Arthur & Stevenson
[2021] FedCFamC2F 9
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arthur & Stevenson [2021] FedCFamC2F 9
File number(s): MLC 3572 of 2019 Judgment of: JUDGE BENDER Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – PROPERTY – Applicant seeking property orders pursuant to s90SM of the Family Law Act 1975 (Cth) (“the Act”) on the basis parties were in a de facto relationship from 1997 to 2018 – Respondent seeks a declaration pursuant to section 90RD of the Act that the parties were never in a de facto relationship and ancillary orders for the caveat lodged by the Applicant on the property to be removed
HELD – Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth) it is declared the parties were never in a de facto relationship – given the declaration made, the Court does not have jurisdiction to make any further orders
Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD Cases cited: Sinclair & Whittaker [2013] FLC 93-551
Cuan & Kostelak [2017] FamCAFC 188
Sha & Cham [2017] FamCAFC 161
Delamarre & Asprey [2014] FLC 93-616
Lynam v Director-General of Social Security (1983) 52 ALR 128Division: Division 2 Family Law Number of paragraphs: 166 Date of last submission/s: 29 July 2021 Date of hearing: 28-29 July 2021 Place: Melbourne Counsel for the Applicant: Ms Goldsworthy Solicitor for the Applicant: J A Middlemis Counsel for the Respondent: Ms Mallett Solicitor for the Respondent: Einsiedels Legal Practitioners ORDERS
MLC 3572 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARTHUR
Applicant
AND: MS STEVENSON
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth) it is declared the Applicant MR ARTHUR and the Respondent MS STEVENSON were never in a de facto relationship.
2.The Respondent is granted leave to seek an order that the Applicant pay the Respondent's costs of the proceedings.
3.The Respondent file and serve submissions with respect to costs by no later than 4.00pm on 10 September 2021.
4.The Applicant file and serve submissions with respect to costs by no later than 4.00pm on 24 September 2021.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Arthur & Stevenson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION
This matter was listed to determine the threshold issue as to whether the parties were in a de facto relationship as defined under s.4AA of the Family Law Act1975 (Cth) (“the Act”).
The Applicant filed an Initiating Application on 4 April 2019 seeking property orders pursuant to s.90SM of the Act. In his Initiating Application, the Applicant stated the parties had been in a de facto relationship from 1997 to 30 June 2018.
The Respondent filed a Response on 18 August 2019 in which she sought orders she have sole use and occupation of “the former matrimonial home”, the Applicant remove the caveat he had lodged on B Street, Town C (“B Street, Town C”), the Applicant retain listed personal chattels and his superannuation, the Applicant remove his chattels from B Street, Town C and that otherwise the Applicant’s application be dismissed.
In the affidavit sworn by the Respondent on 16 August 2019 in support of her Response, she deposes she met and began a relationship with the Applicant in 1997 and that “their dating relationship” ended in 2003. She then deposes that she and the Applicant recommenced a relationship in 2011 and separated in 2012. The Respondent deposes the parties never lived together.
When the matter first came before the Court on 26 August 2019, “standard property case management orders” were made by consent listing the matter for final hearing with trial directions, directing the parties to attend a conciliation conference and providing for mutual discovery.
There was no application made at that time by the Respondent that there be a declaration the parties were not in a de facto relationship and therefore the Court had no jurisdiction to hear the Applicant’s claim.
There were five subsequent mentions of the matter between November 2019 and August 2020 where orders for discovery were made and the matter was listed for final hearing. The parties attended a conciliation conference on 30 January 2020 where the matter did not resolve. The need to determine the threshold issue of whether the parties were in a de facto relationship was not raised by either party at any of these hearings.
It was not until the matter came before me on 24 February 2021 that it was agreed by the parties that the preliminary question of whether the parties were in a de facto relationship as a threshold issue needed to be determined.
BACKGROUND
The Applicant was born in 1966 and is aged 55 years. He is a disability support pensioner. He is not currently in a relationship.
The Respondent was born in 1963 and is aged 53 years. She is a pensioner. She is not currently in a relationship.
Neither party was an accurate historian and their evidence as to dates and events was inconsistent. I am of the view this was more a question of memory than a reflection of either parties’ credit.
The parties met in or around 1997 and commenced a relationship. At that time the Applicant was living at his parents’ farm in Town D and the Respondent in rental accommodation in E Street, Suburb F (“E Street, Suburb F”), with her three teenage children, Ms G 17, H 15 and J 13.
It is the Applicant’s evidence he and the Respondent lived together at E Street, Suburb F but he would return to his parents’ place three to four nights a week to assist in their care and to look after their home.
It is the Applicant’s evidence during this period he purchased food and household items for the Respondent and her family as well as meeting some of their living expenses. His evidence is the Respondent paid the rent and utility bills. It is the Applicant’s evidence the parties unexpectedly separated in 2003 after he had helped the Respondent and her family move to a larger rental property in K Street, Suburb L (“K Street, Suburb L”).
It is the Respondent’s evidence that in this period she and the Applicant had a boyfriend/girlfriend relationship only. The Applicant would very occasionally stay over at E Street, Suburb F but at all times the Applicant lived at his parents’ home. It is her evidence the Applicant did not ever purchase groceries or household items for her and her family or contribute to her family’s living expenses.
It is the Respondent’s evidence her relationship with the Applicant “petered out” in or around 2002. She says she was working hard and the Applicant was involved in his hobbies and they just spent less and less time together.
