Schmidt and Fleming

[2014] FCCA 1625

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHMIDT & FLEMING [2014] FCCA 1625

Catchwords:
FAMILY LAW – Whether a de facto relationship existed – whether the Court has jurisdiction to make property adjustment orders.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SM, 90SF(3), 90MT(1)(a), 90ME

Applicant: MS SCHMIDT

Respondent: MR FLEMING

File Number: DUC 239 of 2013

Judgment of: Judge Dunkley

Hearing dates: 26, 27, 28 & 29 May 2014

Date of Last Submission: 29 May 2014

Delivered at: Parramatta

Delivered on: 5 August 2014

REPRESENTATION

Counsel for the Applicant: Ms Obradovic

Solicitors for the Applicant: North & Badgery

Solicitor-Advocate for the Respondent: Mr Gittoes-Caesar

Solicitors for the Respondent: Coleman Greig Lawyers

DECLARATIONS

A.Pursuant to section 90 RD of the Family Law Act1975, Ms Schmidt and Mr Fleming are declared to have lived in a de facto relationship from November 1991 until June 1999 and from December 1999 until 9 February 2013.

ORDERS

1. On or before the expiration of 40 days of the date hereof Mr Fleming shall transfer to Ms Schmidt his right, title and interest in the following properties:

   (a)Property D, being all the land contained in Folio Identifier [omitted];

   (b)Property M, being all the land contained Folio Identifier [omitted]; and

   (c)Property A, being all the land contained in Folio Identifier [omitted]

2. On or before the expiration of 40 days of the date hereof Mr Fleming shall transfer to Ms Schmidt:

   (a)43% of the units in water license [1]; and

   (b)His shares in Telstra.

3. On or before the expiration of 90 days of the date hereof Mr Fleming shall pay to Ms Schmidt or as she directs the sum of $237,165, by way of property settlement.

4. Orders 4 to 8 (inclusive) are binding on the Trustee of [S] Super Allocated Pension Fund.

5. The base amount allocated to Ms Schmidt in these proceedings out of the interest of Mr Fleming (Member Number [omitted] account number [omitted]), in these proceedings in [S] Super Allocated Pension Fund is $172,763 (“the base amount”).

6. Pursuant to section 90MT(1)(a) of the Family Law Act1975, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable in respect of the interest of Mr Fleming is [S] Super Allocated Pension Fund, Ms Schmidt shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order 12 above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

7. Order 6 has the effect from the operative time.

8. The operative time for the purposes of Order 7 of these Orders is four business days after the date of service of these Orders upon the Trustee of [S] Super Allocated Pension Fund.

9. Orders 9 to 13 (inclusive) are binding on the Trustee of [S] Super Personal Retirement Plan.

10. The base amount allocated to Ms Schmidt in these proceedings out of interest of Mr Fleming in these proceedings in [S] Super Personal Retirement Plan is $21,166 (“the base amount”).

11. Pursuant to section 90MT(1)(a) of the Act, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable in respect of the interest of Mr Fleming in [S] Super Personal Retirement Plan, Ms Schmidt shall be entitled to be paid an amount calculated in accordance with Part 6 of the Regulations using the base amount referred to in Order 10 above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

12. Order 11 has effect from the operative time.

13. The operative time for the purpose of order 12 of these Orders is four business days after the date of service of these orders upon the Trustee of [S] Super Personal Retirement Plan.

14. The Respondent is to do all acts and things and sign all documents and give all necessary consents to subdivide Water License [1] so that 43% of units of [omitted] Regulated Rivers Water Source is transferred to the Applicant and the Respondent retains 57% units of units of [omitted] Regulated Rivers Water Source.

15. That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

16. That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then the Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

17. That subject to the preceding orders the Applicant and Respondent are to have the sole right, title and interest in:

    (a)Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;

    (b)Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Schmidt & Fleming is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 239 of 2013

MS SCHMIDT

Applicant

And

MR FLEMING

Respondent

REASONS FOR JUDGMENT

1. Ms Schmidt and Mr Fleming met each other in about December 1987 in the small village of [M], located in the Central West of New South Wales.  

2. They met at the [omitted] at which Ms Schmidt worked.

3. Shortly thereafter, in the modern way, they commenced a sexual relationship. They continued to have a sexual relationship with each other until mid-2013.

4. At some time in 1990 Ms Schmidt and Mr Fleming began a discussion about having children.

5. In 1991 Ms Schmidt underwent an operation in [omitted] hospital, paid for by Mr Fleming, to reverse her tubal ligation, so as to enable her the possibility of conception. Conception did occur.

6. In December of 1992, Ms Schmidt and Mr Fleming began to live together in the same home on a permanent basis. That home was located at Property N, [D].

7. The next day on [omitted] 1992 their first child [X] was born.

8. On [omitted] 1993 their second child [Y] was born.

9. Their relationship had a rocky period of some six months in 1999 during which they separated.

10. Thereafter they resumed living together, continued their sexual relationship, parented their children, provided some limited financial support to each other, provided some support emotionally to each other at difficult times when Mr Fleming was injured at work and when

    
    

    Ms Schmidt had treatment for cancer.

