Ting & Fingal - [2013] FamCA 29

FAMILY COURT OF AUSTRALIA

TING & FINGAL

[2013] FamCA 29

FAMILY LAW – JURISPRUDENCE - De facto relationship alleged but issue disputed - No jurisdiction to make interim orders where there is no evidence of the existence of a de facto relationship

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

Briginshaw and Briginshaw (1938) 60 CLR 336
Moby v Schulter [2009] FamCA 1285
Re Ross-Jones; ex parte Green (1984) 156 CLR 185
Wise and Mathews [2010] FamCA 1194

APPLICANT:

Ms Ting

RESPONDENT:

Mr Fingal

FILE NUMBER:

MLC

130

2013

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Ben-Simon

SOLICITOR FOR THE RESPONDENT:

Joan Scapetis

Orders

Save as to the orders that follow, that the application for interim orders contained in the initiating application filed 8 January 2013 and the response thereto filed 24 January 2013 are both dismissed.
That the application for a declaration under s 90RD of the Family Law Act 1975 (Cth) is fixed for hearing and determination as a two day case at 10.00am on 15 April 2013 as a two day hearing.
That the applicant file and serve any affidavit material that she intends to rely on by 4.00pm on 20 March 2013.
That the respondent file and serve any affidavit material upon which he intends to rely by 4.00pm on 4 April 2013.
That the respondent file and serve a financial statement complying with the Family Law Rules 2004 by no later than 4.00pm on 4 April 2013.
That each party comply with Chapter 13 of the Family Law Rules relating to the issue of disclosure.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ting & Fingal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 130 of 2013

Ms Ting

Applicant

And

Mr Fingal

Respondent

REASONS FOR JUDGMENT

Ms Ting (“the applicant”) filed an application on 8 January 2013 seeking orders for an adjustment in her favour of the property owned by Mr Fingal (“the respondent”) along with spousal maintenance payments. She alleged that she and the respondent were in a de facto relationship from 8 September 2004 until October 2012 when the relationship came to an end.
By his response filed 24 January 2013, the respondent sought a dismissal of the applicant’s application and consequential orders for the applicant to remove caveats on his properties.
This application is brought under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
For the Court to have the power to make the orders sought by the applicant, it must have the jurisdiction to do so and as such, the requirements of the Act must be met. The response of the respondent clearly raises the jurisdictional question.
Pending the determination of that jurisdictional question, the applicant seeks interlocutory orders which may loosely be described as injunctions relating to the disposal or alteration of property interests and also spousal maintenance. Other orders were sought but they were procedural in nature and hardly controversial.
Counsel for the applicant submitted that there was jurisdiction to make the interim orders notwithstanding the disputed de facto relationship. He referred to a decision of mine in Moby v Schulter [2009] FamCA 1285 but in that case, I was prepared to make interim orders because I was satisfied that the jurisdictional requirements had been met. Counsel also referred me to Wise and Mathews [2010] FamCA 1194, a decision of Johnston J but that too was one in which the issue of jurisdiction depended upon disputed facts and his Honour was not prepared to make orders without jurisdiction being first established.
There is a serious issue of jurisdiction to be tried here because the facts alleged by each party, as I have set them out below, are contentious. The respondent maintains that there was never a de facto relationship.

