Walt and Quinn
[2018] FamCA 855
•26 October 2018
FAMILY COURT OF AUSTRALIA
| WALT & QUINN | [2018] FamCA 855 |
| FAMILY LAW – PROPERTY – whether the parties were in a genuine domestic relationship within the meaning of s.4AA of the Family Law Act 1975 (Cth) – where the evidence does not establish that a genuine domestic relationship existed within the meaning of s.4AA – application for property adjustment orders dismissed. |
| Family Law Act 1975 (Cth) ss 4AA(1), 44 |
| Jones & Dunkel (1959) 101 CLR 298 |
| APPLICANT: | Ms Walt |
| RESPONDENT: | Mr Quinn |
| FILE NUMBER: | MLC | 508 | of | 2018 |
| DATE DELIVERED: | 26 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 16 October 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Moreheads Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Jenkinson |
| SOLICITOR FOR THE RESPONDENT: | Lawyers By The Bay |
Orders
That the Initiating Application filed 17 January 2018 be dismissed.
If the Respondent seeks to pursue an Application for costs, the Respondent shall file and serve within 30 days, written submissions in respect of costs and the Applicant shall by way of response, file and serve written submissions within 60 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walt & Quinn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 508 of 2018
| Ms Walt |
Applicant
And
| Mr Quinn |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Ms Walt (“the Applicant”) now aged 49 years and the Respondent Mr Quinn (“the Respondent) now aged 59 years agree that they commenced a relationship in Victoria in April 1998.
At that time, the Applicant had been living in the home also occupied by her mother in Suburb B, with her daughter X (the child, born in 1995) then aged three years. The Respondent lived on a rural farm property in C Town– some 20 kilometres from the Suburb B property – with his daughters Ms D (born in 1980) and Ms E (born in 1981) then aged about 18 years and 16 years respectively.
The parties dispute the nature and characteristics of the relationship, with the Applicant asserting that the couple were in a relationship on a genuine domestic basis, within the meaning of s 4AA(1) of the Family Law Act 1975 (“the Act”) from April 1998 to February 2016 - nearly 18 years. The Respondent says their relationship was a boyfriend and girlfriend relationship and not more.
The Applicant commenced these proceedings on 17 January 2018, within the prescribed two years from standard application period, from the date of the relationship ending, on her case.
A Registrar of the Court listed the matter before me, to determine the discrete issue of jurisdiction, in circumstances where the Respondent says the Application should be dismissed entirely. The matter proceeded before me on 16 October 2018, with Mr Morehead representing the Applicant and Ms Jenkinson representing the Respondent.
Credit
As is often the case in these matters, much of the fact finding involves a determination of two different and competing versions of the history. Most relationships are private. In this case, although there is some corroboration offered by the child (for her mother) and Ms E and Ms D (for their father) on the issue of the amount of time the Applicant spent at the home of the Respondent, possibly critically helpful evidence from the Applicant’s mother who lives in the Suburb B home was not offered. In final submissions I raised with Mr Morehead whether, in such circumstances, and where the Applicant and the child maintain a good relationship with the Applicant’s mother, an inference that there was no evidence the Applicant’s mother could give that would assist the Applicant’s case, was open (see Jones & Dunkel (1959) 101 CLR 298). Mr Morehead accepted it was open, and I make such a finding.
Counsel for the Respondent contended that I should not regard the Applicant as a reliable and honest witnesses because:
a)on her own admission, inconsistent with the case she now maintains, the Applicant:
- in a letter to the Department of Child Safety, Youth and Women dated 19 July 2000, relating to a “dog bite” incident involving the child at the Respondent’s farm, the Applicant said that “[the child] is only at the property with the dog every second weekend.” The Applicant, at July 2000, has deposed in this case to the child spending mid-week time on the farm; and
- claimed from Centrelink single parent payments after April 1998. The evidence is not sufficient to establish the period such a claim was made.
b)when the Applicant on 18 June 2015 completed a document declared to be true, to support a Personal Insolvency Agreement, she at Item 2 declared she did not “have a spouse or partner”. I acknowledge (at Item 5) she asserted she had lived at the C Town address for 15 years and one month, but also asserted she was “receiving free accommodation”; and
c)the incident on 2 August 2014 where a handbag with cash was taken by the Applicant, also raises serious questions about the Applicant’s honesty.
For these reasons, I have determined that I should be cautious in accepting the evidence of the Applicant unless it is strongly corroborated and generally, I prefer the evidence of the Respondent (whose credit was not challenged in final submissions) where it conflicts with the evidence of the Applicant.
