Phuona and Nghiem and Anor

[2016] FamCA 919

FAMILY COURT OF AUSTRALIA

PHUONA & NGHIEM AND ANOR [2016] FamCA 919

FAMILY LAW – DE FACTO RELATIONSHIP – The Applicant seeks a declaration under s 90RD of the Family Law Act1975 (Cth) that the de-facto relationship that existed between the Applicant and the First Respondent from late 2002 ended in June 2012, which is after the 1 March 2009 commencement of the relevant provisions of Part VIIIAB of the Family Law Act 1975 (Cth) - If such relationship broke down as asserted by the applicant the Court has jurisdiction to determine the substantive claims; if it broke down prior to 1 March 2009 the Court has no such jurisdiction - The determination of these jurisdictional facts is that the parties had been in a de facto relationship which broke down and ended in April/May 2005 - Consequently, the Court has no jurisdiction to deal with the Applicant’s substantive applications.

Commonwealth Powers (De Facto Relationships Act) 2004 (Vic)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 4(1)
Family Law Act 1975 (Cth) ss 4AA, 31(1)(a)(aa), 90RD, 90SB
Commonwealth Powers (De Facto Relationships Act) 2003 (NSW)

Norton v Locke [2013] FamCAFC 202
APPLICANT:	Mr Phuona

1st RESPONDENT: Ms Nghiem

2nd RESPONDENT: Ms Luc

FILE NUMBER: SYC 3864 of 2014

DATE DELIVERED: 2 November 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 29, 30 and 31 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Than & Co

COUNSEL FOR THE 1ST RESPONDENT: Ms Murphy

SOLICITOR FOR THE 1ST RESPONDENT: Integrity Legal Specialists

COUNSEL FOR THE 2ND RESPONDENT: Ms Murphy

SOLICITOR FOR THE 2ND RESPONDENT: Integrity Legal Specialists

Orders

1. The application and proceedings commenced by Mr Phuona pursuant to the de facto relationship jurisdiction under the Family Law Act 1975 (Cth) is dismissed.

2. All other extant applications are dismissed, except as to any costs applications.

3. Any application for costs to be made in accordance with the Family Law Rules 2004.

4. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phuona & Nghiem and Luc has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 3864 of 2014

Mr Phuona

Applicant

And

Ms Nghiem
First Respondent

And

Ms Luc

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. In 2001 Mr Phuona (for convenience, I will refer to him as ‘the husband’) won $9,000,000.  

2. At that time, his personal life was complex.  He was a party in a long term de facto relationship with his then partner, Ms B (‘Ms B’).  Concurrently, he was pursuing a friendship (and more) with Ms Nghiem (for convenience, I will refer to her as ‘the wife’).  These two women claimed not to know of existence of the other, at that time. That state of blissful ignorance was soon to change. The wife at that time had the care of the second respondent, Ms Luc, a child from a relationship the wife had with another person. Ms Luc is now an adult and has been joined as a party to these proceedings.

3. Following the husband’s win:-

   a.In September 2001, the husband’s relationship with the wife was consummated;

   b.The husband married Ms B in 2001;

   c.Still later in 2001, Ms B and the wife discovered the existence and nature of their respective relationships with the husband. Not unexpectedly, Ms B and the husband separated;

   d.With some difficulty on the part of the wife, her relationship with the husband continued and in September 2002 they commenced living together full time in a de facto relationship;

   e.The husband and Ms B were divorced in December 2002;  

   f.In August 2003, C was born (‘the parties’ elder child’);

   g.In February 2005, D (‘the parties’ younger child’) was born.

   h.The wife asserts that the parties’ relationship broke down as they had separated, although they lived together under the same roof as and from April/May 2005.  This was said to have occurred shortly after the birth of the parties’ younger child;

   i.In December 2006, the husband and the wife each signed a document or documents purporting to be a ‘Separation Agreement’ pursuant to s 47 of the Property (Relationships) Act 1984 (NSW);

   j.On 1 March 2009 amendments to the Family Law Act 1975 (Cth) (‘the Act’) came into force. These amendments enabled courts exercising jurisdiction and power under the Act to exercise property and other financial jurisdiction with regard to property of parties to de facto relationships which ended or broke down on or after that date; and

   k.In June 2012, the husband left the former family home and he asserts that the parties’ relationship broke down at that time as a consequence of that physical separation.  

4. By the time of this hearing all or almost all of the husband’s winnings have been dissipated, and he has little or no property available to him.   

5. The threshold issue for this Court to determine is whether it has jurisdiction under the Act to entertain the husband’s applications for a property adjustment in respect of property owned by the wife. In addition, he has joined Ms Luc as a party to the proceedings and he seeks in various ways pursuant to the Act or by way of accrued jurisdiction to claw back real property acquired by Ms Luc pursuant to a trust created in 2001.

6. It is an agreed fact that the husband and the wife’s de facto relationship commenced in September 2002 and that this relationship has failed, but when? For these parties, as luck would have it, the different dates of asserted break down of their relationship straddle the effective date of a substantial change in the law. 

