WEST & MARLEY (NO.2)

[2012] FamCA 745

FAMILY COURT OF AUSTRALIA

WEST & MARLEY (NO.2)	[2012] FamCA 745
FAMILY LAW –  DE FACTO RELATIONSHIP –  Jurisdiction – Whether the parties were in a de facto relationship on 1 March 2009 – Where the Applicant has not discharged the onus – No de facto existed after 1 March 2009 – No jurisdiction to determine property
FAMILY LAW –CHILDREN – With whom the children live – With whom the children spend time – Where the children have an attachment to the matrimonial home – Where the property distribution is important to the decision of with whom the children live – Interim Orders made pending the determination of the property
Family Law Act 1975 (Cth) 4AA(1), s 90RD
S v B (No. 2) (2004) 32 Fam LR 429

APPLICANT: Ms West

RESPONDENT: Mr Marley

INDEPENDENT CHILDREN’S LAWYER Mr Pohlman, Solicitor

FILE NUMBER: TVC 411 of 2010

DATE DELIVERED: 30 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Mackay

JUDGMENT OF: Bell J

HEARING DATE: 2 July 2012 to 5 July 2012 and 14 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: J Hamilton & Associates

COUNSEL FOR THE RESPONDENT: The Respondent Father appearing in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Mayes of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

The Family Law Centre

Orders:

IT IS ORDERED THAT:

1. That pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that the de facto relationship ended on or about 26 October 2007.

It is ordered until further order that:

1. Insofar as the children, B born … November 1997, N born … October 1999 and C born … August 2001, are concerned, the Orders of the Honourable Justice Benjamin made on 18 May 2011, be varied as follows:

   (a)       the Father to spend time with the children:

   (i)on each alternate weekend from after school Friday to before

   school Monday; and

   (ii)for half of the school holidays.

2. The children’s issues be adjourned to a date to be fixed before a Registrar pending determination of any property application, with a view to setting the matter down before the Honourable Justice Bell.

3. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 411 of 2010

Ms West

Applicant

And

Mr Marley

Respondent

REASONS FOR JUDGMENT

1. These are applications on the part of Ms West (“the mother”).  These applications are against her former partner, Mr Marley (“the father”), for property and parenting orders.

2. The parties entered into a de facto relationship in or about the year 1992 and they lived together until it is agreed they separated on or about 26 October 2007.  It is alleged on the part of the Applicant that the parties reconciled in November 2008.  This is denied by the Respondent.

3. From the union as aforesaid, three children were born namely, B born

   
   

   in November 1997, N born in October 1999 and C born in August 2001.

4. The Applicant had two children from a previous relationship, Ms L born in 1985 and Mr L born the in 1987.

5. The Respondent had three children from a previous relationship, D, M and S.

6. In a matter such as this, I would have thought that the primary matter for me to determine first, would be the question of parenting.

7. The Applicant is seeking orders that the children live with her (see her Amended Initiating Application filed 6 February 2012).  She seeks an order that the children spend time with the Respondent each alternate weekend from after school on Friday to commencement of school on Monday, together with the addition of so-called “normal” orders for school holiday time.  She does also seek an order for equal shared parental responsibility.  Insofar as interim matters were concerned this does not seem to be prosecuted with the Applicant’s final order being an order sought for sole parental responsibility.

8. Insofar as property is concerned, the Applicant is seeking an order in the aforesaid Amended Initiating Application that the matrimonial property be apportioned 50 per cent to the Respondent and 50 per cent to the Applicant.

9. If it had not been for the fact that the relationship was a de facto relationship, this case would have been comparatively simple in its facts and it would only be a matter for me to determine such facts that will support the judgment that I was to make in this matter.  However, it appears to me that notwithstanding I would have preferred to have dealt with the parenting matters first, because of what will fall from me in relation to the children’s attitudes towards the parties’ interest in the home in which the Respondent resides, it will be necessary for me to determine whether in fact this Court has jurisdiction pursuant to the amended Act in relation to a de facto relationship.

10. Simply it appears to me to be this; there was a de facto relationship which ceased in 2007 and as I have said hereinbefore, the Applicant says that the parties reconciled in a de facto relationship towards the end of 2008 and continued therein until the end of 2009.  Obviously the significance of this period is of vast importance to determine whether the Court has jurisdiction.  Briefly I refer to the jurisdictional issues in that the facts are as follows.

