Velichkov & Velichkov

Case [2024] FedCFamC1F 150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Velichkov & Velichkov [2024] FedCFamC1F 150

File number: MLC 7315 of 2022
Judgment of: CARTER J
Date of judgment: 14 March 2024
Catchwords:

FAMILY LAW – THRESHOLD – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant alleges the parties were in a de facto relationship between 1988 and November 2021 – Where the respondent alleges the relationship ended in 1997 or 2000 – Where the applicant bears the burden of proving the existence of a de facto relationship as defined by s 4AA of the Family Law Act 1975 (Cth) – Where the respondent spent most of each year outside of Australia – Where the parties had a relationship as a couple living together on a genuine domestic basis – Where the Court finds a de facto relationship existed between the parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for leave to re-open – Factors informing the exercise of discretion – Oral application dismissed.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 4AA

Cases cited:

Delamarre & Asprey [2014] FamCAFC 218

Denys v Kellett [2022] FedCFamC1A 223

Fairbairn v Radecki [2022] 275 CLR 400

Jonah & White (2012) FLC 93-522

Lynam v Director-General of Social Security (1983) 52 ALR 128

Shelby & Rylan [2022] FedCFamC1A 143

Sinclair & Whittaker (2013) FLC 93-551

Division: Division 1 First Instance
Number of paragraphs: 303
Date of last submission/s: 5 March 2024
Date of hearing: 13 November – 21 November 2023, 23 February 2024
Place: Melbourne
Counsel for the Applicant: Ms Renwick
Solicitor for the Applicant: Dang Quach Lawyer
Solicitor for the Applicant: Coote Family Lawyers
Counsel for the Respondent: Mr Nehmy
Solicitor for the Respondent: Suke & Associates

ORDERS

MLC 7315 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS VELICHKOV

Applicant
AND:

MR VELICHKOV

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

14 MARCH 2024

THE COURT ORDERS THAT:

1.The oral application made by the respondent on 23 February 2024 to re-open is dismissed.

THE COURT DECLARES THAT:

2.Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth), IT IS DECLARED that the parties were in a de facto relationship between 1988 and April 2021.

THE COURT FURTHER ORDERS THAT:

3.The Amended Initiating Application filed 24 November 2022 be listed for directions hearing on 10 May 2024 before a Judicial Registrar.

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…

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AGLC
Velichkov & Velichkov [2024] FedCFamC1F 150
Case
[2024] FedCFamC1F 150
Decision Date

CaseChat Overview and Summary

The case of Velichkov & Velichkov involved a dispute between Ms Velichkov and Mr Velichkov concerning the existence and duration of their de facto relationship. The matter was before Carter J in the Federal Circuit and Family Court of Australia. The primary issue was whether the parties were in a de facto relationship as defined by section 4AA of the Family Law Act 1975 (Cth) from 1988 until April 2021, as alleged by the applicant, or whether the relationship ended earlier, as claimed by the respondent.

The court examined the nature of the parties' relationship, considering the statutory definition of a de facto relationship, which includes whether the parties were living together on a genuine domestic basis. The court noted that the respondent had spent most of each year outside Australia, working on business interests in Country F. Despite this, the court found that the parties had a relationship as a couple living together on a genuine domestic basis until 2021. The evidence showed that the parties' financial and social arrangements remained largely unchanged from before 1997, despite the respondent's extensive travel. The court concluded that the respondent's absence did not preclude a finding of a de facto relationship, as the relationship's nature and continuity were consistent with the statutory definition.

In dismissing the respondent's oral application to re-open the case, Carter J highlighted the factors considered in exercising the discretion, including the applicant's burden of proof and the limited observations of third-party witnesses. The court also noted that the respondent's asserted dates of separation were not supported by the evidence. The court found that the applicant's evidence of the relationship's continuation until November 2021 was credible, despite the respondent's claims of separation in 1997.

The final orders declared that the parties were in a de facto relationship from 1988 until April 2021 and dismissed the respondent's application to re-open. The court further ordered that the applicant's Amended Initiating Application be listed for a directions hearing. The form of the order is subject to review and amendment as necessary.

Orders

Orders of the court

MLC 7315 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VELICHKOV

Applicant

AND:

MR VELICHKOV

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

14 MARCH 2024

THE COURT ORDERS THAT:

1. The oral application made by the respondent on 23 February 2024 to re-open is dismissed.

THE COURT DECLARES THAT:

2. Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth), IT IS DECLARED that the parties were in a de facto relationship between 1988 and April 2021.

THE COURT FURTHER ORDERS THAT:

3. The Amended Initiating Application filed 24 November 2022 be listed for directions hearing on 10 May 2024 before a Judicial Registrar.

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.