11. They ceased living together on 13 February 2013 following an incident in which Mr Fleming assaulted Ms Schmidt and an Apprehended Violence Order was made by a Local Court requiring that Mr Fleming vacate the home in which they lived.

12. Even after this, their sexual relationship continued until about mid-2013.

13. On face value, in light of the above a disinterested neutral lay observer might reasonably conclude that the parties were living in a de facto. The task for the Court is to decide whether they did live in a de facto relationship as defined by s.4AA of the Family Law Act 1975, and if so for what period.

14. This case, on Mr Fleming’s behalf, was run on the basis that either the parties were never in a de facto relationship as defined by the Family Law Act or in the alternative that their de facto relationship ceased before 1 March 2009 or further in the alternative that their de facto relationship as defined by the Family Law Act was for the period 1995 – 1999 and for the period 2000 to 9 February 2013.

15. The case run on Ms Schmidt’s behalf was that the parties were in a de facto relationship virtually from the time that they met or at least from early 1988 to 13 February 2013.

Issues to be determined

· Were the parties in a de facto relationship as defined by s.4AA of the Family Law Act;

· If so, for what period were the parties in a de facto relationship as defined in s.4AA of the Family Law Act;

·    If the parties were in a de facto relationship did that relationship end on or after 1 March 2009 so as to attract the jurisdiction of this Court in the making of orders for property settlement under Part VIIIAB;

·    If the Court has jurisdiction to make property settlement orders under Part VIIIAB, what are the appropriate orders to be made in alteration of property interests.

Documents relied on

1. In the case of Ms Schmidt:

   a)Amended Initiating Application filed 14 May 2014;

   b)Financial Statement sworn 19 July 2013;

   c)Affidavit and documents exhibited thereto of Ms Schmidt sworn 13 May 2014;

   d)Affidavit of Ms S sworn 12 May 2014;

   e)Affidavit of Ms M sworn 9 May 2014;

   f)Affidavit of Ms F sworn 9 May 2014; and

   g)Affidavit of Mr A sworn 15 April 2014.

2. Ms Schmidt also filed an Affidavit by [X] one of the parties’ two children.

3. Following intervention from the Bench, it was decided by the parties that on more mature reflection the Affidavit sworn by [X] would not be relied on, nor would [X] be cross-examined. It is to the parties’ credit that they finally came to this conclusion, thereby excusing [X] from giving evidence. His tears were ample evidence of the relief he felt. 

4. In the case of Mr Fleming:

   a)Respondent’s further Amended Response sworn 21 May 2014;

   b)Affidavit of Mr Fleming sworn 13 May 2014;

   c)Affidavit of Ms I sworn 16 October 2013; and

   d)Financial Statement sworn 15 May 2014.

5. Ms I’s Affidavit was read except for a small clause in one paragraph. She was not required for cross examination.

6. The parties jointly relied on Affidavits by:

   a)Ms R sworn 26 May 2014; and

   b)Ms P sworn 26 May 2014.

7. They were each an Affidavit of a single expert. Neither was required for the purposes of cross examination. No dispute arose about either of their evidence.

Chronology

[omitted] 1955	Mr Fleming born
[omitted] 1956	Ms Schmidt born
[omitted] 1974	Ms M, a child from Ms Schmidt’s previous relationships born
[omitted] 1977	Mr S, a child from Ms Schmidt’s previous relationships born
[omitted] 1981	Ms S, a child from Ms Schmidt’s previous relationships born
[omitted] 1983	Mr M, a child from Ms Schmidt’s previous relationships born
December 1987	The parties meet
1988	The parties’ sexual relationship commences and Mr Fleming begins spending some time in the home of Ms Schmidt
November 1991	Ms Schmidt undergoes a procedure at [omitted] Hospital to reverse her tubal ligation
April 1992	Ms Schmidt falls pregnant
[omitted] December 1992	Parties commence to occupy Property N, [D]
[omitted] December 1992	The parties child [X] born
[omitted] 1993	The parties second child [Y] born
1999	The parties have a period of separation
2000	The parties resume living in the same home
2003	Mr Fleming suffers a work place injury
2005	Ms Schmidt undergoes treatment for cancer
2007	Ms Schmidt undergoes further treatment for cancer
9 February 2013	Mr Fleming assaults Ms Schmidt and as a consequence an Apprehended Violence Order is made requiring him to vacate the home they both lived in
Mid-2013	The parties sexual relationship ceases

1. The parties do not dispute any of the above chorology.

2. The parties also agree that for the entirety of the period of time that they have known each other they have always lived and worked in New South Wales and they both continue to live and work in New South Wales.

Evidence

Agreement as to the parties’ assets, liabilities and financial resources

1. Counsel for both parties before making final submissions had the Court mark as Exhibit ‘C’ an agreed joint balance sheet setting out the parties’ assets, liabilities and financial resources.

2. Both parties conducted the case on the basis that the value of

   
   

   Mr Fleming’s Commonwealth superannuation pension was a financial resource.

