WORTH & RILEY
[2017] FamCA 393
•7 June 2017
FAMILY COURT OF AUSTRALIA
| WORTH & RILEY | [2017] FamCA 393 |
FAMILY LAW – DE FACTO RELATIONSHIP – Application to extend time to apply for a property settlement pursuant to s 44(6) of the Family Law Act 1975 (Cth) – Where there was an issue as to the date of separation and a finding was made on the facts – Where it was found that the applicant had an arguable case and would suffer hardship such as would enliven the power of the Court to consider if leave ought to be granted – Where it was found in the determination of exercise of the discretion that in the context of the circumstances of these parties (including prejudice to the respondent) was such that leave to extend the standard application period should not be granted.
| Family Law Act 1975 (Cth) ss 4AA, 44(5) Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) s 4 |
| Norton v Locke [2013] FamCAFC 202 |
| APPLICANT: | Ms Worth |
| RESPONDENT: | Mr Riley |
| FILE NUMBER: | HBC | 840 | of | 2016 |
| DATE DELIVERED: | 7 June 2017 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20 and 21 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Trezise |
| SOLICITOR FOR THE APPLICANT: | Dobson Mitchell & Allport |
| COUNSEL FOR THE RESPONDENT: | Mrs Mooney |
| SOLICITOR FOR THE RESPONDENT: | Ogilvie Jennings |
Orders
The application by Ms Worth against Mr Riley for an order granting leave pursuant to s 44(6) of the Family Law Act1975 (Cth) (‘the Act’) to commence proceedings under Part VIIIAB of the Act is declined and consequently her application is dismissed.
All extant applications, other than any applications for costs, are dismissed.
Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth).
At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Worth & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 840 of 2016
| Ms Worth |
Applicant
And
| Mr Riley |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Worth (‘the applicant’) and Mr Riley (‘the respondent’) lived together in a de facto relationship, which they agree commenced in August 2003. That relationship broke down and there is disagreement as to when this occurred. It was either in June 2012 or August 2016 or sometime in between those dates.
The applicant commenced proceedings in the Federal Circuit Court on 21 October 2016 seeking property orders and de facto spouse maintenance pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’). She asserted that the parties’ relationship broke down on 31 August 2016,[1] about two months before the proceedings commenced. The applicant subsequently sought leave to commence proceedings out of time in the event that the separation date was determined to be outside the two year limitation period.
[1] Initiating Application filed 21 October 2016, paragraph 27 and the applicant’s affidavit filed the same date (‘the applicant’s affidavit’) paragraph 3.
The respondent filed his response on 28 November 2016, and with it he asserted that the de facto relationship broke down in June or July 2012.[2] On his evidence this was some four years or more after the relationship ended. If that was the case, the applicant would have been precluded from commencing or continuing proceedings without the leave of the Court. The respondent opposed the granting of leave.
[2] Respondent’s affidavit filed 28 November 2016 (‘the respondent’s affidavit’), paragraph 4.
On 6 February 2017 the Federal Circuit Court transferred these proceedings to the Family Court for hearing on 20 and 21 March 2017 for determination of the following threshold questions:-
1.A declaration pursuant to s 90RD of the Act about the date the parties’ de facto relationship broke down, there being no issue as to the existence of the relationship and the commencement date. This would need to be a finding of fact as to the date of separation; and
2.If, as a matter of fact, it is determined that the relationship broke down more than two years prior to 21 October 2016, the applicant seeks leave pursuant to s 44(6) of the Act for permission to continue these property and spouse maintenance proceedings, notwithstanding that they were commenced after the two year period set out in s 44(5) of the Act.
There are a number of matters which are agreed in these proceedings, namely:-
1.The parties commenced their relationship in 2003 and given the evidence of agreement,[3] I am satisfied that it commenced in August 2003;
2.There are no children of the relationship;
3.At the commencement of the relationship the applicant owned land at B Street, C Town Tasmania (‘the C Town property’), and during the relationship the applicant either built or completed the building of a studio on that property and subsequently built a guest room on that property;
4.In 2003 the respondent purchased D Street, Suburb E. That property is registered in the respondent’s sole name;
5.During the relationship the respondent was employed by a local municipal council and in October 2016 the respondent ceased employment from this position effective May 2017. At the date of hearing he was on Long Service Leave; and
6.Both parties concede that they were in a de facto relationship from 2003 until at least mid-2012. It is the end date of the de facto relationship which is the issue, to which I earlier alluded.
[3] Ibid.
Having read the parties’ affidavit evidence and after hearing submissions from the experienced family law practitioners who appeared for each of the parties, I am satisfied that they were in a de facto relationship within the meaning ascribed to it pursuant to the Act.
BACKGROUND
The applicant is aged 69 years. She has not been in paid employment since 2009 and currently is working on writing a book. She is receiving the aged pension, which is an income tested pension within the meaning of s 44(6)(b) of the Act.
The applicant has been married on three previous occasions and was in this
de facto relationship from August 2003 until the relationship ended in recent years.
There is no medical evidence before the Court, however, it is not in issue that the applicant suffered an injury at work in 2006 and was subsequently awarded damages or compensation of about $30,000. In 2008 she suffered a second injury at work and received a redundancy payment of about $4,000.
Between 2009 and 2011 the applicant underwent surgery on a number of occasions. The first two were financed by her workers compensation. Her evidence was that her health was very poor in 2011, 2012 and 2013, but has improved since that time.
The respondent is aged 68 years and was employed by a local municipal council at the time of hearing. At that time he was on long service leave and was to cease full time employment in May 2017.
Apart from an injury to a tendon in his ankle in 2012, the respondent is in reasonably good health.
At the commencement of cohabitation the applicant owned a block of land in C Town. The applicant commenced building a studio on that land in 2003 and it was completed in early 2004.
In early 2004 the respondent purchased a property at Suburb E (‘the Suburb E home’) for $270,000 using a combination of his superannuation and a mortgage. I am satisfied that he has applied his income towards the reduction of the mortgage since that time. The evidence is that he made all the direct payments to acquire, repay the mortgage, pay rates, conduct repairs et cetera on the Suburb E home.
The respondent had been previously married, but had been separated when he commenced the relationship with the applicant. In February 2005 property proceedings between the respondent and his former wife were settled by way of consent orders.
At the time the parties cohabited the applicant was working full time, although she had the health difficulties to which I have earlier referred. In March 2009 the applicant was made redundant and ceased full time employment.
The applicant received periodic workers compensation payments until late 2011. She then applied for and received Centrelink payments by way of a Newstart allowance. She was apparently not required to attend work interviews due to her health issues. In September 2014 the applicant applied for and received an aged pension from Centrelink, and there was an apparently a seamless transition from Newstart allowance to aged pension. It is not in issue that the applicant did not disclose the de facto relationship to Centrelink.
In 2010 the applicant commenced spending time at C Town and this increased through 2011 and 2012.
The applicant and respondent did not spend Christmas Day together in 2011 and have not since spent a Christmas Day together. They have from time to time socialised over the Christmas period
In November 2012 the parties travelled together to Adelaide for a sports carnival. They stayed together in a hotel for three nights. The respondent said that they were only planning to spend three nights together and then the applicant was to spend time with a friend. There is an issue as to whether that stay with the friend was planned or not; in that regard I prefer the evidence of the respondent. In any event the applicant stayed with her friend. There is evidence of the applicant that the respondent did not attend to her or assist her when she became unwell while in Adelaide. That is a factor in the determination I have made as to the date of separation.[4]
[4] Applicant’s affidavit, paragraph 31 and respondent’s affidavit, paragraph 27.
In February 2013 the applicant had her third hip replacement and the time she spent at her C Town home increased markedly. At that time the C Town property had no laundry facilities and its heating facility was basic.
The respondent’s father died in 2011 and he received an inheritance of about $80,000 over three years. The first payment of about $65,000 made in August 2011 was used to pay off the loan over the respondent’s Suburb E home. The respondent claims that the balance of the payments was used to improve that home.[5]
[5]Respondent’s affidavit, paragraph 47.
In 2014 the applicant’s father died. She was a beneficiary under his will and received about $190,000 in two payments, the first in late 2014 and the second in early 2015. The applicant did not inform the respondent of that bequest from her father until after the commencement of the proceedings.
This bequest was used by the applicant to pay out the mortgage on her C Town property, pay legal costs, and install a heat pump in the C Town property together with a laundry facility. It was used to meet the applicant’s day to day living expenses. That sum has now been reduced to around $5,000 from a balance of $14,000 at the time the applicant swore her financial statement in October 2016.
In 2014/2015 the applicant found two sets of documents, the first was a series of hand-written notes by the respondent.[6] These notes include a date of 1 September 2011 and set out a series of concerns that the respondent has with the applicant, including him questioning:-
·Whether the parties are incompatible, not wanting a dog, arguments;
·Concerns that he does not want another relationship like the last one;
·His desire to visit Adelaide and travel to F Town;
·Inability to have conversations;
·Too fraught;
·Neither gives way;
·Have own ways of doing things; and
·No affection anymore.
