Petsas & Wilbur
[2023] FedCFamC1F 48
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Petsas & Wilbur [2023] FedCFamC1F 48
File number(s): SYC 7720 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – PROPERTY – Threshold – Whether the parties were in a bona fide de facto relationship – Respondent seeks that applicant’s application for property adjustment orders be dismissed – Where the applicant has failed to comply with multiple procedural orders – Matter proceeded undefended – Application dismissed – Written submissions as to costs. Legislation: Family Law Act 1975 (Cth) ss 4AA, 102NA Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 8 February 2023 Place: Sydney The Applicant: No appearance Counsel for the Respondent: Mr Necovski Solicitor for the Respondent: Wood Marshall Williams ORDERS
SYC 7720 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PETSAS
Applicant
AND: MS WILBUR
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
8 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The applicant’s Amended Application for Final Orders filed 22 October 2021 and Application in a Proceeding filed 21 October 2021 be dismissed.
2.By no later than 4.00 pm, 15 February 2023, the respondent is to file and serve written submissions in respect to an application for costs.
3.By no later than 4.00 pm, 22 February 2023, the applicant is to file and serve any written submission in reply in respect to the application for costs.
4.Upon the receipt of all submissions and/or the expiration of the filing date in Order (3) above, judgment will stand reserved.
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 the pseudonym Petsas & Wilbur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
By way of Amended Initiating Application filed on 22 October 2021, Mr Petsas (“the applicant”), sought final property orders for Ms Wilbur (“the respondent”) to vacate a Queensland property and transfer her interest in a company, C Pty Ltd (“C Pty Ltd”), as well as a number of vehicles to him. C Pty Ltd was the registered proprietor of that Queensland property, being D Street, Suburb E (“the Suburb E property”) which has, since the application was filed, been sold. The respondent is the sole director and shareholder of C Pty Ltd.
In her Response filed 20 March 2022, the respondent seeks that the applicant’s application be dismissed on the basis that a de facto relationship did not exist between the parties and therefore no jurisdiction for the Court to make such property adjustment orders arises.
The respondent also contends, in her Case Outline filed 6 February 2023, that the matter has no utility because the joint pool of assets is “limited in nature”. For reasons which I explain, it is unnecessary to deal with that second issue.
On 16 August 2022, the matter was set down for hearing today “for the sole and only purpose” of determining whether a bone fide de facto relationship existed between the parties. Both parties were in attendance on that day. Relevantly, at that Court event, the applicant was directed to file and serve his evidentiary material within 21 days of the hearing date. The respondent was required to file and serve her evidentiary material within 14 days of the hearing date and the applicant was granted leave, if he wished, to file and serve an affidavit in reply to the respondent’s affidavit within seven days of the hearing date.
The respondent has filed her evidentiary material, but the applicant has not.
At the commencement of today’s hearing, there was no appearance by or on behalf of the applicant despite the matter being called three times outside the body of the Court.
BACKGROUND
The parties met in 2015 and, while the applicant contends they commenced a relationship in mid-2015 and were engaged in Country B in mid-2016, the respondent contends they maintained a friendship until mid-2019, at which time the parties commenced a casual sexual relationship that subsequently ceased in late 2019. The respondent has given evidence that the nature of the parties’ relationship was unfortunately characterised by family violence in a variety of forms, including physical and financial, perpetrated by the applicant.
PROCEDURAL HISTORY
The procedural history is relevant in this matter because the second aspect of the wife’s application is an application for costs. This matter was initially before a Judicial Registrar for directions on 21 March 2022 and again on 13 April 2022, at which time the respondent was directed to file Points of Claim by 4 May 2022 in relation to the basis upon which the applicant’s application should be dismissed. Orders were also made for the applicant to file his Defence to the Points of Claim on 25 May 2022 and the proceedings were adjourned for a further procedural hearing on 30 May 2022. While the respondent duly filed her Points of Claim on 4 May 2022, the applicant failed to comply with the orders for filing which were made on 13 April 2022.
At the next occasion on 30 May 2022, a Judicial Registrar noted the applicant’s non‑compliance and adjourned the matter for a compliance and readiness hearing before Judge Boyle on 21 June 2022.
On 21 June 2022, Judge Boyle transferred the matter to Division 1 and made orders for the applicant to file an Amended Application and an affidavit by 21 July 2022, as well as supporting affidavits by 10 August 2022. Her Honour also made an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), noting that the applicant was now self-represented and her Honour determined it was inappropriate, in the context of allegations made by the respondent, for the applicant to engage in cross-examination of the respondent. The matter was then adjourned to a further compliance and readiness hearing before me, sitting as a judge in Division 1 on 16 August 2022.
