Balcomb and Daley
[2016] FCCA 1635
•1 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALCOMB & DALEY | [2016] FCCA 1635 |
| Catchwords: FAMILY LAW – Where Applicant seeks a declaration pursuant to s.90RD of the Family Law Act 1975 that she and the Respondent were in a de-facto relationship – held parties in a de facto relationship. |
| Legislation: Evidence Act 1995, s.128 Family Law Act 1975, ss.90RD, 90RF, 4AA |
| Jonah & White [2012] FamCAFC 200 Jonah v White [2011] FamCA 221 JPDJ v DADJ [2005] FMCAfam 86 Keene & Scofield (No.2) [2013] FCCA 1107 Sinclair & Whittaker (2013) FLC 93-551 Nelson v Nelson [1995] HCA 25 Moby & Schutter (2010) FLC 93-447 |
| Applicant: | MS BALCOMB |
| Respondent: | MR DALEY |
| File Number: | MLC 363 of 2015 |
| Judgment of: | Judge Jones |
| Hearing dates: | 22, 23 & 24 February 2016 |
| Date of Last Submission: | 13 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sweet |
| Solicitors for the Applicant: | Twigg Family Law |
| Counsel for the Respondent: | Ms Smallwood |
| Solicitors for the Respondent: | Pearsons Lawyers |
ORDERS
That pursuant to s.90RD of the Family Law Act 1975 (Cth), the Court declares that a de facto relationship existed between the Applicant and the Respondent from late 2001 to 15 October 2013.
The proceedings are listed for mention at 9:30am on 6 July 2016.
IT IS NOTED that publication of this judgment under the pseudonym Balcomb & Daley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 363 of 2015
| MS BALCOMB |
Applicant
And
| MR DALEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 20 January 2015 by Ms Balcomb (“the Applicant”), seeking a declaration that pursuant to s.90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), a de facto relationship existed between the Applicant and Mr Daley (“the Respondent”) from about late 2001 until on or about 15 October 2013, or such date as determined by the Court.
The Respondent seeks that the application be dismissed.
The law
Statutory provisions
Section 90RF of the Act provides:
Any party to the primary proceedings may apply for a section 90RD declaration.
Section 90RD of the Act provides:
(1) If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA of the Act sets out the definition of de facto relationships. Section 4AA of the Act provides as follows:
Meaning of the de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection(6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
The legal principles
In Jonah v White [2011] FamCA 221, Murphy J held that a declaration pursuant to s.90RD of the Act does not involve the exercise of judicial discretion, but is rather a determination of fact. At [39] His Honour held:
The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148 the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.
In this matter the jurisdictional fact to be determined is whether the parties had a relationship as a couple living together on a genuine domestic basis.
Judge Brown in Keene & Scofield (No.2) [2013] FCCA 1107 (“Scofield”) summarised the legal principles applicable to the determination of whether there has been a de facto relationship, as defined by the Act. His Honour’s summarisation of those principles are as follows:
38. In Taisha v Peng[1] Cronin J held that section 4AA(1) contained the mandatory requirements “for the existence or otherwise of a de facto relationship, whilst the matters listed in section 4AA(2) were to be utilised as a guide only for the purposes of the preceding sub section.”