3. Due to the parties agreement I find the parties assets, liabilities and financial resources to be as follows:

   (S) = owned by Ms Schmidt            (F) = owned by Mr Fleming

Asset	Value
Property B, [M] (S)	$65,000
Property M, [M] (F)	$55,000
Property A, [M] (F)	$75,000
Property D, [D] (F)	$250,000
Property N, [D] (F)	$300,000
Property F, [D] (F)	$603,921
Water Licence [1](F)	$736,000
Water Licence [2] (F)	$22,000
Westpac E-saver Account No: [1] (S)	$794
Westpac Reward Saver Account No: [2] (S)	NIL
Westpac Choice Account No: [3] (S)	$1,221
Westpac Cash Management Account No: [4] (F)	$1,230
Westpac E-saver Account No: [5] (S)	$1
Westpac Reward Saver Account No: [6] (F)	$134,054
Westpac Reward Saver Account No: [7] (F)	$89
Commonwealth Personal Saving Account (F)	$1,440
Westpac Farm Management Account No: [8] (F)	$30,000
Plant & Equipment (F)	$86,508
Telstra Shares (1000 shares at $5.22 per share) (F)	$5,220
AMP Shares (S)	$2,045
Cattle (63 head) (F)	$42,540
TOTAL	$2,412,063

Liability	Value
Westpac Flexi Loan Account No: [9] (S)	$5,194
Westpac Mastercard Account No: [10] (S)	$8,762
Westpac Mastercard Account No: [11] (F)	$11,338
Income tax liability for 2012/2013 financial year (F)	$14,069
TOTAL	$39,363

Superannuation	Value
Applicant – [F] Super (S)	$22,433
Respondent – [S] Super Financial Services, Allocated Pension Fund (F)	$401,775
Respondent – [S] Super Financial Services, Personal Retirement Plan (F)	$21,166
TOTAL	$445,374

Nett Total Assets (Including Superannuation) $2,818,074

Financial Resources	Value
Respondent - Commonwealth Superannuation Pension (F)	$1,102,019

The Mother

As to whether a de facto relationship existed and if so for what period

1. She says that from mid-1988 Mr Fleming began spending every weekend at her home in [M] with her. She conceded during cross-examination that it was often for less than a whole weekend.

2. She says that from the commencement of their sexual relationship they had “an exclusive dating style relationship”. By this, she meant that they did not engage in sexual activity with any other person.

3. On 20 December 1988 she purchased a home at Property B, [M]. She says that thereafter Mr Fleming moved into that property with her and her children. At the time of moving in he brought his clothing and personal items and they set up a bedroom that they occupied.

4. Although Mr Fleming moved his possessions into her home and spent time there, she said that during the week, Mr Fleming lived in a motel in [omitted] nearby to where he worked.

5. She says when he was not working he was at home on weekends with her. During this weekend time together he undertook some yard and house maintenance and participated in jointly parenting her children. She says that they attended social events in the village of [M] together.

6. She also says in paragraph 23 of her Affidavit:

   Mr Fleming was physically and emotionally violent towards me throughout our relationship and did not press him for information about financial issues as this was a sure way to cause an argument that would lead to further violence.

7. In 1990 she says that there was a family holiday, on which she and

   
   

   Mr Fleming and her children went to visit her sister. She says that later in that year she and Mr Fleming had a weekend away together on the Central Coast of New South Wales.

8. She says that in about 1989 Mr Fleming obtained a transfer in his employment as a [omitted] in [D] and thereafter commuted each day from [M] to [D].

9. Notwithstanding that Mr Fleming worked in [D] and lived in [M],

   
   

   Ms Schmidt said they did not have a mutually shared residence in [M].

10. Ms Schmidt says that in 1990 she applied for and was paid a parenting pension. Portraying to the relevant authorities she was a single parent.

11. By about 1990 she says that she and Mr Fleming began discussions about the possibility of starting a family. Because she had had a tubal ligation they began to research the possibility of a reversal operation. She says that operation was conducted in [omitted] Hospital in November 1991. She says that Mr Fleming paid for the doctor’s consultations and the treatment costs.

12. The operation was successful and in April 1992 she conceived the parties’ child [X]. Sometime in late July or early August 1992 she agreed to Mr Fleming’s request to move to a property that he was purchasing in [D] at Property N.

13. In paragraph 43 of her Affidavit, she says that:

    On [omitted] December 1992 we moved into the house at Property N as a family. All four of my children were still at home and they moved with us and the three youngest were enrolled in school in [D]. [X] was born prematurely the next day.

14. She says that their second child [Y] was born on [omitted] 1993.

15. In 1994 she was investigated by Centrelink as to whether she remained entitled to parenting pension. It appears that someone had notified Centrelink that she and Mr Fleming had been living together for some years. She said that both she and Mr Fleming were interviewed. She conceded not being entirely honest with the interviewer.

16. In 1995 she says that Centrelink concluded their investigation and determined that she was no longer entitled to the parenting pension, as they concluded she lived in a de facto relationship with Mr Fleming.  

17. Later that year she says that she and Mr Fleming consolidated their Medicare cards and he was registered on her card.

18. Over the next three years from 1995 to 1998 her three oldest children left the home.

19. In July of 1999 she says that she and Mr Fleming separated for a period of about six months she says principally due to family violence she was subjected to by Mr Fleming.

20. She says that it is her recollection that they reconciled just prior to Christmas 1999. A photograph in Exhibit ‘A’ shows Mr Fleming and Ms Schmidt together at [X]’s birthday party and corroborates

    
    

    Ms Schmidt’s evidence about the resumption of cohabitation. She was cross examined about this and was certain her memory was correct.

