ABROON & TALIZ

[2016] FamCA 1031

FAMILY COURT OF AUSTRALIA

ABROON & TALIZ [2016] FamCA 1031

FAMILY LAW – DE FACTO - application for a declaration of a de facto relationship - where the relationship was asserted to have sustained between 2000 and 2014 - where the respondent chose not to give evidence in chief about the nature and quality of the relationship between herself and the respondent in the period prior to 2009 - declaration that a de facto relationship existed between the parties.

FAMILY LAW – PRACTICE & PROCEDURE - referral of papers to the Australian Federal Police for consideration as to the commission of an offence - where a party admitted to having made false statements to Centrelink – where parties in receipt of a benefit while in a de facto relationship – where parties claimed to be single at the relevant time

Family Law Act 1975 (Cth)

Dahl & Hamblin (2011) FLC 93-480
Hayes v Marquis [2008] NSWCA 10
Jonah & White (2012) FLC 93-522
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Klintock & Ferder (2010) 43 Fam LR 135 (2010) FamCA162

APPLICANT: Mr Abroon

RESPONDENT: Ms Taliz

FILE NUMBER: PAC 585 of 2015

DATE DELIVERED: 2 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Parramatta

JUDGMENT OF: Carew J

HEARING DATE: 21 - 24 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

SOLICITOR FOR THE APPLICANT: Warren F Ball & Co

COUNSEL FOR THE RESPONDENT: Ms Friedlander (direct brief)

Orders

1. Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that the applicant and respondent lived together in a de facto relationship during the following periods:

   (a)From in or about April 2000 until in or about August 2005 (save for the period 4 to 6 February 2002); and

   (b)From in or about August 2006 until in or about 4 January 2009 (save for the period from late 2006 to January 2007); and

   (c)From in or about May 2009 until in or about January 2014 (save for the period late January 2011 to early February 2011).

2. It is further declared that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.

3. All outstanding interim applications are dismissed.

4. The matter shall be listed before a Registrar for trial directions.

5. It is directed that a Registrar of this Honourable Court send the following documents to the Chambers of the Chief Justice of the Family Court of Australia for consideration as to whether this matter should be referred to the Australian Federal Police for investigation of the commission of a possible offence committed by Mr Abroon and/or Ms Taliz in relation to the receipt by them of any pension, allowance or benefit at a time when they were living together in a de facto relationship but claimed to be single:

   (a)       This Order dated 2 December 2016;

   (b)       The Reasons for Judgment dated 2 December 2016;

   (c)Paragraphs 139 to 142 (inclusive) of the affidavit sworn by Mr Abroon on 16 October 2016 and filed in this Honourable Court on 20 October 2016;

   (d)Pages 190 to 214 of the affidavit sworn by Mr Abroon on 16 October 2016 and filed in this Honourable Court on 20 October 2016;

   (e)       Exhibit 6;

   (f)       Transcript of evidence given by Mr Abroon on 22 November 2016 between 9:07am and 9:12am and 11:18am and 11:19am; and

   (g)       Transcript of submissions by counsel for Mr Abroon on 24 November 2016 between 12:02pm and 12:04pm.

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 Abroon & Taliz 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

FILE NUMBER: PAC 585 of 2015

Mr Abroon

Applicant

And

Ms Taliz

Respondent

REASONS FOR JUDGMENT

1. Mr Abroon (“the applicant”) has commenced proceedings for property settlement[1] arising out of an alleged de facto relationship with Ms Taliz (“the respondent”). The applicant is seeking a declaration that he and the respondent lived together in a de facto relationship for various periods commencing in April 2000 and finally ending in January 2014, the aggregate of those periods being in excess of two years.[2]

   [1] Pursuant to s 90SM of the Family Law Act 1975 (Cth)

   [2]Dahl & Hamblin (2011) FLC 93-480

2. The respondent submits through her counsel, Ms Friedlander, that there never was a de facto relationship and seeks an order that the application for a declaration be dismissed.

3. The hearing before me was limited to the enquiry of whether a de facto relationship existed with final separation occurring after 1 March 2009.

4. Curiously, the respondent’s affidavit of evidence in chief does not address the period prior to 2009 at all. No application was made to adduce further evidence in chief and in particular no evidence in reply was provided to the detailed evidence given by the applicant as to the nature of the relationship prior to 2009. The respondent’s evidence in relation to that period is therefore limited to her answers given in cross-examination and the evidence of her supporting witnesses.

Relevant background

1. The applicant is fifty-four years of age and employed in the building industry on the Gold Coast, Queensland. He was born in Europe and came to Australia under a false passport in the name of Mr A in early 2000. He claims to have been a political refugee.

2. On 23 February 2000 he entered into a six months residential tenancy agreement using the name Mr B for premises at C Street, Suburb D.

3. At some point in or about the early 2000’s he became known as Mr Abroon or “AB” for short.

4. The respondent is fifty-one years of age and has been in receipt of a disability support pension since 2014. She was born in the Middle East and migrated to Australia in the late 1960’s.

