] property was transferred solely into your wife’s name?
THE HUSBAND: Yes.
DR SMITH:Were there any joint assets that you can think of that you had in 2006 that remained after you had done all those things in accordance with the property laws?
THE HUSBAND: No.
DR SMITH:In fact, that’s consistent with your – what you then say is, in fact, that you continued to keep your finances relatively separate- - -?
THE HUSBAND: Yes.
DR SMITH:- - -up to and including today?
THE HUSBAND: Yes. We had separate bank accounts.
DR SMITH:Did you ever open a joint bank account at all in this 13-odd year period?
THE HUSBAND: No.
DR SMITH:In fact, other than this lease, I’m not aware of you jointly being involved in anything at all, is that right, financially, property wise?
THE HUSBAND: Correct.
…
DR SMITH:Well, it’s fair to say that having separate finances was an important point to your former wife; wasn’t it?
THE HUSBAND: I don’t know.
DR SMITH:Well, are you saying that in the 13 years or so that the two of you were together you never spoke about having a joint bank account?
THE HUSBAND: We never spoke about having a joint bank account.
The Husband’s evidence included:
[36]On or about May 2011, we sold [the [Suburb M] property] for about $640,000.00. We purchased the [[Suburb G] property] in August 2011 … for about $537,000.00. The [[Suburb G] property] was bought solely in the Respondent's name. I did not question the Respondent as to why the [[Suburb G] property] was bought solely in her name, as I understood her reservations from earlier in our relationship about my financial views. I was just happy that she was happy, and even though I was not formally on the title, I always considered the [[Suburb G] property] as 'our home' . We contributed our joint funds towards the purchase of the [[Suburb G] property] and secured a loan of about $100,000.00 for renovations. I continued making the monthly payments to the Respondent's bank account, of about $800.00 per month. I also paid for utility bills and council rates for the [[Suburb G] property].
[Emphasis added]
The Wife’s evidence rebutted:
[79]I deny the contents of paragraph 36. [The Husband] and I were living separately and apart during this period. In no way did I involve him in my decision to sell the [[Suburb M] property] or purchase the [[Suburb G] property]. I liaised exclusively with the agent to advertise and market the [Suburb M property] and dealt with the conveyancer to complete the sale without any assistance or input from [the Husband]. I searched for a property in the area surrounding my parents' home in [[Suburb Q]] as I wanted to stay close to them particularly with my dad having cancer. My mother and I attended the auction for the [[Suburb G] property] and I made a bid. The property was passed in at auction, but I was able to buy it under private contract a short time later. I did not discuss the purchase of this property with [the Husband] and only told him I had acquired it after the fact. [The Husband] did not make any financial or other contribution towards the purchase of the [[Suburb G] property]. I contributed all of the funds to complete the purchase. I then borrowed a further $100,000 to carry out renovations before moving into the property. Annexed hereto and marked " 5" is a copy of my loan application dated 18 November 2011 which on page 2 confirms my marital status as "divorced". After [the Husband] moved into the [[Suburb G] property] as a boarder in August 2012, our agreement was for him to pay $800 per month but in fact he generally paid less than that. On a couple of occasions, [the Husband] paid utility bills in lieu of board.
For two years, the parties were co-tenants.
The parties kept very separate financial affairs.
Commitment to a shared life
I must consider the degree of mutual commitment to a shared life. I am unable to make a finding on the balance of probabilities as to many of controversies. I do not accept the Husband’s evidence about the Town AG holiday or the Queensland holiday. I am unable to make a finding on the balance of probabilities or have an actual persuasion about a number of events, including such as the Wife’s 50th birthday celebrations and attendance at Town AG. Annexure -6, where on 4 July 2019 the Wife emails the landlord at Town AG and describes only herself, her mother, Ms F and the dog attending together with the booking for “3 guests”, strongly supports the Wife’s version that she did not intend him to attend and is consistent with her “boarder” case.
