Ploubidis v Carling
[2019] SADC 151
•14 October 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PLOUBIDIS v CARLING
[2019] SADC 151
Judgment of His Honour Judge Durrant
14 October 2019
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - INTERCEPTION AND PROHIBITION THEREOF
Whether certain conversations recorded by the defendant and her children without the consent of the other participants admissible.
Held:
(1) Admission of evidence obtained without consent of plaintiff refused.
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - EVIDENCE IN SUPPORT OF APPLICATION
Application for part summary judgment in respect of the date of separation of the parties - alternatively, an order for a separate trial on that issue sought.
Held:
(2) Application for part-summary judgment dismissed; and
(3) Alternate application for separate trial of a preliminary issue dismissed.
Commonwealth Power (De Facto) Relationships Act 2009 ss 3(3), 9; District Court Civil Rules 2006 rr 211, 232; Family Law Act 1975 (Cth) ; Listening and Surveillance Devices Act 1972 ; Surveillance Devices Act 2016 ss 4, 7, 9, 10-11; Evidence Act 1924 s 67C; Child Support Assessment Act 1989 (Cth) ss 11, 25; Statutory Declarations Act 1959 (Cth) s 11, referred to.
A, WM v S, J [2014] SADC 41; Fox v Percy [2003] HCA 22; State Bank of SA v Smoothdale (No 1) Ltd v Security Pacific Overseas Investment Corp (No 2) (1985) LSJS 254; Yokagawa Australasia Pty Ltd v Alston Power Ltd (2009) 262 ALR 738; D-P v Minister for Child Protection [2018] SASC 149; Thomas & Anor v Nash [2010] SASC 153; Groom v The State of South Australia [2017] SASCFC 35; Groom v Police [2015] SASC 101; Bunning v Cross (1978) 141 CLR 54; Ceneavenue Pty Ltd v Martin [2008] SASC 158; (2008) 106 SASR 1; Leasfin Corporation Ltd v Clarke SASCFC No. 3664, 16 October 1992 unreported; Farrow v Mercantile Credits Ltd (1983) 154 CLR 87; Davies v Minister for Urban Development and Planning [2011] SASC 87; Attorney-General for the State of South Australia v Kowalski (No. 3) [2012] SASC 100; Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54, considered.
PLOUBIDIS v CARLING
[2019] SADC 151Introduction
By originating process[1], Mr Steven Ploubidis obtained an order extending a caveat lodged over 29 Beagle Terrace, Lynton (the property). He contended a prima facie case that a constructive trust should be imposed in his favour, upon the interest of the owner of the property, the defendant Mrs Kathryn Carling.
[1] Dated 20 April 2018.
It is common ground that a personal relationship between Mr Ploubidis and Mrs Carling commenced about 1990 and then developed into a de facto relationship thereafter. They had three children together - Daniela Katherine, Jordan John and Jamie Andrew. The history of the relationship is otherwise in dispute and is elaborated in affidavits from the parties and other persons. It is agreed that the parties have now separated. Mr Ploubidis said separation occurred in May 2014 while Mrs Carling said it occurred in 1998.
Relevantly, Mr Ploubidis alleged that his funds, brought into and accumulated by him during the relationship, ultimately funded the purchase of the property. That is denied by Mrs Carling.
While this action commenced as an application to extend a caveat, the interlocutory skirmishes since have focused on the date of separation. If the parties separated after 10 December 2009, property settlement can be determined by the Family Court. If the separation predated 10 December 2009, an application for the division of assets and liabilities can be made under the Domestic Partners Property Act 1996[2] in this Court.
[2] This Court has jurisdiction to hear such a claim: see s 3(3) of the Commonwealth Power (De Facto) Relationships Act 2009. For an examination of “the somewhat complex question of jurisdiction” see A, WM v S, J [2014] SADC 41.
Given its genesis as an application to extend a caveat, the action was commenced on affidavit. Mr Ploubidis has proposed a draft Statement of Claim but no order has yet been made that it be filed.
I am informed by Counsel that an application by Mr Ploubidis to transfer these proceedings to the Supreme Court is both opposed and extant. Mr Ploubidis has intimated a further application for referral from the Supreme Court to the Family Court.[3]
[3] Section 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.
