Baden & Packwood
[2021] FedCFamC2F 204
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baden & Packwood [2021] FedCFamC2F 204
File number(s): HBC 50 of 2019 Judgment of: JUDGE TAGLIERI Date of judgment: 19 October 2021 Catchwords: FAMILY LAW – de facto property – whether court has jurisdiction to make orders adjusting property of the parties – where parties agree they were in a de facto relationship up to June 2006 – where Applicant asserts de facto relationship ended in 2016 – where Respondent asserts that de facto relationship ended in 2006 – where State powers regarding de facto relationship referred to Commonwealth in 2009 – where parties shared common residence until 2016 – finding that parties’ de facto relationship ended in 2006 – court does not have jurisdiction – application dismissed Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) Part VIIIAB, s4AA, s90SM
Family Law Amendment (De Facto Financial and Other Measures) Act 2008 (Cth)
Cases cited: Crowley & Pappas [2013] FamCA 783 at 8
Jonah & White [2011] FamCA 221
Tomson & MacLaren [2021] FamCA 620
Sinclair & Whitaker (2013) FLC 93-551 at [65]
Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 3 & 6 September 2021 Place: Hobart Counsel for the Applicant: In Person Counsel for the Respondent: In Person ORDERS
HBC 50 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BADEN
Applicant
AND: MR PACKWOOD
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
19 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application filed 22 January 2019 is dismissed for want of jurisdiction.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Baden & Packwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 22 January 2019, Mr Baden (“the Applicant”) made application to this Court seeking orders for the adjustment of property interests. The Respondent to the application is Mr Baden (“the Respondent”). The application sought to invoke the Court’s jurisdiction pursuant to Part VIIIAB of the Family Law Act1975 (“the Act”), which concerns financial matters relating to de facto relationships. Although not expressed as such, the application sought orders for alteration of property interests pursuant to section 90SM of the Act.
A preliminary question about jurisdiction arose in the proceedings, and on 5 September 2019 Judge Baker (as she then was) ordered that there be a trial of the discrete issue of “date of separation of the parties”. After this order was made the proceedings were delayed for various reasons which do not need to be set out.
When the matter first came before me on 27 May 2021, I listed the discrete issue for hearing on 3 September and 6 September 2021 (“the hearing”). I also listed the matter for a compliance check before me on 25 August 2021. At the compliance check the Applicant was represented by counsel and the Respondent was self-represented.
By the date of the hearing both parties were self-represented as the Applicant’s counsel had filed a Notice of Withdrawal. Due to his health difficulties, the Applicant was assisted at the hearing by a disability support worker, Mr C (“the support worker”).
THE OPPOSING CASES
The parties filed case outlines prior to the hearing which disclose that it is common ground that they were in a de facto relationship until 2006. The Applicant claims the de facto relationship continued until 2016, whereas the Respondent contends the de facto relationship ended in 2006. It is somewhat surprising that the parties have such disparate views about the date the de facto relationship ended, and that it took so long for either party to initiate court proceedings.
The Applicant relied upon affidavits affirmed by him and filed 28 February 2019, 1 September 2019, 1 December 2020 and the Financial Statement of 7 August 2019. During the hearing the Applicant also tendered a bundle of email communications between himself and others dated between 28 July 2006 and 24 June 2011.[1]
[1] Exhibit 1.
The Respondent relied on his affidavit and Financial Statement filed on 28 June 2019, his affidavit filed 14 January 2021, the affidavit of Mr D (“the Respondent’s partner”) filed 14 January 2021, the affidavit of Ms E (“the Respondent’s sister”) filed 1 December 2020 and the affidavit of Mr F filed 17 November 2020.
RELEVANT LAW
The jurisdiction of this Court to hear and determine financial property cases between de facto couples arises pursuant to the Family Law Amendment (De Facto Financial and Other Measures) Act 2008. These provisions were inserted as Part VIIIAB into the Act and commenced on 1 March 2009.
The State of Tasmania referred its powers to the Commonwealth for the purposes of Division 1 of Part VIIIAB of the Act, but the Court will only have jurisdiction to determine the substantive Application before it in these proceedings if the parties were in a de facto relationship on or after 1 March 2009.
The parties’ case outlines addressed the factors in section 4AA(1) to section 4AA(5) of the Act, which provide for the meaning of “de facto relationship”. Because the parties agree that they were in a de facto relationship at least until June 2006, the focus needs to be on what if anything changed between the parties and in their relationship after that time.
This enquiry will require findings about relevant factors in section 4AA(2) of the Act, comparing those before and after the alternate dates the parties contend the de facto relationship ended. It will also be useful to consider established principles referred to in many cases that have come before this court.
