ALTIMAS & HOUSE - [2014] FamCA 1251

FAMILY COURT OF AUSTRALIA

ALTIMAS & HOUSE

[2014] FamCA 1251

FAMILY LAW - JURISDICTION – De Facto relationship – Whether or not the parties were in a de facto relationship on or after 1 March 2009 – Whether this Court has jurisdiction to determine a property application – Where the applicant claimed the parties were in a relationship as a couple living together on a genuine domestic basis for approximately thirteen years – Where the respondent lived overseas for much of the relevant time and engaged in a relationship with another woman – Where the respondent financially supported the applicant – Where the parties engaged in limited sexual relations – Where the applicant represented to Centrelink and the ATO that she was single during the relevant period – Where the applicant failed to establish that she and the respondent were in a de facto relationship on or after 1 March 2009 – Where the Court has no jurisdiction to make a property order in the applicant’s favour – Where the applicant’s application is dismissed.

Family Law Act 1975 (Cth) – s 90SB; s 90SM(1)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) - s 86(1)

Fenton & Marvel (2013) FLC 93-550; [2013] FamCAFC 132

APPLICANT:

Ms Altimas

RESPONDENT:

Mr House

FILE NUMBER:

SYC

7807

2011

DATE DELIVERED:

8 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

1 October 2013 & 20 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Weller of Herbert Weller

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

That paragraphs 6, 7, 8 and 9 of the Final orders sought in the Initiating Application filed on 22 December 2011 be dismissed for want of jurisdiction.
That paragraph 2 of the orders made on 9 January 2012 be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym ALTIMAS & HOUSE has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7807 of 2011

Ms Altimas

Applicant

And

Mr House

Respondent

REASONS FOR JUDGMENT

Ms Altimas (“the applicant”) seeks orders altering property interests following the breakdown of her de facto relationship with Mr House (“the respondent”). The respondent seeks orders that the property application be dismissed on the basis that this Court does not have jurisdiction to determine it.
The issue concerning jurisdiction has been listed as a threshold issue for determination.
Section 90SB of the Family Law Act 1975 (Cth) (“the Act”) provides in effect that a court may make an order in property settlement proceedings after the breakdown of a de facto relationship if it is satisfied about certain matters including that there is a child of the de facto relationship. The parties in these proceedings have a child, so this part of the jurisdictional requirement would be met.
Sub-section 90SM(1) of the Act provides in effect that in such proceedings, the Court may make such order as it considers appropriate altering the interests of the parties to the de facto relationship in the property. This sub-section is contained within Part VIIIAB of the Act.
Sub-section 86(1) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) provides in effect that Part VIIIAB of the Act does not apply in relation to a de facto relationship that broke down before commencement. The date of commencement was 1 March 2009. This date of commencement was confirmed by the Full Court in Fenton & Marvel (2013) FLC 93-550; [2013] FamCAFC 132 at [13] and [50] – [51].
The respondent concedes that the parties were in a de facto relationship but says that this broke down finally in or about March 2006, that is, well before 1 March 2009. If the respondent is correct about this, and the parties’ relationship on or after 1 March 2009 was not a de facto relationship as defined in the Act, then this Court would not have jurisdiction to determine the property application.
On the other hand, the applicant submits that the de facto relationship was ongoing until July 2010 when the respondent left the home previously occupied by the parties and commenced to live at his grandmother’s home.
Accordingly, this preliminary hearing was focused on a consideration and determination about whether the parties were in a de facto relationship on or after 1 March 2009. The onus is on the applicant to establish this on a balance of probabilities.

Written Evidence

The applicant relied on:
a)Initiating Application filed 22 December 2011;
b)Affidavit of Ms Altimas filed 22 December 2011; and
c)Affidavit of Ms Altimas filed 13 September 2013.
The respondent relied on:
a)Response to Initiating Application filed 12 March 2012;
b)Affidavit of Mr House filed 16 August 2013;
c)Affidavit of Ms W filed 16 August 2013;
d)Affidavit of Mr H filed 16 August 2013;
e)Affidavit of Ms L filed 16 August 2013; and
f)Affidavit of Ms R filed 16 August 2013.

Credit

The applicant

The applicant was not always forthright in her answers to questions nor always responsive thereto.
Time and again the applicant, instead of providing an answer to the question which was directed to her, provided information which it appeared to me she probably thought might favour her case. The applicant gave me the impression of a witness who was more focussed on arguing her case than presenting relevant evidence to the Court.
There were a number of occasions when assertions made by the applicant were demonstrated to have been incorrect. An example was the applicant’s assertion that in 2008 when the respondent was out of work and short of money she made “1 or 2 of the mortgage payments”. This was shown to be inconsistent with the respondent’s loan account statements.
Overall I regard the applicant as a poor witness and have reservations about accepting her evidence where it is unsupported by other material.