[6] Exhibit A2 (Tab 3).
It also sets out a list of what the respondent says are his needs.
I find that it is likely that these notes were prepared in 2011/2012 and are supportive of the respondent’s contentions as to the breakdown of the parties’ relationship as a process rather than an event.
Included in this set of documents found in 2014 or thereabouts, was a spreadsheet of expenses[7] recorded by the respondent and a list of furniture prepared by the respondent.[8]
[7] Affidavit of applicant filed 21 October 2016, paragraph 34, annexure A.
[8] Exhibit A2 (Tab 4).
The respondent continued to meet health insurance payments for the applicant and continues to do so after the date the applicant asserts separation occurred in August 2016. However, when he advanced funds to the applicant when she was unable to meet expenses these seemed, at times, to be by way of loans rather than gifts.[9]
[9] Exhibit R2.
The applicant’s mother died in 2016 and probate of her will was granted in January 2017. In that will virtually the whole of the estate was left to the applicant, but for some gifts of jewellery to granddaughters. In evidence the applicant asserted that the value of this estate was of no significance.
The applicant said separation occurred on 31 August 2016 and these proceedings were commenced by application filed 21 October 2016.
In these reasons any statement of fact shall has been treated as a finding of fact unless the contrary is clear from the context.
THE EVIDENCE
The onus in terms of the date of separation rests with the applicant. She must establish, to the civil standard, that separation occurred in August 2016 or at least after 21 October 2014.
I requested each counsel for the parties to tender their case outlines.[10] They acquiesced to this request and it was on the basis that it did not establish the facts asserted in them unless each asserted consistent facts (such as birthdays etc.).
[10] Exhibits A1 and R1.
It is not in issue that the property of the parties fall into three primary areas:-
1.The applicant’s home at C Town upon which has been built a studio and a guest room. That property has not been formally valued, however, the applicant asserts that its value is $500,000. That property is unencumbered;
2.The property owned by the respondent at Suburb E which the applicant values at $650,000 and the respondent values at $370,000/$375,000 and to which the respondent has obtained a ‘roadside’ valuation of some $400,000. This property has not been formally valued. That property is unencumbered; and
3.The third significant asset is the respondent’s superannuation which he values at $956,190,[11] or $967,489.[12]
[11] Respondent’s financial statement filed 28 November 2016.
[12] Respondent’s trial affidavit filed 28 November 2016, page 15
There are various other assets.
The respondent has savings of about $76,300 and the applicant has savings of about $5,000. The applicant has a shed on her C Town property which she values at $2,000, as well as furniture and household items in both the C Town property and in the Suburb E home. Each of the parties has a motor vehicle. The respondent has a vehicle which he values at about $28,000[13] plus household furniture and effects.
[13] Respondent’s trial affidavit paragraph 61.
In these proceedings the applicant seeks an unspecified adjustment of property and spousal maintenance of $1,000 per week. This could only be best described as an ambit claim bearing in mind her knowledge of the respondent’s income and that he had retired from full time work.
In these proceedings the applicant relied upon her initiating application, her trial affidavit and her financial statement all filed 21 October 2016.[14]
[14] Applicant’s outline of submissions Exhibit A1.
The respondent relied upon the following material:-
-His response filed 28 November 2016;
-His financial statement and affidavits both filed 28 November 2016;
-Affidavit of Ms G filed 1 March 2017 (one of his daughters);
-Affidavit of Ms H Riley filed 1 March 2017;
-Affidavit of Ms I filed 16 March 2017 (a work colleague);
-Affidavit of Ms J Riley filed in court on 20 March 2017 (with the consent of the applicant and by leave of the Court); and
-Affidavit of Mr K filed 17 March 2017. This was evidence of a valuer as to the kerbside value allegedly of the properties at Suburb E and C Town. I do not treat this as evidence of the sale value of those properties, but more in the form of a market appraisal.
The applicant
The evidence of the applicant was provided in terms of her trial affidavit and financial statement to which I referred earlier in these reasons. She confirmed in her affidavit that the parties commenced their relationship in 2003, although she clarified this in evidence to say that they commenced living together in about August 2003.
At the commencement of the hearing counsel for the applicant tendered a bundle of documents divided into nineteen tabs. I accepted that as a tender, although I indicated that I would not go to documents unless I was specifically taken to such document either during the hearing or at the conclusion of the hearing in submissions.
The applicant’s affidavit set out her perspective of the relationship, including her work history and history of illness and operations up to her third hip replacement which she said, in oral evidence, took place in February 2013.
As to the question of delay in commencing proceedings, if any, she set out that she did not believe that the parties had separated until August 2016 and further that her focus had been on her medical conditions over the last few years. She said during cross-examination that she was under stress and she said that she wanted to ‘ride out’ the situation.
In terms of hardship, the applicant said that she cannot support herself without the respondent’s assistance. She has no source of income apart from her Centrelink aged pension and is unable to return to work. She says her accommodation is rudimentary and without property adjustment or spousal maintenance she will be unable to improve her circumstances to the point where she can live in her property full time.
She denied that there is any prejudice to the respondent in terms of her application if her application is granted out of time.
The applicant gave evidence that her savings having reduced from the $14,000 referred to by her in her financial statement to $5,000. Her expenditure has included spending money on a washing machine and the services needed for it to operate, a heat pump and spending money on legal costs. She has paid about $5,000 in legal costs, but has legal fees outstanding at the present time.
For some unknown reason the applicant only provided bank statements in the form of ANZ bank statements from December 2010 until September 2012.[15] She did not provide credit card statements or other bank statements, particularly those relating to her savings which are held with Tasmanian Perpetual Trustees.
[15] Exhibit A2 (Tab 19).
In cross-examination she disclosed, for the first time, that she had received $190,000 from the estate of her late father. She did not inform the respondent about that sum nor did she have any discussions about how she spent the funds.
She paid off the C Town mortgage of about $80,000 and has otherwise used that money for her own purposes since that time. She gave evidence that there are three buildings on the C Town property. The first is a studio that was built over 2003 and was completed early the following year. The second is a guest room which she had built on the property in about 2010 and the third is a recently acquired a shed in which she hopes to store copies of the book about C Town, which she is currently writing.
In terms of her expenditure set out at paragraph N of her financial statement the applicant was cross-examined as to: house repairs of $80 per week, which given the expenses she has applied in the last twelve months seems reasonable; the car maintenance, which included the replacement value of the car; and medical expenses which arose out of the need for dental work in the last twelve months. She claimed holidays of about $49 per week, primarily associated with trips to Melbourne to visit family and her need to kennel a dog at that time. She also claimed expenditure on cosmetics.
There seems to be no overt exaggeration, although some of the expenses have already been addressed by the matters to which I have alluded elsewhere in these reasons.
Since early 2011 the respondent has given the applicant money. Bearing in mind all of the evidence, I am satisfied that the schedule attached to the applicant’s trial affidavit is accurate. The respondent has continued to pay these expenses, including medical insurance, over many years including subsequent to the date of separation alleged by the applicant.
In 2011 the applicant applied for Centrelink benefits. I am satisfied she did not disclose to Centrelink that she was in a de facto relationship. In this area of evidence the applicant prevaricated. She moved from a Newstart allowance to an age benefit in about September 2014. I am satisfied that she denied or hid the alleged de facto relationship to Centrelink at those times. In respect of this evidence there was initial objection to giving it and it was given under the protection of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth). These are significant factors in determining the date of separation.
The applicant conceded that she was not a beneficiary of the respondent’s will.
The applicant’s mother died in 2016 and her evidence was that she would receive little, if any, money from her mother’s estate. During the first day of hearing the probate of the will of the applicant’s mother was obtained and it was tendered in evidence.[16]
[16] Exhibit R3.
In about 2011/2012 the applicant received about $1,000 to $1,500 per month from her mother, which was used to pay for items for her mother and also assist the applicant.
There was an issue as to whether the respondent knew about this money. It was the respondent’s case that he did not know, and it was the applicant’s case that he did know.
Despite the applicant’s denial it is clear from her evidence that living in C Town is a lifestyle choice made by the applicant. It is where she feels most comfortable and where she is writing a book. It has no stairs and it is somewhat rustic, although in recent times this has been cured. The applicant denied it was a lifestyle choice but on the evidence in was clear that this was her lifestyle choice. The applicant was cross-examined in relation to her attachment to the property and she obfuscated in some levels in that respect. I am satisfied it is the place where she decided to live in about 2011 and wishes to continue to live. These are significant factors in determining the date of separation.
During cross-examination the applicant conceded that she and the respondent commenced living together in August 2003, although their romantic relationship commenced earlier.
As to her family, the applicant has three adult children with whom she has a relationship.
