Onslow and Onslow
[2013] FCCA 1434
•24 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ONSLOW & ONSLOW | [2013] FCCA 1434 |
| Catchwords: FAMILY LAW – Application for property adjustment orders between de facto spouses – whether de facto relationship broke down after 1 March, 2009 – where de facto relationship broke down finally after 1 March, 2009 – assessment of contributions – declarations and orders made. |
| Legislation: Family Law Act 1975, ss.4, 4AA(1), 4AA(2), 4AA(3), 48(1), 79, 90SM(4), 90SM(4)(a) – (g), 90SF(3) Family Law Amendment (De Facto Financial Matter and Other Measures) Act 2008, item 86(1) of Schedule 1 Part 2 Division 2 |
| Calverley v Green (1984) 155 CLR 242 C v C (2005) Fam LR 414 Fenton & Marvel [2013] FamCAFC 132 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335\ In the Marriage of Hickey (2003) 30 Fam LR 355 In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 Russell v Russell (1999) FLC 92-877 |
| Applicant: | MS ONSLOW |
| Respondent: | MR ONSLOW |
| File Number: | CRC 56 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing dates: | 16 May & 1 November 2012 |
| Date of Last Submission: | 13 December, 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 24 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carty |
| Solicitors for the Applicant: | Jane Adams Lawyers |
| Counsel for the Respondent: | Mr S C Priestly |
| Solicitors for the Respondent: | Coastal Law & Convenyancing |
ORDERS
Pursuant to s.90RD of the Family Law Act1975, the Court declares that Ms Onslow and Mr Onslow:
(a)were in a de facto relationship for the purposes of Part VIIIAB of Family Law Act;
(b)their de facto relationship commenced in 1989; and
(c)their de facto relationship broke down finally after 1 March, 2009.
No later than 4.00pm on 22 November, 2013 Mr Onslow pay to Ms Onslow the sum of $71,750.00.
No later than 4.00pm on 22 November, 2013 Ms Onslow shall file and serve a draft order providing for a splitting of the superannuation interest of Mr Onslow using a base amount of $84,350.00 and in respect of which the trustee of the relevant superannuation fund has been given procedural fairness.
Otherwise all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Onslow & Onslow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 56 of 2011
| MS ONSLOW |
Applicant
And
| MR ONSLOW |
Respondent
REASONS FOR JUDGMENT
By this application Ms Onslow seeks orders for property settlement against her one time de facto partner, Mr Onslow. Mr Onslow resists the claim and says that the application should be dismissed.
The application is not straightforward because, although the parties agree that they were in a de facto relationship between 1989 and 2000, Ms Onslow contends that the relationship did not end until after 17 June, 2009 whereas Mr Onslow contends that it ended sometime in 2000. The date upon which the parties’ de facto relationship ended is, at least according to the way in which the parties ran their cases, the single determinative issue in this case.
The significance of the date upon which the de facto relationship finally ended is obvious. If Ms Onslow is correct, this Court has jurisdiction to consider and determine her claim under Part VIIIAB of the Family Law Act1975. If Mr Onslow is correct, any rights that Ms Onslow might have to property adjustment will fall to be considered pursuant to Part 19 of the Property Law Act 1974 (Qld). Although another possibility is that the parties’ de facto relationship ceased sometime between 2000 and June 2009, Ms Onslow did not advance a case that I could, or should, find that the de facto relationship finally ended at any time other than after 17 June, 2009.
Thus, the most significant issue that attracted the attention of the parties was the time at which each contended that their de facto relationship ceased. The other aspects of the matter, should the Court decide it had jurisdiction to entertain Ms Onslow’s claim either pursuant to the Family Law Act, or the Property Law Act, attracted little evidence or submission.
The case was conducted upon pleadings. Because of the significant factual disputes between the parties, I ordered the exchange of pleadings in an attempt to clearly define the factual issues for determination. Unfortunately however, neither party grasped the nettle and pleaded the facts upon which he or she claimed the Court should draw the conclusion contended for by that party. I think that is because neither party (nor their advisors) appreciated that just as the time at which the parties commenced a de facto relationship for the purposes of either the Commonwealth or the State Act is a conclusion that is informed by the facts either agreed between the parties or as found by a court, so too is the conclusion about when the de facto relationship ended.
To plead that the de facto relationship ended on a particular date is to plead a conclusion. It may be a factual conclusion, but it is a conclusion nonetheless, informed by any number of facts, each of which ought to have been separately pleaded by each party. Some of the relevant facts that might assist the Court to reach its conclusion about those matters are set out in s.4AA(2) of the Family Law Act and s.32DA(2) of the Property Law Act. However, neither party turned their minds to those matters, nor any others, in their pleading concerning what all agree to be the central issue in the case. Thus, whatever benefit might have been derived from having each party’s case properly set out in an intelligible pleading was denied to the Court and the parties.
Jurisdiction under the Family Law Act
Identification of the correct question to ask is important. This Court will not be seized of jurisdiction under the Family Law Act if the parties’ de facto relationship broke down before 1 March, 2009: item 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008. Interestingly, that section does not speak of the parties’ de facto relationship having broken down irretrievably as does for example, s.48(1) of the Family Law Act (which deals with the only ground available for divorce). That might suggest that any break down in the parties’ de facto relationship short of an irretrievable or final breakdown before 1 March, 2009 would be sufficient to deprive the Court of jurisdiction. Alternatively, it might mean that notwithstanding changes to the nature and extent of the parties’ relationship over time, provided it could be described as having “broken down”, in any sense, after 1 March, 2009, the Court would have jurisdiction.
The phrase broke down is not defined in the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008, nor in the Family Law Act, although the latter Act does provide, in s.4:
breakdown:
(a) in relation to a marriage, does not include a breakdown of the marriage by reason of death; and
(b) in relation to a de facto relationship, does not include a breakdown of the relationship by reason of death.
The argument of each of the parties in this case proceeded on the basis that what Ms Onslow needed to establish was that the parties’ de facto relationship broke down finally after 1 March, 2009. It is not a test which is set out in the express words of item 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008. That approach, however, now has some judicial support. In Fenton & Marvel [2013] FamCAFC 132, the issue which attracted the attention of the members of the Full Court was the finding by the Federal Magistrate in the trial court that he could not detect in the evidence the existence of a de facto relationship as at 1 March, 2009. All members of the Full Court agreed that item 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 was not directed to the existence of a de facto relationship on 1 March, 2009, but was directed to the identification of when the relationship had broken down. But more than that, it was said that what item 86 required was an identification of the time at which the relevant de facto relationship had broken down finally. At [12], Strickland J said:
[12] Dealing first with what is the correct test. To find jurisdiction there must be a de facto relationship which continues for at least two years (if none of paragraphs (b), (c) or (d) of s 90SB of the Family Law Act 1975 (Cth) (“the Act”) apply) and it must not have broken down finally before 1 March 2009.
[13] Although item 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amendment Act”) provides that the Act does not apply to de facto relationships that have broken down before 1 March 2009, because s 90SB(a) allows for the aggregation of a period or periods totalling two years, and that can include periods before and after 1 March 2009, it is necessary to talk of the de facto relationship breaking down finally before 1 March 2009 in any description of the test.
[14] Thus it can be seen that there is no discrete requirement that the de facto relationship be in existence on or as at 1 March 2009. Indeed, there can be jurisdiction even if the de facto relationship is not in existence on or as at that date.
At [53], Murphy J said:
[53] Taken together, the provisions of the Amendment Act and the Act specify that a court is required to find that a relationship did not break down before 1 March 2009; that the relationship which broke down after commencement was a “de facto relationship”; and, that the period, or total of the periods, of the de facto relationship is “at least 2 years”. Because s 86 refers to a “de facto relationship that broke down before commencement”, the first and second of the relevant findings are intertwined.
[54] The requirement for the de facto relationship to have subsisted for “at least 2 years” can be met by aggregating periods of de facto relationship (see, Dahl & Hamblin [2011] FamCAFC 202;(2011) FLC 93-480). That fact gives rise to two considerations relevant to the other two jurisdictional facts just referred to. The first is that the de facto relationship must have broken down finally after 1 March 2009. Secondly, the finding that there was a de facto relationship subsisting for “at least two years”, can be comprised of findings that there were one or more periods of a de facto relationship in existence prior to commencement provided that at least some of the de facto relationship existed post-commencement. (That is because if at least some of the de facto relationship existed post-commencement, axiomatically, it cannot have broken down finally before commencement).
Neither party suggested that any of the other jurisdictional facts (as described by Murphy J in the passage above) were not present. The parties agree that between 1989 and at least 2000 they were in a de facto relationship, as defined and for the purposes of the Family Law Act.