39. Mushin J in Moby & Schulter[2] considered that the question of whether the parties concerned were in a de facto relationship “must be considered on a case-by-case basis without circumscribing any particular factor”. Accordingly, it is potentially erroneous for the court to attempt to isolate individual factors and tribute relative degrees of importance. It is the “composite picture” which is important.[3]
40. In Jonah Murphy J indicated that “the key” to the definition contained in section 4AA(1) was:
“…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.”[4]
[1] See Taisha v Peng (2013) 48 FamLR 150 at 152
[2] See Moby & Schulter (2010) FLC 93-447 at 85,063
[3] See Taisha v Peng (supra) at 153
[4] See Jonah v White (supra) at 471
…
43. In Moby & Schulter Mushin J considered that the concept of “genuine domestic basis” was not a term of art but must be given its ordinary meaning. In particular, he considered that due regard must be had to the circumstances of modern life, which necessarily has the potential to throw up diverse relationships outside of the norm, which could nonetheless be considered genuine domestic ones, in common parlance.[5]
[5] See Moby & Schulter (supra) at 85,067
44. The existence or otherwise of a marriage is established by one unequivocal event, which is readily memorialised by official edict. No one event is necessarily definitive of the existence of a de facto relationship. In Moby Mushin J made the following comments, which seem to me to be germane to the present case:
“The parties' relationship may be seen as having gone through a number of different phases. The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship. Accordingly, it is appropriate to consider the facts of the parties' relationship in those different phases and then step back and take an overview of the entirety of the facts.”[6]
[6] See Moby & Schulter (supra) at 85,067
45. In this case, both Mr Keene, but particularly Ms Scofield, assert that the relationship went through a number of different phases. It also clearly had a number of different aspects. It will be necessary for me to outline the various phases of their relationship and step back from it to determine what was the nature of their relationship together, from the totality of the facts arising. It is at the end of that deliberation that I must be satisfied as to the existence of a domestic relationship.
46. Domestic derives from the Latin domus, literally a home. As an adjective, it pertains to the home, household or family affairs.[7] In this context Cronin J in Taisha v Peng said as follows:
“… there must still be evidence of a domestic relationship. Mushin J in Moby said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”[8]
47. It is clear from the content of section 4AA(5) that a de facto relationship does not have to be exclusive in order to satisfy the definition contained in subsection (1). A de facto relationship can exist, even if one of the person’s is legally married to someone else or even in another de facto relationship.
48. In this context, Murphy J did not consider that temporal or quantative aspects were central to the existence or otherwise of a state of coupledom existing between the parties concerned. Rather, in his view, the issue turned on the nature of the relationship in question. In Jonah he said as follows:
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.[9]
[7] See the Australian Oxford Dictionary
[8] See Taisha v Peng (supra) at 153
[9] See Jonah v White (supra) at 472
Thus it can be seen that, in order to determine whether the parties in this matter were in a de facto relationship, the Court must consider the “nature of the union - a merger of two individual lives into life as a couple”.
For completeness, it is to be noted that the parties are not married to each other, nor are they related by family. Therefore it falls for the Court to decide whether “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”: s.44AA(1)(c) of the Act.
No one particular factor will determine whether the parties have lived together in a de facto relationship, but rather the relationship “as a whole” must be considered. Though guidance can be taken from the factors enunciated in s.4AA(2) of the Act.
Evidence
The Applicant relied on the following Affidavits and documents:
a)Initiating Application filed on 20 January 2015;
b)Financial Statement filed on 20 January 2015;
c)Affidavit of the Applicant filed on 20 January 2015;
d)Affidavit of the Applicant filed on 29 January 2016;
e)Affidavit of Ms P filed on 29 January 2016;
f)Affidavit of A filed on 29 January 2016;
g)Affidavit of Ms T filed on 29 January 2016;
h)Affidavit of B filed on 29 January 2016;
i)Affidavit of Ms J filed on 1 February 2016; and
j)Outline of Case filed on 18 February 2016.
The Applicant tendered the following exhibits:
a)Exhibit A1 - Text message between the Applicant and the Respondent dated 09/11/2013;
b)Exhibit A2 - Text message from a ‘Me’ sent with name Mr Daley and phone number;
c)Exhibit A3 - Extract from Calendar 2013, including month of August 2013;
d)Exhibit A4 - Birthday card made out to B from Mr B, Ms L, Ms N and two others;
e)Exhibit A5 - 21st Birthday Card addressed to B from Mr B, Ms L and Ms N;
f)Exhibit A6 - Exhibit 2 of the Supreme Court of Victoria dated 02/11/2001;
g)Exhibit A7 - Copy of Calendar page: April 2012;
h)Exhibit A8 - Document with three photographs, with a young boy and a dog; and
i)Exhibit A9 - Photograph of a group of people, on the back of which is written ‘Ms Balcomb 50th’.
