Scolaro & Mang
[2022] FedCFamC2F 576
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scolaro & Mang [2022] FedCFamC2F 576
File number(s): MLC 10711 of 2017 Judgment of: JUDGE DAVIS Date of judgment: 11 May 2022 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where there is a Child of a De facto relationship within the meaning of s 90RB – Where a declaration is made that de facto relationship existed pursuant to s 90RD(1) – Where a declaration is made that there is a Child of a de facto relationship pursuant to s 90RD(1).
FAMILY LAW – PRACTICE AND PROCEDURE – Application by de facto Mother for leave to institute proceedings out of time pursuant to s 44(6) of the Family Law Act 1975 (Cth) – Where Leave is granted under s 44(6) – Where the Mother and Child would suffer hardship if leave under s 44(6) were not granted. .
Legislation: Family Law Act 1975 (Cth) ss, 4AA, 45A(2), s 44(5), 44(6), 90RB, s 90RD, 90SB, 90SM
Federal Circuit and Family Court Act 2021 (Cth), s 143(2))
Cases cited: Baker & Landon [2010] FMCAfam 280
Jonah & White [2012] FamCAFC 200
Nescor Industries Group Pty Ltd & Ors v Miba Pty Ltd & Ors [1997] FCA 1431
Sharp & Sharp [2011] FamCAFC
Sinclair & Whittaker [2013] FamCAFC 129
Whitford & Whitford (1979) FLC 90
Division: Division 2 Family Law Number of paragraphs: 184 Date of last submission/s: 14 December 2021 Date of hearing: 24 November 2021 Place: Melbourne Counsel for the Applicant: Mr Nicholson Solicitor for the Respondent: Fogarty Oliver Rothschild ORDERS
MLC 10711 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SCOLARO
Applicant
AND: MS MANG
Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
11 MAY 2022
THE COURT DECLARES THAT:
1.Pursuant to s 90RD(1) of Family Law Act 1975 (Cth) (Family Law Act), a de facto relationship existed between Ms Mang (Mother) and Mr Scolaro (Father).
2.Pursuant to s 90RD(1) of the Family Law Act, the Child X born in 2016 (Child) is a child of a de facto relationship between the Mother and the Father within the meaning s 90RB of the Family Law Act.
AND THE COURT ORDERS THAT:
3.Pursuant to s 44(6) of the Family Law Act, the Mother is granted leave to institute property proceedings out of time, such proceedings naming the Father as the Respondent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Scolaro & Mang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DAVIS
A. APPLICATION
On 17 October 2017, the applicant (Father) commenced this proceeding by Initiating Application. That application sought parenting orders in relation to X, born in 2016, who is the Child of and respondent (Mother) and the Father (Child).
In effect, this is the return of an application made by the Mother by which she seeks leave to apply, out of time, for property orders (Leave Application).
Given that the parties are in dispute about when their relationship ended, an issue arises as to the extent of her delay in making the application.
The parenting issues in the proceeding have been tried separately and are the subject orders made by Judge A Kelly on 7 March 2022.
B. ISSUES
These reasons concern matters arising out of the Leave Application, and in particular:
(a)whether there was a de facto relation between the Mother and the Father for the purpose of enlivening the Court’s jurisdiction to make orders altering the parties’ property interests (Jurisdiction question); and
(b)if the Court has jurisdiction, whether it should grant the Mother leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) (Family Law Act) to apply for such orders out of time (Leave question).
C. RECENT PROCEDURAL BACKGROUND TO MOTHER’S LEAVE APPLICATION
On 9 June 2021, the matter came before me for an interim parenting hearing. During the course of that hearing it became apparent that the Mother wished to apply for orders altering the parties’ property interests. The Mother had not previously applied for such orders nor indicated her intention to do so.
In light of the Mother’s indication that she intended to apply for property orders, on 9 June 2021 I made directions to regulate any such application. In particular, I directed that:
…
7.Any application by the Respondent for leave to file an Amended Response which makes a claim for property or maintenance orders be made by way of application in a case, filed by 14 July 2021 and supported by an affidavit, filed also by 14 July 2021, which
a.provides all evidence on which the Respondent seeks to rely, including:
i. To explain her delay in making such application;
ii.Any contention by her that she was in a de facto relationship with the applicant
iii.What she contends constitutes the property pool.
b. Annexes the proposed amended response which she seeks leave to file.
8. If the Respondent files an application pursuant to the previous order, then:
a.The Respondent file and serve a short outline of submissions on the questions of jurisdiction and leave by 4 August 2021
b.The Applicant file and serve short submissions on the questions of jurisdiction and leave by 11 August 2021
The Mother sought to file an Application in a Case in connection with her Leave Application. She attempted to file that application on 4 June 2021 but the registry did not accept it. However, she filed an affidavit affirmed by her on that day in connection with that application.
The Mother filed an Amended Response on 15 July 2021 (Amended Response) by which she sought the following property orders in addition to the parenting orders for which she had already applied:
That the Applicant Father make full and frank disclosure of his financial circumstances.
That the Respondent Mother be entitled to 50 percent of the proceeds of sale of the property located at B Street, Suburb C (‘B Street, Suburb C property’).
That the Applicant Father make repayment of $ 12,000 being the unpaid balance of the $35,000 that the Respondent Mother had paid to the Applicant Father in September 2015 for the purpose of making a deposit on a marital home.
That the Respondent Mother be excused from further particularising her application until there is a full and frank disclosure by the Applicant Father.
On 15 July 2021, the Mother also filed an affidavit which she had affirmed that day.
On 11 August 2021, the Father filed his Reply to the Amended Response, an affidavit and submissions.
By his Reply, the Father sought orders that:
Pursuant to Section 90RD of the Family Law Act the Applicant [the Father] seeks a declaration that a de facto relationship never existed and a preliminary hearing to determine that issue.
The Respondent’s application for property orders as contained in the Amended Response filed 15 July 2021 be dismissed.
The Respondent [Mother] pay the Applicant’s costs with respect to this matter.
By his submissions, amongst other things, the Father noted that the Mother had not filed her submissions pursuant to my order of 9 June 2021.
On 23 November 2021, the Mother's solicitor filed a document entitled “Short submissions” together with an affidavit affirmed by the Mother on that day.
On 24 November 2021 the matter came before me. Ms Rothschild appeared on the Mother’s behalf. Mr Nicholson appeared for the Father.
Mr Nicholson faintly objected to the Mother relying on the affidavit or submissions which she had filed on 23 November 2021. The foundation of that objection was that the material was filed late. Mr Nicholson did not claim that the Father suffered any prejudice as a result of the late filing of the affidavit or submissions. The following exchange took place between the Court and Mr Nicholson with respect to that objection:
HIS HONOUR: … is your position for today that I should decline leave for the response to be amended, thereby bringing to a halt any prospect which the respondent has to seek property relief, or is your position today simply that you’re not in a position to proceed with…
MR NICHOLSON: No. I can proceed.
HIS HONOUR: You can proceed?
MR NICHOLSON: Absolutely.
HIS HONOUR: Yes. And so, you wish to proceed, but you wish to foreclose on the prospect of Ms Rothschild relying on the affidavit and submissions that are filed out of time?
MR NICHOLSON: I do.
HIS HONOUR: Well, I’m not sure that that’s, with respect, a practical course, because
MR NICHOLSON: If your Honour pleases, I’m quite content. You don’t need to – if your Honour wants to let it in, I’ve got – I won’t oppose you doing so.
…
MR NICHOLSON: Proceed.
HIS HONOUR: I don’t think you can force Ms Rothschild to proceed with her hands tied behind her back.
MR NICHOLSON: Proceed, your Honour.
After I invited Ms Rothschild to make submissions, Mr Nicholson told me that he wished to make what he described as a “preliminary application” under s 143(2) of the Federal Circuit and Family Court Act 2021 (Cth).
That section provides:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) 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.
…
Mr Nicholson told me that he would be very surprised if he needed to cross examine in order to prosecute the application. Accordingly, he left the door ajar to doing so. He also told me that at that stage he did not intend to call any evidence in support of the application.
Mr Nicholson indicated to me that the application would be put on the basis that, even I were to take her case at its highest, the Mother would not establish that the Court had jurisdiction to make orders altering the parties’ property interests. In effect this was put on the basis that the Mother had not proven that there was a de facto relationship at all or, if there was, that it was of two years’ duration. Accordingly, the Mother’s application for leave would fail in limine.
I consider this application below.
D. EVIDENCE
Mother’s evidence
The Father’s counsel referred me to the Mother’s affidavits in support of his “preliminary application” for dismissal of the Mother’s Leave application on the basis that the Court had no jurisdiction to entertain it.
He submitted that those affidavits established that the Mother’s case, at its highest, fell short of establishing that the Court had jurisdiction to alter the parties’ property interests. Mr Nicholson sought to contend that inconsistencies in the Mother’s material supported this submission.
The Mother filed affidavits affirmed by her on:
(a)24 September 2020;
(b)4 November 2020;
(c)4 June 2021;
(d)15 July 2021; and
(e)23 November 2021.
I set out below the context in which the Mother made each of those affidavits.
The affidavits affirmed on 24 September 2020 and 4 November 2020 were both made in relation to the Father’s Initiating Application, by which he sought parenting orders only. As I observed above, the affidavit affirmed by the Mother on 4 June 2021 was made in connection with her Leave Application. The Mother’s affidavit affirmed on 15 July 2021 was filed by her in connection with her Leave Application, and, if that leave were granted, in support of the orders sought by her in her Amended Response.
The Mother also gave oral evidence at the hearing before me on 24 November 2021.
I have considered all of the material before me. However, for the sake of efficiency, it is unnecessary for me to survey all of that evidence below.
Prior to dealing with the Father’s affidavit evidence in opposition to the Leave Application – which, ultimately, the Father read – I set out below some of the passages of the Mother’s evidence which provide the background for that evidence.
From the outset, it is useful to record that, by the Mother’s affidavit affirmed 23 November 2021, she explains her delay in making an application for property orders. In particular, she deposes that:
My failure to pursue proceedings within 24 months subsequent to my separation is because I was represented by lawyers who worked for Victoria Legal Aid. These lawyers were representatives for parenting only and therefore did not explain that I had an entitlement to property. I only discovered in 2020 that this was the case and that I had a property entitlement. I therefore commenced proceedings.
i.Any contention by me that I was in a de facto relationship with the Respondent.
ii.What I contend constitutes the property pool.
iii.Annexed is the proposed amended response which I seek leave to file.
Mother’s affidavit affirmed 24 September 2020
By her affidavit affirmed 24 September 2020, amongst other things, the Mother gives the following evidence:[1]
…
In 2015, The Applicant and I commenced a relationship and during the first 6 months of the relationship, I attempted to leave the Applicant three or four times due to his controlling and manipulative behaviour however I stayed with him because he convinced me to, soon after, he proposed that we have a child together.