The Facts
First, I should comment generally upon my impression of the witnesses. Ms Onslow was not a particularly impressive witness. Her affidavit material was brief to say the least. It was characterised by conclusion, speculation and assertion. There were not many facts deposed to by her. In cross-examination, generally her recollection was poor. She agreed with propositions put to her by Mr Onslow’s counsel, but in circumstances where she clearly could not recall the relevant events, or was agreeing with him for the sake of it.
Ms Onslow relied upon evidence from two of the parties’ daughters, [Y] and [X]. They were not cross-examined and I have given their evidence little weight in these proceedings. Ms Onslow relied upon evidence from Mrs W, who lived next door to Property A, [H], an address at which at least Mr Onslow lived in [H]. She also relied upon evidence from Mr B, a one-time work associate of Ms Onslow. Both Mrs W and Mr B were cross-examined. Their evidence in chief was confirmed by their cross-examination. I accept their evidence without reservation.
Mr Onslow gave evidence in the proceedings. His written evidence too, was characterised by speculation, conclusion and assertion. His written evidence was light on facts. Additionally, in cross-examination, he was argumentative and needed to be reminded to answer direct questions with direct answers. I was left with a generally uneasy feeling about Mr Onslow’s candour.
Mr Onslow relied upon evidence from Ms S and Ms J. Once their affidavits were shorn of the inadmissible (most of which was struck by agreement between Counsel), not much of any particular use was left. Each was cross-examined, although to what particular end still remains a mystery.
Mr Onslow was born in 1967. Ms Onslow was born in 1968. The parties met in 1988 and there seems no dispute that they commenced their relationship on 17 June, 1989.
When the parties commenced their cohabitation, they rented premises at [omitted], New South Wales for 4 months. Neither had any assets of any significance at that time. Mr Onslow had a modest superannuation account of about $1,600. He was [occupation omitted] and was earning about $30,000.00 per annum. As best as I can tell from the evidence, Ms Onslow was not working.
Mr Onslow’s mother lived with the parties.
In 1989, Ms Onslow commenced working as an [occupation omitted].
The parties moved residence and in 1990 Mr Onslow left [occupation omitted] and commenced working at [omitted] earning about $32,000 per annum.
The parties first child, [X], was born in [omitted], 1990. [X] was born with a physical disability that affected [omitted]. The parties agreed that Ms Onslow should leave her employment to care for [X] on a full-time basis. She did so.
In or about November, 1990 I accept that Ms Onslow was physically assaulted by Mr Onslow. He punched her and pushed her. She and [X], who was 1 month old at the time, spent the night at her mother’s home about two doors away. When she returned home the bed was broken and there was a note from Mr Onslow saying words to the effect “Get your things out today”. Ms Onslow had bruises on her arms and legs as a result of the assault.
Again, in or about November, 1990 Mr Onslow threw Ms Onslow onto a cement footpath. As a result she had bruises on her arms.
In late 1990 the parties moved to Brisbane, together with Mr Onslow’s mother. They all lived with Ms Onslow’s Aunt where they remained for about 3 months.
Mr Onslow obtained employment in Brisbane as a [omitted] earning about $28,000 per annum. After about 5 months, however, Mr Onslow had surgery on his back and he was off work for about 1 year.
In 1991, Mr and Ms Onslow obtained their own accommodation in [omitted], Brisbane. Mr Onslow’s mother lived with the parties for about 6 months and then moved to her own accommodation.
Ms Onslow complains that Mr Onslow would be controlling of her relationship with both his and her families. She says, by way of example, that on Christmas Day, 1990 he threw out any presents given to [X] by his family. I accept her evidence about that.
In or about October, 1991 Ms Onslow’s family visited Mr and
Ms Onslow for [X]’s first birthday. Mr Onslow, I accept, assaulted
Ms Onslow’s Aunt. Mr Onslow forced Ms Onslow’s family to leave.The parties’ second child, [Y], was born in [omitted], 1992. When [Y] was born, Mr Onslow refused to telephone Ms Onslow’s family to inform them of [Y]’s birth.
Soon after [Y]’s birth, the parties moved to Cairns where Mr Onslow took up employment with [omitted]. He was earning about $30,000 per annum.
At one point in August, 1992, Ms Onslow resolved to leave Mr Onslow whilst they were living in Cairns because of his treatment of her. I accept that she organised her family to support her in doing so. Her mother contacted the Cairns Police and her father arranged the flights for she and the children to fly from Cairns. Her brother was to collect her and the children from Cairns.
I accept that on 11 August, 1992 Ms Onslow’s brother flew to Cairns to collect Ms Onslow and the children. She told Mr Onslow what was going on. His response was to threaten her by saying that he would take the children. In the result, Ms Onslow did not leave Cairns. I accept that she was too scared to do so.
I also accept that after that episode, Mr Onslow told Ms Onslow that she was not permitted to speak to any of her own family or his family. A few days later, Mr Onslow asked her to sign a document stating that she would not contact his family or her family for a period of two years. She refused and maintained contact with her family secretly. I accept that she asked them not to attempt to help her because Mr Onslow would find out.
The parties’ relationship continued to be volatile. Mr Onslow suggests that during 1993 and 1994, Ms Onslow’s drinking began to escalate and, he says her behaviour became erratic. I accept his evidence about that.
I also accept Mr Onslow’s evidence that whilst the parties were in Cairns, and probably in 1993 or 1994, there was an incident when
Ms Onslow was intoxicated. Mr Onslow left her in the lounge room of their accommodation and went to bed. He says that he heard what appeared to be a window smashing and upon investigation observed that Ms Onslow had broken a window pane and was holding a piece of it in her hand. She was crying and threatened to hurt [X]. Mr Onslow says that he took protective steps and called the police. Ms Onslow, he says, was taken into custody and the police took out a protection order for he and [X]. If such an order was made, it is not in the evidence before me.Mr Onslow claims that during their time in Cairns, he and Ms Onslow argued frequently because, he says, Ms Onslow was spending “large sums of money” on alcohol. He did not accept the suggestion put to him in cross-examination that given his wage, that Ms Onslow was not working and that they had two small children to care for, there simply was not enough money available for Ms Onslow to spend “large sums of money” on alcohol. Whatever be the case, both parties agree that Ms Onslow was consuming more alcohol than she should have been and it was a source of friction between them.
Mr Onslow changed his employment and worked as an [omitted] earning about $30,000 per annum.
In 1994 the parties returned to live in Brisbane. Mr Onslow was unemployed for about 2 months following their return. He then secured employment earning about $24,000 per annum. He worked in that position at [omitted] for about a year. He then took up employment as a pr[omitted]. He earned $36,000 per annum in that occupation.
In 1995 Mr and Ms Onslow purchased land at Property C. They caused a home to be built on that land and they moved in as a family in October, 1995. The cost of the land and the home was about $124,000. As best as I can tell from the evidence, the purchase price and construction costs were borrowed by the parties.
At about the same time, Ms Onslow commenced work on a part-time basis as [omitted]. However, Mr Onslow suggests that she was terminated from that employment before long because she was drinking before she went to work. Ms Onslow says that the employment lasted until about 1997. I prefer her evidence about that.
After she ceased work as the [omitted], Ms Onslow secured further employment with [omitted], but she stopped working there not long after she commenced. Mr Onslow says it was because she was drinking. Ms Onslow says that it was because she was pregnant.
I accept Ms Onslow’s evidence that in February, 1997 she and Mr Onslow had an argument which led to Mr Onslow calling Ms Onslow’s mother. He told Ms Onslow’s mother to take Ms Onslow away but she refused. He locked Ms Onslow out of the house and the children inside the house. He then told Ms Onslow’s mother to take the children as well and to live at her mother’s house while he was away with work for two weeks. She did that.
I accept Mr Onslow’s evidence that in mid to late 1997 whilst
Ms Onslow worked at [omitted] she failed to come home from work. He received a telephone call from the [omitted] Private Hospital informing him that she had been assaulted and she was in the Emergency Department. Mr Onslow and the children went to the hospital. Mr Onslow says that once he arrived at the Hospital it was obvious that Ms Onslow was intoxicated. He had doubts about her story as to how she came to be in the hospital.That event must have occurred no earlier than [omitted], 1997 because at the time of the incident, Ms Onslow was pregnant with the parties’ third child, [Z].
Mr Onslow says that in 1997 (no more precise time appears in the evidence), Ms Onslow threatened to leave he and the children. His response was to say “Great”. He alleges that Ms Onslow went to the garage of their home and poured some flammable liquid onto an ironing board. She set it alight. She then ran away leaving Mr Onslow and the children behind. I accept that her behaviour was erratic ad she was consuming excessive amounts of alcohol.
