Petroulis & Kontos
[2023] FedCFamC2F 1105
•25 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Petroulis & Kontos [2023] FedCFamC2F 1105
File number(s): PAC 2789 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – de facto property adjustment proceedings – threshold hearing – declaration that de facto relationship ended in January 2020 – leave granted to de-facto wife to commence property adjustment and maintenance proceedings out of time. Legislation: Family Law Act 1975 (Cth) ss 4AA, 44, 90RD, 90SE, 90SM Cases cited: Crick & Bennett [2018] FamCAFC 68
Fairbairn v Radecki [2022] HCA 18
Sinclair & Whittaker [2013] FamCAFC 129
Division: Division 2 Family Law Number of paragraphs: 99 Date of hearing: 9–10 August 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person on 9 August 2023; Mr Morris (direct brief) on 10 August 2023 Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Marsdens Law Group ORDERS
PAC 2789 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PETROULIS
Applicant
AND: MR KONTOS
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.The Court declares, pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the parties’ de facto relationship ended on about 10 January 2020.
2.Leave is granted to the Applicant wife to make an application for Orders under s 90SE and s 90SM of the Act after the end of the standard application period (the end of the standard application period being on about 10 January 2022).
3.The proceedings are adjourned to 16 October 2023 at 9:30am for mention.
AND THE COURT NOTES THAT:
A.The Applicant wife commenced proceedings on 26 May 2022. There is no need for her to file a fresh Initiating Application pursuant to the above Order granting leave.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These reasons for judgment relate to the Applicant de facto wife’s application for a declaration under s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between herself and the Respondent de facto husband during the period from 10 January 2014 to 10 January 2021.
In these reasons, for ease of reference, the Applicant de facto wife shall be referred to as the wife and the Respondent de facto husband shall be referred to as the husband.
It was common ground that the parties had been in a de facto relationship in excess of two years. The husband contended its duration was from 10 January 2016 to 16 January 2020. The wife contended its duration was from 10 January 2014 to 10 January 2021.
The parties were content for the Court to not determine the commencement date of the parties’ de facto relationship but only determine the end date of such relationship.
Proceedings had been commenced by the wife on 26 May 2022. If the relationship ended on 16 January 2020 then the wife would have commenced proceedings out of time by a little over four months because proceedings were commenced on 26 May 2022; in these circumstances she would need to obtain the Court’s leave to pursue her proceedings. The parties were content for the Court to determine such a leave application if necessary.
A hearing was held on 9–10 August 2023. The wife represented herself on day 1 and she was represented by Mr Morris KC on day 2. The husband was legally represented by Mr Blackah of counsel.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her Case Outline filed 8 April 2023;
(b)Her Amended Initiating Application filed 26 August 2022;
(c)Her affidavits filed:
(i)5 May 2023;
(ii)26 May 2022;
(iii)13 July 2022;
(iv)26 August 2022.
(d)Affidavits of the following lay witnesses:
(i)Affidavit of Ms B filed 26 August 2022;
(ii)Affidavit of Mr C filed 30 August 2022;
(iii)Affidavit of Mr D filed 14 September 2022;
(iv)Affidavit of Ms E filed 5 October 2022;
(v)Affidavit of Ms F filed 11 October 2022;
(vi)Affidavit of Ms G filed 11 October 2022;
(vii)Affidavit of Ms H filed 11 October 2022;
(viii)Affidavit of Mr J filed 12 October 2022.
The Respondent relied upon:
(a)His Case outline filed 6 April 2023;
(b)His Response filed 8 July 2022;
(c)His affidavits filed:
(i)31 July 2023;
(ii)8 July 2022;
(iii)12 October 2022.
(d)Affidavits of the following lay witnesses:
(i)Affidavit of Mr K filed 12 October 2022;
(ii)Affidavit of Ms L filed 12 October 2022;
(iii)Affidavit of Mr M filed 12 October 2022;
(iv)Affidavit of Ms N filed 12 October 2022;
(v)Affidavit of Mr O filed 18 October 2022;
(vi)Affidavit of Mr P filed 19 October 2022.
The following exhibits became evidence in the proceedings:
(a)Exhibit A: Application for Lease submitted 10 January 2020;
LEGISLATION AND LEGAL PRINCIPLES
Section 4AA of the Family Law Act 1975 (Cth), provides, inter alia:
De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); 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.
