Vine and Carey - [2009] FMCAfam 1017

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VINE & CAREY

[2009] FMCAfam 1017

FAMILY LAW – Financial matter – de facto relationship – jurisdiction of the Court to determine the application – whether the de facto relationship had broken down prior to 1 March 2009 – application for interim maintenance.

Family Law Act 1975, Part VIIIAB
Family Law Amendments (De facto Financial Matters and Other Measures) Act 2008, Items 86 and 86A in Part 2 of Schedule 1
Property Law Act 1974 (Queensland) Part 19

S v B [2005] 1 Qld 537
Hibberson & George (1989) 12 FAMLR725 at 739-740

Applicant:

MS VINE

Respondent:

MR CAREY

File Number:

LEC321 of 2009

Judgment of:

Slack FM

Hearing date:

22 September 2009

Date of Last Submission:

22 September 2009

Delivered at:

Brisbane

Delivered on:

23 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Gordon

Solicitors for the Applicant:

B L Crane & Associates

Counsel for the Respondent:

Mr Priestley

Solicitors for the Respondent:

Family Law Solutions

ORDERS

IT IS DECLARED that there was a de facto relationship between the parties and that it did not break down prior to 1 March 2009.

That until further order and upon the Applicant vacating the property in which she currently resides, the Respondent pay to the Applicant by way of maintenance the sum of $500 per week, such payment to commence from the date that the Applicant vacates the premises and weekly thereafter, payable in advance.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

LEC321 of 2009

MS VINE

Applicant

And

MR CAREY

Respondent

REASONS FOR JUDGMENT

The applicant makes an application for property adjustment orders and maintenance pursuant to Part VIIIAB of the Family Law Act 1975 (as amended) (hereafter “the Act”).
The respondent submits that the Court does not have jurisdiction to determine the application and that it ought to be dismissed.
At this point in the matter, I am asked to determine the preliminary question about whether this Court has jurisdiction to determine the matter and I will confine the reasons and fact finding to that question.
If I reach a conclusion that the matter can be determined under Part VIIIAB of the Act, the applicant seeks an order for interim maintenance.

The question of jurisdiction

The question of the jurisdiction of the Court to determine the application arises in the following way.
The Court has power pursuant to Part VIIIAB of the Act to make orders:
a)for maintenance for a party to a former de facto relationship (s.90SE);
b)altering the property interests of parties to a de facto relationship (s.90SN).
However, the effect of Items 86 and 86A in Part 2 of Schedule 1 of the Family Law Amendments (De facto Financial Matters and Other Measures) Act 2008 is to extend the operation of Part VIIIAB of the Act only to:
De facto relationships that did not break down before the commencement of the amendments unless the parties to the former relationship choose for them to apply in accordance with the specified requirements.
The operation of the amendments did not commence until 1 March 2009. In this case there is no agreement between the parties that the amendment should apply to their circumstances.
It is common ground therefore between the parties that for this Court to have jurisdiction to determine the application, pursuant to the provisions of Part VIIIAB of the Act, the onus is upon the applicant to establish:
a)that there was a de facto relationship; and
b)that the relationship did not break down prior to 1 March 2009.

Was there a de facto relationship?

It is conceded by the respondent (and hence there is no dispute) that a de facto relationship (as defined by the Act) existed between the parties at least between 1996 and May 2008. There is a dispute between the parties as to when that relationship commenced but for the purposes of this application it is unnecessary for me to reach any conclusion about that issue.

Did the relationship break down after 1 March 2009?

