WESTERN AUSTRALIAN POLICE and FERGUSON
[2013] FCWA 95
•10 SEPTEMBER 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 (Cth)
LOCATION: PERTH
CITATION: WESTERN AUSTRALIAN POLICE and FERGUSON [2013] FCWA 95
CORAM: WALTERS J
HEARD: 27 AUGUST 2013
DELIVERED : 10 SEPTEMBER 2013
FILE NO/S: PTW 1274 of 2013
BETWEEN: COMMISSIONER, WESTERN AUSTRALIAN POLICE
Applicant
AND
KELLY FERGUSON
Respondent
Catchwords:
FAMILY LAW – CHILD ABDUCTION – Hague Convention – Return order – Removal of 10-year-old girl from New Zealand to Australia – Whether removal of child from New Zealand to Australia "wrongful" – Rights of custody – Whether the father has rights of custody – Whether mother living with father as a de facto partner at the time the child was born – Consideration of meaning of de facto relationship as defined in s 29A of the Interpretation Act 1999 (NZ) – Consideration of "composite picture" test – Whether commitment to a shared life is a necessary prerequisite to a finding that a de facto relationship exists – Conclusion to the effect that mother was living with father as a de facto partner at the time the child was born – Conclusion that father has rights of custody and that removal of child from New Zealand to Australia was wrongful
Legislation:
Care of Children Act 2004 (NZ), s 3, s 4, s 5, s 17
Evidence and Procedure (New Zealand) Act 1994 (Cth)
Interpretation Act 1999 (NZ), s 29, s 29A
Interpretation Act 1984 (WA), s 13A
Family Court Act 1997 (WA)
Family Law (Child Abduction Convention) Regulations 1986 (Cth), r 1A(2), r 14(1), r 16(1), r 16(1A), r 16(3)
Family Law Act 1975 (Cth), s 48
Property (Relationships) Act 1976 (NZ), s 2C, s 2D
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms I Petersen
Respondent: Mr M Nicholls QC
Solicitors:
Applicant: State Solicitor's Office
Respondent: Rockwell Olivier
Case(s) referred to in judgment(s):
Department of Child Safety & Hunter [2009] FamCA 263
Fairfax v Ireton [2009] 1 NZLR 540
Fairfax v Ireton [2009] 3 NZLR 289
In the Marriage of Batty (1986) FLC 91-703
In the Marriage of Falk (1977) 15 ALR 189
In the Marriage of Pavey (1976) 10 ALR 259
In the Marriage of Todd (No 2) (1976) 9 ALR 401
In the Marriage of Tye (No 1) (1976) 9 ALR 529
Iordanov & Gueorguiva, (unreported, Family Court of Australia, Ellis J, 24 June 1996)
Lynam v Director-General of Social Security (1983) 52 ALR 128
MW v Director-General of the Department of Community Services (2008) 82 ALJR 629
Shelly and Markhov [2012] FCWA 68
Stack v Dowden [2007] 2 AC 432
Truman & Clifton [2010] FCWA 91
Wenceslas & Director-General, Department of Community Services (2007) FLC 93 - 321
Zotkiewicz v Commissioner of Police (No 2) (2011) FLC 93-472
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Greta Ferguson-Ball] was born in New Zealand [in] 2003. She is now 10 years old. Her mother is [Kelly Ferguson]; her father is [Steven Ball].
2Ms Ferguson ("the mother") and Mr Ball ("the father") are both New Zealand nationals. They met in New Zealand in 1999 or 2000 and later commenced a relationship. After living together in [New Zealand], and then in [X Town], Western Australia for a period of approximately 18 months, they returned to New Zealand in or about September 2002. By then, the mother and the father had become engaged, and the mother was pregnant with Greta.
3Upon their return to New Zealand, the mother and the father lived with the mother's parents for a short time, and then moved to live together in a residential property owned by the mother's parents in [Property M].
4According to the mother, the parties' relationship deteriorated after she became pregnant, and by October 2002 she was no longer wearing her engagement ring. The mother and the father disagree as to the nature of their relationship during the period leading up to Greta's birth. It is not in dispute, however, that they remained living together.
5The mother and the father were still living together when Greta was born in February 2003. The father was present at Greta's birth, and was later registered as her father on the birth certificate.
6The mother and the father continued to live together after Greta's birth. According to the mother, the father moved out in or about August 2003; according to the father, he moved out in or about March 2004. It is beyond dispute that the parties were separated by that time.
7They never married.
8After the parties separated, the father moved to [P Town] and Greta remained living with the mother in New Zealand. The father saw Greta regularly, and spent time with her. There can be no doubt that he had a close and loving relationship with her.
9Following the catastrophic earthquake which struck New Zealand in February 2011, Greta stayed with the father in P Town for a few weeks. She then returned to live with the mother in New Zealand, but spent time with the father in P Town during her school holidays.
10Not long after the earthquake, the mother indicated to the father that she would like to return to live in Western Australia, and that she would like to take Greta with her. In September 2012, the mother and the father emailed each other regarding the subject of the mother and Greta relocating to Western Australia. The father made it clear that he did not consent to Greta being taken out of New Zealand.
11Greta spent 12 days with the father in P Town in January 2013. On 4 February 2013, the mother left New Zealand and travelled to, Western Australia, taking Greta with her. A few days later, the mother sent an email to the father saying that she and Greta "are trialling a new life in Australia".
12According to the mother, she left New Zealand and travelled to Western Australia because neither she nor Greta could continue to live in New Zealand after the earthquake in February 2011. In her email to the father dated 7 February 2013, she wrote:
I've been trying to talk to you now for years. I find it unfair that you will not consider the way [Greta] and I feel towards earthquakes and after-shocks ... With years of anticipated shakes in a city that is scary, with limited commodities for children growing up. Being unprepared to listen to alternatives, I felt I have had no choice but to leave [New Zealand].
I have not, or would never deny you access or as much communication with [Greta] as you want. It's about us feeling safe and me being able to give [Greta] the best life I can. This will not happen in [New Zealand]. ...
13In mid February 2013, the father made an application (in accordance with the Hague Convention on the Civil Aspects of International Child Abduction) for the return of Greta to New Zealand. As a result, the Commissioner of the Western Australia Police (who represents the responsible Central Authority for applications of this nature in Australia) filed an application in this Court on 14 March 2013. The application seeks orders to ensure the return of Greta to New Zealand. I shall refer to the application as an application for a return order.
14The mother opposes the Commissioner's application.
15For the Commissioner to succeed in his application for the return order, it must be demonstrated that (among other things) the father has "rights of custody" in respect of Greta under New Zealand law. If the father does not have "rights of custody", then the Commissioner's application must fail.
16Whether the father has "rights of custody" in respect of Greta under New Zealand law turns ultimately on one question only: was the mother living with the father "as a de facto partner" at the time Greta was born? The father asserts that she was; the mother asserts that she was not.
17It seems extraordinary that the long years of contact between Greta and her father, and the closeness and meaningful nature of their relationship during that time, count for nothing in the Court's deliberations as to whether or not the father has "rights of custody" in respect of Greta – but that is the law. The Court is required to focus on the nature of the parties' relationship at the time Greta was born. That the parties may have had a de facto relationship (or a marriage-like relationship) at some time prior to Greta's birth, or at some time after Greta's birth, is irrelevant – except to the extent that the existence of such a relationship may shed light on the nature of the parties' relationship at the time of the birth.
18In Department of Child Safety & Hunter [2009] FamCA 263, Jordan J was confronted with a similar application to that now before this Court. The child in that case was 14 years old. His Honour at [20] was "unable to conclude that the evidence [was] sufficient to establish that a de facto relationship existed at the relevant time". As a result, the father was held not to have "rights of custody" at the time of the removal of the child from New Zealand, and the application for return of the child to that country necessarily failed.
19His Honour observed at [46]:
I cannot close without observing that that decision is not one which sits comfortably with me.
20His Honour then said:
47.The real merits of this case cannot be addressed by the current limiting terms of the convention as strictly interpreted by Australian Courts. This Court was unable to find that the requisite de facto relationship existed at the date of birth of the child, but it is common ground that such a relationship existed within weeks of the child’s birth and persisted for the following four years. During that time, the parties established a home and conducted themselves as partners and parents. After separation, the father continued to pursue his relationship with his son and shared in the responsibilities relating to his upbringing, including providing financial support and being actively involved in his extracurricular activities.
...
49.The mother’s unilateral removal of the child from New Zealand without the father’s knowledge and consent abruptly severed the relationship between father and son who have now not seen one another in the 14 months since the date of removal. In this era, where most jurisdictions recognise the importance of joint parenting, recognise the shared rights and responsibilities of parents and the rights of children to have meaningful relations with each of the parents, the prospect that one parent should be able to unilaterally sever relations between a child and the other parent is a repugnant one.
21In my opinion, Jordan J's frustration is understandable. It is not in dispute, however, that the success or failure of the Commissioner's application in the proceedings now before me will indeed turn on the question of whether a de facto (or marriage-like) relationship existed between the mother and the father at the time of Greta's birth.
The proceedings
22This is an application brought under regulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations") for an order for Greta's return to New Zealand – which, like Australia, is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Convention").
23In these reasons, and unless otherwise stated, all references to regulations comprise references to the Regulations.
24Pursuant to reg 1A(2) –
[the] Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
25Article 1 of the Convention provides that its objects are:
(a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
26Regulation 16(1) is as follows:
If:
(a)an application for a return order for a child is made; and
(b)the application ... is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority ... satisfies the court that the child’s removal or retention was wrongful under subregulation (1A),
the court must, subject to subregulation (3), make the order.
27In this case, the application was filed within one year after Greta's removal from New Zealand to Australia. It follows that, subject to the other requirements set out in reg 16(1), this Court must make the return order. Put another way, this Court does not have a discretion to refuse to make the return order on the basis (for example) that Greta has settled in her new environment.