Mrs Carling has applied for part summary judgment in respect of the date of separation. Mrs Carling contends this Court can summarily find that there is no reasonable basis for the contention of Mr Ploubidis that the de facto relationship ended after 10 December 2009.
Alternatively, Mrs Carling seeks a preliminary determination[4] as to whether the Family Law Act 1975 (Cth) has any application to this matter.
[4] Pursuant to r 211 of the District Court Civil Rules 2006.
A formulation of issues in respect of the application for part summary judgment was provided to the Court by Mrs Carling. Mr Ploubidis agreed that formulation reflects the issues that arise. I have had regard to but have not been constrained by that formulation in considering the application for summary judgment. The formulated issues are:
1.Whether the Defendant should be permitted to rely on the evidence adduced at paragraphs 48 to 80, 88 to 93, 98.1 to 98.6 and 195 of the second Affidavit of Kathryn Patricia Carling filed 2 November 2018 pursuant to the Surveillance Devices Act 2016 (SA).
2.Does the evidence in this matter satisfy the test for part summary judgment pursuant to r 232 of the District Court Civil Rules 2006 and, more particularly, is there any reasonable basis in fact or law on the available evidence that the parties were in a de facto relationship on the date when the Family Law Act 1975 (Cth) was engaged to govern such separations?
3.Is it reasonable to advance such arguments on the basis of the following evidence:
3.1the plaintiff’s representations to the Department of Human Services (Child Support) in 1994 and 1998 to assist the defendant’s application for a child support assessment following the parties first and final separations;[5]
3.2the plaintiff’s representations to psychiatrist Dr John Burvill on 14 May 2009;[6]
3.3the plaintiff’s representations to the defendant post 1998 while she was living in the Fullarton property from 1998 to 2002, the Mitcham property from 2002 to 2006 and the Hyde Park property from 2006 to 2012;[7] and
3.4the plaintiff’s other representations set out in paragraph 138 of the defendant’s affidavit filed 2 November 2018.
4.In the event the matter cannot be determined on a summary basis, whether on the balance of convenience, is it in the interests of justice to have the matter referred for determination on the preliminary issue of whether the parties’ de facto relationship had broken down before the date when the Family Law Act 1975 (Cth) was engaged.
[5] See the Affidavit of Mark Quaglia filed 28 March 2019 and Exhibit MQ1 and the Fourth Affidavit of Mark Quaglia filed 23 May 2019 and Exhibit MQ3.
[6] Affidavit of Kathryn Carling filed 2 November 2018 at [111] and Exhibit KC44.
[7] Ibid at [72], [77] – [80] and Exhibit KC 38.
Affidavits Read and Objections Made
Mrs Carling read several affidavits[8] received de bene esse[9]. My rulings, set out in these reasons, in respect of objections made to some parts of those affidavits, are limited to this interlocutory application.
[8] Second Affidavit of Mrs Carling deposed 2 November 2018; Affidavit of Steven Bradley Williams deposed 8 November 2018; her first Affidavit dated 21 May 2108; first Affidavit of Jordan Carling dated 29 May 2018; Affidavit of Jillian Anne Miller dated 2 November 2018; second Affidavit of Jordan Carling dated 2 November 2018; Affidavit of Jamie Carling dated 2 November 2018; Affidavit of Brendon Claude Daw sworn 2 November 2018; her third Affidavit sworn 17 December 2018.
[9] During argument, counsel for Mrs Carling indicated he did not rely on a number of those objected to paragraphs. That concession is recorded in the transcript and I will not detail them herein: see T6 ll 10- 11. I have ruled on the objections that remained.
Conversation with Neighbour
Mr Ploubidis objected to the receipt into evidence of Mrs Carling’s deposition of a conversation in which her neighbour asserted two matters of opinion and stated she had heard Mr Ploubidis’ ‘violent rages’[10]. Mrs Carling said that evidence was admissible to prove that recordings made by Mrs Carling and her children could be relied upon under the Surveillance Devices Act 2016. The objection of the plaintiff is a sound one. The evidence proposed is vague, does not specify what was particularly overheard and is proffered in circumstances where the Court has the benefit of the specific recordings which it can assess. Having regard to the purpose for which the evidence is sought to be read, I have had no regard to it.
[10] Second Affidavit of Mrs Carling at [85].