7. If it ended, as the wife contends, then this Court has no jurisdiction to deal with the parties’ property and the husband’s application against her and consequently against Ms Luc must fail.  If the husband’s version is accepted, then this Court may have jurisdiction and power.

8. The wife further asserted that on 12 December 2006 she and the husband made a Separation Agreement (‘the Separation Agreement’) under the provisions of the Property (Relationships) Act 1984 (NSW) and as such it is covered by the transitional provisions of the Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 and this Court is statutorily prevented from making orders inconsistent with the terms of the Separation Agreement.[1]  The husband acknowledged that he signed a form of agreement but that, for a variety of reasons, he says that it is not a valid contract.  Further, if there is a genuine meeting of minds such as to constitute an agreement, it is void or voidable and could not be one which attracts the provisions under the Property (Relationships) Act 1984 (NSW).

   [1] Property (Relationships) Act 1984 (NSW), s 47(1).

9. In December 2001 a property at E Street, Suburb F was purchased in the name of a trustee to be held in trust for Ms Luc. In January 2013, Ms Luc attained the age of 18 years, the trust vested and the property was transferred to her. The husband now seeks orders to set aside the deed of trust and implicitly seeks an order that the legal and equitable interests in that property vest in he and the wife. He seeks these orders pursuant to s 106B of the Act. This seems a somewhat curious application, given that the trust has vested. In the alternative he seeks a declaration that Ms Luc holds her interest in property at E Street, Suburb F on trust for the husband and wife and a consequential order that Ms Luc transfer the Suburb F property to the husband and wife.

10. Given the issues of fact relating to separation date and the agreement that exists between the husband and wife, this hearing is to determine a number of threshold jurisdictional issues, in a cascading manner:-  

    a.First, did the de facto relationship break down prior to 1 March 2009?

    b.Second, if the relationship ended in mid-June 2012, is there a contract between the parties evidenced by the document dated 12 December 2006? If so was this agreement a Separation agreement within the meaning of s 47 of the Property (Relationships) Act 1984 (NSW)?

    c.If not, and this Court has jurisdiction then should the Court determine whether the proceeding against Ms Luc should be summarily dismissed?

BACKGROUND

1. The husband was born in Vietnam in 1952 and is aged 64.  He came to Australia after the conclusion of the war in that country.  He is an Australian resident.

2. The wife was born in Vietnam in 1965 and at the time of the hearing she was aged 50.  She first married in 1993 and Ms Luc was born to that relationship in 1995.

3. In 1996 the wife separated from her first husband and became involved in property proceedings with him.  Those proceedings concluded in 2000 when the wife was paid about $95,000.    

4. The wife is not in paid employment at the present time and has the care of the parties’ children.  She had a history of some part time employment.

5. The husband and Ms B had commenced a de facto relationship in about 1990, which relationship continued until 2001 when they married.  They separated about a month or so later.  Ms B and the husband made a joint application for divorce in late 2002 and their marriage was subsequently dissolved.

6. The husband and wife met in 2000 and became friends.  They began an intimate relationship in about September 2001 and commenced living together in about September 2002.

7. The husband won $9,000,000 in September 2001.  He received an initial payment of $4,500,000 in October 2001 and a subsequent payment of about $4,500,000 in October 2002.  The husband gave about $3,000,000 to Ms B and about $1,600,000 to his sister.  He bought a property at G Street, Suburb H.

8. The wife says that the husband gave her $300,000 by transferring it to her account in October 2001.  The husband asserted during the hearing that the money was to be held on trust for him.  Given my later comments and my assessment of the evidence of the wife, I prefer her version of the events.  The husband’s evidence in this area was unreliable particularly in the context of the gifts he was making to others at that time. 

9. In about December 2001 the wife used part of the $300,000 plus her own funds to acquire a property at E Street, Suburb F in trust for Ms Luc.

10. In September 2002 the husband and wife commenced cohabitation at the home of the husband’s sister.

11. When the wife discovered she was pregnant to the husband, he gave her $185,000.  She decided to buy property for their soon-to-be elder child.  The wife purchased a property at I Street, Suburb F in November 2002 for about $220,000.  This was funded by the $185,000 gift from the husband and a loan of about $68,000.

12. In January 2003, the husband and wife jointly purchased J Street, Suburb K for $1,315,000 using money from the winnings.  The parties moved into that home.

13. The wife had received a gift from the estate of her father of $30,000 plus another $100,000 in 2004.  In addition I accept the wife’s evidence that she was paid $15,000 per year by her mother from 1996 to 2009.

14. In early 2003 the wife purchased a property at L Street, Suburb K for about $525,000 and it seems clear that that was funded by the husband’s winnings.

15. In about January 2003 the husband purchased a home unit at Q Street, Suburb K for about $422,000.  This was funded partly by a mortgage and partly by the winnings.  At about the same time he purchased a strata unit at M Street, Sydney for $410,000, funded by a mortgage of $220,000 and the balance by the winnings.

