RICCI & JONES
[2010] FMCAfam 1425
•17 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICCI & JONES | [2010] FMCAfam 1425 |
| FAMILY LAW – De facto property – parties merely dating – short-term association – summary dismissal. |
| Family Law Act 1975, ss.4AA, 4AA(2), 90SB Federal Magistrates Act 1999, s.17A Federal Court of Australia Act 1976, s.31A Federal Magistrates Court Rules 2001, r.13.10 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; (2006) 236 ALR 720; [2007] ALMD 1936; [2006] FCA 1352 Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Moby v Schulter [2010] FamCA 748 Spencer v Commonwealth (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233; [2010] ALMD 7244; [2010] HCA 28 |
| Applicant: | MS RICCI |
| Respondent: | MR JONES |
| File Number: | MLC 5237 of 2010 |
| Judgment of: | Riley FM |
| Hearing date: | 17 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stavris |
| Solicitors for the Applicant: | Fong & Co |
| Counsel for the Respondent: | Ms K.M. MacMillan SC |
| Solicitors for the Respondent: | Schetzer Constantinou |
THE COURT ORDERS THAT:
The matter be adjourned to 2 February 2011 at 9.45am for interim hearing.
Order 6 of the orders made on 15 June 2010 is discharged.
THE COURT REQUESTS THAT:
The Australian Federal Police remove the name of [X] born [in] 2009 (“[X]”) from the airport watch list at all points of international arrival and departure in Australia.
THE COURT ORDERS THAT:
The applications in paragraphs 1 and 2 of the final orders sought and paragraphs 1 to 6 (inclusive) of the interim orders sought in the amended initiating application filed on 5 October 2010 be dismissed.
The respondent file and serve any written submissions and any affidavit in support regarding his application for costs and any response and any affidavit relating to children’s issues on or before 17 January 2011.
The applicant file and serve any written submissions and any affidavit in support regarding the respondent’s application for costs on or before 31 January 2011.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
IT IS NOTED that publication of this judgment under the pseudonym Ricci & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5237 of 2010
| MS RICCI |
Applicant
And
| MR JONES |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for summary dismissal of a proceeding that has been brought by the applicant seeking property settlement and certain related orders. The applicant claims that she was in a de facto relationship with the respondent. They have never lived together, but do have a child. Accordingly, there is no need to determine whether the de facto relationship lasted two years. The question is simply a question under a s.4AA of the Family Law Act 1975 (“the Act”) about whether at any time the parties were in a de facto relationship.
The test for determining a summary dismissal application is set out in rule 13.10 of the Federal Magistrates Court Rules2001, that rule provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Section 17A of the Federal Magistrates Act 1999 is to similar effect. It provides as follows:
(1)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Section 17A of the Federal Magistrates Act 1999 is in the same terms at s.31A of the Federal Court of Australia Act 1976. That section was considered by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146. At paragraphs 42 to 47, his Honour said that:
[42]I am of opinion that, properly construed, s 31A(2)(b) requires a person moving a motion for summary disposal (the moving party) to satisfy the court that there is no reasonable prospect of the party claiming relief (the plaintiff) successfully prosecuting the proceeding or the part of the proceeding in question. Experience shows that there are cases which appear to be almost bound to fail yet they succeed. As Dixon CJ once said (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20 ; [1962] ALR 775 at 781):
Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told.
[43]Brennan CJ and McHugh J applied that observation in Jackamarra v Krakouer (1998) 195 CLR 516 ; 153 ALR 276; [1998] HCA 27 at [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having “no reasonable prospect of successfully prosecuting a proceeding” has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell (1947) 75 CLR 125 at 130–1; [1948] 1 ALR 85 at 87–8, approving the following statement from the dissenting judgment of Latham CJ (Hocking v Bell (1945) 71 CLR 430 at 441–2):
If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. [Emphasis added] [See also Swain v Waverley Municipal Council (2005) 220 CLR 517 ; 213 ALR 249 ; [2005] HCA 4 at [9] per Gleeson CJ, [128]–[131] per Gummow J and [203], [208]–[209] per Kirby J; see also at [33]–[34] per McHugh J.]
[44]In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. And, one must be mindful that in Hocking v Bell at CLR 487, Dixon J said that, in effect, every judge who had heard the matter (through four trials, two Full Court appeals and, to that point, the appeal to the High Court) would have formed the view that the plaintiff should have failed had they been able to decide the facts, yet the Privy Council restored the second jury verdict in her favour and so concluded the litigation. This raises a very real question, as to what reasonable prospects are for present purposes.