The applicant’s evidence was that it was an arrangement between the parties that they kept their assets separate during the relationship. The applicant said she was annoyed with the respondent in 2012 and described herself as being ‘pissed off’. Their sexual relationship ended in 2011, although the applicant said this arose as a result of a health factor. She conceded that other intimacies such as cuddles, kissing and the like also concluded at that time. The applicant said she did not feel like being warm or affectionate or touching the respondent.
Given the evidence of the applicant I find that the sexual relationship between them and their intimacy ended by mid-2012.
In about 2014 the applicant asserts that she found the respondent’s hand-written notes.[17] She did not raise this with him.
[17] Exhibit A2 (Tab 3).
Over 2011 and 2012 the respondent ceased visiting C Town regularly and his last overnight was in about March 2013. Since then he would not overnight at C Town but occasionally would attend the property. He cut wood. The evidence of the applicant was that ‘it was plain he didn’t want to be there’ … and ‘I wouldn’t accept bad behaviour’. The applicant added that she hoped this would come good.
In relation to her attendance at the Suburb E home the applicant said for most of 2013 she was not at Suburb E. This, she said, was as a result of her hip and the access difficulties in regard to the Suburb E home. She regularly visited and stayed over at that property to do her washing and shopping.
The respondent said this was about once a fortnight. The applicant said it was far more frequent. Having heard the evidence of both, I prefer the evidence of the respondent.
In September 2013 the applicant went to a function with the respondent. The applicant said that she heard comments from some women at the function as to her leaving the respondent. She did not raise this with the respondent. The applicant does not attend the respondent’s sports games.
In Christmas 2014/early 2015 she heard the respondent say to her daughter ‘since your mother left’. She did not raise this with the respondent.
The applicant and respondent still met occasionally for lunch at a hotel in Suburb L but their mutual socialisation all but stopped. An example of their social activities was set out in an email from the respondent to the applicant in October 2011.[18] The previous level of socialisation ceased.
[18] Exhibit A2 (Tab 5).
The applicant’s evidence seemed to have been reconstructed to support her case in terms of this application. It is troubling that she did not disclose the detail of the bequest from her father’s estate to the respondent in the period of time after her father’s death and the asserted date of separation. Her evidence about the nature of the parties’ relationship, the cessation of intimacy in 2012 and the applications for government benefits are such as would undermine the reliability of her evidence.
The respondent
The respondent gave evidence in terms of his affidavit and financial statement both sworn and filed 28 November 2016. There were some minor amendments made to the affidavit, including: that the respondent went to the wedding of the applicant’s daughter in June 2013; that the conversation with the applicant’s daughter Ms M took place in about January 2015, and that he had not spent Christmas Day with the applicant in 2014.
In his evidence and in his affidavit material the respondent said that following what he perceived as the end of their de facto relationship, he and the applicant would give birthday gifts to each other, have dinners for those occasions, he attended the applicant’s father’s funeral in 2014 and they travelled to F Town together in August 2013.
As to the applicant’s inheritance from her father arising after his death in 2014 the respondent was aware that the applicant was likely to receive some inheritance, but he was provided with no detail of it nor was he aware of the sum involved.
The respondent first married in 1971 and there are three children of that marriage, each of whom gave evidence in these proceedings. His marriage to his first wife ceased when they separated in about August 2003.
On 13 November 1974 the respondent made his one and only will[19] leaving the whole of his estate to his first wife and thereafter to his children. That will remains in existence and has not been changed. The respondent and his first wife were not divorced and his first wife died in early 2008.
[19] Exhibit R4.
In early 2005 the respondent and his then wife applied to the Court for consent orders. That application was tendered and is exhibited,[20] and the orders were also tendered.[21] Relevantly a letter from the respondent’s then solicitor dated 6 April 2005 was tendered.[22] In that letter the respondent was reminded that he was advised to consider changing his will. He did not do so and I am satisfied that this was a positive decision on his part.
[20] Exhibit A4.
[21] Exhibit A5.
[22] Exhibit A3.
In his affidavit the respondent provides evidence about his plans to retire.[23] He ceased working on 28 October 2016 and is presently taking long service leave. That leave expires on 5 May 2017 at which time he will cease to have employment. I accept his evidence that he was on a contract until 2019, but terminated the contract in the belief that his relationship with the applicant had ceased years before and having taken advice as to his superannuation entitlements.
[23] Respondent’s affidavit, paragraph 68, 69, 70, 71 and 72.
The respondent’s evidence was that he would likely earn slightly less than $40,000 per year from the superannuation which would now be in the pension phase. Consequently, he would be either losing a small amount of money per year or gaining a small amount of money a year, and he would eventually begin eating into the capital. It was his hope that the capital will sustain him for the period of his retirement.
His evidence is, and I accept, that that payment will be tax free.
When the respondent commenced employment he joined a defined benefit fund. He paid six per cent of his income towards his superannuation and the balance was made up by his employer.
When he attained the age of 62 in February 2011 he was required to convert this into an accumulation fund. He did so and since that time his employer has paid a 12 per cent contribution. He has made capital contributions to the fund since that time in addition to the employer contributions.
From the evidence contained in his application for consent orders he had superannuation of about $417,878 from which he deducted a sum of money to pay out his first wife, leaving an amount of about $374,000 of superannuation as at 2005.[24] The year before he had bought the home at Suburb E for $270,000 of which he had drawn $155,000 from his superannuation fund and borrowed $115,000 from the ANZ Bank. That ANZ loan was paid out over the years and the payments were made by the respondent through his wages and from his father’s estate.
[24] Exhibit A4.
He asserts that the Suburb E home has an approximate value, at this time of some $400,000, however the applicant asserts it has a value over $600,000. In addition he has savings of $81,000 or possibly a little more, his superannuation currently has a value of about $975,000, and a car valued at $28,000. This makes a total asset property pool, including superannuation, of about $1.5 million dollars.
The evidence of the respondent was that the parties separated on amicable terms. As a consequence when the applicant needed funds he helped, and since he was able to afford it he provided her with medical insurance given her history of poor health from 2006 onwards.
He said in respect of their relationship that from 2010 onwards issues arose and that whatever he said or did seemed to irritate the applicant. That evidence is consistent with the evidence of the applicant.
Up to 2010 the respondent and the applicant went to C Town mostly every second weekend and the applicant would go to the property sometimes by herself. The respondent played sport in summer between four and eight games per year.
From 2006 onward I am satisfied on the evidence of the respondent that he was primarily responsible for the household tasks given the health issues of the applicant.
The respondent was cross-examined as to whether he bought airline tickets for the parties to attend the wedding of the respondent’s daughter Ms G in late 2008. He said he had no recollection of it but was aware that that daughter did not want the applicant to attend the wedding. This this was primarily because of the death of the respondent’s wife earlier that year. I accept on the evidence that it is likely that the relationship between the applicant and the respondent’s two daughters was uncomfortable.
The respondent was cross-examined in relation to the notes he prepared in September 2011. He said, and I accept, that these notes were not for publication, but were expressing his thoughts in and around that time. He asserted that the notes were not done at one time, but were done over a period of time around that date. These notes indicate the unhappiness of the relationship at that time and the sources of friction that were operating between the parties. As to separation, the respondent asserts that the separation occurred sometime between 2011 and 2012.[25]
[25] Respondent’s affidavit, paragraph 50.
At that time he says the applicant ceased to live at the Suburb E home on a full time basis but attended the home once a fortnight. The respondent did not go to C Town property except to chop wood or for specific occasions, and apart from one event in 2013 did not stay at C Town property after that time.
His evidence was that post separation he and the applicant remained in a friendly relationship. Tabs 6 to 10 in Exhibit M2 contain the emails that passed between the parties and over the years 2012 to 2016. Counsel for the respondent characterised these of being emails of friends and not emails of people in a relationship. I accept that characterisation. Included in this were some emails about a kitchen in the respondent’s home, as was the emails in tab 13 of June and July 2016.
During cross-examination the respondent was asked about the lists of expenses that he prepared. He said that the applicant had asked him to prepare the list, but he did not tell her that he had done so.
He conceded that he was asked by the applicant whether he was prepared to live in C Town and he said ‘no’. He said, and I accept, that he was puzzled by the question because she knew his concerns in that respect.
In his affidavit the respondent sets out his living expenses on a weekly basis.[26] These are somewhat over inflated given his current circumstances, however, I am satisfied that many of the expenses seem reasonable bearing in mind that his family live interstate, the need to maintain and repair the home, the running of a motor vehicle, books and magazines and the like.
[26] Respondent’s affidavit, paragraph 63.
I am satisfied that the respondent will have little to no capacity to meet a spousal maintenance order after 5 May 2017, other than payments out of capital.
The respondent gave evidence carefully and thoughtfully and at times made concessions against interest. An example of this was when asked what he meant by ‘could not remember’, specifically whether it did not happen and that is why he could not remember or that he just could not remember and it is possible that it did happen; he conceded that it was the latter not the former.