16. The parties’ first child was born in August 2003 and the parties’ second child was born in February 2005.

17. The wife asserts that in about April or May 2005 the parties separated under the same roof and have lived separately and apart under the same roof since that time.  That assertion was disputed by the husband.  I find that from about that time the husband continued to live at J Street, but at the back of the house.  There is evidence of the wife and Ms Luc, which I accept, that he came and went as he chose and had his own cooking and refrigeration facilities and plates, cutlery et cetera.

18. In late August or early September 2006 the husband and the wife met with a solicitor, Mr N of Company O.  Ms N was the principal of that firm and spoke Vietnamese.  The parties sought a Separation Agreement.  Ms N referred the wife to another solicitor and on about 4 September 2006 the wife had met with Mr P of O Legal.  The parties negotiated a separation agreement which purportedly dealt with the property in which they lived.  That property was placed in the husband’s name as trustee for one or both of the parties’ children.

19. There were various iterations of the Separation Agreement and they contained a number of dates of asserted separation in 2005 and 2006.  All provided that the wife transfer J Street to the husband who in turn would hold it on trust for one or both of the parties’ children.  Some iterations of the Separation Agreement had one and not two children.  The parties acknowledge in the Separation Agreement that their relationship had ceased.

20. There is an issue as to whether that agreement was a meeting of minds as there were a number of documents exchanged.  There appears to be no single document containing the signature of both parties, although it was asserted on behalf of the wife that there was an exchange of documents.

21. As far as this Court can identify there are some five documents with differences.  In any event the effect of the so called Separation Agreement, if it was a separation agreement, was put into place.  The title to the property was transferred to the husband and a caveat was lodged by the wife claiming an interest for the children under the agreement.

22. In March 2008 the wife sold I Street, Suburb F and retained the proceeds of sale.  In June 2008 the husband sold M Street, Sydney and retained the proceeds of sale.  In May 2009 the wife sold L Street, Suburb K and retained the proceeds.  In May 2009 the husband sold Q Street, Suburb K and retained the proceeds of about $454,000.

23. In May 2009 the wife asserts that the husband suffered a serious asthma attack and believed he was going to die. As a consequence he gave her a further $420,000 for the support of the children into the future. He has not provided further direct meaningful financial support for the children since that time. The husband asserts, correctly, that this money was used by the wife to purchase property.

24. In late November 2009 the wife purchased property at R Street, Suburb K for $1,460,000 and applied the $420,000 together with the proceeds of sale of other properties to purchase this property.  In addition she borrowed $80,000 from a friend.  With borrowings she managed to settle the purchase. 

25. At about the same time the wife’s sister came out to Australia from the United States and spent time with the parties at their house at Suburb K and also had a short excursion to Queensland for about four or five days.

26. In late 2011 and the first half of 2012 the wife was endeavouring to force the husband to vacate J Street.  The husband asserts that final separation occurred in June 2012.

27. These proceedings were commenced in June 2013.

28. In these reasons any statement of fact is to be treated as a finding of fact, unless the contrary is clear from the context.

THE LAW

1. This Court has both the power and obligation to determine jurisdiction.  In Norton v Locke [2013] FamCAFC 202 the Full Court said in relation to the question of jurisdiction under Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’):-

   43.    This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts.  This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction.  Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court”.

   44.    Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions (see, for example, Ex parte Green; Re LSH; and, Jackson v Sterling Industries Pty Ltd at 617, per Wilson and Dawson JJ).  In both the High Court and this court orders of that type have been expressed as orders “preserving the status quo” pending resolution of the question of jurisdiction.  

2. The Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 introduced the concept of “de facto financial cause” to the legislation.

3. Section 4(1) of the Act, relevantly defines a de facto financial cause to mean:-

   (a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or ….

   (c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or …

4. Section 4AA (1) of the Act provides:-

   (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.

   (5)    For the purposes of this Act:

   (a)   a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)   a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

1. Section 90SB of the Act enables a court to make an order or a declaration in relation to a de facto relationship only if the Court is satisfied that one of the four criteria set out in that section has been met. Section 90SB provides:-

   A court may make an order under s 90SE, s 90SG, or s 90SM, or a declaration under s 90SL, in relation to a de facto relationship only if the court is satisfied:

   (a)     that the period, or the total of the periods, of the de facto relationship is at least 2 years; or

   (b)    that there is a child of the de facto relationship; or

   (c)    that:

   (i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

   (ii)a failure to make the order or declaration would result in serious injustice to the husband; or

   (d)    that the relationship is or was registered under a prescribed law of a State or Territory.

   Note: For child of a de facto relationship, see section 90RB.

2. The jurisdiction to hear de facto property proceedings in the Family Court is provided by s 31(1)(a)(aa) of the Act which relevantly provides:-

   Original jurisdiction of Family Court

   s 31(1) Jurisdiction is conferred on the Family Court with respect to:

   (a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and

   (aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …

3. Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.

4. Section 4 of the Act implements the requirement that a de facto relationship must have existed between the parties and there has been a breakdown of that de facto relationship to enable the jurisdiction of the Court to be enlivened [emphasis added]. These requirements are repeated in s 90SM(1) of the Act.