5. At the time the applicant and respondent met in or about April 2000 the respondent had been living in rented premises at E Street, Suburb F (“Suburb F”) since 11 January 1997.

6. It is common ground[3] that the applicant and respondent lived in the same residence for at least five years, ten months and eighteen days during the following periods:

   [3] Exhibit 35

   a)From 3 December 2003 at G Street, Suburb H Western Australia (“WA”);

   b)2004 to October 2005 at 1 H Street, Perth WA;

   c)April to May 2006 at 2 H Street, Perth WA;

   d)August 2006 to 4 January 2009 at 2 H Street, Perth WA;

   e)Approximately 18 May 2009 to 24 May 2009 while travelling in I Town WA and L Town, Northern Territory (“NT”);

   f)3 June 2009 to 8 June 2009 in Queensland (“Qld”) in various hotels;

   g)21 to 22 August 2010 at J Street, Suburb K Qld;

   h)5 October 2010 to 6 December 2010 at J Street, Suburb K Qld;

   i)19 to 24 January 2011 at J Street, Suburb K Qld;

   j)1 January 2012 to 30 July 2012 at M Street, Suburb N New South Wales (“NSW”);

   k)18 August 2012 to April 2013.

7. There are no children born to the relationship.

8. The respondent has a child, Mr O who was born in 1989 and it is agreed that Mr O lived in the same residence as the parties at least in Perth during the period January 2007 until in or about October 2008.

9. It is common ground that the parties have known each other since 2000 and had a sexual relationship for a period up to at least October 2005. They remained at least friends up until 2014.

10. The parties never had a joint bank account, never owned property in joint names and never borrowed money in joint names. It is also common ground that the respondent ‘advanced’ certain sums of money to the applicant but it is disputed whether such sums were loans (as contended by the respondent) or a contribution to their joint endeavours from a variety of sources (as contended by the applicant).

The jurisdictional facts

1. The jurisdiction to make any order pursuant to s 90SM of the Family Law Act1975 (Cth) (“the Act”) is dependent upon findings of fact as follows:

   a)That there was a de facto relationship that did not break down (on a final basis) before 1 March 2009; and

   b)That the aggregate period of the de facto relationship was at least two years or one of the parties made substantial contributions of a kind mentioned in subsection 90SM(4)(a), (b) or (c) and a failure to make an order would result in serious injustice to the applicant;[4] and

   c)That at least one party was ordinarily resident in a participating jurisdiction[5] when the application for an order or declaration was made and either, both parties were ordinarily resident in a participating jurisdiction for at least one third of the de facto relationship or the applicant made substantial contributions in a participating jurisdiction; or in the alternative

   d)That the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down; and

   e)That the application is brought within two years of the breakdown of the relationship.

   [4] s 90SB of the Act, the alternative factual basis not being one agitated during this hearing

   [5] All States and Territories are participating jurisdictions save for Western Australia

2. Although not specifically addressed, the jurisdictional facts that appear to be relied upon by the applicant are as follows:

   a)That there was a de facto relationship from in or about April 2000 until January 2014 (save for a certain periods of separation prior to the final separation); and

   b)That the aggregate period was at least two years; and

   c)That the applicant was ordinarily resident in a participating jurisdiction when the application was filed and that both parties were ordinarily resident in a participating jurisdiction for at least one third of the de facto relationship or in the alternative that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down; and

   d)The application was brought within two years of the relationship breaking down.

3. Again, although not specifically addressed, the respondent presumably contends there is no jurisdiction because there was never a de facto relationship.               

What is a de facto relationship?

1. Section 4AA of the Act relevantly provides as follows:

   Meaning of  de facto relationship

   (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)… 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)…;

   (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)…;  

   (b)a de facto relationship can exist even if one of the persons is … in another de facto relationship.

   …

2. Whether or not the parties lived in a de facto relationship is a question of fact to be determined by the Court.[6]

   [6]Jonah & White (2012) FLC 93-522; Hayes v Marquis [2008] NSWCA 10

3. The parties will be found to have been living in a de facto relationship if, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. No particular finding is a prerequisite e.g. it is not necessary for the parties to have lived in the same home for the entire period.

4. The focus of the enquiry is as to the ‘nature and quality of the asserted relationship’.[7]

   [7]Jonah &White (2012) FLC 93-522

The court’s power to grant declaratory relief

1. Section 90RD relevantly provides:

   Declarations about existence of de facto relationships

   (1)If:

   (a)an application is made for an order under … 90SM, … and

   (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;

   the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.

   (2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

   (a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

   (b)…;

   (c)…;

   (d)when the de facto relationship ended;

   (e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

2. As the jurisdiction of the Court to make a declaration is only for the purposes of the primary proceedings, (in this case being the s 90SM proceedings), the Court does not have jurisdiction to make a declaration (other than that a de facto relationship never existed) if final separation occurred prior to 1 March 2009.[8] It does seem curious that this provision appears to indicate that the Court can make a declaration that a de facto relationship never existed when the jurisdictional basis for granting declaratory relief is absent. It might be thought sufficient to simply dismiss the application for a declaration which is what the respondent seeks in this case.  