21. In 2003 she said that Mr Fleming suffered a workplace injury and she provided some care for him.

22. In 2005 she was diagnosed with breast cancer. Had a mastectomy and four months of chemotherapy. She says in paragraph 70 of her Affidavit “I was very unwell and Mr Fleming supported me throughout the surgery and treatment”.

23. She says that at some time she was listed as a spouse on Mr Fleming’s tax returns, but is uncertain as to the date this started.

24. In about 2009 she says that she and Mr Fleming began to occupy separate bedrooms because of “[Mr Fleming’s] excessive snoring”. Notwithstanding that in paragraph 85 of her Affidavit she says:

    Mr Fleming and I continued to have sexual intercourse on a regular basis until 2010 irrespective of where we were sleeping. 

25. She says that from early on there was a social aspect to their relationship. In paragraph 87 of her Affidavit she says:

    Mr Fleming was known to all of my friends and family as my partner. In 1991 Mr Fleming attended [Ms M’s] Debutant Ball in [omitted] with me.

26. She said that from the earliest years of their relationship until about 2000 they spent Christmas’ at Mr Fleming’s parents’ home with his parents.

27. She says that Mr Fleming attended her daughter Ms M’s wedding in 2009 and her son Mr S’s wedding in [omitted] 2012 and that he made a speech at Mr S’s wedding. Her children Ms M, Mr S and Ms S have children themselves and she says that she has heard her grandchildren each refer to Mr Fleming as “Poppy” or “Pop”. She says that from time to time when speaking to other people, She has heard Mr Fleming referring to these children as “his grandchildren”.

1. Exhibited during the course of the proceedings were a number of photographs showing she and Mr Fleming engaged in family activities and at social functions.

2. She says that she and Mr Fleming separated on 9 February 2013 when he assaulted her by punching her in the face.

3. She agrees that there was very little intermingling of their financial affairs and that they always owned property in their own names. She described herself as being the primary homemaker for the children [X] and [Y] but agrees that Mr Fleming provided significant assistance when not working in parenting [X] and [Y].

4. During the course of her cross examination she agreed that to receive the Centrelink benefit she completed a form saying that she was not in a de facto relationship.

5. She denied the conversation attributed to her by her Mr Fleming prior to her tubal ligation reversal operation, in which it was alleged she said “you would be a good dad and it wouldn’t have to change anything between us”.

Ms Schmidt’s Evidence as to Contributions and Adjustments

1. At the time that Ms Schmidt met Mr Fleming she said that he owned a property at Property U, [M] having purchased that property in April 1984 for $20,500. She said that in November 1995 he purchased land with a partially completed house at Property W for a purchase price of $21,000. He also had a farm block of about 300 acres at [S] and some savings. She says that he was employed as a [omitted], and had superannuation.  

2. On 24 August 1988 she said that Mr Fleming sold his Property W property for $83,000 and thereafter on 12 October 1988 purchased a property at Property A, [M] for $25,500.

3. On 20 December 1988 she purchased a house at Property B, [M] for $30,350. She says that Mr Fleming loaned her $3,900 to pay the deposit and that she subsequently repaid that money together with interest.

4. On 10 May 1991 she said that Mr Fleming purchased a farm at Property F for the sum of $240,000.

5. On 29 July 1992 Mr Fleming purchased a home at Property N, [D] for $125,000. This became the family home for a period.

6. She says that when the family were living in [D] the properties in [M] were rented.

7. In May 2000 Mr Fleming purchased more land that became included within the farm at Property F. The land was purchased for $110,000.

8. On 27 January 2011 Mr Fleming purchased a home at Property D, [D]. The purchase price was $220,000. After completion of the purchase the family moved into that home as their family home and the other [D] property was rented out.

9. She says that when Mr Fleming retired from his work as a [omitted] in 2011 Mr Fleming placed $400,000 into a [S] Superannuation Retirement Plan Account.

10. She agrees that the property currently owned by Mr Fleming, herself and his and her superannuation entitlements and their liabilities are as set out in Exhibit ‘C’.

11. She says that she was throughout the years the principal homemaker and parent. In addition she undertook paid work from time to time and contributed that income into the family.

12. She also laboured on the rural property owned by Mr Fleming and in the later years helped with the collating of financial information arising from the farm business so as to enable an accountant to prepare taxation returns.

13. In her Financial Statement sworn 19 July 2013 she discloses an average weekly income of $820 and total expenditure of $747 including other expenditure of $250 un-itemised.

The Father

As to whether a de facto relationship existed, and if so for what period

1. Mr Fleming agrees that he met Ms Schmidt in about 1987 at her workplace [omitted].

2. In the period until 1992 he says that if he stayed overnight in

   
   

   Ms Schmidt’s home he arrived late and left early principally to ensure that her children were unaware that he was there.

3. In paragraph 26 of his Affidavit he says:

   Between 1988 and late 1992 I cannot recall any occasion in which Ms Schmidt and I went out as a couple, and we certainly did not go out with her children.

4. He also says that his time with Ms Schmidt was limited because she had said to him:

   I am on a pension and Centrelink will not let you stay all the time. I think you are allowed to stay three nights a week and that is it.