There is no dispute between the parties that the de facto relationship has ended at the time of this hearing.
The question for my determination is whether the de facto relationship was continuing as at 1 March 2009.
The applicant says in her affidavit filed 1 September 2009 that the parties separated for the final time on 29 March 2009 (para.5). In her affidavit filed 29 June 2009 the applicant says that the parties separated for the final time in April 2009. The respondent denies this claim and says that for him the relationship had broken down in May 2008 and in any event, the objective evidence establishes that the de facto relationship had broken down before 1 March 2009.
The onus is upon the applicant to satisfy me on the requisite standard that the relationship did not break down until after 1 March 2009.
The amending Act uses the phrase break down. Breakdown is defined in s.4 of the Act relevantly as in relation to a de facto relationship, does not include the breakdown of the relationship by reason of death.
The term is not otherwise defined in the Act. Relevantly the term is used in s.90SE and s.90SM and before a Court can be satisfied to make orders for maintenance or alteration of property interest, the Court must be satisfied that there has been a breakdown of a de facto relationship.
Further elucidation of the meaning of breakdown is not provided in the explanatory memorandum to the amending Act although the memorandum makes it clear that those areas of operation of State and Territory laws excluded by Federal Law are necessarily confined to the scope of the State referred powers, being in relation to financial matters arising out of the breakdown of de facto relationships, and to the area dealt with under Federal Law (para.113 of the Explanatory Memorandum).
The new shorter Oxford Dictionary defines breakdown relevantly as collapse, failure. The Macquarie Dictionary defines breakdown as ceasing to function.
It is in the nature of relationships that they tend to breakdown over time. I consider though that the term breakdown in the context of the Act and having regard to the referral of powers by participating States, should be interpreted such that the Court, before exercising power under the Act, should be satisfied, according to the requisite standard of proof (the balance of probabilities), that the de facto relationship had broken down to the point that it had failed and had ended. The next question is then what factors should exist for the Court to be satisfied that the de facto relationship has failed or ended.
In S v B [2005] 1 Qld 537 Dutney J. said (at p.546) in relation to applications pursuant to Part 19 of the Property Law Act 1974 (Queensland):
De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia is fundamental to the continuance of a de facto relationship.
In Hibberson & George (1989) 12 FAMLR725 at 739-740 Mahoney J A with whom Hope and McKew JJ agreed spoke of the de facto relationship as follows:
There is, of course, more to the relevant relationship then living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of incidence which the relationship normally involves. The essence to the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this, but where one party determines not “to live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to establish one party or the other to decide whether it should continue.
Dutney J said further (at- 549):
Applying the passage of Mahoney J A in Hibberson & George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one of the parties is still anxious to try to save it….
In this regard there is a difference between a marriage and a de facto relationship. In a marriage the parties remain married and are presumed to be living as a “couple” unless the party wishing to end the relationship proves a separation for the statutory period. In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality. In Pavey and Pavey, on which the respondent relied, the Full Court of the Family Court of Australia and during which constitutes “separation” between the parties to a marriage who continue to reside in the same residence said at 75, 213-75, 214:
In such case without a full explanation of the circumstances there is inherent unlikelihood that the marriage has broken down for the common residence suggests continuing cohabitation such cases therefore require evidence that goes beyond inexact proofs indefinite testimony and indirect references. The party or parties alleging separation must satisfy the Court about this by explaining why the parties live under the one roof and by showing that there has been a change in their relationship gradual or sudden constituting a separation.
The reverse applies in the case of a de facto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.
I consider that the principles enunciated by Dutney J in S v B have application to matters under Part VIIIAB of the Act.
For the applicant to succeed the onus is upon her to establish that the de facto relationship did not break down prior to 1 March 2009.
The applicant cannot discharge her onus by mere proof that there was no express communication by either party that the relationship was at an end. Where there has been no express communication by either party to end the relationship but one party asserts that the relationship had ended, the applicant has an onus to satisfy the Court that objectively viewed, the positive aspects of the relationship were consistent with and lead to a conclusion of a continuing de facto relationship.

Fact finding

The parties commenced a relationship in 1988 but apart from a short period of time they did not live in the same household during this part of their relationship. There is a dispute between them as to the nature of their relationship during this time. I do not consider it necessary to determine this aspect of the matter at this time. Suffice to say that the respondent denies that the parties were in a de facto relationship during this period.
In 1995/96 the parties ended their relationship and remained separated for about 18 months.
In or about 1998 the parties recommenced their relationship and commenced living together in a property at Property K in New South Wales. Both parties seem to accept that from this time they were in a genuine domestic relationship and that it was an exclusive relationship. There is no dispute that the relationship has now ended. They disagree about when the relationship ended.
The parties continue to live together in the same house.
The respondent says that he decided that the de facto relationship ended for him in May 2008. He says that the relationship had started to deteriorate in 2007. He says his decision to end the relationship in May 2008 was because the applicant decided to move out of the main bedroom; to not sleep with him; and to end the parties’ intimate sexual relationship.
He conceded that he did not tell the applicant at any time before