In 2016, I fell pregnant with X. The Applicant upon receiving this information, proceeded to fly to Country D for three months to lose weight, during this period the Applicant and I had little communication between each other, I was alone in the pregnancy and had little support from him.
In May 2016, the Applicant returned back to Australia and proposed that we live together to try co-parenting.
In 2016, the Applicant and I moved in together at E Street, Suburb F and although we moved in together to co-parent, I did not believe that we were involved as a couple.
In 2016, X was born. The Applicant stayed home the first 2 weeks after X was born. After this period, the Applicant then filled his time with work and extracurricular activities which prevented him from spending quality time with X.
In March 2016 (sic), the Applicant moved out of the residence and would only see X for a few hours on a Sunday. [emphasis added]
…
[1]At [3] – [7].It is common ground that when the mother deposes that “In March 2016, the Applicant moved out of the residence…” she intended to refer to March 2017.
Mother’s Affidavit Affirmed 4 November 2020
By the Mother’s affidavit affirmed 4 November 2020, she reiterated the evidence which is extracted above.[2]
[2]At [4] – [11]
Mother’s affidavit affirmed 4 June 2021
Again, by contrast to the affidavits referred to above, the Mother’s 4 June 2021 affidavit was affirmed in support of her Leave Application. By that affidavit, amongst other things the Mother deposes that:[3]
[3] At [3] – [5] prior to the ellipsis and thereafter at [20] – [26].
…
In 2015, the Respondent and I commenced a relationship
During the first 6 months of the relationship, I attempted to leave the Respondent three or four times due to his controlling and manipulative behaviour. This included instances where I felt that I was being manipulated and coerced by the Respondent into sexual acts that I was not comfortable with. He was also physically abusive towards me. …
In 2016, I fell pregnant with X. The Respondent upon receiving this news, asked me to terminate the pregnancy as he had decided that he was no longer interested in having a child with me. This was after the Respondent had spent time quite strongly convincing me that we should have a child together. I refused his demand, and he became quite angry at my response. He proceeded to leave the relationship, and the Respondent and I had little communication between each other during the following months. During my pregnancy, the Respondent travelled to Country D for six months to lose weight, leaving me alone and with no support from him.
…
Property Application
The Respondent resided at G Street, Suburb H. The respondent moved out of this residence and lived with me before travelling to Country D for six months. When the respondent returned he helped me move from J Street to E Street, Suburb F where we lived together and our names were both on the property lease. …
I was not employed during the relationship and have not been since. As I am X’s primary carer, finding employment has been, and continues to be, increasingly difficult. I rely heavily on Centrelink payments to support myself and X.
I did not contribute to the property pool during the relationship however I made significant nonfinancial contributions to the household. I looked after X and tended to all the housework. This has continued after the separation as I am the custodial parent of X and have received no financial assistance from the Respondent for the past four years. I have had to independently provide for all of X’s basic needs such as food, clothing, medical bills and so on. As X has additional needs due to delays in speech and development, I have also had to independently finance his appointments with a Speech Pathologists, Paediatric Specialist and Psychologist.
In the last 5 years I have resorted to selling my personal belongings in order to support myself and X.
The Applicant seeks 50% of the proceeds of sale of Australian property unit B Street, Suburb C VIC.
Application for leave that this property application be heard out of time
I seek that this Honourable Court order that this Application should be heard out of time.
I have limited resources and extremely limited knowledge and understanding of the Australia legal system and my entitlements under it. As a result, I have only recently been made aware of my potential entitlements that will help X's development and myself. [emphasis added]
Mother’s affidavit affirmed 15 July 2021
By her affidavit affirmed 15 July 2021, amongst other things, the Mother deposes that:
Start of the Relationship
The Applicant and I met in 2013
In 2015, the Applicant and I commenced a relationship. At that time, I was in my first year of my bachelor degree at K University. The Applicant was employed as a director of his company, namely L Pty Ltd, M Pty Ltd and N Pty Ltd.
At the Start of the relationship, the Applicant had already purchased B Street, Suburb C VIC (‘B Street, Suburb C Property’) as his investment property. To my knowledge, the B Street, Suburb C property was sold by the Applicant in or around mid-2017.
From the Beginning, we had a serious committed relationship. Within a month of starting the relationship, my conversations with the Applicant were premised on the idea that we were long-term partners who would be building a family together. We both agreed that we should move in together, and that we should consider purchasing a marital home. We also were discussing getting married in the next 12 months. The Applicant constantly reiterated the serious nature of our relationship and that that he wanted to build a life with me. We kept in constant contact with and looked to spend as much time with each other as possible. …
However there were instances in the first 6 months of our relationship when the Applicant’s behaviour became excessively controlling and manipulative, leading to three or four attempts by me to leave the Applicant. This included where I felt that I was being manipulated and coerced by the Applicant into sexual acts that I was not comfortable with. He was also physically abusive towards me. … However, the Applicant became quite contrite when it became clear that I wanted to leave the relationship, and he promised not to hurt me again.
In the course of our discussion about purchasing a house in and around July 2015, the Applicant asked if I would be able to provide $35,000 for a deposit on a house. …
At the start of our relationship, the Applicant resided at G Street, Suburb H Vic (‘G Street, Suburb H property’). Given the serious de-facto nature of our relationship, he moved in with me at J Street, Suburb O (‘J Street, Suburb O property’) in or around August 2015. On occasion, we would spend the night at his G Street, Suburb H property.
Respondent’s contribution to the relationship
It should be noted that during the initial stage of our relationship we had discussed what the roles should be within the relationship. We were of a similar mind that I would be a homemaker who would be take of our family, while he would be the primary breadwinner. … True to this discussion, once we began to be co-habiting, I took care of cooking and cleaning, as well as running all necessary chores for the Applicant while he was at work. It should be noted that I was doing this while I was busy with my studies in university. The weight of the demands of being a homemaker became even more significant once I became pregnant in 2016.
Despite the pressure in the relationship, I was still quite committed to the relationship. In or around August 2015, I provided $35,000 in cash from my safe to the Applicant for the purposes of making a deposit for our family home (‘the Deposit Money’). I did so, after being convinced to do so by the Applicant as he had promised me that he needed funds to put down a despot for our marital home [.] …
In and around August 2015, the Applicant also provided me with a bank credit card linked to his bank account which was used for household needs.
In and around September 2015, I became aware that the Applicant had not used the $35,000 that I had provided home for the deposit, and had instead been using it to finance our household expenses as well as his professional expenses. …
The Applicant refused to return the deposit money. In response I said that we should break up, but I withheld the Applicant’s house key and bank card until he returned the Deposit money. …
Starting 22 September 2015, the Applicant made payments on a non-regular basis for the Deposit Money as follows:
a.On 22 September 2015, $5,000 was deposited into my account by the Applicant with “Direct Credit … Mr Scolaro” as the transaction description.
b.On 23 September 2015, $5,000 was deposited into my account by the Applicant with “Direct Credit … Mr Scolaro” as the transaction description.
c.On 22 September 2015, $5,000 was deposited into my account by the Applicant with “Direct Credit … Office money” as the transaction description.
d.On 07 January 2016, $5,000 was deposited into my account by the Applicant with “Direct Credit … Mr Scolaro” as the transaction description.
… In total, he repaid $23,000, meaning that $ 12,000 of the Deposit Money remains to be repaid.
By late 2015, the Applicant and I had reconciled and had continued to live together. As a sign that I was still committed to our relationship, I purchased the Applicant a watch worth $5,800 for his birthday. I would not have bought the Applicant an expensive watch after only dating for four months if I had not seen him as my future husband. Annexed hereto… are true and correct extracts of my bank statements showing the payments of $1300 and $4500 that I had made to the Company P to purchase the watch for the Applicant.
In 2016, I fell pregnant with X. The Applicant upon receiving this news, asked me to terminate the pregnancy as he had decided that he was no longer interested in having a child with me. This was after the Applicant had spent time quite strongly convincing me that we should have a child together. I refused his demand, and he became quite angry at my response.
Following our disagreement regarding the pregnancy, the Applicant left home for a three-month trip to Country D. The Applicant returned in May 2016, he helped me move from my rental property located at J Street, Suburb O to E Street, Suburb F where we intended to live together and make our relationship work. The tenancy agreement was for a period of two and a half years and our names were both on the property lease. …
Between 2016 and the breakdown of the relationship, I continued to be primarily responsible for home duties. …
The relationship ended in 2017, when the Applicant moved out of our joint residence.
Summary
I was not employed during the relationship and have not been since. I do not have support from my parents as they have passed and my elderly mother was dying in a nursing home before X was two and a half. As I am X’s primary carer, finding employment has been, and continues to be, increasingly difficult. I rely heavily on Centrelink payments to support myself and X. …
I made significant non-financial contributions to the household. I looked after X and tended to all the housework. This has continued after the separating as I am the custodial parent of X.
I have had little financial support from the father for X’s expenses. Between around August 2018 – March 2020 I have had only received $80 per week or $347 per month in child support. I have had to independently provide for most of X’s basic needs such as food, clothing, medical bills and so on. As X has additional needs due to delays in speech and development, I have also had to finance his appointments with a Speech Pathologists. Paediatric Specialist and Psychologist
By various annexures to her affidavit of 15 July 2021, the Mother tendered a number of text message exchanges between the Father and her.
As developed later, a number of issues flow from such exchanges. For example, the Father in effect submits that those messages demonstrate that the $35,000 provided by the Mother to him was in the nature of a short term loan and not for the purchase of the property for their common future. Further, the Father submits that the text messages in effect reflect a “boyfriend/girlfriend relationship” which broke down on more than one occasion, including in September and November 2015.
However, a clear theme which emanates from the text message exchanges is that the Father had expressed his desire for a common future with the Mother entailing marriage and children. Indeed, many of the text messages constitute the Father’s exhortations to the Mother that she accept that such a common future is in fact what he wants with her.
For example, those messages included (with errors in the original):
(a)An exchange regarding children:
Father: I know I have a lot to learn about giving in a relationship and be there for my partner to. Im not perfect but if you believe that i have what it takes I promise to give you all that i have. I want us both to give each other everything we have so our kids have parents who love each other unconditionally. I want this to work and thats why im putting all my cards on the table
Mother: why me Mr Scolaro?
Father: Because I have learnt to trust my heart and it only leads into one direction and thats you; your my one and only, I love you more than you can imagine
(b)Likewise, as part of a further exchange:
Father: … I don’t throw around lightly that i want someone to be the mother of my children and thats why im i dont want to throw this away. Its not because your upset and I dont want you to go its because i have felt so strong about you since G Street, Suburb H.
