PILKVIST & COBURN (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVES

[2019] FamCA 635

FAMILY COURT OF AUSTRALIA

PILKVIST & COBURN (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVES [2019] FamCA 635

FAMILY LAW – DE FACTO RELATIONSHIPS – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant alleges that the parties were in a de facto relationship from 9 October 2009 to 6 December 2016 – Where an order was made by consent on 20 October 2009 declaring that a de facto relationship never existed between the parties – Where the respondent is deceased and the proceedings are defended by his legal personal representatives – Where the evidence does not support a finding that the parties lived together as a couple on a genuine domestic basis – Where the applicant maintains that she and the respondent never separated and there is no jurisdiction to make a property settlement order - Where a declaration is made that a de facto relationship never existed and the applicant’s application is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant’s legal representatives are directed to show cause as to why they should not be referred to the Legal Services Commission in relation to their conduct of this case on behalf of the applicant.

Family Law Act 1975 (Cth)

Corporation of theCity of Enfield v Development Assessment Commission (2000) 199 CLR 135
Jonah & White (2012) FLC 93-522
Ricci v Jones [2011] FamCAFC 222
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT: Ms Pilkvist

RESPONDENT: Mr Coburn (deceased) by his legal personal representatives Ms Coburn and Mr E

FILE NUMBER: BRC 2525 of 2009

DATE DELIVERED: 6 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 1 & 2 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B

SOLICITOR FOR THE APPLICANT: D Firm

COUNSEL FOR THE RESPONDENT: Mr Galloway

SOLICITOR FOR THE RESPONDENT: Peter J Sheehy Solicitor

It is ordered that:

1. Pursuant to s 90RD of the Family Law Act 1975 (Cth), it is declared that a de facto relationship between Ms Pilkvist and Mr Coburn never existed.

2. The Further Amended Initiating Application filed by the applicant on 10 April 2019 be dismissed.

3. In the event that the parties are unable to agree in writing within 21 days of today what costs order, if any, might be made regarding the costs of and incidental to the said Application:

   (a)       Each party file, within a further 14 days, any further application and supporting affidavit and written submissions in respect of that issue; and

   (b)       Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

4. In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file, jointly, minutes of consent via e-mail to the Associate to the Honourable Justice Carew.

It is further ordered that

1. Counsel for the applicant, Ms B, and the solicitor for the applicant, Ms F, show cause why they should not be referred to the Legal Services Commission in relation to their conduct of this case on behalf of the applicant.

2. The show cause hearing be listed on 5 December 2019 at 10.00am.

3. The legal representatives for the respondent are excused from appearing at the show cause hearing. 

NOTATION

It is noted that a declaration that a de facto relationship never existed was made by this Honourable Court on 20 October 2009 and the declaration made in this order relates to the period subsequent to that date.

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 Pilkvist & Coburn (Deceased) 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 BRISBANE

FILE NUMBER: BRC 2525 of 2009

Ms Pilkvist

Applicant

And

Mr Coburn (deceased) by his legal personal representatives Ms Coburn and Mr E

Respondent

REASONS FOR JUDGMENT

1. Ms Pilkvist (“the applicant”) answered an advertisement to become a carer for Mr Coburn in 1993. The offer entitled the carer to free accommodation, board, and a discretionary payment. Mr Coburn (who died in mid 2019 at age 85) was a quadriplegic and required assistance with his day to day living. The applicant fulfilled the role of Mr Coburn’s carer until he took up residence in a nursing home in July 2014.

2. These proceedings were commenced by the applicant on 29 June 2016.[1] The applicant seeks a declaration that she and Mr Coburn lived in a de facto relationship from 9 October 2009[2] until 6 December 2016, and for a property settlement representing 35 percent of Mr Coburn’s net assets.

   [1] There have been three amendments to the application filed - 3 August 2016, 6 December 2016 and 10 April 2019.

