Randall and Pavot
[2016] FCCA 1620
•8 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANDALL & PAVOT | [2016] FCCA 1620 |
| Catchwords: FAMILY LAW – De facto property – whether an application for property settlement is made out of time – whether the Applicant would be caused hardship if leave to proceed out of time were not granted under s.44(6) of the Family Law Act 1975. |
| Legislation: Family Law Act 1975, ss.4AA, 44(4), 44(5), 44(6), 79(2), 90SM, 90RD |
| Cases cited: Baumgartner (1987) 164 CLR 137 |
| Applicant: | MR RANDALL |
| Respondent: | MS PAVOT |
| File Number: | DGC 1759 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 4 November 2015 |
| Date of Last Submission: | 6 November 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 8 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Connell |
| Solicitors for the Applicant: | Fiona R McGregor |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
ORDERS
IT IS DECLARED
Pursuant to s.90RD of the Family Law Act 1975 that a de facto relationship existed between the Applicant Mr Randall and the Respondent Ms Pavot between December 2003 and August 2009.
IT IS ORDERED THAT
The court being satisfied that the Initiating Application filed 28 June 2013 and the Amended Initiating Application filed 28 August 2013 were filed out of time, those Applications are hereby dismissed pursuant to s.44(5) of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Randall & Pavot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1759 of 2013
| MR RANDALL |
Applicant
And
| MS PAVOT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a property matter arising out of the breakdown of the de facto relationship between Mr Randall (“Mr Randall”) and Ms Pavot (“Ms Pavot”).
The only issue for decision at this stage is whether Mr Randall's Initiating Application in relation to a property settlement filed on 28 June 2013 ought to be dismissed for having been brought out of time, and that issue depends on a determination of the date of separation between the parties.
Ms Pavot says the relationship ended in August 2009 when she, her daughter and the parties’ two children left her home at Property S (“the Property S property”) and went to live with her father at his home in (omitted).
Mr Randall acknowledges that Ms Pavot and the children, X aged ten and Y aged eight have lived at (omitted) since that date but he says that the de facto relationship between him and Ms Pavot continued until January or February 2012.
If Mr Randall is correct and the de facto relationship between the parties did not end until 2012, then his Application for property settlement was brought within the two-year period mandated by s.44(5) of the Family Law Act 1975 (“the Act”) and that Application (or a variant of it) may need to be heard.
If Ms Pavot is correct, Mr Randall's Application was not brought within the requisite two year period and is therefore likely to be dismissed, although I will then need to determine, pursuant to s.44(6) of the Act, whether Mr Randall would suffer hardship if such an order were to be made.
Background
Mr Randall was born on (omitted) 1971 and is now 45 years old. Ms Pavot was born on (omitted) 1972 and is now 44 years old.
The parties met in 2003 and began living together in December of that year in the Property S property with Ms Pavot’s eldest child from a previous relationship, Ms J, who is now in her early twenties.
It is not in dispute between the parties that Ms Pavot had purchased the Property S property from her sister before the parties met and that that property and its attendant mortgage have always been registered in her sole name.
Mr Randall and Ms Pavot have two children together, X born (omitted) 2006 and Y born (omitted) 2008.
It is not disputed between the parties that they lived together in the Property S property between December 2003 and August 2009, although, as already stated there is a dispute between the parties as to when they separated on a final basis.
Mr Randall works full time as a (omitted).
Ms Pavot receives a Disability Support Pension and Education Supplement and Mobility Allowance and studies (course omitted) through (omitted) online.
Mr Randall pays child support as assessed by the Department of Human Services (Child Support).
At the time of trial Mr Randall had repartnered and was living with his partner. Ms Pavot had not repartnered.
Procedural History
Mr Randall filed his Initiating Application on 28 June 2013, seeking both parenting orders and a property settlement.
As parenting matters were settled by consent on 4 November 2015, I will restrict this History to the current dispute in relation to property settlement.
The matter was first listed on 7 August 2013 before Judge Curtain when certain procedural orders were made by consent.
The parties first came before me for a directions hearing on 12 November 2013 where the matter was set down for a Conciliation Conference with a Notation stating that the parties agreed that “the Respondent will not be prejudiced by her attendance at and participation in the Conciliation Conference”.
On 26 February 2014, the parties attended a Conciliation Conference before Registrar Kaur although it was only able to proceed as an assessment on that day. The Court’s Conciliation Conference Report states that the reason for the failure of the matter to proceed was “Respondent wants issue of leave out of time dealt with and will not negotiate any payment/settlement”.
The parties returned before me on 4 April 2014 for a mention hearing when the matter was set down for trial on a date to be fixed and trial directions were issued. The trial date was shortly thereafter fixed for three days beginning 18 February 2015.
On 18 February 2015, the matter was not reached and the final hearing was adjourned with priority to 4 November 2015 with further procedural orders being made.
On 4 November 2015, the parties came before me for a defended hearing and were able to enter into final parenting Orders by consent, save for one issue regarding drug testing about which I made a determination on that day.
It was decided that I would hear Ms Pavot’s application to have Mr Randall's Amended Initiating Application dismissed pursuant to s44(5) of the Act and that hearing lasted for one day.
The only witnesses were Mr Randall and Ms Pavot, both of whom underwent cross-examination.
At the end of the hearing I reserved my decision having set a hearing date for the determination of the substantive property Application so that the parties would not be disadvantaged in circumstances where that Application was not dismissed.