I may not be the perfect guy in every aspect but i know what i genuinely feel.
I will respect your decision either way.
(c)A separate exchange regarding property:
Father: I think if aim to buy our own place and move in by 12 months what do you think?
Mother: What’s a minimum down payment?
Father: Depends baby minimum 10% but I think I would like to at least have 20% if not more. Avoid Mortgage insurance. …
(d)Another exchange which includes a reference to a possible wedding:
Father: Would all your family come to our wedding?
Mother: If they must
Despite this, overall, the exchanges demonstrate that the relationship was tempestuous and, consistently with the evidence given by the Mother in the body of affidavit, they broke it off at least for a time in September.
The evaluation of the text messages is complicated by the fact that the time at which they were sent is not clear on the face of the copies which the Mother tendered.
Father’s affidavit affirmed 11 August 2021
By his affidavit sworn 11 August 2021 the Father deposes that the parties were “never in a de facto relationship”.
Amongst other things, by that affidavit, Father gives evidence that:[4]
[4] Affidavit of Father sworn 11 August 2021, at [3] – [33].
I have always maintained that we did not live in a de facto relationship commencing with my first affidavit sworn and filed 17 October 2017 in which I said:
(6) The only time we did live together was between July 2016 and February 2017.
(7) The reason that we commenced living together was so that I could support Ms Mang during the pregnancy. During the time that we lived in the same house we occupied separate bedrooms.
I made a mistake in stating the end date was February 2017. I now know that it was on 3 March 2017 (see paragraph 22 hereof)
In Ms Mang’s first affidavit filed 24 September 2020 she stated:
(6) the Applicant and I moved in together at E Street, Suburb F and although we moved in together to co- parent, I do not believe we were involved as a couple.
The same statement is made in paragraph 8 of her affidavit filed 11 November 2020 and paragraph 8 of her affidavit filed 23 November 2020.
She is silent about the matter in her affidavit filed 4 June 2021.
By order made 9 June 2021 Ms Mang was required to file, by 14 July 2021, an Amended Response supported by affidavit providing all evidence upon which he relies including to explain her delay in making the application, any contention by her that she was in a de facto relationship with me, and what she contends constitutes the property pool.
Ms Mang’s affidavit in support of that was filed on 15 July 2021.
In it she sets out the matters upon she relies upon to justify her contention that we were in a de facto relationship.
I will now set out why a de facto relationship never existed.
We met at a fiends (sic) birthday in about 2012 but did not reconnect until about 2015.
We did not commence a relationship until 2015.
Ms Mang refers to that in paragraph 8 of her affidavit and the text messages therein referred to. During that time she lived in a one-bedroom unit in Suburb Q. I shared an apartment with my friend Mr R in the G Street, Suburb H.
I spent nights with Ms Mang at her unit. I didn’t pay board, rent or utilities or contribute to household expenses. I paid when we went out and for takeaway meals that we enjoyed at her unit. There was an intimate relationship. I was in love with her and agree that I said I wanted to marry her and wanted her to have my children. That part of our relationship, which I say was not a de facto relationship, came to an end on 18 September 2015. The text messages demonstrate that the relationship had fallen apart. Ms Mang was going to keep the card to my bank account (see paragraph 16 hereof) and the extra key that she had to my G Street, Suburb H unit until she received the $35,000 referred to in the next paragraph.
Ms Mang refers in paragraph 10 to her providing $35,000 for a deposit on a house.
This is not correct. At that time I was acquainted with a property developer who stated that I could purchase property off the plan at a lower figure. It was an investment opportunity which I discussed with Ms Mang. Annexure 4 to her affidavit 15 July 2021 shows some exchanges between us. She did give me the money. It was not used to purchase any property. I discovered that the property developer was not to be trusted. $5,000 of that money was with Ms Mang’s permission used to pay for an overseas holiday for (sic) worker of mine.
Some was used by her for car insurance and other expenses. The balance was repaid to her. The details are:
(a)12 September 2015 - I transferred $5,000 to her account for her to pay car insurance and bills that she had.
(b)18 September 2015 - I left $5,000 in cash at her unit in Suburb Q with a list of her transactions.
(c)between 18 September 2015 and 20 September 2015 - Ms Mang withdrew $6,000 from my CBA account with the card that I had given her at or about the time that she gave the $35,000 to me.
(d) on 22 September 2015 - I transferred $5,000 to her account.
(e) on 23 September 2015 - I transferred $5,000 to her account.
(f) on 7 November 2015 - I transferred $8,000 to her account.
That totals $34,000.
But I know there was more than that. I just have not been able to obtain the bank records to prove that.
Although the relationship ended 18 September 2015 it resumed in late 2015. I agree that she purchased an expensive watch for me for my birthday. The characteristics of our relationship was similar to those that existed between July and 18 September 2015 - I still spent nights at her unit, I did not pay board, rent or utilities or contribute to the running expenses of a household. I paid when we went out and for takeaway meals. We had an intimate relationship.
In 2015 I booked a holiday for us to Country S for 10 days from December 2015 to January 2016.
Then within 2 weeks of that the relationship had broken down again. I suggested that Ms Mang not accompanied me. She insisted upon coming. We had the holiday during the course of which we were intimate. That was when X was conceived.
Upon our return we did not have a relationship.
On 7 January 2016 I transferred $5,000 to Ms Mang’s account to repay the cost of the watch that she had purchased for me for my birthday in 2015. I did know at the time how much the watch cost.
I travelled to China on business from January 2016 to January 2016.
Upon my return Ms Mang asked me to come to her unit.
I was then informed that she was pregnant. She asked me for my opinion. I said I would prefer that she had an abortion. She agreed. She made arrangements to see a doctor. We went together. When the doctor enquired as to what we wanted Ms Mang remained silent. I was surprised. I said we had come to discuss an abortion. The doctor seeing that Ms Mang was not of the same mind, sent us away to think about it. Ms Mang then told me she didn’t want abortion. We argued.
Between January 2016 and March 2016 (when I went to Country D for 10 weeks) I accepted that Ms Mang was not going to have an abortion and the conversations that occurred between us were generally in relation to the child. Intimacy did occur occasionally and although I did occasionally stay over at her unit the nature of our relationship had not changed. By this I mean we were not in a relationship.
In March 2016 I went to Country D for 10 weeks. While there Ms Mang and I communicated with each other. I felt it was only right and proper that I provide support for her and X. As I was a child whose parents separated twice at the age of 5 and 13, I wanted to try my best for X’s start to life. Her one-bedroom unit was too small. I suggested that a property close to where my mother resides be rented. I said we could then share that property in the period leading up to the birth of X and the period of time after X was born. A total period not exceeding 12 months. I said I would pay the bond and rent and utilities and food and household bills. We would have separate bedrooms. We would not living there is a de facto couple. I was there to provide support. Additionally, I would be able to be with and enjoy X in the early stages of his life. Ms Mang agreed. She sourced the property at E Street, Suburb F on 16 May 2016 with the rental commencing in 2016. I paid the bond of $2,303.
We moved into the property in 2016. Ms Mang only had a fridge, washing machine and bed. I purchased all the furniture for the property. The purchases were made at T Store at a cost of $7,077.95. The purchases included a separate bed for myself which I was not charged for - “ discount approved ” appears on the invoice.
In 2016 X was born with joinders. I paid $15,000 for Ms Mang to have X at U Hospital including days in special care. I took one month off.
I stayed at the E Street, Suburb F property until 3 March 2017. During that time I paid the rent $2,303 per month, utilities and living expenses. Intimacy occurred occasionally but not in the context of us being de facto partners. We were not de facto partners. We both understood that. Ms Mang’s statements in her affidavits referred to in paragraphs 5 and 6 hereof that we were not involved as a couple support that.
On 21 February 2017 I received approval to rent the property at V Street, Suburb W for a 12 month term commencing on 3 March 2017. I moved out of the E Street, Suburb F property on that date.
Upon leaving I left all the furniture apart from my bed.
After I left I commenced spending time with X initially by agreement and then later (commencing 2 November 2017) by way of court order. Since then I have tried very hard to see X and have a relationship with him.
In terms of support that I provided a summary is:
(a) I paid the bond of $2,303 for the E Street, Suburb F property.
(b) I paid the monthly rent of $2303 on the E Street, Suburb F property until I left.
(c)While I live there I paid and living expenses (d) After I left I paid the monthly rental on the E Street, Suburb F property until Ms Mang left.
(e)I paid the bond of $1,950 for the property at Y Street, Suburb Z which is the property to which Ms Mang and X moved after she vacated the E Street, Suburb F property. The lease commenced 16 May 2018.
(f)Subsequently, Ms Mang moved from Y Street, Suburb Z to AA Street, Suburb AB. At this time I reduced the amount that I gave her as she was then living with her new partner Mr AC. I believe they were together for a little over one year during which time they became engaged and went overseas for four weeks over the Christmas period 2018/2019 during which time I cared for X.
(g) I gave Ms Mang $2,600 in June 2018 and $2,600 in July 2018.
(h) In August 2018 I gave Ms Mang $1,600.
(i) In September 2018 I gave Ms Mang $600.
(j) From October 2018 to April 2020 I gave Ms Mang $347 per month.
(k)The May 2020 payment of $347 bounced back as Ms Mang had closed X’s account.
(l)From June 2020 to December 2020 Ms Mang withheld X and I didn’t make any payments.
(m)From December 2020 payments have been made in accordance with the child support assessments. The assessments are (i) from 1 December 2020 to 18 February 2021 a monthly rate of $171.67 and (ii) from 19 February 2021 to 28 February 2022 a monthly rate of $248.83.
Other annexures to the 15 July 2021 affidavit included a Residential Tenancy Application for the E Street, Suburb F property. The Residential Tenancy Application was signed by Ms Mang on 16 May 2016 and listed the Father as the other occupant. It also indicated that Mr Scolaro was on the lease. However, the lease was not tendered and by their oral evidence the parties were disagreed as to whether the Father was a party to it.
Mother’s oral evidence
For reasons which I gave orally on the day of the hearing, I permitted the Mother to give oral evidence within limited compass.
Amongst other things, after the hearing was well underway, the Father’s counsel submitted:
“…I’m not sure whether I might have misled you…”
In substance, the concern expressed by Mr Nicholson was that he had opened his "preliminary application" – in effect to have the Mother’s case summarily dismissed – by predicating that case on the basis that there was no de facto relationship, or if there was, it was not of two years duration. Mr Nicholson had, in effect, submitted that either of these findings would be sufficient to dispose of the Mother’s application.
Mr Nicholson wished to correct this submission by accepting that, if I were to find that there were a de facto relationship between the parties and that the Child was a child of that relationship, the requirement that the relationship be of two years’ duration fell away.
