Quinn & Lawson (No 2)

Case [2023] FedCFamC1F 274

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Quinn & Lawson (No 2) [2023] FedCFamC1F 274

File number(s): SYC 7896 of 2015
Judgment of: SCHONELL J
Date of judgment: 17 April 2023
Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where both parties sought declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant contended that the relationship broke down in December 2013 – Where the respondent contended that the relationship broke down in August 2011 – Where the applicant commenced proceedings in December 2015 – Where after 2011 the parties remained living together despite the respondent contending that he was telling the applicant to move out – Where the evidence is that the parties slept in the same room together, went to events together, travelled together, and socialised with each other’s family and friends – Where the applicant’s evidence is preferred because the respondent’s evidence was found to be unreliable – Declaration made that the relationship broke down not before December 2013.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Cases cited:

Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084

Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18

Nguyen v Tran (2018) MVR 16; [2018] NSWCA 215

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance
Number of paragraphs: 238
Date of last submissions: 13 April 2023
Date of hearing: 23 – 26 August 2022, 15 February 2023, 10, 13 and 16 March 2023 and 11 April 2023
Place: Sydney
Counsel for the Applicant: Mr O’Dwyer SC with Mr Gardiner (23 – 26 August 2022);
Mr Gardiner (15 February 2023);
Mr Blackah (10 and 16 March 2023);
Litigant in Person (11 – 13 April 2023)
Solicitor for the Applicant: Gordon & Barry Lawyers (21 July 2022 – 8 March 2023);
Leeder Law (9 March – 10 April 2023)
Counsel for the Respondent: Mr Longworth;
Mr Kenny (16 March 2023)
Solicitor for the Respondent: Bartier Perry Lawyers

ORDERS

SYC 7896 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS QUINN

Applicant
AND:

MR LAWSON

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

17 APRIL 2023

THE COURT ORDERS THAT:

1.Pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that the applicant and respondent were in a de facto relationship commencing in August 2006 and ending no earlier than 23 December 2013.

2.This matter is listed for case management hearing at 10.00 am on 12 May 2023 before a Senior Judicial Registrar.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation…

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AGLC
Quinn & Lawson (No 2) [2023] FedCFamC1F 274
Case
[2023] FedCFamC1F 274
Decision Date

CaseChat Overview and Summary

In the case of Quinn & Lawson, the Family Court was tasked with determining the date of the breakdown of a de facto relationship between the parties, which had significant implications for the applicant’s entitlement to financial adjustment under section 90SM of the Family Law Act 1975. The applicant contended that the relationship ended on 23 December 2013, while the respondent argued that the relationship had broken down in August 2011. The primary legal issue was to ascertain the date of the relationship's breakdown, as it would determine the applicant’s eligibility to seek financial orders without leave.

The court had to evaluate the credibility of the parties' evidence and consider all the circumstances of their relationship. This involved scrutinising the behaviour of the parties post-August 2011 and examining the evidence provided by witnesses, including the applicant’s brother. The court found the applicant's evidence more reliable, particularly regarding the nature of their relationship after the heated discussion in August 2011. The respondent's assertions about a change in their relationship dynamics were deemed inconsistent with his own conduct and the applicant’s evidence. The court concluded that the relationship had genuinely broken down on 23 December 2013, based on the totality of the evidence.

The court’s reasoning was rooted in the High Court's guidance in Fairbairn & Radecki, which emphasises that a de facto relationship is considered to have broken down when the parties no longer live together on a genuine domestic basis. The court’s decision hinged on the applicant's consistent depiction of the relationship as ongoing and the respondent's behaviour that contradicted his claims of an earlier breakup. The court’s decision was thus premised on a detailed examination of the evidence and the conduct of the parties.

The final orders made by the court included a declaration that the de facto relationship between the applicant and the respondent existed from August 2006 and ended on 23 December 2013, and that the respondent pay the applicant's costs of the leave application on an indemnity basis.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