It is not disputed that the Husband had an interest in a particular religion and went away on retreats for that religion and that the Wife and the children did not share in any way such religious beliefs or participate in those religious occasions. It was not suggested that other than culturally, the Husband and Wife being of Greek heritage, the Husband shared the Wife’s “modern” or “Australian” practice or adherence to the Greek orthodox religion (that is church attendance on occasions of Christmas, Easter, baptisms, weddings and funerals).
I find on the balance of probabilities that the Husband and the Wife did together attend many family events such as Christmas or birthdays and that over many years they were committed to sharing such important events and their mutual commitment to the sharing of those events shows a significant degree of commitment to a shared life.
I also take into account that at all material times the Wife intended to keep her property and finances protected from, and separate to, the Husband (see the discussion above).
I do not make (and am unpersuaded either way) a finding as to whether the Wife’s initial intentions were that the Husband would be living in the premises in temporary or a “see how it goes” manner, or that the common residence would be indefinite or permanent.
The Husband and the Wife shared many family events over the years and up to October 2019 (the Gala dinner) and attended some non-family events. I find that, save as to the significant matters of financial and property interests, the parties had a significant commitment to a shared life of living in the one residence and raising their children in the one home.
The care and support of children
I am to take into account the care and support of children. For the period that the parties shared a common residence, save for the times of absence of the Husband on his religious retreats, the Husband was a daily presence in the lives of the children. I find that towards the end of that period of a common residence, that was at times an unhappy daily presence.
However, notwithstanding that daily presence, the care and the support of the children fell almost entirely to the Wife and, save for special events, was not a regularly shared or common activity. Nonetheless, I find that the Husband and the Wife shared a commitment to advancing the welfare of the children as best they could, notwithstanding that the bulk of the daily work and effort of the care and support of the children was undertaken by the Wife.
Reputation and public aspects
I must address the reputation and public aspects of the relationship. It is not disputed that in 2009 the Wife’s brother Mr E invited the Husband and the Wife to his wedding separately and to the effect that they were seated at different total tables at the reception of the wedding. The date of the wedding is not in evidence. The Residential Tenancies Board Authority record, annexure -7, shows the co-tenancy lodgement of document from 9 November 2009 and the tenancy commencement of the 23 November 2009. The date of Mr E’s wedding is not in evidence.
Hence, I do not accept that there was any common residence at any significant time before Mr E’s wedding in 2009. Further, the Husband puts forward different accounts of the date of the alleged 2007 reconciliation. I also consider the divorce application and divorce order in the middle of that alleged process, a mere couple of months before the alleged 2007 reconciliation. Together with the Wife’s denial, those circumstances cause me to reject the Husband’s evidence as to that reconciliation in 2007. I do not accept Ms B’s evidence of the conversation with the Wife in 2007.
I do not accept that there was any reputation or public aspects of a de facto relationship prior to the co-tenancy at the Suburb L property. I am satisfied that from at least 2012 the Husband and the Wife demonstrated to the public an affection consistent with being a couple living together in a genuine domestic basis on the many occasions of family celebrations. I am not satisfied that the Wife ever told her family that she was living with the Husband as a couple.
I also take into account that the Wife did not ever declare in her tax returns that she had a partner. I also take into account the Husband did not, at any material time, prior to the filing of his tax return for the FYE 2015 or 2016 refer to having a partner. I do not place any significant weight on the Husband’s application for finance where he described himself as married and with a partner in 2013.
Browne v Dunn
In final address, counsel for the Wife asserted that his opponent had not made it sufficiently clear to the witnesses in the Wife’s case how the Husband’s evidence contradicted their evidence. Thus it was said the rule of law and common sense in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) had been breached.
With trial by affidavit, both parties’ evidence is laid out before the trial for each party to contemplate and hence the parties are well and truly put on notice of the evidence that contradicts their own. This is more so where the parties have filed one round of affidavits upon the initiation of the proceedings and then another round of affidavits pursuant to trial directions for affidavits of evidence in chief. The age of the word processor or computer means that in large part there is a remarkable similarity between the initial or originating affidavits and the affidavits of evidence in chief. This is even more so where the parties have responded paragraph by paragraph to the allegations previously made in the initiating affidavits or in the affidavits of evidence in chief.