The Applicant, Ms P, A, B, Ms T and Ms J were cross-examined.
The Respondent relied on the following Affidavits and documents:
a)Response filed on 13 April 2015;
b)Affidavit of the Respondent filed on 13 April 2015;
c)Financial Statement filed on 13 April 2015;
d)Affidavit of Mr A filed on 8 February 2016;
e)Affidavit of Mr J filed on 8 February 2016;
f)Affidavit of Mr C filed on 8 February 2016;
g)Affidavit of Mr B filed on 8 February 2016;
h)Affidavit of Mr O filed on 8 February 2016;
i)Affidavit of Ms M filed on 8 February 2016;
j)Affidavit of Mr P filed on 8 February 2016;
k)Affidavit of Ms K filed on 8 February 2016;
l)Affidavit of Mr D filed on 8 February 2016; and
m)Outline of Case filed on 19 February 2016.
The Respondent tendered the following exhibits:
a)Exhibit R1 - Application for (omitted) Bank signed 15/07/2009;
b)Exhibit R2 – Victoria Police document: Private Security Individual Licence in the name of the Respondent;
c)Exhibit R3 - Tax receipt from (omitted) 09/11/2009;
d)Exhibit R4 - Two photographs of exercise bike;
e)Exhibit R5 - Bundle of photographs of the Property W;
f)Exhibit R6 - Bundle of photographs of gym equipment; and
g)Exhibit R7 - two documents, one a list of de factors wife’s documents, the second is correspondence from the Applicant’s solicitors dated 31/07/15.
The Respondent, Mr D, Ms K, Mr C, Mr P and Mr B were cross-examined.
The parties agree that they had a relationship between 1997 and 15 October 2013. The Applicant asserts that from late 2001 until 15 October 2013 the parties were in a de facto relationship, whilst the Respondent asserts that the parties were dating during that period.
The following are matters which are not disputed:
a)The Applicant was born on (omitted) 1963 and the Respondent was born on (omitted) 1963;
b)The Applicant has two children from a former relationship; A, born (omitted) 1988 and B, born (omitted) 1991;
c)During the period under consideration, the Applicant held title to Property B, Victoria (“the Property B property”). The Respondent held title to Property W, Victoria (“the Property W property”) and a property called Property T Farm, Victoria (“the Property T Farm”), which includes a house the Respondent has tenanted. The rental income from Property T Farm was deposited into the Respondent’s personal bank account. The Applicant and Respondent each owned these properties prior to the commencement of their relationship; and
d)In 2009, the parties jointly purchased Property H, Victoria (“the Property H property”) and in 2010 they jointly purchased Property G, Victoria (“the Property G property”) (collectively “the investment properties”). The investment properties were tenanted.
Other than these factual matters, the parties vigorously disputed nearly all of the important facts in these proceedings. Accordingly, it is necessary for me to make observations about the credibility of the parties and some of those witnesses called to provide corroborative evidence.
The Applicant sought and was granted a certificate under s.128 of the Evidence Act 1995 (Cth) in relation to evidence she gave regarding Centrelink Parenting Payment (Single) she received from late 2001 to 2007. The Applicant did not attempt to give an explanation to justify the fact that she had not disclosed to Centrelink that she was in a de facto relationship. In cross-examination she said “I lied”. She said that she had no reason for her failure to disclose her overpayments to Centrelink. She agreed that in her Financial Statement she had not identified the Centrelink overpayment as a debt.