I accept that on 25 October, 1997 Ms Onslow’s mother contacted the Police after Mr Onslow had taken the children to her house without telling Ms Onslow. I accept that Mr Onslow was extremely angry that the Police had been contacted. Mr Onslow took Ms Onslow to collect the children from the maternal grandmother’s house. He was angry. I accept that Mr Onslow said to Ms Onslow’s mother, words to the effect: “You will never see or have contact with your daughter or grandchildren again.” I accept that Mr Onslow then locked himself and the children in his motor vehicle and sped off leaving Ms Onslow behind. He returned 10 minutes later, again with the children, and demanded that Ms Onslow get in the car. She did so and left with Mr Onslow and the children.
I accept that Ms Onslow was beaten by Mr Onslow following that incident. She says, and I accept, that she was bruised all over her chest from where she had been punched by him. She had purple bruising covering both breasts that went up to her arm pits. I accept that both of her breasts were swollen. She could not walk properly because Mr Onslow had kicked her “on the tail bone”. She was pregnant with [Z] at the time.
I accept Ms Onslow’s evidence that she refused to see a doctor because she was too scared of the repercussions for her when Mr Onslow found out that she had been to see a doctor.
[Z] was born in [omitted], 1998. Mr Onslow accepted in cross-examination that she was born a healthy child.
Both parties agree that during the course of their relationship and up to the year 2000, they separated on several occasions. The separations lasted sometimes for days, sometimes for weeks and sometimes for months. Neither party attempted to quantify the number of separations.
Mr Onslow’s own evidence was:
From time to time, I would become exceptionally angry at Ms Onslow who would be almost continually drunk. Occasionally, I would yell and scream at her. She would then throw things at me and I would retaliate. She would hit me and I would retaliate. I now regret these actions and I am embarrassed that I resorted to such retaliation. From time to time I went to my mother and Ms Onslow's mother for help.
Whilst I accept that Mr Onslow would become exceptionally angry at Ms Onslow, I reject his assertions that she was the instigator of the violence between them. In my view, Mr Onslow sought to minimise his violent actions towards Ms Onslow and his responsibility for them in his evidence. I have found above that the violence instigated by Mr Onslow commenced as early as November, 1990, long before Mr Onslow claims that Ms Onslow commenced drinking alcohol to excess.
I accept Ms Onslow’s evidence that at one point, Mr Onslow had burned Ms Onslow’s clothes and those of the children because she had refused to stop contacting her family. I accept that the children took to hiding things so Mr Onslow would not burn them.
I accept that on or about 13 September, 1998 Mr Onslow assaulted
Ms Onslow. He gave her a black eye and a swollen cheek by punching her. He then dropped the children and Ms Onslow off at her mother's house with bags of their belongings. He told the children “Goodbye” and words to the effect that “You live with Nanna now”. I accept that Mr Onslow said to the children words to the effect that he was taking their cat to the pound and it would be killed by the people there.
I accept that Ms Onslow returned to the parties’ home on or about 23 September, 1998 while Mr Onslow was away with work in Sydney. I accept that he had installed a deadlock on the main bedroom door whilst she had been living with her mother. When Mr Onslow was due to return, Ms Onslow took the children and stayed with a neighbour because she was scared of what might happen when Mr Onslow returned. I accept that in the lead up to his return he had repeatedly told her that: “you had better be out of her house by the time I get back”.
She and the children eventually returned to the home. I accept her evidence that Mr Onslow would beat her and lock her in the main bedroom.
In or about October, 1998 Mr Onslow had to again go away for work. I accept that he nailed the front door of the family home shut before he went. I am not sure of the purpose behind that action, but inferentially it seems he was wishing to prevent Ms Onslow from either entering or leaving the home.
On or about 23 October, 1998 Mr Onslow returned from his work related travels. Ms Onslow and the children were home. He accused Ms Onslow of being drunk. She probably was. He threw her across the kitchen bench and threw a sewing machine on top of her. Ms Onslow telephoned her mother for assistance, but Mr Onslow was shouting in the background and obstructing her attempts to get assistance.
Ms Onslow says that the Police were made aware of this incident, but she declined to provide a statement to them. She was too frightened of what Mr Onslow would do to the children and to her if she made a complaint to the Police. I accept her evidence that even when the police attended at the home in response to call outs, she would not tell them what was going on for fear of repercussions from Mr Onslow. When the Police would come, Mr Onslow would hide in the bedroom with the children while the Police were there.
Exhibit 5 in these proceedings is a bundle of documents produced on subpoena from the Queensland Police Service. All of the documents were tendered in evidence. The evidence is remarkable in that it demonstrates that between 2003 and September 2005, the Queensland Police regularly attended the parties address at Property C. A police report following a callout to the Property C premises on 5 September, 2005 is in the following terms:
Recent information provides that domestic violence is regularly occurring at the nominated premises of Property C. Furthermore when police arrive at the premises to investigate any calls, the alleged offender Mr Onslow locks himself and his four children in a room at the rear of the premises. His wife Ms Onslow will advise police that nothing has happened at all and that all is okay. There are fears held for the safety of Ms Onslow as she is extremely fearful of her husband and very reluctant to co-operate with police. She drinks very heavily (not always very often) due to the beatings and intimidation inflicted on her for approximately 13 years by her husband. She is reluctant to help police due to her receiving a beating if she does so. There is currently no DV protection order against her husband Mr Onslow. The address has been flagged as an address of interest. PLEASE ensure that when attending any jobs at this place that police thoroughly investigate and utilise their powers under Sec. 372 PPRA and gain entry to the premises to ascertain whether or not domestic violence is/has occurred and take any necessary action.
That report is consistent with the evidence given by Ms Onslow that she would not make statements to the Police about the violence perpetrated upon her by Mr Onslow because she was scared of his response. I accept her evidence about that.
On or about 24 November, 1998 Mr Onslow beat Ms Onslow with a golf club. He does not dispute the assault. Her ankles, left hand and the left side of her body were beaten. He also hit her in the head with the golf club. The evidence does not reveal more about the extent of her injuries, but she says, and I accept, that following the assault she could hardly walk. Her mother took her to a doctor and x-rays were performed. Ms Onslow did not report the assault to the Police.
I accept that following the assault, Mr Onslow taunted Ms Onslow by telephoning her and saying words to the effect “Do you want to go golfing again? Do you want to go clubbing?”.
[W] was born in August, 1999. Mr Onslow accepted in cross-examination that he was born a healthy child.
I accept that Mr Onslow often sent Ms Onslow letters that he would construct and which he made to look like they came from solicitors. The letters concerned the custody of the children and threatened that the children would be taken off her. In my view that was clearly a means by which he sought to intimidate her.
Three matters ought to be borne in mind when considering the above evidence concerning the parties’ relationship. First, what I have just recounted occurred during the period 1990 to 1998. Second, what I have just recounted occurred during the time that the parties both contend they were in a de facto relationship. Third, what I have just recounted occurred during the period that Mr Onslow nominated in his re-examination as the period when Ms Onslow was “a good mother”.
I accept Ms Onslow’s evidence that to deal with her relationship with Mr Onslow and his treatment of her she used alcohol to try to make herself feel better. Mr Onslow asserts that Ms Onslow told him that her drinking started after her parent's separation and because she was not seeing her father. He says: “As a teenager she was binge drinking. I recall discussing her binge drinking with her in the early years of our relationship.” I reject Mr Onslow’s evidence about that. I accept Ms Onslow’s evidence that she drank alcohol to assist her to deal with her relationship with Mr Onslow. Given his treatment of her, that is hardly surprising.
There is no dispute that Ms Onslow developed a serious alcohol abuse problem. In her latest affidavit, she says that the problem developed after [W]’s birth in August 1999, but that seems inconsistent with other evidence in this case which suggests that the problem developed much earlier than that. Unfortunately, she has led no evidence in this case from any medical practitioner that deals with that issue. That is unfortunate because some evidence of the nature, extent and period over which the problem existed would have been most useful. However, she did give evidence, and I accept, that she has sought treatment for her alcohol problems from:
a)[omitted] Medical Centre – Dr M;
b)[omitted] Medical Centre – Dr R;
c)[H] Health Campus;
d)Dr W;
e)Smart Recovery program;
f)Psychologist – Clear Solutions;
g)[omitted] – Ms P.
I accept Ms Onslow’s claims that she had some insight into her alcoholism and how it affected her ability to properly care for her children. That she sought out treatment is consistent with that.
In February, 2000 Ms Onslow commenced receiving a single mother’s pension. She says she received that after she fled the Property C home after Mr Onslow was violent to her. She went to a friend’s house for three weeks, she went to a hospital and she went to CentreLink. She was granted a pension. However, three weeks later she moved back to the Property C residence. She says that she “forgot” to tell CentreLink that her relationship had resumed. I reject that evidence. I think it unlikely that she simply “forgot”. It is more likely that the pension money provided a source of funds that she could use to feed her alcohol addiction.