Hence, in this case each of the parties were well and truly on notice of the evidence of the other side, and hence the issue of breach of the rule in Browne v Dunn does not arise.
The cross-examination by counsel for the Wife of the husband’s sister, Ms B, was very general. The cross-examination by counsel for the Husband of the parties’ daughter, Ms F, was very general. It was open to each of the parties and their solicitors, provided witnesses were not coached or presented with affidavits that were fait accompli as in “this is what your evidence will be”, to raise with any witness where relevant what the opposing party says about the events within that witness or potential witnesses knowledge. In this case the substance of the affidavits of the witness Ms B and the witness Ms F deal with the very factual issues, along with some of their opinions, that are in dispute. The inference that I draw, and the impression that I had during the trial, was that from at least the process of the preparation of the affidavits of evidence in chief, both of the non-party witnesses were well aware of at least the thrust of the evidence that contradicted what each witness asserted.
I find that each witness was sufficiently aware of the thrust of the evidence that contradicted their own evidence such that there was no unfairness to any witness or either party in the manner that the cases were conducted. It is likely, but I do not find on the balance of probabilities, that each of those non-party witnesses were not only aware of the thrust of the evidence that contradicted their assertions but were aware of the actual details. That is, likely each had read or had discussed the actual detail of the affidavits of the opposing party.
It is not necessary to find that the non-party witnesses had read the affidavits of the witnesses that contradicted their evidence, or that the specific details were put to them, detail by detail, in cross examination for me to find that the rule of fairness, common sense and law in Browne v Dunn had not been breached by either case. It is sufficient that I am satisfied that there was no unfairness in the manner in which respective cases were conducted and that the non-party witnesses were sufficiently aware of the thrust or substance of the evidence that contradicted their evidence. And I am so satisfied.
Jones v Dunkel
In final address, counsel for the Husband contended that having called now adult Ms F as a witness, the Wife had failed to call the now adult Mr U and hence had breached the principal of Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel). In opening, the Husband’s counsel had observed that it was unfortunate that the Wife had chosen to involve Ms F in the proceedings. It was equally open to the Husband as to the Wife to seek to call Mr U. The issue of why Mr U was not called (which really means why was not on affidavit and made available for cross-examination) was not agitated at all in the case. Indeed, the inference that I drew from the observation about an adult child being involved in proceedings between his or her parents of itself provides an explanation for the non-calling witness. But that matter was not raised.
In Blass, the Full Court conveniently summarised long settled law on this point as follows:
22. Without being directly stated, it appeared that the primary judge’s reference to a failure to call witnesses by the appellant drew upon the reasoning expressed in cases such as Blatch v Archer (1774) 1 Cowp 63 (“Blatch v Archer”) at [65] and, more particularly, Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”), where a failure to call a witness may be relevant to forming factual conclusions. In Blatch v Archer, Lord Mansfield said:
65. … It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. …
23. Here, what attracted the primary judge’s attention was the failure of the appellant to call either her mother or her adult daughter, Ms E, in support of her contentions that child X engaged in problematic harmful sexual behaviour.
24. In ASIC v Hellicar [2012] 247 CLR 345 (“Hellicar”) at [165], the plurality of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ firstly observed, on the issue of the failure to call a witness, that:
Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led… And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
25. At [167], the plurality then referred to Jones v Dunkel, as an example of the application of such principles, quoting:
…”that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.
(Footnote omitted)
26. However, as in Hellicar, in this case, the necessary foundation was not established to allow inferences to be drawn favourable to the respondent’s and ICL’s cases and, specifically, the precursors were not available to permit support for the inference that the appellant had fabricated evidence of problematic harmful sexual behaviours.
In this case I do not draw any inference from the circumstance that neither party called Mr U as a witness.