Background

Background to the litigation

For the reasons that follow, it is declared that the parties were in a de facto relationship from 1988 and that it had ended by April 2021. Jurisdiction to grant financial relief between the parties under Part VIIIAB of the Act is therefore enlivened. BACKGROUND The applicant was born in Country F in 1956 and emigrated to Australia in 1978. At the start of the relationship, the applicant was running a shop and another business operating between Country F and Australia. She generally worked seven days a week, and took very little leave, until she retired in 2016. The respondent was born in Country F in 1950 and immigrated to Australia as a refugee. He has operated business interests in Country F and has spent much of each relevant year in Country F working on various businesses. He began operating a company, G Company in 1997. He sold that business in 2016, and after remaining involved to train the new owners pursuant to the contract of sale, he retired not long after the applicant. He now spends the bulk of his time in Australia. It is not in dispute that the parties commenced a de facto relationship in Australia, in 1988. At the commencement of their relationship both the applicant and respondent were married to other persons, and each had children from those marriages. The applicant has two other children (Mr H and Mr J), and the respondent three (Mr K, Mr L and Ms M). The parties initially lived together in rental accommodation until 1992 at which time they purchased a home in joint names. The respondent spent six months in Country F in 1992, working on establishing and building up the funds transfer business and looking for other business opportunities. As set out, until he retired, the respondent has had business interests in Country F, and spent considerable time in Country F pursuing those interests. As early as 1994, the respondent rotated his time between Country F and Australia, spending about four months in Country F and then returning to Australia for one month before travelling again to Country F for four months. There were periods where the respondent spent most of each year in Country F, returning to Australia for as little as two months in a year. This continued until about 2019/2020, when he returned to spending the majority of his time in Australia. It is not in dispute that at all relevant times the respondent stayed at the same premises as the applicant whenever he was present in Australia. The parties have one child together – Ms N, who was born in 1991. Ms N is now 33 years old. She is married to Mr P. In 1992, the parties purchased a property at Q Street, Suburb C in their joint names for around $120,000. The applicant resided in this home with Ms N (although Ms N also spent time away from the home being cared for by a nanny). In 1993 or 1994 the respondent commenced his first business, R Ltd, in Country F. The applicant provided the respondent with $70,000 for this venture. The time the respondent then spent in Country F increased. On each return trip to Australia, the respondent stayed at the Q Street home with the applicant.

Evidence

Evidence Before The Court

It is the applicant’s case that her relationship with the respondent began to deteriorate in early 2020, after the respondent returned permanently to Australia. She said it came to an end in November 2021 when she wrote a note to the respondent advising the relationship was over. She moved out of D Street briefly at the end of 2021, following an argument. The applicant then left D Street on a final basis in early 2022. THE EVIDENCE The applicant relied on:(a)her Amended Initiating Application filed on 24 November 2022. That application seeks substantive orders only and not a declaration pursuant to s 90RD(1) of the Act. That declaration is articulated at Part C of the applicant’s Outline of Case;(b)her trial affidavit filed on 28 September 2022;(c)her affidavit-in-reply filed on 12 December 2022;(d)the affidavit of Ms N, the parties’ daughter, filed on 4 October 2023;(e)the affidavit of Mr P, Ms N’s husband, filed on 4 October 2023; (f)the affidavit of Ms U, friend of the applicant, filed on 4 October 2023; and(g)the affidavit of Mr V, translator, filed on 10 November 2023. The respondent relied on:(a)his Response to Initiating Application filed on 5 August 2022;(b)his trial affidavit filed on 16 November 2022; (c)his affidavit in reply filed on 14 November 2023;(d)the affidavit of Mr K, the respondent’s eldest son from his previous marriage, filed on 4 October 2023;(e)the affidavit of Mr L, the respondent’s second son from his previous marriage, filed on 4 October 2023;(f)the affidavit of Ms W, the respondent’s former employee in Country F from 2014 until 2019, filed on 4 October 2023;(g)the affidavit of Ms X, the respondent’s employee from 1990 to 2018 for G Company, filed on 4 October 2023;(h)the affidavit of Ms Y, the respondent’s former employee in Country F from 2008 until 2013, filed on 4 October 2023;(i)the affidavit of Ms Z, translator, filed on 4 October 2023; and(j)the affidavit of Mr AA, a friend of the respondent’s, filed on 4 October 2023. Both parties gave their evidence substantially through an interpreter. This meant there was at times some confusion as to the questions the witness was being asked and the answers being given. I have done my best to make appropriate allowances for this. Both of the parties gave their evidence in a manner that was favourable to their case. At times, the applicant did not answer questions directly, overstated matters that supported her case, and asserted she could not recall matters that did not assist her. I formed the impression that the applicant sought to gloss over arguments, or issues the parties’ experienced in their relationship, and endeavoured to portray the parties only as having a very happy and loving relationship at all times. The respondent’s trial affidavit filed 16 November 2022 emphasised the parties’ lack of communication and the applicant’s asserted disinterest in his life, his work, and his health after 1997. When communications contradicting that evidence were adduced by the applicant, the respondent somewhat changed his position, asserting that whilst the parties separated in 1997, they had some periods of positive communication and they became good friends, or dear friends over the following years. This was not the impression the respondent gave as to the nature of the parties’ relationship in his trial affidavit.

