Vu & Ton (No 4)
[2022] FedCFamC1F 668
•05 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Vu & Ton (No 4) [2022] FedCFamC1F 668
File number(s): MLC 7739 of 2019 Judgment of: KARI J Date of judgment: 05 September 2022 Catchwords: FAMILY LAW - DE FACTO RELATIONSHIPS – Threshold issue - Existence of de facto relationship – Where the Respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Where the parties agree they were in de facto relationship in Country AA - Where the Applicant denies the existence of a de facto relationship in Australia – Consideration of the nature of that relationship – Findings as to credit of the witnesses – Where the court was left with significant doubt as to the reliability of both parties evidence - Held that a de facto relationship did exist from 2009 until 2012 (in Country AA), and 09 July 2015 until 23 June 2019 (in Australia) – Where a conflict arose over the use of a specific interpreter during the course of the trial – held to be a direct consequence of the applicant, resulting in wasted hearing time - Where the Applicant is ordered to pay the Respondent’s costs thrown away for lost hearing time related to interpreter issues Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225
Jonah & White [2012] FamCAFC 200; FLC ¶93–552;
Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340
Sinclair & Whitaker [2013] FamCAFC 129; FLC 93 – 55
Vu & Ton (No 3) [2022] FedCFamC1F 95
Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017)
Division: Division 1 First Instance Number of paragraphs: 178 Date of hearing: 7 –11, 15, 17, 21-25 February 2022 and 10 March 2022 Place: Adelaide (via video link) Counsel for the Applicant: Mr Hall Solicitor for the Applicant: Hiways Lawyers Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Landers And Rogers ORDERS
MLC 7739 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VU
Applicant
AND: MS TON
Respondent
order made by:
KARI J
DATE OF ORDER:
05 September 2022
THE COURT ORDERS THAT:
1.That pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”), there be a declaration that a de facto relationship existed between the parties between the following dates:
(a)2009 and May 2012 in Country AA; and
(b)9 July 2015 and 23 June 2019 in Victoria, Australia.
2.That the following paragraphs of the parties competing applications for final orders be dismissed:
(a)Paragraphs 5 and 6 of the Applicant’s Further Amended Initiating Application filed 24 July 2020; and
(b)Paragraph 2 of the Respondent’s Further Amended Response to Initiating Application filed 24 September 2020.
3.That to the extent that it is necessary, pursuant to section 44(6) of the Act, the Respondent be given leave to proceed out of time with respect to her claim for financial relief pursuant to section 90SM, 90SE and 90SL of the Act.
4.That within 14 days the Applicant do file and serve a Financial Statement, together with any affidavit in support directed to the Respondent’s application pursuant to section 90SM, section 90SE and section 90SL of the Act.
5.That within 28 days, the Applicant do file and serve an Amended Initiating Application setting out the final orders (parenting and financial) that he now seeks.
6.That no later than 14 days thereafter, the Respondent do file and serve an amended Response setting out the final orders (parenting and financial) that she now seeks.
7.That the parties competing applications for parenting and financial relief be listed for mention and case management before Justice Johns on a date to be fixed NOTING that the parties have not attended any alternate dispute resolution process with respect to financial issues.
8.That within 14 days, the Applicant do pay the Respondent’s costs fixed in the amount of $12,215.50.
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 the pseudonym Vu & Ton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
introduction
These proceedings relate to the threshold question of whether the court has jurisdiction to hear any proceedings for financial relief arising out of an alleged de facto relationship between the parties.
The parties agree that they were in a de facto relationship when they were both living in Country AA from some time in 2009 until August 2011.
The parties deviate as to the status of their relationship and the characterisation of their living arrangements from 2011 onwards.
It is however uncontroversial that:
(a)During the period of the parties de facto relationship that took place in Country AA, and in 2009, a child was born of the relationship, namely X (“X”); and
(b)The parties lived together with X in Victoria from 9 July 2015 until physical separation on 23 June 2019.
The de facto wife asserts that the parties remained in a de facto relationship from 2009 until 23 June 2019, with two discrete periods of separation.
The de facto husband asserts that final separation occurred in August 2011. He otherwise asserts that the de facto wife’s presence and their cohabitation in Victoria was a consequence of an employment arrangement he put in place to employ the de facto wife as the nanny for their child.
For the jurisdiction of the court to be enlivened in these proceedings, the primary question the court is required to address has two separate elements:
(a)Firstly whether a de facto relationship existed beyond 2011 and included a period of more than two thirds of the relationship in Victoria; and/or
(b)Secondly, whether the de facto wife made “substantial contributions” in relation to the de facto relationship in Victoria.
For ease of reference in these reasons, and because there is agreement that there was a de facto relationship between these parties at least during the period 2009 to 2011, the applicant shall be referred to throughout these reasons as the de facto husband and the respondent shall be referred to as the de facto wife.
THE RELATIONSHIP OF THE PARTIES
The de facto husband was born in 1975, and he is 47 years of age.
The de facto wife was born in 1985, and she is 37 years of age.
The parties agree the following facts about their relationship in Country AA:
(a)They met in F City when they both attended an English tuition course in 2007. They began dating shortly thereafter.
(b)When the parties began dating, the de facto wife was living with her parents in F City and the de facto husband was living in an apartment that he owned in F City.
(c)In 2008, the de facto wife discovered that she was pregnant which led to a fracturing of her relationship with her parents.
(d)In early 2009, the de facto wife moved in with the de facto husband’s mother some two hours from F City, in County BB. At the time the de facto husband commuted to and from County BB on weekends to spend time with the de facto wife.
(e)In mid-2009 the de facto wife began living in an apartment in City DD.
(f)In 2009 the parties child X was born in N City.
(g)Following X’s birth the parties took up accommodation together for a period of time at the EE Hotel in N City.
(h)In approximately late 2009 the parties moved into an apartment together owned by the de facto husband in F City.
(i)The parties remained living in that apartment together, with X until at least some time in 2011.
From 2011 the timeline of events asserted by each of the parties becomes disparate and blurred.
The de facto wife’s asserts that from 2011 the parties continued their relationship until they separated on a final basis on 23 June 2019, save for two defined periods of separation during the time that they were living in Country AA, in that regard:
(a)The first period of separation took place between early May 2012 until 10 July 2012 (“the first separation”).
(b)The parties physically resumed cohabitation in mid-2012 at a new apartment owned by the husband known as “the L Street property”.
(c)The second period of separation took place between December 2013 and April 2015 (“the second separation”).
The de facto husband asserts that the parties never reconciled and resumed cohabitation following their final separation in August 2011. In addition, he asserts:
(a)He began a relationship with his current partner Ms FF approximately 6 years ago. Taking into account that the husband made this assertion in his trial affidavit sworn on 22 July 2020, this would equate to the relationship with Ms FF starting some time in approximately 2014.
(b)He employed the wife as X’s nanny after his permanent relocation to Australia with X, as he had been unable to find a suitable nanny.
(c)The living arrangements in Australia between the parties were such that they were living separately and apart under the same roof.
The parties also agree certain facts and events which took place from 2011 as follows (and where necessary their competing assertions have been identified):
(a)In or about mid-2011 (and when the parties were still in a de facto relationship on the de facto wife’s case), the de facto husband purchased three shops in Country AA commonly described as “the E Street property”. The ownership of the E Street property was registered in the joint names of each of the parties.