5. Section 4AA(a) of the Act also sets out the circumstances which give rise to a de facto relationship. If there is no de facto relationship then the Act will not apply and the Court has no jurisdiction.

6. The reason for these provisions is that the power to deal with maintenance and property in respect of parties to a de facto relationship was created as a Commonwealth power by way of limited referral of these State powers to the Commonwealth by some, but not all, State Governments.

7. In this case the parties resided in New South Wales.  The State Government of New South Wales, by reason of the Commonwealth Powers (De Facto Relationships Act) 2003 (NSW) referred powers to the Parliament of Commonwealth of Australia in respect of financial matters relating to de facto parties arising out of the breakdown (other than by the reason of death) of de facto relationships. That Act received assent and came into effect on 22 September 2008. That Act sets out the purpose and the reference in which the two fundamental requirements of the fact of a de facto relationship and the breakdown, namely s 1 (Purpose) and s 4 (References):-

   Purpose

   1.     The purpose of this Act is to refer certain financial matters arising out of the breakdown of de facto relationships to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth

   References

   4(1)  The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 5, as the day on which the references under this Act are to terminate, but no longer …

8. The Commonwealth accepted the referral of power by the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (‘the Amendment Act’). Section 90 of this Act provides that if a relationship breakdown occurs before transition time (commencement date), then this Amendment Act does not apply in relation to such de facto relationship, unless the parties opt in to the new regime pursuant to s 90A of the Amendment Act. In this case there was no opt in.

9. The commencement date for the provisions, insofar as New South Wales is concerned, is 1 March 2009.

10. Consequently, and as I have said earlier, if the de facto relationship between these parties broke down before 1 March 2009, then this Court has no jurisdiction and must dismiss the application of the husband.

EVIDENCE

1. Each of the parties provided an application in a case setting out the orders they sought and the documents upon which they relied. 

The Husband

1. The husband’s application in a case[2] said that he relied upon his application in a case filed 25 August 2015, along with his affidavits filed 24 June 2014 and 25 August 2015.  He did not rely upon his financial statement.  The husband tendered a minute of order setting out the orders that he sought.[3]

   [2]Exhibit A1.

   [3] Exhibit A2.

2. The husband provided evidence in terms of his affidavits filed 24 June 2014 and 18 August 2015.  Those affidavits were read into evidence subject to weight.  The husband gave evidence through an interpreter.  I have had regard to that circumstance in terms of assessing his credit and the weight I can apply to his evidence.  Generally his evidence was marked by hubris, exaggeration and fabrication.  He is not a witness whose evidence can be regarded as reliable.

3. I will provide some examples as to why I have adopted such a harsh assessment of his evidence.  

4. He said that he and the wife commenced a relationship in about 2000 and he informed her that he was in a relationship with Ms B.  This is in the context of him being in a relationship with Ms B for many years and describing himself as being unhappy in that relationship.  He claims that the wife accepted this and continued to allow the relationship to flourish.  Given my assessment of the wife and her evidence, that assertion by the husband is unlikely and I do not believe him.

5. After the husband won nine million dollars he gave, over a period of time, just under $3,000,000 to Ms B and also married her in the month after he won the money.

6. He initially did not inform the wife of his win and when he did she asserts that he told her that he won only three million dollars.  I prefer the evidence of the wife to that of the husband in this regard.  In the same month he commenced an intimate relationship with her.  I am satisfied that the wife would not have commenced an intimate relationship with the husband had she of been aware that he was in a relationship with another woman, particularly when he was planning to marry Ms B and did in fact marry her about one month later.

7. The husband gave evidence that he did not really know what he was doing when he married Ms B, that it was ‘signing marriage papers’ of which he had no idea of the particular meaning.  He understood he was married to Ms B, not the least because he applied to a court for dissolution of that marriage.  His evidence in this area can best be described as arrant nonsense.  

8. Similarly, I do not believe him when he said that he offered to marry the wife soon after the birth of their first child.  In his evidence the husband said that he did not do so because under Vietnamese culture he could not marry for at least two years after his mother had died.  This was inconsistent with his earlier evidence that at the time of the birth of the parties’ first child he approached the wife and offered to marry her.  He did so with a marriage certificate and two other people to act as witnesses. This would have occurred on his evidence, within a year of his mother’s death. His evidence in this area was inconsistent.  Further, he said he tried to get a marriage licence between he and the wife but then in some ways seemed to distance himself from it saying that it was for a certificate and endeavoured to say that it was not a marriage.  I do not believe him.

9. He said that which he considered would support his case and was not bothered by concepts of truth.

10. The husband gave evidence that after the birth of the second child he was sleeping in a separate room and the wife in another room.  He said that the wife placed the one week old into his room and he was the primary carer of the child.  He said he went to hospital or a place and was given a lesson in parenting and he did virtually all of the parenting.  His evidence in this regard was simply risible.  On the evidence of the wife and Ms Luc it is apparent that virtually all of the parenting was left to the wife.

11. The husband said he had no understanding of the nature of the purported separation agreement.  I do not believe him given that he arranged to see and did see the Vietnamese legal practitioner.  Further, the evidence was that the parties negotiated the terms of the Separation Agreement.

