Asprey and Delamarre
[2013] FamCA 214
•5 April 2013
FAMILY COURT OF AUSTRALIA
| ASPREY & DELAMARRE | [2013] FamCA 214 |
| FAMILY LAW – DE FACTO RELATIONSHIPS – declaration as to the existence of a de facto relationship – where the parties demonstrated a mutual commitment to a shared life – where the public aspects and reputation of the parties’ relationship was as a couple living together on a genuine domestic basis – where the parties jointly cared and supported the two children of the relationship – where the parties jointly contributed to the expenses of the relationship - where the parties never lived together for more than seven weeks – where the parties’ relationship lasted almost nine years |
| Family Law Act 1975 (Cth) ss 4AA, 90RD and 90RG |
| Jonah v White (2011) 45 Fam LR 460 Jonah & White [2012] FamCAFC 200 |
| APPLICANT: | Ms Asprey |
| RESPONDENT: | Mr Delamarre |
| FILE NUMBER: | SYC | 4348 | Of | 2011 |
| DATE DELIVERED: | 5 April 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 4, 5 and 6 February 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridger |
| SOLICITOR FOR THE APPLICANT: | Jo Anna F S Moy Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice |
| SOLICITOR FOR THE RESPONDENT: | Aubrey Brown Partners |
Orders
Declarations pursuant to S90 RD of the Family Law Act 1975 (Cth) are made as follows:
1.1That a de facto relationship existed between Ms Asprey and Mr Delamarre from May 2002 until January 2011.
1.2That there are two children of the de facto relationship namely B born … July 2007 (“B”) and C born … September 2010 (“C”).
The proceedings are listed for directions at 9.00 am on 18 April 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Asprey & Delamarre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC4348 of 2011
| Ms Asprey |
Applicant
And
| Mr Delamarre |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Asprey for a declaration that:
(a)a de facto relationship existed between herself and Mr Delamarre from May 2002 until January 2011;
and if that declaration is made:
(b)that there are two children of the de facto relationship namely B born in July 2007 (“B”) and C born in September 2010 (“C”).
An application for an adjustment of property pursuant to Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) has been filed. If the first declaration is made, procedural orders are sought for financial disclosure to be made by the respondent.
Mr Delamarre opposes the making of declarations on the ground that the relationship between the parties does not fit within the definition in the Act of a de facto relationship. If the declaration is not made, the respondent seeks dismissal of the application for procedural orders and of the final application for financial adjustment.
Issues
The issues for determination are:
(a) was there a de facto relationship between the parties and, if there was;
(b) for what period of time did it endure.
It is not in dispute that the geographical requirement (s 90RG) for a declaration to be made has been met.
In the event that the first declaration is made, the parties agree that there would be no impediment to the making of the second declaration in respect of the children.
Short history of relationship
The parties met in 2002 at a conference. The applicant was then aged 33 years and was single. The respondent was aged 41, married, but estranged from and in legal dispute with his wife. He was divorced in 2003.
There is significant disagreement between the parties over the events of the following almost nine years. However, two important matters are certain. Firstly, that two children were born to the parties, namely B aged five and C aged two, and secondly, that the personal relationship between the parties broke down in January 2011 and has not been restored. They continue of course to have a relationship as parents.
Evidence of the parties
The applicant, Ms Asprey
The applicant gave her evidence in a calm straightforward way and was willing to make concessions during cross examination.
An example of this is that she had deposed to spending every weekend with the respondent after December 2007[1], but agreed in her oral evidence that it might have been 95 per cent of weekends. Taken together with her further statement in the affidavit, that the respondent came down to her home in Suburb D to spend some weekends with her and B, her evidence was not inconsistent.
[1] Affidavit of Ms Asprey sworn 21/02/2012, para 20
She did not defend or attempt to explain her position in her answers. She readily agreed that she had never given the respondent’s address as her own, and that there had been no financial interdependence. This was carefully qualified with one exception, “I went in for furniture for [B’s] bedroom at his home”.