I am impressed that he endeavoured to give his evidence frankly and that his evidence is generally reliable.
Ms H Riley
Ms H Riley is the respondent’s daughter who provided evidence in terms of her affidavit filed 1 March 2017. That affidavit was read into evidence and provided material in relation to the separation, namely that the applicant did not materially assist the respondent in July 2012 when he had a ruptured tendon, that the applicant did not attend at a family holiday in December 2012 and her understanding that the applicant had moved out of the home at that time and that public perception, from her point of view, was that the relationship was at an end. Further, she gave evidence that the applicant was not the subject of discussions with his daughter over the years that followed until the commencement of these proceedings.
Her evidence was that the applicant did not attend any more family trips and that the respondent was considering returning to South Australia.
This witness frankly conceded that she is close to her father, although she said frankly that she was very angry with him when he first formed a relationship with the applicant.
Whilst her evidence was clearly coloured by her affection and support of her father she was an impressive witness who attempted to give evidence frankly and in a straight forward manner.
Mr K
Mr K is a valuer who provided evidence in terms of his affidavit filed 17 March 2017. The evidence was admitted without cross-examination. There was no challenge to the qualifications of Mr K.
Mr K did a kerbside valuation of each of the properties, the Suburb E home owned by the respondent and the C Town property owned by the applicant. In relation to both of the valuations he said in the following terms:-
Having regard to the historic market transaction and within the general locality, accommodation, current condition and on balance and further qualified that the assessment was based on a kerbside inspection and with regard to local market conditions and comparable evidence at the effective date.
With those qualifications he concluded that the Suburb E home had a value of about $400,000 and the C Town property had a value of about $500,000.
Whilst this is certainly not precise evidence as to market value I accept that it is an indication as to their approximate value as at 15 March 2017.
Ms G
Ms G is the respondent’s second daughter and provided evidence in accordance with her affidavit filed 1 March 2017. She gave evidence in terms of that affidavit and was available for cross-examination. She conceded that she disliked the applicant but not to the point of being rude and provided evidence in support of the respondent that the relationship had ended in about 2012. Further, she said that the applicant did not assist the respondent in July 2012 when he had a ruptured tendon. Ms G visited the respondent in January 2013 and the applicant was not part of that visit.
She gave evidence thoughtfully and carefully and I am satisfied that although her evidence was supportive of her father (the respondent) and although she conceded that she had had some telephone discussions with her sister, who had given evidence the previous day, she endeavoured to be frank and forthright with the Court.
I generally accept her evidence.
Mr J Riley
Mr J Riley, the respondent’s son, gave evidence in terms of his affidavit filed 20 March 2017. As distinct from his siblings, Mr J had a positive personal relationship with the applicant. However, in about 2010 there was a disagreement between Mr J’s wife and the applicant. He had not seen the applicant from that time.
His evidence was frank and to the point, and I am satisfied that his evidence is generally reliable.
Ms I
Ms I provided evidence in terms of her affidavit filed 16 March 2017. She is a work colleague of the respondent and provided evidence of the public persona of his relationship. She was not seriously challenged in cross-examination and I accept her evidence.
Documents
Part of the documents in evidence before me were:-
-A document setting out concessional contributions cap,[27] the effect of which means that the maximum the respondent could have contributed once his superannuation converted from a defined benefit to an accumulative fund was about $20,000 per year, although no accurate evidence was provided by him in that respect.
-In relation to the estate of the applicant’s mother, in addition to the probate, the Court was provided with a letter from the solicitor for the estate which had attached to it the short form affidavit in terms of the application for probate. It shows that the amount payable to the applicant in relation to her late mother’s estate will be about $9,500.[28]
[27] Exhibit R5.
[28] Exhibit A6.
I accept that that is the modest amount to be received by the applicant.
Jurisdiction and power and the date of separation
The initial question I need to determine is whether the Court has jurisdiction. If it does I then must determine whether the parties separated in July 2012 or 30 August 2016 or some other time between those dates. The date of separation will determine if I need to proceed to the question pursuant to s 44(6) of the Act and consider if leave to commence proceedings after the end of the standard application period should be granted.
The learned Federal Magistrate noted, quite rightly, that if the separation was within the standard separation period, then this Court ought to consider making a declaration pursuant to s 90RD of the Act. Such declaration would be determinative of the date the parties’ de facto relationship broke down. There being no issue as to the existence of the relationship and the commencement date.
I do not believe I have the power to make such a declaration if I determine:-
(a)that the separation was at a date which means that the proceedings commenced after the end of the standard application period; and
(b)if the leave to apply for orders is not granted.
Rhetorically, what then is the utility of a s 90RD declaration and how can this Court have the power to make such a declaration; absent a substantive proceeding before the Court?
Accordingly, the process I adopt is:-
a)determine the date of separation;
b)if that separation date is within the standard application period; then consider making a declaration pursuant to s 90RD of the Act;
c)if that date is not within the standard application period; then set out the considered finding as to the date of separation, and proceed to consider the question of leave pursuant to s 44(6) of the Act;
d)if it is determined that leave ought to be granted, having made the finding of fact, then consider making a declaration pursuant to s 90RD of the Act; and
e)if it is determined that leave ought not to be granted, the whole application, other than costs, will be dismissed.
This Court has both the power and obligation to determine jurisdiction in terms of whether there is a relationship within the meaning of the Act. The Full Court in Norton v Locke [2013] FamCAFC 202 said in relation to the question of jurisdiction under Part VIIIAB of the Act:-
43.This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court”.
44.Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions (see, for example, Ex parte Green; Re LSH; and, Jackson v Sterling Industries Pty Ltd at 617, per Wilson and Dawson JJ). In both the High Court and this court orders of that type have been expressed as orders “preserving the status quo” pending resolution of the question of jurisdiction.
The Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) introduced the concept of “de facto financial cause” to the legislation. Sections 4(1) of the Act, relevantly defines a de facto financial cause to mean:-
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or ….
(b)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or …
Section 4AA (1) of the Act provides:-
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
Once there is found to be a de facto relationship with the meaning provided under the Act this Court may make an order or a declaration in relation to a de facto relationship only if the Court is satisfied that one of the four criteria set out in that section has been met. Section 90SB provides:-
A court may make an order under s 90SE, s 90SG, or s 90SM, or a declaration under s 90SL, in relation to a de facto relationship only if the court is satisfied:-
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship, see section 90RB.
The jurisdiction to hear de facto property proceedings in the Family Court is provided by s 31(1)(a)(aa) of the Act which relevantly provides:-
Original jurisdiction of Family Court
s 31(1) Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …
Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.
Section 4 of the Act implements the requirement that a de facto relationship must have existed between the parties and there has been a breakdown of that de facto relationship to enable the jurisdiction of the Court to be enlivened. These requirements are repeated in s 90SM(1) of the Act.
Section 4AA(a) of the Act also sets out the circumstances which give rise to a de facto relationship. If there is no de facto relationship then the Act will not apply as the Court has no jurisdiction.
The reason for these provisions is that the power to deal with maintenance and property in respect of parties to a de facto relationship was created as a Commonwealth power by way of limited referral of these State powers to the Commonwealth by some, but not all, State Governments.
In this case the parties resided in Tasmania and its State Government, by reason of the Commonwealth Powers (De Facto Relationships Act) 2006 (Tas), referred powers to the Parliament of Commonwealth of Australia in respect of financial matters relating to de facto parties arising out of the breakdown (other than by the reason of death) of de facto relationships.
The Commonwealth accepted the referral of power by the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth).
I am satisfied that the parties commenced cohabitation in 2003. Their relationship subsisted as a genuine de facto relationship, having regard to the definition under the Act, from August 2003 until it broke down and that this relationship has come to an end. The parties lived in Hobart from 2003. On the evidence and having regard to the concessions by the parties I am satisfied that they were in a de facto relationship for at least almost nine years.
Given the evidence to which I have alluded earlier in these reasons I am satisfied that the parties commenced cohabitation in a de facto relationship in August 2003. In coming to this conclusion I accept the submissions of both parties and I have independently applied the factors set out in s 4AA(1) of the Act referred to earlier.
One of the primary issues is when this relationship between the parties concluded.
Counsel for the respondent took me to the tests set out in Sinclair & Wittaker (2013) FLC 93,551 which, at paragraph 55, quoted this passage from Lynam Director General of Social Security (1983) 52 ALR 128:-
131. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at 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 most 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 meet the statutory test.
There is a difference between deciding whether a de facto relationship has broken down or ended and deciding whether a de facto relationship existed in the first place. In Onslow & Onslow [2016] FamCAFC 7 at 97 Murphy J said:-
The question of whether an admitted pre-existing de facto relationship broke down finally after 1 March 2009 is a question answered by elements different to those applicable to deciding if the relationship has ever existed. In the latter, an essentially objective analysis is applied to the circumstances established by evidence (which may be informed by reference to the essentially objective circumstances listed in s 4AA(2)). In the former, the circumstances that might inform objectively a decision about the existence of a relationship are replaced, or at least augmented, by the subjective circumstances of that particular relationship which is admitted to have existed as the defined type. Put another way, the question is not whether a de facto relationship was in existence at the relevant time or times; the question is whether this particular relationship continued to exist at that time or times.