(b)In mid-2011 (and when the parties were still in a de facto relationship on the de facto wife’s case), the parties entered into what is described by them as a “gift agreement” regarding the ownership of the E Street property. The terms of that agreement provided for each of the parties to hold their interest in the E Street property on trust for X until she attained 18 years of age.
(c)On or about mid-2012 (and during the first period of separation on the de facto wife’s case), the de facto husband commenced litigation in relation to the “gift agreement” regarding the E Street property.
(d)In addition and again in mid-2012 (when the de facto wife asserts that the parties were separated), the de facto husband also commenced litigation in Country AA in relation to X’s parenting arrangements.
(e)In mid-2012 (and during the first period of separation on the de facto wife’s case) the de facto husband attended the home of the maternal grandmother in Country AA, where the de facto wife and X were living, to spend time with the child. A physical altercation took place resulting in injuries to the maternal grandmother and the de facto husband. The de facto wife asserts that the de facto husband was the aggressor during this altercation. Whereas the de facto husband asserts that the maternal uncle was the aggressor. There is however no dispute that a large knife was used as a weapon during the incident (by whom is not agreed), and that the de facto husband suffered a severed index finger. In addition the parties agree that both the de facto husband and the maternal grandmother attended hospital following the altercation and that the police were involved in the aftermath of the incident but no formal charges were laid.
(f)From 18 July 2012 until August 2012 (and just after the parties reconciled after their first separation on the de facto wife’s case), the de facto wife took X on a holiday through Europe.
(g)In mid-2012 (when the de facto wife asserts the parties had reconciled), judgment was delivered and final parenting orders were made by the court of U District. Those orders provided for the de facto husband to have “sole custody” of X, and that he meet all of her expenses until she reaches adulthood and lives independently.
(h)In mid-2013 the parties and X were granted an Australian business (subclass 163) visa. The visa application had been made in mid-2012 at a time that coincided with the first separation on the wife’s case. The de facto husband asserts that the de facto wife was included in this visa application as a result of an error made by his migration agent, who had transposed details from a visa application to Country HH that the parties had made together when they were still in a relationship.
(i)In mid-2013, the de facto husband travelled to Australia and left X in the care of the paternal grandmother in Country AA.
(j)In late 2013 the parties and X travelled together to Australia for 14 days. The de facto wife asserts that this trip was undertaken during a period of reconciliation, however during this trip she discovered that the de facto husband was having an affair, and this led to their second separation. The de facto husband asserts that the mother attended this trip to Australia to look after X while he worked.
(k)The parties and X returned to Country AA in late 2013. X remained living with the de facto husband from that time. The de facto wife asserts that she spent time with X by private agreement between the parties. On the de facto wife’s case this occurred during the second separation, and was an arrangement she adhered to as a consequence of the parenting orders that had been made by the Court of U District.
(l)In early 2014 the de facto husband applied for an Australian business talent (subclass 132) visa for himself and X.
(m)In mid-2014 the de facto husband and X spent time in Australia.
(n)On or about late 2014 the de facto husband and X were granted permanent residency in Australia pursuant to a business talent (subclass 132) visa.
(o)In mid-2015 both of the parties and X Travelled to Australia to take up residence in a property owned by the de facto husband at JJ Street, Suburb KK, in the state of Victoria.
(p)The parties lived together with X in Victoria until 23 June 2019.
(q)At the time of physical separation on 23 June 2019 there was an incident of family violence between the parties resulting in the de facto wife obtaining an Interim Intervention Order on 27 June 2019 naming the de facto wife and X as protected persons, and the de facto husband as the respondent.
(r)A final intervention order was made in late 2021 naming the de facto wife and X as protected persons, and the de facto husband as the respondent.
(s)Since mid-2019 X has remained living with the de facto wife and she has not spent any time with the de facto husband.
In addition to these matters, when the wife travelled to Australia in mid-2015, the terms of her visa were not ones that provided her with permanent residency. As a consequence, she has applied for and has been granted different visa’s to ensure she has been able to remain in Australia.
During the course of the trial, there was significant controversy between the parties as to how each of the de facto wife’s visa applications were made and the level of each of the parties’ involvement in that process.
Despite this controversy, it appears that the following visa applications were lodged on behalf of the de facto wife:
(a)A Contributory Parent (Migrant) (Class CA) (Subclass 143), offshore parent visa application was lodged in early 2016.
(b)A Student (subclass 500) visa application was lodged in early 2018. This visa was granted allowing the de facto wife to reside in Australia between early 2018 and mid-2019.
The terms of the wife’s current visa / residency in Australia are not clear to the court.
history of the litigation
The litigation in these proceedings commenced on 11 July 2019 when the de facto husband filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known) (“the Federal Circuit Court”) seeking both interim and final parenting orders.
For the purposes of these reasons, and in light of orders made on 7 February 2022 bifurcating the parenting proceedings, (reflected in reasons delivered by the court, Vu & Ton (No 3) [2022] FedCFamC1F 95), there is no intention to recite the events that have occurred in relation to the parenting aspect of the matter.
Significantly for present purposes, when the de facto wife filed a Response to the de facto husband’s Initiating Application regarding parenting issues, on 26 July 2019, she not only sought parenting orders, but additionally she sought final orders pertaining to financial matters as follows:
1.That there be a just and equitable division of the assets of the parties, inclusive of superannuation, pursuant to section 79 of the Family Law Act 1975.
2.That the Respondent be excused from further particularising the final financial orders sought pending the completion of discovery and valuations.
It is curious to note that the de facto wife improperly sought to invoke section 79 of the Family Law Act, at this juncture, despite these parties never having been married.
The proceedings came on for a first hearing in the Federal Circuit Court on 30 July 2019. No orders were made on that occasion relating to the financial aspect of the proceedings. It is apparent from the court file that the focus of the parties to this point had been upon the parenting arrangements for X.
The proceedings were transferred to the Family Court of Australia (as it was then known) (“the Family Court”) on 16 August 2019.
The day prior to that hearing, the de facto husband filed an Amended Initiating Application, in which he joined issue with the financial orders that had been sought by the de facto wife. He specifically sought the following final and interim orders challenging the jurisdiction of the court:
1.That the Court declare that, pursuant to Section 90RD of the Family Law Act 1975, no de facto relationship existed between the Applicant and Respondent after August 2011.
2.That the Respondent’s application for financial relief and relief in relation to her visa application be dismissed.
Thereafter on 11 September 2019, the de facto wife filed an Amended Response in which she sought final and interim orders dealing with the jurisdiction question as follows:
1.A declaration pursuant to s90RD(1) of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the Applicant and the Respondent between on or about early 2009 and on or about June 2019.
The de facto husband filed a further Amended Initiating Application on 24 July 2020, in which he sought final orders relating to the jurisdiction question as follows:
5.The Respondent’s Application for a Declaration pursuant to s90RD(1) of the Family Law Act 1975 (Cth) be dismissed.
The de facto wife filed a further Amended Response on 24 September 2020, in which she amended the declaratory relief she sought to establish the court’s jurisdiction to the following:
2.That pursuant to s90RD(1) of the Family Law Act 1965 (Cth), the Court declare that a de facto relationship existed between the parties.
The proceedings have been allocated two previous final hearing dates, on each 7 December 2020 and 31 May 2021. Those hearings however were each vacated as a consequence of a combination of factors, in particular those associated with the covid-19 pandemic and the desirability of both the parties and the court to have the matter proceed on a face-to-face basis rather than by way of a remote/virtual hearing; something which could not occur in Victoria due to the imposition of lengthy “lock-down” mandates.