28Thus, provided that the requirements of reg 16(1) are satisfied, and that no discretionary ground for refusal is established under regulation 16(3), this Court must make the return order.
29Regulation 16(1)(c) provides that the responsible Central Authority (in this case, the Commissioner) must satisfy the Court that Greta's removal was wrongful within the meaning of regulation 16(1A).
30Regulation 16(1A) is as follows:
For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
31In this case, the only issue in dispute is whether the father had "rights of custody" in relation to Greta under New Zealand law immediately prior to Greta's removal to Australia. The position is summarised accurately in the mother's case summary filed 22 August 2013 ("the mother's Summary"), at [3] and [4]:
The mother opposes the making of an order requiring Greta's return to New Zealand on the basis that at the time that she brought Greta to Australia in February 2013 the father had no "rights of custody" within the meaning of reg 4, and that therefore the requirements of reg 16(1A)(c) are not satisfied.
That is the sole issue in dispute. It is not in dispute that Greta is under the age of 16 years, that before she was brought to Australia by her mother she was habitually resident in New Zealand, a "convention country" for the purposes of reg 16(1A)(c), that the father did not consent to her removal from New Zealand and that his application was made within one year of the date of her removal. It is not in dispute that if the father had rights of custody in respect of Greta (which is not admitted) then at the time of her removal he was actually exercising those rights, or would have exercised those rights if she had not been removed from New Zealand.
32The meaning of the term "rights of custody" is described in reg 4, which is (relevantly) in the following terms:
(1)For these Regulations, a person ... has rights of custody in relation to a child if:
(a)the child was habitually resident in ... a convention country immediately before his or her removal ...; and
(b)rights of custody in relation to the child are attributed to the person, ... either jointly or alone, under a law in force ... in the convention country in which the child habitually resided immediately before his or her removal ...
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a)by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
33It is not in dispute that the applicable law for determining whether the father had "rights of custody" in respect of Greta is the law of New Zealand as it was immediately before 11 February 2013. Further, and as set out in the mother's Summary at [5]:
It is not in dispute that if the father was, at that time [in other words, immediately before 11 February 2013], a joint guardian of Greta as defined by the law of New Zealand he would have had "rights of custody" within the meaning of regs 4 and 16(1A).
34It is agreed that, in this case, rights of custody can only arise by operation of New Zealand law. Again, the position is described accurately in the mother's Summary at [7]:
There was no judicial or administrative decision about Greta, and no agreement about her having legal effect, so any "rights of custody" must arise by operation of law pursuant to reg 4(3)(a).
"Rights of custody" under New Zealand law
35It is conceded that, for current purposes, the law of New Zealand relating to the attribution of parental rights in respect of Greta is to be found in the affidavit of Lynne Christine Harrison sworn 22 February 2013. Ms Harrison is a barrister of the High Court in New Zealand.
36The Care of Children Act 2004 (NZ) ("COCANZ") defines parents' rights and responsibilities in relation to their children. It came into effect on 1 July 2005.
37According to Ms Harrison, the "cumulative effect" of various provisions within COCANZ is that, if a parent enjoys "rights of guardianship" pursuant to COCANZ, then he or she will have rights of custody pursuant to the Convention.
38It is not in dispute that the question of whether the father has "rights of guardianship" pursuant to COCANZ is governed, in essence, by the provisions of s 17 of COCANZ – relevantly, s 17(1) and (3):
17.Child's father and mother usually joint guardians
(1)The father and the mother of a child are guardians jointly of the child unless the child's mother is the sole guardian of the child because of subsection (2) or subsection (3).
...
(3)If a child is conceived before the commencement of this Act, the child's mother is the sole guardian of the child if the mother was neither –
(a)married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor
(b)living with the father of the child as a de facto partner at the time the child was born.
39As indicated above, COCANZ came into effect on 1 July 2005. Because Greta was conceived before that date, COCANZ s 17(3) applies. Further, because the mother was neither married to nor in a civil union with the father at any relevant time, s 17(3)(a) does not apply. It follows that the mother is Greta's sole guardian unless she was "living with the father ... as a de facto partner" at the time of Greta's birth.
40Obviously, if the mother is Greta's sole guardian, then the father does not have "rights of guardianship" in relation to Greta under COCANZ – and he does not have "rights of custody" under the Convention and for the purposes of reg 4.
41Thus, and as foreshadowed above, the Commissioner's application for the return order will fail at the outset if it cannot be demonstrated that the mother was living with the father as a de facto partner at the time of Greta's birth. For reasons which will become apparent, and for ease of reference, I shall refer to the core question as whether the mother and the father were living together in "a de facto relationship" at the time of Greta's birth.
De facto relationship
42Pursuant to s 29 of the Interpretation Act 1999 (NZ), the expression "de facto partner" means "a person who is a party to a de facto relationship (as defined in s 29A)".
43The meaning of the expression "de facto relationship" is defined in s 29A of the Interpretation Act 1999 (NZ):
29AMeaning of de facto relationship
(1)In an enactment, de facto relationship means a relationship between 2 people (whether a man and a woman, a man and a man, or a woman and a woman) who—
(a)live together as a couple in a relationship in the nature of marriage or civil union; and
(b)are not married to, or in a civil union with, each other; and
(c)are both aged 16 years or older.
...
(3)In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—
(a)the context, or the purpose of the law, in which the question is to be determined; and
(b)all the circumstances of the relationship.
(4)A de facto relationship ends if—
(a)the de facto partners cease to live together as a couple in a relationship in the nature of marriage or civil union; or
(b)one of the de facto partners dies.
44In Wenceslas & Director-General, Department of Community Services (2007) FLC 93 - 321, the majority of the Full Court said at [218] and [219]:
... We have been assisted by the knowledge that s 29A of the Interpretation Act 1999 (NZ) directs a court, when determining [whether two people live together as a couple in a relationship in the nature of marriage], to have regard to the context or purpose of the law in which it is necessary to determine the question. The stated purpose of [COCANZ] appears in s 3(1), which provides:
The purpose of this Act is to --
(a)promote children's welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b)recognise certain rights of children.
When regard is had to the purpose of the legislation it would seem appropriate to set a relatively low threshold when determining whether the parents of a child were living in a de facto relationship. Such an approach would ensure that the child has both natural parents as guardians. This would be consistent with the modern acceptance of the benefits children obtain from having both parents involved in their lives, regardless of whether the parents were married or not. This more contemporary approach can be seen in the New Zealand legislation itself, which has extended guardianship rights to all fathers of ex nuptial children whose name appears on their child’s birth certificate.
45I am aware that the High Court in MW v Director-General of the Department of Community Services (2008) 82 ALJR 629 allowed an appeal against the Full Court's decision in Wenceslas. In doing so, however, the passage from the Full Court's decision quoted above (including its reference to a "relatively low threshold") was not specifically disapproved; nor was it rejected necessarily or by implication. The majority (comprising Gummow, Heydon and Crennan JJ) referred to the passage at [99], and said at [100] that it had been criticised by the appellant. The majority did not otherwise comment on the passage. Gleeson CJ (who would have dismissed the appeal) referred to the passage at [17] and [18]. His Honour said:
While I am not quite sure what they meant by their reference to a “relatively low threshold” of proof, I agree with the conclusion of the majority in the Full Court that the evidence, unsatisfactory as it was, sufficed to establish that the couple were living together in a de facto relationship, and not merely living together, at the time of the birth of the child. In consequence, the father is a joint guardian of the child, and therefore has rights of custody.
46Kirby J (who would also have dismissed the appeal) referred to the passage at [195]. His Honour seemed to have no discomfort with it.
47When considering "the context, or the purpose of the law, in which the question is to be determined", it seems to me that other provisions contained under the general heading of Part 1 – Preliminary provisions of COCANZ should not be overlooked. Thus, s 3(2) provides that:
To that end, this Act—
(a)defines and regulates—
(i)parents’ duties, powers, rights, and responsibilities as guardians of their children:
(ii)parents’ powers to appoint guardians:
(iii)courts’ powers in relation to the guardianship and care of children:
...
(d)encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children:
...
(f)implements in New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction:
48COCANZ s 4 is headed Child's welfare and best interests to be paramount. It includes the following provisions:
(1)The welfare and best interests of the child must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
...
(5)In determining what best serves the child’s welfare and best interests, a court or a person must take into account—
(a)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(b)any of the principles specified in section 5 that are relevant to the welfare and best interests of the particular child in his or her particular circumstances.
49COCANZ s 5 is headed Principles relevant to child's welfare and best interests. It includes the following provisions:
The principles referred to in section 4(5)(b) are as follows:
(a)the child's parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing;
(b)there should be continuity in arrangements for the child's care, development and upbringing, and the child's relationships with his or her family ... should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents);
(c)the child's care, development and upbringing should be facilitated by ongoing consultation and cooperation among and between the child's parents and guardians and all persons exercising the role of providing day-to-day care for, or entitled to have contact with, the child;
...
50In my opinion, COCANZ ss 3, 4 and 5 provide an important context in which the question of whether two people live together as a couple in a relationship in the nature of marriage is to be determined. In other words, the issue falls to be determined in the context of contemporary family law, or, as the majority of the Full Court described it in Wenceslas, "the modern acceptance of the benefits children obtain from having both parents involved in their lives, regardless of whether the parents were married or not". Jordan J expressed similar sentiments in the passage from Department of Child Safety & Hunter at [49] to which I have referred above:
In this era, where most jurisdictions recognise the importance of joint parenting, recognise the shared rights and responsibilities of parents and the rights of children to have meaningful relations with each of the parents, the prospect that one parent should be able to unilaterally sever relations between a child and the other parent is a repugnant one.