Section 4AA provides:
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.
In Jonah & White [2011] FamCA 221, Murphy J gave further guidance in assessing the facts of a case against the factors outlined in section 4AA of the Act:
60.In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
The complexity of the assessment required is highlighted in Crowley & Pappas [2013] FamCA 783, where Tree J said at [8]:
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
(b)a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive;
(c)the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d) there need not be full time living together;
(e) the relationship may be unhappy, but still subsisting;
(f) sexual or other exclusivity is not necessary;
(g)the gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.
[footnotes omitted]
As a general principle, the onus of proving a fact falls to the party asserting that fact. In this case the Applicant asserts that there was a de facto relationship between the parties until 2016 to enliven the jurisdiction of the Court to order an adjustment of property interests. Accordingly, he must satisfy the Court of that fact on the balance of probabilities.[2] That is, he must establish a jurisdictional fact. More precisely, he needs to establish that the parties were in a de facto relationship after the date this court accrued jurisdiction, being 1 March 2009.
[2] Evidence Act 1995 (Cth) s140.
The times at which a de facto relationship subsisted and when one ends is a matter for the determination of the Court on the facts, although the perceptions of the parties is relevant to this ruling.[3] Indeed, in Tomson & MacLaren [2021] FamCA 620 McGuire J says, relevantly:
34.As put to each counsel in their final submissions, it is entirely plausible for each of the parties to have a different view or understanding of the nature of their relationship.
[3] Sinclair & Whitaker (2013) FLC 93-551 at [65].
THE APPLICANT’S CASE
The Applicant’s affidavits lack detail in relation to the parties’ day to day life and interactions with each other following 2006. Further, the Applicant’s affidavit of 1 December 2020 makes very little reference to the Respondent’s partner and his association and relationship with the Respondent. The evidence largely constitutes assertion that after 2006 “nothing changed” and the Applicant continued to shop, cook meals and do housework for the Respondent and care for the Respondent’s pets.[4]
[4] Affidavit of the Applicant filed 1 December 2021 at [33].
There is undisputed evidence that the parties jointly purchased a property at G Street, Town H in Tasmania (“G Street, Town H”) in 2002 and took out a joint mortgage for that purpose, although the Applicant contributed a lump sum from funds he had received from his share of sale of a commercial property.
The Applicant also asserts that the parties had joint finances, but the affidavit material as to this is limited. He says that:
·The parties both used the Applicant’s pharmacy account which he paid from his Centrelink benefits.[5] Although he claims to attach an account for the period 2012 to 2019, the annexure is only for the period January 2012 to February 2013;
·In 2002 he furnished G Street, Town H, purchased beds, linen, and set up the kitchen with funds he received from his uncle;[6]
·The Respondent paid for the Applicant’s airfares and travel expenses to Country J in 2011;[7]
·That the parties used each other’s bank accounts and debit cards until 2016;[8]
·He regularly lent money to the Respondent until April 2016 for petrol and cigarettes;[9] and
·The parties had joint water bills and council rates, which he paid off.[10]
[5] Affidavit of the Applicant filed 1 December 2020 at [20].
[6] Affidavit of the Applicant filed 1 December 2020 at [21].
[7] Affidavit of the Applicant filed 1 December 2020 at [37].
[8] Affidavit of the Applicant filed 1 December 2020 at [43].
[9] Affidavit of the Applicant filed 1 December 2020 at [44].
[10] Affidavit of the Applicant filed 1 December 2020 at [46].
The Applicant’s evidence is that the Respondent suggested a break in the relationship between them in May 2016 and that the Respondent moved out that year formally separating from him.[11]
[11] Affidavit of the Applicant filed 1 December 2020 at [54].
The Applicant also annexed documents to his affidavit from a psychologist, an NDIS provider, real estate agent and vet expenses. He purports that these corroborate a separation in 2016. Consideration of the contents of these do not assist with identifying the date the parties separated, but do confirm that the relationship had broken down by 2017 and did not continue after that.
The Applicant’s earlier affidavit filed on 1 September 2019 answers the Respondent’s contention that separation was in 2006. It also addresses the Mr D relationship with from 2011. The Applicant states at paragraph 33 of the affidavit that:
·He did not consent to the Respondent’s partner staying G Street, Town H, but tolerated it; and
·The Respondent’s partner became problematic and he let the Respondent know that the Respondent’s partner was not welcome at G Street, Town H.
Under cross-examination the Applicant gave evidence stating that he regarded the Respondent and the Respondent’s partner to be “fuck buddies” because his relationship with the Respondent was an open relationship.