Solicitors Letter
An objection was also made to the admissibility of a letter from Pederick Lawyers, acting for Mr Ploubidis, sent to Mrs Carling on 5 December 2017, headed ‘Without Prejudice save as to costs’. On the final page, the solicitors for Mr Ploubidis ‘advise [it] is an open letter and may be relied upon on the issue of costs should [their] client find it necessary to apply to the Family Court for Orders’.
Mrs Carling said the letter proved the date of separation before 2009. Mr Ploubidis said it was without prejudice and subject to settlement privilege. The letter contended that Mr Ploubidis deserved a settlement of property enforceable by Orders of the Family Court and made an offer of settlement. It also postulated a date of separation.
The language used by the solicitor is problematic; the letter was ‘Without Prejudice’, contained an offer, set out the background against which the offer was to be considered but then referred to being ‘open’. Absent the reference to an ‘open letter’, the letter would obviously be subject to the settlement privilege and therefore inadmissible.[11]
[11] Section 67C of the Evidence Act 1929.
The words ‘open letter’ are said by Mrs Carling to mean the letter was not privileged. I think the better view is that the letter was evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute and was privileged under s 67C of the Evidence Act 1929. Read as a whole, the letter is said to be relied upon on the question of costs in future proceedings. On that basis, it is not admitted in evidence, in respect of this interlocutory application, to prove the date of separation.
Surveillance Evidence
Mrs Carling and her children, over several years, made audio recordings of incidents involving herself and Mr Ploubidis. Mrs Carling said:
I made recordings when I could because I was frightened and afraid of what Steven might say or do to me or the children. I thought I might need the recordings for some legal purpose.[12]
[12] Second Affidavit of Mrs Carling at [48].
Mrs Carling said Mr Ploubidis, in the recordings, admitted separation or acted in a manner consistent with separation having occurred, prior to 2009. She said that evidence was admissible to prove the date of separation.
Mr Ploubidis was unaware of, and did not provide his consent to, the audio recordings. Mrs Carling said the recordings ‘related to situations where the children and or I were being subjected to violence by Steven or there was an immediate threat of violence from Steven. Steven can be heard shouting loudly in most recordings. The conversations were not private and could often be overheard’. [13]
[13] Second Affidavit of Mrs Carling at [48].
In determining whether to admit into evidence the recordings, a consideration of the Listening and Surveillance Devices Act 1972 and the Surveillance Devices Act 2016 is required.[14] Mrs Carling submitted that the recordings were made lawfully.
[14] See D-P v Minister for Child Protection [2018] SASC 149; Thomas & Anor v Nash [2010] SASC 153; Groom v The State of South Australia [2017] SASCFC 35. It was common ground that this Court should have regard to the Listening and Surveillance Devices Act 1972 to determine the legality of the recordings and the Surveillance Devices Act 2016 for the purposes of determining admissibility. The only distinction between the Acts in respect of lawfulness is that the current Act also covers video recordings. For convenience, I will refer to the Surveillance Devices Act 2016 in these reasons as the test is the same.
Section 4(1) of the Surveillance Devices Act 2016 makes unlawful the knowing installation or use of a listening device to record a private conversation to which the person is a party. Under s 4(2)(a)(ii), s 4(1) does not apply to the use of a listening device if “the use of the device is reasonably necessary for the protection of the lawful interest of that person”.
Section 9 of the Surveillance Devices Act 2016 provides an exception for use in the protection of the lawful interest of the person in:
e. … a situation where –
(i) a person is being subjected to violence; or
(ii) there is an imminent threat of violence to a person;
Further, s 6 of the Surveillance Devices Act 2016 says the prohibition in s 4 does not apply to use of a listening device “if the use of the device is in the public interest”.
Section 11 of the Surveillance Devices Act 2016, permits the Court a broad discretion, subject to imposing conditions as set out in s 11(2), to grant leave for the use of the obtained information as follows:
(1)For the purposes of sections 9 and 10, a person may, in accordance with the rules of court, apply to a judge for an order authorising the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device.
(2)An order under this section may –
(a) specify the information or material the subject of the order; and
(b) specify the manner in which, and to whom, the specified information or material maybe used, communicated or published; and
(c) contain –
(i) conditions and limitations; and
(ii) any other matter as the judge thinks fit.