In the intervening period prior to trial, there have been a range of interlocutory disputes relating to the financial aspects of the matter, which have been the subject of orders and reasons delivered by Justice Johns.
On 16 June 2021, orders were made listing the matter for trial on 7 February 2022, with a time allocation of four days.
THE ORDERS SOUGHT BY THE PARTIES
The de facto wife asks the court to make orders in accordance with her Further Amended Response filed on 24 September 2020, for present purposes as follows:
2.That pursuant to s 90RD(1) of the Family Law Act 1975 Cth, the Court declare that a de facto relationship existed between the parties.
The de facto husband asks the court to make orders in accordance with his Further Amended Initiating Application filed on 24 July 2020 for present purposes as follows:
5.The Respondent’s Application for a Declaration pursuant to s90RD(1) of the Family Law Act 1975 (Cth) be dismissed.
In addition, and in the event the court makes a declaration as to the existence of a de facto relationship, the de facto wife asks the court to make orders for financial relief. In circumstances where the de facto husband is yet to provide full and complete financial disclosure, the de facto wife’s claim is presently cast in general terms to provide for:
(a)An order for the “just and equitable” division of property between the parties pursuant to section 90SM(1) of the Act;
(b)An order for the payment of periodic maintenance to the de facto wife as the court “considers proper” pursuant to section 90SE(1) of the Act; and
(c)Declarations that the de facto wife has an equitable interest in 3 parcels of real property located in Victoria pursuant to section 90SL(1).
It goes without saying that the de facto husband opposes any orders providing financial relief to the de facto wife.
If the de facto wife is successful in obtaining the declaratory relief that she seeks, her application for financial relief will proceed.
legal principles
The jurisdiction of the court to make orders in relation to the financial aspects of the breakdown of a de facto relationship arises pursuant to Part VIIIAB of the Family Law Act1975 (Cth).
Pursuant to section 90RD, the court has the power to make a declaration about the existence of a de facto relationship. Section 90RD provides as follows:
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.
The significance of a declaration being made as to the existence of a de facto relationship arises, is that it provides the gateway for the making of orders pursuant to section 90SM and section 90SE relating respectively to the alteration of property and maintenance as and between the parties to the de facto relationship, together with any declaratory (and consequential orders) in relation to the respective title or rights of the parties to property pursuant to section 90SL.
There are however two further requirements that must be satisfied before the court is able to make any orders pursuant to sections 90SM, 90SE and 90SL:
(a)Firstly, at least one of the matters set out in section 90SB must be satisfied;
(b)Secondly, the geographical requirement set out in section 90SK must be satisfied,
Section 90SB and section 90SK of the Act provide as follows:
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)that the relationship is or was registered under a prescribed law of a State or Territory.
90SKGeographical requirement
(1)A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and
(b) that either:
(i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii)the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.
(1A)The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
As to what constitutes a de facto relationship, section 4AA of the Act sets out a definition, together with a range of indicia which are to be used in determining whether or not a de facto relationship exists, in the following terms:
4AADe 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.
As identified by the Full Court of the Family Court of Australia in Jonah & White [2012] FamCAFC 200 at [33]:
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.
Further at [21], the Full Court supported the original trial judge, Justice Murphy, who commented:
60. In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
However, even with the indicia identified in section 4AA of the Act, the question of whether a de facto relationship exists is one that is often difficult to define, as the boundaries of what might constitute a de facto relationship are difficult to enunciate, and each case will invariably turn on its own facts.
As identified by the Full Court in Sinclair & Whitaker [2013] FamCAFC 129 at [65]:
Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
material relied upon
At the commencement of the trial, the parties agreed that although the de facto wife is the respondent in the litigation, in circumstances where the de facto wife is seeking to invoke the jurisdiction of the court, her case should be presented first, making her dux litis in the proceedings.
Prior to the commencement of the final hearing the parties had prepared a Court Book comprising some 586 pages. Other than those documents separately received into evidence during the course of the hearing, the Court Book comprised all of the documents that each party relied on, together with the relevant orders made in the proceedings.
The de facto wife relied upon the following documents:
(a)Further Amended Response to Initiating Application filed 24 September 2020;
(b)Trial Affidavit of the de facto wife filed 24 September 2020;
(c)Financial Statement of the Respondent filed 24 September 2020;
(d)Affidavit of Ms LL filed 23 September 2020;
(e)Affidavit of Mr NN filed 23 September 2020;
(f)Affidavit of Mr MM filed 23 September 2020;
(g)Affidavit of Ms OO filed 23 September 2020.
The de facto husband relied upon the following documents:
(a)Further Amended Initiating Application filed 24 July 2020;
(b)Trial Affidavit of the de facto husband filed 23 July 2020;
(c)Affidavit in Reply of the de facto husband filed 4 December 2020;
(d)Notice to Admit of the de facto husband dated 7 October 2019;
(e)Notice Disputing Facts of the de facto wife filed 4 November 2019.
the hearing
The hearing in the matter was conducted remotely over Microsoft Teams.
The matter was given a trial listing of four days. However as a consequence of a range of events and factors that unfurled over the course of the trial, twelve separate sitting days were consumed. In addition a further hearing date was given to the matter on 10 March 2022 to hear submissions in relation to a costs application that had been made during the course of the trial.
The trial length was principally impacted by the combination of two factors, about which comment is made without any criticism of the parties:
(a)Firstly, each of the parties required the assistance of an interpreter. It is a common experience that where an interpreter is required the hearing process becomes protracted.
(b)Secondly, the hearing took place virtually by Microsoft Teams. Unfortunately, the virtual hearing environment is prone to intermittent IT and other practical difficulties, all of which coalesced to result in lost sitting time.
In circumstances where the trial was conducted virtually by Microsoft Teams, the following arrangements were in place for the duration of the trial:
(a)The de facto wife was physically present in a conference room with her counsel, her solicitor and an interpreter. The de facto wife, her legal representatives and her interpreter were all visible through the one Microsoft Teams link, and they were observed to be seated around a large conference table. When the de facto wife gave her evidence, she was positioned in the forefront of the image that was projected and her interpreter was seated by her side. For the balance of the hearing, the de facto wife and her interpreter were seated around the conference table, with the de facto wife in the foreground of the projected image on one side of the table and her legal representatives sitting opposite her.
(b)The de facto husband was physically present at his solicitor’s office with an interpreter. Both the de facto husband and his interpreter were visible throughout the trial on the one Microsoft Teams link. The de facto husband’s counsel was largely in a separate location for the duration of the trial, and he had his own separate Teams link. The de facto husband’s solicitor also had a separate Teams link, however she was not visible on screen until such time that the de facto husband gave evidence. When the de facto husband gave evidence, both he, his interpreter and his solicitor were in the same office and visible through the same Teams link, with the de facto husband in the foreground of the image.
A number of specific difficulties arose during the trial in relation to the use of interpreters.
(a)The first significant difficulty arose on the third day of trial and resulted in an application for costs thrown away made by the de facto wife. That application will be dealt with separately at the conclusion of these reasons.