The Law
The law in relation to time limits for the institution of proceedings for property settlements between separated de facto couples is found in s44(5) and 44(6) of the Act.
Those sections read as follows:
44(5) subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
(b) a declaration under section 90SL
only if the application is made within the period of two years after the end of the de facto relationship (the standard application period).
44(6) the court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party – the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
An order for a de facto property settlement - that is, an order that the current property interests of the parties to a de facto relationship be altered - is an order under section 90SM of the Act.
Thus, in this case, if I am to make an order under that section, I may only do so if an application for such an order was made within two years of the end of the relationship, unless I am satisfied that hardship would be caused to Mr Randall if leave to proceed out of time were not granted.
In his Initiating Application filed 28 June 2013, Mr Randall sought only two orders in relation to property matters:
1. That there be a settlement of property as between the applicant and the respondent as is just and equitable in all of the circumstances.
2. That the applicant be excused from further particularising his claim for a settlement of property pending proper financial disclosure by the respondent.
In his Amended Initiating Application filed 28 August 2013, his claim was set out thus:
1. That there be a settlement of property as between the applicant and the respondent as is just and equitable in all of the circumstances.2.1. That pursuant to section 44(6) of the Family Law Act the applicant have leave to proceed with his application for a settlement of property.3.2. That the applicant be excused from further particularising his claim for a settlement of property pending proper financial disclosure by the respondent.Mr Randall's Outline of Case Document filed 2 November 2015 includes only the following order sought in relation to property matters:
8. That there be a settlement of property as between the Applicant and the Respondent so as to reflect a global settlement of sixty per centum of the assets of the relationship.
As can be seen from those documents, it is impossible to ascertain exactly what order or orders Mr Randall wants the court to make.
His Amended Initiating Application appears to withdraw his application for an order that “there be a settlement of property as between the applicant and the respondent as is just and equitable in all the circumstances” and to replace it with an order that he have leave to proceed with “his application for a settlement of property” pursuant to section 44(6) - that is, leave to proceed out of time on the basis of hardship. The question of what “application for a settlement of property” is being referred to in that Amended Initiating Application might well have been argued as a basis for dismissal had Ms Pavot been legally represented at trial.
I note that Mr Randall was represented throughout these proceedings and it is difficult to understand why the deficiencies in his application documents were not rectified in the more than two years between initial application and trial.
The order set out in his Outline of Case Document is particularly vexing, as not only does it not rectify previous deficiencies but it does not specify in whose favour the “sixty per centum of the assets of the relationship” is sought to be awarded.
If my decision in this part of the proceedings is that he be permitted to proceed with an application for property settlement, he (or more accurately put, his solicitors) will need to file properly drafted application documents so that both Ms Pavot and the court understand exactly what it is he is asking the court to do.
In most of his affidavit material and at trial, Mr Randall argued that the relationship between him and Ms Pavot had not finally broken down until about February 2012.
In other words, his evidence appears to support the proposition that his application was based on a claim that he was not out of time when he filed his initiating application in mid-2013.
However, some of his evidence did address the question of hardship, and in those circumstances, taking the most benevolent view possible of his somewhat incomprehensible pleadings and noting the opening and closing submissions of his counsel at trial, I infer that his claim is argued in the alternative: first, that he was not out of time when he filed his Initiating Application; or, in the alternative, that if he was out of time, I should allow him to proceed because it would cause him hardship if I did not.
Was Mr Randall's Application filed out of time?
As Mr Randall's Initiating Application was filed on 28 June 2013 and his Amended Initiating Application on 28 August 2013, this question must be answered in the affirmative if the end of the de facto relationship between him and Ms Pavot occurred on or before 28 June 2011.
That brings me to the question of what constitutes a de facto relationship at law and whether any relationship that did exist between Mr Randall and Ms Pavot between August 2009 and 28 June 2011 was a de facto relationship at law.
Section 4AA of the Act states:
4AA(1) a person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
4AA(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The question here is whether, “having regard to all the circumstances of their relationship, they (had) a relationship as a couple living together on a genuine domestic basis” after August 2009.
The Evidence
The Applicant’s Evidence
Mr Randall’s evidence is found in his four affidavits filed throughout the proceedings, the affidavits sworn by several of his family members in February 2014, in his oral evidence given at trial and in his exhibits tendered at trial.
In his first affidavit, sworn 25 and filed 28 June 2013, Mr Randall states the following at paragraph 12:
Our separation occurred in or about January or February 2012. We last had a sexual relationship on 21 January 2012 and I would say that that is about the time our relationship broke down. We have not lived together permanently, however, since August 2009. In or about August 2009, the mother went to stay at the home of her father in (omitted) (sic). […]
Mr Randall deposes that at that time Ms Pavot’s teenaged daughter Ms Pavot had run away to live with Ms Pavot’s father and that because Ms Pavot’s father was proposing to take a holiday, Ms Pavot needed to stay at her father’s home in order to supervise Ms Pavot. He says that Ms Pavot told him at the time that in addition to the need for her to supervise Ms Pavot, Ms Pavot’s father was experiencing poor mental health as “he had suffered a stroke and his wife had died” and that he needed her assistance.
Mr Randall’s evidence is that the time period for Ms Pavot to stay with her father had initially been one week but that that time had been extended “for a variety of reasons”. It is not disputed between the parties that in fact Ms Pavot never did return to the Property S property to live and that at the time of trial she was still living in her father’s home with the parties’ two young children after six years.
