MEADOWS & MEDVED

[2018] FCCA 111

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEADOWS & MEDVED [2018] FCCA 111

Catchwords:
FAMILY LAW – De Facto property – whether a de facto relationship existed between the parties.

Legislation:

Family Law Act 1975, ss.4AA(1), 4AA(2), 4AA(3), 4AA(4), 90RD, 90SB

Cases cited:

Jonah & White (2012) FLC 93-522

Elias, V.J. and Elias, E.K (1977) FLC 90-267

Applicant: MS MEADOWS

Respondent: MR MEDVED

File Number: MLC 1006 of 2015

Judgment of: Judge Small

Hearing dates: 22 & 23 May 2017

Date of Last Submission: 23 May 2017

Delivered at: Melbourne

Delivered on: 19 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Lovering

Solicitors for the Applicant: Dimitra Iatrou & Associates

Counsel for the Respondent: Ms Jenkins

Solicitors for the Respondent: Dwyer & Co Solicitors

DECLARATION

1. Pursuant to s.90RD(1) of the Family Law Act1975, the Court declares that the parties were not in a de facto relationship as defined in s.4AA of the said Act between May 2012 and July 2014.

ORDERS

1. The Application filed 12 February 2015 is therefore dismissed for want of jurisdiction.

IT IS NOTED that publication of this judgment under the pseudonym Meadows & Medved is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1006 of 2015

MS MEADOWS

Applicant

And

MR MEDVED

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a property matter arising from the breakdown in the relationship between Ms Meadows (“Ms Meadows” or “the Applicant”) and Mr Medved (“Mr Medved” or “the Respondent”).

2. Ms Meadows commenced proceedings in this Court seeking Orders for a just and equitable property settlement between the parties. Ms Meadows claims that the parties were in a de facto relationship between May 2012 and July 2014.

3. Mr Medved denies that the parties were ever in a de facto relationship, and therefore seeks Orders that the proceedings be dismissed and/or for a declaration that a de facto relationship never existed between the parties.

4. Of course it is always possible for a party to a relationship to genuinely believe that they are or were engaged in a de facto relationship when that is not the case according to the law.

5. The converse, too, is possible: that a party to a de facto relationship at law may genuinely believe that they are or were not engaged in a de facto relationship.

6. This issue is important, because the Federal Circuit Court has no jurisdiction to hear property disputes between separated couples unless they were in a de facto relationship as defined by law.

7. Before the Court can entertain the Applicant’s application for a property settlement, it must be satisfied that it has jurisdiction to do so.

8. Therefore the only issue to be decided in this case at this stage is: Were the parties ever in a de facto relationship such that the jurisdiction of the Federal Circuit Court of Australia is enlivened?

Background

1. Ms Meadows was born on (omitted) 1964 and is currently 53 years old. She is currently in receipt of a Disability Support Pension from Centrelink. She has been in receipt of this pension since 1998 as a result of an injury she suffered at age 13 on (omitted).

2. Mr Medved was born on (omitted) 1975 and is currently 42 years old. At the time of trial he was employed on a casual basis in (occupation omitted).

3. The parties met in July 2007 and began their relationship in August 2007.  They temporarily separated between February 2011 and May 2012.

4. The Applicant claims that the parties lived together at the Respondent’s house from approximately May 2012 to July 2014.

5. The Respondent denies that the parties lived together and claims that while the Applicant stayed at his home at times between those dates, they maintained separate homes at all times during the relationship. The Respondent says that the relationship ended on or around 7 May 2013, although the Applicant continued in her role as carer for his mother until 10 October 2013.

6. It is the evidence of the Applicant that the relationship ended on a final basis on 15 July 2014.

7. There are no children of the relationship. The Applicant has two adult children from a previous marriage.

Procedural History

1. The proceedings commenced with Ms Meadows filing an Initiating Application, sworn Financial Statement and Affidavit in Support on 12 February 2015.

2. Mr Medved filed a Response, sworn Financial Statement, Affidavit in Support and Notice to Admit Facts on 20 April 2015.