(b)There was also a difficulty with the interpreter assigned to the wife during her cross examination early on day 7 of the trial. On that occasion, the court became aware that the de facto wife was concerned about the quality of the interpretation of her evidence. As a consequence, the interpreter was discharged and arrangements for a new interpreter were made.
the WITNESS’
The de facto wife
The de facto wife was cross examined by the de facto husband’s counsel over the better part of 5 days.
While no criticism is made about the de facto wife requiring the assistance of an interpreter, it appeared that she vacillated in her need to utilise that assistance. In particular:
(a)At times the de facto wife was able to understand questions or comments made to her without the assistance of the interpreter. At other times she was not able to do so.
(b)At times the de facto wife was able to answer questions directly in English. At other times the de facto wife gave evidence with the assistance of an interpreter.
The court’s observation is that:
(a)The de facto wife’s ability and willingness to answer questions herself in English deteriorated over the course of her evidence, and particularly so when challenges were made to inconsistencies in the evidence she had given.
(b)The de facto wife at times was evasive in her answers, and she was unable to make obvious concessions without significant questioning and probing.
(c)Often times during her cross examination the same question was put to the de facto wife several times, without any meaningful answer being given by her.
The de facto husband
The de facto husband was cross examined by the de facto wife’s counsel over the better part of 3 days.
The impression created by the de facto husband over the course of his evidence is that the court must have some significant hesitancy in accepting the assertions made both in his affidavit evidence and orally that he was unable to speak any English whatsoever.
This is because, during his evidence in chief the husband was asked a series of questions by his counsel about a document that his counsel had prepared and was written in English. During the course of that questioning, the husband was able to identify the document and some aspects about its contents. It was not until the court intervened to gain an understanding as to exactly what the de facto husband understood of the document that the de facto husband returned to his assertions that he could not speak or read English at all.
The husband’s ability to speak and understand English became particularly relevant when considering the evidence of the witness’ called by the de facto wife, who gave evidence that they were able to communicate in a limited fashion in English with the de facto husband.
Otherwise, and much like the de facto wife, the overall impression of the de facto husband was that he was at times evasive during his oral evidence and he was unable to make simple and obvious concessions.
Comment on the reliability of the parties’ evidence
The overriding observation that can be made about the oral evidence of each of the parties is that each the de facto wife and the de facto husband left the court with significant doubt as to the reliability of the evidence that they each gave.
Throughout the course of their oral evidence, each of the parties had a tendency to make self-serving statements in which they continuously repeated what appeared to be a rehearsed and repetitive narrative. Throughout the course of the trial, they each had to be directed by opposing counsel and the court on more than one occasion to answer the question that was being asked. On some occasions when each of the parties had been asked the same question several times over, an answer would finally be given after 10-15 minutes of persistent attempts. At other times, no answer was forthcoming to the question that had been asked.
Additionally, throughout their respective oral evidence, each of the parties attempted to make excuses in order to resile from inconsistencies in the information that they had conveyed in their earlier filed affidavit material and/or documents that had been created by each of them or by others on their behalf.
While not the only examples, that can be given:
(a)On the part of the de facto wife, examples of when this occurred can be found in the evidence she gave regarding the disparate information contained in her visa applications; and
(b)On the part of the de facto husband, an example of when this occurred can be found in his attempt to resile from the description of the de facto wife as his “wife” in his will executed while the parties were living together in Australia, when he asserts that the parties were no longer in a de facto relationship.
Equally, there were times during the oral evidence of each of the parties that their evidence appeared to be truthful.
The difficulty for the court however when there appears to be fluctuations in the levels of the parties candour and honesty, is that it becomes increasingly difficult for the court to discern where the truth might lie. In particular, the risk for the court is that, those matters which appear to be incredulous are actually truthful, and conversely those matters which appear to be truthful are in fact untrue.
An example of evidence given by the de facto wife which had the appearance at first blush of being untruthful, but was in fact credible, was an assertion made by her under cross examination that the migration agent she had used to prepare one of her Australian visa applications had asked her to sign on a blank piece of paper and then email that signed document to the agent for that signature to then “pasted” by the agent onto the de facto wife’s completed application. On that answer being given, a call was made by the de facto husband’s counsel in relation to such communications. The de facto wife thereafter was able to produce an email to her from the migration agent in which this specific request was made.
As a consequence of the fluctuating reliability of the parties evidence, it appears appropriate for the court to approach the matter by considering the evidence about which the parties agree and thereafter assessing how these parties appeared to live their lives.
There are however two further categories of evidence which might provide assistance in this matter:
(a)Firstly, where there appears to be independent evidence and or uncontroversial source material; and
(b)Secondly, where the parties themselves appear to have made admissions in their evidence which support matters which the other has asserted and/or where they have made admissions against their own interests.
The de facto wife’s witness’
The de facto wife called four witness’ to give evidence as to their interactions between the parties and their observations as to the state of the relationship between the parties. Those witness’ were as follows:
(a)Mr NN, who is the parent of one of X’s school friends, who had interactions at school and social events with the parties and the child.
(b)Mr MM, who had some professional dealings with the parties.
(c)Ms LL, who is a qualified English language teacher, who had taught the de facto wife and the child.
(d)Ms OO, who is a relative of the de facto wife.
Each of the wife’s witness’ were subjected to cross examination.
They were each asked a series of rote questions as to what they each had been told by the wife, particularly in relation to the current litigation, the two previous sets of litigation in Country AA, and the incident of family violence which occurred between the de facto husband and members of the de facto wife’s family in Country AA.
Each of the witness’ gave evidence that they had not been told about these matters by the de facto wife; other than Ms OO who had some knowledge about the family violence incident, which she indicated she had heard about from her own family members.
When the series of questions were put to Mr NN, Mr MM and Ms LL, it appeared to the court that the questions were being put to gain an understanding as to the degree in which the wife had attempted to influence each of the witness’. While that may not have been the intention of counsel, the impression gained from the answers of each witness was particularly telling. Each witness genuinely appeared not to know anything about each of the matters that they were being asked about. As a consequence, the impression gained by the court is that there had been no attempt by the de facto wife to influence the evidence that they each gave by having them sympathise with her version of past events.
The evidence of each Ms LL, Mr NN and Mr MM was given in a matter of fact fashion. There was no sense of concoction or exaggeration in the evidence that they each gave. Nor did they each attempt to give evidence about matters beyond their knowledge or lived experience. Rather, the evidence that they each gave appeared to have a ring of truth to it, and was particularly helpful in understanding the outward perception of the parties from those who had interactions with them. Accordingly, the evidence of each Ms LL, Mr NN and Mr MM is accepted.
The evidence of Ms OO however falls into a slightly different category, as it was difficult to get a sense of her credit. In addition, it was difficult to get any sense as to what her evidence might add to the court’s determination. Accordingly, her evidence is not evidence to which any weight is attached.
WHAT FINDINGS ARE REQUIRED IN ORDER TO MAKE THE DECLARATION THAT A DE FACTO RELATIONSHIP EXISTED?
In these proceedings the parties agree that they were in a de facto relationship in Country AA from 2009 until at least August 2011.
The parties also agree that during their de facto relationship in Country AA, a child was born of that relationship.
Accordingly, the court is satisfied that the provisions of section 90SB are satisfied.
These findings however are not sufficient to meet the geographical requirement set out in s90SK of the Act so as to open the pathway to financial relief.
As a result there are further questions to be asked depending on which geographical requirement is taken up.