The legal issue

Section 39B(1) of the Act says that jurisdiction is conferred on this Court with respect to matters arising under the Act in respect of de facto financial causes instituted under the Act.
A de facto financial cause is defined in s 4 of the Act to mean proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship or, relevantly, proceedings between them with respect to the distribution, after the breakdown of a de facto relationship, of the property of the parties or either of them.
A de facto relationship has the meaning given by s 4AA. I shall return to that. As I mentioned, counsel for the applicant submitted that pending the ultimate determination of the jurisdictional question, the Court had power to make the orders his client sought.
It is clear that this Court has jurisdiction to determine whether or not there are sufficient facts upon which jurisdiction depends (see Re Ross-Jones; ex parte Green (1984) 156 CLR 185).
In effect, if there is no de facto relationship as determined by that inquiry, there can be no de facto cause and therefore s 39B is not satisfied in respect of jurisdiction.
In Re Ross-Jones (supra) Wilson and Dawson JJ made clear that the power to determine jurisdiction does not in any way extend the jurisdiction of the court. Their Honours said:
If a matter is beyond the jurisdiction of a court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief.
There must be a prima facie case that jurisdiction exists and their Honours went on to say that for the exercise of the interlocutory relief, there had to be compelling circumstances showing a need to preserve the status quo.
Whilst it is clear therefore that the Court has jurisdiction to grant interlocutory relief in respect of the matters that require determination in relation to the jurisdictional fact, the Court does not have power to make orders in Part VIIIAB without a de facto relationship being first established. Thus, the provisions of ss 90SE, 90SG, 90SL and 90SM even on an interim basis, including an urgency basis, cannot be made unless the Court is satisfied that there is a de facto relationship.
Section 90RF provides that a party may apply for a declaration under s 90RD and that provision describes the nature and extent of the declarations that can be made. In this case, such an application has been made.
Section 90RE provides that such a declaration once made has the effect of a judgment of the Court but that declaration can be set aside if the Court is satisfied that a fact or circumstance has arisen that had not previously been disclosed to the Court provided that the fact or circumstances was not within the person’s knowledge at the time that the declaration was made. Thus, the setting aside of declarations is not that simple particularly in circumstances such as here, where the facts are starkly controversial. Section 90RH(3) provides that a court may upon setting aside a declaration, make such orders as it considers just and equitable for the placing, as far as practicable, any person back in the same position that they would have been had the declaration not been made. Counsel for the respondent raised concern that even if there was a prospect of a declaration being made, that provision would not assist because it was asserted that the applicant was impecunious and therefore the money could not be recovered. She submitted on behalf of the respondent that the Court should be careful in approaching the evidence about jurisdiction and apply the well-known statement of Dixon J in Briginshaw and Briginshaw (1938) 60 CLR 336 as to the standard of proof.
In circumstances where the applicant pleads impecuniosity and seeks spousal maintenance as well as a partial settlement of property, a court should be cautious on an interim basis in making orders that, whilst they may be able to reversed, they become impracticable because of impecuniosity.
Against that however is the requirement in s 4AA(4) which reads:
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.
Notwithstanding the invitation to give such weight as it considers appropriate including in an interlocutory application, a court should be careful in an interim hearing to ensure that an injustice cannot be rectified later. The warning bells should ring when impecuniosity is pleaded.
The critical jurisdictional question lies in examining the facts in the light of the definition of a de facto relationship. Section 4AA(1) provides that a person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family; and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
There are some qualifications to those provisions but they are not relevant for my purposes.
Section 4AA(2) provides that the circumstances referred to in (c) above include a variety of circumstances but the section makes clear that it is not an exhaustive or exclusive description of what constitutes a relationship as a couple. What is not affected by s 4AA(2) or any other provision is the Court’s interpretation of the parties living on a genuine domestic basis. On that issue, the legislation remains silent and therefore the provisions of s 4AA(4) leave the Court in a position where it must do the best it can.