The respondent

The respondent was generally forthright and responsive in his evidence. But not in respect of all matters. For example he was asked whether it was the case that he had never asked the applicant to marry him. He denied that he had ever asked her to do so. But then he was shown a birthday card which he had sent the applicant on the occasion of her birthday in 2003. In the card he had written that he thought there was no better time to ask her to marry him.
The respondent was also asked whether after March 2006 he had informed the applicant that he was her valentine. The respondent denied that he had said any such thing. Yet an email by him to the applicant in February 2007 established that in fact he had said this.
In the light of these and some other matters, although I have a more favourable view of the respondent’s credit than I do of that of the applicant, this view is not without some reservation. Having said this, generally where the evidence of the applicant and respondent conflict I would prefer that of the respondent.

Ms W

Ms W is the wife of the respondent. Ms W gave her evidence in a forthright manner and was responsive to questions.
I regard her to be a witness of the truth.

Ms L

Ms L is the respondent’s mother. Ms L gave her evidence in a forthright and responsive manner.
I regard her as being a witness of the truth.

Ms R

Ms R is the paternal aunt of the respondent. Generally Ms R was forthright and responsive in her evidence although I had a sense that she had a slight inclination to favour the respondent’s case.
Having said this, I regard her as being a witness of the truth.

Mr H

Mr H was not required for cross-examination and therefore the evidence in his affidavit comes in unchallenged.