51It was submitted on behalf of the mother that a "composite picture" test should be applied when deciding whether the father and the mother lived together as a couple in a relationship in the nature of marriage (which, for the sake of convenience and as indicated above, I shall call a "de facto relationship") at the time of Greta's birth: see the mother's Summary at [18]. This "test" has its genesis in a passage from the decision of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128, where his Honour said at 131:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
52The "statutory test" to which his Honour was referring in the final sentence of the passage quoted above was different to the question that presents itself for determination in this matter. As Fitzgerald J said in Lynam at 131:
The question here ... is whether the relationship between a man and woman who are not legally married is such that they are living together as husband and wife on a bona fide domestic basis.
53Still, the passage from Lynam comprises a useful starting point.
54The factual scenario confronted by the Full Court and the High Court in Wenceslas and MW v Director-General of the Department of Community Services respectively was not dissimilar to that now confronting this Court. Somewhat surprisingly, however, neither Finn J (who dissented in the Full Court decision in Wenceslas, but whose conclusion was preferred by the majority of the High Court in MW v Director-General of the Department of Community Services) nor Bryant CJ and Thackray J (who comprised the majority in Wenceslas) described or referred to a "test" that might assist in determining whether the father and the mother in that case lived together as a couple in a de facto relationship (or a relationship in the nature of marriage) at the time of the relevant child's birth. Nor was the subject broached by the majority of the High Court in MW v Director-General of the Department of Community Services. In his dissenting judgment in MW v Director-General of the Department of Community Services, however, Gibbs CJ dealt with the subject at some length (most references and footnotes omitted):
[10]Finn J was correct to stress the difference between living together and living together “as a couple in a relationship in the nature of marriage or civil union”. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved. ...
[11]When divorce, for various reasons, was more difficult, in former times, de facto relationships often existed because there was an impediment to legal marriage. A common impediment was a subsisting marriage of one of the parties. Marriage, in Australia and New Zealand, involves legal requirements of formality, publicity and exclusivity. A person may be a party to only one marriage at a time. De facto relationships, on the other hand, do not involve these elements. They are entered into, and may be dissolved, informally. In Australia, marriages are required to be entered on a public register. In New Zealand, marriages and civil unions must be registered. Parties to marriages and civil unions do not have a choice as to whether, when and by what means they will disclose their status to the public. It goes without saying that there is no mandatory public registration of sexual relationships, even if they involve cohabitation. De facto relationships may co-exist with the marriage of one or both parties and, at least in some circumstances, people may be parties to multiple de facto relationships. Yet the law to be applied in this case acknowledges that some are, and some are not, in the nature of marriage. How is the difference to be determined? No single and comprehensive answer to that question can be given, but there is one test that is applicable to the present case.
[12]In Stack v Dowden [2007] 2 AC 432 at 450–1 [45]; [2007] 2 All ER 929 at 945, Baroness Hale of Richmond said:
[45]Cohabitation comes in many different shapes and sizes. ... But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves “as good as married” anyway ...
[13]... [In] Australia, what often prompts cohabiting couples to marry is a decision to have a child, and to do so within the context of a marriage. People often refer to this as “starting a family”. The cohabiting parties to many relationships, especially first relationships of the “short-lived and childless” kind, may be surprised to be told that they are involved in a relationship in the nature of marriage or civil union. They may intend no such thing. The same may apply to some people in longer-term cohabitation who have chosen not to marry. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference. ... The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union, but that do not depend upon the formal legal status thus acquired. To describe a relationship as being in the nature of marriage implies a view about the nature of marriage. ... It is unnecessary, for present purposes, to attempt a comprehensive account of the features of a relationship that might justify such a description. Plainly, “living together” is not enough. For present purposes it is sufficient to focus upon that aspect of the relationship between the appellant and the father that gives rise to this dispute, that is to say, shared parenthood, and upon the inferences as to intention that may be drawn from that.
[14]... There is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union. It includes relationships which could never be described as being in the nature of marriage or civil union. Nevertheless, when a sexual union results in the birth of a child, cohabitation between the parties to the union is no longer a matter of purely personal convenience or satisfaction. The interests of a third party have intervened. Traditional concepts of marriage and the family as institutions for the protection of children, and modern concepts of shared parental responsibilities even in the absence of a formal union, may come into play in characterising the relationship. ...
55In the mother's Summary at [19] it is submitted that "what is necessary is that the mother and the father treated each other as being 'of prime importance'". The authority cited for this proposition is the decision of Crisford J in Shelly and Markhov [2012] FCWA 68. In that case, however, her Honour was dealing with property settlement proceedings under the Family Court Act 1997 (WA). It was in that context that the question of whether the parties had a de facto relationship arose. Further, her Honour was required to focus on the definition of a de facto relationship contained in s 13A of the Interpretation Act 1984 (WA). That section (relevantly) is as follows:
13A. De facto relationship and de facto partner, references to
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether —
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
56Crisford J found at [228]:
A striking feature of this particular relationship is that over an extended period of time, [the male partner] was actively seeking another partner. I accept this is likely to have begun in around 2000. I do not accept it was covert. I do not accept it was simply a searching for a fling or casual liaison.
57Her Honour continued at [232]:
Whilst I accept that parties can still be in a marriage-like relationship and have affairs, liaisons or other de facto relationships, I am not satisfied that actively and openly searching for a life partner fits with the concept of a relationship in the nature of marriage.
58It was in this context (and, no doubt, in the light of s 13A(2)(g) of the Interpretation Act 1984 (WA) – which defines "the degree of mutual commitment by [the parties] to a shared life" as an indicator of whether a de facto relationship exists) that her Honour concluded at [235] and [236]:
It is not difficult to point to parts of [the parties'] relationship that do have the sense of a marriage. I accept that members of the Thai Community saw them as a couple.
However, neither really treated the other as being of prime importance. They came and went, holidayed as they pleased, had no intermingling of finances, maintained strong cultural links which excluded the other and played little part in the family life of the other. They simply lived together.
59I am not persuaded that it is necessary to find that the mother and the father in these proceedings treated each other as being "of prime importance" before concluding that they lived together (at the relevant time) as a couple in a de facto relationship or a relationship in the nature of marriage. That may well have been an important consideration in Shelly and Markhov, but the context, or the purpose of the law, in which the relevant question in this case is to be determined is very different to the context, or the purpose of the law, in which the question arose in that case. It is unnecessary to list those differences, beyond referring to the fact that the father and the mother in these proceedings saw fit to bring a child into the world. That child is now the subject of the Commissioner's application for a return order.
60In Truman & Clifton [2010] FCWA 91, Thackray CJ was also required to consider whether parties lived in a de facto relationship. The question was posed, as it was in Shelly & Markhov, in the context of whether the court had jurisdiction to entertain an application for property settlement under the provisions of the Family Court Act 1997 (WA). As Crisford J was later required to do in Shelly & Markhov, the Chief Judge was obliged to consider the provisions of s 13A of the Interpretation Act 1984 (WA).
61After citing the passages from the decision of Gleeson CJ in MW v Director-General of the Department of Community Services to which I have referred above, the Chief Judge said:
347The Parliament of Western Australia provided no definition of “marriage” when enacting the legislation which defines a de facto relationship as being “marriage-like”. There would be little point in doing so, given that to come within the definition a relationship needs only to be “like” a marriage, and is thus inherently an elastic concept. Nevertheless, the formulation does require a judge administering the law to reflect on the nature of marriage. In reflecting, the judge is directed to consider the list of factors contained in the Interpretation Act 1984. The utility of the list is nevertheless to some extent limited, as the legislation makes clear that the existence of each of the factors is not “essential” to the existence of the relationship.
...
355... I have to say I do not consider it is in the accepted nature of a marriage for every important financial transaction between a couple to be formally documented. It is not in the accepted nature of a marriage for a man to use prostitutes (or to tell people he uses prostitutes) at the same time he claims to have committed to a woman for life. It is not in the nature of a marriage for a man to carry on a relationship behind the back of a woman who he knows has been faithful to him. It is not in the nature of a marriage for a couple to spend what they regard as a most significant occasion every single year apart from the other. Arguably it is also not in the nature of a marriage for a couple voluntarily to spend as much time apart from each other as this couple did. This relationship lacked the commitment to a shared life that characterises marriage. I am also not persuaded that the relationship was seen by those who knew them as being “marriage-like”. On the contrary, many wondered why they were together at all.
62The Chief Judge's comments are of interest, but – as was the case in Shelly and Markhov – the context, or the purpose of the law, in which the relevant question in this case is to be determined is very different to the context, or the purpose of the law, in which the relevant question arose in Truman & Clifton. Once again, it is unnecessary to list those differences, beyond referring to the fact that the father and the mother in these proceedings saw fit to bring a child into the world. The parties in Shelly and Markhov and Truman & Clifton did not have children together.
63In the wife's Summary at [19] it is submitted that:
What is necessary for a marriage is a mutual commitment to a shared life together, ... It is consensus that makes a marriage, not cohabitation. So it is the mutual commitment to a shared life that is an essential element for a relationship to be "in the nature of marriage". This is illustrated by the crucial finding of Thackray CJ in Truman & Clifton that "[the] relationship lacked the commitment to a shared life that characterises marriage".
64The Chief Judge's reference to "commitment to a shared life that characterises marriage" is, of course, a reference to s 13A(2)(g) of the Interpretation Act 1984 (WA) – which records "the degree of mutual commitment by [the parties] to a shared life" as an "indicator of whether or not a de facto relationship exists". The section makes it perfectly clear, however, that that indicator is "not essential" in determining whether a de facto relationship exists. It follows that, even if the provisions of s 13A of the Interpretation Act 1984 (WA) were to be considered to apply to the question to be determined in these proceedings, a commitment to a shared life is not a necessary prerequisite to a finding that a de facto relationship existed at the relevant time. Subject to "all the circumstances of the relationship" (see s 29A(3)(b) of the Interpretation Act 1999 (NZ)), this Court would be perfectly entitled to find that the mother and the father were living together as a couple in a relationship in the nature of marriage at the time of Greta's birth, even if they were not mutually committed to a shared life. Such a commitment is likely to be no more than a non-essential indicator of whether the relevant relationship existed at the time.