At some time in 2000, Mr Onslow moved from the family home at Property C. He nominates this point as the time at which the parties’ de facto relationship finally ceased. He says that he first moved to a caravan park at [omitted] and then he boarded at a boarding house in Brisbane. Ms Onslow accepted those propositions in cross-examination.
Mr Onslow says that at that point, save for one occasion, the parties’ sexual relationship ceased. Ms Onslow says that it did not but continued until 2009. I accept her evidence about that matter.
Notwithstanding that he moved out, Mr Onslow continued to meet the mortgage over the Property C property where Ms Onslow and the children were living. He gave her some financial assistance with the care of the children, but I doubt that it was very much. The evidence does not permit of a precise finding about that matter.
In or about 2003, Mr Onslow and Ms Onslow had an argument and Mr Onslow called the Police. A protection order was made against Ms Onslow as a result.
In or about 2003 or 2004, Mr Onslow made [X] submit to a DNA Parentage test. The results confirmed that Mr Onslow was the father of [X]. Why that was necessary is not revealed by the evidence.
Mr Onslow moved to Sydney in 2004 because he secured employment there. Ms Onslow remained living in the Property C property with the children. Mr Onslow says that notwithstanding his concerns about Ms Onslow and her capacity to care for the children, he nonetheless decided to go to Sydney and leave the children in the care of a woman that he described as a hopeless drunk and who had “filthy living habits”.
Mr Onslow rented accommodation in [omitted]. He says that he returned to the Property C property about once per month to check on the children. Ms Onslow says that he returned more frequently than that. It is difficult to know what the true position was, because I am satisfied that after meeting the mortgage costs and his own accommodation expenses in Sydney, it is likely that there was not a great deal left for frequent interstate travel. Nonetheless, I am satisfied that Mr Onslow did return, sometimes more frequently than once per month. He agreed in cross-examination that he would telephone the home, if not every day, then every couple of days to check on the children. He rejected the suggestion he was telephoning Ms Onslow, but I accept her evidence that she and Mr Onslow had frequent telephone contact.
I accept Ms Onslow’s evidence that Mr Onslow would return from Sydney unannounced and that he wished to “catch her out” with male company, friends in the house or alcohol. I accept her evidence that he would also come home unannounced to see if the house was clean. That is consistent with the overall pattern of control and influence exerted by Mr Onslow over Ms Onslow during the period from 1989 to 2000.
In his affidavit filed on 12 May, 2012 Mr Onslow swears the issue by suggesting that “I did not have a domestic relationship or de facto relationship with Ms Onslow after that time. I did go to the house to check on the children. I had severed all other ties with Ms Onslow.” I reject his evidence and the conclusions expressed in those sentences. Whilst Mr Onslow had moved away to Sydney, his relationship with Ms Onslow remained. They no longer lived in the same accommodation, but he still exerted his control and influence over her life in the ways in which he had managed to do so before 2000. Neither party repartnered until Mr Onslow took up with his present partner in mid-2009. Mr and Ms Onslow’s relationship marked out as it was his control and intimidation continued after 2000.
Mr Onslow moved from Sydney to [H] in 2005.
The police reports contained in exhibit 5 are consistent with the proposition that Mr Onslow would return to the Property C premises after 2000 and commit acts of violence towards Ms Onslow. There are reports concerning incidents on 28 March, 2003, 26 June, 2003 and 5 September, 2005. I accept Ms Onslow’s evidence that the parties’ relationship, marked as it was by the violence between them, continued notwithstanding that Mr Onslow had moved away from Brisbane for his employment.
In mid-2005, the parties’ daughter [X] caused herself and the other children to move to their maternal grandmother’s home away from Ms Onslow. Ms Onslow’s drinking and behaviour were out of control. There is a Police report concerning this incident in exhibit 5. The report of 12 August, 2005 concerns the relevant incident. It records the Police investigations conclusions that the children wish to return to neither their mother nor their father. Despite Mr Onslow attempting to remove the children from the maternal grandmother’s care, they would not go with him. The Police caused the Department of Communities to intervene. As a result, the children were placed first into the care of a foster carer, and then into the care of Ms Onslow’s mother.
In 2006, Mr Onslow procured Ms Onslow to transfer her interest in the Property C property to him. There is a dispute between the parties about the circumstances in which Ms Onslow executed the transfer of her interest to Mr Onslow. She says that she was forced to sign her interest over to him. He says that she agreed to transfer her interest to him because she had agreed to occupy the premises on the basis that she would pay the rates and the electricity costs and had failed to do so. He said that the local Council was threatening to sell the property to recover the unpaid rates. His case is that she for nothing in return except having occupied the property for “a long time”, willingly transferred her interest in the property to him.
There is no doubt on the evidence that Ms Onslow transferred her interest in the Property C property to Mr Onslow. However, resolution of the reasons why, and the circumstances in which, she made that transfer will not assist the ultimate resolution of this case. That is because, as a joint owner of the property Ms Onslow was entitled to occupy the property without Mr Onslow’s permission. She was entitled to remain in occupation of the property as joint owner without the imposition of the conditions that Mr Onslow sought to place on her. The parties’ liability for rates and utilities fell to be determined according to their legal liability for those charges. To impose a requirement upon Ms Onslow that her occupation of the property, a property that she was otherwise entitled to occupy as a matter of law, be subject to her meeting Mr Onslow’s share of the rates was just another example of the way in which he sought to control her. It was consistent with the nature of their relationship.
Mr Onslow alleges that he was the sole beneficial owner of the property because he was the sole borrower of the funds that were used to purchase the property. No corroborative documents were produced to support that assertion. Ms Onslow suggests that it was a joint loan that was taken by the parties to fund the purchase of the land and build a home upon it. Given that initially the parties were joint owners of the real property, it is likely that any loan secured over it was a joint loan. I prefer Ms Onslow’s evidence in that respect. If that was the case, as I think it likely it was, then both parties contributed equally to the purchase price of the property: Calverley v Green (1984) 155 CLR 242 per Gibbs CJ at 252 and Mason and Brennan JJ at 257.
From about December, 2005 until June, 2006 (and as the evidence later revealed – up to April, 2009) Ms Onslow was receiving NewStart allowance.
I accept that during August, 2005 to December, 2006 Mr Onslow was living in [H] and Ms Onslow was living in Brisbane. I accept Ms Onslow’s evidence in cross-examination that she would go to [H] and stay with Mr Onslow for weeks at a time. He also came to Brisbane and stayed with Ms Onslow, particularly when the children were still in the care of the Department in Queensland. I accept Ms Onslow’s evidence that he would give her money and she would give him money from her social security payments.
I accept Ms Onslow’s evidence that in early 2006, Mr Onslow came up with a plan to get the children back into their care. I accept that Mr Onslow said words to the effect: "I will get the kids back into my care and you can look after them. I will get Child Safety to assess me. They have nothing on me."
Mr Onslow later told Ms Onslow "Child Safety says that as long as we don't live together the kids can be with me. So we'll get them to come down to [H] and live with me. You stay up there until the house is rented and then come down here. We will have to pretend that you are not living with us. You can rent a one bedroom unit or a caravan down here for $130.00 a week and pretend to live there so they don't take the kids off us again."
On 11 April, 2006 Mr Onslow signed an Undertaking with the Department of Family Services, Queensland. The undertaking is in the following terms:
I [Mr Onslow], sign the following undertakings:
· I will not recommence cohabitation with Ms Onslow
· I will not use physical discipline against the children.
· When it is in the children’s best interests and the children are not at risk of harm in their mother’s care, I will facilitate frequent and ongoing contact between the children and their mother.
· I will continue to attend parenting courses and workshops.
· I will seek legal residency of the children through the Family Court of Australia as a matter of urgency.
In about April, 2006 the children moved to NSW to live with Mr Onslow in [H]. I find that Ms Onslow remained at Property C and organised to move the contents of the home to [H]. I accept that she did that by making about 5 trips to [H] by train and on each occasion, she took more of the children’s, and the parties’ belongings there.
I find that Ms Onslow moved to [H] in December, 2006 and initially lived with Mr Onslow and the children at Property M, [H]. The home at Property C was rented out from about this time.
