Bahan & Pinder
[2021] FedCFamC2F 347
•11 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bahan & Pinder [2021] FedCFamC2F 347
File number(s): HBC 580 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – de facto property – where applicant seeks orders adjusting property interests – respondent seeks dismissal of application and declaration that parties never in a de facto relationship – threshold hearing to determine jurisdiction – parties in a relationship as a couple living together on a genuine domestic basis – de facto relationship established – declaration made pursuant to s 90RD Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975, Part VIIIAB, ss 4AA, 90RD
Cases cited: Baden & Packwood [2021] FedCFamC2F 204
Carlson & Fluvium [2012] FamCA 32
Crowley & Pappas [2013] FamCA 783
Dahl & Hamblin [2011] FamCAFC 202
Jonah & White [2011] FamCA 221
Jones & Dunkel (1959) 101 CLR 298
Tomson & MacLaren [2021] FamCA 620
Sinclair & Whitaker (2013) FLC 93-551
Division: Division 2 Family Law Number of paragraphs: 89 Date of hearing: 22 & 23 September 2021 Place: Hobart Counsel for the Applicant: Mr J Saric Counsel for the Respondent: Mr M Trezise ORDERS
HBC 580 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: MS BAHAN
Applicant
AND: MR PINDER
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to section 90RD(2) there is a declaration that the parties were in a de facto relationship between 2014 and 2019 and for a period of at least 4 years and 6 months.
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 Bahan & Pinder has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 1 July 2020, Ms Bahan (“the Applicant”) filed an Initiating Application seeking final orders for adjustment of property interests with Mr Pinder (“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.
On 10 August 2020, the Respondent filed a Response to Initiating Application seeking a declaration that the Applicant and Respondent were never in a de facto relationship and, consequently, a dismissal of the Initiating Application.
Prior to the matter first coming before me on 27 May 2021, the parties had agreed that the threshold issue, existence of a de facto relationship, be heard separately. I was asked to allocate a hearing date for the threshold issue and it was set down for a two day hearing commencing 22 September 2021.
The Applicant is 31 years old. She is currently employed on a casual basis as an admin assistant and now lives in rented accommodation with her partner.
The Respondent is 29 years old. He is currently employed as an tradesman and resides in a property which he owns at B Street, Town C (“the B Street, Town C property”), which he purchased from the Applicant’s father in 2016.
THE OPPOSING CASES
The Applicant’s case is that she and the Respondent were in a de facto relationship within the meaning of section 4AA of the Act, and so the Court has jurisdiction to make orders for adjustment of property interests as sought by her. Her contention is that the parties were in a relationship from March 2012 to June 2019, a period of 7 years, during which:
·They continually co-habited at various residences for over 6 years;
·They maintained a sexual relationship;
·Both the Applicant and Respondent were in paid employment, the Respondent earned more and financially supported the Applicant; “there was a degree of financial interdependence”[1] in that they shared expenses such as groceries, the electricity bill on the B Street, Town C property, and expenses relating to their animals;
·The parties were committed to a shared life together, in that:
·They shared interest in animals and cared for them together;
·The Applicant would refer work to the Respondent;
·The Applicant’s father assisted the Respondent purchase the property where the parties resided as a couple, and the Respondent’s relationship with the Applicant was an integral part of this occurring;
·The parties jointly sought restraining orders against Mr D following his assault by the Respondent; and
·The Applicant undertook domestic duties for the parties during the relationship while the Respondent undertook FIFO work to “set them up financially”.[2]
·The parties presented publically as a couple and would socialise together, including with each other’s families and friends.
[1] Case Outline of the Applicant filed 20 September 2021 at [13].
[2] Case Outline of the Applicant filed 20 September 2021 at [16].
It is the Respondent’s case that he and the Applicant were in a “casual, boyfriend/girlfriend relationship”[3] apart from a period from August 2016 to October 2016, during which they lived together on a genuine domestic basis. He asks the Court to make a declaration that no de facto relationship existed, on the basis that:
·The parties retained their own residences, save for the period August 2016 to October 2016;
·The parties had a “sporadic”, non-exclusive sexual relationship, and each were in relationships with other people;
·The parties were financially independent, earning their own income and paying their own expenses;
·There was no mutual commitment to a shared life, either expressed or demonstrated; and
·The relationship, as presented to and perceived by other people, “never carried with it public aspects and reputations”[4] of a relationship capable of meeting the level required pursuant to section 4AA of the Act.