Moreover, Mr Nicholson appeared to move from the position that the Mother’s, at its highest, was incapable of proving her case, to the position that there were inconsistencies in that evidence which should be resolved in the Father’s favour.
In all of the circumstances, I put to Mr Nicholson in effect that he would be best served to test those inconsistencies and that I would permit him to do so. This course was to be of the greatest assistance to the Court in evaluating the evidence.
Ms Rothschild applied to lead oral evidence from the Mother of short duration and with respect to limited topics.
I asked Mr Nicholson what prejudice he would suffer as a result of this. In effect, Mr Nicholson responded that, whereas this was to be a trial by affidavit, he now would be blindsided as to the evidence which the Mother would give. I told Mr Nicholson that I would address any such prejudice by allowing him to make any application for an adjournment after the Mother had given the oral evidence in question. Further, I would grant the Father leave to give any oral evidence arising out of that given by the Mother.
In the event:
(a)I permitted Ms Rothschild to call oral evidence from Ms Mang, confined to limited topics;
(b)Mr Nicholson did make any application for an adjournment in light of that evidence; and
(c)Mr Nicholson elected to call his client, the Father.
The topics upon which I permitted Ms Rothschild to lead oral evidence from her client were as follows:
(a)the nature of the relationship from 2015 until the Child was born in 2016;
(b)Ms Mang’s financial contributions to the relationship; and
(c)the relationship’s end date and in particular its nature post-March 2017.
As to the nature of the relationship in the period before X was born in 2016, Ms Mang gave oral evidence including that:
I would say it was a very serious relationship. The father made it very clear that he was very in love with me within the first two weeks of even dating, that I was the one for him. We talked about marriage, we talked about me being his wife and having children together. And we would, you know, stay at each other’s residence, spend as much time as possible, planning dinners, you know, weekend trips away, overseas travels together and thinking, you know, about the future.
In re-examination, Ms Mang gave the following evidence with respect to the relationship prior to the conception of the Child:
Okay. All right. Now, in relation to – you had separate residences, you at Suburb Q, him at G Street, Suburb H. Where did you – on an average week, where did you stay and where did – where did the father stay? Majority of the time, we would stay at my residence, so
....four out of – four out of – four out of seven nights it would be at my residence.
Okay. And what about the other three nights? At his residence.
Okay. So you would say that the entire week you were together at the – at one of the two apartments? Correct.
When asked, in effect, whether the parties had a relationship as a couple living together on a genuine domestic basis before they formally moved in together, Ms Mang gave evidence that:
I would say yes, I did, because he would do – he would stay over, I would do his laundry, he – you know. So we would cook and spend time together. So pretty much living together even though he had his own apartment which – where I would stay also.
With respect to her contributions, Ms Mang gave oral evidence including the following:
At the beginning of the relationship, within a few months the father already had asked if I had, you know, money or assets and, you know, what kind of – what can I – what can I contribute. He asked to borrow $35,000 that I had in my safe and I – I gave that to him in the idea that he said it would be placed for an investment.
…
And that it would be either for an investment or a down deposit for our future home. I lent that to him with evidence of transactions and all of that with my affidavit. In taking care of him from, you know, cooking to doing his laundry to running his errands, you know, I would take care of everything and we would talk about how I would do so too in the future when we have kids. So I would, yeah, contribute financially with food, buying him clothes or doing his laundry, his dry cleaning and also paying for, you know, dinners and movies, etcetera.
With respect to the relationship’s end date, Ms Mang gave oral evidence, including the following:
It still continued after the father moved out of the home in March of 2017. The reason being is because we still engaged on a weekly basis so that he can see X and that attend to his other family members for gatherings and whatnot because I was still breastfeeding and we were trying to work things out. There were occasions where we were still intimate with each other and that to me is only an indication that we were still together. And in May of two thousand and – 2017 – no, two thousand and – 2017, the father would spend time with me and he had said to himself that he still loved me and wanted to make the relationship stronger. And also he mentioned that we would also have another child – since I already have X I can also continue my life and have another child with him and him being away as well. So it was quite – that was the idea that I got from the relationship until we went to court and - - -
…
the actual day we went to court we settled that day. I can’t remember, was in 2019 or something like … end of 2017. It would be February 2018 was when we went to court. After we finished court, we had a discussion and he said to me that he was actually seeing someone.
As to the nature of the relationship post-March 2017, Ms Mang gave evidence including that:
We had dinner together. We would hang out at the home, at the E Street, Suburb F home. We could go out for lunch and dinners, spend time, watch a movie together as a family.
In re-examination, Ms Mang gave evidence that in the period post-March 2017 the couple had sexual intercourse “twice a month”. She also gave evidence that there were discussions about having another child in June/July 2017.
In cross-examination, Mr Nicholson put to Ms Mang that there were various inconsistencies in her evidence.
By way of example only, as to Ms Mang’s oral evidence that the relationship continued until Court orders were made (which, according to the Court file, first occurred on 22 November 2017), Mr Nicholson put to her that:
(a)in her 15 July 2021 affidavit, she stated that: “The relationship ended in 2017 when the applicant moved out of our joint residence”;
(b)in her 24 September 2020 affidavit, she stated that:
In 2016, the applicant and I moved in together at E Street, Suburb F, and although we moved in together to co-parent, I did not believe that we were involved as a couple.
(c)in her 23 November 2020 affidavit, she deposed that after X’s birth in 2016 the Father “was absent”, and
(d)in her 23 November 2020 affidavit, in effect she deposed that in March 2017 the Father “moved out of the residence and would only see X for a few hours on Sunday”. (Again, it was common ground that the reference in that affidavit to March 2016 was a typographical error).
In cross-examination, the following exchange occurred between Mr Nicholson and Ms Mang:
Well, would you accept from me this proposition: that, whilst the two of you may have seen each other post-March ’17, it was in the context of X not being able to go from you because he was too young and the father wanting to spend time with X and having to negotiate that time with your involvement?
I agree, but on top of that also there was – there was time spent together and there were sexual intercourse and there was talk of rekindling our relationship and having another child.
A short time later, the following exchange occurred between Mr Nicholson and Ms Mang:
What he will say is that you expressed concern that X was an only child. You wanted to have another child by the same parent. You suggested another child and he said no? …No. He said yes, and then we have to involved his mother in to take care of it as well.
All right? ..... take care of it.
Thank you? He said yes.
In spite of her affidavit evidence to the contrary, in her oral evidence Ms Mang rejected the proposition that the relationship finished in March 2017 when Mr Scolaro moved out of their shared residence.
When asked about the proposed use of the $35,000.00 Ms Mang had given Mr Scolaro, Ms Mang gave oral evidence including the following:
The intention to give him the 35,000 was so that we can invest in a property for our future home. He has – because he had that money, he was asking me if he could use that money instead to invest in that Suburb AD property or investment.
Mr Nicholson cross-examined Ms Mang to the effect that her evidence that the $35,000 which she provided to the Father was for the purpose of investing in their joint future was at variance with a contemporaneous exchange of text messages. In effect, Mr Nicholson put to Ms Mang that the text messages demonstrated that the provision by her to the Father of that sum was in the nature of a short term loan for the purchase of the Suburb AB property referred to in the extract of her evidence above and that this was unrelated to their common future. In substance, Ms Mang disagreed and said, in effect, that the purchase of that property was related to the parties’ common future.
Ms Mang also confirmed her affidavit evidence that, of the $35,000, Mr Scolaro repaid a total of $23,000.
As to her contributions during the relationship, amongst other things, the following exchange occurred between Mr Nicholson and Ms Mang:
MR NICHOLSON: And you say that you didn’t make – that your contributions to the relationship were nonfinancial?‑‑‑I would say yes, because I would buy the foods, the groceries, the clothes for him, run his errands, do the dry-cleaning, so that’s all my financial – out of my pocket – dinners, outings.
And that’s for ‑ ‑ ‑?‑‑‑Our relationship.
That’s for, at the most, you’ve made a contribution for, at the most, from 2015 to March ’17?‑‑‑No. That’s from the beginning of our relationship in 2015 – 2015.
Yes – sorry. 2015 to March ’17?‑‑‑No. I would still contribute as I go along until he moved out in March of 2017.
That’s what I said. So the contributions, at the most, were for a period of 21 months or thereabouts?‑‑‑Yes, 2015 to 2017.
Ms Mang said that, during that period, she had no income. However, she said that she made financial contributions out of her savings. She gave evidence that, on occasion, Mr Scolaro helped out financially as “he offered to do so”.
Father’s oral evidence
In response to questions about the relationship post-March 2017, Mr Scolaro gave evidence that the “relationship was minimal and for the sole purpose of being able to spend time with X.” Amongst other things, Mr Scolaro added the following remarks regarding the nature of his meetings with Ms Mang post-March 2017:
No. Not dinners. Not lunch. We – we would go for lunch to a café around the corner from the house on a Sunday during the time that I would see – be allocated to see X.
In response to question about whether Mr Scolaro and Ms Mang were sexually intimate post-March 2017, Mr Scolaro gave various responses. They included the following:
(a)“I can’t 100 per cent recall”;
(b)“After 8 July I can 100 per cent say that no”;
(c)“possibly”;
(d)“I – I – to be honest, I don’t want to say there was or there 100 per cent wasn’t, but if there was it may have been once or twice”; and
(e)“After 8 July I can 100 per cent say that no” … “because that was the date that I was told that, if I wanted to see X any more, that I would have to go through the court system”.
As to whether, in the period post-March 2017, he had discussed having another child with Ms Mang, the Father gave evidence that:
No. So in 2017, on X’s first birthday, I had come to E Street, Suburb F to pick up X and Ms Mang to go to dinner, and while I was playing with X, specifically in the kitchen, I recall, or round the living area, Ms Mang had mentioned that she felt bad for X being an only child and suggested that we have another child, which I then – I had nothing to say because I was – I was shocked at the suggestion.
In relation to questions about the nature of the relationship before the parties moved in together, referring to the period between 2015 and the parties’ holiday to Country S in December 2015, Mr Scolaro gave the following evidence:
… [Mr Scolaro’s G Street, Suburb H residence] was a two-bedroom apartment, and due to having a housemate and Ms Mang not having a housemate, we were – that’s why we would predominantly spend most of the time at Ms Mang’s place, and we would spend a couple – probably maybe at least a night to two nights a week at G Street, Suburb H.
Mr Scolaro also gave evidence that did not accept that Ms Mang made any significant financial contributions towards the relationship out of her savings. He conceded that Ms Mang may have paid for coffee occasionally. However, Mr Scolaro said that he “always paid” for significant purchases. He gave evidence that he had paid Ms Mang’s rent until he moved out of the Suburb F residence for “somewhere between the range of 14 and 16 months”.
