Mason and Hammett
[2011] FMCAfam 1004
•31 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASON & HAMMETT | [2011] FMCAfam 1004 |
| FAMILY LAW – Limited and discrete issue concerning declaration in which defacto relationship terminated – interpretation of the term “separated” in law. |
| Family Law Act 1975, ss.4AA, 9RD, 90RB, Part VIIIAB Federal Magistrates Court Rules 2001, rr.14.09, 14.06, 24.04 |
| Aitken & Deakin [2010] FMCAfam 35 Todd & Todd (1976) FLC 90 – 008 Pavey & Pavey (1976) FLC 90 – 051 Fenech & Fenech (1976) FLC 90 – 035 |
| Applicant: | MS MASON |
| Respondent: | MR HAMMETT |
| File Number: | AYC 461 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 31 March 2011 |
| Date of Last Submission: | 31 March 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 31 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blank |
| Solicitors for the Applicant: | Skinner & Associates |
| Counsel for the Respondent: | Mr Thistleton |
| Solicitors for the Respondent: | Kell Moore Solicitors |
ORDERS
Pursuant to s.9RD, a de facto relationship existed between parties to these proceedings as at 1 March 2009.
The Court is satisfied that the separation of the parties occurred no earlier than 20 March 2009, but in all probability occurred between 26 July 2010 and 19 August 2010.
That the parties are to attend a conciliation conference with a Registrar at the Albury Registry at 9am on the 29 June 2011.
That pursuant to Rules 14.06 and 24.04 of the Federal Magistrates Court Rules 2001 and within 35 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c)Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d)Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e)Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f)Any document proving or tending to prove any allegation contained in that party’s Financial Statement or Affidavit;
(g)Copies of market appraisals or computer site print outs as to value of:
(i)Any motor vehicle the value of which is not agreed;
(h)Copies of the following documents:
(i)Any other documents as may be requested within 14 days;
In the event that that there then remains dispute as to the value of any parcel of real estate upon exchange of appraisals (within 21 days) then the parties are to seek, within a further 7 days, to negotiate an agreed figure and, if no agreement is reached, to obtain, file and serve valuations of such parcels within a further 14 days (to be single expert valuations if agreed or individual valuations if not).
Any party seeking to retain any asset and/or to pay monies to another person shall ensure that they have made all relevant enquiries as to their borrowing capacity and so that they are able to negotiate and make a real and genuine attempt to resolve the matter at the Conciliation Conference.
A list particularising all documents provided pursuant to order 2 above hereof shall be served with the documents so produced and an Affidavit attaching that list (being an Affidavit of documents) shall be filed with the Court within 28 days and pursuant to Rule 14.09 of the Federal Magistrates Court Rules no party shall be entitled thereafter to put a document (whether original or copy) into evidence unless that document was disclosed and listed in the Affidavit of documents filed pursuant to this direction.
(Please ensure that particular attention is paid to this order as leave will, in all probability, be refused to put a document into evidence at Trial in the event of non-compliance with this order)
Inspection of all documents produced by a party as above shall occur within 7 days of production (and being no more than 35 days from the date hereof).
No later than 7 days after inspection of documents pursuant to the above order the parties and each of them are to ensure that any request for the provision of addition documents is made of the other parties and any documents requested shall be provided, with an addition list particularising documents produced, within a further 7 days.
7 days prior to the Conciliation Conference each party shall produce and provide to the other parties and the Registrar’s section (preferably by email) a spreadsheet (in Excel format) setting out:
(a)The assets, liabilities and financial resources alleged by them to comprise the present pool;
(b)Any asset, liability or resource disposed of or acquired post separation;
(c)The financial consequences of the orders proposed by them in their Application or Response.
and those spreadsheets are to be retained on the Court file.
Not less than 7 days prior to the Conciliation Conference each lawyer for a party shall provide to their client a written statement of fees incurred to that time; expected to be incurred for the Conference and likely to be incurred in preparation for and conduct of a trial if the matter is not resolved.
The Conciliation Conference appointed is not to be administratively adjourned and save in the event of illness or misadventure the parties and their legal representatives are expected to attend the conference and make a genuine effort to resolve issues.