Conclusion as to relationship
The Husband’s account of a process of reconciliation, beginning in early 2007 with ‘dating’ and sexual intimacy, and reaching agreement for reconciliation and the resumption of cohabitation and actual cohabitation in July 2007, is inherently unlikely. Notwithstanding the issue and service of an application for divorce in the unopposed granting of the divorce by the Court in the middle of that process. But that account is not impossible. People actually do things that are inherently unlikely to an outside or objective observer. However, I regard it as a matter of significant gravity to determine where a person was or was not living for a long period of time as husband and wife and/or in a de facto relationship. As suggested by the learned author in the 17th Edition of Odgers at EA.140.120 I do consider that:
“[The] inherent unlikelihood of an occurrence of a given description”, referred to by Dixon J in Briginshaw and effectively endorsed in Neat Holdings, should be taken into account.
I do take into account the inherent unlikelihood of the parties agreeing to reconcile and then actually reconciling over a period of six or so months when smack bang in the middle of that period is the application for divorce, the service of the application for divorce, the listing of the divorce, the hearing of the divorce and the granting of the divorce.
Further, as stated earlier, I do not accept the Husband’s evidence that he contributed $60,000 or any significant amount to the family finances in about 2007, or any other material time. I do not accept the Husband’s evidence that he and the Wife purchased the Suburb G property together.
I take into account the inherent unlikelihood of a mere boarder, whom the Wife regards as a quite difficult (if not despicable) person and parent, accompanying the Wife and them both displaying warmth and affection on the many occasions of the events shown in the photos. I take into account the inherent unlikelihood of that same boarder accompanying the Wife to the Gala dinner in 2019 as shown in the photograph discussed earlier.
I am not satisfied that the whole of the Wife’s evidence and the whole of the evidence of Ms F is reliable. I am not satisfied that the whole of the Husband’s evidence and the whole of the evidence of Ms B is reliable. I do not need to be satisfied on the balance of probabilities of all of the contentious parts of the Husband’s case for his application to succeed. I only need to be satisfied or actually persuaded that the Husband and the Wife reconciled and/or lived together as a couple on a genuine domestic basis for significant periods prior to the interim IO in 2020.
I am conscious of my duty to grant all remedies to which a party appears entitled and determine all matters in controversy between the parties. I apply section 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which is as follows:
139 Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.
This brings with it the duty, if I am able, to make the necessary factual findings to determine matters in controversy to ascertain whether a party is entitled to a remedy. Those factual findings can only be made on the balance of probabilities.
I am satisfied on the balance of probabilities that some events occurred that are consistent with a reconciliation and/or the parties living together as a couple on a genuine domestic basis and inconsistent with the husband being a mere boarder. These include the co-tenancy at the Suburb L property, living in the one house and the social events as a family and as a couple with the warmth and intimacy shown in the photos discussed earlier. I am also satisfied on the balance of probabilities of events occurred that are consistent with the Husband’s occupation of the house as a boarder or as other than a partner on a genuine domestic basis. These include both parties, year after year, filing income tax returns that do not declare that he or she has a spouse when they were under a duty to do so if they did, the Husband having his separate food in the fridge and his financial contribution being limited to the mostly monthly $800 payment. I am not satisfied that the parties shared an intimate or sexual relationship over a significant period while the Husband resided in the same house. I am not satisfied that there was never any sexual intimacy between the parties. I am not satisfied of any financial dependency or interdependency other than as recited earlier. I am not satisfied of any intention to join together in any financial sense. I am not satisfied of any actual joining of the parties’ finances, regardless of intention. I refer to and repeat my findings when dealing with the provisions of section 4AA.
I take into account the whole of the evidence to the extent that I accept it, as it informs the composite picture (Colburn at [79]). I am not actually persuaded, and I do not find on the balance of probabilities, that the parties did reconcile their marital relationship or live together as a couple on a genuine domestic basis in and from 2007, 2009 or 2012 or at any other time.