12. His evidence was unreliable and at times fabricated.

The wife

1. The legal representatives for the wife also acted for Ms Luc.  They tendered a case outline.[4]  They said in that document that they relied upon the following documents:-

   -The response to an application in a case filed 30 November 2015;

   -Response to initiating application filed 31 October 2014;

   -Affidavit of the wife filed 30 November 2015 and affidavit of 30 October 2014. 

   [4] Exhibit R1.

2. The 2014 affidavit was annexed to the 2015 affidavit: when I refer to the 2015 affidavit, this includes the 2014 affidavit as an annexure, which contains most of the substantive facts.  Ms Luc relied upon her affidavit filed 31 October 2014.  There were significant objections to materials contained in those affidavits, which were considered and determined.

3. The wife gave evidence in terms of her affidavits of 20 October 2014, which in turn was incorporated in her affidavit of 27 November 2015.  That later affidavit has been paginated with pages 1 to 186 and these are the page numbers to which I will generally refer.

4. As to the wife’s assertion of the April/May 2005 separation, she gave evidence as to the two stove setup in the house, one in the kitchen for the family and one at the back of the house.  The later stove was installed by the husband in April/May 2015 and he says it was because of the particular food he cooked on or in it.  The wife claims not to have used it and that it was part of the separation under the same roof.  Her evidence to that end is corroborated by the evidence of Ms Luc.  Further, the wife said that up to April/May 2005 she prepared most meals for the family, and insofar as the husband was concerned this service ceased at April/May 2005 and from that time she and the husband did not eat together.  Her evidence was corroborated by the evidence of Ms Luc.

5. In giving evidence the wife was somewhat fragile.  She cried and endeavoured to provide wholesome and thorough responses and give explanations.  She gave evidence through an interpreter and initially it was a male interpreter, with whom she was struggling.  When changed to a female interpreter she calmed down a little more, and the interpreter assisted by suggesting that the wife be allowed to answer in Vietnamese and not English.

6. The wife had difficulties with English, as was clear from the Centrelink document.[5] 

   [5] Exhibit R2.

7. The wife was also cross-examined.  She was nervous and clearly found the process of cross-examination confronting and difficult.  I am satisfied, from her own perceptions that she endeavoured to be frank and truthful in terms of giving evidence.  Overall the wife was an impressive witness.  She was thoughtful and careful in providing sworn testimony.  At times she made concessions against her interests.  Her demeanour was positive and I am satisfied that she endeavoured to be frank to the Court.  I generally treated her evidence as reliable.

Ms Luc

1. Ms Luc was born in 1995 and was aged 21 at the time of this hearing.  She is the daughter of the wife and provided evidence in terms of her affidavit sworn 16 October 2014 and filed 31 October 2014.  She is currently a university student living in her own home.  She is a party to these proceedings, as a consequence of the relief sought by the husband.  Her affidavit was read into evidence subject to deletion of some parts of it. 

2. Ms Luc was an impressive witness.  She listened carefully to the questions and answered them fully and thoughtfully.  She was not in any meaningful way shaken in her answers and provided evidence of the significant changing of the nature of the relationship between the parties from shortly after the birth of the parties’ second child.

3. Her evidence about the events post April/May 2005 including the stoves, refrigerator, different cutlery and different bedrooms was clear and direct. She was cross-examined about how she knew the mother was not sharing a bed with the husband given that Ms Luc would not have been in their bedroom.  She gave a convincing answer to this in terms of her fear of the dark, at that time, and needed to be comforted by her mother during the night.

4. There was not one occasion following April/May 2005 when she discovered the husband and wife sharing a bed.  Her evidence was clear, unambiguous and persuasive.  She gave evidence of her mother paying accounts and her observations of it. 

5. She gave evidence of the husband being away for days, weeks or a whole month without prior warning or not letting anyone know.  She never asked where he went, and she never knew where he went.

6. I generally accept that she is a reliable witness.

FINDINGS

1. In her trial affidavits the wife sets out a history of their separation, asserting that it occurred in about April or May 2005.[6]  Significant parts of her evidence were struck out.  However, with the veracity of the evidence remaining, I am satisfied, that is, that the parties had discussions in about April or May 2005 where they agreed that their relationship was at an end and they commenced living separate lives, including having separate bedrooms.  I accept the wife’s evidence about the use of different bathrooms and bedrooms.

   [6] Paragraphs 112 to 170.

2. I accept that the wife and children had separate cutlery and lived separate lives from the husband.  I accept the wife’s evidence in relation to the payment of services as set out in paragraph 119 of her affidavit.  The wife was working part time  to earn income. 

3. I accept that from April/May 2005 the husband, from time to time, gave the wife money as asserted by the wife.  Further, the wife was the primary carer of the children and that the parenting was left essentially to her.  The husband had little to do with the children except ill-fated attempts to apply physical discipline to them.

