Parallel lives after separation

Parallel lives after separation

SUMMARY – Applicant seeks declaration that parties defacto relationship existed prior to 1 March 2009 – Application dismissed – court accepts Respondent’s case that the parties conducted “parallel” lives after separation in 2005 – Court’s jurisdiction over defacto relationships did not commence until 1 March 2009

Phuona & Nghiem and Anor

1. In 2001 Mr Phuona (for convenience, I will refer to him as ‘the husband’) won $9,000,000.
2. At that time, his personal life was complex. He was a party in a long term de facto relationship with his then partner, Ms B (‘Ms B’). Concurrently, he was pursuing a friendship (and more) with Ms Nghiem (for convenience, I will refer to her as ‘the wife’). These two women claimed not to know of existence of the other, at that time. That state of blissful ignorance was soon to change. The wife at that time had the care of the second respondent, Ms Luc, a child from a relationship the wife had with another person. Ms Luc is now an adult and has been joined as a party to these proceedings.
3. Following the husband’s win:-
   1. In September 2001, the husband’s relationship with the wife was consummated;
   2. The husband married Ms B in 2001;
   100. Still later in 2001, Ms B and the wife discovered the existence and nature of their respective relationships with the husband. Not unexpectedly, Ms B and the husband separated;
   4. With some difficulty on the part of the wife, her relationship with the husband continued and in September 2002 they commenced living together full time in a de facto relationship;
   5. The husband and Ms B were divorced in December 2002;
   6. In August 2003, C was born (‘the parties’ elder child’);
   7. In February 2005, D (‘the parties’ younger child’) was born.
   8. The wife asserts that the parties’ relationship broke down as they had separated, although they lived together under the same roof as and from April/May 2005. This was said to have occurred shortly after the birth of the parties’ younger child;
   9. In December 2006, the husband and the wife each signed a document or documents purporting to be a ‘Separation Agreement’ pursuant to s 47 of the Property (Relationships) Act 1984 (NSW);
   10. On 1 March 2009 amendments to the Family Law Act 1975 (Cth) (‘the Act’) came into force. These amendments enabled courts exercising jurisdiction and power under the Act to exercise property and other financial jurisdiction with regard to property of parties to de facto relationships which ended or broke down on or after that date; and
   11. In June 2012, the husband left the former family home and he asserts that the parties’ relationship broke down at that time as a consequence of that physical separation.
4. By the time of this hearing all or almost all of the husband’s winnings have been dissipated, and he has little or no property available to him.
5. The threshold issue for this Court to determine is whether it has jurisdiction under the Act to entertain the husband’s applications for a property adjustment in respect of property owned by the wife. In addition, he has joined Ms Luc as a party to the proceedings and he seeks in various ways pursuant to the Act or by way of accrued jurisdiction to claw back real property acquired by Ms Luc pursuant to a trust created in 2001.

114. I am satisfied therefore that from April/May 2005 the parties lived together in the same property but it was not ‘common residence’. It was, if anything, a parallel residence where he lived his life and they lived theirs. There were some limited exchanges, bearing in mind that the parties had children together, such as from time to time the husband took the family to functions for the young children and the premises of the wife’s sister in late 2009.

132. I do not intend to repeat all of the evidence in these reasons however, I have had regard to all of the relevant the evidence. I am accordingly satisfied that as and from April/May 2005 the relationship of the parties as a couple living together, on a genuine domestic basis, ceased and did not at any time afterward resume. I find that their ‘parallel lives’ came to an end in mid 2012 in the method outlined by the wife.