The Applicant was cross-examined about the assertion that the parties shared joint finances right up until 2016. When referred to the Applicant’s denial of knowledge that the Respondent was in receipt of a disability support pension, the Applicant maintained that he did not accept that the Respondent was receiving a disability support pension in 2006, despite the content of Annexure E of the Respondent’s affidavit of 14 January 2021.
It was put to the Applicant that his lack of knowledge of the Respondent’s source of income rebutted the notion that the parties had been sharing their finances after 2006. The Applicant’s response was highly emotive, and he accused the Respondent of keeping secrets from him. He asserted the Respondent’s secrecy, as the reason why he did not know about the income.
When cross-examined about an interest-free loan which the Respondent had taken out, the Applicant said he did not know about it and that the Respondent “kept a lot of financial secrets”. The Respondent put to the applicant that, after 2006, the parties merely accounted to one another for joint expenses, but otherwise paid their own personal ones. The Applicant disputed this and said that they pooled money and paid bills jointly. The Applicant did not agree with the proposition that “it was fair to say that [they] split bills”.
The Applicant was cross-examined about why, if they shared finances, he had not logged into the Respondent’s online banking to access monies for shared expenses. The Applicant replied that he did not have Respondent’s online banking password.
When asked about various loans from friends referred to in Part K of the Applicant’s Financial Statement filed 7 August 2019, it became apparent that the arrangements were trades or swaps of items of property owned by the Applicant to with friends who had provided money to him. It was suggested by the Respondent that there were plenty of people who assisted the Applicant financially, so that if he lent the Applicant money, this did not have any particular significance. It was put that it was not unusual for friends to assist the Applicant financially. The Applicant did not agree and maintained that he considered himself indebted to those persons.
The Applicant was asked about the argument in 2006, which marks the date the Respondent asserts was the end of the de facto relationship. The Applicant agreed that there was an argument, that the Respondent had told the Applicant he was leaving, and that the Respondent had moved out. But he added that the Respondent had moved out for a maximum of 3 to 6 weeks and then resumed living with him. The Applicant agreed that this did not involve sharing a bedroom, adding “because I never wanted you”.
The Respondent put to the Applicant that in the argument he had clearly stated he was separating and leaving. The Applicant disagreed and stated that the Respondent had thrown a tantrum, calmed down and then they had resumed their relationship.
When asked about the Respondent’s partner’s regular attendances at G Street, Town H and sharing the Respondent’s bedroom, the Applicant said that he thought nothing of it because they were in an open relationship. He was asked about paragraph 34 of his affidavit filed 1 December 2021 and why they would be “play[ing] happy families” if they remained a de facto couple, the Applicant stated “things weren’t great but we made it look as if it was fine”.
When the Applicant was pressed about the regular presence of the Respondent’s partner at G Street, Town H and time he spent with the Respondent, the Applicant became highly agitated and emotive, referring to the Respondent’s partner laying traps for him and becoming steadily more aggressive towards him.
The Applicant agreed that the Respondent had not disclosed to Centrelink that he was in a de facto relationship after there was an obligation to do so from 2009 because they had previously separated. I enquired whether the Applicant had done so as he also was receiving Centrelink. He replied that he had not, but that was because the Respondent had asked him not to do so until he had permanent employment.
The Applicant’s demeanour during the hearing was often argumentative and agitated. His evidence upon questioning of the Respondent, required me to frequently intervene to ask him to calm down, listen to the question and answer it rather than argue.
By late morning and before completion of his cross-examination, the Applicant had become extremely emotional and tired, stating he wanted to leave. He indicated that he was unable to continue with the hearing and needed to rest. The Court adjourned until the following Monday to accommodate his medical condition and distress.
To avoid the Applicant’s inconvenience and travel time, the remainder of the hearing was conducted by Microsoft Teams.
EVIDENCE OF MR F
On 6 September, the evidence of Mr F was taken. This witness being interposed due to work commitments without opposition from the Applicant.
Mr F gave evidence that he was the manager of the Employer K and worked there for 15 years. His affidavit affirmed 8 October 2020 and filed 17 November 2020 was read into evidence.
The Applicant put to Mr F that he had introduced the Respondent to him in 2006 after having met through Mr L. Mr F disagreed, stating that he had met the Respondent through the Commonwealth Rehabilitation Service when working on a program with the Council in 2004.
After testing this response a number of times without Mr F changing his evidence, the Applicant indicated with frustration that there was no point in further cross-examining Mr F.
THE RESPONDENT’S CASE
The Respondent informed me that he had decided not to continue with any other cross-examination of the Applicant. He identified that in addition to Mr F’s evidence, he sought to have read his affidavits filed on 14 January 2021 and 24 June 2021.