[3] Affidavit of the Applicant filed 7 May 2021 at [4].
[4] Case Outline of the Respondent filed 20 September 2021 in Part F at [3(i)].
RELEVANT LAW
The parties’ agreement to bifurcate the threshold issue and their opposing cases, engages the Court in determining if it will exercise its powers pursuant to section 90RD of the Act and if so, what declaration it will make. This in turn requires consideration of section 4AA of the Act, which provides for the meaning of “de facto relationship”, and relevant authorities.
Section 4AA provides:
Working out if persons have a relationship as a couple
(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).
(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 guidance in assessing the facts of a case against the factors outlined in section 4AA of the Act, stating:
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 of relevant facts and factors in section 4AA was the subject of judicial guidance 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]
Generally, the onus of establishing the fact that parties were in a de facto relationship will be on the party asserting that fact on the balance of probabilities.[5]
[5] Evidence Act 1995 (Cth) s140.
Whether a de facto relationship existed and, if so, when it commenced and ended is a matter for determination on the facts, although the perceptions of the parties may be relevant to this.[6] The fact finding required is somewhat complicated when the parties have different perceptions and their perceptions may be motivated by a desire to achieve particular outcomes. Recent examples of this difficulty are Tomson & MacLaren[7] and Baden & Packwood.[8]
[6] Sinclair & Whitaker (2013) FLC 93-551 at [65].
[7] [2021] FamCA 620.
[8] [2021] FedCFamC2F 204.
THE APPLICANT’S EVIDENCE
The Applicant’s affidavit filed 9 May 2021 was read into evidence and she was cross-examined. The substance of her evidence was that she commenced her relationship with the Respondent in 2012 and they began cohabiting as a couple in April 2013. She said they lived sometimes at her family home, being the B Street, Town C property, and at other times at the Respondent’s parents’ home in Suburb E.
The Applicant said that in 2014 the Respondent “moved into” her father's property on a permanent basis and did not pay rent or contribute to utilities such as the electricity bill or food.
The Applicant gave evidence that the Respondent commenced fly in fly out (“FIFO”) work in Queensland in about 2014. Under cross examination, she agreed that the work entailed 28 days away from Tasmania and seven days back in Tasmania.
The Applicant’s case is that from at least 2014 when the Respondent moved into B Street, Town C property and until 2016, she and the Respondent lived together on a bone fide domestic basis. She was not cross-examined in much detail as to the arrangements in this period, which are set out in her affidavit filed 9 May 2021 at paragraphs 6 to 9. This evidence was:
6.During the relationship I provided the greater amount of household and domestic duties, I also assisted with the upkeep of the property by feeding the animals and livestock and performing harrowing work. I would attend to on most occasions, general housework, cooking, cleaning, washing both my clothes & [the Respondent’s] and including his work wear. I would hang his clothes on the line to dry, vacuum, clean the dishes amongst other things.
7.From 2014 [the Respondent] would fly interstate for work a lot as he was doing FIFO work. Once I obtained my driver’s licence (I believe on or about 2016) I would almost always pick [the Respondent] from the airport when he returned and drive him to the airport when he departed. For approximately the first year of [the Respondent’s] FIFO work we would most of the time stay at his mother’s house, the night before [the Respondent] departed interstate for work as it was less of a drive to the airport than from B Street, Town C, where we lived. The times we stayed at his mother’s house for this purpose I would see him off and [the Respondent’s] father or mother would drive me home to B Street, Town C.
8.From about 2015 [the Respondent] would mainly stay at B Street, Town C when he was flying interstate from work. From the date I obtained my driver’s licence I almost always drove [the Respondent] to the airport or picked him up.
9.When we were living at B Street, Town C together, we shared a bedroom. [The Respondent] would have his clothing and personal possessions in the bedroom as would I.