Paragraph (c) has effect subject to subsection (5).
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.
As to relevant case law, the Court refers to the decision of the Full Court of the Family Court of Australia in Crick & Bennett [2018] FamCAFC 68 and the cases referred to and discussed therein including Sinclair & Whittaker [2013] FamCAFC 129.
The Court also refers to the recent decision of the High Court of Australia in Fairbairn v Radecki [2022] HCA 18. The High Court decision discussed s 4AA(1)(c) of the Family Law Act 1975 including the words “living together” and the issue of the “breakdown” of a de facto relationship. It also discussed the issue of whether there was a need for cohabitation within s 4AA(1). Inter alia, the Court stated:
“Living together” and “breakdown”
28.Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
29.A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
30.In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. It is the “breakdown” or “end” of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended. The appellant's submission finds no support in statutory context, in history, or in any extrinsic material referred to the Court's attention.
31.Other provisions in the Act support the view that “breakdown” refers to the “end” of a de facto relationship. …
The need for cohabitation
32.The appellant's primary argument that the parties’ de facto relationship had broken down when the appellant was placed into an aged care facility such that the parties were no longer physically living together must be rejected. It is contrary to the text of s 4AA and to statutory context and purpose to which reference has been made. It is also contrary to real-world considerations. It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.
33.Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
34.The fact that here the appellant was placed into an aged care facility may be relevant to the existence or breakdown of a de facto relationship under the Act, but it could not, of itself, be determinative of that issue. The same observation applies to the decline in the appellant's cognitive ability.
35.Two decisions support the proposition that physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.
…
39.The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
Relevant circumstances under section 4AA(2)
The Court has considered all the parties’ material and the oral evidence of the parties and witnesses who gave oral evidence. It has considered their submissions. The Court will now discuss relevant evidence including its findings below including under the headings “Discussion” and “The wife’s extension of time application under s44(6)(b) of the Act”.
Again, it is common ground that a relevant de facto relationship existed between the parties for in excess of two years. The relationship commenced, on the wife’s case in January 2014 or on the husband’s case January 2016. The wife commenced proceedings on 26 May 2022 seeking property adjustment Orders and an Order under s 77A of the Act relating to maintenance. Thus a significant issue that arose at the hearing for determination was the end date of the relationship.
There was no child of the relationship.
In 2014 the parties both had matching tattoos applied.
In 2014 the wife’s former husband moved out from the wife’s residence in Suburb Q, Melbourne. As at early 2016 her mortgage loan was about $180,000.
In late 2014, the husband told the wife on Facebook that the parties had never gone a day without talking to each other.
The husband stated in paragraph 8 of his affidavit filed 12 October 2022 that he did not consider himself to be in a committed relationship with the wife until end of 2014. He stated that his family and friends were only aware of the parties’ relationship in the summer of 2014/2015. He stated he carried out some renovation work to the wife’s home between 2014 and 2015 free of charge. He estimates the renovations cost him about $32,778.
When the wife was living in Suburb Q, Victoria, with her five children, and the husband was living in Suburb R, NSW, the parties spent weekends together and Easter holidays, school holidays and Christmas holidays together. From late 2014 to late 2015 the parties attended many events as a couple.
The husband carried out some renovations to the wife’s house in Melbourne when he stayed for about 10 days.
The wife moved to Sydney from Melbourne in January 2016 and took up residence with the husband. She left her two elder sons at her home in Melbourne and she came up to Sydney with her three youngest children. The husband’s two sons lived with the parties (with Mr M moving out in late 2019) and the husband’s daughter stayed with the parties every second weekend and during school holidays (with that child not visiting between Christmas 2019 until late January 2020).
The husband had a property at S Street, Suburb R which he had purchased in 2009. He had signed a contract in 2015 selling the property with a delayed settlement to occur in 2018. It was sold by him for approximately $8.0m.
The parties had a sexual relationship from about mid-2013 until about February 2021. However after the wife and her children left the family home in January 2020 the parties’ sexual experiences occurred significantly less often.
After moving to Sydney from Melbourne in January 2016 the wife was offered and worked in the husband’s business T Company. The wife worked in this business for four years from early 2016 to about mid-2020 and received $500 per week.
The husband owned three investment properties at Suburb U.