3. The matter first came before me on 29 April 2015 in the Duty List. At this time I set the matter down for a two day trial commencing 18 April 2016. The parties were able to reach agreement with regard to discovery of documents.

4. The matter next came before me for Final Hearing on 18 April 2016, however the trial was unable to proceed and was adjourned to 22 May 2017 for a further two days. I ordered that the Applicant pay the Respondent’s costs of the hearing listed on 18 April 2016.

5. The Final Hearing commenced on 22 May 2017 and ran for two days. Witnesses included the Applicant, the Respondent, Ms J (“Ms J”), Ms D (“Ms D”) and Ms C (“Ms C”).

6. After submissions at the conclusion of the trial I reserved my decision.

Issue: Were the parties ever in a de facto relationship such that the jurisdiction of the Federal Circuit Court of Australia is enlivened?

The Law

1. This question arises from the provisions of the Family Law Act 1975 (Cth) (“the Act”), which states that a Court has jurisdiction to make an order for the division of property between separated couples only if the Court is satisfied that the parties have been involved in a de facto relationship as a matter of law.

2. Section 4AA(1) of the Act states that 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; 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.

3. The factors to be considered when a court decides whether the parties have been in a de facto relationship are set out in s.4AA(2) as follows::

   (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.

4. Section 4AA(3) states that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship, and s.4AA(4) states that when a court is determining whether a de facto relationship exists it may take into account such matters, and the weight to be attached to such matters, “as may be appropriate to the court in the circumstances of the case”.

5. Section 90SB of the Act states that the court may make an order relating to a party’s obligation to provide maintenance for the other party, or an order altering the property interests of the other party, only if the court is satisfied:

   (a)that the period, or the total of the periods, of the de facto relationship is at least two years; or

   (b)that there is a child of the de facto relationship; or

   (c)that:

   (i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of the kind mentioned in paragraph 90SM(4)(a), (b), or (c); and

   (ii)a failure to make the order or declaration would result in serious injustice to the Applicant; or

   (d)that the relationship is or was registered under a prescribed law of a State or Territory.

The Evidence

1. It should not be assumed that I have not considered a piece of evidence if it is not specifically mentioned in these Reasons for Judgment. I have read all affidavit material filed in this matter, and in addition to the impressions I gained of the parties at trial, I have had the benefit of reading the transcript of the proceedings.

The duration of the relationship

1. The total duration of the relationship between these parties was approximately four or five years. That is, the relationship was in existence between August 2007 and February 2011, and between May 2012 to either May 2013 (on the evidence of the Respondent) or July 2014 (on the evidence of the Applicant).

The nature and extent of common residence

1. The evidence of the parties in relation to whether they had a “common residence” took up the majority of the time at the trial of these proceedings.

2. I note, at this point, that the parties are not in dispute about the nature of their relationship between August 2007 and May 2012, as they agree that they did not live together during that period.

3. However, Ms Meadows says that she did live with Mr Medved between May 2012 and July 2014.

4. It was her evidence that she obtained public housing in 2001, and that she has continued to be the sole tenant named on the lease of the property at Property A (“the Property A property”) since about 2005.

5. Under cross-examination by counsel for the Respondent, Ms Meadows admitted that she had never told the Department of Health and Human Services, from whom she rented her house, that she was in a de facto relationship, and that she had not told Centrelink, from whom she receives a Disability Support Pension, that she was in such a relationship until mid-2012, when she applied for a Carer’s Allowance.

6. It was her evidence that in about April 2012, she had begun looking after Mr Medved’s elderly mother, Ms R, (“Ms R”) and that she had moved into the unit at Property B (“the Property B property”), where Mr Medved also lived, in May of that year because: “It was too much trouble for me to get up in the morning and drive to Property B over the (omitted) Bridge and drive back over because I was giving her medication and feeding her… and cooking for her”.

7. Under questioning from the bench, Ms Meadows confirmed that she had moved into the Property B property so that she could look after the Respondent’s mother because it was a lot easier for her than driving over the bridge every day.