In 2003, the Respondent, Ms G, Ms G’s newborn twins, J, and a foster child who lived with them, Ms M and her child all moved to K Street, Suburb L. It is the Applicant’s evidence he helped the Respondent move. This is strongly denied by the Respondent, Ms G and Ms M. It is the Respondent’s evidence that when she moved to K Street, Suburb L she was in a new relationship with a gentleman named Mr N (“Mr N”).
It is the Respondent’s evidence that when the Applicant found out about her relationship with Mr N he began stalking her, did burn outs in front of her home and threatened her, Mr N and her family.
On an evening in 2003, the Applicant hid in the Respondent’s backyard at K Street, Suburb L. The Respondent and Mr N returned home from an evening out. As they got out of the car, the Applicant ran towards them brandishing a fishing spear. He stabbed Mr N with the spear. He was restrained by Ms G and a friend and was arrested and charged by Police.
It is the Respondent’s evidence the Applicant was either jailed or held in remand for a period of 9 months after the assault on Mr N. The Police applied for an Intervention Order for the protection of the Respondent.
The Applicant makes no reference to this incident in any of his evidence filed with the Court.
In late 2003, Ms G’s young daughter O was gravely ill in the Royal Children’s Hospital. It is the Applicant’s evidence the Respondent telephoned him to tell him of this. It is his evidence he “hitch-hiked” from New South Wales where he was fossicking for gold and that he eventually arrived at the hospital where he comforted O and the Respondent.
Whilst agreeing O was gravely ill in the Royal Children’s Hospital in late 2003, it is the Respondent’s evidence she did not telephone the Applicant to tell him of this and did not see him at the hospital. It is her evidence O was in the Intensive Care Unit where only her family could see her and that the Respondent was staying and supporting G at Ronald McDonald House.
It is the Applicant’s evidence that he and the Respondent saw each other occasionally in 2004/2005 and that in or around 2005 their intimate relationship resumed and continued thereafter. The Applicant was living at his parents’ property at Town D and the Respondent would stay with him every weekend, returning to her home on Sunday with containers of meals made by him for the week. It is the Applicant’s evidence that on Wednesday evenings he would stay at the Respondent’s home or she would stay with him at Town D.
It is the Applicant’s evidence that in 2008/2009 he and the Respondent started discussing purchasing a country property together.
It is the Applicant’s evidence that in 2009 the Respondent found the property at B Street, Town C. At that time he was prospecting for gold in Western Australia. It is the Applicant’s evidence he rang the Respondent from Western Australia and they discussed the possible purchase of B Street, Town C. The Respondent described the property as very run down and needing considerable work to renovate it and make it habitable.
When the Respondent first purchased B Street, Town C she had a care taker, Mr P living on the property. It is the Applicant’s evidence he and the Respondent would travel to B Street, Town C on most weekends to effect improvements on the property to make it habitable after its purchase.
Between 2003 and 2006 the Respondent lived in rented accommodation in Suburb F with G. In 2006 the Respondent moved into her brother Mr Q’s home in Suburb R.
It is the Respondent’s evidence that after her children moved out, she was able to start saving. She decided she wanted to purchase her own property. A friend advised her of B Street, Town C and she and Mr Q inspected the property which she described as a run-down house on 40 acres with lots of potential. The Respondent purchased B Street, Town C in 2009 for $115,000. She paid the deposit from her savings and borrowed approximately $108,000.
It is the Respondent’s evidence that she had no contact with the Applicant after the assault on Mr N until 2010/2011, other than very briefly at the funerals of the Applicant’s parents in 2007/2008. It is the Respondent’s evidence she went up to B Street, Town C one weekend in 2010/2011 and the Applicant was at the property visiting Mr P, who was also a friend of the Applicant.
After re-connecting with the Applicant in 2011, the Respondent’s evidence is that she and the Applicant commenced a casual intimate relationship. The parties would spend time together at B Street, Town C on the weekends she and the Applicant both went to that property. It is the Respondent’s evidence she worked overtime on as many weekends as were available to her and she could only go to B Street, Town C when she had a spare weekend. The Applicant was otherwise living at the property of his late parents in Town D and the Respondent continued to live with her brother. It is the Respondent’s evidence she and the Applicant did not see each other when in Melbourne.
In 2010 the Respondent had serious health issues which resulted in major brain surgery in 2011. After 2 months recovering from the surgery the Respondent returned to work. Following her surgery the Respondent was unable to drive and as a result her previous position as a tradesperson was not possible and she was promoted to Technician.
It is the Respondent’s evidence that after her recovery from surgery her intimate relationship with the Applicant ended. They remained friends and the Applicant continued to visit B Street, Town C.
It is the Applicant’s evidence that he and the Respondent continued their intimate relationship from when they reconnected in or around 2005. After the purchase of B Street, Town C, the Applicant worked with the Respondent in effecting improvements to the property with both of them going to the property on weekends. It is his evidence the Respondent’s MV e-tag was linked to his account and he paid those charges for her. The Respondent agrees her MV e-tag was linked to the Applicant’s account but this was because he insisted that this occur.
The Applicant’s Mother died in 2007 and his Father died in 2008. The Applicant remained living at their Town D property after his parents’ death until 2015 when the purchaser of the property required the Applicant to leave.
In 2015 the Applicant received $92,483 from the estate of his late Father together with a 1/5 interest in a tractor, a 4-wheel drive, a motorcycle and various tools and chattels.
In 2015 the Respondent’s ex-husband and the Father of her children died suddenly of cancer. The Applicant attended the funeral as he knew the Respondent’s ex-husband. It is the Applicant’s evidence he paid the funeral celebrant. This is strongly denied by Ms G whose evidence is her Father had made all the arrangements for his funeral before he died and the celebrant was paid prior to the funeral.