Mr Randall says that there was regular communication between him and Ms Pavot, that they maintained an intimate relationship and participated in some family outings and activities.
He deposes that a serious injury Ms Pavot suffered as a result of an accident which occurred in late 2009 created a further reason for her to stay at her father’s home as she needed nursing care and rehabilitation.
In his second affidavit sworn 26 and filed 28 August 2013, Mr Randall repeats the above evidence, emphasising that Ms Pavot had given him assurances that “as soon as things were settled with her father and with her daughter” she would return to the Property S property. He then says the following:
6. In November 2009 the mother applied for an assessment of child support from the Child Support Agency from me. There were a number of disputes and arguments between us.
7. I have now formed the view that at that time, that is, at the time the mother applied to the Child Support Agency for an assessment of child support, our relationship was at an end but the mother did not communicate clearly to me that our relationship that ended. I continued to accept her overtures (sic) that the relationship between us was ongoing because I did not know what else to believe and I did not wish to accept that our relationship was over, though I say with the benefit of hindsight I was clearly being mislead (sic) by Ms Pavot.
8. It remained a situation whereby we continue to participate in activities together. We celebrated our children’s birthdays together. We celebrated our birthdays together and we celebrated Christmas together. The mother and I maintained a sexual relationship[…]
He then goes on to say the following:
9. It was not until June 2012 that I accepted and came to terms with the fact that the relationship had ended. On that day, there was a violent incident and I admit that I was the instigator of the incident, and it was particularly inappropriate and unacceptable, and I regret deeply all that occurred.
10. I say, however, that until that time, I had believed that the mother and I were in an ongoing relationship and that she was going to come back to the house to live and on that basis I did not apply to this Honourable Court for a settlement of property.
11. I am prepared to concede that our relationship ended at the time that the mother applied to the child support agency for child support.
12. I say that if my application was struck out on the basis that I have not applied for a settlement of property in time, I will suffer hardship. On the basis that our relationship ended in November 2009, I say that I am 19 months out of time for the filing of my application.
He then goes on to set out some of the “substantial contributions” he says he made to the Property S property, those contributions forming the basis of his claim for hardship.
In his third affidavit, sworn 3 and filed 4 February 2015, Mr Randall deposes to the following:
15. In August 2009 the mother went to stay at the home of her father in (omitted) (sic). While I understand that the mother says we separated at that time, my view of our circumstances is that while we commenced living separately, our relationship was nonetheless on-going and all that we were doing was living in separate places.
He then states that one of the reasons that the time of Ms Pavot’s (and the children’s) residence at her father’s home was extended was that he had been undertaking renovations at the Property S property, renovations that “weren’t the sort of activities that were conducive to our family living in the home”.
Mr Randall repeats the evidence contained in previous affidavits that Ms Pavot had not communicated to him that their relationship had ended, and that they had continued to participate in activities like family birthdays and Christmas together. He again deposes that he and Ms Pavot had maintained a sexual relationship in which he believed Ms Pavot to have been a willing participant.
He says that there had been a number of discussions between him and Ms Pavot about her (and presumably the children) returning to the Property S property and that “the house remained furnished with our furniture and belongings. The mother left her clothing in the wardrobes. The mother didn’t move any of her furniture or belongings out when she went to stay at her father’s home.”
Mr Randall does not depose to the relationship between him and Ms Pavot being all smooth sailing between August 2009 and June 2012, setting out several disagreements and points of conflict between them during that period.
That period culminated in Mr Randall attending at the home of Ms Pavot’s father on 19 June 2012 after an argument on the telephone with Ms Pavot, when he subjected Ms Pavot’s father to a serious assault after breaking into the house. He was charged with and later pled guilty to several offences as a result of that evening’s events and was sentenced to a Community Corrections Order which required him to perform 150 hours of unpaid community work and to undergo assessment and supervision by the Office Of Corrections. Also as a result of that night’s events, Victoria Police applied for and obtained an Intervention Order against him naming Ms Pavot and the children as protected persons. I note that the children were present in the house when the assault took place.
To his credit, Mr Randall now takes full responsibility for his actions on that night, acknowledging the “trauma and apprehension” that he has caused Ms Pavot and her father. In his first affidavit he appeared to diminish the severity of his attack on Ms Pavot’s father, which, given its consequences, was of some concern to the court.
He deposes at the time of swearing his third affidavit that he had vacated the Property S house and that he had been living in independent accommodation since March 2014.
Mr Randall also deposes that he had paid Ms Pavot about $1000 per month “to cover bills and my occupation of the premises” between August 2009 and March 2014, but insists that he was “never just a tenant”.
Mr Randall then goes on to say:
14. In terms of the property issue between us, I say that it is clear that irrespective of which version this honourable court accepts, that is, the mother’s version of events that we separated in 2009 or mine that we separated in 2012, there needs to be a settlement of property matters between us. I say that I had made significant contributions over the life of our relationship to the home that we shared both in my role as a homemaker and parent and via my renovations and conservation and improvement of the property.
The final affidavit sworn and filed by Mr Randall on 30 October 2015 addresses parenting issues and adds nothing to his previous evidence on the issue currently before the court.
At trial, Mr Randall tendered two cheque-books for an account in his name, the butts for which appear to cover the period 5 December 2009 to 10 March 2011 (“Book 1”) and 11 July 2012 to 11 February 2013 (“Book 2”).