Mr Scolaro gave oral evidence that he had not discussed buying a matrimonial home or making a shared purchase with Ms Mang with the $35,000 which she lent him. He gave evidence that rather:
The initial purpose was for a potential property site that I was involved at (sic) potentially purchasing with a business partner at the time.
In relation to his financial affairs, amongst other things, Mr Scolaro gave evidence that:
(a)his B Street, Suburb C property had been sold and he received a total of $1,900.00 in proceeds from that sale;
(b)he currently had no income and that he was “not unemployed, just having a – a break after working for a solid four years”;
(c)he “personally, [had] nothing”; and
(d)he currently had no debts.
Subsequent to his evidence that that he personally had nothing, Mr Scolaro gave evidence that he received $120,000 from his late Father’s estate in 2020, and that he had $30,000 in savings but that it was not in his name.
In response to a question from Ms Rothschild in cross-examination regarding that $30,000, Mr Scolaro said that, “my savings are with a friend of mine as a loan”. He then gave evidence that the $30,000 was the remainder of his $120,000 inheritance and said that he had lent it to his friend, Mr AE. Mr Scolaro then said that the balance of the $120,000 had been spent.
During cross-examination, Mr Scolaro gave evidence that he had “maybe” a $3,500 balance in a personal savings account.
He then repeated his evidence that he had no assets.
Later, he gave evidence that he owns $1,500 of crypto currency.
When asked about whether he owned any real estate either directly or indirectly, Mr Scolaro gave evidence that he was the co-director and shareholder of a company that owns property, albeit not in his name.
Mr Scolaro said that Mr AE was his co-director and the company is named Company AF. The company owns a town house situated at AG Street, Suburb AH. Mr Scolaro gave evidence that the property was subject to a mortgage against which there were borrowings of between $150,000 and $200,000.
Mr Scolaro said that Ms Mang was the homemaker and Child’s primary carer in the period that they lived together in E Street, Suburb F. Mr Scolaro also gave evidence that a cleaning lady helped with the cleaning in that period.
Mr Scolaro gave evidence in response to questions about the nature of the parties’ relationship when, and the circumstances in which, X was conceived. For example, he said that:
X was conceived overseas during a holiday which we had already broken up prior to the holiday, and I had asked Ms Mang to not come on the holiday but she insisted that she had wanted to come, and after we had returned from overseas, … –2016 … at that time, there was no relationship in my mind or no – no, in terms of discussions of who would be taking care of the finances or who would be looking after the day-to-day house duties.
Mr Scolaro reiterated his evidence that in the period post-March 2017, he and Ms Mang may have had sexual relations a “maximum of twice in total between March and July [2017]”.
E. SUBMISSIONS
The parties made their submissions in writing. I set out below the broad thrust of those submissions. I later evaluate the parties’ submissions, some of which are at variance with the evidence.
Mother’s written submissions – Jurisdiction question
In relation to the Jurisdiction question, the Mother submitted that she and the Father were relevantly in a de-facto relationship pursuant to s 4AA of the Family Law Act.
That section provides as follows:
4AA De facto relationships
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.
…
In seeking to satisfy s 4AA(1)(c) of the Family Law Act, the Applicant Mother relies on multiple factors outlined in subsection s 4AA (2) to demonstrate that there was a genuine de-facto relationship between 2015 and October 2017
For example, the Mother submits that:
(a)The Father moved into her home, at J Street, Suburb O in August 2015 as evidences the serious nature of their relationship.
(b)Her relationship with the Father was of a sexual nature pursuant to s 4AA(2)(c).
(c)She and Father agreed that the Father would provide financial support, while she took on the responsibility of being the housemaker, which is indicative of the financial dependence and arrangement for financial support pursuant to s 4AA(2)(d).
(d)The Father’s name, together with hers, appear on the two-and-a-half-year property lease for the property at E Street, Suburb F, which is indicative of the significant shared use of property pursuant to s 4AA(2)(e).
(e)Both the Mother and Father understood the relationship to be serious and long-term from its commencement. Matters such as the parties’ discussion of marriage and their contributions to the relationship both in the near term and for a common future indicated a strong mutual commitment to a shared life pursuant to s 4AA(2)(f).
The Mother submits that, having regard to these submissions, the Court should make a declaration pursuant to s 90RD(1) of the Family Law Act.
Further, she submits that X, is a child of a de facto relationship within the meaning of s 90RB and that this should be declared pursuant to s 90RD(2)(b).
The Mother seeks such declarations to underpin the order which she seeks under s 90SM, altering the parties’ property interests.
Mother’s written submissions – Leave question
In relation to the Leave question, the Mother seeks leave to commence property proceedings out of time pursuant to s 44(6)(a) of the Family Law Act.
The Mother referred to Edmunds & Edmunds [2018] FamCAFC 121 at [47] where the Full Court stated with respect to s 44(6)(a):
… the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. …
The Mother submits, in effect, that there is a prima facie case worth pursuing, for reasons including that:
(a)She is the main carer of the Child.
(b)She has provided both significant financial and non-financial contributions including by providing $35,000 to the Father for the purchase of a home and by being a homemaker for the Father and the Child.
(c)The Father owns property, the interests in which can be altered for her benefit.
(d)If leave is not granted the she and the Child will continue to suffer financial hardship.
(e)Hardship in this case means more than the mere loss of the right to commence proceedings. (As to this, the Mother refers to Sharp & Sharp [2011] FamCAFC 150 (Sharp) at [17].)
(f)She is currently solely relying on Centrelink benefits of $1,409.08 per fortnight.
(g)The Father has not made a significant contribution of financial support to the Child or her in the last five years: see paragraph 26 of her affidavit of 15 July 2021.
(h)She finances X’s appointments with a speech pathologist, paediatric specialist and psychologist.
In effect, the Mother submits that having regard to such matters:
(a)To deny her the benefit of a transfer or settlement of property would contribute to ongoing financial hardship for both the Child and her.
(b)There is a strong possibility the Mother’s hardship would be alleviated should she be granted leave to commence property proceedings out of time. In this regard, the Mother refers generally to Sharp.
The length of delay in bringing this application is four years and one month as the Applicant Mother stated that the breakdown of the relationship occurred in October 2017.
In essence, the Mother submits that the reason for her delay is that she was unaware of her right to commence property proceedings prior to 2020. She says that she was initially represented in 2017 by Victorian legal aid who acted solely in relation to the parenting dispute and did not advise her of any entitlement to seek relief with respect to property. In this regard, see [30], above.
On 9 June 2021, Ms Rothschild submitted as follows:
Basically because my client, when she first went through these proceedings it was obviously as a legal aid client for family, for parenting only. The issue of property was never brought up, she then came to see me, also legal aid, parenting only, there was never any advice sought in relation to property, she didn’t realise she had any entitlement, only after several discussions in relation to parenting did I say- look I think there is a property case. And I suppose- she was never aware that there was any possibility of her claiming any property.
On 24 November 2021, Ms Rothschild made the following submission in relation to her clients failure to fulfil my directions of 9 June 2021:
…Your Honour, I was present in the court when your Honour made clear orders that the application in a case, supported by an affidavit, should be filed. Unfortunately – and this is completely my fault, absolutely nothing to do with my client – we’ve had a family tragedy, and I obviously messed up. I was going through the documents yesterday, and I realised that I didn’t completely fulfil all the requirements of your Honour’s orders, and I put together – and my client swore an affidavit – to fulfil your Honour’s orders. Now, I’ve alerted my learned friend to it – to this. He, of course, rightfully told me he was going to object to it. However, as it’s my fault, it’s not my client’s fault, I would seek that – I would plead with your Honour to accept these documents anyway. If there’s any – and if there’s any consequence from the late filing, it should fall upon me and not upon my client, because it’s completely not her fault. She was always responsive. She gave instructions when asked.
The Mother made further submissions, including with respect to why her evidence should be preferred to that of Father.
Father’s written submissions
In relation to the Jurisdiction question, amongst other things, the Father submitted, in effect that:
(a)Pursuant to Section 45A(2) of the Family Law Act, the Court can give judgment in the Father’s favour on the basis that the Mother’s case on her own pleadings has no reasonable prospect of giving rise to the relief which she seeks.
(b)Even on the most favourable view of the Mother’s evidence, her case must fail.
(c)The Court is not seized of the question whether a de facto relationship existed between the Mother and the Father given the absence of any application by the Mother for a declaration pursuant of Section 90RD. In the absence of such application the Court is not even required to determine:
(i)a Section 90SM Application; or
(ii)a Section 44(6) Application.
Additionally, by his submissions, the Father objected to the Mother relying on her written submissions on the basis of the Mother’s non-compliance with Court orders. In particular, the Father pointed to the Mother’s failure to file submissions on time as well as her failure to comply with aspects of the Court’s orders at all.
Alternatively, or, as the Father put it, undercover of objection, the Father adopted the course of making substantive submissions in defence of the Mother’s case.
To this end, the Father submitted, in effect, that the Mother’s written submissions contained a number of flawed statements or assumptions about the evidence. For example, the Father put that there was no evidence to support submissions which he says that the Mother made that:
(a)the Father moved into her property at J Street, Suburb O;
(b)the Father’s name was on a two-and-a-half-year lease at J Street, Suburb O;
(c)there were arrangements made for a wedding; and
(d)the cost of pursuing a claim would be $10,000.00 - $20,000, or that such cost would outweigh the benefit that she would likely receive should property orders me be made.
Relatedly, the Father submitted that:
(a)the Mother’s submissions regarding the purpose of the $35,000.00 loan and repayments of it were inconsistent with her affidavit evidence;
(b)the Mother submits, for the first time, that the date of separation was October 2017 whereas she had not deposed to this in any of her affidavits.
Further, the Father made submissions in the following terms:
Father’s submissions based on the Mother’s Case and the Agreed Facts:
a.The Mother did not bring an Application pursuant to Section 90SM within 2 years of the cessation of the relationship, whatever such date is, with the varying dates deposed to by the Mother, on her oath, being each of:
i. January 2016;
ii. March 2016;
iv.March 2017;
v.February 2018;
as required pursuant to Section 44(5).
b.The Mother has not sought leave to bring a Section 90SM application out of time as required by Section 44(5).
c.The Mother has not established that if leave were not to be granted hardship would be caused to the party or a child as required by Section 44(6). For the Court to grant leave it must be satisfied that the Mother or the child would suffer hardship. Whilst it is the Mother’s evidence that she is dependent upon a means tested pension she further deposes that she did not work during the relationship and as such her financial position has not changed. This is as far as her submission goes. Whilst it is conceded that hardship may arise from the loss of the right to commence a proceeding,[5] it is submitted that no other form of hardship has been identified by the Mother in any of her sworn evidence before the Court.
d. The Mother acknowledges she made no financial contribution to the asset pool.
e.The Mother has entirely failed to explain her delay in bringing these proceedings.
f.The Mother in her written submissions does not address the Father’s submissions made to the Court pursuant to Section 45A(2).
g.The Mother’s evidence is so unreliable and inconsistent that the Court can give it scant, if any, weight.