In November 2015 the Respondent had a complete mental breakdown and was admitted to S Hospital Psychiatric ward for 2 weeks before being released into the care of Ms G and moving into her home in Suburb F. It is her evidence she was most unwell at this time and required the close care of both her daughters. The Respondent has not worked since this time.
It is the Respondent’s evidence that when she had her breakdown the Applicant seized the opportunity to move to B Street, Town C with all the plant, equipment and chattels he had inherited from his parents without her knowledge or permission. The Applicant’s parents’ property had sold and whilst the purchasers had initially allowed him to remain living on the property, he was required to vacate the property and the purchasers had commenced proceedings to have him evicted.
It is the Applicant’s evidence he moved to live in B Street, Town C in late 2015 with the Respondent’s full knowledge and consent. It is his evidence this move was part of the parties’ long term plan to renovate the property and live there permanently as a couple.
From late 2015 the Applicant lived at B Street, Town C. The Respondent continued to live with her daughter Ms G and spent time at B Street, Town C from time to time.
It is the Applicant’s evidence that after he moved into B Street, Town C, he and the Respondent shared the main bedroom at B Street, Town C and continued their committed and intimate relationship. It is his evidence that when it was cold and his asthma was bad, he slept on a mattress in the lounge room in front of the combustion heater.
The Respondent denies she and the Applicant were ever in a committed relationship. She further denies any intimate relationship with the Respondent after 2012. It is her evidence that after the Applicant moved into B Street, Town C in 2015, when she was at the property, she slept in the main bedroom and the Applicant slept on a mattress in the lounge room.
It is the Applicant’s evidence he undertook and paid for extensive improvements to B Street, Town C including:
•The purchase and installation of 2 x 22,000 litre water tanks and connecting pipes to provide water to the home;
•The purchase and installation of solar panels and accompanying storage batteries;
•The purchase of various chattels including a washing machine, air conditioner, gas stove, fridge, freezer, 12 volt TV, 12 volt lights;
•Gardening including clearing 35 acres of weeds and paterson’s curse and creating vegetable beds;
•Purchasing several loads of water;
•Replacing rotten floor boards;
•Cleaning up rubbish on the property.
Whilst the Respondent agrees the Applicant did some work at B Street, Town C, she disputes that those works were as extensive as claimed by the Applicant or that he purchased many of the items he claims he did.
It is the Respondent’s evidence she paid for most of the items needed for B Street, Town C including water tanks, solar panels, water pumps, generators, batteries, the wood stove and heater and floor boards. It is the Respondent’s further evidence that both her brother Mr Q and son-in-law Mr T, the husband of her daughter Ms G, did a considerable amount of work to improve and repair B Street, Town C.
The Respondent’s granddaughter O, Ms G’s daughter, has a disability which affects her physical mobility and mood regulation. There was an incident in her parent’s home in January 2018 which meant she could not remain living with her parents as she was putting her younger siblings at risk of harm. It was agreed that the Respondent would become O’s carer and they would move to B Street, Town C to live rather than O being placed in foster care.
It is the Applicant’s evidence that after the Respondent and O moved to B Street, Town C, he and O became very close and that he paid for most of her food, her school uniforms and school requirements, camping equipment and sleeping bag.
The Respondent, Ms G and Mr T strongly refute the Applicant’s evidence that he contributed to the costs of O’s care. It is their evidence that those costs were and are met by her parents.
On 30 June 2018 there was an incident at B Street, Town C. It is the Respondent’s evidence the Applicant had been drinking and smoking cannabis all day and became very loud and abusive. The Police arrived at the property. The Respondent believes this was because the neighbours called the Police because of the disturbance the Applicant was making. Because the Applicant had settled down the Respondent told the Police it was okay and they left. The Applicant’s mood escalated and he became very angry, threatening to kill the neighbours and the Respondent as well as Ms G and Mr T who were camping on the property at that time. The Respondent took the keys to the Applicant’s ATV from him to prevent him from driving as he was drunk and was threatening to kill the neighbours. The Applicant became even more abusive and assaulted the Respondent. Mr T called the Police who returned to the property and removed the Applicant.
When the Police attended the property, they ascertained that the Intervention Order the Respondent obtained against the Applicant in 2003 was still in place, something none of the parties were aware of. The Police made an Application for a further Intervention Order for the protection of the Respondent. A final indefinite Intervention Order has been granted and includes a prohibition on the Applicant going to or remaining within 200 metres of B Street, Town C.
In the recital to the Police Application for the Intervention Oder it states inter alia:
“The AFM and the Respondent are in a de facto relationship and have been together for approximately 20 years. A current intervention order exists between the AFM and the Respondent with this order originally being issued in 2003 and being extended in November 2017…”
The Respondent denies telling the Police she and the Applicant had been in a de facto relationship for 20 years or ever. Her explanation for this being in the Police’s statement is it was either something told to them by the Applicant or a conclusion they reached because of the existing Intervention Order.
After this incident, the Respondent and O moved to a caravan park in Town C where they stayed for some months until they moved into a house in Town C that Ms G and Mr T purchased for them to live in. It is Ms G and Mr T’s evidence they did not want O remaining at B Street, Town C because they were concerned for her safety. B Street, Town C is quite isolated and has poor phone reception. Because of the threats to kill made by the Applicant and the poor condition of the house on that property, Ms G and Mr T were of the view O and the Respondent were no longer safe living there.