The Applicant says that throughout the relationship right up until 2019, the parties had a sexual relationship, sharing a bedroom for the entire time, even when their relationship was tested due to infidelity. The Applicant was not challenged about this evidence in cross-examination.
At paragraph 16 of the Applicant’s affidavit filed 9 May 2021, she explains how the property came to be sold to the Respondent alone rather than jointly between them. She stated that the Respondent had proposed that she not be registered as a co-owner of the B Street, Town C property so as to enable her to seek a government grant for a future purchase of property. She was not challenged in respect of that evidence.
There was detailed evidence given about how the Applicant’s father sold the property to the Respondent at below market value and further gifted $20,000 of the value of the purchase price to enable the Respondent to secure finance to purchase the property.
The Applicant acknowledges that the parties “broke up” in 2016 when she discovered that the Respondent was secretly seeing and having sex with her best friend.[9]
[9] Ms R
The Applicant said that she and the Respondent mutually shared each other’s vehicles throughout the entire period up until 2019 and that they shared the care of the animals on the B Street, Town C property. Again, the Applicant was not challenged in relation to any of this evidence.
Regarding the financial arrangements of the parties during their relationship, the Applicant agreed that she earned less than the Respondent and she frankly admitted that she did not personally make substantial financial contribution to the property acquired during the relationship. However, she referred to the significant assistance given by her father, as stated at paragraph 27 of her affidavit.
The Applicant agreed that the parties always had separate bank accounts, but maintained that they shared day-to-day expenses. This was not equal sharing as the Respondent had a greater income and paid the mortgage and council rates.
The Respondent paid for some of the Applicant’s personal expenses when she was not able to afford these and the Applicant lived at the B Street, Town C property making very modest contribution to the outgoings related to the property right up until 2019. There was evidence of payments to and from the parties’ bank accounts and this appears to have continued after the time that the Respondent alleges that the parties separated.
The Applicant said that the property at B Street, Town C was acquired because the parties both wanted a shared life. She conceded under cross-examination that she did not want children, while the Respondent did. However, she added that the B Street, Town C property permitted them to own animals, which were a common interest. She implied by her evidence that their shared work on the farm was demonstrative of their meaningful and mutual commitment.
Despite the evidence referred to a [26], the Applicant admitted that she had a sexual encounter with Mr D in 2014. The explanation for the encounter given by the Applicant is that she was missing the Respondent who was working FIFO at the time, and she was unhappy. She stated that she had been entirely open and honest with the Respondent about the encounter and the communications Mr D sought to initiate with her afterwards.
It is clear from evidence before the Court that the sexual encounter between the Applicant and Mr D was a source of the grievance for the Respondent. There was evidence that in 2015 the Respondent wounded Mr D, faced criminal charges concerning that offence, and both parties sought restraint orders against Mr D.
The Applicant’s affidavit contains evidence about the public nature of the relationship and their activities as a couple.[10] This evidence was not challenged in cross-examination although some parts of the affidavit material constituting hearsay and opinion was struck out and I have not had regard to it.[11]
[10] Affidavit of the Applicant filed 9 May 2021 at [45] to [47].
[11] Affidavit of the Applicant filed 9 May 2021 at paragraph [2] (partial) and [54].
At the commencement of the hearing, counsel for the Applicant sought to tender into evidence a bundle of texts messages between the Applicant and Respondent. After hearing submissions I ruled that the text messages would be received in evidence.[12] I gave separate reasons for that ruling and offered the Respondent and his counsel further time to consider these and prepare to respond to them before the hearing continued. The offer was declined. The authenticity of the messages exchanged was conceded by the Respondent.
[12] Exhibit A-1.
The text messages relate to the period 7 August 2018 to 14 June 2019 when the Respondent was doing FIFO work. They can only be described as prolific and very frequent communications between the parties, relating to normal issues arising in day-to-day life when persons share a joint domestic life as a couple. For example: referring to break down or malfunction of equipment on the property, feeding/caring for animals, what the parties would be doing during the day, the Applicant's health and treatments and paying for this, the Respondent’s work and what he was doing, flight times and arranging his collection from the airport. The messages also included some expressions of love.