11. The Applicant says that the parties’ initial separation was the 26 October 2007, they reconciled in November 2008 and final separation was not until

    
    

    26 November 2009.

12. The Respondent submits that the parties separated on a final basis on the

    
    

    25 October 2007.  He states

    … from that date until January 2010, the applicant and I continued to spend time together for the benefit of the children and because we had mutual friends.  At no time was there a reconciliation of the relationship.

13. Section 4AA(1) of the Family Law Act 1975 is as follows:

    (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.

    (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.

14. The onus of proof of matters referred to in the aforementioned section are upon the Applicant: see Dutney J in S v B (No. 2) (2004) 32 Fam LR 429 at [49] and [50] he says:

    In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality … the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.

15. In the support of her case, the Applicant alleges that the parties resumed the relationship in 2008.  Generally she says that she stayed at the Respondent’s residence, and on some occasions for up to five days a week, and he would stay at her home for a couple of days per week.  They kept separate finances, she admits.  She outlines a number of trips they took as a family and events they attended together in her chronology in her final submissions.  She refers to emails of late 2009 which are exhibited to her affidavits, wherein she alleges that the Respondent continually refers to “[Mr & Mrs Marley]”.

16. In the Applicant’s affidavit dated 14 September 2011, she refers at Annexure C to an email sent to McKays Solicitors in which I note that the addressor as and by way of email is Ms West who that obviously of course is the Applicant. However, she does refer in that same affidavit to a further email which is dated the 15 September 2009 which does not indicate that it was forwarded by her and on the face of it, it does not appear to have any address of the addressor. It also refers to the support of various witnesses and particularly her brother who indicates that he was of the view that they had reconciled and that they were acting as husband and wife within the meaning of that term, as particularised in s 4AA of the Family Law Act 1975.

17. Exhibits tendered in this Court being exhibit 14 document 12 includes two emails which are from Email Address A to the solicitors referred to above and another one on 10 September 2009 from Email Address A.  Both of these documents as well are signed “Mr & Mrs Marley”.  I am unaware as to whose email address Email Address A is, but obviously the Ms West email address refers to the Applicant whose name is Ms West.  She relies upon that as indicating that not only she, as well as the Respondent, was of the view that there was a relationship between them, such as to entitle them to be called “Mr & Mrs Marley”.  I do not accept that that document on its own is sufficient to enable me to be convinced that the parties had reconciled and were in fact in a de facto relationship at the relevant date being the 1 March 2009. 

18. Further, I have referred to witnesses who have been called to support the Applicant.  They are particularised at paragraph 5.1 of the submissions of the Applicant being, Mr V, Ms T, Mr K, Ms P, Ms N and Ms G; Mr K is of course the Applicant’s brother.

19. It is surprising that the witnesses Ms V, Ms T, Ms P and Ms N were not challenged on their evidence, the Respondent appearing on his own behalf, but he was perhaps more concerned at seeing whether they would support his allegation that the Applicant was in a relationship with a person by the name of “Mr X”.  It is quite clear insofar as Mr V is concerned that the Applicant had some sexual relationship with him during the period of alleged separation but that she broke off such relationship.  It is quite clear on the evidence before me and photographs that there appears to be a considerable amount of social interaction between the Applicant and the Respondent.  The Applicant says this is clear evidence of a resumption of cohabitation, notwithstanding the fact that they did not resume living exclusively in the house in which the Applicant claims an interest, that is the house at Property O, which is “up the hill” from the house at which she was residing. 

20. It is on the Applicant’s evidence that the Respondent purchased a vehicle for her.  It was as a result of his actions in removing such vehicle from the possession of the Applicant that he was charged with unlawful possession of property and convicted.

21. How then on the evidence before me does the Applicant bring herself within the “circumstances” which is set out in s 4AA of the Family Law Act 1975?  There is, insofar as to be concerned as no common residence, but it is alleged on the part of the Applicant as I have said, that they shared a residence, that she lived in the Respondent’s residence for a period up to five days per week and that he on occasions attended at her residence for a period of two nights per week.  There was a sexual relationship according to the Applicant and not according to the Respondent.