4. In November 2009 the wife purchased a property at R Street, Suburb K and purchased it in her own name.  The wife’s asserts that she was solely engaged in the acquisition of this property and did not inform the husband.  My preference for her evidence arises out of my assessment of the parties’ witnesses and her reliability in relation to this and generally.  Part of the evidence of the husband was that the wife left their youngest child with him whilst she attended the auction.  Given her fear of the husband and his inappropriate physical discipline of the children, his violence and abuse of alcohol, it is inherently unlikely that the wife would have left a toddler in the unsupervised care of the husband.  I do not accept she left that child with the husband at that time.

5. I accept that the husband travelled regularly to and from Vietnam as is asserted by the wife.

6. Part of the evidence was the oral evidence by the husband’s that he and the wife were having regular consensual sexual intercourse up to mid-2012.  I prefer the evidence of the wife, which is supported by evidence of Ms Luc, and I accept that all intimate relations and intimacy between the husband and wife had ended by April/May 2005.

7. In terms of the housework, I prefer the evidence of the wife that she undertook most of the housework and most of the cooking up until the time of separation in mid-2005 and thereafter she cooked for herself, Ms Luc and the two younger children.  The husband cooked for himself.

8. In saying this I am aware and was cognisant that the husband went to Queensland with members of the wife’s family on a short three or four day trip (accepting the evidence of the wife).  However, the children were with the wife’s sister with whom the wife was, at that time, close.

9. In 2006 the parties signed a document called a Separation Agreement.  There are various drafts of this agreement and I have not made any finding as to whether it is an agreement and if so the effect of it.  The parties met with solicitor, Mr N, who spoke Vietnamese fluently and they each signed a document acknowledging that their relationship was at an end.  

10. Although at one stage this date was said to be 2006 and later 2005.  That confusion is easily explained.  The instructions from the wife to Mr P[7] show a separation date of September 2005.  The wife’s evidence was that she said she separated about a year before that.  I accept that any difference between September 2005 and April/May 2005 arose in terms of miscommunication between the solicitors.  I am satisfied that both the parties asserted to their respective solicitors at that time that there was a separation and that that separation was likely to have been in 2005.

    [7] Ibid - Hand-written pages 164 to 178 apparently taken on 4 September 2006.

11. The general thrust of the various documents involved transferring an interest in property to the husband as trustee for the parties’ children or the parties’ first child.  The husband asserted that he only understood it to be a transfer of title and did not understand that it was an acknowledgment of a separation.  He points out that there were a number of agreements signed and a number of versions signed of the agreement.  He says that no explanation was given to him.

12. The evidence of the wife, to which I have alluded elsewhere, is that this was a clear acknowledgment confirming the end of the parties’ relationship in 2005.[8]

    [8] Paragraphs 1 to 22 of the wife’s affidavit sworn 30 October 2014.

13. The file of Company O (‘COMPANY O’) was apparently not available.  However, the file of the other solicitor to that agreement, Mr P, was available.  It discloses the following:-

    (a)On 8 September 2006 Mr P wrote to COMPANY O[9] saying they act for the wife and noting that Company O acted for the husband.  In this letter they say they were provided with a copy of the Separation Agreement and noted some alterations in terms of there being two children and that a caveat should be on the title of the property to ensure that the husband transfers the property to The parties first child on her eighteenth birthday.

    (b)Another letter[10] in similar terms was forwarded to Company O by Mr P.

    (c)By letter dated 3 November 2006 Mr P sent a letter to Company O sending an amended Deed in accordance with their instructions and asking for submission of the caveat.

    (d)On 3 November 2006 Company O sent a letter[11] to the wife’s solicitors enclosing an amended deed and requested a caveat.

    (e)On 29 November 2006 Mr P wrote to Company O suggesting the separation date of September 2005 and other amendments and asking for a further amended agreement.

    (f)On 8 December 2006 a letter was sent to Mr P by Company O[12] enclosing the Separation Agreement, transfer and caveat signed by the husband.  In evidence the husband acknowledged that the signature on those documents was his, with the exception of the signature on page 1 of the caveat although he acknowledged his signature on page 2 of the caveat.

    (g)By letter dated 13 December 2006 Mr P wrote to the husband’s solicitor confirming a telephone conversation on 12 December 2006 (the date of the Separation Agreement) and enclosing a separation agreement and transfer signed by the wife and dated 12 December 2006.

    (h)By letter dated 1 February 2007[13] Company O wrote to Mr P confirming the transfer had been registered as had the caveat. 

    (i)There is a letter from the Department of Lands[14] to Mr P confirming that the caveat had been registered.

    [9] Ibid page 142.

    [10] Ibid page 143.

    [11] Ibid page 141.

    [12] Ibid page 139.

    [13] Ibid page 134.

    [14] Ibid page 131.

1. There were clearly a series of forms of agreement passing between the parties, and perhaps the exchange of agreements and various forms of agreements do not reflect the finest hour for the legal practitioners involved.  However, the legal practitioners were not called to give evidence.

2. There was an issue raised by the husband that the agreement had not been explained to him.  It was open for him to call his solicitor, who had provided a certificate.  He did not do so.  I do not believe the evidence of the husband that he did not understand the nature of the documents.  He selected the solicitor, the lawyer was speaking in a language which he understood, and he came back and signed an agreement.