5. He agreed Ms Schmidt in 1994 was investigated by Centrelink. He agreed both she and he were interviewed during the investigation which was initiated by Centrelink. He agreed the investigation resulted in Centrelink deciding Ms Schmidt was no longer eligible for the payments as she was found to be living in a de facto relationship with him.

6. He agrees that the first time that he and Ms Schmidt commenced living fulltime in the same house was when they occupied a property he purchased at Property N, [D] into which they moved as a family in December 1992.

7. He says that in around late 1990 he and Ms Schmidt began to have a conversation about having children. Thereafter he says they began researching Ms Schmidt having a reversal operation for her tubal ligation. He agrees her operation occurred in November 1991. He says in paragraph 51 of his Affidavit:

   I attended all of the appointments with [Ms Schmidt] and paid for the specialist appointments, doctor’s fees and the operation itself.

8. In paragraph 66 of his Affidavit he said:

   We continued to socialise mainly at home and I do not recall spending time with any mutual friends or going out as a family during this period.

9. He says around 1993 their sexual relationship began to decrease in frequency. That they started to occupy separate bedrooms. That he ceased to refer to Ms Schmidt using affectionate names and ceased to tell her of his movements.

10. Between 1999 and 2000 he says that there was a period of nearly 12 months where he and Ms Schmidt lived in separate homes. He says that when they resumed living in the same home, he continued to live in his own bedroom, separate from Ms Schmidt.

11. In paragraph 105 of his Affidavit he says:

    During this period and for the entirety of the time that we lived under the one roof from 2000 to 2013, we did not regularly socialise as a couple. I can recall no conversation between us with respect to an ongoing relationship or making any significant planning decisions with respect to a mutual life together. Occasionally we did however go out to the RSL with the children for dinner; however this was as friends and for the benefit of the children.

12. He agrees that from about 2000 he permitted Ms Schmidt to manage the finances for the [omitted] Farm and make arrangements for the preparation of taxation returns. In exchange for this he says he transferred to her the ownership of cattle from time to time by way of payment.

13. He says that they never intermingled their finances and each owned their own properties.

14. He acknowledges there was a family holiday to Queensland in about 2003.

15. He says that as a result of an incident between him and Ms Schmidt on 9 February 2013 he pleaded guilty to a charge of assault and other charges. He agrees that an Apprehended Violence Order was granted to protect Ms Schmidt for a period of two years. As a consequence they ceased living under the same roof, and thereafter did not again live under the same roof.

16. During his cross examination Mr Fleming initially asserted that he had other relationships between 1998 and 2005. On closer cross examination it was apparent that those relationships were nothing more than friendships which were not intimate and which he and the ladies did not live together, rendered no domestic services to each other and did not go out together.

17. During the course of his cross-examination Mr Fleming was shown a number of photographs that had become exhibits. As a consequence he agreed that paragraph 26 of his Affidavit was incorrect and that there were occasions when he socialised in public with Ms Schmidt and her children. He agreed that he and Ms Schmidt had attended family functions such as birthday parties, and christenings. He also agreed that they had both attended events involving Ms Schmidt’s older children.

18. He agreed that in at least his last three taxation returns, he had

    
    

    Ms Schmidt referred to as his “spouse”. He concedes it may have been in more years, but he could not be certain.

19. He agreed that a picture of [X]’s birthday party meant that it was likely that the period of separation in 1999 to 2000 wasn’t for twelve months. He then said he could not really remember the dates of the period they were separated.

20. He agreed when cross-examined that from the earliest time of their relationship, Christmas was spent at his parents’ home, at least until the early 2000’s.

21. He did not dispute Ms Schmidt’s evidence about the perpetration of family violence by him.

Mr Fleming’s Evidence as to Contributions and Adjustments

1. In paragraph 164 of his Affidavit Mr Fleming sets out the assets that he owned in 1999. He was unchallenged as to this evidence.

2. In paragraph 155 to 163 of his Affidavit he gave evidence about contributions to his various superannuation policies. Again he was unchallenged about this evidence.

3. He was also unchallenged as to the Affidavit evidence in relation to the acquisition of properties by him after he met Ms Schmidt.

4. He was similarly unchallenged as to the evidence he gave as to the expenses that he paid.

5. He would not agree as to the quantity and totality of the physical labour that Ms Schmidt undertook in their farming enterprise.

6. He was unchallenged as to his work history and as to his income as set out in his Affidavit.

7. In paragraphs 182 to 186 of his Affidavit he sets out the workers’ compensation claims that he made. There was little dispute about this evidence except for in paragraph 183 of his Affidavit he said

   “I do not recall receiving any lump sum payments with respect to this injury”.

8. He expects to receive an inheritance from his mother’s estate who died on 10 February 2014. He anticipates he will receive an inheritance of somewhere between $50,000 to $70,000, once Probate of the estate is granted.  

9. He describes himself as not being in good health. Suffering from depression and anxiety and having ongoing problems with both of his left and right shoulder and his right knee and back. He is retired from his work as a [omitted] but continues to work as a farmer.

10. His Financial Statement sworn 15 May 2014 discloses a current average weekly income amount of $2,227 with average weekly expenses of $1,697 of which $1,160 are other un-itemised expenditures.