Those cheque butts show 21 cheques made out to “Ms Pavot” for “home loan, bills, children” at roughly monthly intervals during that period. The cheques are written for amounts of between $800 and $1500, although most are for the sum of $1000.
It was Mr Randall’s evidence at trial that there were no cheque butts for the period before Ms Pavot left the Property S property because he had paid Ms Pavot such sums in cash up to that time.
There is no discernible difference on the cheque butts between payments made from Book 1 and those made from Book 2. That is, there is no obvious difference on the face of the cheque butts between the period when Mr Randall says the parties were still in a de facto relationship (Book 1) and the period when on his own evidence he accepted that the parties were separated (Book 2).
In other words, there is no evidence of Mr Randall making any traceable payments to Ms Pavot before she left the Property S property in August 2009 and any payments evidenced after that date continued without change until well after the relationship had ended on either party’s evidence.
On its own, that evidence is not determinative of the date of separation, although when added to other evidence it is supportive of the date of separation having been some time before December 2009.
In his Evidence-in-Chief, Mr Randall was directed to paragraph 19 of his affidavit sworn 26 August 2013 where he referred to “post separation” renovations to the Property S property. When asked what he meant by that term he said at first that it referred to the period 2004 to 2014 during which he had performed renovation works on the property but he then corrected himself, saying that “post separation” meant the period after August 2009 when Ms Pavot had been living at her father’s home.
During her cross-examination of Mr Randall, Ms Pavot showed him four separate documents which she then tendered into evidence.
The first was a letter from the (then) Child Support Agency dated 15 February 2010 advising Ms Pavot that her application for child support for X and Y had been accepted and the amount payable by Mr Randall calculated. Mr Randall accepted the authenticity of that document.
The second document is a file note and care plan dated 24 March 2012 taken from records obtained under subpoena from (omitted) Hospital. That document refers to Mr Randall by name and date of birth and, inter-alia, it states that Mr Randall had “separated 3 yrs ago” and that he was “paying off the mortgage and paying her $1000 a month in child support”.
When that document was put to Mr Randall he conceded that he had attended at the (omitted) Hospital on that date and that he had informed the doctor that he was separated, although he denied having said that he had been separated for three years.
The third document, also from (omitted) Hospital, is in the same form as the second and is dated 5 September 2011. That document states Mr Randall’s social history as “home alone – recently separated from wife”.
It was Mr Randall’s evidence that he could not recall having attended at the (omitted) Hospital on 5 September 2011 and his response when it was put to him that he had in fact attended on that date and that he had told the attending doctor that he had been recently separated was evasive and unsatisfactory.
The fourth document tendered by Ms Pavot is a letter from the (omitted) Hospital dated 16 August 2011. The letter is addressed to Dr J, Mr Randall’s general practitioner, and refers to Mr Randall by name, address and date of birth. The letter states that Mr Randall is “a single man and has children and broke up with his partner about two years ago.”
Under further cross-examination Mr Randall said that he did not recall a telephone conversation between him and Ms Pavot in February 2010 during which she says she told him that their relationship was over, repeating his affidavit evidence that Ms Pavot had moved to her father’s home in order to supervise Ms Pavot, that she had then suffered an accident around Christmas of 2009 and that she had told him that it was easier for her to stay there because of her injury.
It was his evidence that Ms Pavot had continually told him that their separation was temporary and that he had spent Christmas and birthday celebrations at the home of Ms Pavot’s father in 2009 and 2010.
When referred to Ms Pavot’s affidavit material which sets out the alleged February 2010 conversation in more detail, Mr Randall insisted that he did not recall that conversation.
Under further questioning, Mr Randall conceded that his affidavit evidence was contradictory in that he had sworn in August 2013 that he accepted that the relationship was over in late 2009 but was then very firm in rejecting any suggestion that he knew the relationship was over when he received documents from the Child Support Agency in January 2010.
When questioned by his counsel in re-examination about the documents subpoenaed from (omitted) Hospital, Mr Randall suddenly recalled that he had mentioned that he and Ms Pavot were living in separate houses when he attended the hospital on 5 September 2011, but insisted that the de facto relationship between him and Ms Pavot was on foot at that time despite that fact.
It was his evidence that he had spent Christmas lunch with Ms Pavot and the children at the home of Ms Pavot’s father in 2009, and that he had then travelled to his own parents home where Ms Pavot and the children had later joined his family for a meal. He said he had also spent Christmas lunch with Ms Pavot, her father, her daughter, his parents and the parties’ children in 2010 and 2011.
Overall I found Mr Randall be a somewhat unconvincing witness. He appeared to selectively recall certain events when they supported his case and not to recall others when they supported Ms Pavot’s version of events.
The equivocal nature of his pleadings did not assist the Court in understanding his position before trial and his oral evidence, while making his claim clear, did not provide an explanation for the contradictions inherent in it.
I note at this point that it is perfectly possible for a person to believe that he or she is engaged in a de facto relationship when, as a matter of law, he or she is not. The corollary is also true: it is possible for a person to believe that he or she is not engaged in a de facto relationship when, as a matter of law, he or she is.
The Respondent’s Evidence
Ms Pavot’s evidence is found in the four affidavits she swore during the proceedings and in her oral evidence at trial and in documents tendered during trial.
Her Response to Initiating Application (Family Law) filed 2 August 2013 seeks only one property order, that being:
1. That the Application for Property Orders filed by the de facto Father (sic) on 28 June 2013 be dismissed.
It has been her consistent evidence throughout the proceedings that the parties commenced cohabitation in December 2003 and separated finally in 2009 when she says, in her first affidavit sworn on and filed to August 2013, “the children and I moved in with my father.”