In the end, I am not sufficiently satisfied that either parties’ evidence is entirely or largely reliable. Because of the matters found above, the matters I am unpersuaded about and the inconsistencies in each parties’ case and the demeanour of witnesses, I am not persuaded, on the balance of probabilities, that the parties did live together as reconciled husband and wife or as a couple living together on a genuine domestic basis. I am also not persuaded on the balance of probabilities that the Husband was always merely a boarder. Neither party persuades me of their case as to reconciliation/cohabitation or of a “boarder” on the balance of probabilities.
But the Husband has the burden of proof. That the evidence, or some of it, shows that the parties might have at some point reconciled or lived together as a couple is not sufficient. The Husband, as applicant, bears the burden of proof of the essential elements of reconciliation or de facto cohabitation. I must be persuaded of those essential elements to find reconciliation or a de facto relationship. I am satisfied they lived in the same house from 2012 and am not convinced this was not earlier, possibly from November 2009. I find that at times they may well have had a much better personal relationship until some point after October 2019, when they attended the Gala dinner together. But I am not persuaded that they actually were living as husband and wife or as a couple on a genuine domestic basis. They did at times have some affection for each other, but there is more to living as a reconciled husband and wife or as a couple living together than affection at times and living in the same house.
At the conclusion of cross-examination and submissions, I did not feel an actual persuasion either way but wanted to carefully look at all of the evidence including the incontrovertible or objective evidence. Having looked carefully at all of the evidence, I remain, and am, unconvinced or unpersuaded on the balance of probabilities of the reconciliation as husband and wife and/or the de facto cohabitation as alleged by the Husband.
Implied consent to setting aside the 2006 Final Orders?
Given that I am not persuaded that there was a reconciliation or a de facto relationship for any part of the period alleged by the Husband, it may be considered unnecessary to determine the section 79A(1A) implied consent to setting aside the orders. However there may be other circumstances apart from a reconciliation of the marital relationship where a common or joint implied consent to setting aside orders may arise.
Apart from my determination about the de facto relationship and in deference to the parties and their lawyers, it is appropriate that I record my findings about the consent to setting aside the orders.
It is common ground that the Wife’s opinion of the Husband’s financial affairs and her desire to protect her assets from him played a significant role in their 2005 separation. I refer to and repeat my finding described above when dealing with the section 4AA(2)(d),(e) and (f) (degree of financial inter dependence and the ownership, use and acquisition of property and the degree of commitment to a shared life). I refer to and repeat the not-disputed evidence of the Wife’s concern to protect her assets recited earlier (and emphasised or highlighted). There is no evidence or suggestion that the Wife ever abandoned that concern.
I find that the Wife always had at the back of her mind, that concern to protect her assets from the Husband and/or his potential creditors. The concept of consent or implied consent to setting aside the 2006 Final Orders, had she ever contemplated it, would have been anathema to the Wife. In this case any implied intention was to the opposite of consenting to the setting aside of the 2006 Final Orders. Whether I am correct or not about the nature of the parties relationship, I am satisfied on the balance of probabilities that the parties did not conduct themselves so as to impliedly consent to the setting aside of the 2006 Final Orders.
I refer to and repeat the observation of Murphy J in Waterman at [66] that for implied consent to set aside orders more than a reconciliation is needed. Lest it be overlooked, I refer to and repeat the other factual findings in Sommerville (see [90] and [100]). In Sommerville the Court accepted the wife’s evidence of agreements between the parties to make a fresh start, which included the sale of the former matrimonial home (retained by the orders by the husband) and the application of the proceeds to a new property purchased in joint names for the purpose of a new home for the parties in their reconciled relationship. The circumstances here are quite different to Sommerville. The observations in Matthews (recited in the Wife’s contentions) are also apposite.