8. When it was put to her that if she had been living with Mr Medved in the Property B property, she would not have been entitled to keep the Property A property, Ms Meadows said:

   No, that – I – I had my house because I had my children. I went to Mr Medved’s place and lived with him because I was looking after his mother. Okay. It was his mother’s house that we were living in, not his.

9. It was Ms Meadows’s evidence that she and Mr Medved had remained friends during a period of separation from February 2011 to May 2012, even sleeping together during that time, and that she had called him to wish him a safe trip as he had planned a holiday in (country omitted)[1] in April 2012.

   [1] Mr Medved’s evidence is that he had gone on holiday to (country omitted) and not (country omitted) in April 2012 but nothing turns on that discrepancy in the parties’ evidence.

10. Ms Meadows said that Mr Medved had told her that he was no longer taking his holiday because his mother was not well, and Ms Meadows said that she offered to check up on his mother while he was away. Ms Meadows said that during that phone call, Mr Medved had declined the offer and said that he was not going to go away on holiday.

11. Nevertheless, she says, he called her early the next morning saying that he was at the airport about to fly out, and asked her to check on his mother, which she did.

12. Ms Meadows’s evidence was that she expected Ms R to be suffering from non-serious complications from the diabetes she had suffered from for some time. However, when Ms Meadows visited her, Ms R was clearly in a very serious condition and Ms Meadows immediately took her to the doctor, from where she was taken to hospital by ambulance and admitted. Ms R remained in hospital for about a month and while she was in hospital it was discovered that she had terminal cancer. Ms Meadows says she visited Ms R regularly while she was in hospital.

13. Ms Meadows says that from the time Ms R returned to the Property B property from hospital in early May 2012, she was looking after Ms R on a daily basis, although she was still living at the Property A property.

14. She says that after Mr Medved returned from overseas in April 2012, he “rekindled” their relationship, and it was from that time that she lived at the Property B property until, she says, she and Mr Medved separated in July 2014.

15. She says she made it very clear to Mr Medved that if they were to rekindle their relationship then she expected that the relationship would be committed and serious and would “go all the way”. It was on the basis of that understanding, she says, that she agreed to look after his mother on a more permanent basis, and applied to Centrelink for a part-time Carer’s Allowance in June or July 2012.

16. It was her evidence at first that the reason she was in receipt of a part-time Carers Allowance rather than a full-time Allowance was that Ms R was only expected to live for about six months, although in fact she lived until 25 February 2014.

17. However, later in her evidence, she said that she had received a “part-time payment because I was only part-time there”.

18. Under further cross-examination, Ms Meadows conceded that during that time, she was receiving a Disability Support Pension as a single person.

19. She conceded further that all her mail continued to be directed to the Property A property, that her car was registered to the Property A address, that she had told the car’s insurer that the car was garaged at the Property A property, and that she had never moved her furniture to the Property B property. She did say that she was “taking bits and pieces of clothing over bit by bit. I was taking my wardrobe because I needed my things there. I was there constantly”.

20. She further conceded that she had stated her address as the Property A property when she had witnessed the will of Ms R in 2013 because “my licence is on Property A, because everything is on Property A. I don’t know. That’s my – that’s my address. This is his mother’s address”.

21. The following exchange then took place:

    Counsel for the Respondent: So you didn’t consider it your home?

    Ms Meadows: Yes, it was my home because I was cleaning it; I was doing everything in the house. At that time I was living there, yes, it was home.

    Counsel for the Respondent: So why didn’t you use it as your address?

    Ms Meadows: Because it was just too complicated. Like I told you before, I was overwhelmed with all the things that had to do with his mother; oncology, this appointment, that appointment, palliative nurses coming in, RDNS nurses coming in, cleaning, cooking, washing, making sure the medication was done, going shopping.

    […]

    Counsel for the Respondent: So this is nearly a year after you became Mr Medved’s mother’s carer?

    Ms Meadows: Yes.

    Counsel for the Respondent: And on an official document you are using Property A as your address?