   [8] For a discussion of the jurisdictional limitations where the court’s accrued jurisdiction is sought to be relied upon see Klintock & Ferder (2010) 43 Fam LR 135; (2010) FamCA162 per Cronin J

Geographical requirement

1. Section 90SK relevantly provides:

   (1)A court may make a declaration under … section 90SM, in relation to a de facto relationship only if the court is satisfied:

   (a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and

   (b)that either:

   (i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

   (ii)the applicant for the declaration … made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

   in one or more States or Territories that are participating jurisdictions at the application time;

   or that the alternative condition in subsection (1A) is met.
   (1A)  The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

   (6)For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship.

   …

Applicant’s case

1. The applicant relied upon the following material:

   a)Amended Initiating Application filed 20 October 2016;

   b)Affidavit of Mr Abroon filed 20 October 2016;

   c)Affidavit of Mr P filed 20 October 2016;

   d)Affidavit of Mr Q filed 28 October 2016; and

   e)Case outline filed 16 November 2016.

2. The applicant seeks a declaration that he and the respondent lived together in a de facto relationship that commenced in or about April 2000 and broke down in or about January 2014 at Suburb N Sydney (save for periods when the parties were separated between the following dates: 4 February 2002 to 6 February 2002; August 2005 to April 2006; late December 2006 to late January 2007; 1 January 2009 to mid-April 2009; late January/early February 2011 for two days).

3. He contends that the circumstances of their relationship were as follows:

   a)The duration of the relationship was approximately twelve years, one month and nineteen days;

   b)They shared a residence for most of the relationship;

   c)They had an enduring sexual relationship;

   d)They operated businesses together;

   e)They each received a wage from the businesses;

   f)His wage was used to pay inter alia mortgages in his name, rent, electricity, telephone, entertainment, groceries, day to day living expenses for himself, the respondent and Mr O (when Mr O lived with them) while the respondent’s wage was used to pay inter alia her mortgages and other personal expenses;

   g)Property was purchased in their respective names in order to provide asset protection;

   h)They each lived in property owned by the other from time to time and jointly operated various businesses in the name of the applicant;

   i)They socialised together and planned their future together;

   j)When Mr O lived with them the applicant treated him like a son;

   k)Their friends regarded them as a couple and they referred to each other as ‘husband’ and ‘wife’.

Respondent’s case

1. The respondent relied on the following material:

   a)Further Amended Response filed 10 November 2016;

   b)Affidavit of Ms Taliz filed 11 November 2015;

   c)Affidavit of Mr O filed 27 October 2016;

   d)Affidavit of Mr R filed 28 October 2016;

   e)Affidavit of Ms S filed 28 October 2016; and

   f)Case outline filed 14 November 2016.

2. The respondent contends, through her counsel, that there was never a de facto relationship. The relationship she had with the applicant was that of girlfriend/boyfriend for a period up to October 2005 and thereafter as friends up until 2014.

3. The respondent says that she was in a relationship with another man, Mr T for four years from 2009 (although he lived in the Middle East and she lived in Australia and visited him in the Middle East on occasions) and has been in a relationship with another man, Mr U, since August 2014. Mr T was not called as a witness in the respondent’s case nor was an explanation for his absence proffered. I am entitled to infer that his evidence would not have been supportive of the respondent’s case[9] but even if the respondent was in a relationship with Mr T it would not preclude her being in a de facto relationship with the applicant. 

   [9]Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

4. The respondent contends that the various photos (which were retrieved by the applicant from her camera) of her and the applicant were merely indicative of friendship. She disputes that her parents regarded her and the applicant to be a couple living together on a genuine domestic basis. Her parents, although present in court from time to time, were not called as witnesses in her case nor was an explanation for their absence proffered. I am entitled to infer that their evidence would not have been supportive of the respondent’s case.[10]

   [10]Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

1. The respondent maintained that any money provided to the applicant was by way of loan that was repaid apart from the $25,000 lent to him in 2011. She asserts that she permitted the applicant to live at her home at Suburb N because she felt sorry for him and agreed to his carrying out certain improvements to her property by way of repaying his debt.

2. She was not involved in the various businesses established by the applicant from time to time save for ‘helping out’ and being employed in them for short periods.

The various periods during which it is contended by the applicant that a de facto relationship existed

April 2000 to 4 February 2002

1. The respondent gave no evidence in chief in relation to this period.

2. The applicant says that he and the respondent lived together at the respondent’s rented premises at Suburb F, NSW during this time and that he sub-let his rented premises at V Street, Suburb W NSW.

3. They had a sexual relationship. The respondent did not challenge this allegation.

4. They jointly worked in the business he had established called Company 1 at premises at Suburb X and each drew a wage. Until the respondent finished working full time in August 2001 at Company Y she did the books on weekends and at night. There are no business records from this time, the applicant alleging the respondent disposed of all his records up to 2007. The respondent did not challenge this allegation. The applicant describes his early reliance on the respondent due to his poor command of English.

5. The applicant says he paid the rent for Suburb F, electricity and telephone. While calling for any documents in support of this assertion the applicant was not specifically challenged.