The Applicant agreed that it was a serious matter but stated she had not taken and would not take any steps to repay the amount of payments received by her to which she was not entitled (given that she asserts she was in a de facto relationship). The Respondent in his written closing submission asserts that given the Applicant asserts she was in a de facto relationship with him, her “deceitful receipt of a very significant sum of money is cavalier, and demonstrative of her level of dishonesty, for which she made no apology.” The alternative, he submits is the Applicant is in these proceedings, “making a false statement in order to obtain money, as to the existence of a defacto relationship.” He submits that the Applicant’s “credit is damaged both by the uncontroversial fact that she has lied on oath to obtain money, either to Centrelink, or this court, and is further damaged by her continuing, and unashamed, dishonest intention to keep both benefits.”[10]
[10] Closing Submissions on Behalf of the Respondent at [1].
I do not intend to engage in the moral approbation, which the Respondent appears to ask the Court to attach to the Applicant’s behaviour. This would not be consistent with the authorities.
In JPDJ v DADJ [2005] FMCAfam 86 (“JPDJ v DADJ”), Ryan FM, as her Honour then was, noted at [44] that:
In the Marriage of Jordan (1997) FLC 92-736 Chisholm J considered the Elias principle. Writing extra-judicially in an article titled, “Exclusion of Evidence Inconsistent with earlier statement: the rise and fall of the Elias principle” Chisholm J argued that although such a principal seems to be asserted in a number of Family Court decisions, it is inconsistent with High Court authority and does not represent the law.
Ryan FM considered the effect of Nelson v Nelson [1995] HCA 25 and concluded at [46] of JPDJ v DADJ:
The conclusion reached by Chisholm J is compelling. He writes, “If the argument in this paper is accepted, the Elias line of authorities is wrong insofar as it suggests that there is a principle, apart from estoppel the court may or must prevent a party from leading evidence of a proposition that is inconsistent with an earlier statement made to a third party. It follows that in property cases the court will consider all the evidence and make findings about the property of the parties and about their contributions. Earlier inconsistent statements of the kind that feature in the Elias cases will of course be relevant to this fact finding exercise. The court will have to consider whether the earlier statement or the later statement is more likely to be true. Further, the contradiction will be taken into account in determining what confidence the court will have in that party's evidence generally. That all of this falls into the ordinary process of fact finding: no evidence would be excluded, and there would be no presumptions that one or other of the inconsistent statements is more likely to be true”.
In Sinclair & Whittaker (2013) FLC 93-551, the Full Court looked at this issue. In that case, the Respondent made representations to lending institutions and government agencies that she was single, when there was available an option of “de facto”. The Court’s findings are adequately summarised in the headnote as follows:
“1. Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
2. The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10 McColl JA said at [99]:
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances ... (Reference omitted)
3. Further, we are not satisfied that the trial Judge ignored them. After dealing with all the matters specified in s 4AA(2), which his Honour found to be neutral or in favour of a de facto relationship, his Honour weighed those against what he described as “a few countervailing facts”.”
The Applicant's evidence was given in a calm, straightforward and cooperative way and she was, in my view, a generally credible witness. In considering her evidence and making findings, I have at all times taken into account the Applicant’s failure to disclose to Centrelink, what she asserts is a fact, namely that she was in a de facto relationship. I have formed the view that the fact that she has admitted to dishonestly claiming a Centrelink payment did not affect the overall veracity of her evidence.
On a number of occasions the Respondent’s oral evidence was inconsistent on crucial questions to matters he deposed to in his Affidavit filed on 13 April 2015. Three particular issues stand out.
The first is that he deposed that he “did not provide any financial or emotional support with respect to Ms Balcomb’s children”: Respondent’s affidavit filed on 13 April 2016 at [15]. This was completely at odds with his evidence, given in cross-examination, during which he said he that loved A (the Applicant’s son) and was generous to both A and B. This evidence was given by the Respondent in a highly emotionally charged state and I am satisfied that this evidence was a truthful reflection about his relationship with the children. He was visibly upset about the fact neither child had attempted to contact him after the relationship ended. This oral evidence (and other evidence I will address) support a contrary conclusion, that he was emotionally close to and supported the two children.