65In Fairfax v Ireton [2009] 1 NZLR 540, the High Court of New Zealand (Priestley and Cooper JJ) dealt with an Article 15 Request from the Australian Central Authority "for determination that the removal of [a child] to Australia was wrongful within the meaning of Article 3 of the Convention" and, in particular, whether the father of the child had rights of custody under New Zealand law: see [13] to [16]. Article 15 of the Convention is as follows:
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
66Fairfax v Ireton was the New Zealand "side" of the application for a return order dealt with by Jordan J in Department of Child Safety & Hunter.
67Fairfax v Ireton was successfully appealed to the New Zealand Court of Appeal (see Fairfax v Ireton [2009] 3 NZLR 289. The majority in the Court of Appeal (Chambers and Robertson JJ) was strongly critical of the lower court's willingness to deal with the Article 15 request from the Australian Central Authority. In relation to that subject, it is sufficient to quote from the headnote:
The function of Article 15 was to enable an application court (that is, Australia) to obtain from a court of the State to which the child has been removed an opinion as to the domestic law of that state. New Zealand courts should ... provide answers only to domestic law questions. Whether [the child's] removal to Australia was wrongful within the meaning of Article 3 turned on the meaning of the Convention, and that was solely a question for the Australian courts, where they would apply "the [Australian] perception of the autonomous law of the Convention". It was particularly inappropriate as well when there were so many disputed facts in this case which bear on the topic of whether the removal was wrongful. Furthermore, the Article 15 power should rarely be exercised between Australia and New Zealand. Our legal systems [are] very similar and judges in both countries [are] well used to interpreting the legislation and case law of the other country (see [17], [30], [34]).
68The majority in the Court of Appeal was tempted not to deal with any of the questions asked in the Article 15 Request from the Australian Central Authority, given the factual dispute (which the Court of Appeal could not resolve). It proceeded to deal with two of the questions at [40], however, because –
We have concluded that [it would be inappropriate not to deal with the questions] as it would leave the High Court judgment under appeal as an "authority" for the propositions stated in it. That would be undesirable given that there are a number of propositions in that judgment with which we do not agree.
69The Court of Appeal made declarations in substitution for those made by the High Court. Relevantly, it declared:
Whether the father is a guardian of the child under [COCANZ] turns on whether or not the father and the mother were living together as de facto partners at the time of the child's birth.
70That declaration is, of course, wholly consistent with the law I have discussed above.
71The Court of Appeal did not discuss the criteria for determining whether the parties are living together as de facto partners (because it clearly considered that the question required a factual determination to be made by the relevant Australian court). Similarly, although the majority in the Court of Appeal was highly critical of the High Court's decision, their Honours did not specifically disapprove the High Court's comments regarding the relevant criteria. Those comments appear in the High Court judgment at [49] and [50]:
[49]It is significant that the definition of a de facto relationship (and a de facto partner) for [COCANZ] purposes is cast in arguably broader and less specific terms than “de facto partner” and “de facto relationship” are defined in ss 2C and 2D of the Property (Relationships) Act 1976 [NZ]. As a matter of interpretation it would be wrong to carry across the s 2D(2) factors of the latter statute into [COCANZ]. The purposes of the two statutes are different. Section 29A(3)(a) requires a court to have regard to the context or purpose of the law in which the question is to be determined. ... Whether or not a parent is a de facto partner under [COCANZ] is highly relevant to the issue of the status of the child. A de facto relationship under the Property (Relationships) Act 1976 [NZ] is the starting point of a different inquiry: to determine whether or not an unmarried couple can invoke the inchoate rights conferred by that Act. That said, however, factors such as those listed in s 2D(2) of the Property (Relationships) Act 1976 [NZ], and perhaps others, must have some relevance to focus what is essentially a factual inquiry.
[50]Re-enforcing this interpretative approach, after its enactment but before it came into force, [COCANZ] was amended by repealing ss 9 and 10 which, in their original form, defined “de facto partner” and “de facto relationship” in an almost identical fashion to s 2D(2) (of the Property (Relationships) Act 1976 [NZ]).
72It is clear from the Commissioner's Outline of Submissions filed 26 August 2013 ("the Commissioner's Submissions") starting at [35] that the Commissioner sought to rely on the considerations set out s 2D of the Property (Relationships) Act 1976 (NZ) as comprising relevant criteria for the purpose of ascertaining whether the mother and the father were living with each other as de facto partners at the time of Greta's birth. The New Zealand High Court's decision in Fairfax v Ireton makes it clear that the factors contained in the section "must have some relevance to focus what is essentially a factual inquiry" (see above). Clearly, therefore, the factors are not determinative, but nor are they unhelpful or irrelevant.
73The relevant provisions of the Property (Relationships) Act 1976 (NZ) are as follows:
2CMeaning of de facto partner
For the purposes of this Act, a person is another person’s de facto partner if they have a de facto relationship with each other.
2DMeaning of de facto relationship
(1)For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman) —
(a)who are both aged 18 years or older; and
(b)who live together as a couple; and
(c)who are not married to, or in a civil union with, one another.
(2)In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a)the duration of the relationship:
(b)the nature and extent of common residence:
(c)whether or not a sexual relationship exists:
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e)the ownership, use, and acquisition of property:
(f)the degree of mutual commitment to a shared life:
(g)the care and support of children:
(h)the performance of household duties:
(i)the reputation and public aspects of the relationship.
(3)In determining whether 2 persons live together as a couple,—
(a)no finding in respect of any of the matters stated in subsection(2), or in respect of any combination of them, is to be regarded as necessary; and
(b)a Court 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.
(4)For the purposes of this Act, a de facto relationship ends if—
(a)the de facto partners cease to live together as a couple; or
(b)one of the de facto partners dies.
74It is immediately apparent that the factors listed in s 2D of the Property (Relationships) Act 1976 (NZ) are almost identical to the criteria or indicators that appear in s 13A of the Interpretation Act 1984 (WA).
75In my opinion, it is important to bear in mind that, in cases such as Truman & Clifton and Shelly and Markhov, the court was required to ascertain whether the parties were living in a de facto relationship – which was to be construed as "a relationship (other than a legal marriage) between two persons who live together in a marriage‑like relationship": Interpretation Act 1984 (WA), s13A(1). In the present case, the court is required to ascertain whether the mother was "living with the father of the child as a de facto partner at the time the child was born (COCANZ s 17), and hence whether the parties were "[living] together as a couple in a relationship in the nature of marriage" (Interpretation Act 1999 (NZ), ss 29 and 29A) at the relevant time. It is a "given" that the parties were not married, and that the nature of their relationship was something other than a marriage. As Baroness Hale of Richmond said in Stack v Dowden, "cohabitation comes in many shapes and sizes". And as Gleeson CJ said in MW v Director-General of the Department of Community Services:
It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference. ... The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage ..., but that do not depend upon the formal legal status thus acquired.
...There is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union.
76There is a very real danger, it seems to me, of "losing sight of the wood for the trees". The lists of criteria or indicators that appear in provisions such as s 13A of the Interpretation Act 1984 (WA) and s 2D of the Property (Relationships) Act 1976 (NZ) are useful guides to the types of matters that might help determine the nature of a relationship, but they are no more than that. The presence or absence of any particular factor or indicator is not necessarily determinative of the issue. After all, it should not be overlooked that marriages, no less than de facto relationships, come in many shapes and sizes: some are sad and loveless arrangements (sometimes from the outset); some are entered into for the convenience of the parties; some involve a decision on the part of the spouses that they will live in an "open" relationship (and actively seek other sexual partners); some involve a strict separation of the spouses' finances (and, perhaps, a formal pre-nuptial financial agreement). Thus, I suspect that not everyone would agree with the list of disqualifying factors (for want of a better description) set out in Truman & Clifton at [355] (see above), and that most – if asked to comment – would respond: "It depends…"
77Bearing in mind the above qualifications, it is useful to consider the evidence presented by on behalf of the mother and the father under the various headings in s 2D of the Property (Relationships) Act 1976 (NZ). That is the approach adopted in the Commissioner's Submissions. At the same time, I remind myself of the comment of the High Court in Fairfax v Ireton at [49]:
It is significant that the definition of a de facto relationship (and a de facto partner) for [COCANZ] purposes is cast in arguably broader and less specific terms than “de facto partner” and “de facto relationship” are defined in ss 2C and 2D of the Property (Relationships) Act 1976 [NZ].
Burden of proof
78It is not in dispute that the Commissioner carries the onus of proving that the mother was living with the father in a de facto relationship at the time of Greta's birth. The position is described accurately in the mothers Summary at [11]:
Regulation 16(1) provides that the applicant carries the legal burden of proof to demonstrate that, on the balance of probabilities, [Greta's] removal was "wrongful" within the meaning of subregulation (1A), which in this case is limited to proving that the father had "rights of custody" within the meaning of regulation 4 at the time that [Greta] was brought to Australia in February 2013.