6. The respondent contributed capital to the business although her name did not appear on any paperwork.

7. The applicant says they enjoyed their life together while living at Suburb F and describes in detail their daily life during this time. He contends they ate at cafés and restaurants regularly and he paid for such outings. The respondent attended to all of the domestic tasks including doing all of the applicant’s washing and ironing. Mr O was a regular member of the two bedroom household, spending time with his father when not living with them. The applicant describes regular socialising with the respondent’s parents. He says he spent time with Mr O teaching him mathematics and about computers. He describes Mr O’s enjoyment of drawing and playing video games.    

8. The applicant recounts a joint decision for the respondent to give up her work at Company Y and work in Company 1 full time. He also recounts a joint decision for the respondent to buy a unit at AA Street, Suburb Z NSW (“the Suburb Z property”) from her parents as an investment. The Suburb Z property was purchased for $90,000 in August 2000 in the respondent’s sole name with a mortgage in her sole name from the Commonwealth Bank of Australia (“CBA”). The respondent’s father and the applicant carried out some renovations, which were paid for from the business income. The property was rented out. The applicant and respondent worked hard in the business for their mutual benefit. The respondent had complete control over the business finances.

9. The business premises were relocated to BB Street, Suburb X (“the Suburb X shop”). This was a joint decision. Another property leased at CC Street, Suburb DD noted the applicant’s address as Suburb F.

10. An altercation between the applicant and respondent occurred on 4 February 2002 at the Suburb X shop. The applicant says the argument occurred over the respondent’s jealousy of an employee and her accusation that he was having an affair. The applicant told the respondent he had had enough and she could keep the Suburb Z property and he would keep the business. The respondent said she wanted half the business as well as the Suburb Z property. The police were called. The police records show the applicant’s Suburb W address as the residential address for both of them. The following relevant narrative is included in the police records:

    … [the respondent] stated she had bought into the business and had every right to be there.

    [she] stated her and [the applicant] had been in a de facto relationship for 2 years. [The applicant] has in that time opened his own business, at the above location, [the respondent] has bought into the business although her name does not appear on the paperwork.

    [she] then stated her and [the applicant] were also living together but as their relationship is now folded they are no longer living together.

11. The respondent’s only evidence in response to the content of the police record was to say that she was under “duress” and does not know what she might have said to police at that time.

12. Mr O provided an affidavit typed by the respondent and for which he says she assisted him to remember relevant evidence. As to this period he says he has no memories of the applicant. He was twelve years old at the time. During his oral evidence he demonstrated an extreme reluctance to give any evidence and mostly responded to questions by stating that he did not recall. He seemed to have a very poor memory even of the contents of his own affidavit.

13. The respondent’s brother, Mr R Taliz, provided an affidavit typed by the respondent (with the same repetition of paragraph numbers as appears in Mr O’s affidavit) and for which he says she assisted him to remember relevant evidence. It was her idea to break the affidavit up into particular date periods. He was a rare visitor to the Suburb F property but recalls the respondent and Mr O visiting him. He does not recall seeing the applicant at Suburb F and says the applicant never came to his home. He does recall the applicant and respondent being in a romantic relationship in about 2002 and recalls the respondent calling him during an altercation she was having with the applicant at the Suburb X shop. He has never liked the applicant since that time.

14. There is nothing in the applicant’s evidence that I would regard as glaringly improbable or fanciful.[11] It was in some respects corroborated by the statements made by the respondent to police on 4 February 2002, which I find were made by her and to some extent by Mr R Taliz. I accept the applicant’s evidence.  

    [11]Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ.

6 February 2002 to August 2005

1. The respondent gave no evidence in chief in relation to this period.

2. The applicant contends that after the altercation at the Suburb X shop he left Suburb F the following day with his belongings and rented a unit at EE Street, Suburb X.

3. They reconciled the day after and then lived between the two properties for a short period before the applicant terminated his two leases viz EE Street and Suburb W. Company 1 was sold and they jointly discussed moving to another State where overheads might be cheaper. They travelled to Brisbane, Melbourne and Perth together in search of business premises and settled on Perth. Upon returning to Sydney the applicant loaded up his car in or about March 2002 and drove to Perth. The respondent terminated her lease on Suburb F and moved into the Suburb Z property. The applicant says the respondent moved to Perth to join him within a few months and moved into rented premises with him at G Street, Suburb H (“G Street”). The Suburb Z property sold on 22 January 2004.

4. Company 1 was set up in FF Street, Perth WA and both the applicant and the respondent worked in the business, each drawing a wage. Exhibit 14 is a business card for the respondent that describes her as ‘managing director’ of Company 1 at its FF Street address. Mr O did not move to Perth at this time and lived with his father in Sydney. He gave evidence that when his mother did move to Perth the “first time” he was unhappy with her and would have preferred her to stay in Sydney. He moved to Perth in or about January 2007.

5. The applicant contends that as the respondent owed money to her parents for the Suburb Z property, her wage was used to repay her parents and her mortgage and his wage paid their rent and living expenses. There is no evidence that the respondent worked anywhere else after August 2001 when she left Company Y until she commenced her own business in Perth in or about September 2006. It is common ground that the respondent did not pay rent at any time she lived in Perth.