The husband purchased a property at V Street, Suburb R and the parties and children moved in there in about 2018; this was a home to accommodate the parties’ children and themselves. The husband paid approximately $3,500,000 for it.
During the parties’ relationship the wife alleges that she attended to all the domestic duties including cleaning, cooking, washing, and also maintaining the exterior property.
The husband had four children. The wife had the role of stepmother to the husband’s two boys who lived with the parties and one of his daughters would come on a weekly weekend visit.
The parties had two trips to Country W in 2016. They travelled again to Country W in 2017 and in 2018. They travelled around Australia.
In December 2018 there was an incident at the parties’ residence involving the husband physically manhandling the wife’s son Mr X after the husband’s son Mr O had put a certain photo of Mr X on social media with a flag in the background. The wife intervened to protect her son and there was a brief physical altercation between the parties. The wife left the parties’ residence with her children and the husband’s children left the premises going to their mother’s home. The police were contacted and spoke with the wife. The wife returned to the parties’ residence the next day.
In August 2019 the husband’s son Mr M moved out from the family home. He stated that there was significant toxicity and frustration in the household due to the parties’ arguments and he had left the home as a result. In oral evidence he stated that the parties’ toxic relationship was a massive contributor (to him leaving the home).
In text message exchanges between the parties on 17 September 2019 the husband states, inter alia:
Things went to shit since you started working at [Suburb Y]. I hope it was worth it. You weren’t like this at [Z Company]. I want to know and see the cunt you did coffee with. You have till the end of the week. Name and position.
On the wife’s birthday in 2019, the wife states that the husband was verbally abusing his son and she formed the view from the content of this verbal abuse that the husband had a gun. She asserts that on this birthday the husband bought her gym gear in the context of asserting that at times the husband was cruel and called the wife fat.
The wife put her Suburb Q property on the market in Melbourne in November 2019.
On 21 November 2019 the parties exchanged text messages with the husband stating “You create that anger in me. I’m tired of it as well.” The wife responded, “Fuck off…. I cannot walk eggshells no more! Over farken dishes that I didn’t even eat from! (Court’s emphasis).
There are text message exchanges between the parties on about 30 November 2019 relating to disputation between the husband and his child Ms F at about that time. The parties exchanged abusive text messages. In one text message the wife states to the husband “Listen here you cunt… enough of your fucken abuse… go fuck yourself! You fucked yo today and AGAIN shifting it to others.. Sorry I’m not your fucken scapegoat! Go find another [fool] to blame..” (Court’s emphasis).
The wife asserts that at Christmas 2019, the husband verbally abused her son Mr AA resulting in the wife taking her children out to McDonald’s. She asserts that due to the husband’s outbursts the children and herself were always anxious and afraid of him.
In oral evidence the wife confirmed that between November 2019 and February 2020 the parties were having heated arguments regarding their respective children.
The wife asserts in her affidavit filed 26 August 2022, paragraph 81, that she moved out of the husband’s Suburb R property in January 2020 due to “abuse”. The wife, in paragraph 80, refers to her older son Mr BB telling her in January 2020 that he did not feel comfortable in the family home because of constant screaming and he wanted to move out. In oral evidence the wife stated that her eldest son wanted to move out as he could not handle the “abuse”.
The wife, in her affidavit filed 26 May 2022, paragraph 8 nn, stated that during the relationship she was a victim of domestic violence, financially, physically, and verbally, and in this context refers to, inter alia, incidents at Christmas 2018 and 2019.
The wife, in her affidavit filed 5 May 2023, paragraph 13 on page 19, stated:
13.Our relationship was one of domestic violence. There were many occasions where (the husband) would verbally abuse me in front of my children and his. He would threaten to kick me out with my kids in the middle of the night. I would be scared not knowing what to do, where to go. I felt trapped. Then he would tell me he loved me and he would cry and tell me to forget about it. There are numerous messages where he sends me photos of himself crying to make it up to me and once again sweep things under the rug and continue our toxic relationship. I realise now that our relationship was a sickly one.
The wife, in her affidavit filed 5 May 2023, paragraph 7 on page 24, stated that in 2020 she moved out of the family home due to “domestic violence”, and in this context states that her son did not want to live in the family home anymore and he asked the wife to come with him.
The wife obtained a rental property in Suburb CC nearby to the family home and she and her children moved into this rental property; the Court refers to the Application to Lease dated January 2020 in Exhibit A.