I accept that Mr and Ms Onslow arranged for her to lease accommodation in [H] from time to time so that to all outward appearances, they were not living together. Ms Onslow continued to receive CentreLink benefits. I reject Mr Onslow’s claims that Ms Onslow rented her own accommodation in [H] at her instigation and for the purposes of her own accommodation. She did so to further the parties’ plan to continue their relationship and so Ms Onslow could care for the children. Whilst Mr Onslow suggested in cross-examination that the Queensland Department of Child Safety had no interest in the children after they moved to [H], his own evidence in his affidavit filed on 12 May, 2012 is to this effect:
61. Near Christmas 2006 I found Ms Onslow in my fern house at [1] Property M. She was asleep. There was a strong smell of alcohol. Again I said to Ms Onslow words to the effect:-
“You can’t stay with us because of the child safety issues”..
I am satisfied that both he and Ms Onslow were concerned to ensure that the child protection authorities in Queensland did not become aware that it was likely that they were living together again.
The first unit Ms Onslow rented in [H] was at [2] Property M, [H], opposite [1] Property M where Mr Onslow and the children lived. The rent was $130.00 per week. The unit contained only a lounge and a TV but no bed, although in cross-examination Mr Onslow described the lounge as a “day-bed”. I accept Ms Onslow’s evidence that she did not live there.
From time to time Ms Onslow also rented or stayed overnight at [omitted], [H] (the home of a friend, Ms T); the [omitted] Caravan Park, [H] and [omitted], [H].
In about January, 2007 Mr Onslow purchased a property at Property A, [H] in his sole name. The family moved to live in those premises. At the same time, Ms Onslow rented alternative properties to maintain the ruse that she and Mr Onslow were no longer in a relationship. I am satisfied, however, that they were living as a family, albeit in a dysfunctional arrangement, at Property A.
Ms Onslow cared for the children while Mr Onslow worked full time. In January, 2007 she secured some part-time [omitted] work with a local [ omitted]. One of her co-workers, Mr B, gave evidence in these proceedings. He gave both written and oral evidence. In his evidence he said:
a)Ms Onslow worked part-time as a [omitted], [H] from 29 January, 2007 to 24 June, 2008;
b)He regularly dropped Ms Onslow home after work to Property A, [H]. By regularly he meant on three to four days per week. On occasions when he dropped Ms Onslow off, Mr Onslow’s car at the time would be in the driveway or parked on the nature strip.
c)Occasionally he spoke to Mr Onslow but did not say much;
d)He did not know that Ms Onslow had another address in Property M;
e)Occasionally he saw Mr Onslow and the children out the front of the house;
f)Ms Onslow stopped working there because the work she was employed to do came to an end.
I accept that Ms Onslow arranged her work hours around the children's needs. The older children also assisted her with the younger children.
I accept Ms Onslow’s evidence that despite her battles with alcohol which she accepts affected her ability to care for the children, she provided more or less full time care for them for the period from late 2006 until June, 2009. She looked after them before and after school. I accept that she cooked and cleaned and did the washing for the family. She did the shopping for the family. I accept Ms Onslow’s evidence that Mr Onslow and Ms Onslow continued their sexual relationship.
Ms Onslow called evidence from Mrs W. Mrs W gave both written and oral evidence, however, her cross-examination did nothing other than strengthen her written evidence in chief.
Mrs W gave evidence that:
a)she lives in the residence next door to where Mr and Ms Onslow lived in Property A, [H]. She has lived in that residence for about 51 years;
b)Mr and Ms Onslow and their four children lived in the home for approximately 2 years until Ms Onslow left;
c)she was unsure about exactly when the older girls lived there because they came and went frequently;
d)she and Ms Onslow would see each other frequently during week days and sometimes chatted when they were both hanging out the washing on the clothes line in the back yard;
e)she saw Ms Onslow cleaning the swimming pool and in the garden mostly with the two younger children;
f)she noticed that Ms Onslow did not drive and used to walk to the shops. She once did her grocery shopping for her.
g)Ms Onslow came over to her house and they shared morning tea every now and then;
h)she specifically recalled Ms Onslow inviting her to Mr Onslow’s 40th birthday party and she remembered hearing the party going on but she did not attend;
i)she also remembers the whole family standing with her on the street one day watching some kind of parade or race.
I accept Mrs W’s evidence. There is no reason to reject it as an accurate account of her observations.
I accept Ms Onslow’s evidence that she organised and attended Mr Onslow's 40th birthday party in [omitted], 2007.
In or about May, 2008 Mr Onslow again assaulted Ms Onslow by hitting her across the side of the face with an open hand. Ms Onslow yelled out when he hit her and the parties’ older daughters, [X] and [Y], came into the room. They said words to the effect: ‘stop hitting mum'. Mr Onslow was swearing and yelling at Ms Onslow. I accept that he said words to the effect “You're a fucking bitch. You get your girls to stick up for you”. I accept that [Y] said words to the effect “No it's cause you're hitting mum”. Mr Onslow denied the charge and then challenged the girls with words to the effect “Go on if you want to have a go”.
I accept that Ms Onslow observed that Mr Onslow was standing over the girls. They jumped on him and struggled with him. [Y] hit him in the head and then ran to her room. I accept that [X] called her mother and Ms Onslow saw blood on [Y]'s jacket. The children ran out of the house. I accept that [Y] later told Ms Onslow that Mr Onslow had hit her on the back of her head with his fist when she was on the floor.
Ms Onslow called the Police, but lost her nerve when they arrived. I accept her evidence that she was scared of what Mr Onslow would do if she went through with a complaint to the Police.
In or about June, 2008 an apprehended violence order was made against Ms Onslow to ostensibly protect Mr Onslow. The details of how that came to be made are not in evidence. If it arose out of the incident that I just described, then clearly it was wrongly made.
Ms Onslow gave evidence that in or about 2008 she was living at the [omitted] Caravan Park. Mr Onslow would bring one of the girls to her so that Ms Onslow would have to open the door to him. She found his visits intimidating. He would tell her to “go back to Brisbane. I don’t want you here as an embarrassment to me, my work and a small town. You are not welcome here”. Ms Onslow did not explain this evidence or how it was consistent with her claims that she was still in a de facto relationship with Mr Onslow at that time.
I accept Ms Onslow’s evidence that Mr Onslow pretended to work colleagues and his friends that they had been separated from each other for a long time. In that respect, Mr Onslow relied upon evidence from Ms S. Ms S gave both written and oral evidence, although her cross-examination was curious to say the least.
Ms S’s evidence does not assist the resolution of the present controversy. Her evidence is just as consistent with Mr Onslow’s assertions that his relationship with Ms Onslow had ended in 2000 as it is with Ms Onslow’s assertions that Mr Onslow had a plan for them to create a façade in [H] that they did not live together. Insofar as Ms S is concerned, the façade achieved its desired purpose.
Mr Onslow also relied upon evidence from Ms J. She too gave written and oral evidence. Critically, Mr Onslow claims that Ms Onslow made an admission against her own interests to Ms J. In that respect, Ms J says in her affidavit filed on 14 May, 2012:
11. In 2010 [X] and [Y] were invited to my house for my birthday party. They informed me that Ms Onslow would be with them. I said words to the effect “That’s fine as long as she does not drink in my house”. When they arrived Ms Onslow smelt of alcohol.
12. The following day Ms Onslow was talking with [name omitted] and I remembering time when I was little and we used to go camping together. She spoke of all the times we were at my mother’s house in [omitted] (sic). I asked about Mr Onslow and Ms Onslow said words to the effect “Mr Onslow and I haven’t been together for a long time. I last saw your mum around 1999. Mr Onslow and I split not long after that”.
Without the context in which the above conversation occurred it is difficult to know what to make of that evidence. But it was not challenged in cross-examination and I take it into account.
It is the case that in June 2009 there was an apprehended violence order in place. It was suggested to Ms Onslow that the order prevented her from living with Mr Onslow. But it did not. The order was issued on 12 March, 2009 and was expressed to remain in force for 2 years. The only term which prevented contact between Mr Onslow and Ms Onslow was in the following terms:
10. The defendant must not approach the protected person(s) or any such premises or place at which the protected person (s) from time to time reside or work within twelve (12) hours of consuming intoxicating liquor or illicit drugs.
It is worth noting that the order records that Mr and Ms Onslow had been married. That was plainly an error, but it makes one circumspect about the veracity of the information upon which the order was obtained.
The parties had the 20th anniversary of their relationship on 17 June, 2009. I accept Ms Onslow’s evidence that Mr Onslow gave her a gold, diamond and sapphire bracelet as an anniversary present. I reject his evidence that he purchased that item from eBay as an investment with a view to resale and that Ms Onslow, or [Y], stole it from him.
Ms Onslow says, however, that soon after their anniversary, she discovered that Mr Onslow was seeing another woman. She resolved to leave him and did so.
In late 2009, Ms Onslow breached the apprehended violence order by telephoning Mr Onslow and his girlfriend. Ms Onslow was telephoning because all of her belongings were in the house they were living in.