On any view the first requirement set out in section 90SK(1)(a) of the Act is met, as these parties were living in Victoria at the time the de facto wife filed her application for declaratory relief on 11 September 2019.
In these proceedings however, the de facto wife argues that the geographic requirement in section 90SK is met in two different ways as follows:
(a)Firstly, because she asserts that the parties lived in Victoria for more than a third of their de facto relationship (the pathway provided by s90SK(1)(b)(i)); and
(b)Secondly, because she asserts that she made “substantial contributions in relation to the de facto relationship” in Victoria (the pathway provided by s90SK(1)(b)(ii)).
To satisfy the pathway provided for in section 90SK(1)(b)(i), the additional questions to be asked are as follows:
(a)Did the de facto relationship between the parties extend beyond August 2011?
and, if yes
(b)Did the duration of any de facto relationship that existed beyond 2011 take place in Victoria for at least a third of the entire relationship?
To satisfy the pathway provided for in section 90SK(1)(b)(ii) of the Act, the question is singularly:
(a)Did the de facto wife make substantial contributions “in relation to the de facto relationship” in Victoria?
did the de facto relationship between the parties extend beyond AUGUST 2011?
As identified earlier in these reasons, s4AA of the Act sets out the indicia that the court may consider when trying to determine whether persons are living together in a de facto relationship.
In trying to determine whether the parties de facto relationship extended beyond August 2011, a starting point is a consideration as to whether the parties maintained a common residence at any point thereafter.
As can be seen from the agreed facts identified earlier in these reasons, it does not appear that the parties maintained a common residence for various periods of time from August 2011.
On the de facto wife’s case, there was certainly no common residence during the periods of separation between early May 2012 and 10 July 2012 (albeit extending until sometime after she and X returned from travelling Europe during mid-2012), and in addition between 21 December 2013 and April 2015.
The husband’s case is discernibly clearer given his denial that the parties resumed their relationship or that they lived together at all between 2011 and their relocation together to Australia in mid-2015.
Unquestionably however the parties have been living together with X in Australia since they travelled with her to Australia in mid-2015; with the de facto husband travelling between Australia and Country AA throughout that period, and the parties travelling between Australia and Country AA together during that period.
The de facto wife was cross examined at some length about the living arrangements she deposed to in her trial material, which appeared inconsistent with information about her living arrangements she had set out in a document prepared in her hand and provided to her migration agent in approximately early 2018.[1] The wife’s evidence in this regard was confused and disparate. As such it is impossible to be satisfied with any certainty as to exactly where the wife was living from approximately the middle of 2012 until the parties’ relocation to Australia in 2015. As a result the court is unable to make any findings in this regard.
[1] Exhibit “H10” pages 52-68.
From the time that the parties arrived in Australia, they also agree that they did not share a bedroom together, as the de facto wife and X slept together in the same bedroom and the de facto husband maintained his own bedroom.
The court however is not certain that the sharing of a bed/bedroom between these parties (or lack thereof in this instance) is necessarily determinative nor illustrative of whether or not they were in a de facto relationship. This is particularly so, as the court is not in a position to make any findings as to whether these parties had a sexual relationship during their cohabitation in Australia, beyond understanding that the de facto husband asserts there was no sexual intimacy between them and the de facto wife complaining of a lack of intimacy between them.
What is interesting to note however is that there were certain acquisitions of property and legal proceedings in Country AA, which may shed some light on the status of the parties’ relationship from 2011. In particular:
(a)The purchase of the E Street property in the joint names of the parties in mid-2011, and the entering into the gift agreement by the parties at around the same time, would appear to suggest that the parties relationship was still in existence at that time, as it is difficult to reconcile why the de facto husband would have allowed for the de facto wife to have held any legal interest in this property even if it was to be held effectively on trust for X, when the de facto wife made no financial contribution to the same. This conclusion also fits with the August 2011 date of separation deposed to by the de facto husband in his Further Amended Initiating Application filed 27 July 2020.
(b)The litigation commenced by the de facto husband over the gift agreement and the parenting arrangements for X in mid-2012 would suggest that something had occurred in the relationship between the parties at that time, and that they may well have separated at about that time as suggested by the de facto wife. There is otherwise no plausible reason proffered by the de facto husband as to why he waited until mid-2012 to commence litigation over the arrangements for X and the gift agreement.
If the court were to accept that the parties separated sometime in May 2012, then the court would have to consider if the parties reconciled thereafter, and if so when?
The factors that might speak against the parties having reconciled at various points in time after May 2012 are:
(a)During the trial, the de facto wife was cross examined at some length over her assertions that the parties reconciled on or about 10 July 2012, and in particular as to when she asserted that the parties took up residence together at an apartment known as the L Street property. The wife’s evidence in this regard was particularly confused and confusing, and as such was of no assistance.
(b)When the de facto husband travelled to Australia in mid-2013 he left the child X in the care of the paternal grandmother and not the de facto wife, which might suggest that at least at that point in time the parties were not in a relationship together.
(c)The de facto husband’s Australian visa applications for himself and X, but not the de facto wife in early 2014, all with the consent of the de facto wife.
(d)The de facto husband’s travel to Australia with X and without the de facto wife in mid-2014.
The factors that would suggest that there might have been a reconciliation and that the parties were in some form of committed relationship at various points in time are:
(a)The successful Australian visa applications granted in mid-2013 for both parties and X. Albeit that the court notes the assertions of the de facto husband that these applications were only made because of the earlier Country HH visa application when the parties were still in a relationship, but balancing this assertion against the possibility that the de facto husband may well be asserting this to be the case to suit his convenience.
(b)The parties travel to Australia together with X in late 2013, despite the de facto husband’s assertions that the de facto wife was only invited upon this trip to care for X.
(c)The mutual travel of the parties and X to Australia together to take up residence in mid- 2015.
(d)The description of the de facto wife as his “wife” in the de facto husband’s will executed on 11 April 2018. While it is noted that the husband asserts that he executed that will without an interpreter and that he did not give those instructions to his solicitors, he has done nothing to call any independent evidence from his legal representatives in that regard. In addition, the signed will bears the endorsement that it was signed with the assistance of an interpreter. Accordingly, the husband’s assertions are unable to be accepted.
The financial arrangements of the parties are also of some relevance. While it appears that the de facto husband kept much of his financial circumstances and arrangements entirely separate to those of the de facto wife, again, this is not in and of itself conclusive as to the status of these parties relationship.
What appears to be more relevant is that the de facto husband appears to have been extremely financially generous to the de facto wife, as evidenced by:
(a)The admissions of the de facto husband that he provided the de facto wife with a credit card for her sole use after they arrived in Australia in mid-2015. This was all the more pertinent given the de facto husband’s oral evidence that the de facto wife had unrestricted use of that credit card for both X and her own expenses and that he neither reconciled her expenditure and nor did he ever take the credit card away from her for excessive or unauthorised spending.
(b)The provision to the de facto wife of 1 million Country AA currency in early 2016. While the court notes that the parties have different versions as to why these funds were provided to the de facto wife, and no findings can be made one way or the other, the mere transfer of such a significant sum almost a year after the parties had permanently relocated to Australia is of some relevance, as it does not sit comfortably with the assertions of the de facto husband that the funds were an advance lump sum of 5 years nannying salary for the de facto wife (200,000 Country AA currency per annum). In addition, there was no explanation or evidence proffered by the de facto husband as to when and how (if at all), the de facto wife was paid for the alleged nannying services in her first year of living in Australia.