    Ms Meadows: Yes.

    Counsel for the Respondent: And I put to you the reason for that is you always considered Property A to be your home?

    Ms Meadows: Yes. I was – I was paying the bills there, yes.[…] That was my house.

    […]

    Counsel for the Respondent: When you went to the doctor you also used the Property A address; is that correct?

    Ms Meadows: Yes.

    Counsel for the Respondent: And when you had things delivered, […]such as your juicer, that was delivered to Property A?

    Ms Meadows: No, that was actually delivered to Property B.

    Counsel for the Respondent: Well you---?

    Ms Meadows: That wasn’t actually delivered. I purchased it but I put – I had everything on Property A. It was just a habit of writing – that’s ---

    Counsel for the Respondent: Well you ---?

    Ms Meadows: Everything is there. My licence, everything is there. That’s why I wrote it.

22. Ms Meadows said that there were times when she returned to the Property A property during the day for some respite or to see friends, but that she had stayed at the Property B property every night.

23. It was her further evidence that she paid for the utilities for the Property A property for the entire period from 2007 through to 2014 because “it was my house”.

24. She said that the reason she had kept the Property A property was so that her children would have somewhere to stay. It was her evidence that neither of her children lived full time at the Property A property but that each would spend several nights a week there at times. I note that in 2012 her children were 23 and 27 years old. It was Ms Meadows’s evidence that her daughter was working at that time, but she did not know what her income was. She did not believe that she had done anything wrong by having her children live much of the time in her government-subsidised housing while, on her evidence, she lived elsewhere.

25. At other times during her evidence, Ms Meadows was adamant that she had been at the Property B property every day, save that she had returned to the Property A property for two weeks after Ms R had scratched her while being “difficult”, and on another occasion for a few days when she had had a fight with Mr Medved.

26. Ms Meadows agreed that Mr Medved had left his work in about March 2013, although she professed not to know why. When it was put to her that Mr Medved had done so in order to take care of his mother, Ms Meadows she said that “he did not look after her one day”, and that the palliative care nurses had told her that she should take some time out to look after herself so that she would be able to take care of Ms R.

27. When it was put to her that she had begun referring to Mr Medved as her partner very early in their relationship, that is in about 2007, Ms Meadows replied: “partner, boyfriend, same thing. It’s all, to me, the same thing.”

28. As I pointed out to her at the time, the distinction between those terms was what this trial was all about.

29. In Elias and Elias[2] (“Elias”), a decision of Goldstein J in the Family Court of Australia in 1977, His Honour found that the husband in Elias could not “be heard to say to the Commissioner for Taxation that the […] business is half his and half his wife’s and yet to say to her and this Court that it is all his.”[3]

    [2] Elias, V.J. and Elias, E.K (1977) FLC 90-267

    [3] Elias supra page 76,424.

30. Applying that principle to this case, I find that the Applicant cannot be heard to say to Centrelink, VicRoads, her car’s insurer and her bank between 2012 and 2014 that she was a single woman living at the Property A property, and then to say to this Court that she and the Respondent were in a de facto relationship living at the Property B property for that period.

31. Mr Medved’s evidence on this issue was consistent from his first affidavit to his oral evidence at trial. He says that he never asked Ms Meadows to move in with him in 2012, but that she was looking after his mother, for which she was receiving a Carer’s Allowance, and had therefore spent some overnight time at the Property B property.

32. He conceded that he and Ms Meadows were engaged in a sexual relationship during that period, but stated that they did not have sexual relations after July 2013.

33. It was his further evidence that he had attempted several times to get Ms Meadows to cease staying at his home after his mother moved into permanent care in October 2013, but that she had simply not done so. He said that after his mother moved into permanent care, the parties did not share a bed.

34. He says that he went overseas in July 2014 in order to get away from Ms Meadows. I note that he remained overseas until October of that year, and his evidence is that Ms Meadows did not come to his house after his return.

1. When I consider all the above matters, even on the Applicant’s own evidence I cannot be satisfied that these parties had a “common residence” for the period May 2012 to July 2014.