[45]I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125 ; [1948] 1 ALR 85, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened “the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”.
[46] In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154–5; 141 ALR 353 at 356–7; [1997] HCA 1, Dawson, Gaudron and McHugh JJ said that a party should not be shut out from litigating an issue which was fairly arguable and that the power to grant leave to amend should be exercised with that in mind. They observed (at CLR 154; ALR 356) that “the ultimate aim of a court is the attainment of justice”. Obviously, s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section. In granting leave to appeal on a decision involving the application of s 31A, Wilcox J observed in IV v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] that it was arguable that the effect of s 31A was that there could be summary judgment for an applicant “not with standing the possibility that the applicant’s case will break down at trial; in other words, it is now not enough for a party resisting a summary judgment application to seek merely to put the other side to proof” (his Honour’s emphasis).
[47] GE Capital also argued that s 31A required the court to dismiss a claim or defence based on a predictive assessment of its prospects, even though it may be possible that, had the matter gone to trial, it would have succeeded. I am of opinion that this is not how the section operates. It is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. The purpose of the enactment is to enable the court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. It is a key feature of the judicial power under Ch III of the Constitution that the court be in a position to, and in fact does, quell a controversy. The exercise of the judicial power to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success would defeat, not advance, the ends of justice.
In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416, Jacobson J summarised the conclusions in Boston Commercial as follows at [30]:
· In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
· There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at final hearing.
· Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
· Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened.
The High Court has looked at the issue of summary dismissal recently in the case of Spencer v Commonwealth (2010) 84 ALJR 612. At paragraphs 24 and 25 the Chief Justice and Gummow J said:
[24]The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; (1983) 57 ALJR 621; [1938] HCA 25 said:
The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following (at [57]):
…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways,51 but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A.52 That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
[25]Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
51 Dey at CLR 91; ALR 347–8 per Dixon J; General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 130 ; [1965] ALR 636 at 639 ; [1964] HCA 69 per Barwick CJ.
52 In A v Essex County Council [2010] 3 WLR 509, the criterion of “real prospect of success” was variously equated to whether the plaintiff “could succeed at a trial”, whether there was a “triable issue” and whether there was the “least doubt”: at [44] per Lord Clarke of Stone-cum-Ebony JSC, [119] per Baroness Hale of Richmond JSC, [133] per Lord Brown of Eaton-under-Heywood JSC and [163] per Lord Kerr of Tonaghmore JSC.
Their Honours emphasised that the power to terminate a proceeding summarily must always be attended with caution. The power must only be exercised if there is no real question to be tried. Their Honours emphasised that summary dismissal is not available simply because the court has formed the view that the applicant is unlikely to succeed on a factual issue.
The respondent says, in this case, that even accepting all of the facts as they have been stated by the applicant, the court could still not, on any view, be satisfied that in this case there was a de facto relationship. The applicant relies on a number of documents. However, the respondent also drew the court’s attention to an affidavit sworn by the applicant in connection with an earlier application that she made to the court to be permitted to obtain a passport for the child of the relationship without the consent of the father. The child is [X] who was born [in] 2009 (“[X]”).
The applicant filed an affidavit on 10 June 2010 in support of her application to get a passport for [X] without her father’s consent. In that affidavit, the applicant said that she and the respondent met in July 2008 and:
We did not live together. The association ended after 7 months after I became pregnant with [X].
She also said:
[Mr Jones] remained absent throughout the pregnancy and has not responded to several invitations to meet [X], although he did consent to signing the birth certificate and this was facilitated by a third party.
The applicant said in her affidavit filed on 10 June 2010 that she last spoke to the respondent on or around 5 January 2010 when she requested that he attend [X]’s baptism on [date omitted] 2010. The applicant said that the respondent declined to respond and she had not spoken to him since that time.
The applicant also filed, in support of her property application, an affidavit sworn by her on 29 September 2010. In that affidavit she said that she met the respondent on 28 July 2008, through a real estate agent. She said that she had been renting a house and the owners of the property had arranged for the respondent to do some painting in the house.
She said that the respondent befriended her and offered to assist with her house move, including using his employees and his van to transport her goods. She said that she accepted his help. She also said that, over the next seven months, their relationship progressed. She said that the respondent was vigorous in his pursuit of her, telephoning her several times a day, and insisting on meeting for lunch or breakfast every other day.