The second issue arose from the Respondent’s sworn evidence that he and the Applicant maintained separate finances apart from two investment properties and that they met their own expenses at all times while dating (Respondent’s Affidavit filed on 13 April 2015 at [16], [17], [52] and [54]). This was contradicted by the Respondent’s oral evidence that prior to the purchase of the investment properties he would give the Applicant $200.00 each week. He said that if the Applicant “ever needed money, I would give her money.” He later emphatically stated that, when the couple went out to socialise, he would always pay for the Applicant’s expenses.
The third issue arises because the Respondent deposed that the Applicant “wanted to have a child through IVF, which I disagreed to immediately given that we were not in a relationship. Ms Balcomb obviously went ahead and made enquiries to which I had no knowledge of”: Respondent’s Affidavit filed on 13 April 2015 at [63]. The Respondent’s evidence that he had no knowledge about the Applicant making enquiries into IVF treatment proved completely contradictory to correspondence sent by an Obstetrician dated 20 July 2013 to both the Applicant and the Respondent (Annexure F to the Applicant’s Affidavit filed on 29 January 2016). In cross-examination, the Respondent conceded he attended the Obstetrician with the Applicant but denied that his Affidavit was misleading. However, on a common sense reading of that paragraph, there is no doubt that the Respondent intended to say that the Applicant went ahead and made enquiries about IVF treatment, a fact of which he had no knowledge. There is no doubt in my mind that this statement was misleading.
These issues I have dealt with are not merely differences in the evidence, which may be said to reflect the Respondent’s perspective of the relationship. They are frankly misleading. I have formed the opinion that the matters deposed to by the Respondent, to which I have just referred, were designed to promote his own case rather than to reflect the truth. There can be no doubt that this reflects badly on the Respondent’s credibility. Although the Respondent did give evidence which I have found credible generally I was concerned about the veracity of his evidence.
I turn now to consider some of the corroborative evidence.
A, who is now 28 years of age, was an impressive witness. His answers were direct and responsive. There is no doubt that he was hurt; first, by the Respondent’s relationship with another woman during the course of the Respondent’s relationship with the Applicant but also the ending of the relationship. Notwithstanding this sadness, I am satisfied that his evidence was truthful and that he was a credible witness. Any inconsistencies with his brother’s evidence; for instance regarding the time they spent with their Father, was likely due to the fact that both he and B were very young when the relationship commenced. The Respondent, in his closing submissions, asserted that, “A stated in cross examination that he and his mother had helped each other out with their evidence. It is submitted that collaboration must reduce the weight of his evidence significantly.” This submission misrepresents the evidence given by A. In cross-examination, he said his Mother told him he should write about what he knew about the Respondent and informed him of the topics he might wish to cover in his Affidavit. When he was asked whether his Mother told him to make it clear in his Affidavit that the Respondent lived at the Property B property, he responded, “No, she didn’t make it clear”. I accept A’s evidence and reject the assertion that there was any collaboration between the Mother and her son in the preparation of his Affidavit.
B, who is 24 of age, presented as somewhat terse at times and clearly is angry with the Respondent for ending the relationship with his Mother. Having said that, I did not form a view that he was in any way exaggerating his evidence in order to support his Mother’s case. His presentation likely reflected, what seems to be undisputed on the evidence; namely, the sometimes difficult relationship between the Respondent and B during the relationship.
Ms T, a disability pensioner and neighbour of the Applicant was in my view, genuine in giving her evidence. I accept that she has her own subjective view of the parties’ relationship over the time she was the Applicant’s neighbour. However, I formed the view that she was somewhat confused about the quantity of time the Respondent spent at the Property B property and consequently have not given any weight to her evidence.