The Full Court in Onslow (supra) seemed to say that there is a difference between deciding whether a de facto relationship is broken down or ended and in deciding whether or not a de facto relationship existed in the first place.
They approved the decision of Murphy J in Onslow [2016] FamCAFC 7 where it was said that the question of determination of the end of a relationship is ‘an essentially objective analysis is applied to the circumstances established by evidence (which may be informed by reference to the essentially objective circumstances listed in s 4AA(2))’.[29]
[29] At paragraph 97.
Counsel for the applicant took me to a number of authorities. The first was that of Aitken & Deakin [2010] FMCAfam 35 where Judge McGuire said:-
9. Those authorities make it clear that there are three elements of separation in a legal sense. They are:
a)The development of an intention to separate. That intention need not be mutual.
b)The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c)Some form of action upon the determination to separate.
10. I am of the view that the test of the element of “communication” is an objective one.
11. As Watson J stated in Todd and Todd (No. 2) at [75,079]:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
12. The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken, it should be unequivocal, unconditional and unambiguous.
This approach was accepted and repeated (in part) by O’Reilly J in Volen & Backstrom [2013] FamCA 40. At paragraph 27 her Honour referred to and quoted the decision of Clisbey & Viges [2011] FamCA 611. This was a matter concerning the defacto provisions of the Act where Stevenson J, at [47] – [53] considered various authorities as to the date of parties’ “separation”.
Her Honour approved of the approach adopted by McGuire FM (as he was then) in Aitken & Deakin (supra) and went on in paragraph 34 to quote Cronin J in Vaughan & Bele [2011] FamCA 436 where his Honour said:-
13.… Termination has a distinct finality about it but it must be that both parties acknowledge but not necessarily accept, that at least one of them has decided to permanently end the relationship.
In doing so her Honour also approved of the reasons of Cronin J in Vaughan & Bele [2011] FamCA 436 at [11] – [13] who in turn agreed with Mushin J in Moby & Schulter (2010) FLC 93-447. Her Honour at paragraph 34 of Volen & Backstrom (supra) said that Cronin J made “other observations with which respectfully I also agree”.
A number of events occurred between 2010 and July 2012. The applicant commenced living primarily at her home in C Town and the respondent ceased any meaningful residence at that home. His last overnight time was a one off occasion in early 2013. The respondent did not visit C Town from January 2015 to August 2016.[30]
[30] Applicant’s affidavit paragraph 37.
The respondent’s visits to the home at C Town were primarily for particular purposes such as chopping wood for the applicant, in circumstances where the applicant would not have been able to do that herself.
I prefer the evidence of the respondent in terms of the applicant’s visits to the respondent’s Suburb E home from at least July 2013 (and likely earlier) that these visits were arising out of need for accommodation in that home following medical procedures or at times she came to Hobart for purposes such as washing clothes and the like on a fortnightly basis.
In 2010 the applicant began to receive Centrelink benefit payments and informed Centrelink authorities that she was not in a de facto relationship. It was implicit from the submissions made by counsel for the applicant that she had done this notwithstanding that the relationship remained on foot. I do not believe her. Given her evidence, particularly about her treading a fine line, I am satisfied that when she said to the authorities that she was not living in a de facto relationship with the respondent that is what she meant. She continued receiving the support after her workers compensation payment and when she, in 2014, converted this Newstart allowance to an aged pension and again asserted that she was not living in a de facto relationship.
In July 2012 the respondent suffered a ruptured tendon and could not work for a time. The applicant assisted him home from hospital but otherwise left him to his own devices. Her explanation was that he had friends and others who could look after him and she was unable to do so. I am satisfied that this was part of her approach at this time that she was not in a relationship with him and owed the respondent no such responsibility.
There is no issue that the parties’ sexual relationship ceased in 2011. Further, and perhaps as significant if not more significant, their intimate contact ceased. They were no longer tactile with each other nor did they express themselves as a couple through their actions.
The relationship between the applicant and the respondent’s family was at some levels tense if not remote. The respondent’s daughters were upset that he formed a relationship so soon after the end of his long term marriage with their mother. I am confident that showed in terms of their initial treatment of the applicant. However, I accept that this may have mollified over the years, although the applicant was not invited to Ms G’s wedding in late 2008. This arose not because of any animosity Ms G had for the applicant, but out of her desire to have her father there representing her parents, given that her mother had died earlier that year.
Up to about 2011 the respondent’s son Mr J says, and I accept, that he had a personable relationship with the applicant. He frankly concedes that his sisters had a ‘more strained’ relationship with the respondent. However, in 2010 Mr J and his family were visiting the respondent and there was an argument between the applicant and Mr J’s wife. That argument was resolved by everyone ‘agreeing to disagree’ and Mr J and his family no longer spent time with the applicant.
I accept from the perception, discussions and observations of the respondent’s children that the parties’ relationship had ended by mid-2012. The applicant and respondent did not spend Christmas Days together and no longer attended the respondent’s family functions together.
I accept the evidence of the respondent’s children. It was frank and accurate and I accept of course that they were living in different states and that they only saw an occasional snap shot of their father’s relationship.
Ms I has known the respondent for about twelve years. She gave evidence of her observations of the respondent’s relationship with the applicant. Her observations were of him having been separated for the last four or so years, including conversations about his trips to C Town.
From that public perception, objectively, the relationship appeared to be over. This was the perception not initiated by the applicant and accepted by the respondent.
Added to this was the conversation between the applicant’s daughter and the respondent in December 2014 or January 2015[31] when they talked about the relationship ending. Further, the applicant gave evidence, during cross-examination about attending a function in 2012/2013 where the applicant was confronted by women associated with the sports club as to her leaving the respondent. I accept that by mid-2012 it was clear to the parties by their actions that they were and intended to live apart.
[31] Applicant’s affidavit, paragraph 35.
It is instructive that the applicant made no serious challenge to this with the respondent. She asserted in evidence that she raised it with him, however I do not believe that evidence to be reliable. Similarly, she did not raise issues about the comments made at the function.
I accept the respondent’s evidence that he believed in 2011 to mid-2012 that the relationship had concluded.
In early 2016, the respondent informed the applicant that he was considering retiring and had said to the applicant as follows:-[32]
38. In early 2016 [the respondent] told me that he was going to retire soon. He spoke about maybe selling the house and buying something on a flat block to live in. He said he didn’t know whether he wanted to stay in Tasmania (he said maybe the East Coast) or go interstate.
[32] Ibid, paragraph 38.
This was the evidence of the applicant and is indicative that in early 2016 the respondent was expressing to the applicant that he was thinking about buying another house and considering moving to the East Coast of Tasmania or moving interstate. This was not the conversation of a party to a committed de facto relationship and I have treated it as further indication that both parties at that time considered their relationship as being at an end.
Following this discussion was the conversation in Hobart on 30 August 2016, to which each party has put a different interpretation. The applicant said:-[33]
39. On 30 August 2016, with [the respondent’s] retirement looming, I told him that I needed some clarity about my own future and how [the respondent’s] decisions might affect me. He agreed that this was reasonable. I asked [the respondent] if he thought that coming to live at [C Town] with me and building a proper house there was an option. He said no. I then asked [the respondent] if he could see me as part of his retirement future, regardless of where he decided to go, and he said “No.” It was on this date that I consider we separated on a final basis.
[33] Ibid paragraph 39.
In some ways this also seems to be indicative that the applicant was asking for a reconciliation or resumption of a de facto relationship rather than a conversation ending a de facto relationship.
The respondent’s version was:-[34]
35. Paragraph 39 - disputed. I agree we had a discussion on about 30 August 2016, however it is my recollection of that discussion that [the applicant] asked me if I ever thought that we could have a relationship again. To which I replied initially that I did not know. [The applicant] pushed for a clearer response and I told her probably not. [The applicant] did not want to discuss the matter any further. Therefore I was not given any opportunity to elaborate on what my position was and why.
[34] Respondent’s affidavit, paragraph 35.
On balance, and for the reasons more generally articulated in this judgment, I prefer version of the respondent as to the conversation and the context of it on 30 August 2016.
Each of the parties had maintained their own property during the relationship and had paid expenses relating to their respective properties. There was some minor help which each did for the other including matters such as the respondent chopping wood for the applicant’s home at C Town and the applicant assisting with some gardening and some planning about a bathroom in respect of the Suburb E home. The parties did not have joint accounts.
It was only with some reluctance that the applicant sought money from the respondent. The respondent assisted her as when he ‘lent’ the applicant $250 in about 6 October 2014 with the promise to ‘pay back the $250 on my next pension day.’[35]
[35] Exhibit R2, email 6 October 2014.