22. There appears to be no financial dependency or independency between the Respondent and the Applicant and the Applicant seems to be somewhat proud of this.  The ownership and acquisition of property save for the motor vehicle referred to hereinbefore, is not an element in this case since the property was all purchased prior to the separation of the parties in 2007, save for some shares.

23. The Applicant alleges that there was a mutual commitment to a shared life and refers to, as I have already referred to, the social interactivities of the parties being the attendance at school functions, the travelling on holidays and indicates great support in her opinion from the photographs which are exhibited to her affidavits.

24. So far as s 4AA(2)(g) is concerned whether the relationship is or was registered under prescribed law of a State or Territory as a prescribed kind of relationship, there is no evidence to support that, but, there is evidence which looms large in the Respondent’s case insofar as taxation returns are concerned and Centrelink payments in relation to the children.

25. The thrust of the Applicant’s case is that on her material there was clearly a resumption of cohabitation and that she is supported by the evidence of the witnesses to whom I have referred.  She also emphasises, particularly in her submissions, that notwithstanding that the evidence of these parties as well as the Applicant, support the resumption of cohabitation, it was not suggested to any great extent by the Respondent that this in fact was untrue and he seems to be preoccupied with attempting to set up the fact that the Applicant was having a relationship with another person by the name of “Mr X”.

26. His evidence, is in effect, a categorical denial of those matters which the Applicant refers to and I refer to his affidavits of 21 September 2011 and particularly to that affidavit and to a lesser extent the affidavit of 8 September 2011. 

27. Whilst in some ways it cannot be suggested to be an excuse, the Respondent was not legally represented.  His claim is primarily based upon to what could be classed as admissions against interest.  They are:

    1.        income tax returns;

    2.        Centrelink returns; and

    3.        statements made by the Applicant to a Sergeant  R.

28. Having considered the evidence as contained in the Applicant’s application, if in fact I was called upon to decide a prima facie case, on her evidence alone, I would think it would be extremely difficult for the Respondent to suggest to the contrary.  However, I am faced with the matters to which I have hereinbefore referred.  Whilst at no time does the onus shift to the Respondent to prove that there was no de facto relationship, the onus remains upon the Applicant.

29. I would have thought that it would be necessary for the Applicant to explain the matters to which the Respondent, in effect, “hangs his hat on”. 

30. The Respondent refers in his affidavit to statements taken by a Sergeant R, a Sergeant in relation to the unlawful use of the motor vehicle charge to which I have briefly referred and a neighbour dispute and also the “bonnet riding incident”.  In that affidavit which is an exhibit to the affidavit of the Respondent of 8 September 2011, he refers to and incorporates it at paragraph 33.  Statements which have been made by the Applicant in relation to various matters, one of the 17 February 2010, one of the 4 February 2011 and another of the 14 February 2011. 

31. Sergeant R in two affidavits, one of the 11 June 2010 in relation to the unlawful use of the motor vehicle which was allegedly given by the Respondent to the Applicant, another affidavit of Sergeant R of

    
    

    25 March 2011 which relates to a civil proceeding to determine who was the rightful owner of a motor vehicle.

32. In each of the documents the Applicant has indicated that she separated from the Respondent prior to the date which she said reconciliation took place.  I refer to her statement given to Sergeant R and dated 17 February 2010 which is exhibited to the Respondent’s affidavit, in which she states inter alia:

    On 26 October 2007, I separated from [Mr Marley] …went to my mother’s home in [Town M] and resided at that location for a few weeks.  I then moved into the residence where I am still residing at [Property F].

33. On 4 February 2011 in a statement dated that date, to Sergeant R she says at the fourth paragraph thereof:

    In November 2007 [Mr Marley] and I parted and I moved into another residence approximately 3 kilometres from the property where [Mr Marley] still resides.

34. In her statement of 14 February 2011 to Sergeant R she says at paragraph 1:

    I was residing in a de facto relationship with [Mr Marley] from about 1992 until 26 October 2007.  Prior to leaving the relationship in 2007 [Mr Marley] and I would drive the children to the bus stop together.  [Mr Marley] would usually drive and it was usually the white [Toyota motor vehicle].