Ms F

1. When cross-examined, she was able to give examples of seeing

   
   

   Ms Schmidt and Mr Fleming out together on social occasions, at the Social Club in [M] where they both attended events put on by that Club and dances put on by that Club. She recalled attending a birthday gathering in [omitted] at which they were both in attendance.

2. She denied saying to Mr Fleming “if you moved up here we could give it a go”, meaning that they could have a relationship. She denied having any intimate relationship with Mr Fleming.

Ms S

1. When cross-examined she could recall Mr Fleming in the early years of knowing her mother undertaking household repairs and mowing the lawn. She also said it was after [X]’s birth that Mr Fleming started living at the home all of the time and before that he was there mostly on weekends.

2. In 1999 she said that her mother and Mr Fleming separated for about six months.

3. She said that Mr Fleming’s parents use to give her and her siblings gifts for Christmas and birthdays.

Ms M

1. She agreed that she was not happy at the prospect of her mother’s relationship with Mr Fleming.

2. She agreed that she acted negatively towards Mr Fleming.

3. She said that her mother and Mr Fleming did not go out a lot together socially.

Mr A

1. He was not required for cross examination.

2. The parties agreed with his expert opinion that Mr Fleming’s superannuation in currently in the payment phase.

3. The parties agreed with his expert opinion as to the value of

   
   

   Mr Fleming’s Commonwealth Superannuation being $1,102,019.

The Law

1. If the parties are in a de facto relationship the relevant legislation for property settlement orders is found in Part VIIIAB of the Family Law Act.

2. This part of the Family Law Act was enacted in 2008.

3. For this part of the Family Law Act to apply the parties must be declared to have lived in a de facto relationship which ended on or after 1 March 2009.

4. Section 4AA defines de facto relationships as:

   (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.

   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.

Determination

1. It is common ground, arising from the conduct of the case that the parties’ had not signed nor entered into a financial agreement binding or otherwise, under either Federal or State legislation.  

2. The parties have lived in New South Wales for the total period they have known each other.

3. The parties have two children [X] and [Y] who are both children of the parties’ relationship. Both children are now over 18 years of age.

4. The Applicant, Ms Schmidt seeks orders of the type referred to in s.90SM(1) based upon matters in s.90SM(4).

5. Given the property holdings of the parties, discussed in this judgment a failure to make property settlement orders or declarations would result in a serious injustice to Ms Schmidt. Neither party submitted to the contrary in the event it was found the Court had jurisdiction. Indeed both parties in the event that it was found that the Court had jurisdiction argued for such orders and declarations.

6. Mr Fleming’s statements in his Affidavits about the absence of any public aspect in his relationship with Ms Schmidt are not believable in light of the photographs that became Exhibit ‘A’, and in light of his answers about the events depicted in those photographs.

7. In addition, Ms F’s evidence as to their socialising, at the [M] Social Club corroborated Ms Schmidt’s assertions as to the public nature of their relationship.

8. Although Ms M said Mr Fleming and Ms Schmidt did not go out together a lot socially, her evidence did not rule out such socialising.

9. The existence or absence of a sexual relationship is only one of many factors to go to whether or not a de facto relationship existed. As such the parties’ engagement in a sexual relationship in the period shortly after meeting does not of itself establish the existence of a de facto relationship. Similarly the continuation of a sexual relationship after the events of 9 February 2013 does not of itself establish the existence of a de facto relationship at that time.

10. I am satisfied that their sexual relationship started in or about 1988 and continued into 2013.

11. By 1991, the parties had a sexual relationship, were staying together for periods of time. Mr Fleming moved personal items to Ms Schmidt’s home and were starting to be known within the [M] community as a couple.

12. They also at this time began having conversations about starting a family and began to explore how that might be made medically possible.

13. Mr Fleming was properly being careful about involving himself with Ms Schmidt’s older children, given some negative behaviour they displayed. He was, however, to some extent involving himself with them and his parents were also seemingly accepting of his involvement with that family, as evidenced by their gift giving.

14. The tipping point from boyfriend/girlfriend to de facto couple is the operation in November 1991 when Ms Schmidt has a tubal ligation reversal. This demonstrates a mutual commitment by each party to each other and demonstrates a joint desire to have a family life. With all the other factors referred to they were as at November 2011 living as a de facto couple.

15. I do not accept Mr Fleming’s assertion that Ms Schmidt said to him “this does not need to change anything”.

16. Mr Fleming was less than careful in many aspects of the evidence he gave. The photographs caught him out on his assertion of no social outings. Ms F’s evidence put to an end the acceptance of his assertion that there might have been a relationship between them.

17. For the above reasons where Mr Fleming’s evidence is at odds with

    
    

    Ms Schmidt’s about factual matters, I prefer hers.

18. Because Mr Fleming concedes his memory was not clear about the dates of separation in 1999 as well as the birthday photograph I accept Ms Schmidt’s evidence that the parties were separated in 1999 for six months until December 1999.

19. Mr Fleming’s actions on 9 February 2013 when he assaulted

    
    

    Ms Schmidt demonstrated the final emotional detachment of their relationship thereby bringing an end to their de facto relationship. That they had sex after does not cause me to find their de facto relationship continued after 9 February. There was after 9 February none of the other relational factors present apart from isolated sexual acts.

