EV v SV [2010] QSC 240

SUPREME COURT OF QUEENSLAND CITATION: EV v SV [2010] QSC 240 PARTIES: EV (applicant) v SV (respondent) FILE NO: BS9192 of 2009 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 7 July 2010 DELIVERED AT: Brisbane HEARING DATE: 30 March 2010 JUDGE: Martin J ORDER: APPLICATION DISMISSED CATCHWORDS: FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the applicant and the respondent were living in a de facto relationship in the Czech Republic from 2002 to 2008 – where the couple travelled to Australia on a number of occasions during their relationship – whether the couple resided in Queensland – whether the applicant and respondent were in a de facto relationship to which Pt 19 of the Property Law Act 1974 (Qld) applies Property Law Act 1974 (Qld), s 286 B v T [2008] 1 Qd R 33 C v B [2007] 1 Qd R 212 Chung v McKinnirey [2003] QSC 190 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 VTMVS v MREM [2009] QSC 393 COUNSEL: S di Carlo for the applicant S Anderson for the respondent SOLICITORS: Provest Law for the applicant -- 1 of 10 -- 2 Anthony Black Family Law Services for the respondent [1] The applicant seeks property adjustment orders pursuant to Part 19 of the Property Law Act 1974 (Qld) (“the Act”). Section 286 of the Act relevantly provides: “286 Court may make property adjustment order (1) A court may make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interests of the de facto partners or a child of the de facto partners in the property. (2) In deciding what is just and equitable, a court must consider the matters mentioned in subsubdivision 3. (3) It does not matter whether the court has declared the title or rights in the property. (4) In this section-- adjust, for interests of persons in property, includes give an interest in the property to a person who had no previous interest in the property.” [2] On 26 October 2009 Atkinson J ordered that the question of whether this Court has jurisdiction to hear the application be tried as a preliminary issue. The respondent argues that the Court does not have jurisdiction because, although the parties were in a de facto relationship, they had never resided in Queensland. Background [3] The respondent is a resident and citizen of the Czech Republic. He lived in Australia from 1982 until he returned to the Czech Republic in or about early 2000 to develop land which he had inherited. While he was in Australia he acquired Australian citizenship. Prior to moving back to the Czech Republic the respondent sold all of his property in Australia. He has two daughters who also came to Australia but who remained and continue to live here now. [4] The applicant is a citizen of the Czech Republic. The applicant and respondent met in the Czech Republic in 2000 and lived together in that country, in a house owned by the respondent, from late 2002 until early April 2008 when the relationship ended. It is agreed that the couple lived in a ‘de facto relationship’ in the Czech Republic. The only property owned by the parties while they were in that relationship was situated in the Czech Republic. [5] After the parties ended their relationship, the respondent returned to Australia and, in January 2009, he purchased a home unit at the Gold Coast. The applicant has lodged a caveat over that property. [6] The applicant was not challenged on any of her affidavit material. [7] Mr di Carlo (who appeared for the applicant) cross-examined the respondent and his daughter who lives in Brisbane (“VE”). Much of the questioning of the respondent concerned: (a) whether or not he was, with the applicant, setting up or conducting a business of bringing Czech tourists to Australia; and -- 2 of 10 -- 3 (b) whether the respondent and the applicant had, over the course of time, left a large number of personal belongings with VE. [8] I will deal with those issues after I consider those periods of time in which both the applicant and the respondent were together in Queensland. Time in Queensland and Australia [9] In the period from late 2002 to April 2008 the parties were living in the respondent’s house in Zbuzany in the Czech Republic. In that same period, the parties travelled to Australia together and, on a number of occasions, came to Queensland. Most of these trips were of one to two months duration. [10] There was some minor debate about some of the periods during which the parties were in Australia. The relevant arrival and departure records of the respondent held by the Department of Immigration and Citizenship were in evidence and I am content to rely upon them. Between November 2001 and March 2008, the respondent spent some 44 weeks in Australia. Not all of this time was in Queensland and not all of this time was spent by the applicant and the respondent together. 30 November 2001 – 30 January 2002 [11] On this trip, the applicant and respondent did not travel to Australia together. The respondent contends that the purpose of this visit was to see his family and have a holiday; the applicant submits that the purpose was to establish accommodation for the couple and scout out itineraries for a travel business. 3 January 2003 – 13 February 2003 [12] The applicant and respondent visited the respondent’s older daughter in Perth. The couple went sightseeing in and around Perth, Kalgoorlie, Wave Rock, Albany, Margaret River, Geraldton and the Great Pinnacle deserts. They stayed with the respondent’s daughter’s family, in motels and other overnight accommodation. 14 January 2004 – 27 February 2004 [13] On this trip the respondent and applicant came with a group of nine friends. The party made a four week trip in a minibus from Brisbane to the Great Barrier Reef and then to Sydney. After returning the minivan the couple stayed with EV in Brisbane and then the respondent’s friend and former accountant (“HZ”) at the Gold Coast. 