1 March 2009 that he had ended the relationship. He does not allege that at any time prior to 1 March 2009 the applicant told him expressly that she wanted to end the relationship.
He also acknowledged that the nature of the relationship the parties had subsequent to May 2008 had not changed save for the changes already referred to. In other words, the respondent acknowledged that the parties continued to remain residing in the same household; they maintained the same financial arrangements that had always existed in their relationship; they maintained the same sharing of household tasks that had always occurred; they continued to socialise together including holidaying together overseas and they continued to provide support to each other inside and outside the household.
Although the respondent says that he had decided that the relationship had ended, he did not communicate that fact to any other person and seemed to acknowledge in cross-examination that the reasonable perception of other family members and friends would be that the relationship between the parties was continuing.
The applicant acknowledges that there was a time in 2008 (although she does not admit that it was in May) that she started sleeping more often than not in another room in the house. She says that decision was because the parties had different sleeping habits. She says (and this is admitted by the respondent) that he would often go to bed early (around 7.30pm), watch television for a time; fall asleep; and then switch on the television in the early hours of the morning. She also says that he was prone to snoring. She says, as a consequence, she was either not easily able to go to sleep or was getting disrupted sleep and it was convenient to both that she sleep in another bed.
The applicant also seemed to accept that the intimate sexual relationship between the parties largely ended at or around this time. She accepted that after May 2008 there were very few occasions of sexual intimacy between the parties (the last being November 2008). She did not accept though that those changes in their relationship affected the relationship to any significant extent.
The parties travelled overseas together with others in October 2008 and they also spent time together on other social occasions (at the Gold Coast in November 2008).
According to the evidence of other witnesses (whose evidence I largely accept) and who were reasonably close friends and family members, the parties presented themselves when with them during the relevant period as if they were still together in a relationship.
The respondent had another relationship for about three months over the Christmas period in 2008/9. He did not live with that person and did not inform the applicant that he was having another relationship.
The applicant says that although she had suspicions that the respondent was having another relationship this was not confirmed to her until revealed by the respondent’s brother in March 2009. She says that at the end of March 2009 she stopped doing chores for him in the house and on the 29 March 2009 she told the respondent that the relationship was over.
The parties have continued to live in the same house since that time.

Credibility of the parties

The case for the applicant is that I should accept her evidence that the relationship did not break down until March 2009 when she told the respondent that she was ending the relationship and stopped doing household chores for the respondent.
The case for the respondent is that I should accept his evidence that the relationship ended in May 2008 and even if I was not satisfied on the evidence of the respondent that he had not done enough to communicate his decision, the objective evidence establishes sufficient doubt about the reliability of the applicant’s evidence that I could not be satisfied according to the requisite standard that the relationship was intact as at 1 March 2009 and, as a consequence, the applicant is not able to discharge her onus.
He argues that the objective evidence is that the relationship had broken down prior to 1 March 2009.
In that argument he says that I should not accept the applicant’s sworn testimony that the relationship did not end until after 1 March 2009. He submits that there is motive for her not telling the truth about the state of the relationship and that is that she is likely to receive greater benefits from an application pursuant to Part VIIIAB of the Act then she would if she was forced to bring an application under the New South Wales de facto property legislation.
It was submitted that there are a number of indicators that, after objective consideration, result in a conclusion that the relationship had broken down prior to 1 March 2009.
In general, those propositions are that:
a)there was significant financial motive for the applicant not telling the truth about the end date of the relationship;
b)the parties occupied separate rooms from the middle of 2008;
c)there was an absence of sexual intimacy from the middle of 2008 which does appear to be a significant change in their relationship;
d)the respondent had commenced a new relationship in December 2008 which is conceded and is inconsistent with a subsisting relationship;
e)the respondent had started to go away on weekends on his own in February 2009 which was further evidence of conduct inconsistent with a subsisting relationship;
f)although he may not have told the applicant of his intention to end the relationship this conduct was a strong indicator that he had ended the relationship and the applicant had noticed the change in his behaviour;
g)the applicant, by her own evidence, was aware of a change in the nature of her respondent’s behaviour and was suspicious about the respondent’s relationship as early as January or February 2009;
h)after the applicant lost her job in February 2009 she became very concerned about her financial independence and security and that, it was submitted, was not consistent with someone who believed that she was in a secure and financially sound domestic relationship;
i)there was disharmony in the relationship before 1 March 2009;
j)the applicant was alleging the respondent was physically abusive of her in 2008 and this is not consistent with either a sound relationship or a subsisting relationship;
k)her evidence that the relationship was sound (para.66 of her affidavit filed 29 June 2009) could not, even on her evidence, be correct or truthful; even on her evidence at that time there had been a number of problems in the relationship;
l)there are a number of inconsistencies in the applicant’s evidence about the date of separation which must inevitably lead to the conclusion that she is not telling the truth about when the relationship ended and the nature of the relationship as it stood at 1 March 2009.
In this matter I am satisfied that the applicant has discharged her onus and established the relationship did not breakdown prior to 1 March 2009.