Cross examination of the Applicant was mainly directed to what the Applicant had declared about the nature of the relationship to various public entities, Centrelink, the Australian Taxation Office, on Facebook and when she presented for medical treatment to the F Hospital in May 2017.
Regarding her declarations to Centrelink, the Applicant stated she could not recall if she had stated that she was “single”. It was put to her that she received benefits, but would not have been eligible if she had declared that she was in a de facto relationship with the Respondent. The Applicant maintained that she could not recall what declaration she had made and did not concede she would not have received benefits.
The Applicant stated she did not know what her relationship status had been declared to be in her tax returns, and that the Respondent prepared all of her returns. As to the F Hospital notes referring to her as single in May 2017,[13] the Applicant stated that she was very unwell psychiatrically and had reported what she felt at the time, having recently been told by the Respondent that he loved somebody else, namely Ms G.
[13] Exhibit R-1 at Tab E.
The Applicant stated that the relationship with the Respondent was repaired after this time and the parties reconciled. It was put to the Applicant that the relationship was over one year prior to the May 2017 hospital presentation and she disputed this.
When cross-examined about a text message which she sent to the Respondent containing a Facebook post and a comment “3 years not together”,[14] the Applicant stated that it felt like they had not been together and that is what she meant. It was directly put to her that they had not been together and she denied this. She stated that they acted like a couple and slept together, and that it was not until she found out about the affair in 2019 that the relationship ended.[15]
[14] Tender Bundle Book of the Respondent filed 7 May 2021 at page 69.
[15] Consistent with the affidavit of the Applicant filed 9 May 2021 at [4].
During cross examination, the Applicant agreed that she had access to the Respondent's credit card up until 2016, but not after that time. When it was put to the Applicant that the parties had not had much of a shared life after 2016, with the Respondent away a lot and each having sexual relations with others, the Applicant maintained that she only learnt about the Respondent's other affairs later and that she had only slept with one person after they reconciled in 2016, being Mr H.
It was put to the Applicant that she wanted a shared life, but that the Respondent would not commit to that. The Applicant said that the Respondent put forward to her that he wanted a shared a life with her but what he did with others behind closed doors was different.
It is evident from cross-examination of the Applicant about how the Respondent came to be the owner of the B Street, Town C property that she is extremely bitter, and that she feels angry and used. She openly admitted as much.
The Applicant was asked why she had not called her brother Mr J to give evidence in the case, given that he also lived at the B Street, Town C property for all of the time she claims to have been in a de facto relationship with the Respondent. Her answer was that “they want him to stay out of it”. It was not clarified as to whether that included the Respondent or merely the Applicant and her brother.
In re-examination, the Applicant gave evidence that after they broke up in 2016, the parties reconciled in January 2017. When I sought clarification about this, the Applicant stated that the Respondent had initiated this reconciliation. When asked what the Respondent had done, she said that he had bought the dogs to help “fix” the relationship, that he made an effort to spend time with her, to go out together more, and they talked a lot about what had happened. I took this to mean what had happened regarding infidelity in their relationship.
The Applicant was re-examined about whether the parties’ relationship resumed after the May 2017 hospital admission. She said they had resumed the relationship “a couple of weeks later”. She was asked what occurred at this time that demonstrated the resumption of the relationship, but did not recall specifically.
The Applicant called two other witnesses: Ms K and Ms L. Their affidavits were read into evidence subject to parts struck out on the basis that they were either hearsay or conclusions. Otherwise, their evidence did not alter from that contained in their affidavits and each conceded that they were close friends of the Applicant when cross-examined. In the case of Ms L, cross-examination revealed that she held strong views that the Respondent had treated the Applicant badly.
THE RESPONDENT’S EVIDENCE
The Respondent relied upon his trial affidavit and a tender bundle of documents filed on 7 May 2021. In substance his evidence was that the parties lived together as a couple on a genuine domestic basis only from August 2016 to October 2016, but were otherwise in a casual relationship.
The Respondent said that from 1 March 2012 to 8 April 2016 he considered the Applicant to be his “girlfriend”. He agreed that they had a sexual relationship throughout this time.