Exhibit A was an application to lease signed by the wife in relation to the lease of residential premises at Suburb CC and submitted in January 2020. The application stated that one adult and four children would occupy the premises. The wife had stated in the application that she had lived at her current address at V Street, Suburb R for four years, which statement was consistent with the wife having moved into the husband’s home at Suburb R in January 2016. She stated that the reason for leaving her current address was, “Broke up with husband”, which the Court infers was a reference to the husband (and not a reference to the wife’s first husband).
The parties exchanged text messages on 11 January 2020. The husband stated, inter alia, “I don’t hate you [Ms Petroulis], I think it’s the best for both of us. You aren’t happy with me anymore. I only see your misery and others create your happiness.” The wife replied, “I’ve got money now!! Maybe you could of pampered me like a real man does. My ex did.”
Mr O stated that in early 2020 the husband told him that the wife and children had moved out. The husband had told him that he still cared for the wife but it was better that they were away from each other.
In the wife’s text message to the husband’s son Mr M on 13 January 2020 she stated inter alia “Stay safe and be happy. Please take care of your father..I love him but I want him to be happy with his kids all together.”
In January 2020 the wife went to Melbourne.
In early 2020 the wife sold her Melbourne property for approximately $650,000.
In March 2020 the parties exchanged text messages. At one point the husband states that his son knows he loves the wife, to which the wife replies, “What exactly are our arrangements”, to which the husband replies, “Have our space and be together…One good thing, when we argue. We can cool off apart, instead of being cunts with each other.” To which the wife replies, “True. I love you.”
In March 2020 the wife posted photographs of herself and the husband posing together for a camera shot at a dinner dance with their children (with the husband’s arm around the wife, and with both parties smiling) on her Facebook page.
The parties and some of their children had some Easter celebrations together in or about April 2020.
The parties exchanged some text messages on 26 April 2020 (Exhibit R to the wife’s affidavit filed 5 May 2023) with the Court observing that not all text messages in this exchange were provided. The text message exchange provides, inter alia, the husband stating, “I am paying you $25 an hour. Do the figures.” The wife replies, “Money has ruined you.” The husband replies, “I’m not your partner, I’m just a fuckwit. You ceased being my partner after Easter Sunday. I’m sharing my fucking bread with you, but you are fucking unappreciative.”
In May 2020 the husband messaged a friend that he had plans to establish a business on a property at Town EE. He proposed that the wife would be the facilitator/director of the project.
In mid-2020 the wife and husband signed an Acceptance of Offer for the mother’s daughter FF to attend the GG School at Suburb HH. This daughter had only known the husband as her father.
In mid-2020 the wife exchanged text messages with a friend of the husband Mr JJ. The wife stated to this person, inter alia, “I told him (the husband) and he said he SMS you direct! Bring your wife and come in Suburb KK where you can eat and smoke at the same time! We’re there nearly every night except when I’m working and he goes by himself!” The Court infers that the wife is referring to herself and the husband being “there” nearly every night except when she is working.
In mid-2020 the wife went to Melbourne with her son. The husband came the next day and they spend some time together in Melbourne. The parties had dinner with Ms B, Mr D, and Mr O. They also met up with the wife’s son Mr J and also Ms H. At the dinner the husband told Mr O that he was not back together with the wife but they were remaining friends.
A copy LL Company tax invoice addressed to the wife at V Street, Suburb R issued 1 July 2020 relating to an invoice for the period 1 June 2020 to 30 June 2020 states that there is an overdue amount of $511.95.
On 21 September 2020 the parties exchanged text messages relating to the wife’s daughter’s educational expenses. One of the messages from the wife to the husband states, “So I won’t allow you to do that to my FF. You’ve done enough damage.” In another message from the husband to the wife he states that he would pay the child’s annual school fees in full to which the wife replies, “I don’t believe anything you say now [Mr Kontos]…too many broken promises.”
In September 2020 the wife used the sale proceeds from the sale of her property in Melbourne to purchase a house at MM Street, Suburb R, with the purchase price being about $750,000. The husband had provided some assistance to the wife in relation to obtaining a loan for the purchase of this property.
In late 2020 the parties went to the city for a catch up with some of the husband’s friends.
