WA Court Finds Separation of De Facto Couple Means More Than Just Physical Separation

Keywords:  De facto couple; indicia for determining de facto relation; separation; meaning of separation in the context of de facto relationship; children; relocation; best interests of the child; property settlement;  statute of limitations.

 

Introduction

Justice O’Brien (“the judge”) in the case of Jones and Hill [2016] FCWA 87 (14 October 2016) considered the request of Ms Hill (“the mother”) to relocate to England with her children, Child A and Child B, born in 2007 and 2009. Mr Jones (“the father”) opposed the move, citing his desire for equal access.

Background

Both the mother and the father grew up in England. They began their relationship in or about 1995. They began living together between 1997 and 1998. They did not marry. The parties moved to Australia in or about August 2002, settling in Perth after initially residing in Sydney. Child A and Child B were born in Perth.

The relationship between the parties broke down in late 2011. The actual date of the termination of the relationship was vital to the mother’s case for property distribution reasons as we will see.

In contention were two issues: first, the future residence of the children, and second, distributing the property between the parties. In relation to the first issue several key factors were considered: the mother’s motives regarding her plans to move to England; the mother’s relationship with the father’s extended family; the children’s relationship with the father’s partner, Ms Mallard; their relationship with Ms Mallard’s children; and ultimately what was in the best interests of the children.

Mother’s motives for moving to England

The majority of the mother’s family lived in England at the time of the trial. She did accept that she had some family in Perth at least at the initial time of relocation. The Court accepted that a parent proposing to relocate outside of Australia is “not required to justify the desire to move”. Instead, it is required to consider the benefits the parents would realise from the relocation balanced against the best interests of the child.

In cross examination, the father did not accept that the mother’s intentions were not motivated by ulterior considerations, which ensured the Court’s need to consider the issue. The mother, however, denied that her intention to move to England was determined recently, in particular, since discovery of her father’s terminal illness in late 2015. The mother told the sole expert witness that she had long desired to return to the United Kingdom. Interestingly, even the father contradicted his own case, accepting that the mother had put her desire to move to him as early as 2012.

The judge accepted that the mother’s evidence was bona fide and not pressured by an ulterior motive and that she would indeed be “happiest” should she return to England.

Mother’s relationship with the father’s extended family

One reason for the father’s reticence regarding the move was due to fears his children would be in contact with his stepmother. The father had experienced significant childhood abuse from his stepmother and had since become estranged from his extended family.

The judge was critical of the mother’s decision to remain in contact with the father’s family against his wishes. His Honour did, however, accept that the relationships between the children and the father’s extended family, having been established, would likely be beneficial to the children in the future.

Justice O’Brien made an order that restrained the children from being in the care of the stepmother or being alone with her at any time.

Children’s relationship with Ms Mallard

The Court considered the children’s relationship with the father’s partner Ms Mallard. The children, according to the expert witness, Ms Cherubino, were not particularly positive about Ms Mallard and were not close or affectionate. The father gave evidence that the children did, however, share a good relationship with Ms Mallard’s children and this was consistent with Ms Cherubino’s opinion. The expert witness believed that with frequent Skype, FaceTime and telephone communication with Ms Mallard’s children, they would manage well.

Orders regarding the relocation

Justice O’Brien ordered equal shared parental responsibility between the parties. He accepted that the mother was bona fide regarding her reasons to return to England, and balancing this with the best interests of the children, he allowed her to relocate. He did however order an injunction on the move until the end of 2016 for practical reasons such as schooling.

The father was given access to the children during holiday periods, alternate Christmas periods and for half the English Summer holidays within which he could request the children travel to Australia. The father was also allowed Skype or FaceTime calls on Sundays and reasonable calls during the rest of the week.

Property distribution

The father stated that the relationship ended on 30 November 2011. The mother, on the other hand, put it to the Court that the relationship did not end until 18 December 2011. The date that the relationship ended was a key factor as one of the Court documents the mother relied upon would have been filed outside the statutory time limit had the relationship ended on 30 November 2011 in agreement with the father’s evidence.

To determine the termination of the relationship the judge considered the case of Clarence and Crisp [2016] FamCAFC 157. In that case, the Full Court noted that “separation” must be more than merely physical separation and is in fact the irreconcilable breakdown of the personal and domestic relationship.

The Court in Clarence and Crisp stated that to determine whether a de facto relationship has ended certain indicia must be considered that are currently set out in s 13A of the Interpretation Act 1984 (WA). There was insufficient evidence to thoroughly analyse the indicia.

In his Honour’s view, the father’s evidence that the relationship had ended on 30 November 2011 was “vague and unconvincing.” The mother’s evidence, on the contrary, was “firm as to the point in time when she reached a clear decision.” Ultimately, given the uncertainty of the father’s evidence and the strength of the mother’s evidence, the Court found that the relationship ended on 18 December 2011. Therefore, the mother’s form 1A evidence was permitted (as she was not out of time to file proceedings, though she would have been if the Court accepted the father’s evidence of the relationship ending earlier) and the Court was entitled to consider the financial matters.

When determining the financial distribution, his Honour considered that the father had contributed child support payments while the mother was relying on Centrelink. Further, the father was earning substantially more than the mother would likely be able to earn and had re-partnered. There was also the consideration of travelling costs that would be born if the planned relocation were to go ahead.

The judge ordered, among other orders, that:

  1. both parties were to retain their respective superannuation;
  2. both parties were to retain the furniture and chattels for which they were in possession;
  3. monies from a savings account were to be vested in the mother; and
  4. the mother was to indemnify the father for three debts in the parties names.

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