6. Again the applicant provides a detailed account of daily life with the respondent. Their sexual relationship continued. They cohabited. They socialised together and made plans for their future.

7. The applicant says that he and the respondent referred to each other as ‘husband’ and ‘wife’.

8. He says they jointly inspected and decided to rent a penthouse at 1 H Street.

9. The applicant says that he and the respondent made a joint decision to open another shop. GG Pty Ltd was established in his name to operate the shop. He explains that they kept things in separate names as an asset protection measure.

10. GG Pty Ltd (the business) was established in HH Street, Perth. They both worked in the business with the respondent maintaining all the book work.

11. They had a falling out over the proposed purchase of a home at II Street, Suburb JJ WA and separated under the one roof for a period. The respondent wanted to buy the house but the applicant did not. The applicant says this was in August 2005 however exhibit 3 indicates the proposed purchase was in February 2004. The respondent lost her deposit when she pulled out of the purchase at the applicant’s insistence. In any event, the applicant maintains that they did not separate until 2005 and that the respondent demanded her share in the business back. She was paid $60,000 on 5 October 2005 and returned to Sydney. The applicant and respondent agree that the respondent returned to live in Sydney in October 2005 and that she was paid $60,000 by the applicant.

12. Mr O says that he commenced to live full time with his father in 2004 when his mother moved to Perth. He visited Perth in the three years from 2004 to 2006 but has few memories of seeing the applicant. He did not like him and says when he did see him, he would be arriving home late and drunk. He remembers going to see a house that his mother wanted to buy. I do not regard Mr O as a reliable witness as to the date when his mother moved to Perth the first time. He also states that he was still visiting Perth throughout 2006 when both the applicant and respondent agree that the respondent returned to live in Sydney in October 2005 and did not return to Perth to live permanently until August 2006.

13. There is nothing in the applicant’s evidence that I would regard as glaringly improbable or fanciful. While his memory of dates may not be precisely accurate I largely accept his evidence.

April 2006 to December 2006

1. The applicant contends the respondent was unhappy living with her parents in Sydney and wanted to reconcile. The respondent did come back to Perth in April 2006 and stayed for two months with the applicant. The applicant says they reconciled at this time but the respondent returned to Sydney and did not return until August 2006. At that time, they bought a large six bedroom home at 2 H Street, Perth in the joint names of the applicant and a third party and the applicant and respondent set about renovating it together. The respondent made curtains and selected furniture and décor. The respondent did all of the household chores. They socialised together and entertained at the home.

2. Mr P gave evidence of the applicant showing him the property which had a number of bedrooms and noting the only one with furniture was the main bedroom. He said that in his experience the applicant never made his bed so he particularly recalls it being made and the room looking very nice. He therefore accepted as truthful the applicant’s statement that the main bedroom was used by both the applicant and respondent.

3. GG Pty Ltd moved premises to KK Street, Perth and the respondent established a business called Company 2 in September 2006 using the premises at FF Street formerly occupied by GG Pty Ltd. The applicant says he continued to pay the rent for FF Street as Company 2 did not make enough to do so. Company 2 closed its doors after about six months but the rent on FF Street had to be paid for several further months until the end of the lease.

4. Exhibit 18 shows the respondent as a ‘manager’ of the GG Pty Ltd business and the contact person for an application for a CBA merchant number for the business as at 26 September 2006.

5. Exhibit 19 shows the respondent as the contact person in relation to an application for an American Express merchant number for GG Pty Ltd as at 3 October 2006.

6. In October 2006 the applicant needed cash flow and the respondent agreed to advance $60,000 to GG Pty Ltd from savings in her sole name on condition that the applicant guaranteed the loan. The applicant says the respondent was frightened she might lose the money if it was just paid to GG Pty Ltd. Page 57 of the applicant’s affidavit is a copy of a loan agreement signed by the applicant and respondent for $50,000 plus eight percent interest signed on 3 November 2006. This is the only loan agreement signed at any time between the applicant and respondent.

7. In December 2006 there was a physical altercation at the GG Pty Ltd shop between the respondent and a female employee who the respondent accused of having an affair with the applicant. The applicant and respondent separated under the same roof after this incident. In or about late 2006 or early 2007 the applicant went on a holiday and had a holiday romance with a woman while he was there. The applicant and respondent reconciled in or about February 2007.

8. Ms S, the respondent’s life time girlfriend, recalls a number of telephone conversations with the respondent during this time and also in 2003 or 2004 in which the respondent complained about the applicant’s infidelity.

9. The respondent concedes that three people they socialised with in Perth, Mr P, Mr LL and his partner Ms MM would have perceived them to be a couple.