35. If that is not sufficient, in the affidavit of Sergeant R dated

    
    

    11 June 2010 exhibited to the Respondent’s affidavit, being REMPDG1.  He says paragraphs 14 and 15 thereof:

    14.[Ms Y] told me that in late 2009 [Mr Marley] contacted her about how to win [Ms West] back.  Mr Y said she told him that giving [Ms West] back her person [sic] property from the house would be a good start.  She said [Mr Marley] said that we could come to his house and collect her personal property any time we wanted.

    15.[Ms West] told me that [Mr Marley] had said the very same thing to her.

    [my underlining]

36. At or about the time the letters allegedly were signed as “Mr and Mrs Marely”, which the Applicant relies upon, there was also a message sent by the Applicant which appeared on Facebook, see annexure REMPF to the affidavit of the Respondent filed 8 September 2011:

    [Ms West] September 2, 2009 at 8:24 pm Report

    first of all your name is [Mr Marley] second of all I am glad I will never by your partner cause you cant help yourself with the thrill of foriegn [sic] pussy who you don’t even know….I hope you catch incurable disease of the cock.

37. I note that the emails concerning the dispute with the next door neighbours, signed by “Mr and Mrs Marley” were at or about this time.

38. I would have thought it would be essential for the Applicant in a case such as this to be able to explain adequately concerning, what appears to me as far as I am concerned, to be admissions against interest (see Jones v Dunkel (1959) 101 CLR 298).

39. In paragraphs 50 and 51 of the Applicant’s affidavit filed 21 September 2011, she is referring to the allegations made by the Respondent as follows:

    “50.With respect to paragraph 33, I say that as previously indicated in my affidavit filed 14 September 2011, my affidavit dated
    1 April 2010 contained a typographical error.  I have no recollection of telling [Sergeant R] that we separated in 2008, however believe that this was a reference to the fact that for most of 2008 we were separated.  [Mr Marley] and I did not reconcile until November 2008.

    As to paragraphs 34 (sic), 35 and 36

51.I deny the allegations contained therein.  I have always told Town 1 Police that there was a reconciliation between [Mr Marley] and I from November 2008 to November 2009.

…

1. I make it quite clear in my opinion this is not supported by the two affidavits of Sergeant R, nor the three statements of the Applicant.  I do not accept that she was told by Sergeant R:

   …

   that the reconciliation was not important to the charges pending in the Magistrates Court and did not put details about the reconciliation in subsequent affidavits filed by me.

   …

1. I emphasise what I consider is of importance is the fact that Sergeant R refers to Ms Y, who is a friend of the Applicant, and which she makes certain statements to him about Mr Marley attempting to recover the affections of Ms West and at that paragraph hereinbefore referred to, Sergeant R indicates that Ms West supported the statements made by Ms Y and this was in late 2009.

2. The next matter for consideration is the question of income tax returns.  The Respondent has relied heavily upon the income tax returns and in fact as I seem to consider his whole case is based upon written evidence being as I have said before, the affidavits made by Sergeant R, the Applicant’s statements in relation to other matters in dispute between the parties and in relation to the next door neighbours, and in her income tax returns for the years 2008, 2009 and 2010, which are exhibited to the Respondent’s affidavit filed

   
   

   9 February 2012.

3. In the Applicant’s income tax return for the year 2008 at “Spouse Details”, the Applicant has set out that in fact the spouse’s surname was Marley and his given names were ….  In it, it notes that in answer to a question, “Did you have a spouse for the full year?”, (1 July 2007 to 30 July 2008) the Applicant has indicated that she did have a spouse for the period of 1 July 2007 to 26 October 2007.

4. In the Applicant’s income tax return for the year 2009 where the query, “Your Spouse’s” name is set out, there is a blank and the spouse’s date of birth is blank, the period under which she had a spouse is blank.  Nowhere in that income tax return is there any acknowledgement that in fact the parties had reconciled in late 2009.

5. In the Applicant’s income tax returns for the years 2009 and 2010, under the similar heading, once again the details required of any spouse (married or

   
   

   de facto) are blank.

6. I have considered the Applicant’s explanation and once again I am not persuaded that this is sufficient to discharge what I consider to be admissions against interest.