In the matter of O’Hurley & O’Hurley [2008] FamCAFC 57 (O’Hurley), Coleman J, sitting as the Full Court, dismissed the husband’s appeal against the first instance decision. The trial judge had dismissed the husband’s application to set aside previous consent orders pursuant to section 79A and including, pursuant to section 79A(1A), alleging implied consent following a reconciliation and subsequent separation of the parties. The parties had married, separated and made final property orders by consent in October 2002. The parties never divorced (see first instance decision at [8]). The final orders were implemented. The trial judge found that the parties had resumed cohabitation subsequent to the making of the consent orders for a period of between 18 months to 3 years in duration. The reconciled cohabitation was at the earliest in late 2002 and concluded at the latest in May 2005. Hence, the whole of the relationship, the hearing and the appeal was prior to the operation of Part VIIIAB, the de facto provisions. As to the implied consent to setting aside the final orders the Full Court observed as follows:
[56]The crux of the learned Federal Magistrate’s reasoning process is probably found in the passages of his reasons for judgment in which he referred to the requirement that the “fact of consent must be established by the alleging party, ... in accordance with the civil standard, that is on the balance of probabilities”. His Honour was not satisfied that the husband had “established, on the balance of probabilities, a reasonable and definite inference of consent or that implied consent can be drawn”.
[57]Putting his case at its highest for the husband, it is apparent that his Honour concluded that it was equally probable that the parties intended to be bound by the 2002 orders during the period of resumed cohabitation as it was that they did not intend to be so bound. That being so, his Honour was unable to be satisfied that he husband, who clearly bore the onus of proof (Prowse & Prowse (1995) FLC 92-557) had failed to establish the facts necessary for his claim to succeed on the balance of probabilities, that is to say that his assertion that the parties had impliedly consented to the setting aside of the 2002 orders was more probable than not. His Honour’s reasoning process with respect to this topic was, in this Court’s view, adequately articulated.
In this case I am not only not satisfied of both parties implied consent to set aside the 2006 Final Orders but I am satisfied on the balance of probability that there was no implied consent. The Wife consistently acted throughout the period of common residence consistently with an intention to maintain separate finances, and more importantly, consistently with an intention to maintain the finality of the 2006 Final Orders.
In this case I do not find, on the balance of probabilities, that there is or was implied consent to the setting aside of the Final Orders. I find the opposite. The continued separateness of the financial affairs and property ownership of the parties was a circumstantial platform or foundation that permitted the common residence of the parties in the Wife’s property.
Does Part VIIIAB apply to a post divorce cohabitation?
Section 90RD of the Act is as follows:
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.
Although contained in Part VIIIAB, section 90RD provides power to make a declaration as to a de facto relationship, whether or not the proceedings are a matrimonial cause. This is apparent from the terms or qualifications of section 90RD(1)(a) and (b). The only prerequisite or necessary qualification for a section 90RD declaration is that an application is made for orders for maintenance or urgent maintenance or property settlement or a declaration as to a property interest. This appears to apply whether or not a matter is, or turns out to be, a matrimonial cause.
I was not asked to make a declaration except as to the existence and period of a de facto relationship. In this case I am not persuaded that the parties did live in a de facto relationship and hence I do not make any declaration that they were at any material time.
Matrimonial cause or new Part VIIIAB de facto relationship?
Because of my findings, it is not a necessary part of the quelling of the parties’ controversy, to determine the conundrum of whether parties who were once married then separated, made final property orders and divorced and then reconciled, in the circumstances where their final property orders are not set aside, can utilise Part VIIIAB to bring a property alteration claim based on the circumstances, including contributions, from the time of reconciliation. That the parties debated before me what the law was, or that there may be or may not be uncertainty as to the law on this issue, does not render it necessary to determine that issue. Any determination about it would be hypothetical or advisory only and that is not the role of the Court (see Colburn& Cleese (2020) FLC 93-995 (‘the first Colburn’) at [40]-[41] applying Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334). Hence, I will not make any determination or explore that issue of statutory interpretation any further.
In any event, the parties have not had the opportunity to address me as to the consequence, if any, of the decision of Colburn, on the facts as I have found them to be. But because of my findings the issue does not need to be determined.
Conclusion
As a result of my findings there is no “live” dispute under Part VIII or Part VIIAB of the Act. I will order that the Husband’s Amended Application filed 24 February 2021 be and is dismissed.
I certify that the preceding three hundred and four (304) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 December 2022
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