The applicant was cross-examined about the log book she kept, on the basis that the number of kilometres she claimed for private travel was inconsistent with her claim of travelling all or most weekends. I accept the evidence of the applicant that she did not use the log book method in relation to her taxation return, although she kept log books. Whether or not it was a correct belief she believed she was claiming, for tax purposes, the maximum allowable number of hours for work related travel.
My impression was that the applicant made every effort to be accurate.
The respondent, Mr Delamarre
The respondent appeared to be defensive of his position. During his cross-examination he was generally unwilling to make any concessions about the extent and significance of his relationship with the applicant, “She was not my partner, we saw very little of each other”.
He went further and resiled from the evidence in his own affidavits. In his two affidavits sworn 22 March 2012 and 20 September 2011 (which the father tendered as an exhibit during the proceedings) the respondent had said this[2]:
From May 2002 to June 2005 the Applicant and I did not see each other on a regular basis and it would quite often be at least 4 weeks between spending time together.
From June 2005 to November 2006 the Applicant and I commenced seeing each other more regularly…
[2] Mr Delamarre’s Affidavit sworn 22/03/2012, paras 53.3-53.4; Exhibit 8, para 2.1
When taking up the leave granted to amplify the words “regular” and “more regularly”, the respondent gave the following evidence. In the first three year period it was said to be one day, once per month. In the second period twice per month, sometimes for one day, sometimes for two days at a time.
In cross-examination which followed, the respondent said that he had not seen or had any contact with the applicant at all, after May 2002, for a period of 12 months. This was not only inconsistent with his sworn evidence, but inconsistent with his oral evidence referred to above.
Further, the respondent went on to assert that after the birth of each of the children, the reason why the applicant and the children came to his home on the Central Coast was solely for him to see the children and not for any personal reasons for the parties as a couple. I reject this evidence entirely.
The children were born in 2007 and 2010. The respondent agrees that the relationship, however defined between them, did not break down until January 2011. It was an obvious concession to make and consistent with his own evidence that the personal relationship was ongoing.
I formed the strong impression that the respondent entered the witness box determined to give whatever answer he thought most likely to assist his case that the relationship between the parties did not fit within the legal definition of “de facto relationship”.
The Health Fund
Another example of this self defeating determination arose in the context of the respondent’s health fund.[3]
[3] Exhibit 2
On 29 September 2006 the respondent filled in and lodged a form titled “Change of Membership Details”. Under the heading, “Changes to spouse partner or dependant details”, he filled in the name of the applicant as “partner” and his former wife (to be removed from the Fund) as “ex-wife”. The proposition was put to the respondent that he had taken that step because:
(a)the applicant did not have health insurance; and
(b)she needed to be in the fund prior to conception.
The respondent denied the second purpose. At that point he had conceded at least one conversation by that date about the parties having a baby. The first child B was born in July 2007. She must have been conceived a few weeks after the fund membership was arranged. It was a practical decision. However, the respondent asserted that it was a purely financial decision to put the applicant into the Health Fund, since she otherwise would have had to pay the Medicare tax levy, “I did not want to have a family. I was helping her out not to pay the levy”.
When he gave those answers the respondent knew that letters from himself to the Health Fund had already been tendered into evidence. Correspondence dated 15 January 2007 explains with clarity the respondent’s intention in changing his membership. On that day he had discovered that the change of membership form lodged on or after 29 September 2006 had apparently not been processed. He says in the correspondence:
I am herewith requesting that my details be amended and back dated to 29 September 2006 as per my original request. My partner of 4 years, [Ms Asprey], and I have been informed just prior to Christmas that we are expecting our first child and I was of the understanding that she would be covered for all medical expenses under my existing membership.[4]
[4] Exhibit 2
The respondent is an intelligent, articulate man, a professional running two businesses. I am satisfied he did not misunderstand the situation. His denial of such an obvious matter, is consistent with his overall defensiveness.
I came to the conclusion that I could not rely on the evidence of the respondent and prefer the evidence of the applicant on disputed matters.