Background

The background facts are as follows.
The applicant, 52 years of age, and the respondent, 40 years of age, commenced their relationship in early 1997. They commenced living together in approximately mid-1997 when the respondent moved into the property which the applicant was renting in the Wollongong area. The respondent was employed by the Australian defence forces and the applicant was working as a specialist cleaner.
The applicant has three adult children from her previous marriage namely AW, BW and CW.
In March 1999 the parties separated. The applicant moved to a home in Town D. The respondent left the defence force and moved back to Perth where he lived with his mother.
In March 2000 the respondent purchased a property at O Street, Suburb K, Western Australia for $185 000 subject to a mortgage.
The parties had remained in communication during their separation and in May 2000 they reconciled. The applicant moved to Perth and commenced living with the respondent in his K property. The respondent paid approximately $1000 for the applicant to undertake a course in hospitality.
In 2000 the applicant received $40 000 from her mother’s estate which was deposited into the respondent’s ANZ bank account.
The respondent paid a $2000 Telstra account for the applicant. In June 2000 the applicant received a compensation payment. She repaid the respondent $5000 being the $2000 plus $3000 for a car he had purchased for her.
In January 2001 the applicant’s son CW came to live with the parties. He remained living at the K property for the next seven years until he joined the Australian defence forces in 2008.
In 2001 the parties established a joint “Progressive Saver” account as a holiday fund. At approximately this time the respondent arranged for the applicant to hold a secondary card on his ANZ credit card account.
In January 2002 the applicant’s daughter AW also came to live at the K property. She remained for approximately one year.
In February 2003 the respondent moved to Country X to commence employment with the X defence force. The applicant and her children remained living in the K home.
In 2003 the parties entered the IVF program. In October 2003 the applicant became pregnant.
As indicated above, on 19 November 2003 the applicant proposed marriage to the respondent. The respondent arranged for a mutual friend of the parties, Ms Y, to purchase a ring for the applicant and to give it to her from him shortly after he heard of the pregnancy. But they never married.
The respondent first met Ms W in Country X in December 2003 and commenced a casual sexual relationship with her soon thereafter.
In 2004 the parties’ child M was born. The respondent had returned to Australia in May 2004 for the birth and stayed in Australia, living with the applicant and their daughter at the K property until 20 June 2005.
The parties and the child spent Christmas Day 2004 with the respondent’s family. There was no issue that they presented as a family on that occasion.
The respondent and Ms W remained in contact after he left Country X. Unbeknown to the applicant, the respondent had a holiday with Ms W in Fiji in early 2005. At the end of the holiday the respondent decided that he wanted to live with Ms W. But apparently he did not inform the applicant about his decision at this time.
Unsurprisingly, the relationship between the applicant and the respondent was deteriorating by early 2005.
In approximately April 2005 the respondent informed the applicant that he was considering going to work in the United Kingdom (“UK”) to train for a licence as a specialist engineer. The applicant said that she could not accompany him because her son CW was still at school. He said that she and the children could remain living in the home and that she could have access to his accounts to pay bills.
On 20 June 2005 the respondent moved to the UK to undertake such training. The applicant continued to reside at the K home with M and CW. The respondent continued to pay the mortgage repayments and council bills in respect of the home.
In August 2005 the applicant received $40 000 inheritance from her father’s estate. She was uncertain which account this money was deposited into.
The parties continued to communicate via email and Skype while the respondent was in the UK. The respondent arranged for his father, a licensed plumber, to undertake maintenance tasks at the K home in his absence.
In approximately December 2005, the applicant informed the respondent that she had purchased tickets for herself and M to visit him in the UK. They arrived in January 2006, staying with the respondent for approximately six weeks. During this visit the parties argued a lot.
The applicant and M returned to Perth in early March 2006 and continued to live in the K property.
Ms W visited the respondent in the UK in March 2006.
The respondent asserts that the parties separated on a final basis in February 2006. There is a major issue about this and I shall refer in more detail to this matter below.
In March 2006 the applicant made an application to Centrelink for the Parenting Payment Single which she began to receive as from 17 March 2006.
In June, July and August 2006 Ms W spent time with the respondent in the UK. In September 2006 the respondent had a week’s holiday with Ms W in Europe.
In February 2007, the respondent and Ms W travelled to the Middle East and Africa on holidays. During this holiday the respondent proposed marriage to Ms W and she accepted. He bought her a ring.
In May 2007, Ms W commenced living with the respondent in the UK.
In approximately July 2007 the respondent and Ms W purchased a house together in the UK. Although this was purchased in the respondent’s name, for immigration purposes, Ms W made a significant contribution to the deposit. They also opened a bank account together.
In November 2007 the respondent commenced to pay child support for the child M pursuant to a child support assessment.
In April 2008 the respondent’s father and step-mother visited the respondent and Ms W at their home in the UK.
On 1 December 2008 the parties went to Canberra for the Defence Force graduation ceremony of the applicant’s son CW. He had invited the respondent even though the latter was living in the UK because he regarded the respondent as having a part in his success. This was because the respondent had encouraged him to join the Forces. The applicant contends that she and the respondent were a couple during that week, stayed in the same room at the hotel and engaged in sexual relations. The respondent denies that they had sex. I shall refer to this again below.
In April 2009 the respondent became unemployed. Ms W was not able to work in the UK. The respondent said that they were very short of money so Ms W returned to the United States to obtain employment. The respondent remained living in the UK but he was having difficulty finding employment.
The applicant gave a somewhat different version of events at this time including the circumstances of the respondent moving back into the K property. I shall refer to this issue again below.
In September 2009 the respondent returned to Australia to commence employment with a company in Perth. He moved into the K property, in the spare bedroom. The respondent and Ms W were in difficult financial circumstances.
Prior to his return to Australia, the respondent attended a course in Indonesia for 12 days in September 2009.
Between 24 September and 24 October 2009 the respondent undertook a course in Europe and Ms W lived with him there during that period.
Between 24 October and 2 November 2009 the respondent undertook practical training in the UK.
Between 8 and 22 November 2009 the respondent was working as a relief engineer in Far North Queensland (“FNQ”). The applicant and M visited him at FNQ. There is an issue about whether or not the parties had sex during this visit. I shall refer to this issue again below.
Between 28 January and 1 April 2010 the respondent was again working as a relief engineer at FNQ. Again the applicant and M visited the respondent for 10 days.
Between 13 and 27 May 2010 the respondent worked as a relief engineer in the Middle East and he attended training in Asia on 28 and 29 June 2010.
In July 2010 the respondent moved out of the K property and commenced to live at his grandmother’s house at Suburb T, Western Australia.
The respondent and Ms W were together in Asia between 5 and 11 September 2010.
In November 2010 Ms W migrated to Australia and resumed living with the respondent, this being at his grandmother’s home.
In January 2011 the applicant and M moved to New South Wales and the respondent moved back to the K property.
The respondent married Ms W in Perth in mid-2011.
In November 2011 the applicant commenced a relationship with Mr G.

Did the Relationship “Break Down” in 2006?