The evidence

The applicant is a 54 year old clerk with what she described as a professional degree. She said she was not qualified to practice in an accredited capacity and because of the termination of her employment by the respondent or his corporate entity, she, being without a termination certificate, has been unable to obtain Centrelink benefits. There seems little doubt that the applicant worked in one form or another for and with the respondent between 2004 and 2012. Even on the issue of the applicant’s qualifications, the respondent disagreed. He said that he had never seen the professional qualifications and the inference that he asked the Court to draw was that they did not exist.
The applicant said that she was in poor health and was being treated by her general practitioner and a psychologist for counselling presumably arising out of the problems of the ending of the relationship as she saw it.
The respondent is a corporate officer aged 66 years whose work revolves around the transport industry. He maintained that he had never been in a de facto relationship with the applicant and at all times and continuing, is and was married. He also maintained that he was not in good health. He has a number of corporate entities under his control which conduct a variety of businesses.
The applicant maintained that the respondent promised to transfer a unit to her that was being built and in a curious piece of evidence, said that she had an entitlement by virtue of a constructive trust. How she knew that was hard to know and it sounded remarkably like a legal argument rather than evidence. She also sought a share in a company of the respondent or money equivalent to that value but again, the issue was unclear as to why.
The applicant said that she met the respondent in 2003 and from August 2004 was “intimate”. At no stage throughout her evidence in the affidavit did she describe what that meant. She said she became the respondent’s clerk in September 2004 whereupon he invited her to “live with him” at his house and she consequently moved in. She said they shared housekeeping, cooking and shopping and she then began to lend him money.
In a stark contrast to the applicant’s evidence, the respondent said that he had never been intimate or in a de facto relationship with her and whilst she certainly worked for him as his clerk, he had never paid her expenses. He said she moved into the house to look after it and his animals when he went to Indonesia where his wife and child lived. He said she remained in the spare room and cleaned his house but at no stage were they ever “intimate”. Again, no definition of intimacy was provided.
The applicant said that as part of their relationship, they usually dined out together on Friday nights but not always and when they were at home, they both cooked. The respondent simply denied that ever occurred. The applicant said they went out socially together and even referred to birthday parties in 2005, 2006, 2007 and 2010. She referred to celebrating Christmas and New Year together at times and they were also intimate as a consequence. Again, the respondent bluntly denied there was ever any intimacy and whilst acknowledging they went out socially, he said it was never as partners. He pointed to the fact that he often went out with employees. The applicant referred to a birthday invitation which was addressed to both of them but the respondent responded as saying that all of the employees received those sorts of invitations.
The evidence of the applicant was that when the respondent had his wife brought from Indonesia twice per year, she moved out of the home until they returned to Indonesia but left her belongings in that house. The inference to be drawn from that evidence was that she was to be hidden from the respondent’s wife. The respondent for his part simply said that she moved out because there was not sufficient room in the house and he acknowledged that she left her chattels behind.
The applicant said that in 2007, the respondent asked her to move to an apartment over the office out of his house and she accordingly advised the motor car registration office of that move. There is a dispute about even that fact because the respondent said that it was the applicant who asked could she move into that accommodation which had been used as employee quarters before.
In another stark contrast, the applicant said that the respondent even bought her furniture and he simply denied that was true. She said that when the wife of the respondent arrived in Australia, he “stayed overnight” with her during the weekends. Again, the respondent denied there was any intimacy at all.
At all times, the respondent said that the applicant had a separate room to him.
Between 2009 and 2012, the applicant said she lent money to the respondent’s company to pay its bills and that came out of her personal resources. Even that was disputed and because of the short period of time that the respondent had, he said that the allegation was being examined by his financial advisors. I certainly would not be in a position to make any finding about the relevance of that particular issue in this case in any event.
Also in relation to financial matters, the applicant said that the respondent had a business in Southeast Asia and she went there. That was not disputed by the respondent. The applicant said she paid her own airfares as well as some of the costs of the business. On that issue, the evidence is yet to unfold. I do not know what the respondent’s position is in relation to that matter. It occurs to me that it would be unusual for an employee to be paying their own expenses associated with the business activities.
In February 2012, the applicant said she was dismissed by the respondent on what appears to be grounds of inability of the business to continue to afford her but she said she continued the intimate relationship despite the ultimatum. It was not until the end of 2012 that she was actually removed virtually physically from the business by the termination of her access to the company’s accounts. Even on that issue, the parties did not have any agreement.
Even subsequent to the February 2012 ultimatum, according to the applicant, she continued to provide money towards the business activities. It was vaguely submitted by counsel for the respondent that those monies went towards the company but on any view, the company is the alter ego of the respondent. Nothing turns on that.
Earlier I set out the provisions of s 4AA(1). It will be seen from what I have set out that there is nothing that the parties agree upon as to the nature of their relationship. It is unclear whether they were intimate friends, good friends or simply employer and employee. It is interesting to note that the applicant sought legal advice from a solicitor other than the firm acting for her in this proceeding concerning her entitlements consequent upon the termination of her employment. It was submitted by counsel for the respondent that I could draw an adverse inference against the applicant because there was no reference in the correspondence to the parties being in a de facto relationship and the claim was simply made as an employee. I would not draw such an inference certainly on an interim basis having regard to the complexities of how the Court works out what constitutes a de facto relationship.
I am certainly satisfied that the persons were not legally married to each other and not related by family but having regard to all of the circumstances that I have outlined above, I could not be satisfied on an interim basis and without the evidence being tested, that they lived together on a genuine domestic basis. All of the evidence of the applicant points to the fact that they were intimate, shared a residence and there was some financial interdependency. The respondent denies all of those matters and the issue needs to be tested. Until that time, there is not sufficient evidence of a domestic relationship that I could find exists nor could I find that they were living as a couple.
On the basis of that finding, the application for spousal maintenance is beyond jurisdiction.
The applicant also sought injunctive orders. They were wide ranging and counsel for the respondent maintained they were oppressive in that they restricted his business.
Injunctive orders should only be made where there is evidence that if no such order is made, there is a serious prospect that the respondent would take action to thwart the applicant having the benefit of any judgment. Having regard to the evidence before me of the accountant and the assertion of the respondent as to the nature of his business, I could not be satisfied that it would be proper to make an order restraining the respondent in the terms that the applicant sought. That does not mean however that the applicant is not entitled to full discovery and information of the type set out in the Family Law Rules 2004.
It is not appropriate to simply dismiss the applicant’s claim and I was not invited to do so on the basis of summary dismissal. There is clearly an issue to be tried. It being a financial issue, the respondent has all of the obligations of any other litigant under the Family Law Rules in relation to disclosure including the completion of a financial statement.
The respondent sought the removal of caveats. In my view, it is inappropriate that I take any action against the applicant there either. A caveat can only be placed on a title in circumstances where the Registrar of Titles is satisfied that a caveatable interest is pleaded. Section 89A of the Transfer of Land Act 1958 (Vic) provides the mechanism by which that caveat can be removed if there is a certification by a lawyer to the Registrar of Title that no caveatable interest exists. The Registrar, as occurred here, declined to remove the caveats because there was litigation pending. In my view, it would not be appropriate for me to make any order in that regard until the issue of whether there is an interest let alone a caveatable interest.

Even if I was wrong about that approach, nothing in the evidence of the respondent would satisfy me at this stage that there is a justification for me making an order that the applicant remove them. That does not mean that a further application could not be made.
I record also, because the issue was raised, that the applicant has objected to the solicitors for the respondent acting for him and that that issue has not been determined because an application has not been formally made.
I propose to make orders accordingly.

I certify that the preceding Forty Six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 February 2013.

Associate:

Date: 1 February 2013