The law
A declaration pursuant to s 90RD of the Act can only be made if the Court is satisfied of the existence of a de facto relationship. The definition of a de facto relationship is set out in s 4AA 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
having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
(2)The circumstances of the relationship 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 inter-dependence 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 relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship (s 4AA(3)). 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 (s 4AA(4)). For the purposes of the Act, a de facto relationship can exist, even if one of the persons is legally married to someone else or in another de facto relationship (s 4AA(5)(b)).
I will consider the elements set out for consideration in the legislation, together with some other particular matters.
(a) The duration of the relationship
The applicant asserts that there was a continuous relationship between the parties from May 2002 until January 2011, other than a break of about three months in 2003 after which the parties reconciled.
She says further that there was a dispute between them towards the end of 2006 that the parties did not speak for a week or so, but there was no break in the relationship.
The respondent asserted two inconsistent propositions. That after the first meeting in May 2002, there was a 12 month period until the parties met again by chance at which time a relationship began. Alternately, that the parties met with increasing regularity at least monthly from May 2002. He further says that in early November 2006, he terminated the relationship which re-commenced in January 2007 and continued for four more years.
There would be no significant difference to the outcome, whichever evidence I accepted, about these two breaks in the relationship. However, I accept the evidence of the applicant on duration. Accordingly, I find that a personal relationship between the parties endured for eight years and eight months.
(b) The nature and extent of their common residence
It is conceded by the applicant that she and the respondent did not live together in the same house for any continuous period longer than seven weeks. When they first met, the applicant lived in Suburb D and the respondent was renting premises in Suburb E. Throughout the relationship each party moved house; the respondent several times, but they did not, other than for a period of weeks after the birth of each of their children, live together continuously in the same house.
The applicant says that within a month of their first meeting, she began to spend each weekend with the respondent at his home, that the respondent gave her the keys to his house against the times when he was still at work when she arrived and that this pattern continued with some variation throughout the relationship. There were also times together for holidays and special occasions. The respondent sometimes stayed with the applicant in her home.
The parties very often considered living together fulltime. At different times each of them desired that outcome strongly, the applicant in the early years of the relationship, the respondent after the birth of each child. However they could not agree on how to live together. They looked at houses together in Sydney and could not agree on one. Later the respondent wanted the applicant to move to the Central Coast and live with him. The applicant probably would have done so, but there was a stumbling block. The applicant worked from home throughout the relationship. She wanted to continue doing so. The respondent did not agree to her working from his home. He wanted her to lease separate premises. She did not agree. In the applicant’s opinion it would have been too expensive and working from home was even more attractive to her after the birth of the children. They argued intensely without resolution whilst continuing to spend most weekends and other special times together.
This passionate disagreement about how to live together is significant. I formed the view that this was not a casual relationship where the parties got together at weekends when they were free to do so. They wanted to spend all their time together, as a family, each on their own terms.
(c) Whether a sexual relationship exists
The applicant asserts that a sexual relationship started within a few weeks of meeting in 2002. The respondent did not dispute that. He referred to a “romantic relationship” between them.
The applicant was pregnant to the respondent three times, the second pregnancy ending in miscarriage in 2009. The parties’ second child was born four months before final separation.
I can easily conclude that the parties maintained a sexual relationship throughout the period.
The applicant asserted that throughout the relationship she was committed to the respondent and did not go out with any other man.
The respondent gave evidence that the applicant had told him in February 2007 that whilst they were not seeing each other (in late 2006), “She had gone to a Singles Bar and met [‘Mr F’] a single father and dated him several times”.
The applicant denies having told the respondent that information and denies that she did any such thing. It seems unlikely. The applicant was pregnant to the respondent by October 2006.
The respondent gave this evidence in response to an aspect of leave, similar material having been struck out. He spoke with some passion and my impression was hurt feelings. Whatever actually happened, the possibility of the applicant becoming interested in another man was clearly a matter of considerable significance to the respondent, consistent in my view with a committed relationship.