Decision

Reasons for decision

I am satisfied it would have been awkward and uncomfortable for the applicant to attend the respondent’s children’s weddings, as their mother would also have been in attendance. Similarly, the respondent’s presence at the weddings of the applicant’s children would have been potentially embarrassing. That is, the lack of invitation and the failure to attend was to ensure the marrying child’s biological parent did not feel uncomfortable. I do not regard it as a reflection of the status of the relationship between the applicant and respondent.CONCLUSION Parties do not have to live together, full time, or even at all for them to be in a de facto relationship; Fairbairn v Radecki [2022] 275 CLR 400 at [32]–[36]. That the respondent in the present matter lived abroad for protracted periods does not preclude a finding that they remained in a de facto relationship. Their Honours in Fairbairn observed at [39] that “living together” should be construed as meaning sharing life as a couple, but there is no prescription as to how a couple can arrange to do that. Their Honours observed that the language of section 4AA of the Act:39.… is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. Their Honours also noted that parties may continue to have some sort of relationship with each other after their de facto relationship has ended. That is, a complete cessation of any relationship is not necessary. What the Court must focus on is the nature of that relationship and whether it meets the statutory test prescribed in the legislation. Subsequent to that decision, the Full Court in Shelby & Rylan [2022] FedCFamC1A 143 observed:19.The High Court has arguably clarified that parties do not need to live together in order to be in a de facto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a de facto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances. In this matter, for the bulk of the years in question, the applicant resided in Australia, and the respondent was predominantly in Country F. Notwithstanding, I am satisfied that having regard to all the circumstances of the parties’ relationship, and taking into account all the factors that I must, they had a relationship, as a couple living together on a genuine domestic basis, and shared life as a couple until 2021. In coming to that finding, I am evaluating the evidence, as a whole – it is a composite picture of all the elements of the relationship. What emerged from the evidence is that little changed for the parties in terms of their financial or social arrangements from the years preceding 1997 – when the parties agree they were in a de facto relationship – up until 2021. The respondent’s travel overseas for extended periods for work commenced when it is agreed the parties were in a de facto relationship, albeit that after 1997 his travel was more extensive.

Ratio Decidendi

Legal Principle Established

Neither of these witnesses had much opportunity to observe the parties over the course of the many years in question. Each was only able to give evidence about the short visits when the applicant travelled to Country F or what the respondent had shared with them. As is plain, there are clear cultural boundaries in place that would limit the information the respondent would share with his employees. It is unclear whether either witness knew that the respondent returned to a house shared with the applicant each time he travelled to Australia, as they say he made little mention of her at all. In the circumstances of such limited observations, their evidence is of little assistance.The respondent’s asserted dates of separation; On the applicant’s evidence, the parties were in a relationship for 33 years. She acknowledged the parties’ relationship had its ups and downs, but she said that it continued until November 2021. She said that the problems in the relationship became more marked during the COVID‑19 pandemic, as a result of the lockdowns. She moved out of D Street briefly at the end of 2021, and then moved out permanently in March 2022. On the respondent’s evidence, the parties were in a relationship for nine years, ending in 1997. At closing, it was submitted that at the very latest, the relationship endured until 2000. The respondent asserted that the parties separated on a final basis in 1997 following an argument between the parties about the respondent’s financial issues which occurred when the respondent travelled back to Australia from Country F. It is the respondent’s evidence that the applicant called him a “financial failure” and told him she no longer wanted him involved in her life. It is the respondent’s case that from this point onwards, the parties lived “totally separate lives”, stopped regularly speaking to the other, ceased their sexual relationship, made major financial decisions without consulting the other and travelled overseas without informing the other. The respondent further deposed that after this argument:I was not ever given the impression by [the applicant] that she perceived us still to be a couple beyond 1997, or that our relationship was intact.and that the applicant was distant towards him from then on, and did not want him involved in her life. The applicant acknowledged in her oral evidence that she did “make a complaint” about finances in 1997 as the parties had a lot of debts at that time. She denied that this amounted to a breakdown of the parties’ relationship. She also acknowledged that shortly after this incident, she travelled to overseas to City BB without informing the respondent (which the applicant described as a brief business trip). She also purchased the property at CC Street without the respondent’s knowledge. However, she denied the parties thereafter lived totally separate lives. The respondent conceded he did not explicitly communicate to the applicant in 1997 any statement that the parties had separated or the relationship was over. Nor did the applicant explicitly tell him that. The respondent admitted that when he returned to Country F after this incident, he continued to call the applicant to let her know he had arrived safely, because in his mind, they had not separated. He said that until 2000 he continued to hope for a restoration of the parties’ relationship.