3. There were five forms of agreement.  The first two agreements were apparently signed by the wife and are set out at page 60 and 110 of the annexures to the wife’s affidavit.

4. The document at page 60 of the annexures to the wife’s affidavit is missing the first page of the agreement (after the cover page).  The second page, page 61, appears identical with the second page of the document at page 112 and the certificate of independent legal advice to the wife is missing.

5. There are three other forms of the agreement attached to the wife’s affidavit being agreement three at page 116, agreement four at page 121 and agreement 5 at page 180.

6. Agreement three is different to the first two agreements in that:-

   ·It is signed by the husband;

   ·Substantive paragraphs 2, 3 and 4 are different in form although perhaps not different in substance;

   ·Document 4 is similar to document 3 except that the first page of the fourth document has a signature on it and the name of the second child is missing; 

   ·Also paragraphs 2, 3 and 4 of document 4 on page 2 of the documents are different to the substantive conditions in document 3; and

   ·The signature of the witness and the husband on page 3 are similar but in a different place on the page.

7. There was some endeavour by Mr P to explain the mix up in the documents in his letter dated 25 February 2005 where he says:-[15]

   Attached please find the correct separation agreement.

   As discussed.  Company O Solicitors initially sent us the incorrect agreement with only one child.  After our request, they forward to us the correct agreement with 2 children. 

   When the file was closed in 2007, my staff would have taken the separation agreement and other documents out of the plastic folder and put them on the file pin.  It would appear that later on when the agreements were taken out to be scanned the pages got mixed up.

   My apologies for the confusion.

   [15] Ibid page 179.

8. The agreement to which that letter refers is document 5 and it is signed by the husband, but not signed by the wife.  It has the certificate by the solicitor for the husband, which is dated 8 December 2006.

9. Page 1 of that document is in similar form to page 1 of the document signed by the wife and referred to on page 110.  Page 2 of that ‘clarified’ document seems identical with page 2 of the document signed by the wife.[16]

   [16] Ibid page 112.

10. Page 3 seems the same save for the different signatures and page 5 has the signature of an independent advice from the solicitor acting for the wife.  It may be that those documents together could constitute the agreement between the parties, however, in the absence of sufficient evidence and given the findings as to jurisdiction I do not propose to take that further.

Separation

1. The evidence of the wife is that the parties separated in April/May 2005.  She deposed to that in her affidavits.  I prefer her evidence and that of Ms Luc to the evidence of the husband.

2. Section 4AA of the Act provides the meaning of a de facto relationship (as set out earlier). I find that the husband and the wife were not legally married to each other and that they are not related by family.

3. The threshold question I have is whether, having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis after 2005 and if so whether that relationship subsisted to a date on and after 1 March 2009.

4. Prior to April/May 2005 the parties had been in a relationship for at least three years.  They lived together in a common residence and had a sexual relationship.  The husband had provided significant capital resources to the wife for and during that period of time.  He met some, but not all, of the expenses of the parties’ children.  There was clearly a degree of financial dependence between them.

5. They had jointly acquired ownership of a property at J Street, Suburb K.  They had the children, the parties’ first child and the parties’ second child. They and publically acknowledged each other as being in a relationship from at least late 2002.

6. Given the parties acquiesce to that being a relationship and the evidence before me, I am satisfied that up to April or May 2005 the parties had a relationship as a couple living together on a genuine domestic basis.

7. Was there an ending to that relationship of the parties as a couple living together on a genuine domestic basis?

8. The parties lived together in the J Street property from the time of its acquisition until about June 2012.

9. In April or May 2005 I find that the wife made clear that their relationship was at an end.  A separate refrigerator, and stove were obtained for the husband at the back of the home for use by the husband and other domestic arrangements were put in place, such as separate bedrooms, cessation of intimate relations and cessation of the public and private nature of their former relationship. There were different cooking and eating utensils for the wife, daughter and two children on one part and the husband on the other part.

10. I am satisfied that the parties stopped sharing a bed and that the husband resided in the back bedroom.  He went away, sometimes for days, sometimes for weeks or sometimes for months, without notice to the other household members.

11. I am satisfied therefore that from April/May 2005 the parties lived together in the same property but it was not ‘common residence’. It was, if anything, a parallel residence where he lived his life and they lived theirs.  There were some limited exchanges, bearing in mind that the parties had children together, such as from time to time the husband took the family to functions for the young children and the premises of the wife’s sister in late 2009.

12. I am satisfied that the husband gave instructions to his legal practitioner about the separation in 2006.  This is the better version of events regarding the attendance at the office to sign a ‘separation agreement’. In terms of the mix up of the separation date as to the 2005 or 2006 year and the month of September 2005 in the solicitors file the wife gave an explanation that she said that they had separated about a year before.  The solicitor put September 2005 being the year before he took instructions. I accept that explanation.

13. There is evidence that the wife informed Centrelink in 2008 and 2006 of her 2005 separation.  This was a letter from the Department of Human Services dated 15 December 2015.[17]  This was evidence of the following:-

    -In February 2008 the wife informed the Department that she had been separated from the husband since 29 October 2005.