(d) The degree of financial dependence or inter-dependence and any arrangements for financial support between them
Both parties are self employed. They maintained separate bank accounts and were not financially dependent on each other. They each paid the ongoing expenses associated with their own residence. The respondent paid for ironing, house cleaning and gardening services at his home.
The applicant says and I accept, that the parties “took turns paying for outings and activities.” They each spent money for food, groceries and domestic items.[5] In the weeks following the birth of a child, the respondent met all domestic expenses and the cost of some of the applicant’s personal needs.
[5] Affidavit of Ms Asprey sworn 21/02/2012, para 67
The respondent effectively asserts that he made a greater contribution to outings and activities. That was probably so. The respondent refers to the applicant having been reluctant to accompany him to many of his work based social functions. She attended many fewer than she was invited to. When she did, it is likely the respondent paid. Holidays together were sometimes associated with conferences relating to the work of the respondent.
(e) The ownership, use and acquisition of their property
The parties contemplated buying a house together but never did. I accept that had they done so the financial contributions would most likely have been exactly equal and in both their names. They each bought a house of their own during the relationship and made all residences that they owned or rented over the years available to the other and to their children as needed.
The parties bought and maintained their own cars.
(f) The degree of mutual commitment to a shared life
When they were together both parties shopped, the respondent usually cooked meals and the applicant usually cleaned and tidied up, although not always to the satisfaction of the respondent.
The extent to which the parties struggled and argued over how to live together as a family does, in my view, reflect mutual commitment to a shared life. Each party has a strong somewhat stubborn personality.
The applicant says and I accept that the respondent worried about all the travel the new baby (B) would have to do. The applicant sold her house in Sydney. The parties got so far as calling for a contract on a house in Sydney which was sold prior to auction.
I infer that to the extent that the respondent had ever intended to move to Sydney, his enthusiasm cooled after the parties missed that property. However I consider it more likely that he expected from the outset, that sooner or later the applicant would agree to live with him on the Central Coast.
After B was born in 2007, the applicant did move in with the respondent on the Central Coast. As he usually did, the respondent worked away during the week in his businesses in G Town and H Town. The applicant felt lonely and unsupported and was cut off from the clients of her business. The applicant appeared to decide that the “experiment was over” and after seven weeks moved in with her parents in Sydney.
I had the clear impression that that there was a competitive feisty aspect to the parties’ relationship. At one point when challenged over the omission of a particular conversation from his affidavit, the respondent said this as a throwaway line “We could be here for the next 10 years if I’d put in every conversation we’d had over the years”.
At no time were the parties indifferent to each other or their shared life.
I infer that the respondent took considerable persuading on the topic of having children. He has four sons from his first marriage. In cross-examination he denied that any of the applicant’s pregnancies were planned. This evidence is refuted by the way the respondent joined the applicant to his health fund before the first child was conceived. I consider that the respondent came to terms with the prospect of a second child, however reluctant he was in the early years to have a first child.
However, the respondent did concede that he wanted the applicant to move in and live with him after B was born and pressed strongly again before C was born.
(g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed relationship
The relationship was never registered.
(h) The care and support of children
In addition to the care and support of their own two children, the parties were also both involved in the occasional care of the respondent’s younger sons, K and J. Very early in the relationship the applicant was introduced to the children and clearly became very fond of them. The children came to their father’s house for weekends and school holidays. On a couple of occasions there were holidays away together. The respondent minimised the contribution of the applicant[6]:
She very rarely interacted with my sons, she never cooked or baked or looked after my sons in any way.
[6] Affidavit of Mr Delamarre sworn 22/03/2012, para 34
When the respondent conceded the evidence of the applicant that she had attended a three day basketball camp at P Town and K’s birthday party at home, the concession was, “She was there as my girlfriend.” The applicant had referred to the two boys then aged 13 and 11, sometimes getting into bed with the parties on Sunday mornings. The respondent agreed that happened. The willingness of boys that age to do so reveals trust and closeness between the children and the applicant and an acceptance of her significance to their father.