THE EVIDENCE
The Applicant relies on his trial affidavit sworn 20 July 2021. The Applicant gave vive voce evidence at the final hearing.
The Applicant also relies on the affidavit of his sister Ms V sworn on 2 September 2019. Ms V gave vive voce evidence at the hearing.
The Respondent relies on her trial affidavit sworn on 15 July 2021. The Respondent gave vive voce evidence at the hearing.
The Respondent also relies upon the affidavits of:
•Mr T sworn 15 June 2021;
•Ms G sworn 22 September 2020; and
•Ms M sworn 23 June 2021.
Each of these witnesses gave vive voce evidence at the final hearing.
THE LAW
Section 4AA of the Act sets out the meaning of de facto relationship and the factors which are to be considered when the Court determines whether or not the parties were living in a de facto relationship during a particular period of time. The section reads 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 (see subsection(6)); 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) 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.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
In Sinclair & Whittaker [2013] FLC 93-551 (cited with approval subsequently in many Full Court decisions including Cuan & Kostelak [2017] FamCAFC 188, Sha & Cham [2017] FamCAFC 161, Delamarre & Asprey [2014] FLC 93-616) the Full Court held at paragraphs [51]-[55]:
51. In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52. Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53. Sub-section 4AA(4) provides:
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.
54. Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55. In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
Thus it can be seen that in order for a finding the parties were in a de facto relationship as defined by the Act, the Court must be satisfied that the parties lived together as a couple on a genuine domestic basis. No one particular factor will determine whether the parties lived together in a de facto relationship but rather the relationship as a whole must be considered, although guidance can be taken from the factors enunciated in s.4AA(2) of the Act.
Accordingly, each of the factors set out under s.4AA(2) will be considered in the context of the evidence before the Court.
The Duration of the Relationship
It is the Applicant’s evidence that the parties were in a relationship from 1997 to 2003. It is his evidence he and the Respondent saw each other casually during 2004 and their de facto relationship resumed in 2005 and they were in a relationship until final separation on 1 July 2018.
It is the Applicant’s evidence that between 1997 and 2003 they were living together in the Respondent’s rental property at E Street, Suburb F with her children from her previous marriage, although he would spend two to four nights a week at his parents’ home looking after them and their property.
It is the Applicant’s evidence that when the parties resumed their relationship in 2005, the Respondent would stay with him every weekend at his parents’ Town D property and that he would visit her on some Wednesdays during the week. It is his evidence that he cooked meals for the Respondent on the weekends which she would take home with her for her meals during the week.
It is the Applicant’s evidence that after the Respondent purchased B Street, Town C, he and the Respondent spent most weekends at that property working together to make it habitable.
At the beginning of 2018 the Respondent and her granddaughter O moved into the B Street, Town C property with him. He had been living there permanently since the end of 2015.
It is the Applicant’s evidence that he considered he and the Respondent at all times to be in a committed and exclusive relationship. It is his evidence they continued to be intimate and slept in the same bed when together. He contributed to the joint living costs of the parties to the best of his ability as well as making considerable contributions to improvements at B Street, Town C.
The Applicant’s sister Ms V deposed in her affidavit sworn 2 September 2019 that when the Respondent lived with her brother in Suburb R, the Applicant would cook meals for the Respondent and bring them to her at her brother’s house in Suburb R every couple of weeks. Ms V deposed that as she also lived in Suburb R she got to see the Applicant on a regular basis as he would pop in to see her either on his way to or on his way back from visiting the Respondent. Ms V in cross-examination was somewhat vague on precisely when this was and acknowledged that she has never been to the Respondent’s brother’s home.
Ms V also deposed in her Affidavit to the Applicant, Respondent and two of the Respondent’s children spending time at the Town D property after her parents died. In cross-examination it was her evidence that this was around 2010/2011.
Ms V conceded that the only time she had seen the Applicant and Respondent together was two or three times at the Town D property and at a couple of family celebrations, one of which she recalled was the Applicant’s 50th birthday at the B Street, Town C property in 2016.
Despite saying she saw the Applicant and Respondent together at the Applicant’s 50th birthday, it is Ms V’s evidence that she has never visited B Street, Town C. Ms V agreed that her evidence in relation to B Street, Town C and the work the Applicant allegedly did to improve the property as well as the nature of the Applicant’s relationship with the Respondent is all based on what she has been told by the Applicant and not anything she personally observed.
The Respondent agrees that the parties were in a relationship between 1997 and 2002 but describes that relationship as boyfriend/girlfriend only. The Respondent acknowledges she and the Applicant were intimate during this time, she sometimes stayed with him at his parents’ home on the weekend, on occasions they holidayed together with her children and that he would very occasionally stay at her home. It is the Respondent’s evidence that she and the Applicant at no time lived as a couple on a genuine domestic basis.
It is the Respondent’s evidence that she paid for the rent, food and utilities for herself and her children and that the Applicant made absolutely no contribution to same.
The Respondent strongly refutes the Applicant’s evidence that they resumed their relationship in 2005. It is her evidence that she did not see the Applicant between 2003 when he was arrested as a result of stabbing Mr N and 2010/2011 other than perhaps seeing him at the funerals of his parents which she attended, having been told by the Applicant’s sister of their passing.
It is the Respondent’s evidence she attended the Applicant’s parents’ funerals as she had enjoyed a good relationship with them during the period she and the Applicant were boyfriend and girlfriend. It is her evidence she really liked the Applicant’s Mother and she attended the Applicant’s parents’ funerals as a mark of respect to them.