In Groom v Police,[15] Nicholson J heard an appeal against conviction for breach of an intervention order. The protected person had recorded a conversation with the appellant, without his knowledge, during a child access handover. The Magistrate admitted the recording into evidence in the public interest and for the protection of the lawful interests of the protected person. [16]
[15] [2015] SASC 101.
[16] Ibid at [43].
Refusing the appeal, Nicholson J remarked:[17]
Irrespective of whether or not a serious crime is in contemplation, a court should more readily accept the recording of a “private conversation” has been carried out in pursuit of a person’s lawful interest in circumstances where that person has a genuine concern for their own safety. Domestic violence is a very serious problem in our community. It would appear that, at least, the recognition and reporting of domestic abuse, be it physical, psychological, or by threatening behaviour, is on the rise. An intervention order is a very important first step in protecting a person, usually a woman, who has been the subject of domestic abuse. Such an order gains much of its value in this respect according to the extent that it can be enforced. Respondents must be discouraged from infringing any such court order.
[17] Ibid at [40].
Nicholson J[18] noted that his remarks were general in nature and aimed at explaining when admission of a recording made in order to prove breach of a protection order would be in the public interest or for the protection of the lawful interests of the protected person.[19] His Honour considered it important that the protected person was concerned for her safety and made the recording out of that concern and in order to prove any contravention. [20]
[18] Ibid at [42].
[19] See ss 4 and 6 of the Surveillance Devices Act 2017.
[20] [2015] SASC 101 at [43].
In Thomas and Anor v Nash,[21] the defendant, without the consent of other participants, recorded certain conversations with his deceased mother and two other persons, whom he subsequently alleged had exerted undue influence on his mother, in respect of the execution of her will.
[21] [2010] SASC 153.
Doyle CJ found each conversation was private and that:
The definition of ‘private conversation’ indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known to participants in the conversation.
A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, ‘private’ is used not in a sense of ‘secret’ or ‘confidential’ but in the sense of ‘not public’. A telephone conversation with a friend is a private conversation even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.
There is no reason to give a narrow meaning to the concept of ‘private conversation’, bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation. I am satisfied that each of the conversations was a private conversation, in the sense that the circumstances indicated that the participants other than Mr Nash wished the actual conversation to be confined to the known participants. [22]
[22] Ibid at [36]-[38].
Further, Doyle CJ considered the expression ‘lawful interest’ under the Listening and Surveillance Devices Act 1972. He held the desire to gain advantage in civil proceedings would not usually be a ‘lawful interest’ and that the exception did not operate in that case. Mr Nash, it was found, had ‘made the recordings in case it might later prove to his advantage to have them’[23] and did not record the conversations ‘for the protection of [his] lawful interests’. [24] Rather:
Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same. I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. This is not a case in which the recording was made to uncover a crime, or to resist an allegation of crime. [25]
[23] Ibid at [25].
[24] Ibid at [44].
[25] Ibid at [45].
Having reviewed relevant decisions, Doyle CJ remarked that they proceeded ‘on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a lawful interest, although of course each case has to be considered on its facts’. [26] His Honour remarked that ‘several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious type of crime, or to resisting such an allegation, a Court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.’ [27]
[26] Ibid at [48].
[27] Ibid at [48].
Mrs Carling said that she had not recorded private conversations. She relied on Thomas v Nash to contend that intention was critical to the determination of whether a conversation is private. Mrs Carling submitted the recordings were made after Mr Ploubidis entered her home and had behaved in a threatening and intimidating manner. She submitted the remarks made by Mr Ploubidis were abusive, threatening and intimidating. They were made, on the defendant’s case, when the plaintiff was not residing with her and was not welcome and knew he was not welcome.
The recordings of Mr Ploubidis are voluble, unpleasant in tone and involve him shouting. Mr Douglas, for the defendant, submitted what was recorded were not conversations because there was no exchange between two parties trying to communicate. He also submitted the conversations were not private as they occurred in front of the parties’ children and could be easily overheard as Mr Ploubidis was shouting loudly. It was submitted that Mr Ploubidis did not care at that time who overheard him and did not intend the conversations to be private. While the recordings were made at a private residence, Mr Douglas said that was not determinative.