The applicant said that the respondent seemed to have a large amount of free time, and was often with her. She said that she was aware, at this stage, that he was in a de facto relationship with a woman by the name of Ms P, but the respondent said that they were living separate lives. The applicant said that she was adamant not to develop an intimate relationship with the respondent while he remained in the de facto relationship with Ms P. The applicant said that the respondent was frustrated to the point of anger, but only seemed to become more determined.
The applicant said that, in mid‑December 2008, the respondent said that he was now, officially, a single man, having broken up with Ms P. The applicant said, at that point, that she succumbed to a sexual encounter with the respondent. She said that she discovered, in the new year that she was pregnant with [X]. She said that the respondent was initially supportive, but soon became non‑communicative and angry and aggressive. She said that they continued to see each other, but, after six weeks, the respondent pressured her to have the pregnancy terminated. The applicant also said that the respondent indicated that he would look after the applicant and [X], and that he had the capacity to do so.
The applicant said that, during her relationship with the respondent, he told her about extensive investments that he had in Singapore, including a share portfolio. She said that he urged her not to tell anyone, in case his former wife, Ms J, found out, as he was still in a property dispute with her. The applicant also explained that the respondent in this case is the grandson of [name and occupation omitted]. The applicant said that she did not know exactly where the respondent was living as at the time she swore her affidavit in September, but she believed him to have last lived in [S].
There was also some evidence given by the applicant that the matrimonial home of the respondent and his former wife had been sold for $4.5 million. The applicant explained that the respondent had three older children from his marriage who attended various private schools in Melbourne. The applicant made other statements about the very considerable wealth of the respondent and his family.
The applicant has also filed three documents that are described as “statements.” They do not have the court heading and there may be some doubt about whether they have been properly sworn. However, for the purposes of the summary dismissal application, the respondent accepts that the court can accept the facts stated in them. Obviously, if this matter goes further, there may be some dispute about the matters raised in those statements.
In any event, the first of them is a statement made by the applicant herself. It seems to be dated 10 December 2010. She elaborates somewhat on her relationship with the respondent. She says that they met in July 2008, when she was renting a property. She says, between 28 July 2008 and 8 August 2008, the respondent was a regular visitor and that he brought boxes and tape to assist her with moving house. She says they went for dinner at the local pub, and he spent about an hour talking to her.
The applicant said that the respondent returned every day and called several times a day to check on progress and see if she needed assistance. She said they had lunch several times in [street omitted] in [S]. The applicant said that she moved house over 5, 6, and 7 August 2008, and the respondent assisted her with the move. She said that, after she moved into her current premises, the respondent continued to visit twice a day, in the mornings and late afternoons.
The applicant said that the respondent attended to various domestic maintenance matters around her house, including some joinery work in her pantry, spraying some pest control substance in her loft, buying her a spare mobile phone charger, providing grocery items, purchasing garden umbrella bases and potting mix, purchasing and installing a padlock on her side gate, and unloading and installing a nine foot Christmas tree. She said that the respondent would regularly bring coffee and sandwiches, and, often, two bottles of wine in the evening, white for her and red for him. She said that, during these visits, she would be preparing dinner for [Y], who is the applicant’s older child, or assisting her with her homework.
The applicant said [Y] became very accustomed to the respondent and his presence in their home. Sometimes, they would order pizza and eat together on the sofa. She said that often the respondent would leave while she was preparing [Y] for bed and, after she had settled, the respondent would return to her home and would remain until late in the evening. She said they would talk, watch television and behave in a manner typical of a burgeoning romantic relationship. She said that they often met for mid morning coffee or breakfast. She said the respondent introduced her to his good friend Mr H. They went to various cafes in [streets omitted]. She said they frequently had impromptu lunch dates at the respondent’s instigation. She said her father eventually met the respondent on a Saturday morning at a café. She said they shopped together numerous times in the city and she accompanied him to a bike shop in [omitted] Street to buy a new bike for his son.
The applicant said that she and the respondent went for drinks on various occasions. She said that when she was staying at her parents’ house in the city on weekends, he would often call late on a Friday or Saturday to arrange to meet in a lane outside the front of her parents’ building. They would talk mostly about the respondent’s problems with his ex-wife Ms J and his children. Sometimes they would go into [street omitted] for a late supper. At this stage, the respondent was still living with his de facto wife, Ms P, and he would say how much he hated going home to her because they had constant arguments and, in any event, she was sometimes not there for days on end. The applicant said that she counselled the respondent on the values of employing honesty to deal with the situations he was in and felt that he appreciated her support and advice.