79In MW v Director-General of the Department of Community Services, Kirby J suggested at [177] that COCANZ s 17 might place an onus on "a mother, who claims exceptionally to be the 'sole guardian of [a] child', to prove a legal entitlement to that effect". In other words, his Honour was of the view that, in a case such as that now before this Court, the mother should bear the onus of proving that the "primary rule" established by COCANZ s 17(1) – to the effect that both parents are joint guardians of their child or children – does not apply. But the majority in MW v Director-General of the Department of Community Services (comprising Gummow, Heydon and Crennan JJ) clearly disagreed with Kirby J. Their Honours described the operation of COCANZ s 17 at [96]:
Section 17 is so cast that if the facts and circumstances answer subs (3), then the consequence indicated in subs (1) applies. The mother of the child is the sole guardian. If subs (3) does not apply to the facts and circumstances of [the] case then the opening words of subs (1) apply, and the parents are joint guardians. There is involved here no issue of onus of proof of the kind encountered in cases dealing with the distinction between exceptions and provisos ... The better view is that the scheme of s 17 is to specify the various elements of the several species of right which it then establishes.
Resolution of factual disputes
80In Zotkiewicz v Commissioner of Police (No 2) (2011) FLC 93-472, the Full Court said at [88]:
... the High Court has now made clear on a number of occasions that it should not be assumed that all applications under the convention will be dealt with "on the papers". The potential consequences of a return order are serious for both the child and the parent to remove the child (commonly the primary carer). It is therefore important that applications are determined by a principled adjudication of factual differences, rather than by glossing over differences, or determining the dispute by reference to less controversial matters.
81Clearly, this Court has power to allow or, indeed, to require cross examination to ensure that significant factual discrepancies are resolved. The desire to provide a prompt resolution of disputes in Convention matters should not override the court's obligation to determine the dispute "by a principled adjudication of factual differences".
82The Full Court in Zotkiewicz added at [94]:
In many cases, the court will be able to deal with the matter adequately on the basis of affidavit evidence – looking for the common ground, noting the areas of conflict and weighing the probabilities. However, there are a range of cases where such an approach will be inadequate. In those cases, failure to test controversial evidence in the time honoured way, or otherwise taking steps to resolve evidentiary conflict, will lead to a flawed outcome. ...
83In these proceedings, I have undertaken a broad factual inquiry into the factors that I consider relevant: see Zotkiewicz at [97]. That inquiry has involved consideration of the relevant affidavit evidence, together with the submissions made on behalf of the parties. Neither counsel (both of whom are capable and experienced) sought to cross-examine the mother or the father, or any of the witnesses. In particular, I note that the mother was represented by Mr Nicholls QC, who is particularly experienced in Convention matters, and who has a very considerable knowledge of the subject.
84There is nothing to prevent the court preferring the evidence of one party over the other where evidence is found to be inherently incredible or improbable – or, indeed, where a party's evidence is internally inconsistent. Similarly, the Court is entitled to give weight to independent extraneous evidence in support of one side: see Zotkiewicz at [95].
85Although it is open to me to require factual disputes in these proceedings to be resolved by cross examination of the parties, I am of the view that it is not necessary to require that step. Further, and as I have indicated, both parties were represented by competent counsel, neither of whom suggested that there should be cross examination. I am conscious, as well, that the final resolution of the Commissioner's application would be delayed significantly if I, of my own motion, were to require cross examination.
Evidence
86In MW v Director-General of the Department of Community Services, the majority said at [36] and [37]:
Questions of fact and law, including the statute law of New Zealand, were involved. In that regard, some assistance is given by Part 6 ... of the Evidence and Procedure (New Zealand) Act 1994 (Cth). In proceedings in a court in Australia proof is not required about the provisions and coming into operation of a New Zealand statute, or of delegated legislation thereunder, and the judge may inform himself or herself about those matters in any way thought fit: ss 38 and 40.
Further, reg 29(5) of the Regulations applies generally to Convention countries and in the present litigation empowered the Family Court to take judicial notice of a law in force in New Zealand and of New Zealand decisions of a judicial or administrative character. Regulation 29(2) rendered admissible as evidence of the facts stated therein, the application and supporting documents. Regulation 29(3) rendered admissible in evidence affidavits of witnesses who resided outside Australia and did not attend for cross examination.
87As I have explained below, some of the evidence relied upon by the mother was not in affidavit form. The usual rules of evidence apply to such material, which is inadmissible. None of the provisions of Regulations, the Evidence and Procedure (New Zealand) Act 1994 (Cth), the Family Law Act 1975 (Cth) or any other statute serves to render admissible such material. Even if I am wrong in that regard, the law does not require me to give such material any significant weight.
Was the mother living with the father as a de facto partner at the time of Greta's birth?
Preliminary comment – Greta's birth certificate
88In her affidavit at [9], Ms Harrison refers to the fact that the father's name appears on Greta's birth certificate – seemingly in support of her conclusion to the effect that he is a joint guardian of Greta pursuant to the provisions of COCANZ. As is pointed out in the mothers Summary at [13] and [14], however, that fact (of itself) is of little assistance from the father's point of view:
Although Ms Harrison refers to the father's name appearing on [Greta's] birth certificate, that is not sufficient to confer guardianship upon him, because s 18 of [COCANZ] provides that [a] father who is not a guardian "just because of" s 17(2) or (3) becomes a guardian if his particulars are registered after the commencement of that section as part of the child's birth information because he and the child's mother both notified the birth as required by [New Zealand law].
[Greta] was born in 2003 and her birth was registered shortly thereafter, on or before 10 March 2003, and therefore s 18(1) of [COCANZ) does not apply.
Duration of the relationship (and engagement rings)
89It is not in dispute that the mother and the father commenced a relationship in 1999, that they moved to X Town in 2000, that they became engaged in 2001 and that they agreed to get married in early 2003. Nor is it in dispute that, after becoming engaged, they agreed to have a baby and the mother fell pregnant in or about mid 2002.
90According to the father, the parties were living in a de facto relationship from late 2000 until they separated in 2004 (after Greta's first birthday). After separation he moved to a nearby flat, and from there to P Town. According to the mother, the parties' relationship ended before that time. It is of significance, however, that the mother "fails to specify any particular date or even month when [the ending of the relationship] was alleged to have occurred": Commissioner's Submissions at [44].
91When the mother fell pregnant in or about mid 2002, the parties were living in X Town. According to the mother, the parties' relationship began to deteriorate during the first few months of her pregnancy, and by August 2002, their sexual relationship had ceased entirely. The mother deposed (mother's affidavit sworn 18 April 2013, commencing at [18]):
... In or about August 2002, [the father] told me words to the effect that he didn't find pregnant women attractive and that he was no longer physically attracted to me. [The father] did not make this comment to me in anger, but as a statement of fact. I felt crushed and myself-esteem was at an all-time low.
Our relationship continued to deteriorate. We stopped discussing the wedding altogether and did not make any plans. I decided early on in the pregnancy that I wanted to return to New Zealand, so that I would have family's support – especially my mother.
I found the pregnancy difficult, I put on weight and did not feel good about my changing body. The fact that [the father] had rejected me and did not want to be intimate with me made me feel fat and unattractive, and because of that I did not enjoy my pregnancy at all.
... [We] returned to New Zealand in September 2002.
92Irrespective of the mother's feelings as described above, there is no evidence that she communicated to the father – at any time prior to Greta's birth – that their engagement was at an end. The father's case is that the mother stopped wearing her engagement ring "because of swelling fingers from her pregnancy": father's affidavit sworn 10 May 2013 at [29]. Importantly, the father said that they both had engagement rings and that he continued to wear his until he "left": see father's affidavit sworn 10 May 2013 at [11] and [29].
93The mother did not respond to the father's evidence to the effect that he continued to wear his engagement ring until he "left", although she clearly had an opportunity to do so: see mother's affidavit sworn 9 August 2013 (on page 3 of which the father's affidavit sworn 10 May 2013 is incorrectly referred to as his affidavit "filed 18 April 2013"). She asserted, however, that she did not remove her engagement ring because she was pregnant but because she no longer considered the father to be her fiancé. She added (mother's affidavit sworn 9 August 2013 at [27]):
I stopped wearing my engagement ring shortly after returning to New Zealand, when I was about five months pregnant. At that stage, I had not yet gained a significant amount of weight and my engagement ring still fit me. I chose not to wear the ring as I no longer considered myself to be engaged.
94In my opinion, the mother's evidence in her affidavit sworn 18 April 2013 regarding the time at which and circumstances in which she ceased wearing her engagement ring is inconsistent. Paragraphs [18] to [21] and the heading immediately following those paragraphs ("We return to New Zealand") clearly imply that the mother "put on weight and did not feel good about her changing body" prior to leaving X Town. Given that the father's unchallenged evidence is that he continued to wear his engagement ring, and that there is no evidence that the mother ever communicated to the father that their engagement was at an end, and given the mother's evidence regarding putting on weight during her pregnancy, I find that it is more likely than not that the mother did indeed cease wearing her engagement ring because her fingers were swollen as a result of the pregnancy.
95In response to the mother's assertion that the relationship began to deteriorate during the first few months of her pregnancy, the father deposed (father's affidavit sworn 10 May 2013 at [24]):
This deterioration occurred after returning to [New Zealand]. Leading up to the cessation of intimacy was increasing verbal abuse directed at me from [the mother]. I could do nothing right. Even when I tried to correct the things she was unhappy about, there would always be something else I was doing wrong. My attraction to [the mother] and my own self-esteem began to wane at this time. It continued to slide under perpetual psychological attacks from [the mother]. Equally however we stayed together during this time. Both of us made an effort to keep things going. I think we both hoped the relationship would come right.
96After referring to the cessation of the parties' sexual relationship in or about July 2002, and a general decrease in intimacy between them, the mother deposed (mother's affidavit sworn 18 April 2013 at [26]):
I felt isolated and unwell and the breakdown of my relationship with [the father] had really damaged my self-esteem. After our physical relationship ceased, [the father] distance himself from me emotionally. I stopped wearing my engagement ring not long after returning to [New Zealand]. One of the motivating factors in returning to New Zealand was the fact that I no longer received emotional support from [the father] in the manner you would expect from your partner.