In the event that the matter is resolved prior to the above mention date but other than at the Conciliation Conference then leave is granted to file Terms of Settlement (together with proof of procedural fairness to any Trustee or person affected by the proposed orders) and orders will then be made in Chambers and any future dates vacated.
In the event that it is apparent at the Conciliation Conference that a party has failed to comply with the above direction or any of them and in the event that the matter is not resolved then the Registrar conducting the Conference is requested to place on the file a written note of same (in the form of an order and/or notations) of that fact and so as to ensure that the Court is informed of same and, further, to order costs or to reserve the costs of the Conference (which costs will be determined by the Court on the next listing).
The matter is to be listed before the Court at the conclusion of the Conciliation Conference by telephone link.
Leave is granted to the Solicitors to Ms Mason to make an application for costs with respect to the declarative proceedings.
That application is adjourned to the Conciliation Conference, and if all issues are not resolved at the Conference, to be determine at the conclusion of the Conference or a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Mason & Hammett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
AYC 461 of 2010
| MS MASON |
Applicant
And
| MR HAMMETT |
Respondent
REASONS FOR JUDGMENT
These are proceedings that seek a declaration as to the date on, or timeframe in which, a de facto relationship between the parties terminated.
The parties to the proceedings are the applicant, Ms Mason, and the respondent Mr Hammett.
In most respects there is little factual dispute between the parties regarding the circumstances of their relationship but there is sufficiently significant factual dispute between the parties in relation to the termination of their relationship, and the circumstances of it, to have caused the matter to proceed to a hearing at this point on that limited and discrete issue.
Subject to such orders as are made today, the parties will need to either recommence proceedings in a state jurisdiction, with the added complication that, having lived in the Albury Wodonga region, they will have the issue of which court on which side of the border they commence that litigation in. Alternatively, we will move forward in this Court’s process.
The basic factual background of these parties is that they had commenced their relationship with each other quite some years ago. That much is not dramatically in dispute between the parties, although there is some little issue as to when cohabitation actually commenced. Certainly by late 1997, early 1998, there is no dispute cohabitation had commenced.
The real issue is whether these parties had separated either in about November 2008 or a date subsequent to that but prior to 1 March 2009 when the relevant provisions of part VIIIAB of the Family Law Act 1975 commenced operation or whether, as is asserted by Ms Mason, the parties separated as late as 19 August 2010.
The evidence of the parties is contained within affidavits that they have each filed. Ms Mason has relied upon an affidavit filed by her on 18 March 2011 which, to say the least, is extensive and comprehensive.
Mr Hammett has relied upon an affidavit, filed by him 25 March 2011, as well as affidavits of an adult child of his from a prior relationship, Mr H, filed 24 March 2011, and a friend Mr G, filed 23 March 2011. Neither of those support witnesses, if I can call them that, were required for cross-examination.
Ms Mason also caused a subpoena to issue and, accordingly, evidence was given by a further witness in her case. The affidavit material that has been filed in the proceedings was also augmented, to some extent, by oral evidence by each of the parties and their cross-examination.
The gravamen of the issue between these parties relates to, and is inherently connected with, a move by Mr Hammett to [E], Victoria to reside in a property that he had purchased there, the purchase of which settled and concluded on 20 March 2009. The purchase of that property had commenced some little time earlier and, indeed, settlement had been scheduled for some days earlier but was slightly delayed as the parties were awaiting the sale of another property in the Albury/Wodonga area, and its settlement was similarly delayed and caused both of the simultaneous transactions to be delayed. Nothing whatsoever turns on that issue.
The circumstances in which the [E] property was purchased and the manner in which the parties then dealt with each other regarding their respective intentions, or otherwise, to move jointly or individually to that property is central to the evidence of both parties.
The parties are not in dispute at all that up and until November 2008 they were living together in a de facto relationship that primarily comprised the parties both living in the same property, with each other, at the same time.