Ms Pavot says that this was the fourth and final separation period there had been in the relationship between her and Mr Randall.
It is her evidence that she purchased the Property S property in January 2002 from her sister for $178,000 having lived at the property since July 2000.
It is her evidence, contained in her first affidavit and disputed by Mr Randall, that she had not stayed “a single night” at the Property S property since August 2009.
She then goes on to say, in paragraph 8.9:
I agree that the children and I have had occasional dinners at the Property S home for the birthdays of the children or other special occasions. The applicant and I did not attend any social engagements together and nor have we shared domestic duties or intermingled finances. Since August 2009, we have attended one or two school events together however these were events that parents, even those who have separated, would be likely to attend together.
She specifically denies having moved into her father’s home “simply out of convenience or to assist him with his health.” She points out that her mother had died in 2007 and her father did not have his stroke until after she had moved into his house and in any event was well able to take care of himself.
Ms Pavot says she and the children left the Property S property in August 2009 because she was separating from Mr Randall on a final basis as a result of family violence and “I had no other place to go given the Applicant refused to leave the Property S property. I sought the assistance of the police in having the Applicant removed from the home however they were unable to assist me.”
She says that any communications between the parties after August 2009 was in relation to parenting issues and not in continuation of the de facto relationship.
She specifically denies that her accident at her father’s home, which occurred in December 2009, was a reason why she remained living there saying “the reason I remained with my father is because the applicant and I had separated.”
It is her evidence that: “The applicant and I have had sex on approximately eight or nine occasions since August 2009 however I felt pressured to engage in sex with him as he would otherwise become agitated and pressure me in relation to parenting issues.”
Later in the same affidavit she says that Mr Randall “regularly pressured me for sex and was verbally and emotionally abusive towards me if I refused”.
In support of her evidence at that stage of proceedings Ms Pavot annexed to her initial affidavit a copy of the Child Support Agency letter dated 15 February 2010.
In her second affidavit, sworn 7 and filed 8 October 2013, Ms Pavot said that she had applied for a child support assessment in November 2009 because she had separated from Mr Randall on a final basis.
In that affidavit, she quotes text messages from Mr Randall in July 2010 which indicated that he understood that she did not live at the non-awarding property anymore and that she considered him to be a tenant of the property.
She repeats her denial of staying overnight at the Property S property since August 2009 while conceding that the parties had “very occasionally engaged in sexual relations however I felt pressured to do so that the father would not upset the children”.
She denies continuing to participate in activities together “other than on a rare occasion the benefit of the children”, and notes that Mr Randall had accepted in his affidavit sworn 26 and filed 28 August 2013 that the relationship had ended by November 2009.
In relation to payments she had received from Mr Randall since late 2009 Ms Pavot says the following:
Since separation, the father has paid various monthly amounts to me ranging from $800-$1500. I regard these payments as rent for his occupation of the property. He pays no child support to me in additions (sic) to these payments.
She says that by her calculation Mr Randall had paid her a total of $23,500 in the four years since November 2009, an average of $510 per month. It is her evidence that the mortgage repayments alone are $1377 per month, and that she had paid all utility accounts, council rates, home insurance costs and telephone bills since August 2009.
Ms Pavot’s trial affidavit was sworn and filed on 22 October 2015. In that affidavit, she again asserts that the relationship between her and Mr Randall ended in August 2009 when she and the children left the Property S property and went to live with her father.
In support of that assertion she says that she notified Centrelink on 2 November 2009 that she was no longer in a de facto relationship.
She then again sets out her evidence in relation to her application for child support at about that time, the text messages referred to in paragraph 112 above and the evidence taken from her inspection of subpoenaed documents provided by (omitted) Hospital.
Ms Pavot repeats her evidence in relation to the sexual contact she had with Mr Randall after August 2009, saying that he was regularly verbally and emotionally abusive when she refused him and that he had applied emotional pressure on her through numerous text messages and calls to her mobile and home phones.
She again notes his concession in his affidavit sworn 26 and filed 28 August 2013 that the relationship had ended when she had applied for child support in late 2009.
Ms Pavot then states the following, which she says refers to documents subpoenaed from the Department of Corrections, those documents having been prepared in 2012:
52.d. The following is a transcript of a “Statement of Material Facts Relevant to the Charges” that describes the Applicant’s assault on my father: “the accused and Ms Pavot had previously been in a relationship with two children X and Y Approx 2-3 years ago this relationship ended with Ms Pavot and the children moving out of the family residence and into her father, Mr C’s residence situated at (omitted). Contact had been maintained throughout this time between the accused and Ms Pavot regarding custody access to the children.
Ms Pavot acknowledges that in the first week after she left the Property S property Mr Randall would visit her and the children at the (omitted) property for dinner.
However, she then says that after that first week, she realised that this separation was final and that she could no longer live with Mr Randall. She says that she advised him of that fact at the time and told him that it was important that the parties’ separation did not have a negative impact on the children.
She says she clearly recalls a telephone conversation in February 2010, after Mr Randall’s child support obligations had been clarified, during which she told him that he would need to “move on” as the relationship was over.
It is her evidence that since August 2009 the parties had not attended social engagements together, nor shared domestic duties, nor intermingled finances. Ms Pavot says that she and Mr Randall had attended “one or two school events” together but that those events were those to which all parents, including those who had separated, were invited.