Ms P, who is the Applicant’s maternal Aunt, likewise gave her evidence in a genuine manner. However, the most she could say was that she visited the Property B property on average three or four times per year and that on almost every occasion the Respondent was present in the house. I was not assisted by her evidence.
Mr J gave his evidence in a direct and forthcoming manner. I found him to be a very convincing witness. In his written submissions, the Respondent asserted that Mr J “gave evidence that the Applicant had asked him to say the Respondent was living at Property B” at [18]. This assertion is also a misrepresentation of the evidence. Mr J gave evidence that he was asked by the Applicant to attend at her solicitor’s office to talk about his recollection of the parties’ times together. The Respondent also submitted that Mr J’ evidence was unreliable as he gave evidence that he recalls seeing the parties having a disagreement at a New Year’s Eve party before they split up in early 2014. Clearly this evidence is inconsistent with the parties’ evidence that their relationship ended in October 2013. However, I do not accept that this renders Mr J’s evidence unreliable. The fact is that there is no dispute about when the parties ended their relationship. Consequently, nothing of any relevance emerges from this error. Where there is any difference between Mr J’s evidence and the Respondent’s evidence as to the matters relevant to this decision, I prefer Mr J’s evidence.
Mr D, who lived in the Respondent's Property W property for around 6 and a half years, was not a credible witness. He was defensive, disrespectful in my view to the Court proceedings, often found it difficult to answer a question directly and was quite evasive at times. This may be because on his own evidence he was depressed and abused substances during the relevant period, apparently sleeping most of the time. Whatever the reason, I have given no weight to his evidence.
Mr B gave his evidence in a straightforward and direct way. However, the evidence that he gave about the times he and his family spent time with the Applicant and the Respondent in cross-examination revealed that the critical part of his Affidavit filed on 8 February 2016, was a complete understatement. At [4] he deposed, having said that he was aware that the Respondent “dated” the Applicant, “I have met Ms Balcomb on a few occasions at barbeques at my home”. His evidence in cross-examination was that he and his wife attended barbecues at the Property B property and significantly, they attended special occasions relating to the Applicant or her children’s birthdays and the Applicant attended special occasions celebrated by his family. In light of this contradictory evidence, I formed the view that the matters deposed to by Mr B (at [4]) were misleading and intended to support the Respondent’s case.
Discussion
I am conscious that s.4AA of the Act does not require a sequential consideration of each of the matters referred to in s.4AA(2) of the Act, but that they are rather matters that might illuminate the required task, which the sub-heading to the section describes as “Working out if persons have a relationship as a couple”. I am also conscious that a consideration of the matters specified in the subsection is not determinative of the question the Court must decide; namely whether the parties “have a relationship as a couple living together on a genuine domestic basis”, within the meaning of s.4AA(1)(c) of the Act. Having said this, however, I will proceed to consider the parties evidence, so far as the matters set out in s.4AA(2) of the Act are relevant.
It is appropriate first to deal with a submission put by the Respondent in relation to the Applicant’s assertion that the de facto relationship commenced in late 2001. Noting both parties agree that they had a sexual relationship between 1997 and 15 October 2013, the Respondent submits that the Applicant “does not identify a date, nor does she cite any precipitating event, which caused the relationship to change it’s nature from that which she concedes was previously not a defacto relationship.”[11] In my opinion, there is no obligation on the Applicant to identify a precipitating event for when the parties entered, as she alleges, a de facto relationship. As observed by Judge Brown in Scofield (supra), the existence or otherwise of marriage is established by one unequivocal event formalised by a certificate. By comparison, it inevitably follows that no one event is necessarily definitive of the existence of a de facto relationship. Indeed, as Mushin J pointed out in Moby & Schutter (2010) FLC 93-447, a de facto relationship may go through various phases.
The Circumstances of the Relationship
[11] Closing Submissions on Behalf of the Respondent at [3].
Section 4AA(2)(a) of the Act – the Duration of the Relationship
The Applicant’s case is that the parties were in a de facto relationship from late 2001 until October 2013. The Respondent’s case is that the parties dated during the period from 1997 until October 2013.