I accept that the respondent attended at the applicant’s father’s funeral at Christmas 2014 and that they regularly lunched or dined together on occasions when the applicant was visiting Hobart.
I have read the emails between the parties (not a complete list) from 2012 through to 2016.[36] As I have said earlier, I accept the characterisation of those emails as between friends and not as necessarily as a couple in a de facto relationship.
[36] Exhibit A2 (Tabs 6 – 10).
There is evidence that the level of social life between the parties prior to separation was significant.[37]
[37] Exhibit A2 (Tab 16).
When the applicant was left a considerable amount of money by her father she did not inform the respondent of such bequest. The respondent received an inheritance from his father between August 2011 and April 2013 which this totalled about $80,000 and he applied all of the monies to his own benefit.
The applicant argued that the parties still shared a bed. I have considered that in the context of these parties. That is that the applicant used the respondent’s home as a place to do her washing and as a base to do her shopping when she came to Hobart about once a fortnight over the years since 2013.
The applicant had significant back and hip issues and needed a special bed. I accept the submissions by counsel for the respondent that the sharing of the bed was not in any way a romantic circumstance, but simply convenience bearing in mind the particular health issues of applicant. It is and was significant that after the parties’ discussion on 30 August 2012 that they shared the same bed that night. I accept the respondent’s evidence that any physical contact after 2012 would have been accidental.
The respondent provided support for the applicant in terms of paying her medical insurance, lending her money, and from time to time giving her money. I accept that this was part of the nature of the friendship that existed between these parties in the amicable separation which, in the circumstances, they had.
The applicant and respondent did not see each other much.[38] I am satisfied that each of the parties was responsible for their own properties, particularly after 2012.
[38] Applicant’s affidavit, paragraph 30.
I am satisfied that their separation was a process rather than an event, and it culminated in June/July 2012 when their relationship as a de facto couple had ended. They did not precisely say to each other words to the effect that the relationship was ended but from their respective behaviour, and lifestyles they communicated that circumstance each to the other.
Subsequent to July 2012 the parties had separate lives, although they maintained a civil and respectful communication. The respondent continued to chop wood and provide assistance to the applicant in terms of her medical insurance cover and some modest financial support whilst he was in employment. The parties occasionally shared a meal at a hotel in Suburb L but the broader and significant nature of their social activities ceased. The respondent provided a place for the applicant to launder her clothes and sleep when she visited Hobart.
The applicant’s evidence was clearly subjective and from her own perspective. I was not convinced by her at times equivocal evidence that she regarded the relationship as being on foot after July 2012.
The applicant prevaricated in terms of some of her evidence and at times provided lengthy and non-responsive replies. I do not criticise her for that as she is anxious to put her case forward. I am concerned that the applicant’s evidence is coloured by her desire to promote her cause in this litigation and has an element of reconstruction.
In summary, by July 2012 the parties’ sexual and intimate relationship had ceased to exist. The degree of financial support had substantially reduced; the respondent helped the applicant as a friend. The respondent knew the applicant was in receipt of a pension. From about 2010 the applicant looked to Government for her support and asserted to them that she was not in a de facto relationship. That was reiterated when she moved from a Newstart Allowance to the aged pension.
The parties had no common residence, and each owned and primarily lived in their own home. The applicant stayed in the respondent’s home from time to time after July 2012, but this was a matter of convenience rather than a re-start or continuation of the de facto relationship. The respondent rarely stayed at the applicant’s C Town home.
Each took further control of their respective funds. The applicant in terms of the inheritance from her late father and the respondent in terms of his inheritance from his late father.
These parties, by July 2012, had positively abandoned any degree of mutual commitment to a shared life. The applicant raised with the respondent her desire to restore that relationship in August 2016 and which request was declined by the respondent. These parties had clearly communicated to each other by their respective actions that the relationship was ended by July 2012. This cessation of the de facto relationship was made clear to the parties’ families, work colleagues, friends and social groups, such as the sports club.
There were public conversations about the relationship ending. Examples of this are the criticism of the applicant at the sports club event in late 2013 and the respondents conversation with the applicant’s daughter in 2014, where the applicant said:-
35. At Christmas in 2014 my daughter was visiting. I overheard [the respondent] say to her something about “since your mother left”. I thought this was a very unusual thing to say and I said to [the respondent] that I hadn’t left, I had just been spending more time at [C Town].
In reply the respondent said:-[39]
31. Paragraph 35 – disputed. I believe that we spent Christmas day together in 2014 and that [applicant’s] daughter was present. However I cannot recall making the comment ‘since your mother left’.
[39] Respondent’s affidavit paragraph 31.
I am satisfied that the applicant’s daughter said the words asserted, however, I do not accept that it was followed by the discussion between the parties.
I am satisfied that the applicant had left the de facto relationship by at the latest July 2012. I am satisfied that both parties regarded the relationship as being over, however, wished to retain some friendship.
Given all of the evidence I find that there was unequivocal, unconditional and unambiguous expressions of intention of these two to end the relationship by July 2012, albeit specifically unspoken as between the parties. This was done through their actions and communications to each other, to their friends and families when they communicated that the relationship no longer existed. As such I am satisfied that the parties’ relationship had broken down and ceased to be a de facto relationship by July 2012. It has not resumed since that time.
Should leave be given to the applicant to commence proceedings out of time?
Section 44(5) of the Act imposes a requirement that proceedings for property adjustment and maintenance must be commenced within two years of the relationship ending. The section relatively provides:-
44. Institution of proceedings.
(1) Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.
…
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a)an order under section 90SE, 90SG or 90SM; or
(b)a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).
Consequently, with the determination that the de facto relationship ended in July 2012 the application is just over two years out of time. The applicant had sought, in the event of such a finding, leave to commence or effectively continue the property and maintenance application out of time. The respondent opposes that application.
The leave to commence such proceedings outside the standard application period is dealt with pursuant to ss 44(6) of the Act. This subsection provides:-
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party - the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
This is the exercise of a discretionary power. Before the power is exercised the applicant must in respect of one or both the property and maintenance applications establish the likelihood of hardship to the applicant or in terms of an application for maintenance she must establish that at the end of the standard application period (viz July 2014) the applicant would not have been able to support herself without an income tested pension, allowance or benefit.
In terms of the maintenance application the evidence is clear that the applicant was in receipt of an income tested pension at that time, but was also in receipt of or entitled to the money from her father’s estate.
The case law relating to applications under s 44(3) of the Act is apposite to applications under s 44(6) of the Act.
I accept the outline of the law provided by counsel for the applicant. In Hedley & Hedley [2009] Fam CAFC 179, Boland J explained what was required:-
127. The procedure to be followed in an Application under Section 44 (3) and the consideration of what is meant by “hardship” in Section 44 (4) are the subject of well-known authority. The authorities have consistently recognised, whilst an Application under the section is not a matter or practice and procedure, it should be summary in character…”
128. In Whitford and Whitford (1979) FLC 90-612, The Full Court…referred to the appropriate way for proceedings to be conducted. Having said that they did not consider it necessary or desirable to lay down any definitive procedural rules their Honour’s noted the following:
·an Application for leave to institute proceedings under Section 44(3) is not intended to be the final hearing of the matter;
·the Applicant should file adequate evidence;
·the Respondent should have an opportunity to file an Affidavit in answer to adduce material showing why leave to institute proceedings should not be granted;
·in an appropriate case the Applicant should have an opportunity to file an Affidavit in reply;
·cross-examination of either party on his or her Affidavit material should be permitted. On occasions oral evidence may be received;
·if necessary, the Court may allow an Applicant to conduct some investigation into the financial position of the Respondent; and
·the question to be borne in mind is whether leave should be granted, enabling the Applicant to institute proceedings (and that the extent of the proceedings and any investigation should be regulated accordingly).
129. Earlier authorities, including McDonald and McDonald [1977] FLC 90-317, referred to the establishment of a prima facie case which is substantial, that denial of the right to litigate that claim would cause hardship and there is an adequate explanation as to delay. Additionally, Evatt CJ, in McDonald said the Court may, in an appropriate case, take into account prejudice to a Respondent.
130. In Althaus and Althaus (1982) FLC 91-233, Evatt CJ confirmed that Sections 44 (3) and (4) do not require “a detailed hearing on the merits to determine whether the Applicant’s claim will succeed. Her Honour said:
·“…The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the Applicant the right to litigate that claim.”
131. In Whitford the Full Court conducted an expansive discussion of what will constitute hardship. Their Honours noted:
·the loss of the right to institute proceedings is not the hardship to which the sub-section refers, but the consequences of the loss of that right;
·the hardship, if leave is not granted, implies that the Applicant would probably succeed if the substantive application was heard on the merits;
·if there is no probability of success, the Court cannot be satisfied that hardship will be caused if leave were not granted;
·if the probable result of the hearing on the merits is that hardship is not likely to be alleviated then the Court cannot be satisfied that the Applicant would suffer hardship if leave were not granted; and
·the right or the entitlement to be lost if leave is not granted should not be trifling or likely to be outweighed by the costs of the proceedings. However, it is not necessary to establish the loss must be a substantial one.