    -She was issued with a Child Support Act Information Sheet but she declined to apply for matrimonial action as she already receives a large entitlement from the father of [Ms Luc]. She feels this covers her for all three children.

    -On 8 November 2006 there is a notation that the wife contacted the Department and:-[18]

    Whilst discussing ‘cus circs’, discovered cus was separated last year and was working only a small amount of hours. Tried to do first contact but cus (customer) was having problems with english so trans to multi lingual queue to do first contact.

    [17] Exhibit R2.

    [18] Ibid.

14. I have considered all of the relevant evidence and I am not satisfied that it in any way impeaches the wife’s fundamental evidence (and that supported by Ms Luc) that separation occurred in 2005, most likely in April or May.

15. Ms Luc gave evidence that at that time the husband and wife’s relationship had ‘ended’.  The wife denied having an ongoing sexual relationship with the husband and had given cogent evidence about her concerns of his behaviour in terms of violence to her and the children.

16. There was some minor inconsistency in the wife’s evidence in relation to the care of the children after April/May 2005 when she worked on Saturdays at Suburb S.  I consider this was not sufficient to impeach her evidence.  It was a normal human fallibility.

17. She gave evidence that the reasons for changing the electricity account, for putting it into the husband’s name and then having a friend go jointly on the bill with the husband was so that she could ensure the bill was paid.[19] I accept the evidence that the energy bill had been in the name of the wife.  Having regard to the documents produced, pages 32, 33, 34, 35, 36 and 37 of 91 pages in the trial affidavit of the husband, it is clear that it was transferred firstly to the name of the husband and then later to the name of the husband and a friend of the wife. I accept the wife’s evidence as to the circumstances of this and the reason for this.  I am satisfied this is indicative of the end of her assertion that the relationship ended at that time.

    [19] Paragraph 119 of the wife’s affidavit sworn 30 October 2014.

18. I accept her evidence in that regard. There was cross-examination of the wife in relation to her boyfriend in 2009, 2010, 2011 and 2012 with some minor inconsistencies with some dates.  I considered this evidence and I am not satisfied that it impeached her evidence. This in many ways supported her evidence that the relationship had failed before that time.

19. At the time of the asserted separation in April/May 2005 the wife was receiving income from Ms Luc’s father, she was receiving support of $10,000 to $15,000 a year from her mother, support by way of working on Saturdays at Suburb S and at home.

20. There was some, but limited, income from rental.  I am satisfied that the wife maintained herself on a day to day basis having regard to the significant capital made available to her earlier by the husband.

21. Her approach to seeking support from the husband is highlighted in terms of her statements to Centrelink set out in Exhibit R1.  I accept that there may have been some limited financial assistance from the husband for his young children over that period of time, up and until the payment of the $420,000 in late May 2009.

22. Given my assessment of the evidence of both parties, I am satisfied that such a sum was paid to the wife by the husband given his concerns about his health and his desire not to provide any further financial support to the wife or to the two young children.  I prefer the evidence of the wife in this regard.

23. From that time onward the whole of the care of the children was funded by the wife.

24. As to the ownership and acquisition of property, at the time of separation the parties jointly owned the property at J Street, Suburb K.  The following year they arranged to transfer that property from joint names to the name of the husband as putative trustee or as trustee for the youngest child.  I make no specific findings as to the validity or otherwise of the agreement, however, it is clear that the property was transferred and that it was transferred on the basis of that asserted trust.  A caveat was placed on the title.  There was no issue that the husband signed at least page 2 of  the caveat and that the parties signed the transfer.

25. As such there was an ending of the joint ownership of the property which had comprised the home of the parties. 

26. In late 2009 the wife purchased property at R Street, Suburb K.  I accept her evidence that it was purchased by her without the assistance or intervention of the husband other than the $420,000 earlier provided by him, the proceeds of sale of other properties to which I have earlier alluded and money from the wife’s mother.  This was an acquisition of the legal and equitable property for her.   

27. I accept that there was no mutual commitment to shared life between the parties from April/May 2005.  I am satisfied of this, having regard to the evidence of the wife and Ms Luc.  There may have been some engagement with the wife’s family in late 2009 and the husband may have assisted with transportation and the like from time to time, having regard to the young children.  However, it is clear from the evidence and I find that mutual commitment ended at April/May 2005.

28. The care and support of the children was a mutual task prior to April/May 2005.  I am satisfied that following April/May 2005, but with some limited exceptions, the majority of parenting was done by the wife and increasingly with support from Ms Luc.

29. I do not intend to repeat all of the evidence in these reasons however, I have had regard to all of the relevant the evidence.  I am accordingly satisfied that as and from April/May 2005 the relationship of the parties as a couple living together, on a genuine domestic basis, ceased and did not at any time afterward resume. I find that their ‘parallel lives’ came to an end in mid 2012 in the method outlined by the wife.

30. Accordingly, this court has no jurisdiction to determine the other issues and the husband’s proceedings will be dismissed, save as to costs.

I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 November 2016.

Associate:      G Doyle

Date:  2 November 2016