[Reference in original]
[5] Sharpe v Sharpe [2001] FamCAFC 150.
Under the subheading “Hardship to the Father should leave be sought and granted:”, the Father went on to submit that:
a.There appears to be an anomaly within Section 44 in so far as it relates to married and de facto couples in that:
i.Section 44(4) provides that hardship can be caused to a “party to the relevant marriage”; whereas
ii.Section 44(6) provides for the hardship to be caused to “the party or a child”;
iii.Leading to the conclusion that in a de facto relationship hardship to the Father is not relevant.
b.Under cover of this distinction as between potential litigants seeking leave to proceed out of time it is noted that:
i.At the commencement of the relationship the Father had already purchased the property being the subject of the Mother’s Application being B Street, Suburb C and he sold the property in or around mid 2017.
ii.The property was an investment property in which the Mother and Father never lived.
iii.The Father received $1,900 net from the proceeds of the sale.
The Father made the following submissions in the alternative, by reference to his affidavit sworn 11 August 2021:
a. There was never a de facto relationship between the parties.
b.The parties were in a boyfriend/girlfriend relationship from 2015 to December 2015, such relationship being interrupted by periods of separations, coupled with the Mother’s evidence that she spent the first 6 months trying to leave the relationship.
c.Whilst the Mother and father spent nights together and there was an intimate relationship there was no sharing of finances.32
d.The parties only lived together from July 2016 to February/March 2017 as housemates for the purpose of co-parenting, which is supported by the evidence of the Mother.
e.The Father left the relationship in 2015 albeit that as a holiday had been booked to Country S from December 2015 to January 2016 the Mother did accompany the Father on the holiday. However, upon returning to Australia the Father went overseas and there was no resumption of a relationship.
The Father submitted, in conclusion, in effect that:
(a)In the absence of any application before it, for and on behalf of the Mother, for a declaration pursuant of Section 90RD, the Court does not need to determine the existence or otherwise of a de facto relationship as between the Mother and the Father. In the absence such application the Court cannot determine:
(i)a Section 90SM Application, which may or may not have in fact been sought; or
(ii)a Section 44(6) Application which has not been sought; and so her application must fail.
(b)Even on the most favourable view of the Mother’s evidence, such evidence is so unreliable and inconsistent that the Court can give it minimal, if any, weight and as such her application must fail.
(c)The Court can conclude, if it deems necessary so to do, that there was no de facto relationship as between the Mother and the Father.
F. CONSIDERATION OF THE JURISDICTION QUESTION
In Baker & Landon [2010] FMCAfam 280 at [126], Judge Riethmuller, as his Honour then was, observed:
Section 4AA(1)(c) requires a consideration of ‘all of the circumstances of their relationship’. Section 4AA(3) ensures that no particular finding is determinative. As a result it is important to not only identify particular circumstances that are relevant, but also to step back and consider the matter as a whole.
In Jonah & White [2012] FamCAFC 200, their Honours May, Strickland & Ainslie-Wallace JJ stated at [31] –[33] that:
Section 4AA(1) defines “de facto relationship” for the purposes of the Act. Subsection (c) provides that a person is in a de facto relationship with another person if, “…having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
The Court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
In Sinclair & Whittaker [2013] FamCAFC 129, Bryant CJ, Thackray and Aldridge observed at [96] and [97]:
It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements…
Each of the matters raised by these grounds was taken into account by the trial Judge. Any attempt to regard any particular factor as determinative or having particular importance is contrary to the approach to be taken as identified in Lynam v Director-General (supra).
The Father’s submission to the effect that the Court is not seized of the Jurisdiction question
I reject the Father’s submission to the effect that the court is not seized of the threshold question for the reasons set out below.
It was plain from the outset that the Father ran his case at trial on the assumption that the Mother would seek a declaration to that there was a de facto relationship. This is so for reasons including:
(a)The significant focus of the Father’s affidavit of 11 August 2021 was to rebut evidence in the Mother’s affidavit of 15 July 2021 to the effect that there was a de facto relationship.
(b)By his own pleadings, the Father sought a declaration that a de facto relationship never existed and a preliminary hearing to determine that issue.
(c)Moreover, by his putative preliminary application under s 143(2) of the Federal Circuit and Family Court Act 2021, the Father set about establishing that there was no reasonable basis for the Mother to assert that there was a de facto relationship of two years’ duration. It follows from this that the Father not only knew that this matter was “in the ring” at trial but sought to deal with pre-emptively as part of his own application. That is, amongst other things, by that application, the Father sought to persuade the Court that the very relief which in effect he now claims was not live at trial was unavailable to the Mother.
(d)In any event, each of these matters supports the proposition that the question whether I should make a declaration under s 90RD(1) and/or s 90RD(2)(b) of the Family Law Act were “in the ring” at trial and that the Father conducted his case that way. As to a matter being sufficiently live at trial or “in the ring” so as to underpin the Court’s proper determination of it, see, for example, the decision of the full Court of the Federal Court of Australia in Nescor Industries Group Pty Ltd & Ors v Miba Pty Ltd & Ors [1997] FCA 1431. The instant case is a much more obvious example of a matter being relevantly “in the ring” at trial than the facts giving rise to the full Court’s decision in Nescor Industries. This is so because the Father expressly introduced a matter as a live issue for determination by his own pleadings and preliminary application.
(e)The Father did not seek to claim that he would suffer any prejudice if the Court were to determine whether to grant the Mother relevant declaratory relief. In this regard, the following exchange took place between the Court and Mr Nicholson, for the Father:
MR NICHOLSON: No. No. No. No. Implicitly, one understands what they’re trying to do, but they’re not doing it – they haven’t done it the way…
HIS HONOUR: So, even if Ms Rothschild were to say…I seek to apply instanter for you to declare…or to find that there was a de facto relationship, and I seek leave instanter to make the application out of time. Now, you have addressed the question of the existence of…a de facto relationship. You couldn’t claim you were prejudiced of such an - - -
MR NICHOLSON: No. But I wouldn’t oppose the – I would oppose the application on the basis that you have made very specific orders for documents to be filed.
HIS HONOUR: So, on the basis of delinquency.
MR NICHOLSON: That’s right.
HIS HONOUR: Yes. And Ms Rothschild says there’s been a tragedy in her family.
(f)Given the matters referred to in (a) to (d) above, the fact that the Father could not point to any prejudice from the Court allowing the Mother to ventilate her claims for declaratory relief, the significant prejudice which the Mother would suffer if she were to be shut out of claiming declaratory relief, I consider that the balance of prejudice weighs in favour of the Mother being permitted to prosecute such claims. Moreover, absent prejudice and given that the Mother’s solicitor has taken responsibility for non-compliance with my orders, I consider that any failure by the Mother to comply with those orders provides a sufficient basis to shut her out.
Was X a child of a de facto relationship under s 90RB of the Family law Act?
Division 2 of Part VIIIAB of the Family Law Act is entitled “Maintenance, declarations of property interests and alterations of property interests”. Section 90SB relevantly provides:
90SB When this Division applies—length of relationship etc.
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)…
Note: For child of a de facto relationship, see section 90RB.
Section 90RB provides:
For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.
Section 90RD(2)(b) provides:
90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Note: For child of a de facto relationship, see section 90RB.
Again, the Mother submits that X, is a child of a de facto relationship within the meaning of s 90RB and that this should be declared pursuant to s 90RD(2)(b).
A considerable portion of the evidence led, the parties’ submissions and time spent trial was devoted to the question whether the parties were in a de facto relationship with a duration of two years or more.
However, if I accept the Mother’s submission that X was a child of a de facto relationship between his parents then this issue falls away. This is because such a finding would be sufficient to attract the Court’s jurisdiction to alter the parties’ property interests: ss 4AA, SB(b), 90RB and 90RD(2)(b).
In deciding whether the parties had a relationship as a couple living together on a genuine domestic basis, if so, the duration of that relationship and/or whether X is a child of such a relationship, I have considered all of the evidence, including the inconsistencies which inhere in the evidence of each of the Mother and the Father. I have surveyed some of the significant evidence above and it is not necessary for me to rehearse all of the parties’ evidence here. However, I make some specific observations below with respect to the parties’ evidence.
The parties’ credit generally
From the outset, I should say that on the whole I do not regard either of the parties to be a reliable witness. Set against that backdrop, it must be borne in mind that the Mother bears the onus given that it is her application to have each of the Jurisdiction question and the Leave question determined in her favour.
By way of example, I set out some of the inconsistencies in the Mother’s evidence which, together with my observations of her giving oral evidence, give rise to my concern about the reliability of her evidence.
When the dispute between the parties was confined to matters arising from the Father’s parenting application, by her affidavit evidence, the Mother sought to downplay the nature and length of her relationship with the Father. When the Mother applied to assert property rights, by her affidavit and oral evidence she sought to amplify the nature and length of that relationship.
I conclude that Mother did so because she considered that this best served her to promote her submission that the parties were in a de facto relationship, which was a necessary condition to the success of her property application.
I identify below some examples of the inconsistencies in the Mother’s evidence.
First, whereas the Mother consistently gave evidence that the relationship commenced in 2015, with which the Father agreed, her position as to the time at which it came to an end was inconsistent. The Mother’s position regarding the relationship’s end date included the following:
(a)The time at which the parties first went to Court after the commencement of the Father’s parenting application in this proceeding. This was, in fact, November 2017. However, the Mother gave evidence with respect to that date as follows: “I can’t remember…was in 2019 or something like … end of 2017. It would be February 2018 was when we went to court”.
(b)October 2017, according to the Mother’s closing submissions.
(c)June 2016, or earlier, some of the evidence in the Mother’s affidavits affirmed on 24 September 2020 and 4 November 2020 (each of which was filed before the she sought to apply for property relief).
(d)March 2017, being when the Father moved out of their joint residence in E Street, Suburb F, according to other evidence contained in those same affidavits, and confirmed in her affidavit of 15 July 2021. However, in cross examination she maintained that the relationship continued after March 2017.
Secondly, as I have noted above, when the controversy between parties was confined to questions of parenting, by her affidavit affirmed 24 September 2020, the Mother’s evidence included the following characterisation of her relationship Father:
In 2016, the Applicant and I moved in together at E Street, Suburb F and although we moved in together to co-parent, I did not believe that we were involved as a couple.
However, when the Mother sought leave to apply out of time for property relief it became necessary for her to establish a de facto relationship. Accordingly, became in her interests to establish that she and the Father had a relationship as a couple living together on a genuine domestic basis for two years.
