Moby & Schulter - [2009] FamCA 1285

FAMILY COURT OF AUSTRALIA

MOBY & SCHULTER

[2009] FamCA 1285

FAMILY LAW – JURISDICTION – De facto marriage

Family Law Act 1975 (Cth)

APPLICANT:

Ms Moby

RESPONDENT:

Mr Schulter

FILE NUMBER:

MLC

10432

2009

DATE DELIVERED:

23 December 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

23 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

JH Legal Pty Ltd

Orders

That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared for the purposes of an order under s 90SG, the applicant and the respondent were in a de facto relationship.
For the purposes of s 90RD(2)(d) and for the purposes of s 90SG, the parties’ relationship ended in November 2009.
That all outstanding interim applications are adjourned to 10.00am on 18 January 2010 for a short hearing.
That the respondent pay to the applicant the sum of $3000 as follows:
(a)$1000 this day (cash paid to the applicant’s solicitor); and
(b)$2000 on or before 2 January 2010 such to be paid into the applicant’s account.
That each party file any further affidavit material upon which they intend to rely by 4.00pm on 15 January 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10432 of 2009

MS MOBY

Applicant

And

MS SCHULTER

Respondent

REASONS FOR JUDGMENT

This is an application filed by Ms Moby on 23 November 2009 seeking orders for the adjustment of property and maintenance for herself. The jurisdiction in this case is in dispute. The applicant says that there was a de facto relationship between the parties and that it ended in October 2009. The respondent denies that saying that there was no de facto relationship, but even if there was, it ended well prior to 2009, and, therefore, there is no jurisdiction. The application that brings the matter into the duty list is for urgent maintenance the jurisdiction for which is a specific provision in Part VIIIAB of the Act.
One of the difficulties with the application is that it is not clear whether or not a court can deal with an urgent application when there is a jurisdictional dispute.
I propose in this case to deal with it on the basis that there is sufficient evidence for me to make the necessary declaration. Section 4 of the Family Law Act 1975 (Cth) (“the Act”) defines a de facto financial cause as including:
…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.
De facto relationship is defined in s 4AA. It says that:
A person is in a de facto relationship with another person if the persons are not legally married to each other and the persons are not related by family and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Section 4AA(2) is headed, “Working Out If Persons Have a Relationship as a Couple”. The section then sets out a series of things which are a guide to whether or not there was such a relationship. They include the duration of the relationship; the nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence, and any arrangements for financial support, between them; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life; whether the relationship was registered; the care and support of children; and, the reputation and public aspects of the relationship.
Section 4AA(3) creates another dilemma in that it reads:
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
In this case, a finding as to the relationship is at least open on the untested evidence because both parties have acknowledged that they had some sort of relationship, bearing in mind that s 4AA gives the court a very wide discretion to define what a relationship really means.
What I am concentrating on for the purposes of this hearing is whether or not the separation between the parties, or, in other words, the conclusion of their relationship, postdates or precedes the commencement of the legislation.
The precise date does not matter because the parties are significantly apart in respect of when they say their relationship ceased. Notwithstanding they might think the date that they say the relationship ceased was the date, it is a matter objectively for the court to determine whether the relationship ceased at a particular time. In the respondent’s case, he says 2008, and in the applicant’s case, October 2009. The applicant’s case is set out in her affidavit, and she says that as late as 2007, the respondent leased a house in G for both of the parties to live as their new home. She said that the respondent asked her to renovate the home that is referred to in the property dispute so that it could be rented out.
On 13 October 2009, the respondent left the applicant a “Dear John” letter, leaving it on the floor near the front door to the G home. She said that letter required her to move out of the home by 2 November 2009. Her evidence was:
Shortly after the respondent left me the “Dear John” letter, I met with the respondent and acknowledged that our de facto relationship was at an end.
That clearly indicates that from the applicant’s prospective view of things, the relationship only came to an end when she met the respondent in November 2009.
The respondent’s version of matters is different. He says that there was some form of relationship, although he does not classify it as a de facto one. Having regard to the definition to which I have referred, I can draw the conclusion that there is sufficient evidence on both parties’ perspectives to say that certainly at some stage there was a relationship which I would describe as falling within the de facto relationship definition, vague as it is. Importantly, the respondent says that a notice to vacate was given in respect of the home in which the applicant was living. He said he was relieved to receive the notice to vacate because he was desperate for the, “Ms Moby,” chapter in his life to end.
He then described the relationship as “dysfunctional,” but that it had ended about a year and a half prior to receiving the notice. Hence, I infer that he means in 2008. He said that the event which gave rise to his conclusion that the relationship had ended was there was a very unpleasant confrontation in which he and the applicant had a dispute which concerned him so much about her state of mind that he reported the incident to the police. He said he then discussed his options with an acquaintance of his who works in the health industry. There is little evidence as to the nature of the relationship beyond that particular point, save that I have inferred that during the subsequent period there was an ongoing financial relationship between them. That was the catalyst for the applicant to bring the proceedings because she was no longer receiving any funds and had nowhere to live because of the notice to vacate.
The provision in relation to a de facto relationship includes consideration of the nature of the financial interdependence between the parties. Section 90RD of the Act provides that an application for maintenance can be made, and if, for the purposes of those proceedings, the court needs to make a declaration, it can do so. It can make a declaration, also, that there was no relationship or that one never existed. A declaration may also declare a variety of other things including questions about whether and when the relationship came to an end. It is important to also point out that s 90RH says that:
If, in the primary proceedings, a person –
and in this case I am referring to the respondent –
who is affected by a declaration applies under section 90RH and the court is satisfied that a fact or circumstance has arisen that has not been previously disclosed to the court, and the respondent was a party to the primary proceedings at the time that the application for the declaration was made, the court can vary, set aside or make another declaration if it so desires.
It is quite clear under s 90RH that new facts and circumstances can be raised, and if the jurisdictional argument is so put before the court, the court must rule upon it. I am satisfied, therefore, for the purposes of today’s exercise, limited as it is, that there is sufficient evidence for me to find that there was a de facto relationship and that because of the interdependence upon one another, or certainly on the basis of dependence by the applicant upon the respondent up and until some time in 2009, a declaration can be made that the parties were in a de facto relationship up until early November 2009. That, in my view, is sufficient to give rise to the jurisdiction for the court to make an order for urgent maintenance.
I do not have to determine the issue of urgent maintenance today because the parties, based upon an indication that I earlier gave, have reached agreement as an interim arrangement pending the determination of the matter in some weeks’ time. I make it clear that the declaration can be set aside on the return date if there is sufficient evidence to justify me setting aside the conclusion to which I have come today. In this matter, I will make orders by consent of the parties, noting that it is made under protest by the respondent on the question of jurisdiction but based upon the declaration I have made. I will also order that those reasons be transcribed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 6 January 2010