Counsel for Mrs Carling submitted that she had feared for her safety and considered it had been in her lawful interest to record what was going on and that was why the audio recordings had been made and retained. The defendant relied upon the references, in the Act and cases, to the imminent or contemplated risk of violence. Mr Douglas submitted, accordingly, that the defendant had a lawful interest in recording what was going on and therefore the prima facie prohibition on use of a recording device was lifted when the pattern of behaviour of Mr Ploubidis became plain. He submitted that Mrs Carling satisfied the objective test as a reasonable person would consider she had an interest to protect by recording that sort of behaviour and the sorts of statements that were being made to her. It was submitted that there was no requirement that the particular lawful interest had to be identifiable at the time when the recording had been made. It was submitted that the Court needed, on reasonable grounds, to have identified a lawful interest such that brings the recording within the exceptions in the Act. The Court, Mrs Carling submitted, should readily accept that the threatening language of Mr Ploubidis had been recorded to protect her rights in relation to potential criminal proceedings – an obvious lawful interest.
Mrs Carling also submitted it was in the public interest to permit the evidence and the broad discretion under s 11 of the Surveillance Devices Act 2016 permitted conditions to be imposed in order to do so.
Mr Ross-Smith, for Mr Ploubidis, submitted the recordings were private conversations and unless otherwise excepted were made unlawfully. He referred to Thomas v Nash[28] and the evidence that Mrs Carling might ‘need the recordings for some legal purpose’[29] as demonstration of a desire to gain an evidential advantage in civil proceedings. He noted the conversations occurred both at the home of Mrs Carling and over the telephone and as such, were confined to the parties. The fact the conversations were voluble does not matter, he submitted.
[28] Supra at 19.
[29] Second Affidavit of Mrs Carling at [48].
I am satisfied that the conversations were private, in the sense Doyle CJ explained in Nash. The circumstances indicate that Mr Ploubidis, but not Mrs Carling, wished the actual conversations to be confined to the known participants. They took place over the phone or in a private residence and the fact they may have been loud and unpleasant does not matter. They were private.
I am also satisfied the recordings were made to provide Mrs Carling with some advantage. In doing so, I make no criticism of her motivation. I acknowledge her evidence that she had been frightened and afraid of what Mr Ploubidis might do. As already noted, in Groom v Police Nicholson J considered that the Court should more readily accept that the recording of a private conversation had been carried out in pursuit of a person’s lawful interest in circumstances where that person had a genuine concern for their safety.
Respectfully, his Honour was concerned in that case with evidence admitted in order to prove a contravention of an Intervention Order. This matter relates to civil proceedings and the proposed admission is not connected to or required to prove that the safety of Mrs Carling or her children was under threat, or to enforce an Intervention Order, or otherwise to protect Mrs Carling or her children. The evidence is proposed to be admitted as proving the date of separation.
Nicholson J in Groom v Police confined his remarks to an action involving alleged breach of an Intervention Order. I do not consider, in respect of an interlocutory application for part summary judgment in civil proceedings, that the general statement of principle set out by Nicholson J is applicable to admit the recorded evidence.
On that basis, I am not satisfied in these circumstances that admission of the recordings should be allowed and I therefore have not had regard to them in determining this interlocutory application.
Test for Part Summary Judgment
In Groom v The State of South Australia,[30] the Full Court considered an appeal against an order of a Master granting summary judgment in favour of the defendant. Mr Groom, feeling aggrieved by the conduct of his former partner and various entities of the State in relation to the intervention order referred to earlier, had issued civil proceedings. A Master had ordered summary judgment in favour of the defendant, having found that Mr Groom’s Second Statement of Claim disclosed no reasonable basis for any of the claims made.[31] The Full Court endorsed the approach of the Master, who had applied the approach identified by the Full Court in Ceneavenue Pty Ltd v Martin.[32]
[30] [2017] SASFC 35.
[31] Groom v The State of South Australia (unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016).
[32] [2008] SASC 158; (2008) 106 SASR 1 at [80]-[82] per Debelle J.
In that case, as here, r 232(2)(b) of the District Court Civil Rules 2006 required that:
(2) Summary judgment may only be given if the Court is satisfied that –
…
(b) if the applicant is a defendant – there is no reasonable basis for the claim against the applicant.