132. The Full Court concluded that if a Court is satisfied hardship would be caused if leave were not granted, the Court should then, as a second step, consider whether to exercise its discretion to grant leave or to refuse such leave. It is relevant to note that the Full Court, at 78-146, saw the nature of the jurisdiction to be exercised by the Court required that
·“…this power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.”
133. In Neocleous [1993] FLC 92-377 the majority, Fogarty and Nygh JJ, discussed the Full Court decision in Whitford. The majority explained that the remarks in Whitford were clearly obiter.” They went on to say
·“As we see, the essence of the remarks in Whitford is further exemplified by decisions such as Jacenko, is that the judge must always bear in mind that the only question to be determined is whether leave should be granted to enable proceedings to be instituted and this should govern the procedure before him or her. For that reason it will often be undesirable to allow cross-examination on any issue which will or can be fully litigated at the principal hearing or on any issue which is not immediately relevant to the question of granting leave.”
In the same case of Hedley, Cronin J said:-
216. In property proceedings, Section 44 (3) requires only a limited inquiry in relation to whether or not hardship would be caused to a party (or a child) if leave were not granted. That same limited enquiry in relation to maintenance is whether at the end of the period within which the proceedings could have been instituted without leave, the circumstances of the Applicant were such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
…
218. If the Applicant is able to establish hardship, the Court is obliged to then consider whether or not to exercise the discretion to grant the leave sought. An Applicant must therefore also set out in Affidavit form any material which would support the cause exercising its discretion in the Applicant’s favour. That material includes but is not limited to, the length of the delay, the adequacy of the explanation for the delay, the prejudice occasioned to the Respondent by reason of the delay and the strength of the Applicant’s case.
219. It is not appropriate for a Court in a limited Section 44 (3) hearing to conduct the proceedings as if it was an Application under Section 79 of the Act. Each of the defined steps in Section 79 carry subjective judgments. In a Section 44 (3) Application, the Applicant need only establish that there is a case to be argued bearing in mind those subjective judgments in Section 79.
This approach was confirmed by the Full Court in Montano & Kinross [2014] FamCAFC 231 where Murphy J said:-
11. An application pursuant to s 44(6) of the Act involves two distinct but related questions. The first is, relevantly, whether “hardship” would be caused to the application (the parties have no children in this case). If hardship is established, but only if hardship is established, the Court’s discretion to grant leave is enlivened, see, for example, Hedley & Hedley (2009) FLC 93-413 and Sharp & Sharp [2011] FamCAFC 150.
Existence of a reasonable claim
The first question is whether the applicant has a reasonable claim to be heard.
It was submitted by counsel for the respondent that the applicant did not have a reasonable claim to be heard. She submitted that in Stanford v Stanford (2012) 247 CLR 108 the High Court required the identification of the existing legal and equitable interests in property of the parties and that thereafter the Court must determine whether it is or is not just and equitable to make an order altering the parties’ property interests. Consequently, that the applicant had no reasonable claim. Counsel for the respondent submitted that:-[40]
[40] Exhibit R1, Respondent’s Case Summary filed 17 March 2017, pages 11 to 17.
·The parties’ assets were kept entirely separate and now exist in precisely the same form in which they were held in the first year of their relationship. This submission is not entirely correct as the respondent acquired the Hobart home after the relationship commenced. Albeit, this was from his own funds, including superannuation, income and his father’s estate.
·When the applicant received worker’s compensation payments in about 2008 and an inheritance in 2014, she deposited these into her account and made use of those funds absolutely at her discretion and for her own use and benefit.
·When the respondent received an inheritance between 2011 and 2014, he deposited these into his account and made use of those funds at his discretion and for his own use and benefit.
·During the 10 year relationship, the applicant built a house and guest house on the land owned by her. This was planned, directed and executed by her and funded by her using her cash, her superannuation and a loan to her.
·Each party paid rates, power, phone, water, insurance and home loans for their respective properties.[41] I accept this to be the case.
[41] The respondent’s affidavit, paragraph 45.
·The respondent’s evidence, which I accept, was that the applicant was emphatic that C Town was her place and continued to be emphatic about this throughout their relationship. The Suburb E home was the respondent’s place and was purchased as such.[42] The respondent asserted, and I accept, that the applicant did not like him touching her furniture and said so on numerous occasions quite forcibly.[43] The respondent said that the applicant was emphatic about everything being separate.[44]
[42] Ibid, paragraphs 10 and 43.
[43] Ibid, paragraph 30 and 43.
[44] Ibid, paragraph 49.
·The parties spent a significant proportion of the relationship living separately in their respective homes. The respondent’s evidence is that by 2011, the applicant was living at her C Town home and presumably in receipt of single Centrelink benefits.[45] The respondent was not privy to the specific arrangements between the applicant and Centrelink, demonstrating the degree of financial separation between the parties.
[45] Ibid, paragraphs 24 and 25.
·It was understood that each party was largely responsible for the maintenance and improvement of their respective homes.
·Despite their long relationship, neither party ever executed a will in favour of the other. Neither has made any provision for the other to have an interest in their property after their death.
·The respondent did not make the applicant his nominated beneficiary of his superannuation fund. There is no evidence that either party ever intended her to benefit from that asset.
·There is no evidence, and neither party asserts, that any work was undertaken or paid for by the respondent on the applicant’s home improving its value.
·Each party has an asset which can be realised to provide for any lack of income.
·The respondent made vastly superior financial contributions, which I accept.
·The applicant did not contribute indirectly to the respondent’s superannuation. Her capacity to undertake home duties, yard work, and maintenance was extremely limited. Conversely, the respondent made superior non-financial contributions.
·There were no children of the relationship and no contributions made to step-children.
·The applicant had chosen to hold her funds in a property which is entirely unsuited to her needs. It is far from the city and makes trips to Hobart difficult. It has rustic facilities which, she says, do not suit her needs. It would be unfair to expect the respondent, who has individually and prudently planned for his future and retired, to fund this lifestyle choice of hers from his retirement income.
·The respondent would have worked for a number of years yet. He has in effect crystallised his income and his income earning capacity, relying on the expectation that these attributes were his and his alone.
·The applicant future income earning capacity is not established either way. It would not be just and equitable to expect him to share these with the applicant in such circumstances.
Each of the parties has real property of about the same value. The applicant has limited savings but has not provided an adequate explanation as to how she wholly disposed of all but $5,000 out of the $190,000 from her father’s estate. The respondent has savings of $76,300 and a car of the value of about $28,000. I accept that each of the parties has furniture and effects sufficient to meet their needs in their respective present accommodation. The elephant in the room is of course the difference in savings and the respondent’s superannuation of about $960,000.
If there was no superannuation then it would be almost inarguable that there ought not to be any adjustment of property given the term of the relationship and the way in which these parties conducted their relationship.
The difference in this case is that at the commencement of the relationship or soon after the commencement of the relationship, and certainly after the deposit was paid on the respondent’s Suburb E home, the respondent had superannuation entitlements totalling about $375,000.
There is no issue that no direct financial contributions were made by the applicant to this fund. Given the history of these parties I am satisfied that it seems that no or at best very limited indirect financial contribution by the applicant this fund particularly after 2006.
There are no children of the relationship. It seems that each party has provided minor contributions to each other’s properties, or at least by the respondent to the C Town property.
The parties provided non-financial contributions to each other jointly from 2003 until 2006, and from 2006 until separation in July 2013 the applicant provided very little non-financial contributions as against the respondent’s significant financial contributions.
The respondent provided financial assistance to the applicant through payment of health insurance and the like, at least since 2012 and onwards from that time including loans, assistance with haircuts and other modest financial assistance. He provided a place for her to stay when she came to Hobart and provided the regular weekly or fortnightly restaurant meals for her.
The respondent used money from his late father’s estate to pay out the mortgage on Suburb E and applied the balance of about $11,500 to improvements on the Suburb E home.[46] The respondent was not challenged on this assertion.
[46] Respondent’s trial affidavit paragraph 47.
The applicant received about $190,000 between late 2014 and early 2015 and applied about $80,000 of this sum to pay out the mortgage on the C Town property, she has applied another $9,000 towards setting up the premises at the C Town property with proper heating, laundry facilities and payment of legal costs.
On the applicant’s case it is unlikely that there should be any or minimal adjustment on the superannuation having regard to the contribution factors.
The s 90SF(3) factors are the income of the parties, one earning $25,000 and the other earning about $40,000 free of tax. On that income, given the expenses of the respondent, it is unlikely that he has the capacity to meet any meaningful maintenance order out of that income and I accept the submissions by counsel for the respondent that he should not be expected to meet maintenance out of capital.