In late 2020 the wife went to Melbourne for a few days to spend time with her parents and friends.
In late 2020 the parties exchanged text messages relating to the wife’s daughter’s birthday, with the husband stating, “I’ll surprise her when I get there.”
In January 2021 the parties exchanged text messages. The wife asserts that shortly before these messages she saw on the husband’s social media that he was searching for relationships with other women. In the text messages from the wife to the husband she states, inter alia, “now fark of and leave me alone… You are just a nightmare that has disappeared for my life are good. I don’t even know who you are.” The husband states, inter alia, “I love you more than you think… But we are finished. Too much past hurt.” The wife responds, “Nope I don’t know you at all.” The husband responds, “That’s fine. I was the most loyal friend you ever had.” The wife responds, inter alia, “Let me laugh at the “most loyal friend”…”
In the wife’s Initiating Application filed 26 May 2022, being a document prepared by the wife’s former solicitor, the date of final separation was stated to be 12 January 2020. The wife agreed in oral evidence that on 10 May 2022 she had signed the “Statement of Truth of the Contents of this document” in Part K of that document. She agreed that her former solicitor had experience in family law matters.
DISCUSSION
Relevant legal principle provides that a de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis.” Relevant legal principle provides that such a conclusion is not precluded by the presence of an ongoing relationship of some sort. And the Court acknowledges that relevant legal principle also provides that whilst living together for the purposes of s 4AA(1) of the Act will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time, cohabitation of a residence or residences is not a necessary feature of “living together”.
The Court is of the view that the parties’ de facto relationship probably ended on about 10 January 2020 when the wife and her children ceased residing with the husband and his son Mr K. The wife’s affidavit evidence that she decided to cease living with the husband at this time because of the husband’s abuse is regarded by the Court as an important matter in this context. This abuse, from the wife’s perspective, included verbal abuse of herself in front of her children in the family home, and verbal abuse of at least one of her children in the family home. The wife had stated that due to the husband’s outbursts she and her children were always anxious and afraid of him. It is not without relevance in this context that the husband stated in oral evidence that after about 10 January 2020 the wife told him that she did not want him attending her rental property in which she resided with her children.
Whilst it is apparent that the parties’ relationship, whilst living together with their children at the husband’s Suburb R residence was often conflictual, the extent of such conflict had increased significantly in about the last months of 2019. By about 10 January 2020 the Court infers that the wife could no longer tolerate living in the same residence as the husband by reason of the extent of such conflict and related abuse, and was not prepared to permit her children to be continued to be exposed to such conflict and related abuse. In this context, it is not without relevance, for example, that the husband’s eldest son Mr M had left the family home in late 2019 “due to the toxic relationship and the environment in the household.”
The Court is of the view that, for this particular de facto relationship, a particularly important feature was the parties living in the same residence together with their children (albeit not all of their children, noting, for example, that the wife’s eldest two sons were living in Melbourne) as a family, with the related commitment and provision of mutual support by the parties. This feature came to an end on 10 January 2020. In this context, it is not without relevance that the wife had earlier decided to leave her own family home in Melbourne with some of her children and come to Sydney in January 2016 to take up residence and live with the husband and his children.
The Court acknowledges that:
(a)after January 2020 the parties still had dealings with each other including, inter alia, internet connections, a get-together at Easter in April 2020 including the parties and their children, and the husband expressed a desire to a friend in about mid-2020 for the wife to become involved in the management of a business at Town EE (and had sent a message to the wife in this context).
(b)after January 2020 the parties probably individually held hopes, from time to time, that their former relationship might be able to be restored.
(c)on 26 April 2020 the husband texted the wife stating, inter alia, “I’m not your partner, I’m just a fuckwit. You ceased being my partner after Easter Sunday.”
(d)after January 2020 and during the course of that year, the parties met probably occasionally and had sexual relations.
(e)the wife worked in the husband’s business up to about early 2020.
(f)the husband, together with the wife, agreed with GG School on about 24 June 2020 to financially support the wife’s daughter at this school (with the Court finding it is likely that the husband so agreed to support the wife’s daughter because of his prior positive relationship with that daughter).
(g)after January 2020 the parties probably still had strong positive emotional feelings for each other.
(h)the wife purchased her own residence in Suburb R.