97In response, the father said (father's affidavit sworn 10 May 2013 at [29]):
I felt exactly the same here. I continued to wear my engagement ring. [The mother] removed hers because of swelling fingers from her pregnancy.
98I have referred above to my conclusions in relation to the subject of the mother's decision to remove her engagement ring. It is clear from the father's evidence, however, that the parties' relationship was damaged and under considerable strain at that time. The father's evidence was that he (and, he believes, the mother] "hoped the relationship would come right".
99Somewhat surprisingly, the mother's evidence is that she and the father always got along well as friends. She said (mother's affidavit sworn 18 April 2013 at [28] and [32]):
[The father] and I have always got along quite well as friends and, odd as it may seem, although our engagement had ended, we remained amicable and were able to live in the same house despite no longer being "in a relationship". We were effectively "flatmates". We shared cleaning duties and would often cook together, but we coexisted as flatmates, not romantic partners.
It may seem unusual to others that we remained living in the same house after our engagement ended, but there did not seem to be a good reason to change the arrangements. We did not have much money, we still got along well and staying in the home was financially beneficial for [the father] while he got back on his feet.
100In response, the father said (father's affidavit sworn 10 May 2013 at [31] and [33]:
No. We may not have been in a happy relationship but we most certainly were in a committed, monogamous de facto relationship.
For the entire duration of my time living with [the mother], we were in a de facto relationship. When we had the discussion that we were to break up, I found a flat and moved out a few days later. I was able to move out at any point prior to this had we broken up. I certainly was not living there in a convenient, money-saving way as a "flatmate".
101Again, I have referred above to my conclusion regarding the mother's removal of her engagement ring and the lack of any clear evidence as to when the engagement ended. In my opinion, the father's description of the parties' living arrangements in the months leading up to Greta's birth is more likely to be accurate than the mother's description. I give weight to the fact that the father has made admissions that might be perceived as being against interest – for example that he felt isolated and that his self-esteem was affected as the relationship found itself under strain. That he continued to wear his engagement ring, that the parties remained living under the one roof, that they jointly prepared for Greta's birth, that they remained friends and that they shared duties such as cooking all corroborate the father's version of events.
102On balance, this factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth.
Nature and extent of common residence
103It is not in dispute that the parties lived together in the same residence for an extended period of time, and that they did not cease living in the same residence until the father moved to P Town some time after Greta's birth.
104This factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth.
Whether or not a sexual relationship exists
105The mother said that after she and the father returned to New Zealand in or about September 2002, the parties lived with her parents for approximately one month, and then in a house in [Suburb P]. The house was owned by the mother's parents.
106In paragraph 24 of her affidavit sworn 18 April 2013, the mother said:
When [the father] and I first moved into [Property M], we shared the master bedroom. We did not have a sexual relationship – the last time that we had [a] sexual relationship was in about July 2002, and it never resumed, either before or after Greta's birth. I cannot recall kissing or holding hands with [the father] after we returned to [New Zealand]. Even that level of intimacy had gone.
107According to the mother, the father obtained employment in or about November 2002. He then began working night shifts, which "solved the problem of the sleeping arrangements". The mother said (see [27] of her affidavit sworn 18 April 2013):
I would sleep in the master bedroom at night and [the father] would sleep there during the day. If both of us were home at night, one of us would sleep on the couch.
108The father's evidence was as follows (father's affidavit sworn 10 May 2013 at [17] and [30]):
We generally slept in the same bed until we separated and I'm sure we occasionally had sex, although I acknowledge it was not very often after we came back from Australia.
... Although our sexual relationship was suffering, there was no change in the living arrangements. [The mother] would occasionally sleep on the couch because she liked to fall asleep to the sound of the TV. Typically, we slept in the same bed. Towards the end of 2003, [the mother] elected to sleep on the couch more often as our relationship deteriorated. The nature of my work was that it had a rotating roster, sometimes I work nights, other times I worked during the day. Greta was quite unwell and it seemed to take a long time before her condition was correctly diagnosed and treated. [The mother] was very stressed and sleep-deprived and took it out on me.
109The father also said that the mother was "very volatile during her pregnancy which made intimacy and affection very difficult to sustain": see father's affidavit sworn 10 May 2013 at [90].
110The father added at [95]:
I worked a rotating roster. Only one week of four was specifically from midnight to 8 AM. Other weeks, I would work 8 AM to 4 PM, or 4 PM to midnight. The fourth week was a blend of shifts that occasionally included a midnight to 8 AM shift. ...
111In her affidavit sworn 9 August 2013, the mother said at [10]:
... I deny that we "occasionally" had sex. I specifically recall on occasion during my pregnancy, once I had begun to "show" and prior to our return to New Zealand, when [the father] told me words to the effect that he did not find pregnant women physically attractive. I was extremely hurt by the comment and, to me, it was a pivotal moment in the demise of our relationship. We did not resume a sexual relationship again after that point.
112In my opinion, the likelihood is that the parties ceased sexual relations shortly before or around the time they returned to New Zealand. Whether or not they "occasionally had sex" is of little significance. To all intents and purposes, and for whatever reason or reasons, a meaningful sexual relationship had ceased to exist by the time Greta was born. Similarly, displays of mutual affection and other indications of intimacy are likely to have been rare, or to have ceased entirely, by the time Greta was born.
113This factor or indicator supports a conclusion to the effect that the parties were not living in a de facto relationship at the time of Greta's birth.
Degree of financial interdependence, and financial support
114According to the mother (see her affidavit sworn 18 April 2013 at [8(c) and (d)]:
We were financially independent from one another. We did not share bank accounts at all. We each had our own respective savings from which we drew for living expenses.
We did not own any property of any value together.
115In her affidavit sworn 18 April 2013 at [13], the mother said:
[The father] and I have never had a shared bank account. Once we arrived in Australia, we set up separate bank accounts. ... Any bills or other costs were shared equally between us and paid from our separate accounts.
116In his affidavit sworn 10 May 2013, the father said at [26]:
[After the parties' return to [New Zealand], the mother] was not working. My earnings were the only income in the household and together with our savings paid all our expenses as a couple and then as a family.
117The mother's statement that the parties never had a shared bank account is demonstrably inaccurate. Annexed to the father's affidavit sworn 9 August 2013 are bank documents which confirm that the parties both operated a bank account in October 2002 and throughout the period from 1 February 2003 to 31 July 2003. The father deposed to the following:
a)the account was in joint names;
b)the parties paid their combined savings (totalling approximately $20,000) into the account;
c)the father's wages from [Employer 1], and later [Employer 2], were paid into the account;
d)the father and the mother had "cashflow" cards, and both parties drew on the account using their cards; and
e)the statements from the bank reveal that the mother operated on the account throughout the periods covered by them: in the earlier statements, the mother's name appears where her cashflow card was used, and in the later statements the card numbers reveal where the mother operated on the account.
118The father added (father's affidavit sworn 9 August 2013 at [13]):
From [the bank records] I cannot tell what the purchases were specifically for. However, everything we needed as a family was facilitated with funds in this account. That included the purchase of various household items like the lounge suite, television, whiteware and maintaining two vehicles.
119The mother annexed to her affidavit sworn 9 August 2013 a copy of her personal bank account statement. But the statement reveals that the account was opened on 18 November 2003, some nine months after Greta's birth. The mother produced no evidence which would indicate that she was financially independent of the father at the time of Greta's birth.
120Indeed, the mother did not identify any source of income for herself relating to the period between the date of the parties' return to New Zealand (in or about September 2002) and the opening of the account in her sole name on 18 November 2003. That account reveals that the mother commenced receiving "DSW benefits" on 10 December 2003. There is no evidence that the mother received such benefits at any time prior to 10 December 2003.
121Although the mother denies that the parties pooled their money and denies that the parties used the pooled funds to purchase new furniture and items from the home (save for the joint purchase of a television and lounge suite), the father's evidence should be preferred in this regard.
122The absence of credible evidence regarding the mother's source of income between mid 2002 and mid 2003, coupled with her demonstrably inaccurate statement to the effect that the parties "did not share bank accounts at all", support a very strong inference to the effect that the father's evidence regarding the parties financial arrangements is accurate. Clearly, the father's evidence in relation to this subject is to be preferred on the balance of probabilities. In other words, I find that during the relevant period (being approximately September 2002 to mid 2003) –
a)the mother was not working in paid employment;
b)the father's earnings were the only income in the household; and
c)those earnings – together with the parties' savings – paid the parties' expenses as a couple and then (after Greta's birth) as a family.
123On balance, this factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth.
Ownership, use and acquisition of property
124As indicated above, the father deposed that the funds that he and the mother saved in Australia were consolidated and spent on new furniture and appliances for their home in New Zealand. The funds were also used to renovate a room for Greta and for buying general household items and requirements for Greta.
125In his affidavit sworn 10 May 2013 at [20], the husband said that he and the mother purchased [a 4WD vehicle] "with some of [their] savings because it had room for a baby seat, pram etc".
126In her affidavit sworn 9 August 2013, the mother said at [21] and [22]:
My savings were partially used to purchase a vehicle, the balance of which was loaned by my father and my savings were otherwise used to meet my own living costs.
The [4WD] that [the father] alleges we purchased together was actually bought after [the father] had already moved out of [Property M]. My father helped me with the purchase price.
127In support of the statements referred to above, the mother annexed to her affidavit a copy of a hand written record. The hand written record, which the mother asserts to be that of her father, is inadmissible in its present form. In any event, the record appears to be part of a summary prepared years after the relevant transactions – probably in 2009. No specific date appears beside the entry relating to the purchase of the 4WD motor vehicle, beyond the reference to 2003. Importantly, however, the statement in the hand written record conflicts with the evidence of the mother to the effect that her savings "were partially used to purchase a vehicle, the balance of which was loaned by my father". The hand written note makes no reference to the mother's savings. Further, the evidence to which I have referred elsewhere in these Reasons clearly supports a finding to the effect that the mother had no income after the parties' return to New Zealand – until she began to receive certain social security entitlements in November or December 2003.