Whether a sexual relationship exists

1. The parties agree that their relationship was sexual.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. The evidence of the parties is that they did not mingle finances, that each was in receipt of his/her own income during the relationship and that they had no joint accounts, or even access to each other’s accounts. The evidence before the court is that while Ms Meadows was taking care of Ms R, Mr Medved paid her $150-$200 per week for groceries and other items necessary for his mother’s care.

2. Whenever they went out to eat, Mr Medved paid for their meals and he also paid for all the holidays they had together.

3. On that evidence, there was very little, if any financial interdependence or support between them, and I consider the meals and holidays to have been gifts.

The ownership, use and acquisition of their property

1. The Property B property has at all relevant times been registered in the names of either Ms R alone, or Ms R and Mr Medved as joint tenants, or Mr Medved alone.

2. That property appears to have been the family home of Ms R and her husband and their son, the Respondent, and after her husband’s death in 1980 she became the sole registered proprietor.

3. Ms R and Mr Medved became joint proprietors of the Property B property in March 2007, after the family home had been removed and the construction of two units on the property had commenced.

4. Mr Medved became the sole registered proprietor of the Property B property in December 2014 as a result of his mother’s death earlier that year.

5. Mr Medved also owns the property at Property B and a property at Property C both of which are used as investment properties and provide him with income. Only the Property C property appears to be encumbered by a mortgage.

6. Ms Meadows owns no real property.

7. She claims that she assisted Mr Medved in completing the building and landscaping of the Property B property during the construction of the two units, but even on her own evidence, those contributions were fairly minor.

8. There is no evidence of Ms Meadows making any payments whatsoever towards the mortgage, or the utilities while she was spending overnights at the Property B property.

The degree of mutual commitment to a shared life

1. The evidence of the Applicant is that she was fully committed to a permanent and exclusive relationship with the Respondent from the time she moved into the Property B property in about May 2012 until he abruptly left and went overseas, without informing her until just before his departure, in July 2014.

2. It is her evidence that she expected to marry Mr Medved, and that he had told her that they would be together forever. However, she conceded that Mr Medved had never actually proposed to her.

3. Indeed it is her evidence that, having grown tired of waiting for Mr Medved to propose, she had bought him a silver ring and proposed to him, only to be told “not like that”.

4. The Respondent’s evidence is that he was never fully committed to such a relationship with the Applicant, that he saw their relationship as that of “boyfriend and girlfriend”, and that he had had sexual relationships with other partners at various times during his relationship with Ms Meadows.

5. He conceded that he had referred to Ms Meadows as his partner or his “Missus” during the relationship, but it was his view that those terms are easily applied to a person to whom one is not committed in terms of a shared life together.

6. In mid-2013, Mr Medved was diagnosed with several sexually transmitted diseases, and his Doctor apparently stated that he could have caught those diseases at virtually any time before being diagnosed.

7. Ms Meadows, on the other hand, was tested negative for any such diseases in mid-2013, and it is her evidence that she was “disgusted” when she discovered that Mr Medved had tested positive. Indeed, Mr Medved’s evidence is that the parties’ sexual relationship and any intimacy between them ceased at that time, and that he considers that that is when the relationship actually ended.

8. In addition, two witnesses who had sworn affidavits in support of Mr Medved told the court at trial that as far as they were aware, while they knew about the relationship between Ms Meadows and Mr Medved, and had spent time with them together over the years, they did not see them as having lived together as a committed couple.

9. I note that another of Mr Medved’s friends had filed an affidavit in similar terms, although he was not required for cross-examination at trial.

10. Further, it was Ms Meadows’s evidence at trial that she had told Mr Medved that she wanted to buy a property with him when she received a payout from a personal injury claim in 2013, but that “he didn’t want to do anything about it”.

11. When I asked the Applicant at trial whether she understood that it was possible that she had felt totally committed to Mr Medved while he had not felt the same commitment to her, she responded that “he was definitely committed”.

12. Nevertheless, on all the evidence before the court, I cannot find that there was a mutual commitment to a shared life between these parties.

