PERKINS & MEAKIN

[2017] FCCA 2348

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERKINS & MEAKIN [2017] FCCA 2348

Catchwords:
FAMILY LAW – Applicant seeks to institute property proceedings following the breakdown of the parties’ de facto relationship – the Applicant contends the parties separated in February 2015 – the Respondent submits the relationship ended in May 2013 when the Applicant moved out of her home – where if the Court were to conclude the date of separation was as contended by the Respondent, the Applicant’s Initiating Application was filed more than two years after the breakdown of the relationship and he will need to seek leave to institute property proceedings out of time.

HELD: Date of separation found to be May 2013 – matter adjourned to enable the parties to file written submissions on the question of whether the Applicant should be granted leave to institute property proceedings out of time.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 44(6), 90RD

Moby & Schulter (2010) FLC 93-447
Jonah v White [2011] FamCA 221

Applicant: MR PERKINS

Respondent: MS MEAKIN

File Number: MLC 313 of 2017

Judgment of: Judge Bender

Hearing date: 21 September 2017

Date of Last Submission: 21 September 2017

Delivered at: Melbourne

Delivered on: 21 September 2017

REPRESENTATION

Counsel for the Applicant: Mr Perkins in person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Ms Meakin in person

Solicitors for the Respondent: Not applicable

ORDERS

1. Pursuant to Section 90RD(1) of the Family Law Act 1975 (Cth) it is declared that the de facto relationship between the Applicant and the Respondent ended in May 2013.

2. By 4:00pm on 19 October 2017 the Applicant file and serve written submissions in relation to the question of whether he should be granted leave to institute property proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth).

3. By 4:00pm on 16 November 2017 the Respondent file and serve written submissions in relation to the question of whether the Applicant should be granted leave to institute property proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 313 of 2017

MR PERKINS

Applicant

And

MS MEAKIN

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. These proceedings were initiated by the Applicant de facto Husband by way of Initiating Application filed by him on 13 January 2017 wherein he seeks a division of assets between he and his former de facto Wife.

2. The Respondent de facto Wife filed her responding material on 26 April 2017. In it, amongst other things, she disputes the date of separation claimed by the Applicant.

3. The Respondent contends that the parties’ separated in May 2013 when the Applicant moved out of the home in which they had been living together as a couple.

4. The Applicant submits the relationship between he and the Respondent ended in February 2015. If the Court is satisfied the date of separation is as put by the Applicant, he will have filed within the two year time period and will not be required to seek leave pursuant to section 44(6) of the Act.

5. If the Court is satisfied that the date of separation is as put by the Respondent, the Applicant’s Initiating Application will have been filed out of time, as the two year period following separation within which a party to a de facto relationship is permitted to be filed will have lapsed. The Applicant would therefore be required to seek leave to institute proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) (‘the Act”).

6. Following the first return date of the matter on 22 March 2017 and the filing of the Respondent’s affidavit material in April 2017, the matter returned for a further mention on 2 May 2017. Pursuant to order (1) of the orders dated 2 May 2017, the matter was listed for hearing today “in relation to the date of separation and in the event the date of separation is found to be more than two years prior to the filing of the Applicant’s Initiating Application whether leave should be given pursuant to section 44(6) of the Family Law Act 1975 (Cth) to file out of time”.

Background

1. It is common ground that the parties lived in a de facto relationship from approximately 2008 when the Applicant moved into the Respondent’s home in (omitted). In May 2013 the Applicant moved out of the Respondent’s home and into his mother’s home. 

2. It is the Applicant’s evidence that, in his mind, his move from the (omitted) property in May 2013 did not signal the end of his romantic relationship with the Respondent. It is his evidence the move was a decision made because of the need of both parties to have some space from one another due to their emotional difficulties, as well as the quite serious physical difficulties experienced by the Respondent following surgery.

3. It is the Applicant’s evidence that after he moved from the (omitted) property the parties continued to see each other 3 or 4 times a week at the (omitted) property. It is his evidence that there were times that they slept together and that this continued until April 2014 when the Respondent sold her house in (omitted) and moved to (omitted) where her sister and mother were situated. 

4. After the Respondent moved to (omitted) in 2014 the parties saw each other on three occasions. The first occasion was when the Applicant delivered the Respondent’s cat to her in (omitted). The second occasion was when the parties travelled together for a holiday to (country omitted) that was pre-booked prior to their physical separation. The third occasion was for a period in November when the Respondent travelled to Melbourne to renew her licence. 

5. It is the Applicant’s evidence that after the Respondent moved to (omitted), they were in regular telephonic communication with calls and SMSs multiple times per month. 

6. In 2015 the Applicant entered into another relationship. It was the Respondent’s discovery of this relationship in February 2015 that saw all communications between the parties cease. 

7. It is the Applicant’s evidence that although the parties were not living together, it is his perception that their relationship and love for each other continued until their communication ceased in February 2015.