10. Again there is nothing in the applicant’s evidence that I would regard as glaringly improbable or fanciful. The description of their relationship is consistent with earlier periods with the respondent performing all domestic tasks and their mutual enjoyment of society together. I largely accept the applicant’s evidence, which is corroborated in some respects by Mr P.  The evidence from Ms S is corroborative of there being an ongoing romantic relationship between the applicant and the respondent. If the applicant and respondent were merely friends, the respondent would not have been complaining about the applicant’s infidelity. To the extent the cross-examination of the applicant suggested that the respondent only returned to Perth to set up a business, such a scenario is glaringly improbable. She left her family and importantly, her son Mr O and would be unlikely to have done so but for her resumption of her relationship with the applicant. I also note the evidence of Ms S that the respondent did not mention to her that she was going back to Perth to set up a business but rather she preferred the lifestyle and affordability.

February 2007 to 31 December 2008

1. Mr O came to live with the applicant and respondent in January 2007. He says his mother was in a separate bedroom to the applicant. He says that the applicant constantly reminded him and his mother about his kindness in not making them pay board. He says he and his mother helped with some labour while the house was renovated. He says his mother was busy with her own business, Company 2.

2. Mr O worked at GG Pty Ltd for a short period and received wages on 12 January 2007 of $400 and on 10 March 2007 of $600. Mr O could not recall having worked at GG Pty Ltd at all despite having affirmed an affidavit only a month earlier stating he had worked there for one week. After the morning tea adjournment Mr O had read his affidavit and ‘remembered’ that he had worked there for a week by reference to the PAYG statement annexed to his affidavit. The PAYG statement appears to have been signed by the respondent on 9 July 2007. Mr O did not seem to have any knowledge of that document until after he returned from the adjournment. Mr O was at pains not to say anything that might be detrimental to his mother’s case. In my view, his mother’s ‘assistance’ with his affidavit has tainted most of his evidence which I regard as largely unreliable.

3. In July 2007 the respondent obtained a medical insurance policy for herself, the applicant and Mr O. She concedes the applicant paid the premiums for this joint policy.    

4. The respondent operated her business Company 2 until about mid-2007. There is no evidence that the respondent thereafter earned a full time income other than from the various businesses owned by the applicant until she commenced work for Company NN in March 2011 although there was some evidence that the respondent worked for a period in 2009 and part time for a business called Company OO in or about the first half of 2010.

5. In or about June 2007 the applicant says that he and the respondent decided to buy out the other owner of 2 H Street. He borrowed the necessary funds in his sole name and the respondent contributed $120,000 from savings she had in her sole name. The precise financial dealings surrounding this acquisition are somewhat unclear but not relevant in my view for present purposes. The respondent gave evidence that the parties discussed turning the home into a bed and breakfast business.

6. In January 2008 the applicant bought established a company called PP Pty Ltd which traded as QQ. The respondent was not included in any of the paperwork but did the books and worked in the business while continuing to do the book work for GG Pty Ltd. They each drew the same wage. The applicant’s wage paid the mortgage and household expenses. In July 2008 GG Pty Ltd was sold.

7. Exhibit 29 demonstrates the respondent’s involvement in the operation of the business in the reconciliation of bank statements over the period 2007 and 2008. The initials on those statements were conceded by the respondent to be hers.

8. In September 2008 a half share in the business, then known as RR, was sold to a third party. The business was operated through a new company called SS Pty Ltd.

9. In or about October 2008 the applicant sold the property at 2 H Street and gave $250,000 of the proceeds to the respondent to make her ‘feel secure’ given the recent stock market crash. Again the precise details surrounding this sale are unclear.

10. The applicant and respondent had a disagreement about the operation of the business on 29 December 2008. As a consequence the applicant and respondent separated and the respondent moved back to Sydney on 4 January 2009, Mr O having moved back to Sydney about three months before.

11. The applicant commenced a new relationship with a woman called Ms TT in or about January 2009. They opened a joint bank account and went travelling together in Australia. I accept they ended their relationship in early April 2009 (although the joint account remained open until March 2010).

12. It appears the applicant may then have rented a property at UU Street, Suburb H and that maintained that residence until he relocated to Suburb K in Queensland in or about 2009.

13. There is nothing in the applicant’s evidence that I would regard as glaringly improbable or fanciful. I largely accept his evidence as to the nature and quality of the relationship.

Mid-April 2009 to January 2011

1. The respondent lived with her parents in VV Street, Suburb WW when she returned to Sydney on 4 January 2009 until about February 2010.

2. The respondent concedes that she met up with the applicant during April and May 2009 and travelled with him sleeping in the car or in hotels. She maintains they shared a room but not a bed. I do not accept her evidence on this point and prefer the evidence of the applicant that they shared a bed when not sleeping in the car together.

1. The respondent’s Facebook communication from her son, Mr O, says on 22 May 2009:

   Its been 2 days now, yur stupid phones are off, and im starting to think yuve gone somewhere, either back to that dickhead in perth or gone to [the Middle East], …

   (errors in original)

2. It is apparent from this communication with the respondent that Mr O did not approve of his mother’s relationship with the applicant. It is also apparent from the evidence given by Mr Taliz and Ms S that they did not approve of the respondent’s relationship with the applicant and I find it is likely she misrepresented the nature of her relationship to them, to the extent she provided any information at all.