The Applicant then proceeded to cross-examine the Respondent.
The Applicant put to the Respondent that he had lied to Centrelink by not disclosing their de facto relationship. The Respondent disputed this, stating that he had always told Centrelink the truth. He was asked why he had ticked on a Centrelink form that he was living alone in 2006 when he was at G Street, Town H and had listed the same PO Box as the Applicant. The Respondent stated that he was living alone but sharing a house with the Applicant. Regarding the PO Box, he stated that it was only possible to have one PO Box per address and it had to be in someone’s name.
When it was put to the Respondent that he had transferred the PO Box into the name of another person with the post office, the Respondent agreed, saying that he had asked the Applicant for permission. The Applicant put to the Respondent that the fact of changing the PO Box indicated that they were still in a relationship, but the Respondent disagreed. When cross-examined about the phone bill and expenses, the Respondent stated that the phone account was in the Applicant’s name but that he paid his share of the bill. I surmise, although it has not been plainly put, that the Applicant invites me to find that the Respondent is not a reliable witness.
The Applicant then cross-examined the Respondent about periods of time from 1995 to 2006 in quite some detail, but there seemed no relevant purpose of that cross-examination as there was no dispute that the parties were in a de facto relationship in this period of time.
The Applicant put to the Respondent that, as he had moved back into the main house at G Street, Town H in 2006, how he could say they had separated then. The Respondent’s evidence was that both parties were dependent on Centrelink, implying they had limited finances, and that he thought they retained a friendship. He stated that he thought that they could remain friends and share the property. He also indicated that he was emotionally committed to G Street, Town H and did not want to leave it.
The Respondent was asked about moving out of the joint property on July 2016, saying that he needed a break and would move to Town M. The Respondent disagreed he had said this, adding it was impossible to share a house any longer and so he thought it was best to move out, to give them time to decide who would buy the other out. The Applicant put it to the Respondent that they had never had that discussion, but the Respondent disagreed.
The Applicant put to the Respondent that, in 2016, the arguments were about the wallpaper business which the Respondent operated from G Street, Town H, and although the Respondent had received money from his late grandmother’s estate he did not undertake repairs to G Street, Town H after major flooding in the kitchen. The Respondent denied that this precipitated a “separation” in 2016 as the Applicant alleged.
When asked what the Respondent had done with the inheritance he received from his grandmother, the Respondent stated that he had bought the Motor Vehicle 1, bought other personal items, and paid a tax bill of $6,000 to $8,000 or $10,000 which had arisen because they had made an error with his tax returns about income he had earned. The Applicant at this point made a telling remark: “I wasn’t aware of the tax bill because it had nothing to do with me.”
The Applicant asked the Respondent why he had not used the inheritance funds to repair the house at G Street, Town H. The Respondent stated that part of the reason was that if he did that or re-signed a mortgage to complete the work there would be a misinterpretation by the Applicant about what that meant.
The Applicant also cross-examined the Respondent about going to dinner together to Mr L’s house in 2009. The Respondent agreed that he had gone to dinner, but not as a couple, adding that a lot of people were invited to dinner at Mr L’s house.
The Applicant cross-examined the Respondent about email communications between the Applicant and Mr L referring to “give Mr Packwood] a hug” or other remarks indicative of intimacy, to which the Respondent replied that Mr L was self-absorbed and made mistakes. The Applicant put it to the Respondent that if it was the case that they were merely friends the Respondent had been “keeping him sweet” for financial advantage. The Respondent denied this, stating that he viewed the Applicant with sympathy and that he had a residue of feelings of friendship, but that it was not a de facto relationship.
The Applicant also cross-examined the Respondent about a pharmacy account in the Applicant’s name which was used by the Respondent well after 2009. The Respondent agreed that he used this account to obtain Norspan and nicotine patches, but said that the bills were split. The implication in the Applicant’s line of cross-examination was that he had paid for the Respondent’s medications.
The Respondent also was cross-examined about leaving pets for the Applicant to care for and that the Applicant paid veterinary expenses in 2021. The Respondent agreed that he had initially taken responsibility for the expenses, but that over time the dog named “N” became the Applicant’s pet. The Applicant’s cross-examination of the Respondent was strongly emotive and heartfelt. It appeared that he felt jilted, used and betrayed.