(c)The de facto husband’s purchase of a customised Motor Vehicle 1 at a cost of between $160,000-$170,000 for the wife to drive, which was registered in her sole name.
(d)The provision of $65,000 by the de facto husband to the de facto wife in early 2018 to support the de facto wife’s student visa application lodged in early 2018. Noting that when the de facto wife gave evidence about these funds, the de facto husband’s counsel put to the wife that the de facto husband had “nothing to do” with the de facto wife’s receipt of the funds. He thereafter made a call for the production of documents evidencing the transfer; seemingly confident that the call for documents would somehow confirm what had been put to the wife about the de facto husband having nothing to do with those funds. However, the de facto wife was able to produce bank statements evidencing her receipt of the funds. Thereafter, when the de facto husband gave evidence in chief on this topic (as his trial material did not contain any information in this regard), the de facto husband proceeded to give a long winded self-serving narrative acknowledging that he had in fact provided these funds to the de facto wife, but that they had been advanced to her as a “loan” in support of her student visa application.
(e)The provision of $15,475.14 by the de facto husband to the de facto wife in mid-2018. Noting that the de facto wife asserted during her oral evidence that these funds had been provided by the de facto husband, and this evidence was not challenged in any way.
(f)The de facto husband allowed the de facto wife to charge the sum of $9,500 on his credit card for the payment of her studies at PP University.
In addition, it is also apparent that the parties agree that they travelled relatively frequently together with X, with the expense of such travel fully funded by the de facto husband, including at least the following travel:
(a)Travel together to Country AA during 2016 (noting that it appears the de facto husband returned to Australia in early 2016).
(b)Travel together to Country AA between late 2017 and concluding in early 2018, noting that the de facto husband travelled to and from Australia on two occasions during that period, ultimately returning in early 2018.
(c)Travel together to Country AA in mid-2018, noting that the de facto husband returned to Australia a month after the de facto wife and X in mid-2018.
(d)Two holidays to Queensland, one in early 2016 and another in early 2017.
(e)A holiday to the United States of America in either 2016 or 2017.
(f)Two trips to the Victorian snow fields in 2017 and 2018.
In addition to the relatively frequent travel of the parties with X, it is also apparent that there was an outward perception that the parties were in a de facto relationship, when regard is had to the evidence of the de facto wife’s witness’. As identified earlier in these reasons, the court accepts the evidence of Ms LL, Mr NN and Mr MM. Of particular significance the evidence of Ms LL and Mr MM taken together supports findings that:
(a)The parties together with X socialised together and with friends on various occasions, including but not limited to school functions and extra-curricular activities, meals at restaurants and outings to celebrate significant occasions including New Year, cultural holidays, Christmas and Mother’s Day.
(b)The parties additionally socialised with Mr NN, his wife and their child “QQ” (X’s school friend), including but not limited to day trips.
(c)The parties interactions together when they were out with the de facto wife’s witness’, were “warm and considerate” and gave the impression to those third parties that the parties were in a committed relationship and raising X together as a family.
(d)The de facto husband acknowledged at least to Mr NN that he was “Ms Ton’s husband”, words, which the court accepts the de facto husband would have understood the meaning of from his behaviour during the course of the trial.
(e)The de facto husband referred to the de facto wife and X as his “family” in discussions with Mr NN, and that he had a discussion with Mr NN about obtaining “Australian citizenship” for them to live in Australia on a “permanent” basis. These words against being ones that the court is satisfied that the de facto husband understood given his presentation during the course of the trial.
During the course of the trial, the father was cross examined at some length about his interactions with the de facto wife on their various holidays and generally in regards to the number of alleged family outings to places including the cinema and the theatre as alleged by the de facto wife in her affidavit material. The father’s evidence in this regard appeared particularly confused, contradictory and bizarre.
When taken together, all of the matters which have been identified to this point, do not lend themselves to a finding that the de facto wife was employed by the de facto husband to be a nanny for X, and that this was the purpose of her presence in Australia.
In addition, the following matters speak against such a finding:
(a)There was no formally documented employment arrangement.
(b)The de facto husband was not able to give any clear explanation as to the terms of this or any other asserted employment arrangement that he discussed with the de facto wife.
(c)The de facto husband could not give any cogent or plausible explanation as to why his colleague Mr RR was still communicating with him about potential nannies for X, after the period of time that the de facto husband asserted he had reached an agreement with the de facto wife for her travel to Australia as X’s nanny.
(d)The de facto husband’s evidence generally on this topic was confused, contradictory and self-serving.
During cross examination the de facto wife was challenged at some length about the existence of any “documentary evidence” confirming a de facto relationship between her and the de facto husband. This cross examination of the wife was unhelpful and of no assistance. The lack of any documentary evidence in this regard in the court’s view does not conclusively establish that the parties were not in a de facto relationship.
Another topic about which there was significant focus, particularly at the de facto husband’s end during the trial, was the two Australian visa applications submitted on behalf of the de facto wife after mid-2015.
While not ultimately clear from the submissions made on behalf of the de facto husband, it appeared that his case was that the information contained in the de facto wife’s various visa applications offered up some proof as to the status of the parties relationship at the time of each visa application.
The documents that were received by the court during the course of the trial firmly establish that the de facto wife signed a Contributory Parent (subclass 143) Visa Application in early 2016, in which she was described as being “separated”, and that in early 2018 a Student (subclass 500) Visa Application was lodged, in which she again was described as “separated”.
When the de facto wife was challenged about these documents, her evidence was again incongruous and confusing.
However, in response to a call for documents by the de facto husband’s counsel, it also became apparent that in mid-2017, a VV Group migration agent by the name of “Ms SS” asked the de facto wife to “Please sign your name at the end of this form, scan it for me. If it is inconvenient for you to sign, please sign on a piece of white paper, take a photo and send it to me. I will paste to this form”.[2]
[2] Translation of email in bundle of Exhibits marked “H10” at page 13.
It is not clear to the court exactly which visa application and/or form this request from Ms SS related to, however the timing might suggest that it related to the subsequent Student (subclass 500) visa lodged in early 2018. This conclusion is also supported by the translated communications with Ms SS, which appear in part to relate to the information that had been provided by the de facto wife when she made her earlier Contributory Parent (subclass 143) visa application.
In addition, in that same bundle of documents, the wife produced a handwritten “basic information” form that she had completed and provided to her migration agent, which in response to the question “marital status”, she had entered the word “spouse”.[3] Again, these documents appear to relate to the de facto wife’s Student Visa Application.
[3] Exhibit “H10” at pages 63-64.
While the submission was not put in this way, it appeared that the de facto husband’s case was that the de facto wife cannot now seek to assert something different to that which she represented for the purposes of the visa applications made on her behalf.[4] This approach however was firmly rejected by the High Court.[5]
[4] Which appeared to be an oblique reference to the Elias Principle as discussed by the Chisholm J in Jordan & Jordan (1997) FLC 92-736.
[5] Nelson v Nelson (1995) 184 CLR 538. See also the discussion of the Elias Principle and Nelson by Watts J in Kazama & Britton [2013] FamCA 4.
In the circumstances of this case, as the court is satisfied that the de facto wife cannot be held to the information that is contained in her visa applications; not only because there is evidence of improper conduct on the part of the migration agent, but also because the information provided by the wife to the migration agent does not appear to be reflected in the visa application that was subsequently lodged.