3. On or about 25 May 2009 the applicant paid for an airfare for the respondent to travel from L Town to Sydney for the purpose of explaining the reconciliation to her family. The respondent flew to XX Town on 2 June 2009 and the applicant and respondent stayed together at the YY Hotel in XX Town.

4. In May 2009 the applicant sold his share of the RR business in Perth.

5. Between 7 July 2009 and 9 September 2009 the respondent was in the Middle East. If she did form a relationship with Mr T she did not inform anyone else and was telephoning the applicant professing her love for him.

6. The applicant returned to Perth and accepted a job as a manager. He and the respondent talked about him working in Perth for a further period and then returning to Sydney. Upon the respondent’s return from the Middle East in September the applicant jointed her in Sydney and they stayed together at the ZZ Hotel. They discussed plans for the future and in particular about the respondent purchasing a house for them in Sydney.

7. On 23 November 2009 the respondent signed a contract for the purchase of LA Street, Suburb IN NSW (“Suburb IN property”) in her sole name for $400,000 borrowing $212,600 from CBA in her sole name. The purchase settled on 29 January 2010. Until settlement the respondent continued to live with her parents at VV Street, Suburb WW. The respondent lived at the Suburb IN property from time to time from February 2010 until its sale in about January 2011. Mr O was living elsewhere. The applicant lived in the Suburb IN property from in about April when he moved to Sydney from Perth until he purchased the business in Suburb K. The applicant describes in detail their day to day life together. Correspondence is addressed to the applicant at this address at this time.

8. The parties discussed establishing another business together and finally decided. The applicant set up a company called LD Pty Ltd to effect the purchase of the SRB in Suburb K Queensland. The respondent was not included in any of the paper work although she ‘advanced’ $25,000 from money in her control towards the establishment of the business in or about August 2010.

9. The respondent lived with the applicant in Suburb K from time to time and in particular from in or about August 2010 until about January 2011. I accept the applicant’s evidence that they shared a bedroom and had a sexual relationship. During this time the respondent was employed at the SRB in Suburb K from in or about October 2010 and the respondent and applicant drew the same wage from the business. I accept they discussed selling the Suburb IN property and buying one in Suburb K. On 27 January 2011 the Suburb IN property was sold for $460,236.24

10. The applicant also travelled to Sydney from time to time and lived with the respondent at the Suburb IN property. The photos of the parties sitting by the pool at that residence depict a happy couple. The poses are intimate and I reject the respondent’s evidence that the photos were taken in or about July or August 2011 given the clothing worn by them indicate the photos was taken during the summer months and I also reject that the photos depict their mere friendship. 

11. The respondent returned to Sydney in or about early January 2011 after another argument about the applicant’s alleged infidelity.

12. While the applicant’s memory of dates may not be precisely accurate I largely prefer his evidence where it conflicts with the respondent. The respondent demonstrated a preparedness to tailor her evidence to suit her case that they were just friends. In doing so her evidence became on occasion implausible.    

February 2011 to January 2014

1. There was a further reconciliation when the applicant agreed to sell his interest in the Suburb K business and return to live in Sydney permanently.

2. On or about 24 March 2011 the property at M Street, Suburb N NSW (“Suburb N property”) was purchased in the respondent’s sole name for $390,000 with a mortgage of $225,428 to CBA. The applicant provided a letter dated 10 January 2011 confirming the respondent was employed at the business in Suburb K.

3. The respondent contends that she had already finished at the business by 10 January 2011 when the letter was written. If that is so, she was prepared to mislead the Bank in order to obtain the loan. I find it more probable that she continued to do the book work for the Suburb K business and was employed and intending to remain employed at the time of the letter to the Bank from the applicant.

4. In or about May 2011 the applicant sold his interest in the Suburb K business to the other partners and at some time shortly thereafter returned permanently to Sydney and lived with the respondent at the Suburb N property.

5. The applicant again describes their life together in detail. It is consistent with his earlier descriptions of how they cohabitated and shared their life together. Mr O was living with his father but spent some days of each week at the Suburb N property and recalls seeing the applicant at least three or four times per month at that property.

6. Various photos depict family meals being enjoyed with various members of the respondent’s family including Mr O. Further photos depict intimate poses between the applicant and respondent consistent with an ongoing romantic relationship.

7. On 21 March 2011 the respondent obtained employment at Company NN in Sydney in their accounts administration section. This was at a time when the parties had agreed to sell the Suburb K business and for the applicant to return to live in Sydney with the respondent.

8. Upon his return to Sydney the applicant had considerable debt principally to banks on his credit cards. He could not obtain any further credit so the respondent obtained a secondary credit card for him on her CBA Mastercard in or about 2012. Interestingly, this was not something disclosed by the respondent in her material and I find that she failed to disclose it as it was not something that would have assisted her case.