My reasons for reaching that conclusion are as follows.
Whilst there is some confusion in the applicant’s evidence about the precise date upon which she says she ended the relationship, I nevertheless am satisfied that her decision was precipitated upon it being confirmed to her by the respondent’s brother that the respondent had engaged in another relationship. There was no real challenge to her evidence that it occurred after 1 March 2009. It is not surprising to me that she is not able to fix a firm date in her mind when that might have occurred.
Whilst I am satisfied that a number of problems had developed in the relationship, particularly over the course of 2008, I am not satisfied that the applicant had reached a point of her wanting to end the relationship. I accept that she had become suspicious of the respondent’s behaviour and I accept that there was a deterioration of their relationship during the early part of 2009. I do not accept that the change in sleeping arrangements was as a result, at least in the mind of the applicant, of any deterioration in the relationship. I accept her evidence that that arrangement came about due to their different sleeping habits. I accept though that there was a change to their intimate sexual relationship; the applicant had noticed a change in the demeanour of the respondent towards her and a change in the respondent’s conduct in that he was spending more time not in the company of the applicant. I also accept that those factors were indications to the applicant of deterioration in the relationship. I do not accept her evidence that the relationship was sound but that does not necessarily mean that I accept that she had accepted the break down of the relationship. Both parties agreed that during this period they continued to holiday together; socialise together; and at times give each other mutual support. For whatever reason the respondent did not tell her of his desire to end the relationship and even on his case, the parties continued to appear as if they were in a continuing relationship to friends and relatives. On his evidence, even though there was some deterioration in the relationship, there was also evidence that, in all other respects, they had gone on as they had always done in their relationship. According to the evidence of the respondent he did not even tell the applicant of his level of dissatisfaction about the deterioration in their sexual intimacy.
Whilst I am satisfied that the applicant was becoming aware of changes in the respondent’s behaviour towards her and suspicious of his behaviour, I am not satisfied that she formed an intention to end the relationship until she had the other relationship confirmed to her and that was after 1 March 2009.
I am also not satisfied with the respondent’s evidence that he had determined to end the relationship in May 2008. Although his conduct in entering into a new relationship and being away from the applicant on weekends is, to some extent, consistent with a formed intention to end the relationship, to my mind it is also consistent with an intention not to end the relationship. I say that because he accepts that he did not ever tell the applicant of his intention to end the relationship nor did he tell the applicant of his conducting another relationship. In fact he kept it secret from her. According to his evidence, the relationship with the applicant had ended in May 2008 and his new relationship commenced in November/December 2008. His actions in keeping the new relationship secret do not necessarily speak of someone who had ended one relationship and had moved on to the next relationship. They are equally consistent with someone who was conducting an affair but nevertheless wanting his other relationship to continue.
The respondent says that he decided to end the relationship after the applicant left the joint bedroom and their sexual intimacy ceased. There is no evidence from the respondent that he ever told the applicant of the level of his dissatisfaction with that set of circumstances. His evidence in relation to that is, “I recall saying to the applicant on a number occasions after this words to the effect of ‘Are you coming back to the bedroom’ to which the applicant replied ‘no’ or made no reply”. Although he says he considered the de facto relationship was at an end, he does not say that he expressed his dissatisfaction about that to the applicant or said to her that if she did not change her mind he would consider the relationship at an end. The respondent, on his own evidence, continued in the relationship as it had occurred prior to the applicant leaving the joint bedroom and he continued to receive the benefits from that relationship that he had always received (save for the benefit of the sexual relationship). The parties continued to be supportive of each other; assisted each other in the daily household tasks; socialised with each other and represented themselves to family and friends as if they were still in an existing relationship. Indeed the respondent does not ever directly communicate to the applicant that he regarded the relationship at an end.
Although there is a motive for the applicant in receiving financial advantage to claim that the relationship ended after 1 March 2009, there is an equally similar motive and advantage for the respondent in claiming that the relationship ended before 1 March 2009.
The respondent does not assert that the applicant ever told him of her suspicions of difficulties in the relationship or her intention to end the relationship prior to 1 March 2009.
For those reasons I am satisfied that there was a de facto relationship and it continued until after 1 March 2009.