15 January 2005 – 27 February 2005 [14] On this occasion the couple stayed mostly with EV and also spent time with HZ on the Gold Coast. There was also a one week trip to New Zealand (from 13 February to 20 February) by the parties with HZ and his wife during that time. 20 November 2005 – 17 January 2006 [15] This was the second occasion that the couple visited Australia with a group of friends. This time, eight friends accompanied them from the Czech Republic and -- 3 of 10 -- 4 the group hired a minibus and spent four weeks driving from Brisbane to the Great Barrier Reef and then to Sydney. The friends returned to the Czech Republic on 12 December 2005 and the parties then drove the minibus to Brisbane and spent time with EV during which they also took trips to Caloundra and the Gold Coast. 22 January 2007 – 23 February 2007 [16] The applicant and respondent spent most of the time on this visit staying with the EV, but also visited HZ on the Gold Coast. 14 February 2008 – 29 March 2008 [17] This was the last trip that the couple made together to Australia. It was also the third occasion on which they were joined by a group, this time 19 people from the Czech Republic who were members of a fan club of two Czech singers, who had come to Australia to perform. The party left from Sydney, drove to Hervey Bay and visited Fraser Island and then the Gold Coast. The 19 people returned to the Czech Republic on 2 March 2008, after which the respondent and applicant returned the minibus to Sydney before flying to Brisbane and staying with EV. The couple then travelled to Caloundra and stayed there from 6 March 2008 until 15 March 2008. They then returned to Brisbane for a time before renting a unit on the Gold Coast for 9 days prior to returning to the Czech Republic on 29 March 2008. Did the applicant and respondent carry on a business? [18] In 2004 the applicant obtained a provisional resident visa. As part of that application, the applicant and the respondent submitted a joint-statement to Consular officials which indicated that they intended to move to Australia and work in the travel industry “bringing people from Europe to Australia and organising tours for an Australians [sic] to Europe.” [19] On a total of three occasions in 2004, 2005 and 2008 the applicant and respondent arranged for people from the Czech Republic to travel to Australia with them. The applicant contends that this was indicative of the applicant and respondent carrying on a business together. In cross-examination, the respondent denied this and stated that the trips were arranged for their friends, neighbours and, on one occasion, for friends and members of a musical fan club, who relied on the experience of the respondent who had lived in Australia for some 18 years. The respondent submits that the trips were not made for profit but rather were conducted merely with the expectation that the couple’s expenses would be met, and that he did this out of a sense of pride in showing the country to his friends. [20] The respondent had contemplated a travel business before moving back to the Czech Republic in 2000, however he faced problems with obtaining licences to work in the industry, which he claimed were prohibitively expensive. [21] The applicant claimed that on the couple’s first two trips to Australia, preliminary steps had been taken in preparation for starting a travel business such as identifying trip itineraries. She states that she had an active role in booking flights and attractions as part of the “business” while the couple travelled on the three occasions with other people from the Czech Republic. The respondent contends that the -- 4 of 10 -- 5 applicant was not helpful in this regard as she had a limited command of the English language and did not have the knowledge of the country that he himself possessed. [22] While there was much debate about the existence or otherwise of a business any conclusion as to whether one existed does not assist in determining the question before the Court. Whether the parties conducted a business or not might be relevant to whether they had some joint, but unexpressed, intention to eventually live in Australia; but it does not provide guidance on the point which, in my view, is essential – did the parties live in Queensland during their relationship? Living in Queensland [23] It was submitted by the applicant that the couple lived in Queensland and had made serious discussions about spending half the year in Australia and half in the Czech Republic. There was some evidence that the couple had attended property inspections to make preliminary enquiries in relation to purchasing a place to live in Queensland. The respondent denied this in cross-examination on the basis that he had attended such inspections due to his property development work in the Czech Republic. [24] The applicant claimed that the couple resided at HZ’s apartment at the Gold Coast and in “separate accommodation” within VE’s home in Brisbane. The applicant had her Australian mail sent to VE’s house while she was resident in Australia and stated that the couple had their own section in the house. [25] VE gave evidence that the applicant and her father would stay at her home when they visited Australia, but that she did not consider that they were “living” there. While the applicant contended that over time a number of significant pieces of personal property of her and the respondent had been moved in to VE’s home, VE said that all that was left behind after each visit was a small esky and fruit box of simple possessions. I accept the evidence of VE on all the aspects of the living arrangements at her house so far as the parties are concerned. The room used by the parties when they were in Australia was not reserved for their use. It was a room used generally by the family at all other times. [26] The applicant came to the Gold Coast in June 2008, after the couple