Under cross-examination at trial, Ms Pavot, who I note was self-represented, was steadfast in her adherence to her affidavit evidence although she did concede that the reason she gave Mr Randall for moving to her father’s home in August 2009 was that she needed to supervise Ms Pavot while her father was away. She did not tell Mr Randall the relationship was over before she and the children left the Property S property.
She acknowledged that Mr Randall and his parents had attended at her father’s home on Christmas Day 2009 and 2010 but clearly stated that Mr Randall and his parents were present as the children’s father and grandparents and not as her partner and parents.
She denied that she and Mr Randall had spent Christmas Day 2011 together, saying that she had dropped the children at the Property S property on that day so that he could take them to his parents’ place to celebrate Christmas.
Similarly, Ms Pavot acknowledges that she and Mr Randall celebrated Y’s birthday in (omitted) 2009 and X’s birthday in (omitted) 2010 but that they had not celebrated either child’s birthday together since. She insisted that Mr Randall had been invited to those occasions as the children’s father and not as her partner.
In relation to the sexual contact she had with Mr Randall after August 2009, Ms Pavot said that that contact had happened about six times in circumstances where Mr Randall had invited her to dinner and then harassed her and threatened bad behaviour in relation to the children if she did not consent. Ms Pavot said that she consented to that contact because she “just got tired of it”. It was her evidence that the last time the parties had had sex was in 2011 although she could not recall the exact date. She denied that had been in January 2012.
She denied that she and Mr Randall had discussed her moving back to the Property S property other than in the context of Mr Randall vacating in the property so that she could do so. Ms Pavot said she always intended to move back to the Property S property and that was why she had not removed all her belongings and that she never intended for Mr Randall to remain living there. She said that after August 2009 Mr Randall changed the locks and she no longer had access to the property.
When asked about the injury resulting to her leg from the accident at the (omitted) property in December 2009, Ms Pavot stated that far from it being easier for her to remain there while receiving home nursing treatment, it would have been more convenient for her to have been at the Property S property if she and Mr Randall had remained in a relationship at that time.
I found Ms Pavot to be an impressive witness. She was well prepared and produced evidence to support her claims where appropriate.
In closing submissions, counsel for Mr Randall submitted that it was simply not credible that the family events, such as Christmas and birthday celebrations which occurred after August 2009 were post separation events.
She says that Mr Randall’s evidence of an ongoing relationship was supported by his attendance at those events and by the continued existence of a sexual relationship between the parties.
Counsel said that Mr Randall had remained in the Property S property for several years after August 2009 and that Ms Pavot would never have let him remain in her home if the parties been separated.
She said that I should prefer the evidence of Mr Randall over that of Ms Pavot.
In her closing submissions, Ms Pavot said that the only reason Mr Randall had attended at the children’s birthday and Christmas celebrations was because she had invited him to share those events with the children and not because her relationship with him was intact.
She said that she had made clear to Mr Randall that the relationship was over in the second week after she and the children left the Property S property and that she had impressed on him her determination that the children should not suffer or be impacted by their parents’ separation.
She said that if he construed invitations to family events as indicating a continuation of the relationship then he was simply wrong.
She said she had explained why some of her clothes and her furniture remained at the Property S property and why she had consented to sexual contact with him after August 2009.
She referred again to the three separate occasions upon which Mr Randall appeared to have told doctors at (omitted) Hospital that he was separated in the years after Ms Pavot left the Property S property and again referred the court to the evidence in his affidavit sworn 26 and filed 28 August 2013 which concedes that the relationship ended in late 2009.
Considering all of the above evidence and returning to the provisions of section 4AA of the Act, I find that the parties were not engaged in a de facto relationship as defined by that section after August 2009 in that I am not satisfied that they were “living together on a genuine domestic basis” after that date.
I therefore find that Mr Randall's Initiating Application filed 28 June 2013 and his Amended Initiating Application filed 28 August 2013 were filed out of time and prima facie must be dismissed under section 44(5) of the Act, as that section states that any application for property settlement between de facto partners must be filed within two years of the breakdown of the relationship.
Has Mr Randall proven hardship?
However, subsection (6) of section 44 states that the court may grant leave for a party to make such an application out of time if it would cause hardship to a party or to a child if leave were not granted.
Mr Randall is the Applicant in these proceedings. Therefore the onus is on him to prove that, on the balance of probabilities, he would suffer hardship if I did not grant him leave to proceed out of time.
Counsel for Mr Randall referred me to several authorities in relation to the issue of hardship and what it means in section 44 of the Act.
Most of those authorities come from the early years of the operation of the Act, and relate to section 44(4), which deals with applications brought more than one year after a divorce is finalised. These cases are relevant to the present proceedings because section 44(6), which was inserted into the Act with operation from 1 March 2009 to cover property applications arising out of de facto relationships, is in identical terms to section 44(4).
Therefore, any reference in the pre-2009 authorities to section 44(4) is taken to apply to section 44(6), and for convenience I will simply make reference to “the subsection” when discussing its provisions.
The first of the authorities to which the court has been referred is In the Marriage of Whitford[1] (“Whitford”), where the Full Court of the Family Court of Australia (“the Full Court”) held that the loss of the right to institute proceedings is not the hardship to which the subsection refers. The court said that the subsection is concerned with the consequences of the loss of that right and not the loss of the right itself.