It is the Respondent’s evidence that she briefly resumed an intimate relationship with the Applicant after they met at B Street, Town C in 2011 when the Applicant was visiting the property to catch up with her then caretaker Mr P who was a mutual friend.
It is the Respondent’s evidence that this intimate relationship was very short-lived and ceased in 2012 after which she and the Applicant were friends only and there was no romantic relationship between them. She agrees that after their intimate relationship finished, the Applicant continued to go to B Street, Town C. It is her evidence that the Applicant took advantage of her breakdown in late 2015 to move himself and his possessions into B Street, Town C. This was done without her knowledge or consent.
It is the Respondent’s evidence that the only time she and the Applicant lived in the same residence was between January 2018 and 1 July 2018 when she and her granddaughter O moved to B Street, Town C. It is the Respondent’s evidence that during this period there was no resumption of any intimate or romantic relationship between she and the Applicant, they at no time shared the same bed and that she and O’s parents were at all times responsible for the living expenses for herself and O.
It is Ms G’s evidence that the Respondent and Applicant were in a relationship from approximately 1997 to approximately 2002. It is Ms G’s evidence that the Applicant “began to show up again around 2011. He was not in the picture at all before this time.”[1]
[1] Paragraph 10, affidavit of Ms G sworn 22 September 2020.
It is Ms G’s evidence that when her father died in 2015 the Applicant and the Respondent were definitely not in a relationship. When the Respondent had her breakdown in late 2015 and moved in to live with her and her husband, the Applicant did not come to their home or visit the Respondent.
The nature and extent of their common residence
As set out in paragraph 80 of this judgment, the only common residence of the parties was B Street, Town C in the period January 2018 to 1 July 2018.
It is Ms G’s evidence that she first met the Applicant in or around 1997 when she was living with the Respondent at E Street, Suburb F. It is her evidence that the Applicant never lived at E Street, Suburb F during this period as he lived with his parents in Town D. It is her evidence that he would visit them and occasionally stay overnight, but this was not a weekly event and was never for more than one night.
It is Ms G’s evidence that between 1997 and 2002 she, the Respondent and her sister J would occasionally visit the Town D property to see the Applicant and his parents. This was particularly so at Christmas as the Applicant would cook Christmas lunch as he was a good cook.
Ms G recalls holidays that she and J had with the Applicant and her Mother at Town X where they would camp right on the shore of the lake near the Applicant’s aunt’s home.
Ms M’s evidence is that in 2000 when she was in Year 11, the Respondent took her into her home as she had nowhere to live after having several foster placements breakdown.
It is Ms M’s evidence that she lived with the Respondent and her family from 2000 to 2005 save for a very short time when she went to Queensland.
It is Ms M’s evidence that from her observations, the Applicant and Respondent had more of a friendship than an intimate relationship. It is her evidence that the Applicant rarely stayed at E Street, Suburb F and her recollection was very occasionally waking up to find the Applicant asleep on the couch.
Whether a sexual relationship exists
It is the Applicant’s evidence that he and the Respondent had a sexual relationship for the entirety of the period that he says their relationship existed.
It is the Applicant’s evidence that he would stay at the Respondent’s home, she would stay with him at his parents’ farm at Town D and that they shared a bed in the main bedroom at B Street, Town C.
The Respondent agrees she was in a sexual relationship with the Applicant when they were in their boyfriend/girlfriend relationship between 1997 and 2002. There was also a brief period where they resumed intimacy in 2011/2012. The Respondent denies that they had a sexual relationship at any other time.
It is the Respondent’s very clear evidence that she and the Applicant did not share a bed at B Street, Town C. When she was at the property she slept in the main bedroom and the Applicant slept on a mattress in the lounge room.
It is the evidence of the Respondent’s son-in-law Mr T that when he went up to B Street, Town C to work on the property or his family camped at B Street, Town C he would go into the house and use the bathroom at night. It is his evidence he saw the Applicant sleeping on a mattress in front of the fire in the lounge room. During the day the Applicant’s mattress would be pushed to the corner of the lounge room together with his dog’s bed and his camp chair. It is his evidence he never saw the Applicant and the Respondent sharing a bedroom at any time her was at B Street, Town C between 2010 and 2018.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
It is common ground that the parties maintained separate finances. They had separate bank accounts and at no time were their finances intermingled.
It is the Applicant’s evidence that in the first tranche of their relationship between 1997 and 2002 he contributed to the living expenses of the Respondent and her children by paying for groceries and contributing to other living expenses.
It is the Applicant’s evidence that after the parties resumed their relationship in or around 2005 he would regularly cook and provide meals for the Respondent for her to use during her working week.
It is the Applicant’s evidence that he has spent considerable monies in purchasing necessary items and infrastructure for B Street, Town C in order to make the house on the property habitable.
It is the Applicant’s evidence he paid the Respondent’s MV e-tag as it was linked to his e-tag account.
It is the Respondent’s evidence that the Applicant made no contribution whatsoever to the groceries and living expenses of she and the children in the first tranche of their relationship. It is her evidence that she paid the rent, the utilities, the groceries and all other expenses for herself and her children.
The Respondent agrees that the Applicant has purchased some items that have been used at B Street, Town C. It is his evidence however that the majority of purchases for the improvements for the property have been made by her.
The Respondent agrees there was a period when the Applicant paid her e-tag. This was because the Applicant insisted the Respondent link the e-tag on her vehicle to his account.