As to the financial arrangements prior to 2016, the Respondent gave evidence under cross examination that he earned the greater income, they maintained separate bank accounts, they did not purchase joint property, and did not incur joint liabilities except for a credit card which he provided to the Applicant in her name and which he was responsible for paying off. Further, that they each kept items which they purchased.
He said that during the period referred to at [45] he loaned money to the Applicant, which one some occasions was repaid and not on others, and that they transferred money between their respective bank accounts. He accepted that he transferred the Applicant money for personal expenses such as her phone bill and health insurance premiums.
The factors at [45] to [47] were again put to the Respondent in terms of the period August 2016 to October 2016, being when he accepts that the parties were in a genuine domestic relationship; his evidence was about those factors were the same.
The Respondent denied preparing all the Applicant’s tax returns, and said that he had assisted her with “one or two of them”.
Questions were put to the Respondent about where the parties lived between March 2012 and August 2016, to which he responded in summary that they shared a bedroom at their respective parents’ houses for a total of one to two nights each week, and did not pay any money to either parents. He did not accept that one to two nights a week was inconsistent with his affidavit filed 10 August 2020 At paragraph [32] of his affidavit, the Respondent stated:
32.When I resided at Suburb E with my parents, I had a self-contained area in the downstairs part of the house which I also paid for my power consumption and cooked for myself. During the relationship period of 2012-2016 the applicant would stay with me at both of my parents’ houses. This would be for a couple of nights in each week, sometimes more, sometimes not at all.
33.When the applicant did stay with me she did not financially contribute to any living expenses and if we did not eat with my parents then I would do the cooking for us. On the occasions I would stay with the applicant and her father at B Street, Town C I would cook dinner for them both and her brother Mr J on regular occasions at my own expense. My stays at B Street, Town C were also only for one of two nights at a time in any given week.
The Respondent gave evidence that he undertook FIFO work in Queensland and Western Australia between March 2012 and August 2016, consisting of 28 days away and either seven or eight days in Tasmania. This accords with paragraph 23 of his affidavit filed 7 May 2020.
The Respondent was questioned about text messages sent between the parties in 2018.[16] He accepted that the parties continued to communicate regularly while he was doing FIFO and was away. He agreed that the contents of discussions included the Respondent offering money to the Applicant for her expenses, arrangements for the Applicant to collect the Respondent from the airport, going out for dinner together, and tasks being performed at the B Street, Town C property in his absence.
[16] Exhibit A-1.
In his affidavit filed 7 May 2021, the Respondent affirmed that:
104.Following separation there were occasions when [the Applicant] and I had sex. This occurred occasionally. On some occasions, sex was initiated by me and on others, by [the Applicant]. Several times after this occurred, we spoke about the fact that is was “just sex” and that we both remained single, and we were not reconciling.
Under cross-examination, the Respondent stated that the conversation that they were not reconciling occurred on each occasion they had sex after October 2016. His evidence was that they remained single and were both free to pursue other relationships.
It was put to the Respondent that when the Applicant questioned the Respondent about whether he has had sex with another person,[17] he did not say words to the effect of “I’m single. I can sleep with whomever I want”. The Respondent agreed he had not said that.
[17] Exhibit A-1 at page 48.
Under cross examination the Respondent maintained his claim that from October 2016 to June 2019 the parties were not presenting publically as a couple.
He was questioned about various references to the Respondent as the Applicant’s ‘partner’ and ‘boyfriend’ in F Hospital records concerning the Applicant’s admission on 7 April 2017.[18] He stated the term had not been term used in his presence. He then conceded that he was present at the hospital with the Applicant, although his evidence initially was that he only drove there later to take her home.
[18] Exhibit A-5.
During evidence in chief, the Respondent said in reference to an entry on 17 January 2016 when the medical records noted that the Applicant was “discharged home with partner” he was in Town M.
Several documents from the criminal proceedings during 2015 which contain references to the Applicant as the Respondent’s partner[19] were put to the Respondent in cross-examination. The Respondent stated that the documents were not written by him, and that he had identified the Applicant to the authors as his girlfriend. He paused before answering when asked what he meant by the term ‘girlfriend’ and how this differed from ‘partner’. After a long pause, his evidence was that he interpreted the documents to be referring to the Applicant as his girlfriend and he was “just not sure” how to clarify the difference those terms. He stated that he recalled the use of the term ‘partner’ in passing sentence and did not dispute the reference.