Ironically, in June, 2010 a final apprehended violence order was made against Ms Onslow and she was found to have breached the apprehended violence order made in 2009. She was sentenced to 100 hours community service and a 9 month suspended sentence. The decision in that matter, or the sentencing remarks, are not in evidence before me so it is impossible to identify the basis upon which those orders were made.
Ms Onslow claims that due to the numerous injuries she has sustained from Mr Onslow’s violence, she is unable to be employed in a position that requires lifting or manual work. Although she exhibits a medical certificate to her affidavit filed on 16 March, 2011, that certificate does not establish any causal connection between Mr Onslow’s violence and any incapacity that she might have by reason of physical impairment. I reject her evidence about this matter.
Consideration
There is no doubt that there was a de facto relationship between the parties until at least 2000. The respondent submits that the question is when the relationship ceased. But in my view, that is the wrong question. The correct question is whether the de facto relationship broke down finally after 1 March, 2009. As the Full Court points out in Fenton (above), the de facto relationship might be characterised by numerous periods when it might be said that the de facto relationship has broken down. But what is important for the purposes of Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 is when it broke down finally.
Thus, Mr Onslow’s submission that for Ms Onslow’s contention that the relationship ended in 2009 “To be sustained the Applicant would have to demonstrate the existence of a de facto relationship until either June 2009 or late June 2009” is plainly incorrect. To approach the matter in that way would be to repeat the error identified by the Full Court in Fenton.
Section 4AA(2) of the Family Law Act sets out that the circumstances of the relationship that may lead to the conclusion that a de facto relationship exists include:
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.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether a de facto relationship exists between two people: s.4AA(3) of the Family Law Act.
There is no contest that Mr Onslow left the former matrimonial home in Brisbane, had at least two addresses in Brisbane and then moved to Sydney in 2003 or 2004 for employment purposes.
However, I am satisfied that the parties continued their relationship, notwithstanding that Mr Onslow moved from Property C sometime in 2000. The parties’ relationship in which Mr Onslow was the dominant personality continued. Ms Onslow continued to be the primary carer of the parties’ children until August, 2005 when the children were removed by the Department of Child Safety. Mr Onslow continued to be the breadwinner and provided financially both for Ms Onslow and the children. He ensured that they had accommodation. Whilst Ms Onslow may have been in receipt of social security benefits at that time, I am not satisfied that the fact that she, or she and Mr Onslow may have connived to defraud the revenue, if indeed that is what they did, is determinative of the nature and the extent of their relationship at that time.
Between 2000 and when the children moved to [H] in 2006, the parties continued to see each other, notwithstanding that Mr Onslow was living in Sydney from 2004. As I have found above, he returned to the parties’ former residence regularly and frequently. I accept Ms Onslow’s evidence that the parties continued their sexual relationship.
The police reports contained in exhibit 5 are consistent with the proposition that Mr Onslow would return to the Property C premises frequently. The parties’ relationship, marked as it was by the violence between them, continued notwithstanding that Mr Onslow had moved away from Brisbane for his employment.
Remarkably, in the documents that have been produced on subpoena by the Queensland Police Service concerning the incidents of domestic violence between the parties, the authors of the report’s express concern for the safety of Ms Onslow. I have set out an extract from one of the reports earlier in these reasons. The documents also record Ms Onslow’s reluctance to make any complaint to the police. One of the incident reports relates to an assault perpetrated by Mr Onslow on Ms Onslow about 24 October, 1998. Consistently with Ms Onslow’s reluctance or inability to properly protect herself from Mr Onslow, she was not the complainant to the police. Rather the complaint was made by a person that I infer from the documents to be her Aunt.
Notwithstanding that, the overwhelming impression that one is left with after reading the documents contained in exhibit 5 is that it is indeed Ms Onslow who is in need of protection from Mr Onslow, the only evidence in this case is that from time to time protection orders were applied for and received by Mr Onslow against Ms Onslow.
As best as I can tell from the evidence, a protection order was granted in favour of Mr Onslow in 2003. There was another such order granted in New South Wales in June, 2008 to protect Mr Onslow from Ms Onslow. In 2009 there was an apprehended violence order in force for the protection of Mr Onslow from Ms Onslow.
Mr Onslow submits that the fact that protection orders were in place protecting him from Ms Onslow is evidence that not only was she not living with him in 2003 but that it would have been unlawful for her to do so. In my view, however, that submission does not withstand scrutiny. The only order, the terms of which are in evidence, is a final order made on 12 March, 2009. That order does not prevent Mr and Ms Onslow living in the same residence. Mr Onslow did not produce to the Court copies of any of the other orders that, from time to time, have been made between these parties and which bear out his submission. In my view, the existence of protection orders or apprehended violence orders is not inconsistent with Ms Onslow’s proposition that the parties were still in a de facto relationship in the period 2000 – 2009.
That Mr Onslow would obtain protection orders against Ms Onslow is consistent, in my view with the nature of the parties’ relationship in this case. That is to say, it is consistent with his control and domination of her during the course of their relationship. It my view the obtaining of the protection orders was nothing more than a tool used by him to control and intimidate her.
I am satisfied that between 2000 and at least February, 2009 (when Ms Onslow commenced employment) she remained financially dependent upon Mr Onslow. He met the mortgage repayments in respect of the Property C property until that property was sold. Had he not done so, no doubt, that accommodation would have been lost to both Ms Onslow and the children. He met the mortgage repayments on the Property A property.
Additionally, after 2000 when Mr Onslow left the Property C property the parties continued to co-parent their children notwithstanding that Ms Onslow was left to be the primary carer of them by Mr Onslow when he was absent. His evidence was that he would return to the Property C property to check on the children. That was of course necessary because Ms Onslow’s ability to properly meet the needs of the children was no doubt compromised by her alcoholism, but he nonetheless saw it as appropriate for them to be in her care, with his assistance, both practical and financial, whilst he was away pursuing employment opportunities.
It was put to Ms Onslow in the course of cross examination that Mr Onslow permitted her to remain living in the Property C property because she had nowhere else to go. It was put to Ms Onslow on the basis that Mr Onslow was assisting her and helping her out. I reject the proposition that Mr Onslow was in any way motivated by altruistic intentions when he determined to permit Ms Onslow to remain living in the Property C home. In my view, and I find, she remained living there because the parties were still in a relationship, one characterised by the domination and violence perpetrated by Mr Onslow on Ms Onslow, she was still primarily responsible for the parties’ children and had she not remained living there, Mr Onslow would have had to make other arrangements for the care of children. In short, it suited him to have her there.
There is evidence that the parties shared accommodation once Ms Onslow moved to [H]. That evidence comes from Ms Onslow, Mrs W and Mr B. Given that Ms Onslow and Mr Onslow determined that they would get their children back into their care by Mr Onslow convincing the Department of Child Safety that he would look after the children and not live with Ms Onslow, the maintenance of alternate addresses by Ms Onslow can only be seen as consistent with that plan. The observations of Mr B and Mrs W are consistent with Ms Onslow’s case that she and Mr Onslow organised their living arrangements such that for all outward appearances they lived at separate addresses but on a day-to-day basis she spent most of her time at his residence in [H] for the purposes of caring for the children and performing domestic duties.
Mr Onslow suggests that the observations made by Mr B and Mrs W fit perfectly with Ms Onslow visiting the place where at least two of her children were living and carrying out some domestic duties for the children such as washing. But the evidence which I have accepted was not so limited. The work that Ms Onslow says that she did at Property A, [H] was not limited to work solely for the children (such as washing their clothes). Her work was far more extensive and was of benefit to Mr Onslow as well.
Mr Onslow submits that the evidence of Ms S and Ms J is far stronger in supporting the assertion there was no relationship, the latter giving evidence of an admission against interest by Ms Onslow. For the reasons I have already given above, in my view the evidence of Ms S or Ms J is not particularly helpful in resolving this dispute.
I have already indicated that I accept Ms Onslow’s evidence that the parties sexual relationship continued until she determined to end the relationship in June, 2009.
In his submissions, Mr Onslow suggests that much of Ms Onslow’s evidence concerning her allegations of domestic violence is irrelevant. In my view, however, those allegations are relevant to demonstrate the nature and extent of the parties’ relationship. This clearly was a relationship where, as Ms Onslow says there was “a serious power imbalance”. She is correct when she says that her relationship with Mr Onslow “was very dysfunctional for a long period of time. Mr Onslow was controlling and manipulative.”
Against that background then, it is not implausible (as Mr Onslow would have me find) that Ms Onslow would maintain alternate addresses in [H] whilst at the same time spending most of her days at his address caring for their children and otherwise performing domestic duties. It is not implausible that Ms Onslow would seek to receive social security benefits when at least, at first glance, it may appear that she was not entitled to receive those benefits. I say “at first glance” because there was no real attempt made in this case to establish that Ms Onslow was not entitled to receive the social security benefits that she in fact received. She was cross-examined about that issue.