By 16 August 2022, the applicant had again failed to comply with the previous orders for filing his material. At the compliance and readiness hearing, I nonetheless set the matter down for hearing on 8 February 2023 for determination of the threshold issue as to whether a bone fide de facto relationship existed between the parties. As noted, orders were made for the applicant to file his evidentiary material within 21 days of the hearing date, with provision for the respondent to subsequently file her material within 14 days of the hearing date and the applicant having a right of reply to the respondent’s material. The applicant has not complied with those orders.
Although the applicant appeared on his own behalf at the last occasion on 16 August 2022, he has failed to comply with orders in these proceedings for some time, with his last filed evidence being an Amended Application for final orders filed on 22 October 2021. The orders made on 16 August 2022 provided for the applicant to file an updated single consolidated trial affidavit (Order 2) and Order 7 confirmed that the parties would only be permitted to rely on one consolidated trial affidavit and one affidavit in reply. That order specifically stated that “reliance on earlier or additional affidavits will not be permitted.” In those circumstances, the Court would not ordinarily have regard to evidence filed in earlier in the proceedings. However, reference to the applicant’s affidavit filed on 22 October 2021 provides context to the nature of the dispute between the parties and the affidavit will be referenced to that extent.
LEGAL PRINCIPLES
The legal principles in respect to determining whether a de facto relationship exists are such that the starting point is having regard to the definition of a de facto relationship set out in s 4AA(1) of the Act. That definition defines such a relationship as circumstances where the parties are not legally married to each other nor related by family and, “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”. Although the applicant attests to being engaged to the respondent in 2016, the parties agree they were never married, nor are they related by family.
The respondent contends that the parties did not have a relationship constituting living together on a genuine domestic basis pursuant to subsection (1)(c). Section 4AA(2) of the Act provides a number of circumstances that may be considered when determining whether a relationship as a couple, pursuant to s 4AA(1)(c), exists. These are considered below in conjunction with the parties’ respective contentions, if any, in relation to those circumstances.
EVIDENCE
The only material before the Court in respect to the applicant’s claim are the following:
·Amended Initiating Application filed 22 October 2021;
·Affidavit filed by the applicant on 21 October 2021; and
·Financial Statement filed 21 October 2021.
The respondent relies upon the following:
·Response filed 21 March 2022;
·Statement of Claim filed 4 May 2022;
·Affidavit filed by the respondent on 26 January 2023; and
·Case Outline document filed 6 February 2023.
APPLICATION
In her response filed on 21 March 2022, the respondent seeks the following orders:
(1)That the Amended Application filed by the applicant on 22 October 2021 be dismissed;
(2)That the applicant pay the respondent’s costs.
WHETHER A DE FACTO RELATIONSHIP EXISTED
In considering whether a de facto relationship existed, the respondent asserts seven points in her statement of claim filed 4 May 2022. I have grouped the parties’ respective contentions under each of the s 4AA(2) factors to be considered in determining whether a de facto relationship existed.
(2)(a): Duration of the relationship
The commencement of the relationship does not appear to be disputed. The parties met in 2015. The respondent contends that a friendship between the parties existed from 2015 to mid-2019, after which time the parties commenced a casual sexual relationship which ended in late 2019. In circumstances where the applicant has had the opportunity to present evidence, by way of a single updated consolidated affidavit together with, if he so wished, an affidavit in reply to the respondent’s affidavit, and in circumstances where the applicant has had the opportunity to cross-examine, through a legal representative, the respondent yet failed to attend today and, further, in circumstances where the respondent’s evidence is plausible, I accept the respondent’s evidence wherever it is in conflict with the applicant’s evidence including in respect to the nature and the duration of the parties’ relationship.
(2)(b): Nature and extent of their common residence
Returning to the nature of the parties’ relationship, I have indicated their situation up until mid‑2019, after which the parties continued in a relationship that included intermittent sexual contact until late 2019. I am further satisfied, having regard to the respondent’s evidence, that she requested that the applicant no longer stay at the Suburb E property as and from that time in late 2019.
In terms of the second criteria set out in subsection (2)(b), being the nature and extent of their common residence, the respondent contends that the parties never lived together but visited each other on occasions. She asserts that the applicant visited her at the Suburb E property approximately once every fortnight from 2018 to 2020. The applicant, however, contends that the parties considered moving in together in 2016 after their engagement in Country B in mid‑2016.
The applicant further contends that due to his work being across Queensland, Sydney and Melbourne, and the respondent being unable to move residence because of her daughter and insufficient funds, he visited the respondent in Queensland two to three days per week. The applicant contends the parties agreed to live together by 2018 and that he lived in the Suburb E property continuously for nine months during the COVID-19 lockdown in 2020.