   [2] The Further Amended Application filed 10 April 2019 has the date 10 October 2009 crossed out and replaced with 09 October 2009. The applicant’s written submissions state that a declaration is sought from 20 October 2009.

3. Mr Coburn’s legal personal representatives, who are his adult children, were substituted for Mr Coburn as the respondent to the application on 23 July 2019. They seek a declaration that a de facto relationship never existed between Mr Coburn and the applicant between the dates nominated by the applicant, or at all, and for a dismissal of her application for a property settlement.

4. For the reasons which follow, I propose to make a declaration that a de facto relationship never existed between the applicant and Mr Coburn and to dismiss her application for property settlement.

5. Before turning to consider the relevant background, I record that, despite the applicant indicating an intention to rely upon several affidavits of herself, Ms B, counsel for the applicant, stated that the only affidavit of the applicant relied upon in the proceedings was the one filed on 1 July 2019 (despite that affidavit referring to a number of other affidavits). Ms B also stated that her client no longer relied upon a Claim and Statement of Claim, nor documents numbered 21, 22, 23, 33, 34, 35, 36, 37, 39, 40, 41, 42, 46 and 47 exhibited to her client’s affidavit.[3]  I also record that, despite the applicant stating at [4] of her affidavit that she “can speak conversational English” and that she had “difficulty reading English documents”, Ms B stated that the applicant “understands English very well”. At the commencement of her evidence, the applicant confirmed that the contents of her affidavit had been read to her before she signed it and that she understood its contents. 

   [3] Exhibit 2.

Background

1. The applicant and Mr Coburn shared a home from 1993 until 23 July 2014 when Mr Coburn left the home and initially stayed in hospital before moving to a nursing home.

2. It is common ground that throughout the applicant’s association with Mr Coburn, she received a payment from him of $1,200 to $1,500 per week increasing to $1,850 per week for a period in 2014. After buying food and other household necessities, the applicant was free to use the balance on herself, which she did. For instance, the applicant conceded spending $30,826.50 at casinos between 16 November 2009 and 22 May 2014. The applicant also purchased various items of jewellery, which she sold some time after 13 January 2009. The jewellery was valued at $384,530.[4] It seems that at least some of the jewellery may have been purchased from the settlement sum received by the applicant in 2009.

   [4] See Notice to Admit filed 10 July 2019 at [8] – [10].

3. On 23 March 2009, the applicant brought a similar claim to the present one against Mr Coburn in which she claimed that she and Mr Coburn had lived in a de facto relationship from 1993 until 14 March 2009 (at which time she claimed they continued to live under the one roof although separated). The applicant also claimed a property settlement of 25 percent of the asset pool.

4. The applicant’s claim was settled and, on 20 October 2009, an order was made by consent declaring that a de facto relationship never existed between the applicant and Mr Coburn. Pursuant to a Deed of Settlement, Mr Coburn paid the applicant $400,000, of which about $100,000 is said to have been paid to her then solicitors on account of legal costs.

5. Notwithstanding the claim made by the applicant and the subsequent settlement, the applicant, except for a few days following the settlement, remained living with Mr Coburn at his home at P Street, Suburb H, and continued to provide care for him as she had done in the past. The terms of the settlement will be discussed in greater detail below.

6. Mr Coburn left the home on 23 July 2014. Mr Coburn’s departure was arranged by Mr J, Mr K and Mr L, who held an enduring power of attorney in respect of Mr Coburn.

7. On 24 July 2014, a temporary protection order was made against the applicant as a result of observations made by Mr J on 23 July 2014 of bruising to the side of Mr Coburn’s face, which Mr Coburn told Mr J were as a result of the applicant assaulting him after she asked Mr Coburn about his will. Mr J also says that he observed bruising to the back of Mr Coburn’s hand, which Mr Coburn told him was as a result of trying to fend off the applicant’s assault. Mr J says he also observed the applicant hitting Mr Coburn around the head with a cheque book and yelling at him. Mr J also says that on 24 July 2014 the applicant attended the hospital where Mr Coburn was admitted and became abusive. The police attended and removed the applicant and she was served with a copy of the temporary protection order.