The parties are also not in dispute that during the relationship the ownership of property and the maintenance of bank accounts was arranged such that each party always maintained individually rather than joint accounts and property holding. That is an agreed fact but has some relevance, potentially, as to the determination of when the de facto relationship between these parties ceased to exist as defined by reference to the various criteria in s.4AA.
Mr Hammett’s evidence is that, having determined to purchase the property in [E] during 2008, that he had communicated this to
Ms Mason. It is conceded that Ms Mason had come and looked at the house at [E] on at least one occasion and had indicated that it was a nice area.
The parties then begin to disagree as regards to the conversations regarding the purchase and the specific content of conversations regarding the move. Mr Hammett, in his evidence, suggest that having signed the papers to commence the purchase of the property, that a conversation occurred between them to the following effect:
Ms Mason: “I am not going to move out there to live. If you go there then I am going back to my house.”
Mr Hammett: “I am going to live in [E] anyway.”
Ms Mason: “I will never, ever, live in [E] with you.”
Mr Hammett’s evidence concludes at paragraph 34 of his affidavit:
“I took that statement to confirm our de facto relationship had come to an end.”
There is no other indication in Mr Hammett’s evidence that prior to that alleged conversation that there had ever been a conversation or a communication between the parties evidencing a desire or intention by either to terminate the de facto relationship between them.
Ms Mason’s evidence canvasses the same area. However, her evidence is slightly at odds in that she suggests at paragraph 6 of her affidavit that the conversation and her portion of it comprised her saying:
“It’s a lovely place, lovely area, but not practical at this moment to buy because it’s too far away from your Mum and [X].”
The reference to “Mum” is to Mr Hammett’s mother who was then elderly, living in Wodonga, and whom, shortly after Mr Hammett’s move to [E], had moved to a nursing home and subsequently passed away. The reference to “[X]” is to Ms Mason’s child of a former relationship who, albeit an adult, is dependent, as was suggested in
Mr Hammett’s evidence, all of Ms Mason’s children are, for some support, financial or otherwise, from their mother. [X]’s dependence is due to a number of medical problems.
The conversation was suggested by Ms Mason to have continued as follows:
Ms Mason: “Your Mum still needs to be looked after. She needs us. She is in her late 80s, you are an only child and all she has got.”
Mr Hammett: “Pigs arse. We need a life. We will take it in turns going back and forth. I have got it all worked out; I’ll come in for four days and we can both stay with Mum. I can come back out here for the other 3 days and you can go to your house or come out here if you want to.”
Ms Mason: “I think that will be hard to work before your Mum needs constant care.”
Ms Mason’s evidence then goes on to discuss further conversations during the course of the transaction by Mr Hammett to purchase the [E] property, including references to discussions regarding their respective finances and Centrelink entitlements. It is then suggested that from the time that the contracts had been exchanged and prior to purchase – and there is no factual dispute between these parties that it is so – that there was a license to commence occupation of the property, at least to the extent of moving material into it. The evidence, as it ultimately unfolded, would appear to make clear that property was moved from the property in the Albury Wodonga area (that was then being sold) to the [E] property but that Mr Hammett did not take up full-time occupation of the [E] property until after settlement on 20 March 2009.
During that period of time the parties had the assistance of a number of people including a close friend of Mr Hammett, being the gentleman who had been subpoenaed to give evidence in the proceedings. During that period also, a number of items of Ms Mason’s property were moved from the jointly shared residence to a property in Property K, Albury, being a property that Ms Mason owned, but which was occupied at that period of time by adult children of her former relationship who had been burned out during the Victorian bushfires.
Following Mr Hammett’s full time removal to [E] a number of events occurred. Firstly, Ms Mason took up occupation of premises in Wodonga, her then home in Albury being occupied by her children. Secondly, Mr Hammett continued to return to the Wodonga area, on his evidence every one to two weeks, and on Ms Mason’s evidence every two to three weeks, when they would then stay together at the Wodonga property which was occupied by Ms Mason. The parties’ evidence is somewhat at odds in this regard, but it is important to note that Mr Hammett indicated that not every time he came to Wodonga would they stay together. Accordingly, there is potentially at least, less inconsistency between those conflicting versions than might otherwise appear the case, and they can, in fact, both stand together.