7. In relation to Centrelink; the documents upon which the Respondent relies appear at annexure REMPCL exhibited to his affidavit filed 9 February 2012.  From the document set out therein it is quite clear that prior to entering upon any further discussions concerning the child support it appears at the document referred to hereinbefore that the Australian Government Family Assistance Office has increased the Respondent’s Family Tax Benefit entitlement as from 18 July 2008 and has not varied it since then, according to the documents, up until the 12 November 2010. 

8. Insofar as child support is concerned, the assessment of 9 March 2008 indicates that Ms West was to pay to Mr Marley an amount of $3,366 per month or for the period 1 July 2008 to 15 April 2009, that first document indicates that the Respondent’s care percentage is 100 per cent for each of the children, B, N and C and that Ms West’s care for B, N and C necessarily is zero.

9. For the period 1 November 2008 to 31 January 2009, once again, the care for B, N and C is 100 per cent in favour of the Respondent.

10. The Applicant at page 14, paragraph 52 of her affidavit filed 21 September 2011, attempts to explain this away and I refer to and incorporate the whole of that paragraph subsequent to the headings as to paragraphs 39, 40, 41, 42 and 43 which deal with the question in the Respondent’s affidavit of child support.

11. Once again, I am not persuaded that the explanation of the Applicant in relation to her failure to indicate to the Child Support Agency that she had reconciled with the Respondent is sufficient to discharge what I consider the evidence which is very much against the Applicant’s case. 

12. I say that as far as I am concerned taking into consideration the evidence of the Applicant, the evidence of the Respondent, albeit the evidence of the Respondent generally is not as persuasive of that as the Applicant, but, the written evidence, of Sergeant R, of the income tax records and of Centrelink persuade me that the onus which is upon the Applicant has not been discharged and in those circumstances I am not satisfied that as at the date required in the Act, that is the 1 March 2009, the parties were in a de facto relationship.   

13. As a result thereof it means the parties will have to wait for some period before the residence of the parties is determined.  It may be upon a hearing by the Supreme Court of Queensland that the order made will cause the former matrimonial home, in which the children have resided for a considerable period, will have to be sold.  How will this affect the children?  It is quite clear on the evidence before me, not only on the evidence of Ms S, a family consultant who has done reports in this matter, but also a Mr J who was required to give a report after the Respondent had withheld the children from an Order made by myself after the initial hearing of this application. 

14. The children have a very close relationship with the former matrimonial home.  Ms S was of the view that in fact, if anything, the former matrimonial home means more to them than the relationship they may have with their parents, and this appears to be reinforced by the evidence of Mr J where he says tears came to the eyes of the children when it was suggested that the property may be lost to them.  It appears it could be for children an idyllic situation. 

15. If that is the case, how can I possibly determine with whom the children should reside pending the determination of this matter in the Supreme Court of Queensland?  The accommodation of the children is a relevant matter to them and it is of vast importance to them and I cannot determine whether the children should have the benefit of that house until such time as I am able to ascertain where the house will go and whether it is still available to them. 

16. Taking those matters into consideration I do regret that I do not feel I can embark upon a final hearing of the application for parenting and will have to make interim orders.  I have already varied the Orders of Justice Benjamin made 18 May 2011, as a direct result of the Respondent’s failing to return the children, but I do not believe that since this matter will go for a period in the future that such a restrictive order in relation to the children would be to their advantage whatsoever.

17. I am concerned, and the evidence could support my fear, that the Respondent will do anything to alienate the affections of these children.  I have not decided that at this stage.  But, in these circumstances, I feel that I should limit the Order of Justice Benjamin made 18 May 2011, and shorten the period during which the children spend time with their father to each alternate weekend and one half of the school holidays. 

18. The parties only live some two or three kilometres apart.  Even since my Order restricting the Respondent’s contact quite substantially, the children have visited the Respondent, with the consent of the Applicant, by walking up the hill to him.  Insofar as B is concerned, he is almost at an age where I think he can vote with his feet and I would consider that my Order in relation to his having only weekend contact with his father would cease as at his fifteen birthday.  N and C are entirely different, but even then I would have hoped that common sense would prevail and the parties would readily allow the children to travel the comparatively short distance, their being basically country children, to enjoy the circumstances surrounding the former matrimonial home as well as their enjoying their mother’s accommodation.  I will consequently Order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 30 August 2012.

Associate: 

Date:  30 August 2012