Set against this backdrop, as I have noted above, in cross examination the Mother gave evidence by which she sought to characterise her relationship with the Father as a couple living together in a genuine domestic basis even post March 2017, when he moved out of their joint residence. In this regard, for example, the Mother said:
We had dinner together. We would hang out at the home, at the E Street, Suburb F home. We could go out for lunch and dinners, spend time, watch a movie together as a family.
Also, in re-examination, the Mother gave evidence that the parties were sexually intimate about twice a month post March 2017 for the balance of their relationship and that in June or July 2017 they discussed having another child.
Again, by way of example only, I set out below some examples of inconsistencies in the evidence given by the Father which, together with observing his demeanour while giving evidence, lead me to the conclusion that he was not a reliable witness.
First, in his oral evidence, the Father was evasive and gave inconsistent evidence with respect to the existence and frequency of sexual relations between the parties post 2017: see [72] above.
Secondly, the Father’s evidence with respect to whether he had any assets was likewise evasive and inconsistent. That evidence swung from the position that he had nothing to the position that he had nothing in his own name but controlled assets including a share in a company, and thereby real estate. Likewise, after giving evidence that he had nothing, the Father also said that he had $30,000 in savings but that it was not in his name but rather in the name of his friend, Mr AE, who was the other director and shareholder of that company. He also said that he had crypto currency and “maybe” cash. (See [77] to [84] above.)
The Mother has discharged her onus – X is child of de facto relationship
Despite the unreliability of some of the Mother’s evidence, I find that she has discharged her onus of proving that X is a child of a de facto relationship within the meaning of s 90RB. I do so after considering all of the parties’ evidence and submissions. My reasons for doing so include those set out below:
(a)I find that from, or shortly after, the commencement of the parties’ relationship in 2015 – save for any break in the relationship, which I deal with below – they slept over at one or other of their respective residences all or most nights of the week until they went overseas.
(b)This is the effect of the Mother’s oral evidence, which is extracted at [54] to [56] above and relevant portions of her affidavit evidence extracted at [34].
(c)I also accept that during that time, the Mother contributed to the relationship including by cooking, cleaning, doing the Father’s laundry and running chores for him while he was at work. Whatever be the characterisation of the $35,000 even on the Father’s case it was money which she lent to him: for example, again see [34] and [54] to [56].
(d)Likewise, I find that during that period, the parties had expressed significant commitment to one another with a view to a common future which included their marriage and having children together. The Father concedes that this was the case at least up to a break in the parties’ relationship in September 2015. The Father also concedes that the relationship mended in October of that year and bore the same characteristics as had pertained to it previously. (The Father contends that the relationship again breakdown in about mid December 2015. I deal with this below.) This position is also consistent with many of the text messages exhibited to the Mother’s affidavit of 15 July 2021.
(e)After hearing the Mother’s oral evidence on this matter, the Father gave oral evidence relevantly as follows:
… [Mr Scolaro’s G Street, Suburb H residence] was a two-bedroom apartment, and due to having a housemate and Ms Mang not having a housemate, we were – that’s why we would predominantly spend most of the time at Ms Mang’s place, and we would spend a couple – probably maybe at least a night to two nights a week at G Street, Suburb H.
(f)By his affidavit of 11 August 2021, the Father contradicts the Mother’s relevant evidence only to the extent that he says that the parties’ relationship of that type came to an end on 18 September 2015. Also, the Father asserts that the relationship ought not be characterised as a de facto relationship, however, I put very little weight on the Father’s legal characterisation of the relationship.
(g)Again, for example, by that affidavit, the Father gives the following evidence:
I spent nights with Ms Mang at her unit. I didn’t pay board, rent or utilities or contribute to household expenses. I paid when we went out and for takeaway meals that we enjoyed at her unit. There was an intimate relationship. I was in love with her and agree that I said I wanted to marry her and wanted her to have my children. That part of our relationship, which I say was not a de facto relationship, came to an end on 18 September 2015. [Emphasis added.]
(h)I accept the Mother’s evidence to the effect that by “late September-late 2015, the [Father] and [she] had reconciled and had continued to live together”.
(i)Indeed, by his affidavit evidence, the Father accepted that although the relationship ended on 18 September 2015 it resumed in 2015. Likewise, the Father accepted that the Mother purchased an expensive watch for him for his birthday. The Father also conceded that “the characteristics of [the parties’] relationship was similar to those that existed between July and 18 September 2015”.
(j)The Mother exhibited banking records as an objective proof that the purchase of the watch was $5800. I accept her evidence to the effect that this was a very expensive purchase for her and that she would not have bought the watch for the Father after only dating him for four months unless she were seriously committed to their relationship.
(k)Again, there is objective evidence from both parties with respect to the seriousness of the relationship. Such evidence includes the Father’s concession in affidavit evidence that he was in love with the Mother and that he told of that he wanted to marry her and for her to have “his children”. Likewise, the Father sent many text messages to the Mother which express the same sentiment.
(l)Amongst other things, the Father’s evidence is that in “November/early December 2015” he booked a holiday for the parties to Country S for 10 days from December 2015 to January 2016. In the context of the other evidence, this is indicative of an ongoing committed relationship.
(m)However, the Father gives evidence that “within 2 weeks of that the relationship had broken down again. I suggested that Ms Mang not accompanied (sic) me. She insisted upon coming. We had the holiday during the course of which we were intimate. That was when X was conceived”.
(n)On analysis, then, the Father’s evidence is to the effect that the relationship broke down in about mid-December, being about two weeks after he booked the holiday.
(o)Having regard to the surrounding circumstances, I reject as inherently implausible the Father’s evidence about the extent and duration of any breakdown of the relationship at that time – if it had broken down at all.
(p)It is difficult to harmonise the Father’s evidence in that regard with the objective facts that:
(i)The Father says that the relationship broke down in about mid-December and when the parties in fact went away to Country S in December 2015. Accordingly, any breakdown of the relationship prior parties going on holidays was for a duration of approximately only 7 days.
(ii)The Mother and Father went away to Country S together in December 2015 for a 10 day holiday.
(iii)Given that the Father had bought holiday, if the parties were not in a relationship, it is hard to see how the Mother could have “insisted” on coming. This is inherently implausible.
(iv)During the holiday, they shared a room and had unprotected sexual relations. This is inherently inconsistent with the relationship having come to an end prior to that time.
(v)The holiday, replete with its unprotected sexual intimacy, occurred in the context of a relationship in which in the relatively recent past the Father had exhorted the Mother to have “his children” and had discussed the Mother’s prospective role as a parent and homemaker.
(vi)In cross examination, the Father accepted that when he had relations with the Mother during the holiday there was the possibility of conceiving a child and that he did not tell the Mother that he no longer wanted to have a child with her.
(q)In cross-examination, the Father did say that at the time of X’s conception he gave no thought to an allocation of roles or responsibilities between the parties for the care of any child of the parties because he considered that they were no longer a couple. Accordingly, he said that previous conversations between the parties about having a child and their respective roles and responsibilities for the care of that child were no longer apposite.
(r)Despite this, when I observed the Father the cross examined with respect to his evidence that the relationship between the parties had broken down at the time of the holiday, I did not find it convincing. Again, consistently, with such observations, the Father’s evidence in this regard is discordant with the objective surrounding circumstances, or at least the preponderance of them.
Has the Mother discharged her onus of proving a de facto relationship of two years’ duration?
Having regard to all of the evidence and submissions, I find that the Mother has not discharged her onus of proving that her defector relationship with the Father was of two years’ duration.
As I have identified above, the Mother’s evidence in this regard was inconsistent. However, the evidence of the Father was likewise inconsistent. In particular, the Father sought to deny that the relationship bore the character of a de facto relationship whilst conceding that it had many integers of such a relationship.
Despite the inconsistencies in the Mother’s evidence, having regard to all of the evidence of each of the parties and the objective surrounding circumstances I accept that the parties were in a de facto relationship between 2016, when they moved into the E Street, Suburb F property until March 2017.
Despite the Mother’s earlier affidavit evidence to the contrary, I find that – consistently with aspects of the Mother’s affidavit of 15 July 2021 – when the parties moved in to E Street, Suburb F together, they sought to make their relationship work and, in fact, lived together as a couple on a genuine domestic basis.
For example, I find that:
(a)During that time, the Father made the significant financial contributions and the Mother was the primary homemaker and parent and accordingly made significant contributions to the parties and the Child at least to that extent.
(b)Both parties contributed to the parenting of the Child. The Father took a month off work to be with the Mother and Child after the birth.
(c)Both parties contributed household items.
(d)The parties jointly applied for tenancy of the E Street, Suburb F property of over two and ½ years’ duration, although the parties were in dispute as to whether they both signed the lease, itself.
(e)The parties were sexually intimate. In this regard, by his own affidavit evidence, the Father says: “[i]ntimacy occurred occasionally but not in the context of us being de facto partners”.
Indeed, having regard to the parties’ evidence, there some basis to find the relationship between the parties continued beyond March 2017, when the Father moved out of the E Street, Suburb F residence, until June of that year. On the evidence which I have surveyed above, it is uncontroversial that the parties spent time together in that property during that period, shared meals, parented X and were sexually intimate – although the parties were not agreed on the frequency of that intimacy.
However, in the end, I prefer the view that the de facto relationship came to an end in March 2017. As I have observed above, the Mother gave inconsistent evidence as to the relationships and date. However, she perhaps most consistently asserted that came to an end when the Father moved out of the E Street, Suburb F property. This evidence is consistent with the objective facts the Father moved out of the property time.
Given that:
(a)it is uncontroversial that the relationship commenced in 2015; and
(b)I have found that, on balance, it came to an end March 2017,
it follows that the Mother has failed to discharge her onus of proving that the relationship was of two years’ duration.
However, as I have already observed, this is not fatal to the Mother’s application for property relief. This is so because I have found that X was a child of the de facto relationship between his Mother and Father.
G. CONSIDERATION OF THE LEAVE QUESTION
Ms Mang seeks the Court’s leave, pursuant to s 44(6) of the Family Law Act, to file an application for the alteration of property interests under s 90SM of the Family Law Act.