For some time the parties continued in such an arrangement. It is conceded that on four occasions, although Ms Mason asserts that it was many more, Ms Mason had gone to and stayed with Mr Hammett at the [E] property. Material tendered in evidence and marked as exhibits certainly would suggest that Ms Mason has not used a telephone or ATM debit card whilst at [E], but I am satisfied that no great amount turns on that and, certainly, at the very least, there are four periods of time of Ms Mason staying that are conceded. Mr Hammett’s evidence initially suggested that Ms Mason had not stayed at all, however, that later concession is not a matter that dramatically affects the credit of Mr Hammett.
Ms Mason’s evidence goes into much detail about the periods of time the parties shared together. It was certainly conceded in one important respect, being a period suggested in April 2009, that Ms Mason had been to [E] and stayed there. The material tendered, phone records and the like, make clear that it did not occur in April. Ms Mason conceded she was clearly wrong about the date - and appropriately so, faced with the documents that she was shown that verified that she was in other places – but did not resile from her evidence as to the substance of the visit that she alleged.
It is also clear from Ms Mason’s evidence that the parties had some real difficulty with Mr Hammett staying at her property in Albury, to which she had ultimately returned, particularly following the death of
Mr Hammett’s mother. On Ms Mason’s evidence, the parties, whenever they stayed together in the Albury Wodonga area, did so at the property in Wodonga which was ultimately received by Mr Hammett by way of inheritance from his mother’s estate rather than at Ms Mason’s residence.
Issues
On the evidence the case really turns upon an interpretation of the law which was referred to by each of the parties in their closing submissions as to the nature and meaning of “separation”. The real issue, in my mind, is whether there was a change in the relationship between these parties at or occasioned by the move to [E] of such a nature as would clearly, and of itself, suggest that the relationship must have terminated, was accepted by one or both of the parties as having terminated, and if so accepted by one, had been communicated through words, actions, or both to the other.
The law relied upon in Mr Hammett’s case is a decision of McGuire FM of Aitken & Deakin [2010] FMCAfam 35. That case involves his Honour helpfully and succinctly summarising the law which had applied regarding, not so much the termination or date of separation regarding de facto relationships but marriages - matters which had been in the Court’s jurisdiction for a far more considerable time than the more recent invention of Part VIII AB of the Act.
His Honour in that case refers to a decision of Watson J in Todd & Todd (1976) FLC 90-008, as well as to the decision of the Full Court of the Family Court in Pavey & Pavey (1976) FLC 90-051, and her Honour’s Evatt CJ’s decision in Fenech & Fenech (1976) FLC 90 – 035.
Each of those cases places some real weight and importance upon communication of intent. The authorities are suggested by his Honour, McGuire FM, to make clear that there are three elements of separation of a legal sense, being:
a)The development of an intention to separate [And highlighting that the intention need not be mutual ]
b)The communication of that intention to the other party [It is suggested that this communication need be unambiguous and unconditional] and thirdly,
c)Some form of action upon the determination to separate.
It is indicated by McGuire FM, and I respectfully agree with his opinion, that the test as to what is communication in that sense is an objective one.
Of particular importance is the decision of Evatt CJ in Fenech, as quoted by McGuire FM. In that case, her Honour says:
“I am satisfied that the breakdown has been continuing for at least a year but that is not enough. Marriage comes in many shapes and sizes, and many families are living in a strange relationship like this. To the outside observer matters go on much as usual, and only within the family itself, between the husband and the wife, is there any acknowledgement of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households not one.”
On one level, quite clearly, at the time that the [E] property was purchased, and certainly by the time its purchase completed on
20 March 2009, there was the creation of two households. Indeed, at one point in time there were three households as Ms Mason was living between the property in Wodonga and her own home in Albury which she stayed at from time to time, as well as periodic visits to [E] (even though there is dispute as to the frequency and duration of those visits).