Her evidence in cross-examination on this point was confused and confusing. It was not helped by Counsel putting inaccurate questions to her regarding her earlier evidence. For example:
Ma’am, you’ve told me (1) “I was entitled to it.” Now you’ve told me (2) “I knew I wasn’t entitled to it,” and now you’re telling me (3) “I was confused”?‑‑‑Yes, because my children had just been moved and I was entitled to a Newstart payment. Mr Onslow had mentioned to me that I should stay on that Newstart payment because we had not been living together until six months later again.
Mr Onslow wasn’t living with you in June of 2006, was he?‑‑‑He was away.
He was away. He was living somewhere else?‑‑‑Yes.
So when I asked you before whether you were living with Mr Onslow in 2006 and you said “Yes”, that wasn’t true?‑‑‑Yes, it is.
Well, you just agreed you weren’t living with him in June 2006?‑‑‑I lived in different places in 2006. I have all my life ‑ ‑ ‑
I’m speaking of June at the moment. We will get to the other months and the other years shortly?‑‑‑Yes.
But you told the court before that in June 2006 you were living with Mr Onslow?‑‑‑Yes.
In fact, Counsel had not put to the witness earlier that she was not living with Mr Onslow and the witness did not suggest that she was living with him. I can find no reference in the transcript to the suggested questions and answers. The cross-examination was apt to, and I am satisfied did, confuse Ms Onslow such that her answers on this point are not particularly reliable.
Whilst it is correct to say that on occasions Ms Onslow admitted that she may not have been entitled to receive the allowances and pensions that she received, it is also correct to point out that she said that she had kept CentreLink informed of her situation and she nonetheless continued to receive benefits.
In any event, there was no attempt to otherwise demonstrate, by reference to evidence or the relevant statutory provisions, that Ms Onslow was not entitled to the various benefits received by her during December, 2005 – June, 2006 (or some later date) even if she was in a de facto relationship with Mr Onslow. During the period December, 2005 to April, 2009, Ms Onslow’s eligibility to receive social security benefits was dependent upon the Secretary of the relevant department forming an opinion that Ms Onslow was a member of a couple (see s.4 of the Social Security Act 1991), something the Secretary could not do if, notwithstanding anything else, she was living separately and apart from Mr Onslow on an indefinite basis (see s.4(3A) of the Social Security Act1991).
Having regard to the provisions of ss.4AA(2) and 4AA(3) of the Family Law Act set out above, it is not beyond possibility that on any given facts, a person might be in a relationship that meets the description of a de facto relationship for the purposes of the Family Law Act, and not be a member of a couple for the purpose of Social Security Act. These matters were not explored in any detail in the evidence or in submissions.
Mr Onslow was critical of Ms Onslow’s inability or failure to produce corroborative evidence of some of her allegations. Neither party in this case, however, produced what one might have expected to be easily obtainable evidence to support the assertions that he or she has made. Whilst the criticism is valid, it is equally valid in respect of both parties’ cases.
Mr Onslow points out in his submissions that in cross-examination
Ms Onslow, from time to time did not know where Mr Onslow was living after 2000. In my view there is nothing remarkable in that admission by her given:
a)the serious power imbalance between the parties; and
b)Ms Onslow’s long-standing alcoholism.
Further, Mr Onslow suggests that the admissions made by Ms Onslow in her cross-examination that she had provided false addresses to the Australian Taxation Office, to the New South Wales Police Service and to other organisations demonstrated generally that her evidence was unreliable. Mr Onslow suggested in submissions that her evidence about those matters was entirely consistent with his case (that she was living elsewhere) and entirely inconsistent with hers. That submission, however, misapprehends Ms Onslow’s case in a serious way. Her case is, and I have found, that the parties embarked upon a plan to disguise where it was that Ms Onslow was living. The provision of addresses other than Mr Onslow’s [H] address to government agencies and the police is entirely consistent with that plan.
In cross examination Ms Onslow was asked about her PAYG payment summary for the year ended 30 June, 2009. Her address as it appears in that payment summary is not the Property A address. It was put to her that the payment summary was inconsistent with her assertion that she lived with Mr Onslow. In my view, however, the cross examination was misleading of the witness because:
a)the PAYG payment summary was signed by the payer on 13 July, 2009;
b)Ms Onslow’s case was that she separated from Mr Onslow in June 2009;
c)upon separation she went to live with a friend of hers called Ms T (recorded in the transcript [omitted]); and
d)the address in the PAYG payment summary is Ms T’s address.
What was not clarified by the cross examination was whether Ms Onslow had notified her employer of any change of address after she says separation occurred from Mr Onslow or indeed whether she gave to the employer the correct address in the first place.
Mr Onslow further submits that “… many of the attributes normally associated with a de facto marriage are missing, such as common residence and intermingling of finance.” I agree with that submission as far as it goes. However Mr Onslow’s submission pays no regard to the nature and extent of the dysfunctional relationship that existed between he and Ms Onslow since 1989. To the extent that his submission suggests that the Court ought to look for indicia such as a commitment to shared goals and aspirations, mutual trust and respect and a supportive environment in which those things might be realised, as best as I can tell from the evidence, those indicia where never present in his relationship with Ms Onslow.
Mr Onslow submits that since he ceased living on a full-time basis at Property C in 2000 “there was no use and acquisition of property by them and the only property they owned was transferred to the Respondent”. However, in my view that submission is factually incorrect. There was use by the parties together of property and in particular, the Property C property. In 2000 it was in the joint legal ownership of the parties. Ms Onslow had just as much right to reside in the premises rent free as Mr Onslow did. He had no legal right to insist that the occupation of the property be subject that to a condition imposed by him that she meet payment of the rates and electricity. His actions in that regard are yet another indicator of the power and control that he asserted over Ms Onslow. The jointly owned property was used by the parties to house their children.
Additionally, as I have indicated above, I accept Ms Onslow’s evidence that from time to time Mr Onslow would give her money, or she would give him money. The only evidence that the parties ever operated a joint bank account was given by Ms Onslow in her affidavit filed on 15 June, 2012. In that regard she says that the parties had a joint cheque account with the Metway Bank that was opened at about the time [X] was born. That account, however, was closed in around 1995 when the parties bought the land at Property C and took out “a loan in our joint names through ATSIC”.
Conclusion – de facto relationship
For the reasons I have just given, I am satisfied that the parties commenced a de facto relationship as defined in s.4AA(1) of the Family Law Act, in 1989. I am satisfied, and I find, that the parties’ de facto relationship broke down finally sometime soon after the 20th anniversary of the commencement of that relationship on 17 June, 2009. Accordingly, I am satisfied that the parties’ de facto relationship broke down finally after 1 March, 2009 such that this Court has jurisdiction to make orders pursuant to Part VIIIAB of the Family Law Act between them.
Property Adjustment Orders
The law in relation to property adjustment is relatively settled insofar as married couples are concerned. The approach to the determination of an application under s.79 of the Act is well established by authorities such as In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595; In the Marriage of Hickey (2003) 30 Fam LR 355 and C v C (2005) Fam LR 414. Generally speaking, there are four stages to the proper consideration of an application for property adjustment. Those principles are equally applicable to the alteration of property interests between de facto spouses.
Firstly, I must identify the property, liabilities, and financial resources of the parties at the time of the hearing. Secondly, I must evaluate the parties’ contributions as defined by s.90SM(4) of the Act with particular reference to those matters listed in s.90SM(4)(a), (b) and (c). Thirdly, I must evaluate the matters to which my attention is directed by s.90SM(4)(d) to s.90SM(4)(g), and in particular, s.90SF(3) of the Act insofar as any of those matters are relevant. Finally, I must be satisfied in all the circumstances that it is just and equitable to make the order that I propose to make. It is the justice and equity of the actual orders proposed to be made that I must consider: Russell v Russell (1999) FLC 92-877.
The assets and liabilities
I find that the presently existing assets and liabilities of the parties are as follows:
Property C $340,000.00 Proceeds of Property A $32,000.00 Motor Vehicle $3,000.00 Household contents $4,000.00 Funds in Bank $1,800.00 $380,800.00 Less:
Mortgage – Property C $171,000.00 Credit card $4,800.00 $175,800.00 Nett non-Super assets $205,000.00 Superannuation $241,000.00 Total assets $446,000.00
The assets and liabilities set out above were agreed between the parties. Exhibit 6 in these proceedings is the agreed schedule of assets and liabilities tendered at the trial.