The applicant also said that the respondent would often visit Crown Casino and she believed him to be a regular gambler though she also believed he was able to moderate his habits. She said she had been to the casino with him on occasion.
The applicant said that she attended her friend Ms R’s birthday party with the respondent and that they had various friends and acquaintances in common at the party. She said that they were openly affectionate as a couple. The applicant went on to say that the respondent had constantly flirted with her and pursued a sexual encounter with her. She said that although they had intimate moments she was reluctant to actually consummate the relationship at that stage, largely because she slept with her daughter [Y] in her bed and did not wish to have a man sleeping over.
The applicant also said that she was aware that the respondent was continuing to be in a co-habitual relationship with Ms P and she was not willing to have a sexual relationship with the respondent while that relationship continued. She said the respondent became increasingly frustrated and angry but respected her morality. However, on
20 December 2008 the respondent told the applicant that he had definitely finished with Ms P and that she had moved out. The applicant attended a function that evening. The applicant said that the respondent called her frequently during the course of the evening. Some time after midnight, the applicant left the party with her friend Ms Z and met the respondent in a car park. Eventually they dropped off Ms Z and went to a hotel.
It seems that the applicant and respondent spent the night together on that occasion. The following morning the respondent left to attend to some personal matters. That evening, on 21 December 2008, the applicant was at a friend’s house for dinner. The respondent again called. They again spent the night together until approximately 6am when the respondent again left to attend to some family matters. The applicant said that, on 23 December 2008, the respondent telephoned her and arranged to meet her in the lane near her parents’ house to give her her Christmas gift, being a silver bracelet. She asked him to join them for Boxing Day lunch. However, he did not attend.
On 7 January 2009, the applicant said the respondent contacted her to urgently see her. She said she was going out and he said he would drive her. Apparently, on the way there, the respondent spoke about the two of them beginning to cohabit together in the near future. A few days after 7 January 2009, the applicant discovered that she was pregnant. She immediately told the respondent. He reacted with shock and disbelief. The applicant said that the respondent said that he would support her. She said that she arranged a consultation with an obstetrician on 5 February 2009. She said she and the respondent had lunch together before the appointment and he offered to drive her to the obstetrician but she said she could go by herself.
The applicant said that the respondent waited outside and he showed her affection. The applicant said they continued to see each other and talk about the feasibilities of becoming parents together. However, by late February 2009 the applicant said the respondent had become conspicuously remote and absent. He sometimes, when they did manage to speak, became angry and hysterical and he continued to insist that the applicant have a termination. The applicant said that the respondent remained largely absent over the next few months and their contact was limited to telephone exchanges initiated by the applicant. The applicant said that she was anxious to meet the respondent’s mother but the respondent kept avoiding that prospect.
The applicant said that she was contacted by the respondent in about late July or early August when he said that he wanted to explain his absence. They had dinner at a restaurant and the respondent said he was very regretful for his conduct and showed remorse. He asked the applicant to forgive and forget and expressed the wish to make a proper go of it. They apparently held hands and the respondent displayed open affection.
The applicant said that they spent the following week in much the same vein as they had before the news of the pregnancy. He said he wished to move in together. They went out for dinner several times. The respondent gave the applicant $2000 in cash towards the cost of having the baby.
[X] was born [in] 2009. The applicant said the respondent made no attempt to contact either the applicant or [X]. The applicant eventually contacted the Child Support Agency and attempted to register for child support. However, she was told that she needed a birth certificate. Over a two-week period, in November 2009 the applicant said that she left several messages for the respondent, asking him to sign the birth certificate. Eventually, he did.
The applicant said that she contacted the respondent in January 2010, to ask him to participate in the baptism of [X] but he said that he was going to be out of town. The applicant also asked if he would forward the invitation to the respondent’s mother but he was not forthcoming and that did not happen.
The applicant confirmed that in June 2010, she attempted to contact the respondent to ask him to sign consent forms for a passport for [X]. However, the respondent did not comply and the applicant was obliged to bring proceedings in this court.
The applicant has also provided two statements from friends, one from Ms Z and the other from Ms S. Ms Z essentially said that she met
Mr Jones in July 2008 at the time when he was assisting the applicant to move. Ms Z said they met a few times subsequently for coffee. She was aware that the respondent assisted the applicant with the Christmas tree in December 2008. She was aware that in December 2008 during a party, the respondent telephoned the applicant numerous times and he drove Ms Z home, before going out with the applicant. Ms Z expressed the view that the frequency of the telephone calls and meetings, between the applicant and the respondent, was consistent with people engaged in an intimate relationship.