The Respondent has been solely responsible for the payment of the mortgage, rates, insurances and other outgoings in relation to B Street, Town C with no contribution whatsoever from the Applicant. This is despite him living on that property since 2015 when the Applicant moved in without her permission.
The ownership, use and acquisition of their property
It is the Applicant’s evidence that he and the Respondent had many discussions after their relationship resumed in 2005 that they should purchase a property in the country with a view to it becoming their long-term home.
The Applicant states that when the Respondent found B Street, Town C he was gold prospecting in Western Australia. It is his evidence that in one of their regular telephone conversations the Respondent discussed the property with him and that he agreed it sounded like a good investment for them.
The Applicant’s evidence is that after the purchase of the property he worked alongside the Respondent for many years to improve the property and make it habitable for them. He did this because he and the Respondent had a mutual understanding that this would be their future home.
The Respondent completely rejects the Applicant’s evidence that they had any discussions about jointly looking for a property in the country with a view to it becoming their future home together.
It is the Respondent’s evidence that she was able to start saving money when her children reached adulthood and were living independently and she moved in to live with her brother. Because of her relatively small income, she realised that she could not afford to buy a property in Melbourne and therefore made the decision to look in the country where property was much more affordable.
It is the Respondent’s evidence that when she found B Street, Town C she asked her brother to come with her to inspect the property. After she and her brother inspected B Street, Town C she made the decision that it was affordable and had the potential, with a lot of work, to be a home for her in the long-term.
The Respondent purchased the property for $115,000. She paid the deposit for the property from her savings and otherwise obtained a mortgage for approximately $108,000.
It is the Respondent’s evidence that it was not until after she had purchased B Street, Town C that the Applicant re-entered her life. He then forced his way into spending time on the property ultimately taking advantage of her complete breakdown to move into the property after he was evicted from his parents’ former home.
It is the Respondent’s evidence she did not take any steps to have the Applicant removed from B Street, Town C after he moved in in late 2015 despite her not wanting him there as she was too scared of how he would react if she tried to get him evicted from the property.
The Applicant inherited $92,483 from the estate of his late father. At the date of the hearing, the Applicant has in excess of $100,000 in his bank account being the whole of his inheritance and the interest earned thereon since he received it in 2015.
The Respondent argues that if she and the Applicant had been in a committed de-facto relationship with a joint desire to develop and restore B Street, Town C so that it became their home together, the Applicant would have invested his inheritance in B Street, Town C so that the appropriate renovations could be done to create a habitable home for the two of them. He did not do this.
The degree of mutual commitment to a shared life
It is the Applicant’s evidence that he believed he and the Respondent to be in a committed relationship with a shared desire to move forward as a couple ultimately living together at B Street, Town C.
The Applicant describes his relationship with the Respondent as being exclusive, to them providing support and sustenance to each other and of it being an ongoing intimate relationship.
The Respondent denies she and the Applicant ever had a mutual commitment to a shared life. It is her evidence that they were boyfriend and girlfriend for a short period between 1997 and 2002 and that their relationship completely broke down when the Applicant stabbed her then partner in 2003.
When the Applicant re-surfaced in her life in or around 2010/2011 when he turned up at the B Street, Town C property it is the Respondent’s evidence there was a very brief resumption of an intimate relationship that ended by 2012. It is the Respondent’s evidence that she never had a commitment to a shared life with the Applicant.
The Respondent reiterates that despite the Applicant inheriting $92,000 from his late parents’ estate in 2015, he at no time offered to put any of those monies towards the costs of renovating the very run down home on B Street, Town C. She questions why this would be so if the parties had a commitment to a shared life.
The care and support of children
Whilst the parties have no children together, it is the Applicant’s evidence that he had a good relationship with the Respondent’s children and with her granddaughter O.
In support of this he notes that Ms G held a millennium party at his parents’ Town D home on New Year’s Eve 1999 and that the Respondent’s daughter Ms J held her 21st birthday at the Town D property.
It is the Applicant’s evidence that he has a close relationship with O who called him “Grumpa”. He believed O saw him as a grandfather figure and that this was her abbreviation of grandfather.
The Respondent agrees that in the period that she and the Applicant were boyfriend and girlfriend during her children’s teenage years, they did spend time with him, particularly on holidays and occasionally at the Town D property. However, it is her evidence any connection between the Applicant and her children died out when she and the Applicant’s relationship petered out in 2002. It is her evidence there was no relationship between her children and the Applicant after the Applicant stabbed Mr N.
The Respondent explains that Ms J held her 21st birthday at the Town D property as she wanted to throw a huge party and Town D was big enough to accommodate the numbers. She also notes that Ms J was the Applicant’s favourite of her children.
In relation to O, the Respondent, her mother and stepfather all refute that O saw him as a grandfather figure. It is their belief that her nickname for him, “Grumpa”, was because she thought the Applicant was a grumpy old man.
It is Ms G’s evidence that the Applicant was never an important person in the lives of herself or her siblings. It is her evidence that he had little involvement in their day to day lives in the late 1990s/early 2000s and has had no involvement in their lives since then save for when they saw him at B Street, Town C after he moved in in late 2015.
It is the Respondent’s evidence she remained fearful of the Applicant after his assault on Mr N in 2003. She told the Court that when the Applicant re-entered her life in 2011, she was seeing someone else. Because of her fears of what the Applicant would do if he found this out, she broke off that relationship. Because of her fear of how the Applicant would react, it is the Respondent’s evidence she was too scared to stop his involvement with B Street, Town C or have him removed from the property when he moved in in 2015.