The respondent said that the parties separated on a final basis in or about February 2006. He said that the applicant had returned to Australia after visiting him in the UK. He said that he telephoned her from the UK saying words to the effect “Our relationship is over. I am in love with someone else.”
The applicant’s evidence about this conversation is quite different. She said that the respondent said to her in late February 2006 after she had returned to Perth from the UK, that he had been working flat out and wanted to have a break for a long weekend. She said that during that three or four days when he was having such a break she messaged and rang him on a number of occasions but she was unable to make contact with him. She said that after that long weekend she and the respondent had a conversation (late February or early March) in which she said “So who is she?” She said he said that she was a friend whom he had been seeing for the past three months. She said “You were seeing her, while I was over there.”
The applicant said that when she was unable to make contact with the respondent over the three or four days she presumed that he was having a relationship with someone else.
The applicant denied that during the said conversation the respondent informed her that her relationship with him was over. She said that during the conversation she asked the respondent when he was going to tell her about this and he said maybe a couple of months. She said she was upset and angry. She also said that she said she understood people make mistakes, that she loved him and was prepared to forgive him.
The applicant said that after this conversation she alienated herself from the respondent’s family for some time because the respondent made her feel worthless.
The applicant also said that later in 2006 she was given a photograph of the respondent with a woman in Country X taken in 2003. She said from the time she saw this photograph until early 2007 she had great difficulty talking to the respondent. She said she arranged to obtain her own Bankcard account and that even though she still had access to the respondent’s bank accounts she used her own funds to pay household bills.
Ms W confirmed the respondent’s account of the telephone conversation with the applicant. She said in her affidavit that in March 2006 she visited the respondent in the UK. She said that during this visit the respondent informed her that he had ended his relationship with the applicant, that he had told the applicant about her and that he was in love with someone other than the applicant. She said that he said that the applicant was not happy to hear this but that she was not particularly surprised.
Ms W gave further details about this matter during her oral evidence in chief. She said that she was in the UK in March 2006 and that there was a phone call between the respondent and the applicant. She said that she heard the respondent say (into the telephone) that he was in love with someone else and it was over. She said she turned around and left the room to give the respondent some privacy.
During cross-examination Ms W said she did not think about the evidence in her affidavit until a few weeks before the resumed hearing when she was reading her affidavit. She confirmed that she overheard this conversation in March 2006. She said that on that occasion she saw the respondent in the living room on the telephone. She said she had come down the hallway and heard the part of his conversation referred to above then she walked away. She said that (after finishing the telephone conversation) the respondent came into the room where she was and said that he had told the applicant that it was over.