There was also the statement from Ms S. She says that she met the respondent in October 2008 at a fortieth birthday party attended by the applicant. Ms S said that the respondent was very attentive to the applicant and he treated her with a great deal of affection. Ms S said that she invited the respondent to a barbecue as the applicant’s beau in the second week of January. The respondent did not participate in that function but he did come to the house. Ms S observed him speaking to the applicant for about 30 minutes outside. Ms S said that the applicant told her, on numerous occasions, of the frequency of telephone calls and unannounced visits made by the applicant.
As I have said, the respondent accepts that for present purposes all of the evidence given by the applicant can be accepted. However, the respondent says that, even so, on no view was there a de facto relationship in this case.
The notion of a de facto relationship is defined in s.4AA of the Family Law Act1975 (“the Act”) which is as follows:
Meaning of de facto relationship
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The respondent also relied particularly on a decision of Mushin J in the matter of Moby v Schulter [2010] FamCA 748. At paragraphs 135 to 142, Mushin J reviewed the law in the following terms:
[135]There are a number of appellate and first instance decisions which consider similar legislation in other jurisdictions. I now turn to an examination of the relevant case law.
[136]The authorities suggest that it is appropriate to consider the definition as a whole. In Roy v Sturgeon (1986) DFC 95-031, Powell J considered a similar definition and held (p 75,364):
With respect, it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis” into discrete "elements"', and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
[137]Likewise, in Simonis v Perpetual Trustee Co Ltd (1987) DFC 95-052, Kearney J agreed with the approach of Powell J referred to in the previous paragraph and held (p 75,589):
I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
[138]The approaches of both Powell J and Kearney J quoted above were adopted by the court of Appeal of the Supreme Court of New South Wales in Light v Anderson (1992) DFC 95-120.
[139]While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting "a single composite expression of a comprehensive notion or concept", there are two specific elements of that definition which require individual consideration. The first of those is the concept of "a couple". For the purposes of the definition, "a couple" is constituted by two people, whether of the same or opposite sexes.
[140]The second specific element is the concept of "living together". In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of "living together" does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
[141]Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor.
[142]Riethmuller FM took a similar approach to s 4AA in Baker & Landon, [2010] FMCAfam 280, with which I also respectfully agree.
The essential point for present purposes made Mushin J is the point made in paragraph 140, which I repeat:
The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time they cannot be seen as being in a de facto relationship. However, the concept of living together does not import any concept of proportion of time. In particular it does not require that a couple live together on a fulltime basis, on the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship. It must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
The applicant, in the present case, disputes that the parties need to live together at all. The applicant submits that the various factors set out in s.4AA of the Act are to be considered as a whole. Subsection 4AA(3), specifically, makes it clear that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. That is possibly at odds with what Mushin J has said to the effect that it is necessary in all cases for the parties to have lived together, at least for some period of time, even if not on a fulltime basis.
The applicant relied particularly on s.90SB of the Act, which provides that:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
It was submitted by the applicant that s.90SB(b) meant that the parties did not need to live together for a period of two years. It seems to me that s.90SB does not specifically address the question of living together. All it means is that if there a child, the de facto relationship did not need to have subsisted for a period of two years. The question, in this case, is whether the applicant and the respondent were ever in a de facto relationship at all, even for a day, or, for that matter, for five minutes.
A de facto relationship is clearly not the same as the sort of relationship that people have when they are merely dating or when they are interested in developing a long-term relationship. Counsel for the respondent submitted that many of the aspects of a de facto relationship are similar to those of a friendship and certainly many of the aspects of the relationship between the applicant and the respondent in this case were similar to the relationship that friends would have. To become a de facto relationship an existing relationship between people needs to be a of a particular character and that character is determined by applying the matters set out in s.4AA of the Act.
This is an application for summary judgment. The courts have made it clear that summary judgment should only be given where there is essentially only one possible outcome and where having a trial could not, on any view, change the court’s perception of that one possible outcome. In the present case, there is some dispute about whether it is necessary for the parties to have lived together for them to have been in a de facto relationship. Justice Mushin has expressed a view on that. It is expressed in a case that is not, strictly speaking, binding on this court because it was not a decision on appeal. However, for reasons of judicial comity I would, in normal circumstances, follow that decision unless I was satisfied that it was clearly wrong.