8. The applicant denies assaulting Mr Coburn and disputes the presence of bruising to Mr Coburn’s face. She acknowledges that she frequently yelled at Mr Coburn, but says it was just their way of communicating as a couple, and he would yell at her too. The applicant concedes “tapping” Mr Coburn around the head with a cheque book in Mr J’s presence. She says that the bruising to Mr Coburn’s hand occurred as a result of a recent blood test.

9. It is not necessary, in these proceedings, for me to make a finding about whether or not Mr Coburn’s complaints to Mr J were accurate. Suffice to observe, the alleged actions by the applicant resulted in Mr Coburn’s departure from the home and the issuing of the protection order.

10. In July 2014, Mr Coburn commenced to reside at an aged care home.

11. On 24 October 2014, the Public Guardian was appointed as a guardian for Mr Coburn in relation to the following matters:

    a)Accommodation;

    b)Health care;

    c)Provision of services; and

    d)An application for a domestic violence order before the court.

12. Also on 24 October 2014, the Public Trustee of Queensland was appointed as administrator for Mr Coburn, managing all financial matters except for a number of properties, a quarry, and a bank account with a balance of $800,000, all of which were managed by Mr J as administrator.

13. On 17 November 2014, a final protection order was made against the applicant, which remained in place for two years.

14. On 12 June 2015, a caveat was lodged by the applicant on Mr Coburn’s home at P Street. The applicant signed the caveat. A caveatable interest was claimed on the following basis:

    The caveator claims an equitable interest in the lot pursuant to a constructive and/or resulting trust arising from oral representations made by the registered owner to the caveator, which representations have been relied on by the caveator.

15. In June 2015, the P Street home was sold.

16. On 17 August 2015, the Public Guardian made the following decision:

    That Mr Coburn is not to receive any contact or visits from Ms Pilkvist nor is he to receive any contact visits from any agent of Ms Pilkvist.

17. On 4 January 2016, QCAT dismissed an application by the applicant for her to be substituted as the person responsible for making decisions concerning Mr Coburn’s care and to have daily contact with him. 

18. On 29 June 2016, the applicant recommenced proceedings in this Court. Initially, the applicant also sought to set aside the consent order[5] made on 20 October 2009.  That part of her claim was withdrawn. By her application (as amended on 10 April 2019), the applicant seeks a declaration that she and Mr Coburn lived in a de facto relationship from 9 October 2009 (although the applicant’s written submissions refer to the date as 20 October 2009). The applicant also seeks a property settlement of 35 percent of the asset pool.

    [5] No application was made to set aside the various deeds entered into by the applicant and Mr Coburn contemporaneously with the consent order which contained the declaration that no de facto relationship existed.

19. On 2 September 2016, a decision was made by the Office of the Public Guardian to cease all forms of contact between Mr Coburn and the applicant. Prior to that, a decision had been made on 19 July 2016 to authorise supervised visits between the applicant and Mr Coburn upon a number of conditions. Authorisation for the visits were ceased due to the applicant being found to have breached the conditions and because it was found not to be in Mr Coburn’s best interests for the visits to continue.

20. The applicant is a pensioner and her agreed net assets are negative ($97,212.67).[6] In addition, according to the costs disclosure notice provided by her lawyer during the trial, her outstanding legal costs are said to be $186,280.

    [6] Exhibit 1.

21. The estate of Mr Coburn has agreed net assets valued at $11,041,359.68.[7]

    [7] Exhibit 1.

The 20 October 2009 Settlement

1. On 20 October 2009 an order was made by consent. The order is made subject to undertakings given by the applicant and Mr Coburn in the following terms:

   1.That on or before the Date of Settlement, the Respondent will pay the Settlement Sum to the Applicant by delivering the Settlement Sum to the Applicant’s solicitors.