I am inclined to think that the telephone conversation was probably in early March as Ms W has said. This is because although the applicant said in her affidavit that it was in late February, it was clearly at a time after the applicant had returned from the UK to Perth. The applicant said during her cross-examination that she thought she had returned to Perth in early March rather than late February.
In approximately March 2006, shortly after the respondent disclosed his relationship with Ms W to the applicant, he informed his father and his mother that his relationship with the applicant was over. Each of them swore affidavits.
The respondent’s father said that approximately six to 12 months after the respondent went to the UK the respondent informed him that his relationship with the applicant was over. The respondent’s father said at no point since then did he believe that the applicant and the respondent were in a relationship. He said he visited the respondent in the UK in 2008 and the respondent introduced him to Ms W.
The respondent’s mother said that she spoke with the respondent shortly after the visit to him in the UK by the applicant and the child M. She said he said:
I think [Ms Altimas] hoped we could work through our differences whilst she was in [the UK], but our partnership has ended. She wants me to come back to Perth and I just can’t do that. I need to complete my course and the only place to do that is here.
The respondent’s mother also said that during 2006 to 2007 she regularly visited M but the applicant avoided contact with her by absenting herself and leaving the child in the care of her son CW. She said that this changed when M commenced school and the applicant started to join her and M at a café. She said that on some of those occasions the applicant would say:
I accept that the relationship with [Mr House] is over but I am still angry with him and the way he has treated me.
The respondent’s paternal aunt, Ms R also swore an affidavit. She said that after she heard in approximately April 2006 that the parties “had split up” she telephoned the applicant and they had a long conversation. She said that during the course of the conversation the applicant said:
I didn’t know when I was in [the UK] in January that [Mr House] was going to break up with me.
As indicated above, the applicant made an application to Centrelink for a Parenting Payment Single. This was in March 2006, that is, only a few weeks after the respondent asserts that he informed the applicant that their relationship was over. The applicant was successful in obtaining such payments as from 17 March 2006.
The applicant denied that she went to Centrelink in circumstances where it had been made clear to her by the respondent that their relationship was over. She said that she went to Centrelink because the respondent was not supporting her and that she needed the money.
In her affidavit sworn on 13 September 2013 the applicant said the following:
44.Whilst [the respondent] was in the UK, I had limited finances and was unable to support myself daughter and son. I recall asking my ex-husband for help as our son needed a tutor for years 11, 12. [The respondent] was not supporting me financially as there was only just enough money for the mortgage. I had no other choice but to go to Centrelink. I explained the situation, got all the paperwork from Centrelink and then spoke to [the respondent] about it. [The respondent] had to fill out documentation and provide particulars of his financial circumstances. I was to supply Centrelink with [the respondent’s] tax and financial details to be assessed. I sent the papers to [the respondent] from Centrelink.
45.[The respondent] would not supply any of his private information. He said: “I don’t want Centrelink knowing my business.” I said words to the affect [sic] “Well that’s not fair on me. How am I going to support the kids plus pay the bills? You’re not supporting us financially”.
46.I was at a loss to what to do [sic]. I went back to Centrelink and was very upset. I explained what [the respondent] had said. I could not believe that he was not going to provide what was needed. I was so emotional that the lady at Centrelink said “let me see what I can do. I will need to speak to my supervisor, do you want to see one of our counsellors. I will be in contact with you”. I made an appointment to see the Counsellor and left.
47.Sometime later I saw the Counsellor and shortly after I received a phone call from Centrelink. The lady who rang said: “you have been approved.”
Records from Centrelink were tendered as part of the evidence. The relevant record for 28 March 2006 indicates that the applicant’s claim had been lodged because she “is not a member of a couple”. In my view, this information could only have been provided to Centrelink by the applicant.
At the time the applicant made her application to Centrelink for a Parenting Payment Single she also made a written declaration that she understood that deliberately giving false or misleading information is a serious offence.
The applicant said that she informed the Centrelink officer that she was in a relationship. Yet the above-mentioned Centrelink record appears to demonstrate a position quite inconsistent with this assertion.
The records also include the following:
cus (customer) has no earnings – she resides in her ex-ptr (ex-partner’s) house – she separated from him in 2003 and he now resides overseas – there is no ongoing relationship …
The Centrelink record for 20 March 2006 includes the following:
Customer feeling a sense of anger/disappointment/frustration that hoped for relationship with father of child [M] has not materialised. Have advised that contact with FOC (father of child) indicating that she acknowledges that the FOC wants relationship with child not her would strengthen her case for PPS. Advised to seek legal advice re her possible entitlements and way of approaching FOC. There may be a CSA (Child Support Agency) agreement already in existence. She stays in house in name of FOC rent free. …
The Centrelink records also noted that on 12 April 2007 the applicant contacted her Centrelink case officer and was interviewed by way of review of entitlement for Parenting Payment Single. The record described her as being “separated, no current relationship”.
The applicant said that after the respondent returned to the K home in September 2009 she telephoned Centrelink (to inform them that the respondent had resumed residence with her). It was suggested by counsel for the respondent that there was no record in the Centrelink records about any such telephone call. The applicant’s response to this was to say that Centrelink had informed her that she should inform them of this “after he’s been back 6 months”.
I regard the applicant’s evidence about this to be unsatisfactory. The view I have about this is that it is more probable than not that the applicant did not contact Centrelink as she asserted. In fact the Centrelink documents show that the applicant contacted them on 1 July 2010.
As I have said, there are two different versions by the parties about whether as asserted by the respondent the parties’ relationship broke down finally in approximately February 2006 (probably March 2006) and he communicated the fact of this to the applicant at that time. In my view, the Centrelink records clearly support the respondent’s version about this. On the other hand the applicant denies that the respondent informed her at the time that their relationship was over because he was in love with someone else. She said she only went to Centrelink because he would not give her money.
Yet one can only wonder about the veracity of the applicant’s version. The applicant conceded during cross-examination that when the respondent left her and the children in 2005 and went to the UK he did not support her financially. She also conceded that despite this, she did not approach Centrelink at that time for assistance but left it until March 2006 to do so, this being a short time after it became clear to her that he was in a relationship with another woman.
I find it difficult to accept the applicant’s explanation. As was submitted by learned counsel for the respondent, the applicant said she was short of money to the point where she felt she had no choice but to apply to Centrelink. Yet only a matter of months previously she had received the $40 000 inheritance from her late father’s estate. She said that she had used this money for her children but I find it difficult to accept that she had exhausted such funds.
Given the poor view that I have generally about the reliability of the applicant’s evidence and on the basis of the objective material from Centrelink which adds weight to the assertions by the respondent about separation, on the balance of probabilities I regard it to be more probable than not that the version provided by the respondent is correct. As I have said, his version is also supported by Ms W and his other witnesses.
There is another piece of relevant evidence about this issue which is as follows. In late 2010 the respondent instructed lawyers Clairs Keeley to prepare a binding financial agreement between the parties. The first draft of the agreement (Exhibit 9) included in the recitals the following:
G. The parties separated in July 2010.
The respondent gave a copy of this first draft of the agreement to the applicant. He said that when the applicant read the document she “picked up” that the date of separation was incorrect. He said that she said she wanted another copy to reflect the true date.
The lawyer prepared an amended version of the draft agreement (Exhibit 10). This included the following at Recital C:
C.The parties commenced living together in May 2000 and separated in March 2006.
The respondent was cross-examined and re-examined about this matter. He was responsive and forthright and I accept his evidence.
Accordingly, in my view, the parties’ de facto relationship had broken down finally by late February or early March 2006 and the respondent informed the applicant to this effect at approximately that time. I also have the view that the applicant acted in accordance with this information by changing her behaviour not only towards the respondent but also towards his family and by making her application to Centrelink to provide her with a benefit on the basis that at that time she had become a single parent.