However, despite the above acknowledged matters, the Court finds that by about 10 January 2020 the wife had formed the view that her relationship with the husband had broken down by reason of the extent of conflict and the husband’s related abuse, as discussed above. That the wife had formed the view that the parties’ relationship had broken down at this time was confirmed in her statement in the application for lease of 10 January 2020, Exhibit A; in that document she had expressly written that she had broken up with the husband. It is also not without relevance that the wife, in her Initiating Application filed 26 May 2022, had expressly stated, with the concurrence of her former solicitor, that the parties’ final separation occurred on 12 January 2020. And it is not without relevance that the wife, in her affidavit filed 26 May 2022, refers to her former solicitor’s advice that the parties were in a committed relationship from 2013 to January 2020.
After this break up in January 2020 the parties had dealings with each other, as discussed above, but despite their strong feelings towards each other, and their hopes of a possible restoration of their former relationship, it did not come to pass.
The husband, for his part, had probably formed the view that by about 10 January 2020 he could no longer tolerate living with the wife at his residence by reason of the significant level of conflict occurring between the parties.
In summary, having regard to the above evidence, the Court is satisfied, on the balance of probabilities, that the parties’ de facto relationship ended on about 10 January 2020. The Court will make a declaration to that effect. In this context, the Court finds that on about 10 January 2020 the parties no longer had a relationship as a couple living together on a genuine domestic basis.
The wife’s extension of time application under s 44(6)(a) of the Act
Hardship to wife if extension of time not ordered
In the wife’s Financial Statement filed 26 May 2022, she states that her current occupation is community worker. She states that her average weekly amount from her employment before tax is $1,340. The employer is stated to be NN Company.
In oral evidence she stated that she presently has three jobs. She stated that she worked for NN Company and OO Company and she stated that those entities all obtain contracts from the PP Company. She works 60 to 70 hours per week. She stated that sometimes she works 100 hours per week. She stated that she still has a loan with QQ Bank (her Financial Statement filed 26 May 2022 states that her home mortgage debt is estimated $585,000) and owns a property at Suburb R. She resides with her two younger sons and her daughter; one son is working and pays her $150 each week. The other son is a student. She stated that her two elder sons reside in Melbourne.
The wife stated that she is in desperate financial circumstances; she is providing for her children, she cannot do her daughter’s NDIS (the child is autistic) because she is working, and she cannot take her daughter to her therapy. The wife confirmed her liabilities as comprising her mortgage loan debt, credit card debt, and a debt owing to her former solicitor for about $30,000.
Taking the wife’s evidence at its highest, she probably has a significant case to bring in relation to property adjustment and maintenance. She asserts that she lived with the husband, his children, and some of her children for at least about four years, noting that she had physically taken up residence with the husband in January 2016 (as to the length of the relationship, without deciding this issue, the husband had stated in paragraph 8 of his affidavit filed 12 October 2022 that he did not consider himself to be in a committed relationship with the wife until the end of 2014). She asserts that she cared not only for her children but also the husband’s children. She asserts that she made a significant contribution as homemaker. She asserts that she maintained the exterior of the husband’s large property. She asserts that she contributed her earnings from the husband’s business to household expenses thereby indirectly contributing to the husband’s ability to meet mortgage loan repayments. She has significant financial needs as a single parent and has a daughter who is autistic with related needs, and she is working very long hours as a community worker to support her family. She states that her financial circumstances are desperate.
In the above circumstances the Court finds that the wife would likely suffer hardship if she was not permitted to pursue her claim for property adjustment and maintenance Orders.
Wife’s explanation for delay in commencing proceedings
The relevant delay in this case is the delay in commencing proceedings from 10 January 2022 to 26 May 2022, a period of a little over 4 months.
The wife sought legal advice in March 2021. Whilst the Court has found that as a matter of law the parties’ de facto relationship ended in January 2020, the wife had asserted her belief that her relationship with the husband persisted until about February 2021. And in this context the Court has referred previously in these Reasons to various dealings that the parties had with each other up to about February 2021.
In Exhibit DD to her affidavit filed 5 May 2023 there are certain email communications passing between the wife and her former solicitor, Mr RR (her former solicitor), during the period from 15 October 2021 to 8 March 2022. The Court having found that the parties’ de facto relationship ended on about 10 January 2020 the wife should have commenced proceedings by about 10 January 2022.