[19] Exhibit A-2, Exhibit A-3, and Exhibit A-4.
The Respondent was also taken to the Statutory Declaration[20] in support of the Application for Restraint Order against Mr D,[21] in which the Applicant is referred to by him as his ‘partner’. His evidence was that the parties discussed seeking restraint orders and that he paid the lawyer who drafted the documents. From this it can be inferred that the Respondent gave instructions as to the content of the documents and approved of them.
[20] Affidavit of the Respondent filed 7 May 2021 at Annexure 6.
[21] Affidavit of the Respondent filed 7 May 2021 at Annexure 7 and affidavit of the Applicant filed 9 May 2021 at Annexure C5.
His evidence was that his firearms were transferred to his father before his licence was cancelled as a result of the wounding conviction and that they were not stored long-term at the B Street, Town C property but at his parents’ house.
The Respondent confirmed that he initially leased a portion of the B Street, Town C property from the Applicant’s father under a verbal agreement from May 2015, and then later purchased the whole property. This had been earlier refuted by the Applicant when she was cross examined.
The Respondent’s evidence about his purchase of the B Street, Town C property in 2016 is:[22]
I was interested in purchasing the Property as I enjoyed the farming aspect. I was earning good money undertaking the FIFO work and was looking to buy a property. [The Applicant’s father] said he would sell it to me as he was keen to leave the Property. I organised for a valuation of the property to be undertaking in November 2015. The Property was valued at $340,000 by Company N…
[22] Affidavit of the Respondent filed 7 May 2021 at [31].
In his affidavit filed 7 May 2021, the Respondent listed various documents mailed to him at his mother’s address as evidence that he lived there prior to his purchase of the B Street, Town C property.[23] He accepted under cross-examination that he had not provided a similar list or copies of examples of mail sent to him after the purchase to provide contrast.
[23] Paragraph [16] and Exhibit 1 of the bundle book relied upon by the Respondent.
The Respondent gave evidence about a pre-purchase valuation of the B Street, Town C property in 2015, stating he had organised it and the report was sent to his email address.
The Respondent accepted that the initial purchase price of the B Street, Town C property was $340,000 as the value shown in the valuation,[24] but he was unable to obtain finance at that price. The Respondent said that Applicant’s father had a contact to purchase another property and needed the funds to complete that purchase, so he made a non-refundable gift of $20,000 to allow the Respondent to obtain finance.
[24] Affidavit of the Respondent filed 7 May 2021 at Annexure 4.
The Respondent gave evidence that horses at the B Street, Town C property were owned by the Applicant, but admitted that he purchased a horse float, which the Applicant used until she left the property in 2019. He also owned a tractor and trailer which the Applicant used daily to feed the horses between October 2016 and 2019. He added that she also used them to feed the Respondent’s cows, and conceded that she probably performed harrowing work as this would be expected after animals were moved on.
In regards to his relationship with Ms G in May 2017, the Respondent’s evidence was that when the Applicant asked where he was going, he told her that he was “going out for dinner or for a date”. He denied using a more ambiguous phrasing, but that he has no specific recollection as to whether he told the Applicant whom he was meeting. He agreed that he was at dinner with Ms G on 23 May 2017 and that he has a vague recollection of receiving text messages from the Applicant asking as to his whereabouts. He recalls the Applicant sending him photos of herself after self-harming and that she was subsequently admitted to hospital.
In regards to Ms O, his evidence was that in June 2019 while he and the Applicant were still living at the B Street, Town C property the Applicant accused him of having sex with another woman, which the Respondent denied. It was put to him that the Applicant said words to the effect that “you’ve cheated on me again”; the Respondent said he could not recall, but agreed he told the Applicant to leave the B Street, Town C property, which she did soon after.
Counsel for the Applicant questioned the Respondent about his messages with Mr H during May 2017.[25] It was put to him that they were having a conversation about the Applicant cheating on the Respondent with Mr H and there could only be “cheating" if the Applicant and the Respondent were in a relationship. The Respondent denied this.