The reputation and public aspects of the relationship
It is the evidence of the Applicant’s sister Ms V that she believed her brother and the Respondent to be in a de-facto relationship for 22 years.
Under cross-examination it became apparent that Ms V only saw the parties together on a handful of occasions and her understanding of their relationship was based on what she had been told of that relationship by the Applicant.
It is the evidence of Ms G and Ms M that when the Applicant and Respondent were in a relationship between 1997 and 2002 they were nothing more than boyfriend and girlfriend. Ms M even questioned whether their relationship went that far or whether they were just friends.
It is the evidence of Ms G, Mr T and Ms M that after the Applicant reappeared in the Applicant’s life in or around 2011 they did not believe them to be in any form of romantic relationship.
It is the evidence of Ms G, Mr T, Ms M and the Respondent’s brother Mr Y that they believed that when the Applicant came back into the Respondent’s life in 2011 she was fearful of him. Mr Y bases this on conversations that the Respondent had with him and Ms M on her observed interactions between the Applicant and the Respondent in which she described the Applicant as being “bullying, manipulative and violent towards the Respondent.”[2]
[2] Paragraph 13, affidavit of Ms M sworn 23 June 2021.
CONCLUSION
I accept the Applicant is genuine in his belief that he and the Respondent had a long-term committed relationship. When giving her vive voce evidence Ms V said that the Applicant genuinely loved the Respondent.
It is just as apparent that the Respondent at no time considered herself to be in a long-term committed relationship with the Applicant and that at best there was a relatively short period some 25 years ago when they were boyfriend and girlfriend.
What the parties consider their relationship to be is not however the basis upon which matters of this type are decided (Crick & Bennett [2018] FamCAFC 68). Rather in order to determine whether the parties were in a de-facto relationship, the Court must look at the factors set out under s.4AA(2) of the Act and any other relevant considerations to determine whether the parties were living together as a couple on a genuine domestic basis.
The first period of the parties’ relationship was between 1997 and 2002. During that period the parties had a sexual relationship and took holidays together with the Respondent’s children.
The Applicant describes himself as living with the Respondent and her children in her rental accommodation at E Street, Suburb F and contributing to the living expenses of that household. This is refuted by the Respondent, Ms G and Ms M whose evidence is the Applicant stayed at their home infrequently and never for more than a night at a time.
The Respondent’s evidence is there was no contribution made by the Applicant to her household living expenses.
On the Applicant’s own evidence he was at his parents’ house for up to four nights every week looking after them and their home. The Applicant was also involved in his hobbies, spending most weekends on this activity. The Respondent was working full-time including on weekends.
I am therefore of the view that the Respondent’s description of their relationship as “girlfriend/boyfriend” is an accurate reflection of their relationship during this period and that the parties cannot be seen to have lived together as a couple on a genuine domestic basis during this period.
In 2003 there was an horrendous incident when the Applicant stabbed the Respondent’s then partner Mr N with a spear. The Applicant was arrested, charged and spent nine months either in remand or by way of a sentence because of this assault.
The Applicant’s evidence that shortly after this offence he was somehow in New South Wales and was rung by the Respondent to be told that her granddaughter O was extremely ill and in the Royal Children’s Hospital beggars belief. Firstly, the Applicant would still have been in jail at this time. Secondly it is most unlikely that the Respondent would have wanted any contact with the Applicant immediately after that horrendous assault. Further it is the Respondent’s evidence she was still in a relationship with Mr N at this time, albeit they broke up in mid-2004.
It is the Applicant’s evidence that he and the Respondent re-connected in 2005 and that their relationship has continued since that time. It is his evidence that the Respondent spent regular weekend time at his parents’ home in Town D and that he would visit her where she was living either with her brother or Ms G.
The Respondent denies having any contact with the Applicant until 2010/2011 when he was visiting the caretaker then living at B Street, Town C. She notes she may have possibly seen the Applicant at his parents’ funerals in 2007/2008.
The Applicant’s sister Ms V deposes to the Applicant popping in to see her in Suburb R when he took meals to the Respondent at her brother’s property in Suburb R where she lived from 2006 to 2015. She was unable to recall what year or year/s this was. She also gave evidence to seeing the Respondent at her parents’ former home visiting the Applicant after their parents died. In cross-examination she identified this occurred after her parents’ home was painted after their death which meant it was around 2011 that she saw the Respondent with the Applicant at the Town D property.
It is Ms G’s evidence that the Applicant reappeared in her mother’s life around 2011.
It is the evidence of the Respondent’s brother Mr Y that in the entire time the Respondent lived with him between 2006 and 2015, he can only recall the Applicant visiting his home on one occasion. He could not recall what year that was.
The Respondent agrees that the parties briefly resumed an intimate relationship in 2011 but it is her evidence that that relationship was very short lived and had finished by 2012.
The Applicant and Respondent both went to B Street, Town C from 2011 onwards. They agree that the Applicant did some works on the property to make the house more habitable. The Respondent refutes the extent of the works claimed to have been done by the Applicant and notes that she had considerable assistance from her brother and her son in law to fix up the property.
Between 2011 and 2015 the Applicant was residing in his parents’ property at Town D when not visiting B Street, Town C. The Respondent was living with her brother and working full-time including doing as much overtime as she could obtain on weekends in order to meet the expenses of her newly-acquired property.
In late 2015 the Respondent had a mental breakdown and was admitted to the psychiatric ward of the S Hospital for two weeks.
The Respondent had been an inpatient at that hospital for over a week before the Applicant found out about that admission.