Did the Parties have a De Facto relationship at or after 1 March 2009?

There is no question that the parties had a continuing relationship after March 2006. In my view it remains for consideration whether the characteristics of their relationship were such as to bring the relationship within the definition of “de facto relationship” in s 4AA(1) of the Act on or after 1 March 2009.
Sub-section 4AA is as follows:
(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 …; 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. [emphasis added]
Paragraph (c) has effect subject to subsection (5).
(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.
(6)…
Can it be said therefore, that after March 2006, and particularly between 1 March 2009 and July 2010 when the respondent moved out of the K home and commenced to reside at his grandmother’s home, the characteristics of the parties’ relationship were such that the Court could find that the parties had a relationship as a couple living together on a genuine domestic basis.
I shall consider this question in the context of the relevant circumstances including the circumstances set out in the relevant definition in s 4AA of the Act.

The duration of the relationship

As indicated above the parties’ relationship continued after March 2006 and relevantly, beyond 1 March 2009.

The nature and extent of their common residence

As indicated above the parties lived together in the K property from May 2000 until the respondent moved to Country X in February 2003 and then from May 2004 until June 2005 when he moved to live in the UK.
After March 2006 the applicant remained living with the child M in the K property until January 2011 when she moved with the child to New South Wales.
After March 2006 the respondent continued to live in his property in the UK until September 2009 when he moved back to Perth for employment, taking up residence at the K property.
As indicated above, there was an issue about the circumstances in which the respondent left the UK and moved into the K property. The respondent said that he and Ms W were in difficult financial circumstances. He was unemployed and she was not able to work in the UK. He said that they decided that she would return to the United States to work and that he would continue to look for employment. He said that he was able to obtain employment in Perth and decided to accept such offer of employment. He said that he moved back into the K property, occupying the spare bedroom because he did not consider it appropriate to approach his grandmother and ask to live with her in her home in Perth. He also said that Ms W was unhappy that he was living under the same roof as the applicant but he was very short of money.
The applicant gave a different account. She said that the respondent informed her that he did not have work, that he was thinking about returning to Perth, that he wanted to “fix” their relationship, that he was no longer with Ms W who had gone back to America and that she was “too high maintenance”. The applicant said further that when the respondent returned to the K property they “continued to live as man and wife”. She said that this situation continued until the respondent left the K property and commenced living at his grandmother’s home in July 2010. The respondent denied the applicant’s assertions in this regard.
As I have said previously, it is the applicant who bears the onus of proof concerning the facts which would enable the Court to make the necessary findings. I prefer the account of the respondent about this issue over that of the applicant. As I have said, I have a more favourable view generally about the reliability of his evidence than I do about that of the applicant. The applicant put no other material before the Court to support her version. In any event, as indicated above, within weeks or less of the respondent returning to the K property he was working in Europe for a month and living there with Ms W during the period. In my view this would appear to be quite inconsistent with the account as asserted by the applicant.
My ultimate finding about the extent of the common residence of the parties is that there was little common residence but this is not really a different situation from that which has prevailed for most of the time since the respondent moved to the UK in 2005. In any event, in my view, the parties’ residential arrangements do not assist the applicant’s case.