   2.That contemporaneous with the signing of these Minutes of Consent, the Applicant and Respondent duly sign:

   a.The Deed of Settlement and Release;

   b.The Deed of Release, Disclaimer and Indemnity; and

   c.The Deed of Settlement.

2. Paragraph 2 of the order is a declaration that “a de facto relationship never existed between the Applicant and Respondent”.

3. There are a number of notations to the order including the following:

   (2) the Applicant and Respondent are not, and never have been in a de facto relationship as defined by:

   (A)section 261 of the Property Law Act (Qld) 1974;

   (B)section 32DA of the Acts Interpretation Act (Qld) 1954 and

   (C)section 4AA of the Family Law Act 1975;

   (3)the Applicant and the Respondent’s relationship is limited to one whereby the Applicant, in the past, has provided the necessary everyday care to the Respondent, as outlined in the Deed of Settlement and Release;

   (4)the Applicant and the Respondent intend that in the future, the Applicant will be at liberty to remain living at the Respondent’s residence on the basis that the Applicant continues to provide the necessary everyday care to the Respondent at that residence;

   (5)the Applicant acknowledges that she has no claim upon the Estate of the Respondent, and the Applicant will execute the Deed of Release, Disclaimer and Indemnity, excepting an entitlement willed, bequeathed, gifted or devised to her by the Respondent;

4. In accordance with the Deed of Settlement, the applicant was paid the $400,000 settlement sum and continued to live at Mr Coburn’s home and provide the same care for him as she had done in the past.  

Statutory Will  

1. In February 2017, the parties were involved in Supreme Court proceedings in which Mr Coburn, by his then case guardian, applied for the making of a statutory will in accordance with ss 22 and 21 of the Succession Act 1981 (Qld). The parties to that litigation also included the legal personal representatives in these proceedings (who are the daughter and son of Mr Coburn), Mr Coburn’s brother, Mr Coburn’s accountant, Mr J, and Mr M who had provided services to Mr Coburn.

2. The application for a statutory will was refused and the reasons are before me. It was not necessary for the purposes of those proceedings for a finding to be made as to whether or not the applicant and Mr Coburn were in a de facto relationship but Brown J observed that evidence provided by Mr J, Mr N (one of Mr Coburn’s lawyers), Mr O (another of Mr Coburn’s lawyers) and Mr M (a person who had provided services to Mr Coburn) “is [not] supportive of the relationship between [Mr Coburn] and [the applicant] being anything more than that of a live-in carer” [146].

3. It seems to be accepted that at various times over the years, Mr Coburn represented to the applicant that he intended to provide for her in his will. However, Mr Coburn never made a will.

4. Brown J found that conduct by the applicant, including recommencing family law proceedings in 2016, would likely have caused Mr Coburn to change his mind about leaving anything to her. Brown J referred to the applicant’s evidence in relation to Mr Coburn’s testamentary intentions as “only a general statement that [Mr Coburn] stated he would provide for her in his will”. Mr O gave evidence that Mr Coburn said he wanted to leave P Street to the applicant but nothing else, i.e. he rejected the idea that another property or sum of money should be provided to the applicant if P Street was sold [252].

Applicable legal principles

1. Upon application for a property settlement order pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) the Court can make a declaration for the purposes of the primary proceedings, that a de facto relationship existed or never existed (s 90RD(1)). For the purposes of a declaration that a de facto relationship existed the Court may also declare a number of matters including the period or periods of the de facto relationship and when the de facto relationship ended (s 90RD(2)).

2. The jurisdiction to make a property settlement order is dependent upon certain jurisdictional facts, including, that there was a de facto relationship for an aggregate period of not less than two years (s 90SB), that it did not break down (on a final basis) before 1 March 2009,[8] but that there has since been a breakdown of the de facto relationship (s 90SM).  

   [8] See s 86(1) (Schedule 1) Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) and s 90SM Family Law Act 1975 (Cth).