At some point prior to 15 October 2021 the wife asked her former solicitor why he had not commenced proceedings and was told that “they were waiting for a response from (the husband’s) lawyers”.
On 15 October 2021 the wife emails her former solicitor, Mr RR, asking, “Any updates with my case against (the husband)?” The wife states the former solicitor told her that he was still awaiting (a response from the husband’s solicitors); see page 25, paragraph 11 of her affidavit filed 5 May 2023.
On 20 October 2021 a further email from the wife to her former solicitor states:
I read the email sent a few days ago and yes I understand what you have said. Let’s go ahead and continue and file for a court date. Let’s get this over and done with… I have deposited $150 into the trust account.
(Court’s emphasis)
The Court interpolates at this point that the above message from the wife to her former solicitor indicates that she was expressly requesting the solicitor on 20 October 2021 to commence proceedings on her behalf and during a time that was well within the standard application period.
On 20 November 2021 the former solicitor sends an email to the wife, inter alia, as follows:
The legislation has changed in relation to commencing proceedings and there are certain pre-action procedure that must be implemented prior to commencing proceedings.
Below is a section of the legislation that we are required to comply with (with the court interpolating that the former solicitor had then set out an excerpt from the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Part 6.1 – Duty of disclosure). … I will need the documents under clause 6.06 that are relevant to you.
In oral evidence, the wife was asked what was happening with her court case between 20 October 2021 and 20 November 2021. The wife stated that her former solicitor had rung her and told her, inter alia, that there were certain procedures when they go to court, that they had to wait for the husband’s solicitors to get back to them, that the wife should not worry, she was not out of time to commence proceedings, and that the former solicitor was her lawyer and so she trusted him.
The wife stated in oral evidence that her former solicitor was on holidays from December 2021 to January 2022.
On 17 January 2022 in an email from the former solicitor to the wife he states:
I have not heard anything I suppose we’ll have to go to the next step.
On 4 February 2022, in an email from the former solicitor to the wife he states:
I have heard nothing. It appears that I’ll have to prepare documents.
On 8 March 2022 the former solicitor in an email to the wife states:
No I haven’t heard anything so we will need to start drafting documents. Does (the husband) drive a [vehicle].
The Court infers from the content of the above communications and the wife’s related oral evidence that the former solicitor’s references to not having heard anything was likely a reference to not having heard anything from the husband’s solicitors.
On 8 March 2022 the wife responds to the above email stating, inter alia:
Ok, start proceedings bc he keeps all my friends that he will take me court and spend a million dollars and I will lose my house and go bankrupt. And I will pay his court costs too. Indirect threats through friends so I can drop the case.
On 8 March 2022, a short time after the above communication from the wife, the former solicitor states:
The court won’t allow him to do that.
The Court observes that the former solicitor in the above communications with the wife did not expressly advise the wife that “the standard application period” applicable to de facto relationships under s 44(5)(a)(i) of the Act, being a two year period after the end of the de facto relationship, may well expire in January 2022, and that, accordingly, acting prudently, proceedings ought be commenced prior to that time. In this context, the Court observes that the former solicitor had at least initially advised the wife that the parties had been in a committed relationship from 2013 to January 2020, and had settled the Initiating Application filed 26 May 2022 stating that final separation occurred on 12 January 2020.
As a matter of legal principle, it is not necessarily essential that the wife provide an explanation for delay in commencing proceedings or that such explanation necessarily be fulsome. In this case, in the Court’s view, there is a reasonable explanation for delay. Again, inter alia, the wife sought legal advice in March 2021, she had instructed her former solicitor to commence proceedings on 20 October 2021 being a date before the expiration of the standard application period, and thereafter she was likely guided by the former solicitor in relation to commencing proceedings.
In any event, even if the Court is incorrect in finding that the wife has provided a reasonable explanation for delay, the extent of her delay is not great being out of time only by a little over four months, and the Court has found that she is likely to suffer hardship if not permitted to pursue her claim for property adjustment and maintenance orders. No prejudice has been clearly established by the husband if the wife is granted leave to pursue her claims.
It will be in the interests of justice that the Court exercise its discretion to permit the wife to make an application for Orders under s 90SE and s 90SM after the end of the standard application period (being on about 10 January 2022) and which she has done through her commencement of proceedings on 26 May 2022. The Court will make Orders accordingly.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 25 August 2023
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