8. The Applicant points to the ongoing communication between the parties,  the assistance that he provided to the Respondent in packing up her house and particularly his assistance with jobs that were needed in order to get the house into the best possible condition for sale,  the Applicant delivering the Respondent’s cat to (omitted),  the parties holidaying together in (country omitted) and the level of the Respondent’s distress when she discovered that he had entered into another relationship as being evidence of the continuation of their relationship.

9. It is the Respondent’s evidence that in the lead-up to the Applicant moving out of her home in May 2013, there had been a change in his behaviour towards her. This coincided with the serious injuries that she suffered following surgery. It is her evidence that the Applicant simply came home, sat her down and told her that he was moving out because he needed a break from their relationship.

10. It is the Respondent’s evidence that she believed this was the end of their romantic relationship but that she thereafter considered them to have a friendship. Whilst she still loved him and there was continued engagement between them, as far as she was concerned, their de facto relationship finished when the Applicant moved out.

The Law

1. Subsection 4AA(1) of the Act defines a de facto relationship to exist if:

   “(a) the persons are not legally married to each other; and

   (b)  the persons are not related by family; and

   (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

2. Subsections 4AA(2)-4AA(4) provide:

   “Working out if persons have a relationship as a couple

   (2) Those circumstances may include any or all of the following:

   (a)  the duration of the relationship;

   (b)  the nature and extent of their common residence;

   (c)  whether a sexual relationship exists;

   (d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e)  the ownership, use and acquisition of their property;

   (f)  the degree of mutual commitment to a shared life;

   (g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h)  the care and support of children;

   (i)  the reputation and public aspects of the relationship.

   (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.”

3. The case law has grappled with the question of whether parties are in a de facto relationship in accordance with the provisions of the Act since it came into law in March 2009.

4. Murphy J in the matter of Jonah v White [2011] FamCA 221 suggested that “the key” to the definition of a de facto relationship was:

   “…the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”

5. In the matter of Moby & Schulter (2010) FLC 93-447 Mushin J stated at 85,067:

   “The parties' relationship may be seen as having gone through a number of different phases.  The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship.  Accordingly, it is appropriate to consider the facts of the parties' relationship in those different phases and then step back and take an overview of the entirety of the facts.”

6. In the matter of Jonah (supra) Murphy J did not say that the question of whether parties live together is, of itself, determinative of the question of the existence or otherwise of a de facto relationship. Rather His Honour said that:

   “The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship.”

Conclusion

1. The parties’ relationship moved through various phases. There was a courtship. There was clearly a period where there is no issue that they were living in a genuine de facto relationship. From May 2013 there was a period where the Applicant moved out of the property the parties had shared and lived separately apart from the Respondent; initially in Melbourne and then in separate states.

2. It is the Applicant’s evidence that in his view whilst the parties were living separately they were still in a committed domestic relationship.

3. It is the Respondent’s evidence that the Applicant’s moving out signalled for her the end of their romantic relationship. She considered that after the Applicant moved out he remained her friend but their previous relationship was at an end. She considered the parties to be friends until February 2015 when she discovered the Applicant had entered into a relationship with Ms S in 2014 without telling her. The surprise discovery by the Respondent of the Applicant’s new relationship led her to doubt his faithfulness to her during the course of their relationship. This is when any form of relationship between the parties ended.

4. I believe that each of the parties’ expressed views as to the nature of their relationship from May 2013 to February 2015 is genuinely held.

5. However, whatever may have been the parties’ views of the nature of their relationship following May 2013, I am of the view that there was a fundamental shift in that relationship when the Applicant moved out of the property in (omitted). It is apparent to me that the parties no longer had a relationship as “a couple”. There is nothing in the manner of their relationship after May 2013 that supports a finding that they were living in “coupledom” as defined in the Act or as set out in the case law referred to in this judgment.

6. This is particularly so once the Respondent had moved to (omitted).  The parties spent very little time with each other. Whilst I think there was a greater degree of communication between the parties than has been conceded or perhaps remembered by the Respondent, I am of the view that the parties were no longer in a de facto relationship but were, in fact, friends, albeit it is apparent that they still cared for each other.

7. In all these circumstances, I am of the view that for the purposes of the Act, the date that the de facto relationship ended is that contended by the Respondent, being May 2013 when the Applicant left the matrimonial home.

8. This does not however see the end of these proceedings.

9. Having found that the de facto relationship ended in May 2013, the Applicant is now in a position where he is required to seek leave to institute property proceedings out of time pursuant to section 44(6) of the Act.

10. It was indicated to the parties at the commencement of this hearing that subject to the Court’s finding as to the question of the date of separation, the Court may proceed to hear submissions on whether leave to proceed out of time should be granted.

11. However, given the time constraints, the burden that would be placed upon both litigants, who are self-represented, if they were to be required to make submissions on the section 44(6) application and the gravity of a Court’s finding in that regard, it is agreed that the Court will accept written submissions from each of the parties – the Applicant within a 28 day period and the Respondent within a further 28 days. This will enable the parties’ to seek legal advice if they wish to do so and to properly put their arguments before the Court in a timely and cost effective manner.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Bender.

Date:         21 September 2017