The Applicant put to the Respondent that if it was the case that he had separated from him in 2006, he could have taken out an ad in the paper or filed with a court earlier, but instead the Respondent had made the Applicant believe that that nothing had changed. The Respondent denied this and said that he had made it very clear in 2006 that he was separating, and further that they had discussed this and agreed to merely share the house. The Applicant put to the Respondent that if they had separated he could have moved out to live elsewhere, for example at his mother’s home. The Respondent did not agree, stating that he was 37 years old at the time and he did not feel as if he should move into his mother’s home.
At the conclusion of the Applicant’s cross-examination of the Respondent, the affidavits of Mr D and Ms E identified at [7] were read into evidence. Each were available for cross-examination.
Although still accompanied by the support worker, the Applicant’s emotions and stress were again stated to be high. At 11:15am, he indicated that he was unable to continue with the hearing and did not wish to pursue cross-examination of the Respondent’s remaining witnesses. I enquired if he was sure of this. He indicated that there was no point in cross-examining them.
I outlined options to the Applicant about how the hearing may be concluded. I indicated he could seek an adjournment or enquired if he would agree that I have regard to the affidavits of Mr D and Ms E and give them what weight I considered they deserved, in the context that they had not been subject to cross-examination. The Applicant did not want an adjournment and wanted the hearing finalised. He agreed with my alternate suggestion and stated that he did not agree with their evidence.
The parties then agreed that they would make their closing submissions in writing and my judgment was reserved subject to consideration of those. At the conclusion of the hearing on 6 September 2021 I made orders for the filing of such written submissions.
THE CLOSING SUBMISSIONS
The Respondent filed written submissions on 9 September 2021. In summary, he submitted that:
·He accepts that the Applicant possibly believed that their de facto relationship continued beyond 2006, but that if this was the case it was not a belief supported by the Respondent’s words and actions;
·He had an emotional connection to G Street, Town H, which was one reason why he remained living under the same roof as the Applicant after 2006;
·The corroborating evidence provided in his case is sufficient to demonstrate that he was no longer in a de facto relationship with the Applicant after June 2006; and
·His sister retained a friendship with the Applicant after June 2006, and so any communication between the Applicant and the Respondent’s sister after that date is not evidence that the relationship between the Applicant and the Respondent continued.
Further, in his written submissions the Respondent addressed the factors outlined in section 4AA of the Act in support of his assertion that no de facto relationship subsisted after June 2006 as follows:
·Both parties jointly purchased G Street, Town H and commonly resided there from 2002 to 2016, and that the Respondent’s partner also resided at the property from February 2011. The Applicant was unaware that the Respondent and the Respondent’s partner jointly purchased a property in 2015;
·The parties had separate bank accounts and did not have access to each other’s accounts. The extent to which the parties’ finances were shared after June 2006 was “unavoidable” given the co-ownership of G Street, Town H;
·The Applicant’s lack of knowledge about the details of the Respondent’s receipt of government benefit is inconsistent with a de facto relationship given that it would have impacted joint finances;
·Although the Respondent lent the Applicant money after 2006, the Applicant accepted loans from a number of people with whom he was not in a relationship;
·There was no ongoing sexual relationship after June 2006, save and except for one sexual encounter in late 2006. The Respondent acknowledges that the Applicant alleges this occurred in 2009;
·The Respondent’s evidence about the parties’ interactions after June 2006 is inconsistent with the parties being committed to a shared future;
·The Applicant did not challenge the evidence of the Respondent’s partner that he and the Respondent were in a committed, exclusive relationship, nor did the Applicant raise the alleged de facto relationship with the Respondent’s partner at the time.
·The relationship was not registered under State law;
·From 2006 onwards the Respondent told to his friends, family and co-workers that he was single. He also indicated the same to Government agencies. Conversely, the Applicant did not provide evidence that he disclosed the relationship to any authority either before or after June 2006; and
·The Applicant did not call witnesses whom he claimed, under cross-examination, would support his contention that the relationship continued after June 2006.
The Applicant sent an email to Chambers on 17 September 2021, attaching a copy of his written submissions. The document was subsequently filed.
In summary, the Applicant submitted as to the continuation of the relationship after June 2006 that:
·During the relationship, the Respondent would “regularly threaten to end the relationship”, the implication in light of the evidence given at the hearing being that other similar arguments had occurred previously and the relationship continued afterwards.
·The Respondent did not inform significant people of the end of the relationship in 2006, including his general practitioner and his mother
·Mr F and the Respondent’s sister, who deposed in affidavits that to their knowledge the relationship ceased in 2006, did not know the Applicant in 2006. Further, the Applicant contends that Mr F did not know the Respondent in 2006 and so his timeline of events “does not add up”.
·The parties both continued to use common areas at G Street, Town H, specifically a lounge room in which the Respondent had a drafting table.