3. Section 4AA(1) of the Act relevantly provides that a person will be found to be in a de facto relationship with another person if “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.

4. Thereafter, s 4AA(2) sets out a number of circumstances that may be relevant in determining whether or not the relationship was a de facto relationship. Those circumstances are:

   (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.

1. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship (s 4AA (3)).

2. In determining whether or not a de facto relationship exists, a court is entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case (s 4AA(4)).

3. A de facto relationship can exist even where one of the persons is married to or in a de facto relationship with someone else (s 4AA(5)(b)).

4. While different terms or phrases might be used in describing the relationship necessary for a finding that it is a de facto relationship e.g. ‘the manifestation of coupledom’ or ‘the merger of two individual lives into life as a couple’,[9] the Full Court in Sinclair &Whittaker[10] said:

   Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test, or if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.

   [9] Jonah & White (2012) FLC 93-522 (see 86,680 - 86, 681 of Full Court judgment quoting Murphy J as the trial judge).

   [10] (2013) FLC 93-551 at 87,398 at [94] (‘Sinclair’)

5. The Full Court in Sinclair[11] adopted the observations of Fitzgerald J in Lynam v Director-General of Social Security,[12] who said:

   Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

   [11] Ibid at [55] citing Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131.

   [12] (1983) 52 ALR 128 at [131].

6. Whether or not the parties live in a de facto relationship is a question of fact to be determined by the Court.[13] The perception by the parties of their relationship is a relevant matter but not determinative.[14]

   [13]Sinclair (supra) at 87,395 at [65].

   [14] Ibid.

7. The onus of proof rests with the person asserting the existence of the de facto relationship[15] and the standard of proof is the civil standard i.e. on the balance of probabilities.[16]

   [15]Ricciv Jones [2011] FamCAFC 222 at [23].

   [16] See s 140(1) of the Evidence Act 1995 (Cth).

Was there a de facto relationship?

1. The declaration made with the consent of the parties on 20 October 2009 stands i.e. up to that date a de facto relationship never existed. There is no application to set the declaration aside. So the question for determination is whether or not the relationship between the applicant and Mr Coburn can be characterised as a de facto relationship from 9 October 2009 until 6 December 2016,[17] or indeed any other dates given that the determination of whether or not a de facto relationship existed is one for the Court.

   [17] As sought by the applicant in her Further Amended Application for Final Orders filed 10 April 2019.

2. It is common ground that the applicant and Mr Coburn shared a common residence from 1993 until 23 July 2014. The applicant was evicted on 26 July 2014 and saw little of Mr Coburn thereafter as he was living in a nursing home, and for much of the time she was prohibited from visiting him or communicating with him. 

3. The applicant’s affidavit provides little detail about the nature of her relationship with Mr Coburn. The applicant makes no differentiation between the pre and post 20 October 2009 relationship. In particular she says:

   19. We continued to be intimate with each other.  He loves to be hugged and touched in his private parts.  On his part, he loves touching and caressing me.  Our love making is restricted due to his condition, but he loves me doing the most part as he is quadriplegic.  I have discussed this in private with those who are close to me and I am not ashamed as it is a natural part of our relationship.

   20. Our relationship is quite different because of his personality and behaviour.  He would scream at me to get my attention.  After getting used to this, I realised how to adapt to his behaviour and I would make my voice harder, so he could understand and to prove my point.  This however, has not stopped us from not wanting each other as [Mr N], one of his solicitors, who was instructed to do his will, called our relationship “Symbiotic”.

4. The applicant’s evidence of an ongoing sexual relationship is at odds with a statement she had written titled – ‘The Story of my Life and of Mr Coburn’ where she had referred to “sexual absence” and “the sexual part was not even in my mind as I was too busy caring for him to even think of sex”. Her attempt to explain the inconsistency was far from convincing.

5. According to Mr J, who was a frequent visitor to the home, Mr Coburn and the applicant had separate bedrooms. His evidence was not challenged and I accept it.