[25] Affidavit filed 7 May 2021 at Annexure 17.
The Respondent called two other witnesses: his mother Ms P (“the Respondent’s mother”) and his father Mr Q (“the Respondent’s father”). Both filed affidavits on 7 May 2021, which were read into evidence.
In her affidavit, the Respondent’s mother outlined the history of the Applicant and Respondent’s relationship, as she was aware of it, and detailed the times at which the Respondent lived at her home. Her evidence was that she and the Applicant exchanged text messages up to and throughout 2019, including arranging for the Applicant to collect belongings from the Respondent’s parents’ house in 2019. The evidence of the Respondent’s mother does not particularly assist the Court in determining the existence or duration of a de facto relationship as it related to snapshots within a long period.
The contents of the Respondent’s father’s affidavit is largely consistent with that of the Respondent’s mother. He was questioned about the Respondent’s purchase of cows in 2015, and a period in 2018 during which the Respondent was recovering from a relapse of a medical condition. His evidence does not assist the Court in determining the existence or duration of a de facto relationship either, as it is apparent that he and the Respondent’s mother did not have continuous contact about or personal knowledge of things that occurred in their son’s day to day life.
FINDINGS AND DETERMINATION
Having carefully listened to and observed the parties during the hearing, there was a distinct difference in their evidence. The Applicant was very open and unreserved in answering questions put to her, conceding matters even where they were contrary to her case. For example, the evidence she gave about her attitude to how the Respondent had the come to own the B Street, Town C property.
By contrast, the Respondent was at times quite hesitant in answering questions and his answers under cross-examination were guarded and appeared somewhat rehearsed. He was reluctant to make reasonable concessions about evidence unhelpful to his case. The most obvious example was, when questioned by me as to the apparent continuity of the features common to a de facto relationship after the period of time at which the Respondent asserted there was separation in 2016, the Respondent was unable to answer for a very lengthy period of time. He was unable to provide an answer as to why he regarded the de facto relationship existed in the period in 2016, but not after.
Although allowance is made for the fact that witnesses giving evidence before a court are often nervous, stressed, and uncomfortable due to the unfamiliar process and surroundings, I am of the view that the Respondent was not deliberately obfuscating, but could not reconcile the apparent illogicality drawn to his attention.
Ultimately, based on my assessment of the parties’ evidence, I have no hesitation in concluding that where the evidence of the Applicant and Respondent conflicts, I ought to prefer the evidence of the Applicant. In arriving at this conclusion, I have carefully considered the often cited statements at [165] to [167] in Carlson & Fluvium [2012] FamCA 32.
In addition, there are a number of documents before the Court in which Respondent uses or adopts the description of the Applicant as his partner. I believe as contemporaneous records of occurrences in time, they reflect what is on the evidence a relationship as a couple on a bone fide domestic basis and not that they were in a casual boyfriend/girlfriend relationship.
The Respondent’s evidence that he regarded the parties to be in a casual boyfriend/girlfriend relationship is a subjective perception and I give it very little weight as the objective hallmark features of a de facto relationship are established on the evidence.
Preferring the reliability of the Applicant's evidence where it conflicts with that of the Respondent, I make the following findings of fact concerning the section 4AA(2) considerations:
(a)The parties were in a relationship and shared all facets of day to day life together at the B Street, Town C property from late 2014 to June 2019, although this period was briefly interrupted by very short periods of separation on two occasions and then reconciliations;
(b)During the period referred to above at (a), the parties resided commonly at the B Street, Town C property, which was owned by the Applicant’s father initially but then purchased by the Respondent in 2016 in his name for the parties’ joint use as a home. When the Respondent was absent doing FIFO work, he still maintained it as his home with the Applicant and she undertook chores and housework for his benefit;
(c)The parties had a sexual relationship throughout the period 2014 to 2019, although it was not a continuously exclusive sexual relationship, as each of them had sexual encounters with others;
(d)The parties earned income and provided financially for themselves to a degree, but the Respondent provided financial support to the Applicant who was financially dependent on him;
(e)During the period referred to above at (a), the parties expressed love for each other at various times throughout as would be commonly expected of a couple in a committed relationship as a couple;
(f)The parties each referred to the other as their ‘partner’; and
(g)They socialised as a couple and were regarded as such by the witnesses called by the Applicant. It is notable that the Respondent did not call friends or associates to rebut this evidence. The evidence of the Respondent’s parents is not especially helpful for the reasons referred to at [72] and [73] of these reasons.