However, it is urged upon me by Mr Hammett in his submissions that I would infer that the substantial change in the relationship that occurred at the time that furniture began to be moved to [E] and certainly by the time Mr Hammett had moved to [E], (and indeed if not from the time of the conversation that is referred to in his affidavit material as occurring in November 2008), that the nature of the relationship had changed so dramatically that it could not be otherwise than that the relationship had been terminated through word, deed, or both.
In Ms Mason’s case it is suggested that, whilst there was discussion (and she had very clearly, on her own evidence, expressed her dissatisfaction regarding a move to [E] for these parties jointly on a full-time basis), that she had understood that the relationship subsisted, and continued, and, indeed, in her mind, that was so.
There can be no dispute that the purchase of the [E] property, and certainly no later than 20 March 2009, a substantial change in the nature of the relationship occurred. The issue in my mind is whether that change in the relationship is such that it must, of necessity, be taken to have terminated the relationship or whether it is possible that the relationship subsisted but in a different form. The key to that determination is the issue of whether there was communication of any intent that may have been formed.
Based on his evidence, taken at face value – and I have no reason to do otherwise – Mr Hammett is clear that by the time that there had been discussion between these parties in November 2008 regarding the purchase of [E], whether that discussion was as asserted by Ms Mason or Mr Hammett, that Mr Hammett was of the view that he was moving, come what may, to [E]. His evidence was that he was fairly clear in his mind that he did not believe Ms Mason was coming with him and, indeed, he may not have desired her to at the time. Mr Hammett asserts that he had started to form the beginnings of a belief that the relationship was, or was about to, end or that it had in fact ended. But again, fundamental to the Court’s determination is whether that, if believed, was communicated to Ms Mason in any fashion sufficient to have given the message clearly to her.
Again, in submissions it is suggested that the 35-odd trips from Albury to [E] conveying furniture should have been, on each of those occasions, a reaffirmation to Ms Mason of Mr Hammett’s desire and intent to conclude the relationship.
Section 4AA of the Act contains a definition of a de facto relationship:
A person is in a de facto relationship with another person if;
(a) the persons are not legally married,
(b) the persons are not related by family, and
(c) having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
It is conceded by counsel for each of the parties that to live together as a couple on a genuine domestic basis does not, of itself, require full-time, 7 day a week cohabitation. However, sub-s (2) of s.4AA contains a useful checklist – and that is all it is – of the matters that one might consider in determining whether a de facto relationship subsists. These include:
a)the duration of the relationship;
b)the nature and extent of common residence;
c)whether a sexual relationship exists;
d)the degree of financial dependence or independence, and any arrangements for financial support;
e)the ownership, use, and acquisition of property;
f)the degree of mutual commitment to a shared life;
g)whether the relationship is registered under a state law;
h)the care and support of children; and
i)the reputation and public aspects of the relationship.
I propose to deal with each of those separately and as follows;
Duration of the Relationship
These parties had cohabited, by November 2008, for a period in excess of 10 years. The basis upon which it is asserted that the relationship had concluded and had been communicated is, on Mr Hammett’s case, that contained in paragraph 54, wherein it is asserted that Ms Mason had made clear to him that she was not moving to [E], and on that basis, Mr Hammett took that statement as the end of the relationship. There is nothing in his evidence, whether affidavit or oral, to suggest that he had taken any other step or made any other communication to Ms Mason to communicate a clear intent to then end the relationship, if such intent had been formed, clear.
The nature and extent of common residence
Throughout their relationship and until November 2008 these parties had primarily lived together in the one home. There had been periods, however, when they have not. Certainly from March 2009, the extent to which these parties shared a common residence changed substantially and dramatically, but the parties did continue to spend some time together under the one roof whether in Wodonga or [E], and far more commonly in Wodonga.
During that period of time, Ms Mason had lived in property at Wodonga as well as commuting between her property in Albury, which her children lived in for a period of time and until the latter part of 2009 or earlier part of 2010 at which time she moved back to that accommodation on a full time basis. Mr Hammett also used his deceased mother’s home in Wodonga as his base in the Wodonga Albury area.
Whether a sexual relationship exists
There is no dispute between these parties that between November 2008 and August 2010 their sexual relationship continued.