There was no medical evidence on the part of the applicant although there was a history of arm and leg difficulties which the applicant says is slowly improving. The only basis could be the differential of the superannuation each party has access to in the context of the change in the superannuation of the respondent by about $600,000.
Given all of these circumstances I am satisfied that the applicant would have a modest, though not necessarily substantial, claim in regard to the respondent’s superannuation fund. Accordingly, hardship in terms of the loss of a claim by the applicant is established. Consequently, in the words of Murphy J in Montano & Kinross (supra) the Court’s discretion to grant leave is enlivened in relation to both property and it must follow maintenance is likewise enlivened.
The second basis for the maintenance that the applicant’s circumstances were, at the end of the standard application period, such that she would have been unable to support herself without an income tested pension, allowance or benefit. I am not convinced that this provision would have been enlivened. There was no doubt that at that time the applicant was in receipt of the aged pension, which is an income tested pension. However, she has the benefit of a bequest of $190,000 from her father’s estate to which she became entitled in May 2014. The money was not paid until later that year and in 2015. As a result she did not have the money in her possession.
Given that the money was vested although not paid, it is likely that at the end of the standard application period, the applicant was able to maintain herself without the income tested pension. However, given the above this is moot.
CONCLUSION
Given that the power to grant leave is enlivened, my task is now to exercise that discretion in terms of whether I ought or ought not to grant leave. I must consider all of the relevant factors and not necessarily rely solely on one or another. As Murphy J said in Montano & Kinross (supra):-
15. This Full Court spoke in Whitford of “such matters as” the “length of delay, the reasons for the delay and prejudice occasioned the respondent by reason of the delay and the strength of the applicant’s case and the degree of hardship which would be suffered unless leave were granted”. All of those matters were said by the Court to be “matters which affect the exercise of the discretion”. Yet, this Court was at pains there to point out that those considerations were not exclusive of the matters to be considered in the exercise of the broad discretion; an overall requirement to do justice between the parties is the ultimate criterion. The strength or weakness of, or the relative weight to be attached to, those various matters in the exercise of the discretion must necessarily depend on the facts of the particular case. This court said explicitly in Whitford that “these matters are not necessarily the only ones”.
The delay was about 26 months from the end of the standard application period, being 1 August 2014 to 21 October 2016.
In respect of delay the applicant says in paragraph 41 of her affidavit:-
There are several reasons why I did not make an application for the division of assets sooner. The first is that I did not believe we had separated on a final basis until August 2016. I was not even aware that there was a time limit in relation to seeking the Court’s assistance in matters like this. Prior to August 2016, although [the respondent] and I were at times living separately I considered us to still be in a relationship. I thought that our paths had diverged for a while but that would be eventually resume spending more time together. At no stage did we discuss separating or ending our relationship.
42. Over the last few years, my focus has been on my medical conditions and my subsequent recovery. I have suffered through a great deal of pain and limited mobility. It has been very frustrating for me to be unable to live and function as I would like. The furthest thing from my mind has been separating from [the respondent] or sorting out our financial relationship.
43. Although I did start to have some concerns about the future of my relationship with [the respondent] after I found his spreadsheet of the financial support he had given me, I wanted to “ride out” the situation in the hope that I was just over-reacting and worrying over nothing. Even then, although I had my concerns, I did not believe we had separated.
I accept that the applicant did not know of the two year limitation. I do not accept that she was not aware that she and the respondent were separated. I believe she was content to share some social occasions with the respondent, have use of his Hobart home as a base when she needed to shop, launder her clothes and socialise.
The applicant knew the relationship had ended by July 2012 and I do not accept she wanted to ‘ride out’ the situation.
Of more difficulty to the applicant was that she inherited $190,000 just before the standard application period ended. She disposed of all but $5,000 of those funds over the next 25 months or so. That sum would have had an impact upon the adjustment of property as between these parties and would have impacted on the maintenance application. The delay has therefore been significantly to the benefit of the applicant and to the detriment of the respondent. I do not accept that the delay has been adequately explained. This is, however, just one part of the consideration.
I must again consider the hardship. It is the factor that enlivens the leave application, but it must also be a factor for consideration in terms of the exercise of the Court’s discretion. I have considered the matters set out above.
In addition the applicant is unable to support herself with a pension and would benefit from a maintenance order. Although, given that the respondent has retired he is unlikely to take on paid employment and as such the likelihood of a maintenance order against the respondent is remote.
I accept that the applicant has no income apart from her aged pension. She is unlikely to return to paid employment. She lives in C Town which I accept is less expensive than is Hobart.
Further, I accept that now that the respondent is retired the assistance he made voluntarily will inevitably cease.
The applicant’s accommodation is modest but not as rudimentary as she asserts given the evidence in cross examination as to the inclusion of a washing machine, heat pump, cupboard and driveway.
There is a prejudice to the respondent. In his trial affidavit he says of the prejudice:-
67. There is significant prejudice to me in the event leave is given to [the applicant] to proceed out of time. I have regarded my relationship with [the applicant] over as of 2012. The deterioration of the relationship was self-evident. It was clear I drove her “mad”. She regularly expressed irritation at things I did and things I said, including relatively minor things, for example where I had placed a possession or how I prepared a dish. She told me she didn’t want me to stay at the [C Town] property. We were leading separate lives. There was no physical intimacy. While there were linkages, the relationship was at an end. It was apparent [the applicant] was aware the relationship was over because she asked me if we would have a relationship again, if she had believed the relationship was continuing she would not have needed to ask me this question.
This paragraph deals with the question of the separation, which I have addressed earlier.
It is the question of the respondent’s retirement where major prejudice arises if leave is granted. The respondent says in his affidavit:-
68. I have made plans for retirement, I made these plans without reference to [the applicant] and without any discussion with her. That was because we were not in a relationship. Had we been in a relationship as she suggested, the retirement would have been a joint decision and I would have discussed my intentions with her. I made my retirement plans prior to [the applicant] indicating she was going to pursue a family law claim and as such these plans were made on the basis I had no one to support other than myself. As such I have resigned from my employment …, this will take effect on Friday, 5 May 2017. From 28 October 2016 until 3 March, 2017 I am taking long service leave. From 4 March, 2017 until 5 May, 2017 I will be taking annual leave. On Friday, 5 May, 2017 my employment … will formally terminate and I will then be reliant on my superannuation entitlements for income.
I accept that his decision to retire was made without consultation with the applicant, although it is clear from the evidence that he informed her of that course. It is a concern, that in early 2016, when she was told by the respondent that he was planning to retire that the applicant did not warn or inform him of her potential claim for property and maintenance. That failure has had significant adverse consequences for the respondent.
This was outlined in the respondent’s evidence in the circumstances he describes:-
69. I started making plans for my retirement approximately 8 months ago however I started thinking about what I should do 12 months ago. I gave notice of intention to retire in February 2016. At the time I received a letter dated 12 September 2016 from [the applicant’s] solicitors, my retirement was set in concrete. If I had known [the applicant] intended to bring a claim for property settlement I would have worked until I was 70 as the terms of my employment permitted me to do so. I had an iterative contract and I could not have been forced to retire by my employer. This would have enabled me to supplement my retirement funds.
70. At 67 it is unlikely that I am employable. My role with the [public service] has been in [human relations] and I do not have tertiary qualifications.
71. As a result of my retirement I have had to purchase a car, mobile phone and computer as all of these items were previously provided by my employer.
72. Prior to giving notice of my intention to retire I spoke with my superannuation fund and took advice from the financial planner at the fund. As a result I was satisfied my superannuation was sufficient to sustain me in retirement. If as a result of [the applicant] being allowed to proceed out of time I am require to split my superannuation with her, I am unable to make this up through continued employment which would deliver extra contributions, (12.5% in case of my employer) concessional contributions by me up to $25,000 per annum and post-tax personal contributions to the extent my finances would permit. I could have also delayed buying a car for another three years.
The respondent was not seriously challenged as to these facts. He ceased paid employment on 5 May 2017 and from that date he receives income and/or capital from his superannuation fund to the extent of about $40,000 a year which he says is the amount he has available to meet his needs into his retirement.
His evidence, which I accept, was that he would have otherwise worked some time longer and in that regard had a contract until 2019, perhaps another two years. His evidence was that contributions were made by his employer in the percentage of twelve per cent plus his own contributions of about 6 per cent. He would have had his substantial income. Obviously, this may have enabled the applicant to receive modest spousal maintenance for a few years and may have had some impact of the adjustment of property.
The respondent is unlikely to make up any lost superannuation capital and consequent income given the failure of the applicant to commence proceedings within in the standard application period.
Given all of these circumstances and having regard to all of the evidence before me, I am not convinced that the leave sought by the applicant should be granted. As such I will dismiss her application.
I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 June 2017.
Associate:
Date: 7 June 2017
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