Relevantly, s 44(5) and (6) of the Family Law Act provides:
44 Institution of proceedings
…
Proceedings in relation to de facto relationships
(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i)2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
…
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
In Whitford & Whitford (1979) FLC 90 at 78 (Whitford), 144, the Full Court held on an application for leave under s 44(3), and in this case s 44(6), that:
… two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the … [de facto relationship] if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
Meaning of Hardship
The formulation of hardship for the purpose of s 44 of the Family Law Act is discussed in Sharp. In that case, May and Ainslie-Wallace held at [17] – [21]:
Hardship
17.It is well accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
18.In assessing hardship in this context the well established test is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
19.In considering the meaning of hardship, in Whitford at 78,144 the Court said:
... The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted … If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
20. Further at page 78,145 the Court said:
… As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec. 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
21. At the same page the Court continued:
In an appropriate case, and depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value …
In Sharp, Young J observed at [128] – [135] that:
128.In Whitford (supra) the Full Court at 78,144 to 78,145, in addition to the passages cited in the reasons of May and Ainslie-Wallace JJ above, specifically considered the meaning of hardship as stated in s 44(4)(a). The Full Court observed that:
In our view the meaning of “hardship” in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. Cf. the meanings assigned to “hardship” in the Shorter Oxford Dictionary and in Webster’s New International Dictionary. See also In the Marriage of Mackenzie (1978) FLC 90-496javascript:void(0)javascript:void(0)…
…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.
129. Similarly, in Hall (supra) at 78,627 the Full Court stated that the authorities:
…have considered what is meant by the term “hardship” in this context, and the term “substantial detriment” seems to be the generally accepted interpretation of that word.
130.It follows from the discussion in Whitford (supra) at 78,144, and Hall (supra) at 78, 627, that in the context of s 44(4)(a) hardship has a broad meaning and, as identified by the majority, although the mere loss of a prospective entitlement to pursue a substantive claim may not of itself constitute hardship it is the consequences attending the loss of the right “with which the subsection is concerned”. However, in Whitford (supra) it is important to note that the Court observed at 78, 145 that:
Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances. Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property relations of the parties adjusted or resolved, may constitute hardship. In some cases, where a resolution of the property or financial relationships of the parties is desired, it might be, that the applicant would receive no more or even less, than he or she already owns at law or in equity. Nevertheless, hardship might be caused to the applicant if leave were not granted so as to facilitate such resolution…
131.From the observations in Whitford (supra) and Hall (supra), and in view of the recent authorities of the Full Court on the subject of hardship, it is apparent that an assessment of hardship requires the Court to consider whether the applicant would suffer a substantial detriment as a consequence of the loss of the right to institute the proceedings, although that detriment, in the circumstances of a particular matter, may not be entirely related to financial considerations. In my opinion, it is not possible nor desirable to define exhaustively what will, in all the circumstances of a particular application, constitute hardship for the purposes of s 44(4)(a). However, in undertaking the exercise the Court should have regard to the nature of the jurisdiction exercised by the Family Court and the power should be “exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi” per Whitford (supra) at 78,146.
132.In undertaking an assessment of hardship the Court is required to consider whether the applicant has established a prima facie claim and in Hall (supra), at 78,627, the Full Court stated that:
Fundamental to [a finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. For example in Swallow’s case (unreported Emery J, 16 September 1977; referred to in McDonald’s case) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald’s case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie’s case it was described as being “a probability of success”, and in Whitford’s case the distinction was said to be that the applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins’ case (1979) FLC 90-600 Lindenmayer J described it as “a reasonable probability of the claim being successful in some measure”.
These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental inquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the court…
133.In Althaus (supra) at 77,267 the Full Court similarly observed that “[t]he exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.”
134.More recently in Hedley (supra) at paragraph 215, Cronin J cited the Full Court decision of Richardson (supra) at paragraph 14, in which Finn, Warnick and Boland JJ stated and affirmed the principles set out by the primary judge who observed that “it is not a decision about whether the claim will succeed but whether there is a reasonable claim to be heard”.
135.In my opinion, in undertaking a determination of whether the requisite hardship will be occasioned to the applicant under s 44(4)(a) what is required by the Court is an assessment of the asserted hardship, and in view of that hardship, a determination of whether the applicant has demonstrated that there is a reasonable claim to be heard. If the applicant has established that there is a reasonable claim to be heard and has demonstrated that she or he would suffer hardship in the form of a substantial detriment as a consequence of the loss of the right to institute the proceedings, then the statutory precondition in s 44(4)(a) will be satisfied and the Court may then consider whether in all the circumstances leave should be granted to allow the application under s 44(3) of the Act.
The parties’ submissions on the Leave question
I have set out the Mother’s submissions with respect to the Leave question at [96] to [103] above and the Father’s at [111] to [113].
Consideration of hardship
I accept the Mother’s submissions that, if I were to refuse leave, she and the Child would suffer hardship in the relevant sense.
The Mother’s uncontested evidence was that:
(a)She is currently relying solely on Centrelink benefits of $1,409.08 per fortnight.
(b)The Father has not contributed significantly to financially support the Mother and X in the last five years.
(c)The Child …“has additional needs due to delays in speech and development”.
(d)She pays for X’s appointments with a speech pathologist, paediatrician and psychologist.
I accept that evidence. For reasons which I develop below, I have also accept that the Mother has demonstrated at the very least that she has a prima facie property claim against the Father which is worth pursuing or has a real probability of success. I am satisfied that such a case is worth pursuing after taking into consideration the parties’ respective arguments about its potential cost. I consider this aspect further below.
Having considered all the parties’ submissions and evidence on the question, I am satisfied that, the Mother would suffer hardship within the meaning of s 44(6) should leave not be granted.
Asset pool
I deal with the potential asset pool at [77] to [84] and [138] above.
From the analysis in those paragraphs, three points emerge as to the asset pool. First, the Father’s evidence about the asset pool available to him was evasive and unreliable. Secondly, amongst other things, in light of that fact, the precise extent of that pool cannot now be known. Thirdly, having regard to the Father’s evidence, he also has – or, is likely to have – access to assets the interests in which are capable of being altered in accordance with s 90SM, so as to ameliorate the Mother’s hardship. In this regard, amongst other things, I take into account the Father’s evidence of his ownership of half of the shareholding in a company which owns real estate – albeit encumbered. I also take into account the $30,000 in the name of a friend which he sought to characterise as a loan.
Moreover, the Mother gave evidence that the Father had a significantly greater earning capacity than her. The Father’s evidence is that he has chosen not to work currently because he is taking a break after four years hard work. Given that the uncontested evidence is that he has not been supporting the Child, it is not clear where the money which he earned has gone. Likewise, it is not clear what became of the $90,000 balance of the Father’s recent inheritance of $120,000 – the Father says that he has spent it.
As I observed above, the Mother’s counsel was critical of the Mother’s failure to comply with my orders of 9 June 2021 which, in effect, required her to identify the asset pool. However, again, the Mother’s solicitor took responsibility for this failure.
In any event, the mere fact that the order was not fulfilled does not entail the consequence that the application ought be dismissed. I have already dealt with the fact that I consider that the balance of prejudice is in favour of allowing the application to proceed.
The Father takes the point that the only specific property referred to in the Mother’s Amended Response is the B Street, Suburb C property. He notes that he gave evidence that this property has been sold and that the net proceeds of sale were derisory.
However, the B Street, Suburb C property does not exhaust the limits of the property claims which are the subject of the Mother’s Amended Response.
In addition to seeking repayment of the balance of the $35,000 which he provided to him, the mother seeks an order that the father make full and frank disclosure of his financial circumstances. Further, she seeks an order that she be excused from further particularising her application until there is a full and frank disclosure by the Father.
Fundamentally, having regard to the evasive nature of the Father’s evidence with respect to his available assets, I have no confidence that the Mother would have been able to fulfil my direction that she identify the property pool in any event. Put another way, the Father commenced by saying that he “had nothing” and the reality that he had access to assets only emerged during cross-examination.
Prospects
I have dealt with the evidence with respect to the Father’s access to assets, above.
For reasons which I have given above, X is a child of a de facto relationship between his Mother and Father.
The uncontested evidence is that the Mother has overwhelmingly been the Child’s primary care giver throughout his life – including to the present.
Moreover, the matters which I have identified in [156] above demonstrate that the Mother relies on low social security payments to fund her own living expenses and those of the Child, including the Child’s necessary medical and allied health bills.
Having considered all of the evidence and the parties’ submissions, I consider that the Mother has clearly overcome her burden of demonstrating a prima facie claim worth pursuing or which has a ‘real’ probability of success.
Likely costs of property application
By her affidavit of 15 July the Mother estimates that the likely cost of pursuing her property claim ranges from $10,000 to $20,000. She submits that this cost is unlikely to outweigh the benefits the Mother may receive because the Father eventually gave evidence that he had control of assets.
The Father submits that little weight should be given to the Mother’s estimate of the likely costs. The Mother does not provide the basis for her estimate. The Father submits that, in any event, such estimate is too low. However, he provides no alternative estimate – which he was well able to do.
To the extent that the Father submits that it is not possible for the Court precisely to evaluate the likely costs of the Mother’s property application, I accept this submission. Indeed, the costs of the application will depend in part on the approach taken by the Father to defending it.
However, much of the factual matrix giving rise to that application has been ventilated between the parties in detail in the instant application. That work has been done and the legal costs associated with it spent.
For example, in this application, the parties have ventilated the history of their relationship and their respective contributions to it in some detail. Moreover, the Mother has given detailed evidence about her financial position and her need as well as those of the Child.
One of the significant remaining issues is to nail down the Father’s asset position and income earning potential. This should not be particularly expensive if the Father is compliant in this regard. It does not lie his mouth to contend that he will not.
In light of these matters, if the Mother’s proposed application is efficiently run, it should not be unduly expensive. Indeed, having regard to the work which has already been done by the parties in relation to the facts underlying that application, one option open to them is to settle the case at an early stage.
In any event, for the reasons which I have given, in my view the potential benefits of that application outweigh its likely cost.
It should be borne in mind that even a settlement of property which does not appear to be “sheep stations” in the context of some de facto relationships may make a substantial difference to the life of the Mother and Child in this case. This observation should not be confused with a disregard for or subordination of weighing the likely cost of the application in the calculus of whether to grant leave to pursue it. As will be apparent, I have considered and weighed that element.
Discretion
I have already found that, if I were to refuse the Mother leave to commence property proceedings out of time she and the Child would suffer hardship within the meaning of s 44(6).
For the reasons given above, I exercise my discretion to grant leave to the Mother to institute property proceedings out of time pursuant to s 44(6). Amongst other things, for those reasons, I find that:
(a)The Mother has satisfactorily explained her delay in commencing proceedings on the basis that she was relevantly unaware of her right to do so. The Mother’s solicitor has taken responsibility for some delay as well as some procedural failures. Without more, such matters should not now lie at the feet of the Mother.
(b)The Mother has clearly overcome her burden of demonstrating a prima facie claim worth pursuing or which has a ‘real’ probability of success.
(c)The potential benefits of the application outweigh its likely cost.
(d)The Father has been evasive about his financial position and, to do justice between the parties, that position should be further explored.
For these reasons, I make orders in the terms set out above.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 11 May 2022
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