·The Centrelink documents provided by the Respondent cannot be accepted as evidence that the relationship had ceased as:
·The communications from Centrelink contained in Annexure E of the Respondent’s affidavit filed 14 January 2021 is dated 2009 and refers to transactions in 2008. The Applicant contends that the Respondent ought to have relied upon contemporaneous documents; and
·The information provided to Centrelink is unreliable as the Respondent was purposefully concealing his relationship status to retain government benefits.
·After 2006, the Applicant undertook actions inconsistent with the de facto relationship having ended, in that:
·He was involved in the care of the Respondent’s mother, as evidenced by email exchanges between the Applicant and the Respondent’s sister in 2008; and
·He paid parking fines accumulated by the Respondent.
The Applicant concludes his submissions by stating that he has been the “victim of a long con” by the Respondent, and the general tenor of his submissions reflects this contention.
EVALUATION OF THE EVIDENCE AND DETERMINATIONS
The parties are not married or related by family. They agree that they had a relationship as a couple living together on a genuine domestic basis until at least June 2006 and I find as such. The ultimate issue to be decided is whether they continued to be a couple and live together on a genuine domestic basis after this time.
The evidence about the following is not in dispute and the Court finds accordingly:
(a)The parties jointly acquired G Street, Town H in 2002;
(b)They lived together at G Street, Town H after 2006, until the Respondent moved out in 2016;
(c)The parties continued to socialise with some mutual friends and family, but the extent of this and whether it was as a couple is disputed;
(d)The parties engaged in sex up until mid-2006 and on one occasion afterwards. The Respondent says this occasion was in December 2006 or January 2007 and was not consensual.[12] The Respondent says it was in 2009;[13]
(e)From approximately 2011, the Respondent formed a relationship with Mr D, who usually stayed with the Respondent sharing his room at G Street, Town H for three to four each week; and
(f)The parties jointly discussed renovations to the property and engaged in some works to that end in this period, but the evidence is not clear when.
[12] Affidavit of the Respondent filed 14 January 2021 at [18].
[13] Affidavit of the Applicant affirmed 1 December 2020 at [34].
Noting the findings at [66], the Respondent’s case was that after 2006 they were merely house sharing. He says that following a heated argument he had made it clear to the Applicant that he regarded their de facto relationship to be at an end.[14] He says he resumed occupation of the main house some weeks after this argument, but he always had a separate room. He characterises the living arrangement as living separated under the one roof due to practical necessity, as the cottage he had moved into was derelict and had no plumbing or kitchen facilities and he had no money to install these.
[14] Affidavit of the Applicant filed 4 January 2021 at [6] and [7].
The Applicant gave evidence of the same heated argument occurring, but his description of what occurred differs. He said:[15]
28.In 2009 [the Respondent] and I had an argument after [the Respondent] had again set the sheets alight, by smoking in bed. I had had enough. [The respondent] smoked in bed and had done this as long as I was with him and I complained about this to him all the time.
29.I finally told him that with such a big house, I wanted a room to myself. [The Respondent] was furious and said he was leaving me. [The Respondent] declared this at least once a year. As usual it was an empty threat and just part of our arguments. What he did was to make himself a space in the cottage on the property, and that lasted for less than 6 weeks.
…
33.From 2006, nothing changed except that we each slept in our own rooms. I still did the shopping, cooking for both of us, cleaning and laundry and cared for [the Respondent’s] pets. [The Respondent] commenced another relationship in 2011 and that person [the Respondent’s partner] would come to our house on Wednesday and on the weekend. My relationship with [the Respondent] remained unchanged. I still cooked for [the Respondent] at least four nights each weeks and purchased all the food.
[15] Affidavit of the Applicant filed 1 December 2020.
In an earlier affidavit which the Applicant relied upon filed on 1 September 2019, when denying separation and the end of the de facto relationship in 2006, he states:
11.Irrelevant because there was no separation in 2006. [The Respondent] has also claimed we separated in 2008.
12.[The Respondent] assumes a separation but I strongly dispute that. [The Respondent] & I stopped sleeping in the same room. All other aspects of the relationship remained the same, however, as I remember it, [the Respondent] moved into his own room at the end of 2008 after spending a few weeks sleeping in the cottage at G Street, Town H. Yet we slept together in 2009. I don’t consider it to be a breakup. I consider it a rearrangement within the bounds of the relationship. [The Respondent] & I had an open relationship.