Ms Mason’s evidence would suggest that this was consistent with the continuation of their relationship and her understanding that it subsisted. Mr Hammett, perhaps in an ungentlemanly fashion, but certainly frankly, suggested that these parties simply “had needs” and that they “mutually assisted each other in meeting them”. However, the sexual relationship certainly continued. More detailed evidence was, thankfully, not canvassed.
The degree of financial dependence or independence of the parties
There is some limited evidence as to a continuation of the financial relationship between these parties following March 2009 comprising some joint purchases, purchases undertaken by the parties whilst together, whether in the form of shopping for groceries, purchasing electrical items, or otherwise and certainly the passage of $100 by way of a birthday gift. Not a great deal turns upon that as demonstrating financial interdependence, but what is also to be noted is there is no dispute between these parties that, whilst they both previously considered themselves very much in a de facto relation, a committed, exclusive relationship with each other, their finances were always kept separate.
These parties owned property in their own names. They each obtained single benefits from Centrelink. They each had their own savings. They did not operate joint accounts or purchase property jointly, although they did purchase property together and used it together.
Ownership, use, and acquisition of property
This is dealt with above.
The degree of mutual commitment to a shared life
This is, perhaps, one of the clearer elements in which the evidence of these parties differs. Ms Mason’s evidence, which I am inclined to accept to the extent that there is any dispute between her evidence and that of Mr Hammett, makes clear that it was her understanding that she was not moving for the time being as, initially, she believed that there were commitments that she owed to Mr Hammett’s mother.
I am satisfied that Ms Mason’s evidence is credible and should be accepted.
Mr Hammett indicated in his oral evidence that Ms Mason did not do anything for his mother. It was unclear whether this was intended to suggest at all or post-separation noting that the move to [E] had occurred somewhere in between November 2008 and March 2009and that sometime after March 2009 Mr Hammett’s mother had moved to a nursing home. However, what is clear in that regard is that Ms Mason’s evidence suggests that she was not proposing to move immediately to [E] at the time of the purchase.
It may be that she subsequently formed an intention to not move at all, or that Mr Hammett formed a desire that she not move in with him on a full-time basis, but Ms Mason’s evidence is clear that she had remained behind not out of any desire to terminate the relationship – although that was inferred on Mr Hammett’s evidence – but as she had:
a)ongoing obligations to her son [X] who has disabilities and to other children
b)other commitments in the area
and that she continued to believe in her mind that the relationship subsisted and that was why she visited [E] and spent some time with Mr Hammett both there and in Wodonga and why they undertook activities together.
The phone records tendered, albeit for a different purpose, suggested clearly that there was daily to bi-daily communication by telephone between these parties. Ms Mason’s evidence was that she considered the relationship changed as that they were, temporarily, no longer living under the one roof on a full-time basis. Ms Mason adhered unshakably to her evidence that she believed that the relationship subsisted and Mr Hammett had not, at any point prior to August, 2010, sought to disabuse her of that belief. That is also consistent with
Ms Mason’s evidence as to her view of these parties sex life, that this was not something she engaged in purely to “scratch an itch” as it were.
The care and support of children
This is not, to the extent that there are no children of the relationship as defined by s.90RB of the Act. Whilst each party has children from prior relationships they had ceased to be “children” for the purpose of the legislation well prior to the relationship commencing.
Whilst there are children who are relevant. Ms Mason has adult children of a prior relationship and her support of those children has some relevance to the arrangements that flowed following the purchase of [E]. But those children have not lived with these parties.
Reputation and public aspect of the relationship
This was a matter of some moment, particularly as regards the support witnesses, who largely sought to suggest that they had not seen
Ms Mason at [E] on any regular basis and that she had indicated, at least to Mr Hammett’s son, some clear intention to not move to [E].
It was suggested in oral evidence of the support witnesses called by
Mr Hammett, changeable as that evidence was between evidence-in-chief and cross-examination, that the move to [E] was seen by
Mr Hammett as being the death knell, if not the end, of the relationship. The overall evidence of the parties, as I have indicated, makes clear – and neither party seeks to assert otherwise – that there was a very substantial change in the nature of the relationship between November 2008 and March 2009, arising from the purchase of [E].