In my view the applicant played a role in the lives of the two boys and was affectionate and attentive to their needs. Significantly she spent less time with the respondent when the boys first began spending time with their father to give them time alone together.
The parties are apparently engaged in litigation in this Court over the future arrangements for their own two children.
The reputation and public aspects of the relationship
The parties were well known to the families of each of them. There are numerous photographs[7] of extended family events on both sides. The respondent called four witnesses. Two were employed by him. Two were friends/business colleagues. All gave evidence of knowing the applicant and the two children, but recounting incidents and conversations tending to suggest that the relationship between the parties was less than solid and committed.
[7] Exhibit 3
No member of the respondent’s family, with whom I accept he is very close, gave evidence. I infer that their evidence would not have assisted his case. The applicant says, and the photographs support, that a warm inclusive relationship had developed between the parties and the relatives of each of them, particularly between the applicant and the respondent’s parents and brothers.
On the fiftieth wedding anniversary of the respondent’s parents there was a big celebratory dinner. The parties attended and gave a gift of a clock inscribed[8]:
To Nonna and Nono. Happy 50th wedding anniversary from [Mr Delamarre], [Ms Asprey] and the boys.
This was before the parties had their own children. I do not consider that the respondent would have included a casual girlfriend in this way.
[8] Affidavit of Ms Asprey sworn 21/02/2012, para 55
Soon after separation in 2011, the respondent asked the applicant to accompany him to a family reunion of his mother’s extended family. He had not told his parents of the break up and “didn’t want to worry them.” This is an indication of the positive place the applicant had in the respondent’s family.
There was a similar relationship of close affection between the respondent and the applicant’s sister, Ms L. Ms L related a private conversation between herself and the respondent[9] and many conversations with her sister[10], where each party confided to her that all that party wanted was for the couple and their children to be together as a family.
[9] Affidavit of Ms L sworn 16/10/2012 , para 27
[10] Affidavit of Ms L sworn 16/10/2012, para 28
Ms L clearly had the trust affection and confidence of her sister and the respondent. When the relationship ended he sent an affectionate message of regret to Ms L.
I have the very clear impression that many members of both extended families were somewhat puzzled by the relationship between these parties but had accepted it and were welcoming.
Conclusion
A determination of whether a de facto relationship exists is a determination of fact.[11]
[11] See Jonah v White (2011) 45 Fam LR 460 and Jonah & White [2012] FamCAFC 200
First and of greatest significance, the parties have two children together to whom they have been committed parents. They enjoyed an intimate sexual relationship during their years together. Neither of them was involved in a relationship with any other person throughout this time. There is a remote possibility that the applicant went out socially with another man during a brief period of estrangement. If she did, that would not affect my conclusion.
I have found that the parties lived together, mostly in the home of the respondent, but sometimes in the home of the applicant, for some part of most weeks throughout the relationship. Time together increased over the years with the parties spending most weekends and some holiday periods together from late 2006/early 2007 until separation in February 2011. The nature and quality of the relationship was that of a couple who wanted more time together, but could not agree on how to achieve that result. A couple who argued, disagreed and finally split up over how to live full time as a family.
They were known as a couple and held many social events, parties and barbecues for family and friends and were embraced as family members by each extended family. There was a close affectionate bond between the applicant and at least two of the respondent’s sons from his earlier marriage.
Financially they kept separate accounts and never a joint account. Such financial independence is not uncommon in modern relationships including marriages. I do not consider this aspect inconsistent with life as a couple on a genuine domestic relationship. They were each responsible for expenses in their own residences. A fulltime common residence was contemplated and desired, but never achieved.
In this matter, having regard to all the circumstances of the relationship of the parties, I conclude that they had a relationship as a couple living together on a genuine domestic basis. I consider that there was that “merger of two lives into coupledom” referred to by Justice Murphy in Jonah v White (2011) 45 Fam LR 460 at [60].
Accordingly I find that the parties were in a de facto relationship between May 2002 and February 2011 and that there were two children of that relationship namely B and C. I make declarations accordingly.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 April 2013.
Associate:
Date: 5 April 2013
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