Tendered into evidence was a copy of the Respondent’s Z Clinic GP Mental Health Treatment Plan dated 26 November 2015. In that document the Respondent’s key family/support contact is listed as her daughter Ms G.
Further tendered into evidence is a copy of correspondence from the Respondent’s treating consultant psychiatrist Dr AA addressed to the Respondent’s general practitioner dated 25 January 2016. In that correspondence Dr AA writes as follows:
She was married for 10 years… he ended the relationship after abusing her in front of the children.
She has had no long-term relationships since then. She has had job stability. She is close to her children. She has dementia. She has a good relationship with her brother that she lives with. She has close friends.
It is the Respondent’s evidence that after she had her breakdown she was very unwell. She was discharged from hospital to the care of her daughter Ms G who took responsibility for ensuring that she attended all appointments with her treating mental health practitioners, that she took her medication and who otherwise took care of her. The Respondent has not been able to return to work since then.
It is Ms G’s evidence that she is not aware of the Applicant contacting her Mother whilst she was in her care and that he at no time visited her Mother at her home.
It is the Respondent’s evidence that when she suffered her breakdown the Applicant took advantage of the situation and moved into the B Street, Town C property without her knowledge or consent taking with him the various chattels, tools and what she would describe as junk that he had inherited from his parents’ estate. She believes at the time steps were being taken by the purchaser of the Town D property to have the Applicant evicted and the Applicant had nowhere else to live. It is her evidence that because of her fear of the Applicant, she was too scared to take steps to have the Applicant removed from B Street, Town C despite her not wanting him to live there.
It is the Applicant’s evidence that he moved into the B Street, Town C property with the full knowledge and consent of the Respondent. Having done so he continued to work on improvements to the property.
In January 2018 the Respondent and Ms G’s daughter O moved to B Street, Town C when it became untenable for O to continue to live with her family. This was due to the behavioural issues from which O suffers which was placing her younger siblings at risk of physical harm if she remained living in their home.
On the evening of 30 June 2018 there was an incident at the B Street, Town C property when the Applicant was drunk and affected by cannabis. He was verbally and physically abusive to the Respondent, Ms G and Mr T. Mr T called the police and the Applicant was removed from the property. An intervention order was taken out by the Police preventing the Applicant from returning to B Street, Town C. That intervention order is an indefinite one.
Whilst the Police statement in the application for the intervention order states “the AFM and the Respondent were in a de facto relationship for 20 years”, the Respondent’s evidence is she did not tell the Police this and suggests this is either what the Applicant told them or an assumption made by the Police because of the Intervention Order that was discovered to still be in place from 2003.
The Applicant argues that the relationship that he had with the Respondent from 2005 to 30 June 2018 was a de-facto relationship and that he and the Respondent were living together on a genuine domestic basis.
The picture that paragraphs 129 – 157 of this judgment paint of the parties’ relationship from 2005 to June 2018 cannot be seen to be one of a couple living together on a genuine domestic basis for the following reasons:-
•other than a very brief period between January and June 2018 they did not have a common residence;
•at no time was there any financial dependence, interdependence or arrangement for financial support between them;
•there is no mutual intention of a joint life together. This is best evidenced by the Applicant choosing not to use any of the funds from the inheritance from his parents estate to improve B Street, Town C despite his evidence that the property was purchased because of the parties’ joint decision to buy it to be their home for life;
•the Applicant did not contribute to the mortgage, rates or bills at B Street, Town C. He paid the Respondent no rent to live there. He lived on the property at no financial cost to him. The costs of the mortgage, bills and rates were borne solely by the Respondent, as well as most of the costs of “renovations”. The works undertaken by the Applicant can be seen to be in lieu of the financial contribution one would be expected to make when living in someone else’s home rather than work undertaken to improve a property in which the parties have a joint commitment;
•the parties had more than ample opportunity to live with each other post-2006 when the Respondent no longer had the responsibility for her children as they had all reached adulthood and left home. They did not do so;
•there is a genuine question whether there was in fact any relationship at all between the parties between 2003 and 2011;
•I am satisfied there was a limited resumption of any intimacy between the parties in 2011 and this was for a short period of time only;
•the public perception of the parties’ relationship was that they were not a couple. The evidence of the Respondent’s family as to the nature of the parties’ relationship is preferred to that of the Applicant’s sister. The Respondent’s family’s perception of the nature of the parties’ relationship is based on their own observations of the parties whilst the Applicant’s sister’s view of the relationship is based on what the Applicant told her;
•that the Respondent never considered herself to be in any long-term, meaningful relationship after the breakdown of her marriage is best evidenced by what she told her treating psychiatrist after her breakdown. If she had been in the kind of relationship described by the Applicant, one would have anticipated that she would have discussed this with her psychiatrist and listed the Applicant as her support person.
For all these reasons I am satisfied that these parties never lived together as a couple on a genuine domestic basis and therefore have never been in a de-facto relationship as defined by s.4AA of the Act. A declaration to that effect shall be made.
In addition to the Court making a declaration the parties were not in a de facto relationship, the Respondent is seeking that the Court make ancillary orders that the Applicant withdraw the caveat lodged by him on the property at B Street, Town C and that within seven days he attend upon that property in the presence of a police officer to remove the various chattels, plant and equipment belonging to him that are currently on the property.
The problem with that application is that the declaration that these parties were not in a de-facto relationship means the Court has no jurisdiction to make orders of the type sought by the Respondent. However as they are matters that must occur, it is hoped that agreement will be reached between the parties for those matters to be attended to forthwith.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 3 September 2021
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