I am not satisfied that it is clearly wrong. It seems to me that the requirements of the legislation are that the parties in the case, having regard to all the circumstances of the relationship, have a relationship as a couple living together on a genuine domestic basis. It seems to me that, with respect, Justice Mushin was correct in his analysis of the legal position. But even if I am wrong about that, it seems to me that a consideration of the various factors in this case also leads to a conclusion that the parties were not in a de facto relationship. I consider in all the circumstances of the case that that conclusion could not alter at a final hearing on the preliminary point about whether the parties are in a de facto relationship. Taking all of the applicant’s evidence as true, accepting it entirely, there is still the situation that the relationship between the applicant and the respondent in this case was of a very limited nature.
I will address each of the issues in s.4AA(2) in turn. Regarding the duration of the relationship, the parties had a relationship starting in July 2008 and extending up to, perhaps, January 2009. There may have been some overtures shortly before [X]’s birth in September 2009 but the relationship itself seems to have progressed between July 2008 and January 2009.
The next factor is the nature and extent of their common residence. There was no common residence. The parties always maintained separate residences. They spent one night together on 20 December 2008 and another night together on 21 December 2008. The first night was spent in a hotel. The second night was spent in the applicant’s home. The respondent did spend a good deal of time at the applicant’s house during July 2008 and January 2009. However, that time was spent as a visitor. The respondent did do some chores around the house but I think that can only be regarded as part of his overall pursuit of the applicant and an attempt to win her over. He was, on no view, doing work on what could be regarded as his own residence.
The next factor is whether a sexual relationship existed. It seems that the parties only had intercourse on the 20 and 21 December 2008. There was a romantic angle to their relationship before that. However, it was not a sexual relationship as such before 20 December 2008.
The next matter is the degree of financial dependence or interdependence and any arrangements for financial support between them. There is no suggestion that there was any financial dependence or interdependence between the applicant and the respondent. The only money that has changed hands seems to have been the $2000 paid at about the time of [X]’s birth for the costs associated with the birth and the establishment of a nursery. That is not in itself in any way indicative of a de facto relationship.
There was some suggestion that the respondent occasionally brought groceries for the applicant’s home but she said herself that it was largely things that he might want while he was there such as wine and cigarettes. The applicant has said that the respondent told her a good deal about his financial circumstances. That to my mind does not in any way indicate that there was financial dependence or interdependence. It was, perhaps, boasting on the respondent’s part. The applicant has sought child support that I gather is now in train. However, that is not the same thing as financial support between the applicant and the respondent. The child support is, obviously, entirely for [X].
The next factor is the ownership, use and acquisition of the parties’ property. It is not suggested that the parties have any joint property in this case.
The next matter is the degree of mutual commitment to a shared life. The applicant says that the respondent proposed on a number of occasions that they would live together. However, there was no agreement by the applicant to that. Their relationship does not, in my view, amount to a commitment to a shared life.
The next factor is whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship. It was not.
The next factor is the care and support of children. The respondent does not appear to have ever cared for [X]. He has provided some support for her financially in that he paid $2000 to the applicant at about the time of [X]'s birth and it seems that he may now have provided some level of child support through the Child Support Agency.
The next factor is the reputation and public aspects of the relationship. It seems from the applicant's evidence that she has not met the respondent's mother. His father passed away previously. It seems that the respondent came to some of the functions of the applicant’s friends but the applicant, I gather, has only been introduced to one of the respondent’s friends, being Mr H. It seems that there may have been some mutual friends and associates. It seems that the parties on many occasions did present as a couple in public. However, that is not to say that they were a de facto couple. There is a difference between presenting as people who are going out together, people who are in a romantic relationship and people who are in a de facto relationship. The evidence provided by the applicant's friends does not suggest that there was anything that took this relationship beyond the dating phase of a relationship.
Taking all of the matters into account that are stipulated by s.4AA of the Act, it seems to me that there is no prospect at all that the relationship between the applicant and the respondent could be regarded as a de facto relationship. That is, even if the decision of Mushin J requiring the parties to have lived together as an absolute requirement turns out to be wrong, the overall circumstances of the relationship are such that this relationship could never be regarded as a de facto relationship. Accordingly, the parts of the application filed on 5 October 2010 which are contingent upon there being a de facto relationship must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 12 January 2011
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