He conceded that the applicant finally moved out of the apartment in August 2015. BACKGROUND The applicant was born 1963. The respondent was born 1957. There is no issue that the parties commenced living in a de facto relationship in the respondent’s home at Suburb M in August 2006. The respondent contends that their relationship began to deteriorate around 2010. He says that there was a heated discussion in August 2011 that led to their separation. In his affidavit, he says:43. [The applicant] and I separated in mid August 2011 after a heated discussion occurred between us. [The applicant] made some serious allegations about my character. [The applicant] called me a “liar”, a “cheat”, “dishonest” and said that I “betrayed” her over the [N Street] project. I was very offended by her allegations. 44. After this argument, it became very difficult to speak to each other and I wrote to [the applicant] to ask her to withdraw her allegations. I recall saying in my letter to [the applicant] words to the effect: “If you refuse to withdraw the allegations then I consider our relationship to be finished.” I handed [the applicant] my letter by placing it on the kitchen island bench when we were both standing in the kitchen and said to her “This is what I feel.” [The applicant] read the letter in my presence and said to me words to the effect “No, that is exactly what you did. I won’t withdraw what I said to you”. I replied: “Fine if that is how you feel then you should leave. Our relationship is over.” I recall at this time [the applicant] said to me words to the effect: “This is the first time someone has ended a relationship with me. I am always the one to end a relationship.” I do not have a copy of this letter.45. At the time of separation, I asked [the applicant] to move out of the [Suburb M] property. I said to her “If you are not prepared to withdraw the allegations, there is no relationship, I would like you to move out. I am prepared to be reasonable and give you some time to arrange your affairs to move out. I am happy to remain friends and will assist you move out.” I anticipated that [the applicant] would need some time to arrange alternative accommodation. I expected that she would want to move back to Melbourne where she lived prior to the commencement of our relationship. Despite our arguments about her termination from the [N Street] project, I treated [the applicant] as a friend and with respect. The respondent says that after this heated discussion he asked the applicant on a number of occasions to move out of the home. In his affidavit, he says the following:54. During 2012, at least once per month when I saw [the applicant] in the house, I would say to her words to the effect: “How are your plans going to move out?” or “When do you think you will move out?” When I made these inquiries, [the applicant] either walked away from me when I spoke to her or she responded by saying “I have too many things on my plate and I cannot handle moving right now. At times she responded by calling me “heartless”, “a bully” and accusing me of not caring about what she was going through. [The applicant] did not fully disclose her condition to me and I did not really know what she was actually suffering from. Notwithstanding this, I still felt sorry for her.

Evidence

Evidence Before The Court

In circumstances where the applicant asserted the trip occurred shortly after she says they separated in late 2013, where I find her more reliable than the respondent and his evidence was that he was not sure, and where I regard it as implausible that in writing a letter about their “intention to separate” he would refer to events that may on one version have occurred years earlier leads me to prefer the applicant’s evidence. Evidence of Applicant’s Brother The respondent asserted that he had a conversation with the applicant’s brother in July 2012 during which he asked the applicant’s brother to try and encourage the applicant to move out of the Suburb M home. The applicant’s brother denied that specific conversation took place. He was cross-examined by the respondent’s counsel and maintained his denial. The brother’s evidence was not impeached by cross-examination. Counsel for the respondent says that other than in relation to some omission from his affidavit he should be accepted as truthful. I regard the omission as irrelevant to an assessment of his credibility but accept the submission that his evidence was truthful. In circumstances where I have otherwise found the respondent’s evidence in a number of instances to be unreliable, I prefer the evidence of the applicant’s brother.The parties’ relationship changed after August 2011 The respondent contended that the parties’ relationship after August 2011 was very different to that which the parties enjoyed before that date. To that end his affidavit contained assertions that after August 2011 he ceased being invited to family functions, the parties ceased socialising together and, with the exception of the Country P trip, ceased holidaying together. The respondent resiled from each of these propositions. I am not satisfied there is a discernible difference between the relationship after August 2011 to that which existed before that date. There is, however, a discernible difference after December 2013. The onus rests upon the respondent to establish that aspect of his case. I am not satisfied that he has. The parties continued to socialise together, they tacitly represented to extended family their relationship had not broken down in that they did not tell extended family that it had broken down and attended family functions together. I am unable to discern a difference between August 2011 and December 2013 to that which existed before August 2011. Exhibits 10 and 17 are emails sent by the applicant to a friend and a building contractor in early 2013. In each email the applicant refers to the respondent as “my partner”. Those emails are consistent with the applicant’s view of the nature of her relationship with the applicant as at the date they are sent.The heated discussion in August 2011 There is no issue that the parties had a heated discussion in August 2011. The point of difference was what the discussion was about, whether the applicant cast aspersions as to the respondent’s character, whether he wrote her a letter asking her to withdraw her allegations, and whether he thereafter told her that the relationship was over and that she would have to move out of his home.