Maintenance

The applicant makes an interim application for maintenance pursuant to s.90SE of the Act.
Before making an order for maintenance I must be satisfied:
a)of the breakdown of the de facto relationship;
b)that the de facto relationship was at least two years’ duration (s.90SB);
c)that either or both of the parties were ordinarily resident in a participating jurisdiction;
d)that the respondent is reasonably able to maintain the applicant; and
e)the applicant is unable to support herself adequately.
In regards to the last two considerations, the Court is obliged to take into account matters referred to in s.90SF(3).
The applicant is 66 years (born in 1942). She is currently unemployed and in receipt of an aged pension in the sum of $295 per week.
She has some saved funds, personal chattels and an interest with the respondent in a property.
The respondent argues that the applicant, in her current circumstances, is able to support herself adequately. He argues that the parties continue to reside in the same home and he continues to provide support by way of payment for utilities and other outgoings on the home. He says that the parties’ relationship is not difficult. They remain friends and maintain respectful communications within the home. Notwithstanding that he acknowledges that the parties are now separated, he says that the applicant can continue to live in the property and she can continue to maintain her lifestyle as she has done more or less since the parties came together in 1996.
The applicant would like to establish her own separate accommodation and to effect a physical separation from the respondent.
She alleges that she has been subjected to emotional and mental abuse by [Mr Carey]. She says that she finds the tension in the house between [Mr Carey] and myself has become unbearable. She also says that the tension and stresses have a negative impact on her health.
I am satisfied that it is not unreasonable for the applicant to want to establish her own separate accommodation and effect a physical separation from the respondent. Whilst I do not consider it necessary, at this point, to make findings about the conduct by the respondent towards the applicant, nevertheless I accept that there would continue to be tensions within the home, particularly in circumstances where the parties are currently in litigation about property and financial matters. I accept that the applicant would find such circumstances uncomfortable and it is not unreasonable for her to want to effect the physical separation.
I am satisfied that the only capacity that the applicant has to support herself at the present time is by way of an income tested age pension. I am obliged to ignore the pension pursuant to s.90SF (4).
There was no real challenge to the claimed expenses of the applicant nor was there any challenge that a reasonable unit would cost approximately $300 per week to rent. In the circumstances I accept that the applicant has reasonable needs (including the cost of accommodation separate to the respondent) in the sum of $789 per week.
The respondent is currently employed at the New South Wales Department of [omitted] and earns $789 per week gross from that employment. He also receives rent of $641 per week from his investment properties.
He has claimed expenses of $2,220 per week.
He has assets to the value of (according to his estimate) $2,350,974.
His claimed expenses include many expenses associated with work on properties. It is not clear to me the extent to which those expenses are either necessary or should have greater priority to his obligation to support the applicant. He also includes an amount of $443 per week for holidays which I consider ought not to take priority over his obligation to provide support for the applicant.
I am of course obliged to take into account, not only his income, but also his financial resources. It is clear that he has significant assets which are of an income earning capacity. Those assets include a sum of $215,000 in the bank and a share portfolio of $196,804.
In the circumstances I am satisfied that he does have the capacity to support the applicant to the extent of $500 per week (as claimed by her) and I am persuaded that I should make an order to that effect to commence from the time that the applicant vacates the residence the parties currently share..

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Slack FM

Associate: Karen Smith

Date: 23 October 2009