20. That their relationship from some years prior to this was deteriorating is accepted. However, unravelling is not ending. The emotional commitment Mr Fleming provided to Ms Schmidt during her illness with cancer is an example of continued emotional attachment and commitment to their relationship even though other difficulties existed. The assault on 9 February 2013 demonstrated the ending of the relationship.

Conclusion

1. Family violence existed throughout the parties’ long relationship. That is a sad and unacceptable fact. Of itself, it does not mean the parties did not have a de facto relationship when balanced against the other aspects of their relationship, including its public nature, the raising of children, the providing of support, their sexual relationship, and their living together.

2. Ms Schmidt’s applying for receipt of a government benefit meant for single people is evidence of the defrauding of the Commonwealth rather than being indicative of there being no de facto relationship.

3. For this reason little weight is attached to Ms Schmidt’s deceptive conduct in receipt of a pension she was not entitled to receive because she was in a de facto relationship.

4. On investigation in 1994 the Commonwealth concluded the parties were in a de facto relationship. A conclusion I agree with.

5. Mr Fleming’s nomination of Ms Schmidt as a spouse on his tax returns in the later years somewhat undercuts his assertion that no de facto relationship existed but of itself is not so important on its own as to cause the finding of these parties being in a de facto relationship. It was but one “piece of the jigsaw puzzle” which reveals “the whole picture”.  

6. The parties for the duration of the relationship owned property in their own name. However, for some of these properties, being principally the houses in [D] and the farm, they shared the use and both worked on improvements to them.

7. The parties for the duration of the relationship did not significantly intermingle their funds. They did both, however, from time to time provide financial support for each other. Ms Schmidt to Mr Fleming when he was off work injured and Mr Fleming to Ms Schmidt with respect to housing in [D].

1. The parties have always lived in New South Wales.

2. There is no financial agreement that either entered into, therefore, there is no financial agreement binding upon them.

3. The parties did not marry each other.

4. The parties had two children. Both children are now over the age of 18 years.

5. Considering all of the above, I find Mr Fleming and Ms Schmidt lived in  a de facto relationship in New South Wales from November 1991 until July 1999, and from December 1999 until 9 February 2013. An appropriate declaration will be made.

6. Consequently the Court has the jurisdiction to make property settlement orders. Both parties upon the finding that a de facto relationship exists seek such orders. It is proper to make such orders, given the breakdown of the parties’ de facto relationship.

7. Ms Schmidt filed an application for such orders within the allowed time period after the breakdown of the de facto relationship.

8. New South Wales is a referring State.

9. The court therefore, has jurisdiction to make property adjustment orders.

What property adjustment orders should be made

1. Mr Fleming had significantly more real estate and superannuation assets than Ms Schmidt at the commencement of their relationship. It is not possible on the evidence to determine the precise quantum of the whole or the value of the individual items. Mr Fleming earned significantly more income than Ms Schmidt did for the duration of their relationship.

2. Ms Schmidt’s devotion and attention to caring for and raising the parties two children exceeded significantly the role played in this aspect of their family life by Mr Fleming.  

3. Ms Schmidt’s dedication in caring for the parties’ children enabled

   
   

   Mr Fleming to focus his energies on his work both as a [omitted] and as a farmer, and thereby maximise his earning capacity.

4. Ms Schmidt worked very hard in physically laborious jobs on the farm owned by Mr Fleming thereby permitting the farm’s operation with minimal to no paid labour. Her labour significantly contributed to the farm’s improvement, and operation.

5. Mr Fleming’s evidence as to the minimisation of her labouring efforts was self-serving, is not believed, his credit is in question for reasons previously discussed.

6. Whilst not undertaking as much work on the property as Mr Fleming her contribution in this regard was significant.

7. Neither party has the care and control of a child under 18.

8. Neither party is in another relationship.

9. Both have aspects of their health that is poor. Ms Schmidt is in remission from breast cancer. Mr Fleming has physical restrictions to his shoulders, back and one knee and suffers the effects of psychological illness.

10. Both parties still work. Mr Fleming as a farmer and Ms Schmidt as a [omitted].

11. Mr Fleming is in receipt of a superannuation pension. He also receives rental income and farm income. Mr Fleming is aged 58.

12. Ms Schmidt is in paid employment and receives rental income. She is making contributions to superannuation. She is aged 58.

13. Mr Fleming shortly expects to receive a smallish inheritance of $50,000 to $70,000 from his late mother’s estate. This has relevance and is to be considered under s.90SF(3)(r) of the Family Law Act 1975.

14. Both parties own real estate.

15. Mr Fleming’s income is greater than Ms Schmidt’s because of his superannuation pension.

16. The parties have lived in a long de facto relationship of some 21 years with a six month separation. It is not asserted that the length of their relationship has affected eithers earning capacity.

17. Both will have as a result of the orders an unencumbered home to live in, and other property that will return them income.

18. Mr Fleming will continue to receive a superannuation pension and farm and other income.

19. Ms Schmidt will continue to accumulate superannuation. Her superannuation will be much more modest than Mr Fleming’s.