6. Given the inconsistencies in the applicant’s evidence and the evidence from Mr J, I reject the applicant’s evidence that she and Mr Coburn had a sexual relationship.

7. It is common ground that, at least until about July 2014, the applicant was financially dependent upon Mr Coburn from whom she received a weekly payment which she used to buy food and household necessities and any balance was used for her own purposes.

8. The applicant and Mr Coburn did not jointly own any property or maintain any joint bank accounts.

9. The applicant says in her affidavit that she provided the following care for Mr Coburn:

   21. Care for him and provide for his daily needs

   a. I would prepare his breakfast, lunch and dinner.

   b. I would ensure he takes his medication on time and connect his catheter.

   c. I organised his doctors and hospital appointments, his massages and haircuts.

   d. I would purchase clothes and other accessories for him.

   e. I would do cleaning of the house, washing, ironing and shopping.

10. The duties undertaken by the applicant are of course consistent with the duties that one might expect a carer to undertake. They are also consistent with the care provided to Mr Coburn prior to 20 October 2009.

11. The applicant relies upon a number of photographs depicting (I assume) Mr Coburn and herself with other people, apparently celebrating birthdays and the like. She also relies upon a number of cards sent by family and friends addressing them both. The fact that Mr Coburn and the applicant celebrated birthdays and special occasions is hardly surprising given the longevity of their association. Likewise, the receipt of cards mentioning them both.  

12. The applicant concedes that Mr Coburn always told other people that he and the applicant were not in a de facto relationship. She says he did so because he was “protecting” her. The applicant said that Mr Coburn did not want people to think she “was after what he had”. I reject the qualification the applicant sought to place upon her concession.

13. The applicant assisted Mr Coburn in the operation of his various businesses. For example, she wrote out cheques for him which he then signed and she drove him to various appointments and sites, collected rents for him and assisted with his banking. However, as Mr Coburn could not write (other than his name) and could not drive, he had to be assisted in the ways described by the applicant, and people other than the applicant did the same e.g. his accountant. There is no evidence that the applicant possessed any business experience or acumen. I regard her evidence that she was responsible for decisions to buy a mine and a quarry as embellishment of what was in reality a very limited role.

14. The applicant claimed during her oral evidence that Mr Coburn had proposed marriage to her. She acknowledged that such a claim had never been made by her previously in any affidavit in any proceeding. It seems unlikely that a proposal of this nature would not have been included in one of the very many affidavits sworn by the applicant in this and other proceedings. I reject the applicant’s evidence that Mr Coburn proposed to her.

15. The witnesses relied upon by the applicant in support of her case are of little, if any, forensic significance. Either they repeat what the applicant has told them or their observations do little to assist the applicant in meeting her evidentiary onus. For example, it would not be surprising if the applicant’s friends attended at the home to celebrate Mr Coburn’s birthdays when it seems he had no friends of his own and the applicant had been his carer for so many years. Nor is there anything about their observations which would establish in any persuasive way that the nature of the relationship between the applicant and Mr Coburn was one of de facto partner rather than carer and patient e.g. it would be unsurprising to see a level of familiarity or even affection between two people who had shared a home for such a long time and for whom the applicant provided the most intimate of care.

16. Having regard to the ‘composite picture’ created by the evidence in this case I conclude that the applicant and Mr Coburn did not have a relationship as a couple living together on a genuine domestic basis from 9 October 2009 (or 20 October 2009) until 6 December 2016 or subsequent thereto.

Consequences of finding that a de facto relationship never existed   

1. The jurisdiction to make a property settlement order is dependent upon a number of ‘jurisdictional facts’,[18] including that a de facto relationship existed. Given my finding that a de facto relationship did not exist, there is no jurisdiction to make a property settlement order.