In this regard, it was a sad and unfortunate feature of this case, that the child and Ms E and Ms D were essentially “dragged” into the case by their respective parents. I regard each of these witnesses as doing their best to offer accurate reflections of the history – some going back 20 years. Their evidence was, I sense, shaped in part by what they know to be the case their parent was articulating in this Court. They are close to their respective parent – and I am satisfied that although the child (who was only three years of age when the parties commenced their relationship in 1998) looked up to and perceived Ms E and Ms D as older siblings – describing them as her “sisters” – Ms E and Ms D did not regard her as their younger sibling. That genuine affection was created from 1998 through the opportunities that were created from 1998 is clear – both Ms E and Ms D asking the child to be in their respective wedding parties as a bridesmaid. Hopefully these proceedings and my decision will not cause any damage to those relationships which I feel is important to all three girls.
Having made those observations, it is appropriate to record the obvious – namely that the history as recalled by these three witnesses, were made at significantly different stages of their lives, in that, and I find:
a)the child was only three years of age in 1998. Between 1998 and when she left the home at C Town in 2012 to reside with her then boyfriend, at an age approaching 15, she had attended:
- a preschool/kindergarten;
- Suburb B State School; then
- F Town State School; and then
- G School.
I think it likely that most of her earlier recollections were assisted by what her mother said occurred;
b)in 1998, Ms D was 18 years of age. She had left the home some five years later in 2003. She maintained her bedroom whilst living there but visited regularly to see her father after leaving home; and
c)in 1998, Ms E was 16-17 years when the relationship began. Her recollection is that the child, when at the home, used Ms E’s bedroom when Ms E left home also around 2003.
I regarded the older girls’ recollections of what occurred, as deposed to in their Affidavits, as a more mature recollection and less shaped by their father, but acknowledge that they did leave in 2003, which reduced the chance for daily observations to be made by them after that date.
Statutory provisions to be applied
The appropriate statutory provisions to be considered and applied are s.44(5) and (6):
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
(b) a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period ).
AND s.4AA(1), (2), (3) and (4):
(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.
Neither advocate thought it necessary to refer me, in their written and oral submissions, to any particular authority. That is understandable, because this case, as do so many when considering the discrete issue of jurisdiction, rely on their own and unique facts. Although it is not necessary of every element of the definition under s.4AA to be present in a genuine domestic relationship, the combination of findings using the definition prescribed by the Act, establishes where jurisdiction exists. The onus rests upon the party asserting jurisdiction – the Applicant in this case. In this case where the couple were not legally married; do not have a biological child of their union and are not related, I make the following findings, on the balance of probabilities, on all the evidence.
Statements of fact which follow are findings of fact.
Duration of relationship
As already recorded, at the time of commencement of the relationship, the Respondent lived on the property he had purchased in 1995 with his two daughters. The Applicant had been living with her mother at Suburb B. I accept the Applicant did spend some nights at the Respondent’s home from 1998 – but not as frequently or consistently as the Applicant alleges in her evidence. I would characterise, particularly in the early years, the relationship as more like “boyfriend and girlfriend”. The evidence supports a finding that the Applicant living at times in the home of the Respondent was convenient for her. All the schools the child attended were in easy travel time from either the C Town home or the Suburb B home.
I do not accept the Applicant’s evidence that once the child started primary school (which would have been in January 2000) “we stopped spending overnight time at my parent’s [Suburb B] property as we spent every night at the [C Town] property”. This is at odds with the evidence of the Respondent corroborated by his daughters (at least until 2003 whilst they lived there), which I prefer, that she “stayed over” once or twice a week.
Although I accept that the frequency of “staying over” probably increased as the child got older and her interest in the stock on the Respondent’s property, the event on 2 August 2014 was the catalyst for the relationship first souring and then ending. The consequences for the Respondent of the incident was, I accept, devastating on the Respondent – ultimately causing him to be so embarrassed that he ceased to be a member of a sports club an interest and membership he had maintained for 30 years.
I have applied some caution to remarks made by the Respondent about the effect of this event as he still appears to be experiencing feelings of hurt, however I have no doubt that the relationship as it was at that time deteriorated quickly from August 2014.
I accept that that relationship was not continuous and, as the Respondent deposes, there were at times weeks when they did not see each other.
Nature and extent of common residence
The couple did spend time under the one common roof at C Town however the evidence supports the conclusion I reach, that the Applicant did not, for example, bring with her any items consistent with living there – other than her clothing. This is totally consistent with the somewhat transient nature of the Applicant – again a finding made in circumstances where her mother offers no evidence to assist her. Although her mailing address for her tax returns (at least for some time after 2011 when Accountant Mr H prepared returns for both parties) was C Town, other communications were directed by the Applicant to the Suburb B address – for example her superannuation correspondence. When in a dispute with the biological father of the child, solicitors retained by the Applicant were told by the Applicant that she was living at Suburb B and correspondence from her solicitors were directed to that address.
These inconsistencies again demonstrate that, in my view, the Applicant will tell a story or version that suits the case at the time. I accept the Applicant directed some correspondence to her at C Town.
It is not disputed that the Applicant made no financial, or for that matter direct non-financial, contributions to the mortgage and utilities (either by way of rent, board or otherwise) or to the maintenance or improvement of the property at C Town.
Sexual relationship
Both parties, as mature aged adults, say sexual relations took place from time to time.