In addition, in circumstances where the court has formed the view that each of these parties were not witness’ of credit in these proceedings, it is not impossible to apply the same logic to the contents of the de facto wife’s visa applications. What appears more likely from the court’s perspective in light of all of the evidence of the parties and the documents produced, is that the visa applications made by the de facto wife in 2016 and 2018 were completed in such a way so as to best position the wife to successfully obtain a visa enabling her to remain in Australia.
When all matters are weighed together, the court accepts that:
(a)The de facto relationship of the parties which commenced in Country AA in 2009 did not conclude in August 2011, but rather continued in Country AA until May 2012; and
(b)Some form of relationship between the parties resumed some time in early 2015, with their de facto relationship resuming in mid-2015 when the parties and X relocated to permanently live in Australia together. That period of the parties de facto relationship thereafter ended on 23 June 2019 when there was a physical altercation between the parties resulting in a cessation of their cohabitation and a breakdown of their de facto relationship.
Did the duration of any de facto relationship that existed beyond 2011 take place in Victoria for at least a third of the entire relationship?
In light of the findings that have now been made as to the existence of a de facto relationship beyond August 2011, there are two distinct periods of the parties’ de facto relationship, one that took place in Country AA lasting approximately 3 years, and another that took place in Victoria, Australia lasting just under 4 years.
In light of these findings, the court is satisfied that the majority of the de facto relationship of these parties took place in Victoria, Australia. Certainly, the court is satisfied that the de facto relationship existed in Victoria, Australia for more than two thirds of the length of the relationship.
did the de facto wife make substantial contributions in relation to the de facto relationship in victoria
Given the findings that have now been made as to the existence of a de facto relationship in Australia between July 2015 and June 2019, it is not essential that the court consider the alternate jurisdictional pathway promoted by the de facto wife.
However, for the sake of completeness this limb will be separately considered.
The argument promoted on behalf of the de facto wife is relatively straight forward and simple. Namely, she promotes that her contributions to homemaking and the parenting of X once the parties relocated to Australia could only have been contributions “in relation” to the de facto relationship.
This is a submission that the court accepts.
There is no doubt from the mutual evidence of the parties that following their permanent relocation to Australia in mid-2015, the de facto wife was primarily responsible for meeting all of X’s needs. Indeed the entire premise of the de facto husband’s case is that this was the de facto wife’s sole purpose for being present with him in Australia.
For the avoidance of any doubt, the court accepts the admissions made by the de facto husband in his oral evidence that the de facto wife was responsible for caring for X, which included generally meeting her needs, shopping for her clothing and associated items, cooking meals for her, taking her out, transporting her to and from school and extra-curricular activities (necessitating the purchase of Motor Vehicle 1 for the de facto wife to drive) and solely caring for her on each and every occasion when the de facto husband travelled (with the de facto husband conceding that with reference to his entry and exit information provided by the Department of Immigration, he was out of Australia no less than 38 per cent of the time between July 2015 and physical separation in June 2019).
Moreover, during the course of his oral evidence, the de facto husband repeatedly gave evidence as to the de facto wife being X’s “mother” and that his preference was that she provide X’s care. Nothing more clearly links the contributions of the de facto wife to the de facto relationship between the parties than these statements from the de facto husband himself.
Accordingly, the court is satisfied that this alternate jurisdictional pathway is made out.
Leave
During the course of the de facto wife’s case, her counsel identified that in the event that the de facto wife was able to satisfy the court that jurisdiction was made out, then she would require leave to pursue her claims for financial relief.
While the jurisdiction of the court has only been established as a consequence of the orders which are now to be made, the court is not entirely certain that leave is required, given the de facto wife first invoked the jurisdiction of the court on 11 September 2019.
Having said that, in the event that leave is required, no submissions in opposition were made on behalf of the de facto husband.
Accordingly, to the extent that it is necessary, an order for leave pursuant to section 44(6) of the Act shall be made.
application for costs thrown away made by the de facto wife
During the course of the trial the de facto wife made an application for costs thrown away arising out of events which transpired on the third sitting day (9 February 2022) as a result of issues that arose with the de facto husband’s interpreter.
Before turning to the events which led to the application, it is important to identify that the use of an interpreter by each of the parties in these proceedings arises as a consequence of each:
(a)The Evidence Act 1995 (Cth), which provides:
30.A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
And;
(b)The Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017) (“the National Standards”), which provides:
3.1.Courts must accommodate the language needs of parties and witnesses with limited or no English proficiency in accordance with the requirements of procedural fairness.
Because the court has a responsibility to ensure a fair hearing, the court bears the responsibility of arranging and funding an interpreter when the use of one is required for a court hearing. To that end funding is provided by the Department of Immigration and Border Protection.[6]
[6] Federal Circuit and Family Court of Australia, “Interpreter policy and guidelines”
In addition to satisfying the requirements of procedural fairness, there is further utility in the court arranging an interpreter, including:
(a)Satisfaction that the interpreter holds the necessary qualification (for Country AA language the National Standards specify that a NAATI qualification is required);
(b)Ensuring that the interpreter is bound by the Australian Institute of Interpreters and Translators Code of Ethics;
(c)Providing an appropriate feedback and complaint mechanism concerning the calibre of the interpreter service; and
(d)Ensuring that no conflict of interest exists.
Bearing all of those matters in mind, the circumstances which gave rise to the de facto wife’s application for costs thrown away were as follows.
At the request of the parties, the court had made arrangements for each of the parties to have the assistance of an interpreter for the trial.
In order to alert the court of the need for the provision of an interpreter each of the parties are required to depose to whether they require the assistance of an interpreter in their Initiating Application or Response.
In his Further Amended Initiating Application filed 24 July 2020 the de facto husband identified that he required a Country AA language interpreter.
In her Further Amended Response filed 24 September 2020, the de facto wife identified that she also required a Country AA language interpreter.
Each of the parties had the assistance of a Country AA language interpreter arranged by the court on the first day of the trial (7 February 2022). That day was consumed by preliminary applications and rulings.
On the third day of trial (9 February 2022) the court directed each of the parties and their interpreter to be clearly visible on the Microsoft Teams link. As a consequence, the de facto wife and her legal representatives were alerted to the identity of the de facto husband’s interpreter present with him at that time.
The first observation that can be made about the interpreter present with the de facto husband that day was that it was a different interpreter to that which had assisted the de facto husband on the first day of the trial.
The second observation that can be made is that after standing the matter down to allow counsel to confer with each other, the court was informed that the parties agreed that the de facto husband’s interpreter was conflicted in circumstances where he had provided an interpretation service for the de facto wife at previous court hearings, at appointments between the de facto wife and her legal representatives, for the translation of documents and that in addition he had also previously engaged in online communication with the de facto wife.
What also became clear from submissions made in the course of the events that unfolded was that the de facto husband had arranged the interpreter over which the controversy had arisen. In addition, these arrangements had been made by the de facto husband and/or his legal representatives without reference to the court, or the legal representatives for the de facto wife.
What the court ultimately came to understand from submissions made by the de facto husband’s counsel is that:
(a)The de facto husband preferred the assistance of a dialect interpreter because while he could speak Country AA language, a dialect was his preferred language.
(b)The interpreter the court had arranged for the de fact husband on the first day of trial had been Country AA language speaking.