The assets identified in the table above are all owned, legally and beneficially, by Mr Onslow. He is solely responsible (as between these parties) for the liabilities set out in the above table.
Contributions
I repeat and rely upon the factual matters that I have set out earlier in these reasons. Neither party made extensive submissions about the way in which the Court ought to assess contributions this case. In particular, neither party made submissions about whether I should approach this case by dividing the assets into superannuation and non-superannuation pools and carrying out required assessments in relation to each pool. I propose to treat the assets and liabilities as a whole (i.e. one pool) because of the length of the parties’ relationship and the fact that by and large the present asset pool, including Mr Onslow’s superannuation, appears to have been accumulated over the course of their relationship.
Having regard to the factual findings I have made above, it is clear that:
a)at the commencement of the parties’ relationship neither had any assets of any significance;
b)for most of the time between 1989 and June 2009 Mr Onslow was in employment and received income;
c)for most of the time between 1989 and June 2009, Ms Onslow was not in employment but was responsible for the care of the parties’ children;
d)Ms Onslow was relieved of that care between August, 2005 and December, 2006 but when she moved to [H] at the conclusion of December, 2006 she again took up their care;
e)following separation Ms Onslow continued to be responsible for the parties’ two older children whilst the younger children have been in the care of Mr Onslow;
f)the younger children have spent very little time at all with their mother since June, 2009;
g)Mr Onslow has been financially responsible for the children without assistance from Ms Onslow;
h)Mr Onslow has continued to be responsible for the assets and liabilities set out in the above table.
I accept that Mr Onslow had a superannuation interest of about $1,600 at the time the parties’ commenced their relationship.
In 1995, the parties purchased vacant land at Property C. They built a house on that property. The property was purchased in joint names using borrowed funds. Over time, and using his income, Mr Onslow met the mortgage repayments and the other outgoings in respect of that property.
Mr Onslow asserts that in 2006 when Ms Onslow left the property, “it was in a filthy condition and had to be thoroughly cleaned before it could be rented”. He claims that since 2006 he has spent in excess of $50,000 on that property, which he borrowed through a second mortgage secured over it. No documents have been produced by him to corroborate:
a)that a second mortgage was obtained by him in respect of the property;
b)that $50,000 was borrowed on the security of that second mortgage;
c)that the condition of the property after Ms Onslow left the property was nothing more than 10 years of fair wear and tear;
d)that the cost to do anything to the property by way of repair or rectification amounted to $50,000.
I reject his evidence about those matters.
After Ms Onslow moved out of the Property C property, it was placed on the rental market and rented out. The rent was used to defray the mortgage repayments.
In early 2007 Mr Onslow purchased the house at Property A, [H]. The property was purchased in his name. He paid the deposit “from my savings” and the mortgage “from my earnings”.
The Property A property has now been sold and the balance of the proceeds of sale are represented in the asset pool available for division between the parties.
Mr Onslow is, in his affidavit filed on 12 May 2012, critical of Ms Onslow because she did not contribute financially to the accumulation of the parties assets. I have already found, however, that following the birth of their first child the parties agreed that Ms Onslow would be a full-time carer of the parties’ children. At least insofar as [X] was concerned, Mr Onslow confirms that in paragraph 13 of that same affidavit.
In his affidavit filed on 12 May, 2012, Mr Onslow is highly critical of Ms Onslow’s conduct and that is particularly so after the time when he says the parties separated. He says that he stopped giving Ms Onslow cash because she would waste it on cigarettes, alcohol and drugs. He describes her living habits as “filthy” and complains that the property at Property C ‘has lost value” because of her “filthy living habits”, he complains that she did not work for any “lengthy period of time during our 11 year relationship. Her working history was one of being dismissed because of her inability to stay sober. Ms Onslow did not contribute financially to either of the properties and in fact, in relation to Property C, she cause damage to which I paid to have rectified.” Mr Onslow swears that “Ms Onslow made little or no contribution as a homemaker. She had filthy habits and I often had to clean up after her.”
However, in cross examination Mr Onslow described Ms Onslow as a “good mother” when she was not drinking. It is difficult to accept his criticisms of her capacity as a parent and homemaker given his own decision to leave the children in her care, as he would have it from 2000 until they were removed from her care, not by him, but by the Department of Child Safety in April 2005. His actions are inconsistent with the evidence set out in his affidavit. I reject his evidence.
I am satisfied that I ought to assess the parties’ contributions to the current asset pool as contended for by Ms Onslow. That is to say, I am satisfied that her contribution based entitlement is 35% of the current net value of the total asset pool available for division between the parties.
The fact that Ms Onslow was responsible by and large for the care and control of the children up until the time the parties separated (on my findings) in June, 2009, means that Mr Onslow was free to earn an income, accumulate his superannuation interest, and accumulate savings from which he paid the deposit for the [H] property.
On Mr Onslow’s case he stopped giving money to Ms Onslow in about 2000 because, he complains, she spent the money on things that she ought not have. In those circumstances, it is difficult to see on what basis he might suggest that she has made a negative contribution to the parties’ financial circumstances given that on his own case she had no income of any significance and he gave her nothing. Of course, the fact of the matter is that, as I have found above, he did give her money and whilst I accept that she would have spent some of that money on alcohol given her addiction, it is an addiction that arose out of the relationship between these parties and the way in which Mr Onslow chose to conduct himself towards Ms Onslow.
In that respect, it is right to say that there is no medical evidence before me which suggests that there is a causal connection between Mr Onslow’s behaviour and Ms Onslow’s alcohol addiction. But such is the gravity of his behaviour towards her that, in the circumstances that present in this case, I am prepared to draw the inference that his behaviour was a significant factor in the development of, or at least contributed to the development of, her alcoholic condition. I accept her evidence that she would use alcohol to make herself “feel better” and to “escape”.
Future Matters
Both parties are of good health. I accept Ms Onslow’s evidence that she has not had a drink for two years and is dealing with her alcoholism.
Mr Onslow says that he has been made redundant from his most recent employment. His employment ceased on 19 October, 2012 and he received a redundancy payment of approximately $38,000. Of that he had about $9000 left at the time of trial. Having regard to his evidence in cross-examination about how much he had left of his redundancy payment, it is difficult to understand the agreed asset and liability pool set out in exhibit 6.
Mr Onslow claims that he has current fortnightly outgoings of $3516.50 per fortnight and an income, until 19 October, 2012 of $3610 per fortnight.
I am satisfied that Mr Onslow will obtain employment without too much difficulty. He has been gainfully employed for all of the parties’ relationship. There is no reason to think that now that his most recent position has become redundant, he will not secure himself further employment.
Ms Onslow, at the time of trial was in receipt of a carer’s pension. She has, however, in the past been able to secure employment and there is every reason to think that if she manages to control her alcoholism, she will take up employment.
Mr Onslow will continue to be responsible for the parties’ two younger children. He is not likely to receive any significant assistance financially from Ms Onslow with that even if she does take up employment. In her submissions, Ms Onslow recognises that the financial burden upon Mr Onslow in that regard will be significant. She argues, therefore, that notwithstanding his superior earning capacity, and the uncertainty about his financial relationship with Ms B, there should nonetheless be no adjustment to the contribution-based assessment found by me.
Conclusions
In all of the circumstances, it is just and equitable to make an order whereby the interests of the parties in the property identified in the table above are adjusted. Mr Onslow has control of all of the property and Ms Onslow has none.
According to my assessment, she is entitled to 30% of the property. That is a payment to her of $156,100.00. Mr Onslow has equity in the Property C property of about $170,000. However, Ms Onslow has no superannuation. It seems to me appropriate, balancing the needs of the parties and paying due regard to the fact that Mr Onslow has an obligation to continue to accommodate the parties two younger children that an order which provides for a cash payment to Ms Onslow and the superannuation splitting order is appropriate. Mr Onslow led no evidence whatsoever concerning his capacity to further borrow against the Property C property. But given the amount of equity in the property, it is possible that he may access the equity for the purposes of payment to the wife. 35% of the non-superannuation asset pool is $71,750.00. 35% of the superannuation asset pool is $84,350.00.
In my view, it is just and equitable to make a property adjustment order between these parties. In my view, a just and equitable order is an order which requires Mr Onslow to pay to Ms Onslow $71,750.00 within 60 days of today and which provides a superannuation split whereby she receives a superannuation entitlement calculated using a base amount of $84,350.00.
There is nothing before me to suggest that there has been any procedural fairness given to the superannuation trustee of Mr Onslow superannuation fund. Accordingly directions must be made to facilitate that process.
Alternative Relief
Given the findings I have made above about Ms Onslow’s primary claim for relief, it is unnecessary to determine her claim for alternative relief.
Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 24 September 2013
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Procedural Fairness
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Remedies
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Fiduciary Duty
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