Whether a sexual relationship exists

As indicated above, in December 2008 the applicant, the respondent and the applicant’s son CW flew to Canberra to attend the applicant’s son’s Defence Force graduation ceremony. The applicant said she and the respondent slept in the same bed and engaged in a sexual relationship. She said she and the respondent were like a normal couple and he was affectionate towards her.
The respondent denied that they had sex on this occasion.
He also said that sexual intercourse occurred between the parties on only two occasions after he moved into the K property in September 2009. He said that these incidents had occurred after he had been drinking alcohol and the applicant came into his bedroom and initiated intercourse.
The applicant also said that the parties stayed together during each of her visits with the child M to the respondent when he was working at Far North Queensland in late 2009 and early 2010. She said that they had sex during each of these periods. The respondent denied this.
As I have indicated previously, it is the applicant who bears the onus of proof. In the face of the respondent’s denials, and given the poor view that I have of the applicant’s credit generally, I find that after March 2006, it is more probable than not that the parties had only a very limited sexual relationship.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

It is clear that the applicant was financially dependent on the respondent at least to some extent. After the child M was born, the parties had an agreement that the applicant could live in the K property ‘rent free’.
For most of the relevant period the respondent was employed. The applicant was unemployed.
In my view, the nature of the parties’ financial relationship changed after March 2006. Although the respondent continued to pay the mortgage repayments and some of the expenses relating to M, the applicant started to pay the utilities and the rates. The rates had previously been paid by the respondent.
As indicated above, from March 2006 the applicant commenced to receive the Parenting Payment Single.
In 2006 the applicant obtained her own Bankcard account whereas previously she had been prepared to use the respondent’s credit card account. It is true, however, that she did continue to pay for some expenses, particularly M’s expenses using the respondent’s ANZ credit card account.
From November 2007 the respondent started paying child support whereas previously the applicant had not sought a child support assessment.

The ownership, use and acquisition of their property

The parties did not jointly own any significant assets. At all relevant times, the respondent owned the K home in which the applicant and M resided. All of the mortgage repayments were met by him.
Not only did the respondent own the K property subject to the mortgage but, as indicated above, he purchased a property in the UK, assisted by Ms W. He did not involve the applicant in the purchase of the property in the UK.

The degree of mutual commitment to a shared life

Post March 2006, there is little evidence of a commitment by the parties to a shared life. The applicant said she spoke to the respondent by Skype while he was in the UK in 2006, but she could not look him in the face from March 2006.

The tenor of the emails between the parties from March 2006 onwards, in my view, tends not to reflect two persons in a close personal relationship. For example an email dated 7 April 2006 from the applicant to the respondent included the following:
If there is going to be any hope for us then you need to start showing it and stop playing with my heart… the LOVE I have for you runs to deep to just be friends alone.
An email dated 2 May 2006 from applicant to respondent included:
I’m over what you did but not to the extent of facing you… I will never forget nor can I forgive you for what you have done over the past 3.1/2 years… Sorry… I don’t have that trust anymore and trust is a big part of any relationship even in just friendships
The respondent’s email dated 4 May 2006 included the following:
Thanks for the email. Although harsh I do appreciate it. Im [sic] sorry for the way i [sic] have treated you and you dont [sic] deserve what I have done. I suppose I can understand that you dont [sic] want to see me but it would of [sic] been nice to be able to talk.
I havent [sic] decided on a date as to when I will come I was thinking maybe after the july [sic] holidays that I could meet you somewhere but at the moment that doesnt [sic] seem to be the case if you arent [sic] ready, but I hope in time you might be..
An email sent by the applicant to the respondent on 28 July 2006 included:
The only way that you can show us that you are truly sorry, is that you have to prove to us that we are more important than your career. The only thing that you can do is to now put your career on hold and fix what you have broken. If you are truly sorry and you are wanting to have that family thing, then you have only got one chance to get it back… You know that I love you very much and that I will always love you.’
Much of the correspondence reflects a rather business-like style of communication often concerning the child. For example an email dated 3 August 2006 from the applicant to the respondent included:
Hi About your dads BD, well that’s up to you what to buy. What I want to know is the prezy going to be from you and [M]? …
…
Anyway that’s it
me
It is true that the respondent sent an email to the applicant on 15 February 2007 which included:
Dear [Ms Altimas],
I received your card today, thank-you. Yes i [sic] will be your valentine.
Did you receive my e-card? …
Hope you had a good sleep.
[Mr House]
In my view, this email message could be interpreted in a romantic sense or equally in a sense of resignation or courtesy, particularly as there is no intimate or loving greeting which conveys any sense of romance, or intimacy.
The closest the respondent’s emails appear to approach any personal commitment to the applicant or level of intimacy is the email dated 25 May 2007 which included the following:
I still think about you all the time and most nights say goodnight to you and think of you cuddling me by my side in bed.
Aside from these last two emails there is no email correspondence between the parties which could be interpreted as demonstrating commitment to each other and to a shared life.
The evidence of the respondent suggests that he was planning and managing his life without any consultation or input from the applicant. Of significance is the existence of Ms W in the respondent’s life. The applicant had no involvement in that relationship and regarded it jealously. The relationship between Ms W and the respondent goes some way towards demonstrating an absence of mutual commitment by him to a shared life with the applicant. Their relationship appears to have strengthened through 2006 to the point where they became engaged in February 2007 and commenced to cohabit in May 2007.
By the same token, the applicant appeared to plan and manage her life from March 2006 as a single parent, obtaining single parenting payments from Centrelink and changing bills and utility accounts into her name.
This evidence supports a finding in line with the respondent’s case.

Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

The relationship was not registered under any State law at any time.

The care and support of children

As indicated above, the parties’ child M was born in 2004 and is currently 10 years of age.
The respondent communicated with the child via Skype. He has provided financial support for the child and made arrangements for her with the applicant via email. The applicant sent the respondent photos of the child and arranged to purchase her gifts from the respondent. As indicated above, in 2007 the respondent commenced paying child support for the child.
While the respondent financially supported the child, there were long periods of time where he did not see her. He resided overseas from June 2005 until September 2009 and had only short visits with the child during this time. As indicated above, when the respondent returned to Australia in 2009, he resided under the same roof with the applicant and the child over a period of some nine months but for much of this time he was absent overseas or interstate on employment assignments.

The reputation and public aspects of the relationship

For most of the relevant time the respondent lived and worked overseas. As indicated above, however, the parties attended the applicant’s son’s graduation together and they spent time together with the child M on the two occasions the respondent was working in FNQ.
The applicant asserted that after the respondent returned from the UK in 2009, the parties continued to live as a couple including spending time assisting friends Mr and Ms N with the renovations of their bathroom. The applicant also deposed that in 2010 she and the respondent presented as a couple when her children from a previous relationship came to visit.
The respondent’s mother and aunt gave evidence relevant to this consideration. Their evidence was uniformly to the effect that they did not believe that the applicant and respondent were in a relationship after 2006.
The respondent’s mother gave evidence that after February 2006 the applicant reduced contact with her and was not present when the respondent’s mother visited the child M.
As indicated above, I found the evidence of the respondent’s mother and aunt to be truthful and I accept their evidence. This evidence favours the respondent’s case.
The respondent said that since March 2006 he and the applicant never attended any family functions together.
The applicant did not call any witnesses to support her assertions about public aspects of the relationship.
In addition, as indicated above, the applicant obtained the Parenting Payment Single and she obtained a child support assessment against the respondent. In her income tax returns for the financial years ending 30 June 2006 to 2010 the applicant did not include details of a spouse.
In my view, the applicant has not established that overall, the reputation and public aspects of the parties’ relationship support her case.

Conclusion

As I have said, it is the applicant who bears the onus of establishing that on the balance of probabilities the circumstances of the parties’ relationship were such that it would constitute that of a couple living together on a genuine domestic basis.
It is true that there were features of the parties’ relationship as it existed at or after March 2009 which would tend to assist the applicant’s case. These include a limited financial relationship, the applicant and M continuing to reside in the K property, some instances of sexual activity, regular communication via Skype and email over the periods when the respondent was overseas, a period of residing under the same roof for some months albeit in different bedrooms, visits with their child to Canberra and Far North Queensland as well as the respondent’s emails to the applicant in 2007 stating that he would be her valentine and that he still thought of her every day.
As against this, I have accepted that the respondent communicated to the applicant in March 2006 that their close personal relationship was over. The applicant has said things to members of the respondent’s family consistent with her having acknowledged this. She has acted consistently with such a situation by representing to both the Australian Taxation Office and Centrelink that she was single and by receiving single parenting payments. Further, in my view, the tone of emails between the applicant and the respondent post February 2006 reflected the applicant’s desire to be back with the respondent and her jealousy around his relationship with Ms W, that is, they tended to reflect a relationship between the parties which had become one of friendship, and respect for one another as the parents of their child, rather than a relationship characterised by mutual commitment to a shared life, intimacy and interdependence.
In my view, consideration of all the relevant evidence leads to the conclusion that the characteristics of the parties’ relationship fell well short of what would be required for the Court to be able to find within the meaning of the Act that on or after 1 March 2009 the parties had a relationship “as a couple living together on a genuine domestic basis”.
In these circumstances, in my view this Court has no jurisdiction to make a property order in the applicant’s favour. Her application for property orders will therefore be dismissed.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 8 August 2014.

Associate:

Date: 8 August 2014