(c)The same interpreter arranged by the court for the de facto husband on the first day of trial had again on the arrangement of the court attended upon the de facto husband to provide the interpretation service on the third day of trial.
(d)On the third day of trial, the de facto husband and/or his legal representative determined to terminate the assistance of the court arranged interpreter (without notice to the court or the de facto wife’s legal representatives) and made their own arrangements for a NAATI qualified dialect interpreter to attend and provide the interpretation service.
Once all of the difficulties with the interpreter became known to the court during the hearing on 9 February 2022, the court immediately made arrangements for a dialect interpreter to assist the de facto husband.
The difficulty however was that:
(a)Those arrangements could not be made swiftly;
(b)For reasons which were not clear at the time, but have since become clear, despite arrangements being made by judicial staff for a dialect interpreter, a Country AA language speaking interpreter ultimately attended the office of the de facto husband’s solicitor.
(c)Thereafter the interpreter service was unable to arrange a dialect interpreter to attend at short notice on 9 February 2022.
All of these issues combined to consume the entirety of 9 February 2022, and this day was effectively wasted.
The wife accordingly made an oral application for costs thrown away for the third day of trial.
On that application being made, the court directed each of the parties to file an affidavit directed to that application, and that application was dealt with at the conclusion of the trial.
The de facto husband opposed the making of any costs order in favour of the de facto wife.
It appeared that the de facto husband’s position was that he could not have anticipated or have known that the interpreter that he had arranged was one that was compromised by previously providing interpreting services for the de facto wife.
What that submission however ignores is that the circumstance would not have arisen at all, had there been transparency at the de facto husband’s end as to any or all of the following:
(a)Advice that a dialect interpreter was required at any time prior to the commencement of the trial and/or during the first two days of the hearing, or any time prior to the commencement of the hearing on 9 February 2022 when matters were taken into his own hands.
(b)Advice that there was a difficulty with the court arranged and funded interpreter on either 7 or 8 February 2022, or any time prior to the commencement of the hearing on 9 February 2022.
(c)Advice that the de facto husband would provide his own interpreter and/or an enquiry as to whether the court was able to provide a dialect interpreter.
What was all the more egregious was that during the hearing on 9 February 2022, the de facto husband’s legal representatives were giving instructions to the court interpretation service that were different to what had been conveyed during the hearing about their client’s needs.
In particular:
(a)On 9 February 2022 at 11.24am, that is a time after the issues became known to the court, the de facto husband’s solicitors advised the court interpretation service by email that the de facto husband required a “Country AA language” interpreter, not a dialect interpreter. All the more confusing is that this communication was sent to the court in response to an email chain about an entirely different file.
(b)In addition, and again on 9 February 2022, at 12.25pm, the de facto husband’s solicitors wrote to the court interpretation service and requested a “Country AA language” interpreter, not a dialect interpreter.
What now appears clear is that when the issue arose on 9 February 2022 and the judicial staff made arrangements with the court’s interpretation service for the de facto husband to have the assistance of a dialect interpreter, those arrangements appear to have been derailed by the direct communications from the de facto husband’s solicitors advising that a “Country AA language” speaking interpreter was required. This appears to be the reason for the additional difficulties that arose over the course of the day.
While the latter turn of events were not known to the de facto wife’s legal representatives on 9 February 2022 when the costs application was made on her behalf, it is hardly surprising that the de facto wife would seek to recover her costs thrown away for what was ultimately an entire day wasted.
The making of a costs order in family law proceedings is discretionary in nature and governed by section 117 of the Family Law Act 1975 (Cth). The starting premise is that each party bear their own costs.
However, if the court is considering whether or not to make an order for costs, those factors set out in section 117(2A) are ones to which the court is to have regard.
Much like those factors to be considered when considering the indicia for the existence of a de facto relationship set out in section 4AA of the Act, no one circumstance provided for in section 117(2A) is given greater weight, or is determinative of whether the court should exercise discretion to make an order for costs.
In the present circumstances, it is relevant that:
(a)The financial circumstances of the parties appear to be disparate. The de facto wife is largely financially dependent on the allowance of $1,500 per week provided to her by the de facto husband. She does not otherwise own any assets of significance (aside from her interest in the E Street property in Country AA the subject of the gift agreement), and she and X continue to reside in the former relationship home which is owned by the de facto husband.
(b)The de facto husband’s financial circumstances, while not entirely clear as he has not filed a Financial Statement despite orders that he do so, appears to be substantial, taking into account his ownership of property in Country AA and Australia, and the matters deposed to by the de facto wife as to the removal of funds in the millions of dollars from bank accounts in the post separation period.
(c)Neither party is in receipt of a grant of legal aid.
(d)There was an entire day of wasted hearing time on the third day of trial, which arose as a direct consequence of the conduct of the de facto husband, and or his legal representatives.
In all of those circumstances, the court considers it appropriate that the de facto husband pay the costs thrown away of the de facto wife arising from the third day of trial.
The de facto wife’s claim for costs is made on an indemnity basis totalling $7,815.50 arising from the hearing on 9 February 2022 and comprised of:
(a)Solicitors fees of $3,415.50; and
(b)Counsel fees of $4,400.
In addition, the de facto wife made a claim for her costs arising from the hearing relating to costs on 10 March 2022 in the amount of $4,400, comprised of $3,600 Counsel fees for the hearing itself and $800 by way of preparation fees.
From the court’s perspective the costs of pursuing the costs application are ones that the de facto wife is entitled to, for all of the reasons already given, but additionally, as the de facto husband has been wholly unsuccessful in defending the making of a costs order.
The two figures now claimed by the de facto wife bring the total amount she has claimed on an indemnity basis to $12,215.50.
The court has the benefit of the costs agreement entered into between the de facto wife and her solicitors, and understands that the costs agreement provides for her solicitors to charge fees above the “applicable legislation”.
During submissions, the de facto wife’s counsel identified that if costs had been calculated pursuant to the relevant scale, they would total an amount of $4,353.
There are three observations that might be made about the quantum of costs now sought:
(a)Firstly, that the indemnity costs claimed is approximately three times higher than the scale provides;
(b)Secondly, that while there is a significant difference between the scale and the amount claimed, the quantum actually incurred by the de facto wife does not appear excessive; and
(c)Thirdly, in all of the circumstances of this case, it was appropriate for both Counsel and instructing solicitor to be present during the course of the trial, and in particular on 9 February 2022.
While the court understands that an indemnity costs order is a “very great departure” from the “normal standard”,[7] in the present circumstances the court is satisfied that appropriate circumstances exist.
[7] Kohan and Kohan [1992] FamCA 116.
The court has had regard to those matters referred to in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801, with respect to the question of indemnity costs and at [24] which provides:
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1.The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2.The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v British Transport Commission and Handley JA in Cachia v Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4.In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5.Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (court of Appeal), Crisp v Keng (Supreme Court of New South Wales, 27 September 1993, unreported, court of Appeal) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6.It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.”
(Emphasis added)
In the present circumstances, and for the reasons that have already been enunciated, the conduct of the de facto husband and/or his solicitors, neatly fits itself within the circumstances that might warrant the court exercising discretion to make an order for indemnity costs; namely misconduct that resulted in the loss of court time. Accordingly, the court considers it appropriate for the costs to be paid by the de facto husband to be calculated and paid on an indemnity basis.
For all of the foregoing reasons, I now make those orders that appear at the commencement of these reasons.
I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 2 September 2022
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