However, on the balance of the evidence, I am satisfied that any intention to end the relationship, if it was indeed formed by
Mr Hammett, was not communicated in any fashion at all to
Ms Mason. Indeed, it is not suggested by Mr Hammett that he had formed such an intention. He seeks to rely, in his evidence, upon
Ms Mason’s termination of the relationship through her having indicated that she would not, under any circumstances, move to live at [E], and on the basis that Mr Hammett then took it that his move to [E] would terminate the relationship. It is suggested that by then moving to [E] after Ms Mason had said, in whatever words and for whatever period that she was not, that Mr Hammett communicated an intention to end the relationship. I am not satisfied that this is so.
Ms Mason, in my mind, was never disabused of the notion that the relationship subsisted. In my mind, her view – and it was a matter for Mr Hammett to disabuse her of that view – was that the relationship subsisted, and that these parties would maintain largely separate residences for some time until arrangements were clarified between them. Quite clearly, if not at the time of the relocation to [E], sometime thereafter, between 20 March 2009 and August 2010, Mr Hammett did, most assuredly, form that belief and did communicate it. Whether that belief was formed significantly before the final, tumultuous ending of this relationship, or whether that was ever communicated in any fashion by Mr Hammett to Ms Mason whilst their sexual relationship continued, is unclear.
As I have indicated, the most I can from Mr Hammett’s ongoing failure to communicate that he wished to terminate the relationship was that it was, perhaps, ungentlemanly, rather than conclusive of any issue in dispute between these parties.
Ms Mason’s evidence is that, certainly by August 2010, matters were communicated clearly to her by Mr Hammett. Ms Mason was not challenged with respect to the conversations that she alleges, commencing 19 August 2010, wherein she deposes that she had travelled to [E] as she had been concerned for Mr Hammett – indeed, the oral evidence of the subpoenaed witness suggests that the had contacted Ms Mason because he also had concerns for Mr Hammett, and she had determined to go out there to find out for herself what was going on.
It is suggested that at this time Mr Hammett had indicated to Ms Mason, “We need to talk. We are both too old for this. We need to get this sorted out. Where is all this leading?” It is to be noted at that point in time the relationship between the parties had continued to fall by the wayside, the visits and the times that the parties spent together were becoming less frequent, and certainly, whilst the parties continued a sexual relationship, the other aspects of their relationship were faltering.
It is certainly made clear, at point in time, and on Ms Mason’s evidence, that she was entirely disabused of the notion that the relationship would, or could, subsist, and accordingly, at that date at the very latest, I am satisfied the relationship was well and truly at an end.
It is entirely possible that, indeed, the relationship had reached a level of dysfunction where each of these parties, and Ms Mason’s evidence is consistent that prior to the conversation she deposes to on 19 August that she was beginning to form the same beliefs, that the relationship was faltering. Indeed, it is suggested in Ms Mason’s evidence that in July 2010 conversations regarding the future of the relationship, or whether indeed it had one, were beginning to occur regularly, and, accordingly I am satisfied that, certainly within that period of time, whilst it is not a requirement that the parties have any mutual desire to end the relationship, Ms Mason was getting the message clearly from Mr Hammett that the relationship was, at the very least, troubled, if not over or about to be over.
However, I have some real difficulty in finding, as the authorities would appear to suggest, a requisite level of objective communication of the desire to terminate the relationship, between November 2008 and 20 March 2009, and to that extent I am satisfied that the relationship was still, as at the commencement of Part VIIIAB of the legislation, subsisting as of 1 March 2009. Without any specific finding as to the date of separation, I am satisfied and so declare that as at 1 March 2009 the de facto relationship between the parties subsisted, and thus, accordingly, the jurisdiction of the Act, and Part VIIIAB applies to the determination of financial issues between these parties.
That having been said, unless I am wrong as regards a specific finding as to the date of separation of the parties, I further declare that I am satisfied that the de facto relationship between the parties ceased to exist between 26 July 2010 and 19 August 2010.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 19 September 2011