128Given –
a)the general unreliability of the mother's evidence in relation to the parties' financial arrangements (to which I have referred elsewhere in these Reasons);
b)the inadmissibility of the handwritten note – or, alternatively, its very limited utility in the light of the matters referred to in the previous paragraph; and
c)the mother's concession that she and the father purchased a television and lounge suite for [Property M],
I am satisfied that the father's evidence regarding the ownership, use and acquisition of property should be preferred to that of the mother.
129On balance, this factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth.
Degree of mutual commitment to a shared life
130The father's case is that the parties were engaged and committed to a shared life together. The mother's case is that the engagement ended some five months prior to Greta's birth. I have discussed the evidence relating to the parties' engagement elsewhere in these Reasons.
131It is not in dispute that the parties were not dating anyone else at the time Greta was born. Indeed, it is clear from the evidence that neither party had a relationship with anyone else until at least mid 2003.
132The mother said that she commenced a relationship with another person by late 2003. That fact is of limited relevance in the context of the present dispute.
133In broad terms, the father's case is that, in spite of the fact that the parties' relationship was strained and intimacy between them had reduced (or, perhaps, ceased entirely), they continued as a committed couple and had hopes of improving their relationship after Greta's birth. The relationship did not improve, however, and the parties eventually separated well after Greta's birth. The mother asserts that this version of events is incorrect.
134According to the father, the parties' wedding plans were "put on hold" due to the imminent arrival of Greta. Again, the mother asserts that this version of events is incorrect.
135The mother says that she saw no future in the relationship before Greta was born – at which time she was feeling isolated and lonely and had ceased wearing her engagement ring.
136In my opinion, it is clear beyond argument that the parties' relationship was strained and mutually unsatisfactory in the period leading up to Greta's birth. On the other hand, and as I have concluded above, the parties' financial relationship continued and they continued to live in the same home. Neither party sought to repartner. Indeed, the wife conceded that they remained friends and that both assisted with duties associated with the running of the house. The evidence supports a conclusion to the effect that both parties eagerly awaited Greta's birth, and both involved themselves in caring for Greta after she was born.
137I accept that the parties' mutual commitment to a shared life began to weaken or reduce after the mother fell pregnant with Greta (or, more accurately, after the mother's body began to change as a result of the pregnancy). In my opinion, it is not surprising that the parties' wedding plans were "put on hold". The planned wedding date conflicted with Greta's anticipated date of birth (and the parties had not expected the mother to fall pregnant quite as quickly as she did). More importantly, the significant degree of mutual commitment to a shared life that the parties had demonstrated prior to the mother falling pregnant (and which was clearly manifested by the decision to have a child together), seems to have been adversely affected by the pregnancy itself, and by each party's disappointment with and resentment towards the other party during that time.
138For all that the parties' mutual commitment to a shared life may have weakened (or weakened significantly) during the mother's pregnancy, there can be no doubt that they continued to share their lives in the period leading up to Greta's birth and for a significant time after that – in the sense that they remained firm friends and lived under the one roof, the father continued to support the mother financially, neither sought to repartner and both cooperated to parent Greta. In my opinion, the only reasonable inferences to draw from the evidence are that the parties continued as a committed couple in a relationship under very significant strain, and that they had hopes of improving their relationship after Greta's birth.
139On balance, this factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth. Even if I am wrong in that regard, the evidence is effectively "neutral": it does not support a conclusion to the effect that the parties were not living in a de facto relationship at the time of Greta's birth.
Care and support of the child
140It is not in dispute that the father was present at Greta's birth, that his name appears on her birth certificate and that her surname includes a combination of both parties' surnames. According to the father, "Greta's birth was registered on an application in which both [the mother] and I notified the birth": see father's affidavit sworn 10 May 2013 at [3]. The mother does not deny that that the parties "went to midwife appointments and antenatal classes together" (father's affidavit sworn 10 May 2013 at [21]) and that both parties notified the New Zealand Registrar of Births, Deaths and Marriages of Greta's birth. In that regard, I give little weight to "catch all" provisions such as that contained in the mother's affidavit sworn 9 August 2013 at [7]:
Where I do not directly respond to a paragraph of [the father's] affidavit, it does not mean that I admit the contents of it.
141In a proceeding such as that now before the Court, it is difficult to understand the purpose of such a statement. In pleading terms, it is clear that the mother's failure to respond to a significant allegation can only mean that the mother does not deny the allegation – unless it is clear from the context, or from other statements in the mother's material, that the allegation is denied.
142In her affidavit sworn 9 August 2013 at [58], the mother said:
Once Greta was born, an announcement was made in the local newspaper. The birth announcement was not made by [the father] and I as a couple. [The father] is not referred to in the announcement at all. This is because I was announcing Greta's birth as a solo mother. If we were a couple, the announcement would have been made together.
143The "announcement" (comprising annexure F to the mother's affidavit sworn 9 August 2013) is undated, and the context in which the announcement was made is unclear. It is important, it seems to me, that the photograph and attached caption do not mention Greta's full name; indeed, Greta's name is incorrectly stated as "[Gretel]". I accept, however, that the caption does not refer to the father (or, indeed, to Greta's surname). In my opinion, it is clear that the photograph and attached caption do not comprise a formal "announcement" of Greta's birth. They are far more likely to have been included in the newspaper in an informal, social context. I accept, however, that the existence of the photograph and attached caption provide (limited) support for the mother's assertion that she regarded herself as a "solo mother". On the other hand, I note that the father has not had an opportunity to respond to the mother's evidence in relation to this subject.
144The father's evidence is that he helped with the care of Greta after her birth by, for example, changing nappies and bottle feeding her. As explained above, he also provided financial support for Greta as the sole income earner for the household. If he was not at work, he would involve himself in meeting Greta's needs: see, for example, father's affidavit sworn 10 May 2013 at [18], [23], [26], [36], [95] and [96]. The mother does not clearly deny the father's evidence regarding his involvement in the care of Greta after her birth.
145In my opinion, the preponderance of the evidence indicates that the parties were jointly (although not equally) involved in the care and support of Greta. In itself, it does not support a conclusion to the effect that the parties were not in a marriage-like relationship at the time of Greta's birth. On the contrary, it supports a conclusion to the effect that the parties were indeed in a marriage-like relationship at that time.
146On balance, therefore, this factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth
Performance of household duties
147It is not in dispute that the father and the mother shared household duties such as cooking, cleaning and laundry – both before and after Greta's birth: see, for example, mother's affidavit sworn 18 April 2013 at [28] and father's affidavit sworn 10 May 2013 at [23] and [96].
148This factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth
Reputation and public aspects of the relationship
149The father's evidence is that the parties were regarded as a couple and that, for example, they went to midwife appointments and antenatal classes together. He also said that the parties visited the mother's family together. After Greta's birth, they went out as a family.
150The mother's evidence is that the parties did not present themselves as a couple from (at least) the time that they returned to New Zealand from Australia. She said that they did not socialise together and were not regarded as a couple by family and friends. In broad terms, she asserts that, even though the parties lived under the one roof until some time after Greta's birth, they maintained separate lives.
151The father's mother, [Ms Ball] swore an affidavit on 29 May 2013. Among other things, she deposed at [18]:
On one of our visits to [see them] ([Greta] approximately one [year old]), [the father] announced to us that [the mother] and he were splitting and as soon as he found a flat nearby he was moving out. He found a flat a couple of days later. This was a very upsetting time for [the father] and a bombshell for us. We were unaware of any relationship splitting difficulties.
152The mother responded to Ms Ball's affidavit in her affidavit sworn 9 August 2013. Although she said at [41] that, where she did not directly respond to a paragraph of the affidavit, it did not mean that she admitted the contents of it, the mother chose not to respond to Ms Ball's affidavit at [18]. I have no reason, therefore, to reject Ms Ball's evidence to the effect that she only became aware that the parties were separating when Greta was approximately one year, and that that information hit her like "a bombshell".
153Annexed to Ms Ball's affidavit is a family photograph of the parties with Greta. It appears to have been taken relatively shortly after Greta's birth. The composition of the photograph is revealing: it shows the father holding Greta and the mother with her hand on the father's shoulder. The indisputable inference from the composition of the photograph is that it shows the parties and Greta as an intact family unit.
154The father's father, [Mr Ball] also swore an affidavit on 29 May 2013. In it, he deposed as follows at [3] – [5]:
During the year following [Greta's] birth, I visited [them] on occasions, perhaps two or three times. I either travelled alone to attend a conference or was accompanied by my wife ...
We were able to spend time with [the father, the mother and [Greta]] at their home. At no time during this period did I become aware of a disruption in the relationship between [the father and the mother].
They informed us that they intended to split up as the relationship had become strained. This occurred in early 2004 when [Greta] was, I think around 1.
155The evidence of the father's parents corroborates the father's version of the course of the parties' relationship.
156Somewhat surprisingly, the mother did not provide clear evidence – in admissible form – to support her assertion that the parties did not present as a couple from the time they returned to New Zealand from Australia. In that regard, I am not prepared to give weight to the evidence contained in informal letters or statements provided by friends or family members of the mother. I note that, in any event, much of the evidence appears to be hearsay or to involve the drawing of conclusions in an impermissible manner.
157I accept, of course, that the Commissioner carries the onus of proving that the mother was living with the father as a de facto partner at the time of Greta's birth. It was the mother, however, who first raised the assertion that the parties were not in such a relationship. She saw fit to present evidence in relation to the subject from family and friends, which evidence is inadmissible (or alternatively, is of minimal weight). In those circumstances, it is not unreasonable to give greater weight to the evidence of the father in relation to the subject – corroborated, as it is, by the evidence of his parents and by external indicia (such as, for example, the fact that the father was the sole income earner in the household, the father's presence at Greta's birth, Greta's surname and birth registration arrangements and the loving family photograph sent to the father's parents).