13. I have no doubt that Ms Meadows was fully committed to having a shared life with Mr Medved, and that she was devastated when he went overseas in July 2014 without telling her he was leaving until just before his departure.

14. In contrast however, while Mr Medved appears to have been prepared to accept all the benefits of the relationship Ms Meadows believed she was in, he did not share her commitment to their relationship, or to a shared life with her.

15. I therefore find that they did not have a significant degree of mutual commitment to a shared life together.

Whether the relationship is or was registered under a prescribed law of a State or territory as a prescribed kind of relationship

1. The relationship was not registered in any State or Territory.

The care and support of children

1. There are no children of the relationship and Ms Meadows’s children were adults by May 2012.

The reputation and public aspects of the relationship

1. While Mr Medved and Ms Meadows were getting along well, it is clear that their friends saw them as a couple.

2. Similarly, when they were not getting along well, their friends were well aware that their relationship had broken down. For instance, all the witnesses in this matter were aware that the parties were not in a relationship as a couple between February 2011 and May 2012.

3. Mr Medved’s witnesses, Ms D and Ms C, were clear that while they had seen Ms Meadows at Mr Medved’s home on multiple occasions between May 2012 and July 2014, they did not view the parties as being engaged in a committed relationship.

4. Ms Meadows’s witness at trial, Ms J, stated under cross-examination that while she had socialised with the parties, including spending weekends with them at the farm of Ms Meadows’s father at (location omitted), she had never been to Mr Medved’s home.

5. Ms J said further that she and her husband would spend time with the parties “maybe twice, three times in a year”. Nevertheless, it was her evidence that Ms Meadows had told her that Mr Medved had “promised her a ring”, and that it was obvious to her that Ms Meadows expected to marry Mr Medved. I have no doubt that that was true, as it is clearly what Ms Meadows believed.

6. It is not disputed between the parties that they attended some family events together and that they went on holiday together, either alone or with friends during the relevant period.

7. Their reputation as a couple therefore, at least in times when they were getting along, was very clear.

Decision

1. When I consider all the evidence in these proceedings, I cannot be satisfied that Ms Meadows and Mr Medved lived together as a couple on a genuine domestic basis[4] between May 2012 and July 2014, and therefore I find that they were not involved in a de facto relationship as a matter of law.

   [4] See The Full Court in Jonah & White (2012) FLC 93-522 where Their Honours said, at 86,682:

   … the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

2. In those circumstances this court does not have jurisdiction to decide any property dispute between them arising from their relationship, and I will therefore dismiss the Application on those grounds.

Conclusion

1. Neither of these parties was a particularly impressive witness at trial.

2. Ms Meadows’s evidence was at times inconsistent, and there were times when she seemed unable to concentrate on the questions she was being asked, preferring simply to say what she wanted to tell the court.

3. Nevertheless, I believe her to be sincere in her belief that the parties were engaged in a de facto relationship and that she therefore might have some claim to a share of Mr Medved’s property.

4. Mr Medved presented as a rather diffident and unsophisticated man, who found it difficult to answer questions directly, several times saying things like “I might have or I might not have”. There were times when he appeared to be deliberately evasive in his answers. At one stage, he even used an expletive when answering a question, and it was clear that he was absolutely determined that Ms Meadows would have no claim on his property.

5. He impressed at trial as a less than honest man who was prepared to change his evidence when challenged about its veracity. He was noncommittal or evasive in many of his answers, and gave the impression that he was making up his evidence as he went along.

6. In those circumstances, the Court has some sympathy for Ms Meadows’s position, as it was her evidence that she has considerable credit card debt for which she is liable and which she says was incurred during the relationship.

7. Unfortunately for her, the evidence in this matter as a whole does not support her contention that the parties lived in a de facto relationship as defined in the Family Law Act, and in such circumstances I have no choice but to dismiss her Application for want of jurisdiction.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 19 January 2017

Corrections

The pseudonym ‘Meadows’ replaced the previous pseudonym used for the Applicant.