As noted earlier, there are no pleadings in this matter and it is to the admissible affidavit evidence that I must look to identify the issues in dispute. Mr Ploubidis said separation occurred in or about May 2014. He had deposed to the living arrangements for the parties and the children, his financial contribution, the sharing of family and domestic tasks and how the parties conducted themselves publicly.
Mrs Carling deposed that:[33]
5.The plaintiff and I were in a de facto relationship from 1992 to 1998 apart from our separation in 1994 referred to elsewhere.
6.The plaintiff and I were not in a de facto relationship at 10 December 2009. Our relationship broke down and we separated well before then.
[33] Affidavit of Kathryn Patricia Carling affirmed 2 November 2018.
Mrs Carling also had provided a detailed response to much of the evidence of Mr Ploubidis concerned with the living arrangements for the parties and the children, their financial arrangements, the sharing of family and domestic tasks and how the parties had conducted themselves publicly.
As identified by Debelle J:[34]
… the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore, no longer applicable. I respectfully agree with Bleby J that the barrier to summary judgment on an application by a defendant has been lowered: JT Nominees Pty Ltd v Macks.
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant, and the second is whether the test is materially different from the test of a real question to be tried. The fact that the expression “no reasonable basis” is used in both paras (a) and (b) of r 232(2) suggests that the same test applies both when considering whether there is no reasonable basis for defending the plaintiff’s claim and when considering whether there is no reasonable basis for the claim against the defendant. The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.
(Footnotes omitted)
(My underlining for emphasis)
[34] Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at [80]-[82].
Asserted Evidence of the end of the De Facto or Domestic Relationship
Having considered the test I must apply and having excluded the surveillance evidence and the solicitor’s letter, I turn to the evidence which identified the issues in dispute.
There is extensive evidence in the affidavits concerning: the duration of the relationship; the nature and extent of a common residence; whether a sexual relationship existed;[35] the degree of mutual commitment to a shared life; the care and support of children; and, the reputation and public aspects of the relationship.
[35] Although the existence or otherwise of a sexual relationship is certainly not determinative – see the definition of “close personal relationship” in the Domestic Partners Property Act 1996.
I note in that respect both the potential application under the Domestic Partners Property Act 1996 (if separation had been before 10 December 2009)[36] and that in the formulated issues the parties have asked me to consider if there is any reasonable basis in fact or law on the available evidence that the parties were in a de facto relationship on the date when the Family Law Act 1975 (Cth) was engaged to govern such separations.
[36] An application for division may only be made under that Act if the domestic relationship had lasted for three years or resulted in children. As these parties had children together, the question is not whether such a partnership existed but when that relationship ended. If it ended before 10 December 2009, then an entitlement to seek an order for property division under the Domestic Partners Property Act 1996 may arise.
The Domestic Partners Property Act 1996 allowed, after a ‘domestic partnership’ had ended, an application to the Court for the division of property. [37] In such a case, other definitions would also be enlivened[38] and, in this case, an application for extension of time would also be required.[39]
[37] Domestic Partners Property Act 1996 s 9.
[38] Domestic Partners Property Act 1996 s 3 definitions of ‘close personal relationship’ and ‘domestic partner’.
[39] Under s 9(3) of the Domestic Partners Property Act 1996 an application for the division of property must be made within one year after the end of the domestic relationship, unless the Court is satisfied an extension should be granted. See A, WM v S, J [2014] SADC 41.
The jurisdiction of Family Law Act (Cth) might arise if the de facto relationship existed, after 10 December 2009. The factors to be considered under that Act, in determining whether such a de facto relationship existed, include any or all of the following:
·the duration of the relationship;
·the nature and extent of common residence;
·whether a sexual relationship existed;
·the degree of financial dependence or interdependence and any arrangements for financial support;
·the ownership, use and acquisition of property;
·the degree of mutual commitment to a shared life;
·whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
·the care and support of children (if there are any); and
·the reputation and public aspects of the relationship.[40]
[40] Family Law Act 1975 (Cth) s 4AA.