9. While the respondent disputes the applicant lived in the Suburb N property for the period alleged by him she offers no specifics as to when he did live there and when he did not. In support of his contention that the Suburb N property was his only home during this time, the applicant relies upon postal communications sent to him at the Suburb N property address as follows: 

   a)Citibank dated 20 January 2012;

   b)Citibank dated 25 January 2012;

   c)NAB credit card statement for the period commencing 28 April 2012;

   d)ANZ credit card statement for the period commencing 12 December 2011;

   e)ANZ credit card statement for the period commencing 18 May 2011;

   f)Virgin Australia dated 20 August 2012;

   g)CBA dated 10 September 2012;

   h)CD Auctions for the period commencing May 2012;

   i)Centrelink dated 26 November 2012 noting applicant and respondent living in same house;

   j)Centrelink dated 21 December 2012; and

   k)Company DE to respondent at M Street Suburb N 26 March 2013.

10. The respondent relies upon a Centrelink form completed and signed by her on 29 November 2012 stating that she is not and has never lived in a de facto relationship with the applicant. The applicant says that he refused to sign a similar form that the respondent had completed for him stating that he and the respondent had never lived in a de facto relationship. He refers to the discussions he had with the respondent where she admitted to making a false claim so that she could receive a benefit from Centrelink and referred to other members of her family who had done the same thing and never been found out.

11. The respondent produced for the first time during the cross examination of the applicant a Centrelink document indicating that the applicant represented he was single as at 26 November 2012. While stating the document had been completed by the respondent, the applicant candidly admitted through his counsel (specific instructions having been obtained) that he had made that representation knowing it to be false at the time. No application for a certificate against self-incrimination was sought.   

12. The applicant was on a Centrelink Newstart Allowance for about seven months in 2012.

13. In January 2014 the applicant says he became suspicious that the respondent had a boyfriend in the Middle East because she had gone there on her own at the end of 2013. He told the respondent the relationship was over and thereafter he says they lived under the same roof until 14 October 2014 when he was forced to leave the Suburb N home by police at the instigation of the respondent. I don’t find it necessary to make a finding about what actually occurred on that day but I note that despite the respondent’s allegations of domestic violence, no Apprehended Violence Order was applied for by the respondent or police. 

14. On 14 October 2014 the police attended the Suburb N property at the behest of the respondent. Exhibit 24 records that the respondent informed police that she and the applicant had been together since 2000 but had separated in 2011 although she allowed him to remain living at the property. This evidence corroborates to some degree the ongoing relationship although I reject the suggestion that final separation occurred in 2022.  

15. I largely accept the applicant’s evidence as to the nature and quality of the relationship throughout this period and certainly prefer his evidence where it conflicts with the respondent.

Conclusion

1. Although each party can be fairly criticised for past representations that were not truthful (for example, their statements to Centrelink) I find the applicant’s evidence to be overwhelmingly compelling as to the nature and quality of the relationship between the parties which I find was indicative of a couple living together on a genuine domestic basis.

2. The respondent chose not to give evidence in chief about the nature and quality of the relationship between herself and the respondent in the period prior to 2009. That history was important as it provided a factual context in which to assess the quality and nature of the relationship after that time. I accept the applicant’s evidence that they bought and borrowed in their own names (or entities owned by them) as a means of asset protection. They operated numerous businesses and therefore were exposed financially. The businesses were operated for their mutual benefit.

3. The applicant’s evidence was detailed and persuasive. It was corroborated in key respects by documents and evidence from other witnesses, including the respondent’s witnesses. There were times when his recollection of dates was clearly inaccurate, for example his recollection that the failed purchase of the Perth property in the respondent’s sole name occurred in 2005 when it was early 2004, but in my view such inaccuracies are not fatal.

4. I found the statements attributed to the respondent by police on 4 February 2002 to be particularly persuasive. On the balance of probabilities I find that the respondent made those statements which are of course corroborative of the existence of a de facto relationship between the parties at that time.

5. The respondent’s repeated denials of working in the various businesses (other than for very limited periods) and being involved in their operation was not convincing and the business records initialled by her during the period 2007 - 2008 provided cogent evidence that the respondent was being less than frank with the court. The fact that the respondent provided no evidence of having worked anywhere else during the period 2001 to 2011 (apart from her short lived business, Company 2 and some part time work) lends further support to the finding that she and the applicant were financially interdependent.

6. The respondent conceded she paid no rent to the applicant for the years she and, at times, Mr O lived in Perth with the respondent, a fact that would be improbable if the relationship were merely one of boyfriend/girlfriend or just friends. The respondent also took out a family medical insurance policy which she concedes was paid for by the applicant. It provided further corroboration as to the nature and quality of the relationship being one as a couple living together on a genuine domestic basis.  

7. I am satisfied that for most of the period 2000 to 2014 the parties presented themselves as a couple and had a mutual commitment to a shared life. They engaged in a sexual relationship and lived for extensive periods in the same residence. The applicant provided care and support for Mr O on occasion consistent with his commitment to his relationship with the respondent. I find that the parties planned for the acquisition and disposal of assets and shared financial resources. It was a de facto relationship save for the periods identified when they were separated.

8. Given my findings I am obliged to forward the relevant papers to the appropriate authority for consideration as whether the applicant and respondent have committed an offence in relation to their receipt of Social Security payments during a period when they were living in a de facto relationship.

I certify that the preceding one-hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 2 December 2016

Associate: 

Date:  2 December 2016