Review of the materials filed by the Respondent does not substantiate the allegation that the Respondent has made inconsistent statements as to when the separation and breakdown of their relationship occurred. All affidavits provided by the Respondent consistently refer to a separation in 2006.[16]
[16] Affidavit of the Respondent filed 14 April 2021 at [7]; affidavit of the Respondent filed 14 January 2021 at [7]; affidavit of the Respondent filed 4 January 2021 at [7]; affidavit of the Respondent filed 10 November 2020 at [7]; affidavit of the Respondent filed 10 August 2020 at [7].
There is corroborative evidence that the relationship between the parties came to an end in 2006, as the Respondent claims. The evidence of the Respondent’s sister, which the Applicant elected not to challenge, was:[17]
3.From late 2004 onwards [the Respondent] confided in me that his relationship with [the Applicant] was becoming difficult. During the winter of 2006, [the Respondent] told me that following a major argument with [the Applicant] he had finally terminated the relationship.
[17] Affidavit of the Respondent’s sister filed 1 December 2021.
On the basis of the Applicant’s own sworn statements, he agrees that the Respondent moved out of the main house in 2006, however he claims that the relationship as a couple resumed as it had been before, except that they had their own bedrooms.
There was plainly a major change in the parties living and domestic circumstances in 2011, when the Respondent formed a relationship with the Respondent’s partner. Both parties gave evidence about conflict and discord between the Respondent’s partner and the Applicant. This likely reflected that the Applicant was resentful the Respondent’s partner because he and the Respondent were forging a sexual and mutually committed relationship with each other.
The Applicant’s evidence was that the Respondent’s partner frequently stayed with the Respondent at G Street, Town H, spending time, activities and meals together. He also agreed the Respondent’s partner and the Respondent were sexual partners, but he regarded them to be “fuck buddies”. This was not a reasonable belief, as it ignored the frequent and consistent time the Respondent’s partner spent with the Respondent and their mutual engagement in a wide range of activities, largely to the exclusion of the Applicant. I prefer and accept the evidence of the Respondent and the Respondent’s partner about the nature and quality of their relationship from 2011 onwards. That evidence is also corroborated by the Respondent’s sister, whom the Applicant elected not to cross-examine.
Further, by 2011, the Respondent was clearly making a commitment to a life with the Respondent’s partner and not the Applicant. The content of the communications attached to the Respondent’s partner’s affidavit makes this plain and, as they were prepared at a time when the proceedings were not contemplated by either party, they carry considerable weight. As contemporaneous records of the circumstances at the time, they clearly demonstrate that by early 2011 the Respondent was definitely no longer committed to a shared life with the Applicant as a couple.
Although a person may have a de facto relationship with more than one other person, in this matter that was not the case. Any commitment the Respondent had previously had to a life as a couple with the Applicant on a genuine domestic basis had definitely and clearly ended by mid-2011.
DID THE DE FACTO RELATIONSHIP CONTINUE BETWEEN 2006 AND 2011?
The Applicant has not called any other witness to corroborate the claim that his relationship with the Respondent resumed and remained unchanged after the argument in 2006. He tendered various emails and documents during the hearing spanning the period 2007 to 2011. These are said by the Applicant to demonstrate continuation of a shared and committed life as a couple after 2006.
The emails included exchanges between the Applicant and friends and family about matters related to the Respondent’s mother, work they were doing on G Street, Town H, and socialising with mutual friends. These do suggest that the parties continued to have inter-connected lives to a degree, but this of itself may be consistent with a simple friendship and common residence. The emails are of limited assistance in determining when the de facto relationship ceased.
I do not accept that the emails provide corroboration of the contention that the Applicant was the Respondent’s mother’s carer or that the public regarded the parties to be a couple. Although the Applicant still had interactions with the Respondent’s family and mutual friends during this time, having heard the Applicant’s evidence and read the emails he tendered, I find that he was a social, convivial and generous person who enjoyed entertaining. Accordingly, the ongoing relations with the same circle of friends and family as the Respondent is likely to reflect a residual and separate friendship with those persons, many of whom were physically close in proximity in the Town H community.
The Applicant also may have undertaken some tasks that benefited the Respondent after 2006, but there is no evidence that this was expected by the Respondent or reciprocated (with one exception) by the Respondent. The exception relates to the renovation works the Respondent did on G Street, Town H, but this work is equally consistent with the Respondent’s half ownership of the property and improving his occupation of it.
The impression gained is that the Applicant had the time and capacity to cook meals and care for the pets and did so because he enjoyed it.
The Applicant also complained that the Respondent had not done work he had agreed to do. One would expect that the work would have been completed by the Respondent if he was committed to his relationship as a couple with the Applicant as that would have removed a source of dispute.