Determining whether such relationships (domestic or de facto) existed (and when they ended) requires the Court to have regard to statutory formulations. Such assessment has serious consequences for the parties. It will require the Court to undertake a detailed consideration of the evidence of both parties, and potentially others, including the progeny of the relationship to satisfy itself.[41] While the Courts are regularly required to consider the factual and temporal evidence necessary to declare the existence or otherwise of domestic relationships or partnerships,[42] the task is a difficult one. The reported cases demonstrate the wide range of differing relationships which fall for consideration and qualification as domestic and the factual inquiry required.[43]
[41] For example, a “close personal relationship” (s 3 Domestic Partners Property Act 1996) means:
[42] For example, the Family Relationships Act 1975 and the Inheritance (Family Provision) Act 1972.
[43] For example, Re Fagan (1980) 23 SASR 454; Aranas v Berry [2002] NSWSC 355; Re Estate of Sigg (dec’d) [2009] VSC 47.
In respect of the application for part summary judgment, Mrs Carling submitted that alleged representations by Mr Ploubidis constituted evidence of separation in 1998 and that the court in reliance on those representations can proceed summarily.
Mr Ploubidis had made two statutory declarations to the Department of Human Services (Child Support) on 12 June 1998, and 5 May 1994 providing proof that he was the parent of Daniela, Jordan and Jamie. Those declarations were made under the Statutory Declarations Act 1959 (Cth).[44]
[44] Under which person must not intentionally make a false declaration: s 11 Statutory Declarations Act 1959 (Cth).
Under s 25 of the Child Support (Assessment) Act 1989 (Cth), an applicant parent of a child may apply for an administrative assessment of child support if the applicant is not living with the other parent on a genuine domestic basis and only in relation to eligible children where the parents have separated. Mrs Carling said that the declarations by Mr Ploubidis are evidence of separation.
Mr Ploubidis accepted that he had made the declarations. He said, through Counsel, that he had not yet given any evidence as to the circumstances of the provision of the declarations. He referred to his affidavit evidence as to the nature and duration of the relationship, the nature of common residency, the care and support provided to the children of the relationship and the public aspect of the relationship. He also relied on the evidence of other persons[45] as to the nature of the relationship with Mrs Carling and the reputation and public aspects of that relationship. For example, the plaintiff’s sister deposed to her observations that her brother and Mrs Carling were living together during the period 1992 to 2011 and presented in public in that manner.
[45] Affidavit of Demetrios Andreas Diamanti sworn 6 July 2018; Affidavit of Robert William Popplestone sworn 6 June 2018; Affidavit of Mary Joanni sworn 5 July 2018; Affidavit of Tim Monfries sworn 14 July 2018.
The statutory declarations are evidence that Mr Ploubidis believed he was the father of the named children. The declarations may also support an inference that Mr Ploubidis believed, in 1998, that he and Mrs Carling had separated. The declarations, however, are not evidence that the parties had in fact separated or had ended their domestic partnership or de facto relationship. For the Court to be so satisfied, in my view, a consideration of all the evidence would be required.
Further, Mrs Carling relied on the report of a psychiatrist following an interview with Mr Ploubidis in May 2009 which recorded that Mr Ploubidis described himself as single and as having had two children from a former marriage and three from a former de facto relationship. That evidence may be another inferential thread which the Court can rely on, together with the other evidence lead now and at trial, to find the date of separation. However, it is currently evidence only of what the psychiatrist recorded in his report.
Mrs Carling also relied on correspondence received by Mr Ploubidis which recorded his place of residence and address for the delivery of mail and notices as different to the place of residence of Mrs Carling and her children.
The evidence currently relied upon by Mrs Carling may be persuasive and objective evidence to assist the Court to determine relative credit of the parties and to draw inferences as to the nature of the relationship and when separation occurred. Mrs Carling has asked the Court to infer from the evidence read that the parties were not living together on a genuine domestic basis in 2009.[46] Specifically, Mrs Carling says separation occurred after a violent incident on 16 April 1998. Mr Ploubidis said that, while the sexual relationship ceased in 2008, these parties were still in a genuine domestic relationship in 2009. There is evidence going both ways. While there may be inferential evidence that Mr Ploubidis acknowledged in 1998 and later (before 2008) that the de facto or domestic relationship between these parties had ended, Mr Ploubidis contested that inference and has provided evidence to the Court to support his contentions.
[46] Counsel contended that the Court undertake the exercise in inferential reasoning set out in Fox v Percy [2003] HCA 22.