[1] In the Marriage of Whitford (1979) 4 FLR 754
In other words it is not enough for Mr Randall to say that the hardship he would face if I do not grant him leave to proceed out of time would be that he would not be able to apply for a property settlement. He must prove that the consequences of not being able to apply for a property settlement would cause him hardship.
In Whitford the court said the following at page 759:
The requirement, that the court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the court is concerned is not whether the applicant or a child is suffering hardship but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
In that case the Full Court held that the meaning of “hardship” is “akin to such concepts as hardness, severity, privation, that which is hard to bear, or substantial detriment.” That definition expands that given by Strauss J in MacKenzie and MacKenzie[2] (“MacKenzie”) and I note that Strauss J was a member of the Full Court in Whitford, whose decision was handed down a month after that in MacKenzie.
[2] MacKenzie & MacKenzie (1978) 4 FLR 374
Further, the Full Court made clear in Whitford that if the court is satisfied that hardship would be caused if leave were not granted, the decision to grant or refuse leave to proceed out of time is a matter for the court in the exercise of its discretion. In other words the subsection prevents (or in the words of the Full Court “inhibits”) leave being granted unless the case for hardship has been proven, but it does not mandate that leave must be granted if the court is satisfied that hardship would be caused.
In relation to that issue the Full Court’s view was that the “power should be exercised liberally in order to avoid hardship, but nevertheless in a manner which would not render nugatory the requirement the proceeding should be instituted within a year from the decree nisi”.[3]
[3] In the Marriage of Whitford (1979) 4 FLR 754
Matters which might affect the exercise of the discretion were said to be the length and reasons for the delay in filing an Application, the prejudice occasioned to the Respondent by reason of the delay, the strength and merits of the applicant’s case, and the degree of hardship which might be visited upon the Applicant if leave were not granted.
The delay in issuing proceedings
Mr Randall’s reasons for delaying the institution of proceedings until June 2013 were said to be that he did not believe that the de facto relationship had ended until 2012. As I have said, his affidavit evidence on that issue is contradictory and I have found that he was wrong at law in that belief. Nevertheless, it might well provide a valid reason for the delay.
The prejudice to the Respondent caused by the delay
Between August 2009 and about March 2014, a period of some four-and-a-half years, Mr Randall remained living in the Property S property on his own.
The property was apparently left vacant from about March 2014 to the time of trial more than 18 months later. As far as the court is aware it may still be vacant.
Ms Pavot claimed that the house was left uninhabitable by Mr Randall in March 2014, but she could provide no admissible evidence to support that assertion. Nevertheless, it was her evidence that any work Mr Randall had performed at the Property S property had diminished rather than improved its value. Again, taken at its highest, that evidence could provide a reason why the house has remained vacant for the past two years or more.
I note that Ms Pavot made no application to have Mr Randall removed from the Property S property, either in her Response to his Initiating Application or at any other time during the proceedings. In those circumstances, she can hardly be heard to say that there is prejudice to her in the delay taken by Mr Randall in instituting these proceedings.
The strengths and merits of the Applicant’s case
I must now undertake the task of assessing the strengths and merits of Mr Randall’s case in the substantive proceedings - that is, the strengths and merits of his claim for an alteration of property interests as between him and Ms Pavot under section 90SM of the Act, and again, I can only infer from surrounding matters that that is what he seeks.
In Sharp & Sharp[4] (“Sharp”), the Full Court referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor[5] as confirming that the time limits set out in the subsection are to be applied as a general rule. McHugh J said in that case, at 551 - 553:
[4] Sharp & Sharp [2011] FamCAFC 150
[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. [footnotes omitted]
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated...
A limitation provision is the general rule; an extension provision is the exception to it [...]
Those principles were adopted as applying to the subsection in Sharp.
Lindenmayer J found in In the Marriage of Perkins[6] that a claimant for hardship under the subsection must show that if the evidence of his claim is accepted there is a reasonable prospect of the substantive claim being successful.
[6] In the Marriage of Perkins (1979) 4 FLR 634
In In the Marriage of N and SI Jacenko[7], the Full Court found that the issue to be determined in cases like these is whether a prima facie case has been made for the substantive claim on the Applicant’s evidence as presented to the Court.
[7] In the Marriage of N and SI Jacenko (1986) 11 FLR 341
In In the Marriage of RW and PB Althaus[8] (“Althaus”), the Full Court said that a court deciding the issue of hardship for the purposes of the subsection is not required to hold a detailed hearing on the merits of the Applicant’s case, but only to decide whether there is a reasonable claim to be made.
[8] In the Marriage of RW and PB Althaus (1979) FLR 169
Nevertheless, in my view, a discussion of the merits of Mr Randall’s case must necessarily examine the process by which those merits would be decided in a trial of the substantial issues.
The first exercise to be undertaken in determining such a claim is to determine whether it is just and equitable in all the circumstances to make any order altering the interests of the parties to any property they own. That exercise is mandated by section 90SM(3) of the Act which states:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In Stanford v Stanford[9](“Stanford”), in discussing the identically worded s79(2) in relation to property of a marriage, the High Court said the following at paragraph 35 and following:
35. It will be recalled that s79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two subsections are not to be conflated. In every case in which a property settlement order under s79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to altering the interests of the parties to the marriage in the property”. [Emphasis added.] The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
[9] Stanford v Stanford [2012] HCA 52
In this case, the Property S property, the only asset of any real value owned by either of the parties, is registered in the sole name of Ms Pavot and was owned by her for more than a year before the parties began living together. The mortgage too is registered in her sole name.