Under cross-examination, relating to the assertion that the parties had joint finances, the Applicant agreed that the parties had not shared bank accounts since 2006 as they had separated their accounts. The Applicant also stated that he was unaware of the Respondent having applied for a disability support pension when asked about the Centrelink documents annexed to the Respondent’s affidavit of 14 January 2021. He remarked “you keep secrets from me, that’s why I didn’t know”. The Applicant was also asked about an interest-free loan the Respondent had obtained. He replied that he was not aware and again stated “you kept a lot of financial secrets”.
The Applicant’s evidence is telling as it demonstrates that the Respondent had not shared information with the Applicant about his personal income and borrowings. It reflects separate finances contrary that expected from a couple committed to a bona fide life together.
The parties agreed that they borrowed small sums from the other at times and transferred funds to each other to cover outgoings such as water, electricity and rates. It was put to the Applicant that this arrangement was not a sharing of finances but rather “splitting bills” as house mates would do. The Applicant did not agree.
Accounting to the other in the way described and mutual lending of small sums from time to time in my view is not demonstrative of joint finances. Rather, it is likely indicative of common expenses due to financial necessity and the fact that the parties remained at G Street, Town H because they each wanted to retain it. If the parties had joint finances, one would not undertake an accounting process and there would be no expectation that small sums be repaid.
While the evidence does demonstrate that the Respondent continued to use the pharmacy account and post office box account in the Applicant’s name alone, having heard the parties give their evidence about this, I consider that it was a matter of convenience or practical necessity.
During this period, the only jointly owned property was the real property G Street, Town H, and the household chattels, furniture, equipment and contents within it. The parties were living in the same house. The Applicant concede and I accept that the Respondent communicated that the relationship had ended during the argument in 2006. I also accept his evidence that he only returned to the home due to practical and financial necessity. I add also, that it suited the Respondent to stay he could not afford a separate residence, and it was convenient. He also wanted to retain the property if possible. I infer that he was unable to afford to pay out the Applicant, noting that he was recovering from a drug addiction and mental health issues following the separation and only secured permanent part-time employment in 2008.[18]
[18] Affidavit of Mr F filed 21 May 2020 at [1].
I reject the Applicant’s contention that nothing changed after the argument in 2006 once the Respondent returned to the main house. This statement is a broad generalisation. It is apparent on the evidence that there were changes, particularly the parties no longer had a sexual relations, established separate bedrooms and then separate living areas. They also separated their bank accounts and split common expenses while maintaining their own finances.
I consider it notable that two frequent visitors to G Street, Town H in this period of time, the Respondent’s sister and Mr F, both attest to the separation of the Applicant and Respondent. They say that they did not observe an affection between the two, and this evidence was not challenged by the Applicant.
The Applicant says that he cared for various pets. This seems likely because, in this period, the Respondent found work and was less present at the property, while the Applicant was usually there. I appreciate that the pets were company to the Applicant. Whether he alone or both parties cared and paid for the upkeep of the animals is not entirely clear. It is plain that a dispute arose about vet expenses for the dog, N soon before the Respondent vacated G Street, Town H. This evidence does not assist me in determining the ultimate issue in this case.
Although the Respondent paid for the Applicant to travel to overseas in 2011, I find that this was more consistent with removing him from getting in the way of his relationship with the Respondent’s partner. It was not likely reflective of his financial support of the Applicant. Indeed, if the parties remained a couple one would have expected them to travel on a holiday overseas together. Instead the Applicant went alone to visit with others.
CONCLUSION
The preponderance of the evidence demonstrates that the parties did separate in 2006 without reconciling afterwards, although they continued to occupy the property. The Applicant probably wanted to believe that the parties remained committed to each other, but that was not the case for the Respondent. Although the Applicant now believes he was the subject of a “long con” as mentioned at [64] above, that belief may have forged from the unfortunate circumstances in which the Applicant now finds himself. He is living with significant medical conditions, is unable to work and provide well for himself. While I have sympathy for his circumstances that does not detract from the ultimate conclusion I have made based on the evidence and findings set out in these reasons.
Further, having had the benefit of the hearing and seeing the Applicant give evidence, it is abundantly clear that he wanted to believe that the parties reconciled following the argument in 2006. But a reconciliation required the mutual meeting of minds and it is evident that there was no such meeting of minds. The Respondent instead acted in many ways to lead a separate life, but the parties’ mutual desire to own G Street, Town H and the inability of the parties to face the reality that neither party could afford to pay the other out led to a convenient, not comfortable, but tolerable sharing of the property as separated persons.
The ultimate conclusion is that the de facto relationship between the parties ended no later than 1 July 2006. The Court does not have jurisdiction pursuant to Part VIIIAB of the Act and the application is dismissed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 19 October 2021
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