The argument of this application was necessarily lengthy. The complexity of the issues raised are reflected in these reasons. As Debelle J remarked in Ceneavenue in respect of applications for summary judgment[47]:
While adversarial argument will assist in the determination of [the] question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence.
[47] Ceneavenue Pty Ltd v Martin (2008) 106 SASR 158 at [82].
In my view, the question of the determination of the date of separation does require the Court to consider complex issues of fact and law and the credit of the parties and their witnesses. I cannot find in relation to the respective positions as to the date of separation – 1998 or 2014 – that there is no reasonable basis for the position asserted by Mr Ploubidis.
In considering the respective positions put forward, I also note this Court should exercise caution in summarily dismissing part of a claim. That caution is particularly apposite in this matter as it involves facts potentially enlivening rights to property settlement from many years past and, for these parties, large sums of money and significant consequence for their financial positions.
I am not satisfied that the threshold for summary dismissal on a partial basis is satisfied. While, as it stands, the plaintiff’s position is open to criticism, his position is real, as opposed to fanciful.[48] The reluctance and caution suggested by the authorities and the complex nature of the issues leads me to dismiss the application for part summary judgment.
[48] Ceneavenue Pty Ltd v Martin (2008) 106 SASR 158 at [81]; Leasfin Corporation Ltd v Clarke SASCFC No. 3664, 16 October 1992 unreported; Farrow v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Davies v Minister for Urban Development and Planning [2011] SASC 87 at [44] per Bleby J.
Determination of Preliminary Issue
Having dismissed the application for part summary judgment, I now turn to the alternate order sought by Mrs Carling – for a determination of the date of separation on a preliminary basis. This Court may order the separate trial of any issue of fact or law involved in an action[49] where it is in the interests of justice to make an order.
[49] Under r 211 of the District Court Civil Rules 2006.
This action commenced as an application to extend a caveat and was premised on a claimed equitable interest in the property. As noted earlier, the interlocutory skirmishes since have focused on the Domestic Partners Property Act 1996 (SA) and the Family Law Act 1975 (Cth). However, the claim for a constructive trust remains. Further, depending on the outcome of any preliminary determination, the division of the assets and liabilities of any domestic partnership ending before 10 December 2009 may remain a matter for decision by this Court.
An order for a separate trial can be considered where a clear separation and isolation exists. It should be avoided if to do so would result in duplication, inconvenience and expense.[50]
[50] Attorney-General for the State of South Australia v Kowalski (No. 3) [2012] SASC 100.
I am concerned that the same issues involved in determining the date of separation may also arise in respect of the alleged creation and terms of a constructive trust and in respect of any application for division of property under the Domestic Partners Property Act 1996. The Court may need, in respect of each of those three issues, to consider the genesis of and contribution of funds, the respective contributions to and circumstances of the relationship and how the funds brought into and accumulated during the relationship were disbursed and used.
By way of illustration, Baumgartner v Baumgartner[51] involved an asserted constructive trust and required a consideration of the respective contributions of de facto partners to property and whether there was any intention to create a trust and the circumstances giving rise to such constructive trust. The Court had regard to the relationship while intact, at the time it broke down and thereafter. I expect that a similar consideration will be required in this case in respect of determining the date of separation, the division of property and the claim of constructive trust.
[51] (1987) 164 CLR 137.
In respect of the application for a separate determination, I have had regard to the evidence of Mr Williams, an experienced and competent legal practitioner. Respectfully, his view as to the benefits of a determination of the preliminary question, in respect of saved cost and time, is misplaced. The potential for repetition of the facts in determining the proposed preliminary question and the various other causes of action raised in this action, is obvious.
There is unlikely to be a significant (or any) reduction in the length of trial. On the contrary, it is likely that the evidence will need to be repeated and result in a duplication of costs. The experience of the Courts has been that it is usually fairer and more expedient to hear all matters in dispute during a single trial. The potential for the proceedings to be made more expensive and drawn out is very real in this case and there is no good reason to depart from the usual approach.[52]
[52] Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54 at [12]-[15] per Nicholson J.
The application for a preliminary hearing is also refused.
I will hear the parties as to costs and further orders.
The relationship between 2 adult persons (whether or not related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis.
The definition notes that “[t]wo persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them”.
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