In other words, Mr Randall holds no legal title to that property and the question of any equitable interest he may have in it is addressed later in these reasons.
The High Court went on to say:
38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth (1956) 98 CLR 228 (at 231-2), Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 (at 257) the judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.
39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to and or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law” (Hepworth v Hepworth (1963) 110 CLR 309 at 317). Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses” (Hepworth at 317). The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is “just and equitable” is not answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down” (Watson at 257). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
When these “three fundamental principles” are applied to the facts of this case, I interpret the High Court to be saying that because he holds no legal title to the Property S property, Mr Randall would have to show that he has an equitable interest in that property before the court could be satisfied that it is just and equitable under s.90SM(3) to alter Ms Pavot’s current legal entitlement to it.
Equitable interests in real property usually arise through trust arrangements, whether express or implied or imposed by law.
There is no evidence before the court of an express trust having been executed in this matter.
If Mr Randall seeks to prove a constructive trust, he would need to show:
·that he had acted to his detriment in reliance on a promise made by Ms Pavot such that it would be unconscionable for Ms Pavot to deny that she holds the property on trust for herself and Mr Randall[10].
or
·that he and Ms Pavot had engaged in a joint enterprise that had failed and that it would be unconscionable for Ms Pavot to deny that she holds the property on trust for herself and him[11]
or
·that there was a common intention between the parties that the property was to be jointly owned.
[10] Muschinski v Dodds (1985) 160 CLR 583; Calverley v Green (1984) 155 CLR 242; Giumelli v Giumelli (1999) 196 CLR 101; Friar & Friar [2011] FamCAFC 71.
[11] Baumgartner (1987) 164 CLR 137
Nowhere in his affidavit evidence, nor in his oral evidence given at trial, does Mr Randall claim or assert that Ms Pavot ever promised him anything in relation to the ownership of the Property S property. Nor does he say that he and Ms Pavot had engaged in a joint enterprise that had failed, nor even that there was a common intention between him and Ms Pavot that the property was to be jointly owned.
His evidence merely asserts that he made financial and non-financial contributions to the maintenance and improvement of the property and he bases his claim, such that it is, solely upon those contributions.
However, as stated in the above quoted passage from paragraph 40 in Stanford, there is no assumption at law that contributions to property can found a determination that it is just and equitable to alter the existing property interests of the parties.
Therefore, Mr Randall being unable to show an equitable interest in the Property S property, I cannot find that it is just and equitable in all the circumstances to alter Ms Pavot’s interest in that property.
If I am wrong on that point as a matter of law, I note that in order to find hardship, I must consider the strengths of the applicant’s case.
At trial, Mr Randall tendered a bundle of receipts which he said were from expenses he had incurred in performing works at the Property S property between April 2008 and March 2014. The total sum said to have been so expended was $7537.85 over that six year period.
No sworn valuations were ever filed in these proceedings in relation to the Property S property. The only evidence available is that of Ms Pavot, unchallenged by Mr Randall, that she purchased the property from her sister for the sum of $178,000 in 2002.
It is therefore impossible to quantify the significance of the works Mr Randall claims to have performed at that property.
In those circumstances, even if I consider Mr Randall’s parent and homemaker contributions to the Property S property over the course of the relationship, I could not find that his contributions to the property were significant enough to warrant an alteration of Ms Pavot’s interest in it. That is especially so when I consider the significant disparity in the parties’ superannuation entitlements.
The payments he made to Ms Pavot after November 2009 did not cover the mortgage, and he characterised those payments as child support in any event. He cannot have it both ways – that is, he cannot say that the payments he made to Ms Pavot were both mortgage payments and child support payments. That would be double-dipping.
In addition, it is clear that the parties had text message conversations that indicated that Ms Pavot saw the payments as rent and that Mr Randall knew that that was her view.
What that means is that Mr Randall is unlikely in my opinion to succeed in persuading the court to alter Ms Pavot’s interest in the Property S property. This in turn means that he has failed to prove that he would be caused hardship if I were not to grant him leave to proceed with his Applications out of time.
The degree of hardship alleged
Mr Randall’s evidence was that he is working full time and has been doing so essentially since soon after separation almost seven years ago and according to his Financial Statement sworn and filed 30 October 2015, he earns about $60,840 per year. There is no evidence that he is currently suffering any financial distress whatsoever.
He has repartnered and he spends time with the children of this relationship pursuant to the final parenting orders made 4 November 2015.
He has superannuation entitlements in the amount of $20,243 according to his Financial Statement sworn and filed 30 October 2015 and there is no application before the court to deprive him of any part of those entitlements.
Because there is no valuation of the Property S property, there is no possibility of quantifying the hardship Mr Randall might suffer if he is not granted leave to proceed out of time and indeed, he has not sought to do so. He has merely asserted that he would suffer hardship.
Conclusion
In all of the above circumstances, I am not satisfied on the balance of probabilities that Mr Randall would suffer hardship if I do not grant him leave to proceed out of time and therefore I decline to grant him that leave.
S.90RD of the Act sets out the law in relation to the making of declarations about the existence of a de facto relationship and I will make a declaration under that section that the de facto relationship between Mr Randall and Ms Pavot was in existence between December 2003 and August 2009. As a result of that declaration I will make an order dismissing Mr Randall’s application for property settlement as having been brought out of time.
I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 30 June 2016
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Limitation Periods
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Jurisdiction
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Procedural Fairness
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