Degree of financial dependence
The Applicant says, as does the Respondent, that they maintained totally separate financial arrangements and there is not any evidence offered of the intermingling of either income or assets. The Applicant received some child support from the child’s biological father, and properly used that for the child. At times the Applicant was working and all wages were paid into her separate account – as were the Centrelink benefits. The parties during a long relationship did not buy, it seems, a single item of furniture for their alleged common residence. The Respondent flatly rejected requests of the Applicant to use his equity in his home to finance some joint assets. Whether he did so to inhibit any claim against him being maintained, is possible, but nonetheless it never happened.
The only documentary evidence offered by the Applicant are some bank statements for the Applicant’s Commonwealth Bank of Australia account for the period 15 November 2014 to 24 January 2015 – a period of two months. The Applicant highlighted a number of small deductions for groceries only three of which exceeded $50 - hardly consistent with buying for a household of two adults – recalling that the child had moved out at the time. As Counsel for the Respondent noted in cross examination, more interestingly were other transactions not identified by the Applicant as for joint food – including Bunnings. I would accept that there were occasions the Applicant would buy goods which the Respondent would consume and vice versa. However the level and consistency of payments do not support the Applicant’s case that she lived in the home every day.
Ownership, use and acquisition of their property
Again, I repeat, there is no evidence these parties acquired anything together – and if the bank statements offered to the Court by the Applicant are an indication, she had little available income to do so. The account reveals balances as low as $1.59CR. She lived from week to week and the Personal Insolvency Agreement entered into only five months later (than the last bank statement), reveal the extent of her liabilities and desperate financial position. Sadly for the Applicant, things have not improved with her Financial Statement filed 17 January 2018 revealing assets of $20,200 consisting of a horse float ($15,000); household contents ($5,000) and a bank account of $200. The car which she received from the Respondent after the relationship ended, he says as a “sweetener” suggested by the Applicant’s mother for the Applicant to go away, is not revealed as a current asset of the Applicant.
DEGREE OF MUTUAL COMMITMENT TO A SHARED LIFE
Whilst I am satisfied that they did share a bed from time to time; that they shared an interest in horses and shared some meals that is not a shared life of a committed character. I find that it is likely the Applicant probably wanted more – but he Respondent was not prepared to commit in a way one would expect to see demonstrated in a genuine domestic relationship. I accept there were occasional weekends away together – however that is consistent with the nature of the relationship asserted by the Respondent.
Care and support of children
In my final analysis, this factor is the strongest one in favour of the Applicant’s assertion, however of itself, against the weight of the other factors, not determinative in this case.
I am satisfied that the child saw the Respondent as a father figure. She curiously called him “dad” outside the home and to her friends and social group – but not directly to or in the Respondent’s presence. I accept he was kind to her; supported her interests and encouraged her education. A relationship between the Respondent and the child developed. Exhibits 3 and 4 and the testimony of Ms E ad Ms D support that finding. However whilst the strength of that relationship suggests the child and the Respondent must have spent some time together, and the child is clearly hurt by her feelings that the Respondent does not see their relationship as she sees it (or saw it), even if that relationship was now stronger than the strain of these proceedings have affected, that is not the relationship to which s.4AA is directed.
The reputation and public aspects of the relationship
There is limited evidence to support a finding that for 18 years or for a shorter period, the couple were regarded as a couple in a genuine committed domestic relationship. I accept the neighbour Ms J who lived next door to C Town assumed they were “partners” and in the period from January 2015 to early 2016 she and her husband had dinner with the parties a couple of times. Her Affidavit is vague and of little assistance to the Applicant. The Sports Club member Ms K described the Applicant’s involvement in the Sports Club activities as minimal between 2011 (when Ms K became a member) and 2014 when the incident occurred and that the Applicant “attended [events] where her daughter the child was present, at some of the [social activities] and when she was [participating] herself but rarely would she attend as support for [Mr Quinn]”. I accept Ms K’s evidence. I was offered no pictures of the parties as a couple socialising; no evidence from work colleagues of the Applicant and, again, no evidence from the Applicant’s mother. Considering the Applicant bears the onus, this absence of evidence, considering an asserted relationship of 18 years, is quite surprising.
The sports season itself only lasts a few months. The absence of evidence of family celebrations like birthdays, Christmas etc is a gap not filled by the fact that the three girls formed a close relationship; that the child is still thought of kindly by Ms E and Ms D.
Conclusion
The Applicant has not established that she was in a genuine domestic relationship within the meaning of s.4AA. I regard the findings above in all aspects, save for the case of the child, strongly support the conclusion I have reached. Although some aspects of the care of the child and the development of her relationship with the Respondent do favour the conclusion sought by the Applicant, on the balance of all the evidence, that was not sufficient.
The Application will be dismissed and I will so order. I will hear the parties on costs by written submissions, if an application for costs by the Respondent is made and pursued.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 26 October 2018.
Associate:
Date: 26 October 2018