158In all the circumstances, I conclude that it is more likely than not that the parties were regarded by others as a couple in a de facto relationship during the relevant period (being mid-2002 to mid 2003). That is not to say that some of the mother's friends or family members were not aware that there was tension (or even considerable tension) within the relationship – but, in my opinion, the unchallenged evidence of the father's mother, and the taking and distribution of the family photograph, is telling.
159On balance, this factor or indicator supports a conclusion to the effect that the parties were living in a de facto relationship at the time of Greta's birth.
Conclusion
160As I have indicated, there is a very real danger of "losing sight of the wood for the trees". The lists of criteria or indicators that appear in provisions such as s 13A of the Interpretation Act 1984 (WA) and s 2D of the Property (Relationships) Act 1976 (NZ) are useful guides to the types of matters that might help determine the nature of a relationship, but they are no more than that. The presence or absence of any particular factor or indicator is not necessarily determinative of the issue, and it should not be overlooked that marriages, no less than de facto relationships, come in many shapes and sizes.
161I accept Mr Nicholls' submission to the effect that the Court should apply a "composite picture test" (for want of a better description).
162I am satisfied that the parties were in a de facto relationship at the time of Greta's birth. There can be no doubt that they were in a de facto relationship – even according to the mother's version of events – until some time during the course of the mother's pregnancy: see, for example, mother's affidavit sworn 9 August 2013 at [8], [9] and [56]. Whilst recognising that a de facto relationship is not a marriage, I do not accept that such a relationship can be terminated in the manner described by the mother. Relationships (including de facto relationships and marriages) can deteriorate; that is in their nature. Sometimes relationships are capable of repairing themselves; sometimes they are not. In my opinion, however, a relationship (whether a de facto relationship or a marriage) does not come to an abrupt halt the moment one party decides that he or she does not want it to continue. It is in the nature of a relationship for those within it to continue to communicate, and function, much as they did before until the cessation of the relationship is apparent to those within it. It is rare, it seems to me, for a de facto relationship (or a marriage) to come to an end without having deteriorated, or having endured serious strains, for what is often an extended period – although there is no doubt that that can occur. It is precisely because parties have been in a committed relationship (even if they have not made a mutual commitment to a shared life together), that the ties that bind them to it and to each other take time to loosen, or stretch until they eventually break. Thus, it seems to me that something other than a unilateral and uncommunicated intention to bring a relationship to an end is required before the relationship can be said to have been terminated. The communication can be express or implied, or it can be inferred from all the relevant circumstances (such as, for example, an extended period of absence or refusal to communicate).
163In other words, one way of approaching the issue for determination in these proceedings might be to consider whether the de facto relationship in which the parties were undoubtedly involved ended prior to Greta's birth. While recognising that the analogy is only of very limited utility, some guidance may be obtained from considering the notion of "separation" as it applies in the area of marriage breakdown. Section 48 of the Family Law Act 1975 (Cth) deals with applications for divorce. Relevantly, the section provides:
(1)[An application for divorce] shall be based on the ground that the marriage has broken down irretrievably.
(2)... [The] ground shall be held to have been established ... if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart from a continuous period of not less than 12 months immediately preceding the date of the filing of [the application for divorce].
164There is much law dealing with the notion of "separation" in this context. After referring to In the Marriage of Todd (No 2) (1976) 9 ALR 401, In the Marriage of Pavey (1976) 10 ALR 259 and In the Marriage of Falk (1977) 15 ALR 189, Anthony Dickey QC in his book Family Law, 5th ed, Lawbook Co, 2007, quoted the following "account of the nature of separation" at 187:
"Separation" means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by [the Family Law Act] where one or both of the spouses formed the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.
165At 188-189, Dr Dickey wrote:
[Separation] involves at least two elements, namely an intention on the part of at least one party to a marriage to sever the matrimonial relationship, and action upon this intention. ...
There is, however, normally a third requirement for separation ... This is communication of the intention to separate [which may be] either direct or indirect, by words or by conduct. [See In the Marriage of Falk (1977) 29 FLR 463]
166At 189, Dr Dickey wrote:
Consider in this regard the case of In the Marriage of Lane (No 1) [1976] FLC 90-055. There the husband, a medical practitioner, intended to separate from his wife and over a period of time he gradually withdrew from her company and household services. He continued, however, to reside in the same house as his wife, though he slept in a separate bedroom. The wife, on the other hand, did not appreciate that her husband regarded the marriage as at an end though she naturally realised that it was strained and unhappy. The husband's subsequent application for divorce was dismissed not only because he had not completely withdrawn from cohabitation with his wife for a full 12 months but also because he had not communicated his intention to break the matrimonial relationship. As Murray J put it:
Dr Lane presents as a kindly man who, although he had made up his mind ... That his marriage was finished and that he wanted to cut himself off from his wife, could not bring himself to cut the umbilical cord right out of nearly 30 years of married life. He flourished the scissors and scraped at the tissues, but did not take the ultimate step of severance either through unequivocal conduct towards or direct communication with his wife carrying into effect his intention to separate.
167Obviously, the Court is not presently dealing with an application for divorce; nor, indeed, is it dealing with a marriage at all. It is, however, dealing with what the mother asserts was the breakdown of a de facto relationship: a relationship said to be "in the nature of marriage". In my opinion, the position is not dissimilar to that described by Dr Dickey when discussing In the Marriage of Lane. The evidence demonstrates that the father did not regard the relationship with the mother as being at an end at any time prior to Greta's birth. Clearly, he realised that it was "strained and unhappy", but no "ultimate step of severance" occurred and there was no "unequivocal conduct" on the part of the mother; nor was there any direct communication from her "carrying into effect" what may well have been her intention to bring the relationship to an end.
168I am aware that the decision of Emery J in In the Marriage of Tye (No 1) (1976) 9 ALR 529 has been cited in support of the proposition that the unilateral intention of one spouse not communicated to the other spouse can bring to an end the consortium vitae (see, for example, Iordanov & Gueorguiva, (unreported, Family Court of Australia, Ellis J, 24 June 1996). But the soundness of the decision in In the Marriage of Tye (No 1) was questioned by Dr Dickey in his book, Family Law, at 190-191, and by Wilczek J in In the Marriage of Batty (1986) FLC 91-703.
169It is unnecessary to endeavour to reconcile the various authorities dealing with the need (or otherwise) to communicate a unilateral intention to bring a relationship to an end. In In the Marriage of Falk, the Full Court indicated that communication of an intention to separate is necessary, but that such communication can be either direct or indirect, by words or by conduct. In those circumstances, and bearing in mind the criticism of the decision referred to above, it is likely that In the Marriage of Tye (No. 1) is no longer good law.
170Clearly, the cases discussed above are Australian cases, and are of little direct assistance in resolving the question of whether the parties were living in a de facto relationship at the time of Greta's birth. They are useful, however, as illustrations of the difficulty associated with determining when a marriage or marriage-like relationship has come to an end.
171Taking into account all the evidence currently before the Court (and acknowledging that some of that evidence supports a conclusion to the effect that the parties were not in a de facto relationship at the time of Greta's birth), I am satisfied that the preponderance of evidence is to the effect that the parties were in a de facto relationship at the time of Greta's birth. In other words, I am satisfied on a balance of probabilities (and taking into account the importance of the issue from both parties' points of view, together with the seriousness of the likely impact of my decision on the mother and Greta) that the parties were living in a de facto relationship at the time of Greta's birth. It follows that I am also satisfied that the parties' de facto relationship had not been terminated or brought to an end prior to Greta's birth. The combined effect of the factors or considerations or indicia to which I have referred is that the conclusion that I have reached is the only one sensibly open to the Court. It is the only available conclusion when one "steps back" and endeavours to look at the "composite picture". The position is well summarised in the father's Submissions at [77]:
While [the mother] alleges that she and the father were not in a de facto relationship at the time of the child's birth, ... her behaviour and the circumstances at the time indicate otherwise. It is evident that at the time of the child's birth, [the mother] and the father:
•were living together at the same residence and had been for a substantial period of time;
•were sharing the master bedroom;
•had pooled their funds and shared a joint account which they both accessed;
•had purchased furnishings and household items together;
•shared the performance of household duties and the care of the child;
•were recognised as a couple;
•were in a monogamous relationship; and
•although the relationship was strained, were still at that point in time committed to sharing a life together.
172Although I have referred to the observation of the Full Court in Wenceslas to the effect that, when regard is had to the purpose of the legislation it would seem appropriate to set a relatively low threshold when determining whether the parents of a child were living in a de facto relationship, I am of the view that it is not necessary to set "a relatively low threshold" in the present proceedings. The Commissioner must prove his case on a balance of probabilities, and he has done so.
173Similarly, although the High Court in Fairfax v Ireton observed that "it is significant that the definition of a de facto relationship (and a de facto partner) for [COCANZ] purposes is cast in arguably broader and less specific terms than 'de facto partner' and 'de facto relationship' are defined in ss 2C and 2D of the Property (Relationships) Act 1976 [NZ]", I am satisfied that the evidence demonstrates that the parties were in a de facto relationship even if the relevant definitions in 2C and 2D of the Property (Relationships) Act 1976 [NZ] are applied. If the test is broader and less specific than that contained in those sections, then the conclusions that I have reached are reinforced.
174It follows that the father has "rights of custody" in relation to Greta within the meaning of the Regulations.
175I will now hear counsel as to the orders that should be made to give effect to the conclusion that I have reached in these Reasons.
I certify that the preceding [175] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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