had separated, to study English. The applicant claims that she had hoped the respondent would follow her to Australia and their relationship would be rekindled. [27] The respondent returned to Australia on 31 December 2008 and stayed until 15 January 2009, but did not make contact with the applicant. In January 2009 the respondent purchased a unit at Main Beach (with funds from the sale of a property in the Czech Republic) which he intends to live in when he retires. The applicant has lodged a caveat over this property. The respondent said that it is his intention to continue his work in the Czech Republic until he retires to Australia to be near his family. [28] While the applicant often referred to going “back to Queensland” in her affidavit materials, the evidence concerning the use of VE’s and HZ’s houses was substantially in favour of the conclusion that these were no more than ‘bases’ from which the respondent and applicant travelled while on holiday in Queensland. -- 5 of 10 -- 6 Jurisdiction [29] The question to be determined is the extent to which Part 19 of the Act can extend to the parties in these circumstances. The territorial limitations on State legislation have been considered in a number of cases. In Union Steamship Co. of Australia Pty Ltd v. King (1988) 166 CLR 1 the High Court said (at p 14): “And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s 2(1); Australia Act 1986 (UK), s 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That being so, the new dispensation may do no more than recognize what has already been achieved in the course of judicial decisions.” [30] This application is not directly concerned with an attempt to deal with property both outside the State. It is whether the application can be brought at all. The test to be applied is whether there is a sufficient nexus between the de facto relationship of the parties and Queensland for the provisions of Part 19 to apply. The relationship existed in the Czech Republic. But did it also exist in Queensland for the purposes of the Act? [31] The jurisdictional limits of Part 19 have been considered in a number of cases which I will now briefly review. Chung v McKinnirey [32] In Chung v McKinnirey [2003] QSC 190, the applicant brought proceedings against her former de facto partner. While she lived in Queensland when she commenced proceedings, her former partner had never lived in Queensland, nor did he have any assets in the state. In that instance, Ambrose J held that the Court did not have jurisdiction to hear the matter. C v B [33] In C v B [2007] 1 Qd R 212, McMurdo J considered the territorial jurisdiction of Part 19. His Honour held that: “[14] In all of this, there is no express provision as to the territorial operation of Part 19. It is not expressly confined to de facto relationships in which the parties had resided in Queensland, or had begun or ended their relationship in Queensland. Nor is it expressly provided that it applies according to whether one or both of the former partners is a Queensland resident when the proceeding is commenced. The term "property" and "financial resources" are used without any express territorial limitation, such -- 6 of 10 -- 7 as property within Queensland. Nor is the occurrence of some relevant contribution, including a financial contribution, made expressly relevant or irrelevant according to its connection with Queensland. [15] Some territorial limitation upon the operation of Part 19 must be implied. Part 19 cannot be understood as applying to the world, and to confer potential rights and impose potential obligations regardless of any connection with Queensland.” [34] In considering whether a visit to Queensland would establish residency for the purposes of the Act, his Honour held: “[22] In my view the implied territorial limitation is effectively that accepted in Baker v Johnston [unreported, de Jersey CJ, SC No 7262 of 2005, 30 September 2005]. The jurisdiction depends upon there having been a de facto relationship. Such a relationship is defined by a reference to a cohabitation. This essential element of cohabitation enables in every case an assessment to be made of the place or places in which the parties have been in a de facto relationship. The place of the relationship is where the partners live together, which involves the notion of residence. So a temporary visit together to Queensland would not involve them living together, i.e. residing, in this State. And just as a person can have more than one place of residence so there can be a de facto relationship which exists at one time in several places.” [35] His Honour held that there was an implied territorial limit on Pt 19 of the Act. B v T [36] In B v T [2008] 1 Qd R 33 Ann Lyons J considered territoriality: “[13] Pearce and Geddes in their treatise on Statutory Interpretation in Australia [Dennis Charles Pearce and Robert Stanley Geddes, Statutory Interpretation in Australia, 5th Edition Butterworths, Australia (2001) at 133] refer to the decision in Jumbunna Coal Mine NL v Victorian Coal Miners Association [(1908) 6 CLR 309 at 363]: ‘In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.’ [14] The authors however went on to state that this principle was based on the idea of comity of nations and that the legislature of one state is presumed not to deal with persons or matters the jurisdiction over which properly belongs to some other sovereign state but continued [Dennis Charles Pearce and Robert Stanley -- 7 of 10 -- 8 Geddes, Statutory Interpretation in Australia, 5 th Edition Butterworths, Australia (2001) at 133]: ‘However this principle carries less weight when considering the intended effect of the legislation of one Australian state in its operation in relation to another state. The concept of a federal system, the homogeneity of the population and the commonality of problems needing a common and cooperative solution point to a presumption being more readily displaced.’ … [16] It is important therefore to look at the legislative purpose of pt 19 and the context of the legislation. As McMurdo J. stated in C v. B: “Part 19 substantially enacts the recommendations of the Queensland Law Reform Commission in its report entitled De facto Relationships. The Commission discussed whether its proposed legislation should express some required nexus with Queensland. It referred to (what is now called) the Property (Relationships) Act 1984 (N.S.W.), which has requirements of residency in New South Wales on the day of the application and for a substantial period of the de facto relationship, or alternatively the fact of substantial contributions made in New South Wales by the applicant. The Commission recommended against any express requirement for some Queensland connection, saying that it could ‘have the practical result of limiting the jurisdiction otherwise available at common law’.” [17] It is clear that pursuant to s. 14B of the Acts Interpretation Act 1954 that to the extent that a provision is ambiguous or obscure, extrinsic material, including a report from a Law Reform Commission, can be referred to. In looking then at the QLRC Report and the Draft Legislation in particular the QLRC Report states: “Clause 3.1 of the Bill included in the Working Paper of the Commission set out prerequisites for making an order under Part 3, namely, one or both partners having lived in Queensland on the day of the application and one or both partners having lived together in Queensland for at least one year, substantial contributions of the kind referred to in clause 3.8(1) having been made in Queensland by the applicant or a substantial part of the partners’ assets or a substantial asset being situated in Queensland. The discussion of clause 3.1 in the Working Paper included examples which highlight the difficulties in formulating an appropriate clause. A submission received by the Commission on the De Facto Relation ships Working Paper suggested that clause 3.1 be -- 8 of 10 -- 9 deleted. The reasons provided for deleting clause 3.1 were persuasive. Firstly, it was suggested that inserting this clause would not fully utilise the legislative power of Queensland. Secondly, it was suggested that the failure to utilise that power fully could, in particular cases, cause injustice. That is, clause 3.1 may have the practical result of limiting the jurisdiction otherwise available at common law. For example, itinerant workers who move from State to State may satisfy the common law test, but not satisfy the provisions of clause 3.1. The third argument was that the need to prove those matters listed in clause 3.1 added unnecessary threshold issues to any proceedings commenced under the proposed legislation. If the respondent objects to the court’s jurisdiction then the court must be satisfied that is [sic] has jurisdiction. ‘In deciding whether to proceed with a matter or to stay it, the court is less likely to proceed where there is only a slight connection with the forum than where there is a substantial connection with it’.” [18] Accordingly when one looks at the precise words of the legislation it is apparent that s. 257(1) expressly states that the part applies to “all de facto relationships” except de facto relationships which ended prior to the section coming into force. I consider that the use of the word “all” together with the QLRC Report is a clear indication that the drafters intended to cover all de facto relationships. It is especially clear from the QLRC Report that it was intended to cover precisely the situation which applies here. That is, where you have highly mobile parties who have had a variety of addresses in a variety of states over a number of years and who in fact own property in a variety of states including Queensland. [19] Whilst there is nothing on the face of pt 19 which expressly requires the parties to have cohabited for any part of their relationship in Queensland McMurdo J. however held in C v. B that there is an implied territorial limit in that the parties must have resided together for at least part of their relationship in Queensland. This has occurred in the circumstances of the current case. The parties had a de facto relationship which commenced in Queensland and then they moved interstate.” VTMVS v MREM [37] In VTMVS v MREM [2009] QSC 393 I held: “[14] Part 19 should be given a wide operation. So much is accepted in many of the cases. But Part 19 operates upon the existence of a de facto relationship, not upon the situation of property owned by the parties to that relationship. Dealing with this in general terms then, to hold otherwise would be to assert -- 9 of 10 -- 10 jurisdiction over a relationship which had no connection with Queensland apart from the situation of, say, some minor real property in the State. I respectfully agree with the reasoning in C v B. In order for Part 19 to apply, the parties to a de facto relationship must have resided together in Queensland for, at least, some time during the course of their relationship. That requirement is not satisfied in this case.” [38] I see no cause to depart from that reasoning. The parties did come to Queensland and stayed in various places when they were here but could not be said to have resided here. They were on holidays; and their relationship with Queensland was no more than that of the many thousands of people who come to Queensland for a holiday. To hold otherwise would be to say that Part 19 applied to every couple in a de facto relationship who spent time on a vacation in this State. Appropriate order [39] The applicant and the respondent were not residents of Queensland during their relationship. Consequently Part 19 of the Act does not apply. The application is dismissed. I will hear the parties on costs. -- 10 of 10 --