The Respondent solely owns the B Street, Town C property, but I accept that the likely reason for that is consistent with the Applicant’s evidence. The Respondent presented as a driven person with goals of owning a farming property and maximising financial security for the couple. This is consistent with the observations of those who provided references at the time of the wounding prosecution and the Applicant referring work to his business. The parties also both used and occupied the property for their mutual interest in farming and caring for animals.
Although the parties had tumultuous periods involving infidelity and short separations, they persisted together as a couple and cohabited on a bona fide domestic basis at the B Street, Town C property. This persistence in the face of infidelities that each felt and expressed, demonstrated a mutual commitment to a shared life. The Applicant was very frank about the impact of the Respondent’s infidelities, but the Respondent was not. Despite this, his conduct at the time of being aware of them plainly conveys he was hurt or at least aggrieved, which would not be objectively expected if they were not in a committed partnership as a couple.[26]
[26] Assaulting Mr D and questioning Mr H about “cheating” by the Applicant.
When the Respondent was absent from the property and from Tasmania while he worked on a FIFO basis, he clearly maintained a close connection and commitment to the Applicant, as is evidenced by the extensive volume and nature of the communications they had.[27] They reflect much more than a mere matters of practical convenience between two persons sharing a property.
[27] Exhibit A-1.
The evidence called by the Applicant from her friends, although somewhat and not unexpectedly favouring the Applicant, is consistent with other evidence before the Court as to how the parties portrayed themselves publically, including records relating to the wounding proceedings, police prosecution, Magistrates Court restraint order documents and the F Hospital. It is notable that the Respondent did not call any witnesses to contradict evidence about the public aspect of the parties’ relationship. Instead, he chose to adopt an explanation that “partner” simply meant “girlfriend”.
Counsel for the Respondent made a submission that I should draw an adverse inference about the evidence that the Applicant’s brother would have given as to the nature of the relationship between the Applicant and Respondent at various times.[28] I am not prepared to do so. As noted, there was no clarification about who “we” referred to in the evidence the Applicant gave as noted at [40] above. As the Respondent knew Mr J well also, “we” may have been a reference to the parties and the Respondent has not called him either.
[28] Jones & Dunkel (1959) 101 CLR 298.
Guided the by the provisions in subsections 4AA(3) and 4AA(4) and also the legal principles referred to at [10] – [13], the above findings lead me to the conclusion that the parties were in a de facto relationship for the period late 2014 to June 2019. The two brief separations (during which they remained living at B Street, Town C) do not prevent this conclusion.[29] The separations marginally reduce the overall duration of the de facto relationship by probably around four to six months, doing the best I can based on the evidence given by the Applicant.
[29] Dahl & Hamblin [2011] FamCAFC 202
Cross examination of the Applicant about it being her desire not the Respondent’s to have a shared life was directed to demonstrating that the parties likely had different perceptions and the Applicant was mistaken that they had such a life. But, this case is not one to be determined or particularly influenced on the basis of perceptions, noting the factual findings made and reasons for them.
Ultimately, although it was put to the Applicant that she wished to have a mutual shared life, but the Respondent did not, despite what statements the Respondent made for the purposes of these proceedings, the manner in which both parties conducted themselves and acted overwhelmingly conveyed that even in the face of infidelity and absence due to the Respondent working on a FIFO basis, both parties maintained their commitment to their relationship as a couple residing in a home together on a bone fide domestic basis until the Respondent told the Applicant to leave the B Street, Town C property in 2019. It was only at that time that the relationship as a couple ended.
For all the foregoing reasons, I am satisfied that the parties were in a de facto relationship within the meaning of section 4AA of the Act for a period of approximately 4 years and 6 months. Accordingly a declaration is made pursuant to section 90RD(2) of the Act in such terms.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Dated: 11 November 2021
0
7
2