The respondent takes issue with the applicant’s evidence saying he stayed in different places in Queensland including, at times, the Suburb E property. In that regard, I refer to the respondent’s evidence set out in paragraph 57 of her affidavit, which I accept.
(2)(c): Whether a sexual relationship exists
As earlier noted, the respondent contends a short, casual sexual relationship between the parties occurred from approximately mid-2019 until late 2019, but that relationship ended for a number of reasons, including domestic violence perpetrated by the applicant. Again, I accept the respondent’s evidence in circumstances where it has not been challenged in cross-examination and it is plausible.
(2)(d): Degree of financial dependence or interdependence, and any arrangements for financial support
I accept the respondent’s evidence that the parties did not hold joint bank accounts and I accept they maintained separate financial affairs.
In that respect, I note the respondent’s evidence that she loaned the applicant $45,000 for a deposit on a property, however the purchase fell through and that he failed to repay that amount to her. The respondent also contends at paragraph 25 of her affidavit that “eventually I was concerned that [the applicant] did not have money and at times I was happy to help him if I could” and at paragraph 29 “[the applicant] did not provide any financial support”. For reasons which I have explained, I accept that evidence given by the respondent.
(2)(e): Ownership, use and acquisition of their property
Having regard to the respondent’s evidence, which I accept, I am satisfied that the Suburb E property was purchased by C Pty Ltd in 2018 for over $900,000.
The respondent contends that C Pty Ltd paid a 10 per cent deposit, partly from her personal savings advanced to C Pty Ltd, and borrowed the remaining 90 per cent from NAB.
Comparatively, the applicant contends that he contributed all equity to the purchase and “made all contributions to ensure that [C Pty Ltd] made all mortgage payments”. He also contends to contributing $55,000 in levies and a further $85,000 on renovations, not including labour as he contends he organised tradespersons who charged him directly. The applicant contends that the respondent made no contributions to the property or any works, and that he furnished the property with contents from his existing Sydney home and further purchases.
The respondent however, contends that the applicant was not on any utility bill or loan, nor did he pay for electricity, gas or food at the property. She contends that the applicant essentially used the property as temporary accommodation approximately once a fortnight from 2018 to 2020. For reasons which I have earlier explained, I prefer the respondent’s evidence to that of the applicant.
I also accept the respondent’s evidence as set out in paragraph 79 of her affidavit that Mr F of G Pty Ltd loaned C Pty Ltd approximately $550,000 under the applicant’s instructions, which the applicant incorrectly represented to the respondent as funds which he contributed himself, rather than borrowed.
I accept the respondent’s evidence that the Suburb E property was sold in late 2021 for over $1,000,000, with the following disbursements being made from the sale proceeds:
·Real estate agent’s commission: $32,152.26;
·Mortgage discharge: $954,500;
·Legal fees: $4044; and
·Repayment of balance of loan to Mr F of G Pty Ltd of $297,149.64.
(2)(f): Degree of mutual commitment to a shared life
The respondent denies any commitment on her behalf to a long-term relationship with the applicant, including for reasons associated with his pattern of violent behaviour towards her. I accept that evidence.
(2)(g): Whether relationship is/was registered under prescribed law as a prescribed kind of relationship
As earlier noted, it is agreed that the parties were not married nor in a relationship registered under a prescribed law and, for reasons I set out in this decision, I am satisfied that they have not been in a de facto relationship as defined in the Act.
(2)(h): Care and support of children
The parties agree that there are no children of the relationship. The applicant has two adult children of a previous marriage and, while it is not necessary for the determination of these proceedings, it is possible that he has children from another relationship. There has been no contention that the parties mutually cared for the applicant’s children. The respondent has one child from her previous marriage and has adopted her sister’s adult son, who is now 23 years old. There is no suggestion that the applicant has maintained any involvement in the lives of the respondent’s children.
(2)(i): Reputation and public aspects of the relationship
I am satisfied that, having regard to the respondent’s evidence, the parties did not represent themselves as being a couple in a domestic relationship. As I earlier indicated, I accept the respondent’s evidence in circumstances where the applicant had the opportunity to file an affidavit in reply to the respondent’s affidavit and to test the respondent’s evidence in cross-examination but failed to attend this hearing or otherwise avail himself of those opportunities. In those circumstances and in circumstances where the respondent’s evidence is plausible, I accept her evidence.
DISPOSITION
Having regard to the evidence of the respondent in the context of the relevant indicia of a de facto relationship to which I have earlier referred, I am satisfied that the parties were not in a bona fide de facto relationship as defined by the Act. The applicant’s application must therefore be dismissed.
In relation to costs, I direct that the respondent file and serve her written submissions in respect to her application for costs within seven days and make an order that the applicant file any written submissions in reply to the respondent’s application for costs within a further 14 days.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 14 February 2023
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