   [18] See Corporation of theCity of Enfield v Development Assessment Commission (2000) 199 CLR 135where the High Court held at [28] that the term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.

other ‘jurisdictional facts’

1. Even if I am wrong about the nature of the relationship between the applicant and Mr Coburn, there is no jurisdiction to make a property settlement order because the right to make a claim is dependent upon a further ‘jurisdictional fact’ namely, the de facto relationship has broken down.[19] There is no evidence that the relationship had broken down. To the contrary, the applicant’s application represents that there was no separation; her affidavit does not depose to a separation; and in her oral evidence the applicant maintained that the de facto relationship continued up until the date of Mr Coburn’s death.  

   [19] See s 90SM(1) of the Family Law Act 1975 (Cth) which refers to property settlement proceedings ‘after the breakdown of a de facto relationship’.

why should counsel and solicitor be referred?

1. Section 90SM of the Family Law Act 1975 (Cth) relevantly provides:

   (1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate: …

   (my emphasis)

2. There was no evidence in this case that the relationship, as alleged by the applicant, had broken down. The applicant disavowed a breakdown in the relationship. Indeed she maintained that the de facto relationship continued up until the date of Mr Coburn’s death. The application filed on her behalf did not purport to represent that there had been a separation. As noted, the section of the application dealing with separation indicated that such a question was ‘not applicable’.

3. It could not be suggested that Ms B or her instructor were unaware of their client’s instructions because when this matter was before me for a case management hearing on 2 April 2019 the following exchange occurred:

   HER HONOUR: … So you’re seeking a declaration that a de facto relationship exists between the parties from 20 October 2009 until present?
   Ms B: Yes, your Honour.
   HER HONOUR: Is that still the case?
   Ms B: Yes, your Honour.
   HER HONOUR: So not until just the filing of the application?
   Ms B: That’s correct, your Honour.
   HER HONOUR: So your case is that the parties are still in a de facto  relationship?
   Ms B: They are, your Honour. The - - -
   HER HONOUR: Okay. Well, I just need to understand that. So that’s what you’re seeking, is it, that there be a declaration that the parties are in a de facto relationship from 20 October 2009 until now; is that right?
   Ms B: That’s correct, your Honour. Yes.
   …
   Ms B: Your Honour, I should say that the husband is in a nursing home.
   HER HONOUR: No, I know that.
   Ms B: Yes. Thank you, your Honour.
   HER HONOUR: But you maintain - - -

   Ms B: Thank you.

   HER HONOUR: - - - that the de facto relationship continues despite the fact that they’re physically separated?
   Ms B: Yes, your Honour.

   (my emphasis)

4. The exchange set out above reflects the applicant’s sworn evidence in the trial before me.

5. On 27 March 2019, the applicant’s solicitor had sent a letter to the respondent’s solicitor advising him of a proposed further amendment to their client’s initiating application to seek a declaration of a de facto relationship from 2009 until 6 December 2016.

6. As a consequence of the exchange set out above, Mr Galloway, counsel for the respondent, understandably expressed some confusion about the applicant’s position and the following exchange occurred:

   Mr Galloway: But, your Honour, if it is that there is still a de facto relationship in train, there is, as I understand it, no jurisdiction in the court to make any kind of property order because, unlike in a marriage, jurisdiction accrues to this court only when a de facto relationship ends. If it has not ended, there is no property settlement available. And, your Honour, that very much impacts upon the directions that your Honour might be asked - - -

   HER HONOUR: Sorry, you say that if they haven’t separated, then the court doesn’t have the jurisdiction to make - - -

   Mr Galloway: Yes, yes.

   HER HONOUR: - - - or a power to make an order?

   Mr Galloway: I have to say this: I’m on my feet because I did not expect this at all.

   HER HONOUR: No. All right.

   Mr Galloway: But I’m relatively confident, your Honour, that the big difference between – unless there’s been an amendment that I didn’t see – between the state of married parties and de facto parties is that jurisdiction over the property of married parties always exists whether they’re separated or not. Stanford told us that. But de facto partners, it’s when the relationship ends that there may be an adjustment of property, and, your Honour - - -

   HER HONOUR: Well, all right.