20. Both seek the property at Property D, [D].

21. Ms Schmidt has remained living in the property since separation. For that reason alone, it will be transferred to her.

22. The parties seek orders from the Court that are very similar with respect to water licences owned by the Respondent although they disagree as to the exact subdivision of water license [1].

23. Both parties seek a splitting order with respect to Mr Fleming’s superannuation but disagree as to quantum of the split.

24. Real effect has to be given to the significantly greater initial contribution of Mr Fleming.

25. The parties’ contributions during their relationship were equal. Both worked hard. Both had paid employment. Mr Fleming earned more income but Ms Schmidt’s attention to the home and the children permitted this.

26. Ms Schmidt’s labouring on the farm when coupled with the administrative tasks she took in managing the financial reporting for the farm was equal to Mr Fleming’s work as a farmer.

27. A 60% assessment as to contributions by Mr Fleming and a 40% assessment as to contribution by Ms Schmidt properly reflects the above.

28. The factors under s.90SF(3) as they affect each party are nearly equal. The larger financial resource represented by Mr Fleming’s superannuation pension and his modest expectant inheritance necessitates a 3% adjustment in favour of Ms Schmidt.

29. Overall Mr Fleming is then to receive 57% of the parties’ assets and Ms Schmidt is to receive 43%.

30. Such a result is proper in the circumstances of this case.

Effect of the proposed orders

1. 57% of the net total assets is calculated as:

   a)57% x $2,818,074 = $1,606,302

   43% of the nett total assets is calculated as:

   b)43% x $2,818.074 = $1,211,772

2. A splitting order in the same overall percentage for the Respondent’s Commonwealth superannuation allocated pension fund is proper, and proposed by each party.

3. To give effect to the division of the value of the water licences, a transfer of part of the water licence from Mr Fleming to Ms Schmidt is to be ordered. Both parties seek such an order. The court was assured the government department that regulates the licences would consent to a transfer.

4. The orders as set out in Minute of Orders proposed by the parties specified a number of mega litres to be transferred. They each sought a different number of mega litres. There is no evidence as to how much each mega litre is worth. However, the valuation of Ms R (not disputed by either party) refers to a number of units attributable to each licence, that is water licence [1] being 640 units and water licence [2] being 48.8 units. The orders made will reflect the overall percentage as applied to the units, i.e. 57% of 640 units is 365 units and 43% of 640 units is 275. The other water licence [2] will be fully retained by

   
   

   Mr Fleming so as to provide adequate water resources for him. If he elects to transfer it to Ms Schmidt and reduce the cash payment he can.  

5. Similarly the base amount for the superannuation splitting order relevant to the respondents allocated pension fund will be an amount equal to 43% of the value. This for the allocated pension fund 43% of $401,775 is $172,763.

6. If the Respondent is to retain a home in [D] and his farm and equipment then to give effect to the order the respondent is to transfer to the Applicant his two properties in [M], part of the larger water licence, his Westpac accounts, his Telstra shares and must find another cash sum perhaps from his inheritance or by borrowing or partially from cash in his bank accounts.

Effect of Orders

1. Ms Schmidt will retain:

Asset

Value

Property D, [D]

$250,000

Property B, [M]

Property M, [M]

Property A, [M]

$65,000

$55,000

$75,000

43% of water licence [1]

$316,480

Westpac Account/s in her name

$2,016

AMP Shares

$2,045

[F] Super

$22,433

43% of the Respondent’s allocated pension fund

$172,763

Telstra Shares

$5,220

Commonwealth Account

$1,440

[S] Super Financial Services, Personal Retirement Plan

$21,166

TOTAL

$988,563

1. Ms Schmidt will be responsible for the following liabilities:

Liability	Value
Westpac Flexi Loan	$5,194
Westpac Mastercard	$8,762

1. The nett amount available to Ms Schmidt is, therefore, $974,607.

2. Mr Fleming will retain:

Asset	Value
Property N, [D]	$300,000
Property F, [D]	$603,921
57% of water licence [1]	$419,520
Water license [2]	$22,000
[S] Super Financial Services, Allocated Pension Fund – 57% thereof	$229,012
Westpac Rewards Saver No [6]	$134,054
Westpac Cash Management A/c [4]	$1,230
Westpac Reward Saver	$89
Commonwealth A/c	$1,440
Westpac Farm A/c	$30,000
Plant & Equipment	$86,508
Cattle	$42,540
TOTAL	$1,870,314

1. Mr Fleming will be responsible for the following liabilities:

Liability	Value
Westpac Mastercard	$11,338
Income tax liability	$14,069

1. The nett amount available to Mr Fleming, is therefore $1,844,907

2. To give effect to the orders the case amount to be paid by Mr Fleming to Ms Schmidt is $237,165. A three month period to pay such a sum is usual and will allow Mr Fleming a degree of flexibility in the management of his affairs and will allow him to sell assets or transfer assets.

3. In the parties Minutes of Order were orders dealing with individual pieces of personalty. The hearing did not focus on this in any way. It is not possible, for this reason, to prefer one order for personalty over the other. The evidence as to value is scant.

4. Each party will retain such personalty as is in their possession.

I certify that the preceding one hundred and ninety nine (199) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date: 5 August 2014