Decision

Reasons for decision

On balance, I am satisfied that the matters referred to above under this indicia are supportive of the case advanced by the applicant than that of the respondent.CONCLUSION As referred to earlier in these reasons, the High Court in Fairbairn & Radecki observed that:29.A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. … 30.In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. … Section 4AA makes it apparent that each case will turn on its own facts. Not every fact relied upon by a party will point either consistently or necessarily logically to the conclusion sought by that party. Such proposition is self-evident on the facts in this case. It is for that reason that there is a requirement to have regard to all of the circumstances of their relationship to determine if the relationship had broken down. On my assessment of all of the evidence, the respondent’s case of a break down in August 2011 is supported only by what he reports to the witnesses in his case and the conversation denied by the applicant with Ms C. There is no doubt that he told these people that he was separated. However, all of his other behaviour is inconsistent with a breakdown and, taken with a rejection of his evidence that the parties did not share a bedroom when they moved to the apartment, where I have otherwise found his evidence unreliable in other instances as referred to in these reasons, his case is otherwise implausible and irreconcilable with his own conduct and with the conduct of the applicant. This is particularly so in respect of her evidence that she would not have gone on a holiday if they were not a couple, explaining why she went to Country P and Country O and Country HH in 2012 and why she did not go to New Zealand in 2013. In this matter, having regard to all of the circumstances, I am satisfied that the evidence supports a finding that the relationship of the applicant and respondent living together as a couple on a genuine domestic basis broke down on 23 December 2013. I will make a declaration accordingly.

Ratio Decidendi

Legal Principle Established

The ambit of the dispute relates to when the breakdown of the de facto relationship occurred. Reference to terms such as ‘separation’ are unhelpful as it is not a term upon which jurisdiction is established. In that respect, s 90SM of the Act relevantly provides that:90SM Alteration of property interests (1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate: … There was no issue that the parties’ de facto relationship commenced in August 2006. The applicant contends that the de facto relationship broke down on 23 December 2013. The respondent for his part contends that the de facto relationship broke down in August 2011. The significance of each of the dates is relevant to the applicant’s application for financial adjustment under s 90SM in circumstances where, if the de facto relationship broke down at a date earlier than that contended by her, she would then need leave to bring proceedings out of time. The applicant seeks the following relief (Exhibit 18):1. Declaration pursuant to Section 90RD(1) & (2) of the Family Law Act 1975 (Commonwealth) that a de facto relationship existed between the Applicant and the Respondent commencing in August 2006 and ending no earlier than 23 December 2013.2. That the Respondent pay the costs of the Applicant in respect of the Leave Application on an indemnity basis. The respondent seeks the following relief (Exhibit 18):1 Declaration pursuant to s 90RD(1) & (2) of the Family Law Act 1975 (Cth) that a de facto relationship existed between the Applicant and the Respondent commencing no earlier than 1 August 2006 and ending no later than 31 August 2011.2 That the Applicant pay the costs of the Respondent of and associated with these proceedings. Where each party moves the Court for a declaration as to when the de facto relationship broke down, each party carries the onus to establish the date contended for by that party.DOCUMENTS RELIED UPON The applicant relied upon the following documents:(1)Initiating Application filed 1 December 2015;(2)Affidavit of applicant filed 13 February 2020 (“trial affidavit”);(3)Affidavit in reply of applicant filed 8 August 2022;(4)Affidavit of Mr D filed 16 August 2022;(5)Affidavit of Ms E filed 13 February 2020;(6)Affidavit of Ms F filed 24 February 2020;(7)Affidavit of Mr G filed 30 March 2020;(8)Affidavit of Mr H filed 30 March 2020; (9)Case Outline document; and(10)Written submissions filed 16 March 2023 and 13 April 2023. In addition, the applicant sought leave to rely upon a report of Dr B, neuropsychologist. The report was not appended to an affidavit and was served shortly prior to the commencement of the hearing, albeit that the report is dated in 2020. The report does not constitute evidence of a treating physician but is single expert evidence obtained for the purposes of the proceedings. At no time did the applicant file an application seeking leave to adduce evidence from an expert other than a jointly appointed single expert. Ultimately, the parties reached agreement about the terms upon which it would be received into evidence. The report and the letter setting out the terms on which it would be received became Exhibit 19 in the proceedings.