   Mr Galloway: - - - with a few minutes, I think I could probably find the right section.

   HER HONOUR: Okay.

   Mr Galloway: But I apologise to your Honour, I completely without notice

7. Mr Galloway, despite being caught by surprise, was of course, quite correct in his submission that, if as claimed by Ms B, the relationship had not broken down, there was no legal foundation for the property settlement claim.

8. The exchange on 2 April 2019 then continued as follows:

   - - -

   HER HONOUR: So I’m just looking at the letter, 27 March, and that’s only a few days ago, Ms B, so - - -

   Ms B: Yes, your Honour. That’s correct, your Honour.

   HER HONOUR: - - - there’s been a change between 27 March to say you will be seeking a declaration as to the existence of the de facto relationship until 2016 and now it’s ongoing.

   Ms B: Your Honour, it’s a very difficult situation for my - - -

   HER HONOUR: Well, I don’t care about that. What is it? What is your case? Is it, as was said on 27 March, that you’re seeking a declaration until 2016 or is it what you’ve just told me?

   Ms B: 2016.

   HER HONOUR: Look, I don’t know why you’re seeking instructions from your solicitor. One might have thought you would be clear, both you and your solicitor. You’ve got a client sitting behind you. What is the case?

   Ms B: Until 2016, your Honour. Till 6 December 2016. I just - - -

   HER HONOUR: So what you just told me - - -

   Ms B: Yes, your Honour.

   HER HONOUR: - - - is incorrect?

   Ms B: Yes, your Honour. Those are my instructions, your Honour. Yes.

   HER HONOUR: What date in December?

   Ms B: 6 December 2016.

   HER HONOUR: And what happened on 6 December 2016?

   Ms B: That’s when the parties separated, your Honour. The husband beat – the respondent was taken to a nursing home and they were - - -

   HER HONOUR: So what you just told me a minute ago, that despite the parties being physically separated, they remain in a de facto relationship, you’re telling me entirely the opposite in the space of minutes?

   Ms B: That’s correct, your Honour. Yes. Those are my instructions.

   (my emphasis)

9. As already noted, the applicant did not give any evidence at trial that there had been a separation on 6 December 2016, or indeed at all. There was no attempt to explain the contradictory statements made by Ms B during the case management hearing on 2 April 2019. The applicant’s only evidence was consistent with what Ms B initially informed the Court on 2 April 2019 i.e. that the relationship was ongoing (up to Mr Coburn’s death) despite the physical separation when Mr Coburn went into a nursing home. Further, the applicant’s Further Amended Application for Final Orders filed 10 April 2019 represents, on its face that the applicant and Mr Coburn did not separate. At Part C of the Application, under the heading ‘Relationship of Parties’ at paragraph 27, the applicant has responded to a question about the ‘date of final separation’ with an X indicating ‘Not applicable’. And at Part H under the heading ‘De facto relationship jurisdiction – financial causes’ at paragraph 55a, the applicant has responded to a question ‘Did your de facto relationship break down on or after 1 March 2009’ with an X indicating ‘No’.

10. After the close of the applicant’s case, Ms B sought leave to amend paragraph 27 of the Amended Initiating Application filed 10 April 2019 by deleting the ‘Not applicable’ response given by her client to the question about the ‘date of final separation’ and inserting the date ‘26 July 2014’.[20] As the proposed amendment was contrary to the evidence of her client, her application to further amend the application was refused.

    [20] This is the date the applicant was evicted from the home she and Mr Coburn had previously lived in.

11. I am very troubled by what, on its face, appears to be a misleading of the Court by Ms B and her instructor in an attempt to fashion the evidence to create a jurisdictional basis for a claim that did not in fact exist.

12. Accordingly, I propose to direct the legal representatives for the applicant to show cause why I should not refer them to the Legal Services Commission.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 6 September 2019.

Associate: 

Date:  6 September 2019