The Nature and Extent of their Common Residence
As I stated earlier, there is no dispute that the parties were the sole registered proprietors of separate properties. The Applicant owned the Property B property and the Respondent owned the Property W property (which he regarded as his home), as well as Property T Farm. There is no dispute that during the period of the relationship the Respondent engaged in extensive renovations of his Property W property, both structural and decorative.
The Applicant says that from late 2001, the Respondent effectively moved into the Property B property and until 2012, spent one night each two to three weeks at the Property W property. She says that during the day the Respondent often went to his Property W property to do renovations which has been ongoing over a very long period of time. She said that from 2012, because of the location of the Respondent’s new full-time work, he stayed at his Property W property from Monday to Friday, returning to the Property B property during weekends.
There is no dispute that when the Respondent stayed overnight at the Property B property, he and the Applicant shared the same bed in the master bedroom.
A’s evidence is that he moved out of the Property B property in 2010. He said that after the Respondent moved into their home when he was a young boy, the Respondent would stay at the Property W property once a week. He gave evidence that the Respondent cared for him and his brother when his Mother worked. He said that he knew the Respondent worked evenings, however, when he and his brother went to school, the Respondent’s car was in the driveway. He said that after 2010, he visited the Property B property a couple of times a week.
The Respondent’s evidence is that he and the Applicant stayed at each other’s houses on no more than four or five occasions per month. Other than the times he stayed over at the Property B property, he remained living at the Property W property. Having seen various photographs of the state of renovation of the Property W property, I cannot see how the Applicant would have been able to stay over at the Property W property once the renovations commenced in or around 2001.
The Respondent’s corroborative witnesses relevant to this consideration were:
a)Mr P, who lived next to the Property W property and gave evidence that when he was working (until 2008), as he left for work at 7:00am, he would see the Respondent’s motor vehicle in the driveway of his home on Friday, Saturday and Sunday mornings. He said that when he came home from work, he often heard the Respondent in his backyard training or renovating his house;
b)Mr D, whose evidence I have found unreliable and disregarded;
c)Mr B, whose oral evidence established that, unfortunately, he was an unreliable witness as his Affidavit could only have been said to be misleading with respect to the times he saw the Applicant and the Respondent together;
d)Ms K, the Respondent’s Mother, whose evidence was that she went to the Property B property for dinner around 12 times each year. This evidence is consistent with the Applicant’s evidence that Ms K came once a month on Sundays for roast dinner;
e)Mr O, who operates a mechanic business in (omitted). He was not cross-examined. He deposed that Respondent had been a customer of his for around 30 years and he collected and delivered the Respondent’s vehicles as part of his service to the Property W property. He deposed that he met the Applicant on approximately 10 occasions;
f)Ms M, who is an operator of a newsagency in (omitted). She was not cross-examined. She deposed that the Respondent purchased newspapers from the newsagent regularly;
g)Mr C, who has been a neighbour of the Property W property for 15 years. He deposed that he had “always and continue to see Mr Daley coming and going to and from his house and walking around the neighbourhood area on a frequent basis.” In cross-examination, he said that at the relevant time he left for work at 7:30am and returned at 4:30pm. He said he tended to keep to himself at home but observed the Respondent’s car at the Property W property “frequently”;
h)Mr J operates a pizza restaurant in (omitted). He was not cross-examined. He deposed that between 1999 to the present day he has delivered pizzas on a regular basis to the Respondent at the Property W property, as well as catering for functions at the property. He deposed that the Respondent appeared to him to be living at the Property W property whenever he delivered pizzas there; and
i)Mr A manages a (omitted) company located in (omitted). He was not cross-examined. He deposed that he had known the Respondent for approximately 20 years, that the Respondent had been a regular customer who opened an account with the store in 2002 and always received deliveries to his home address at the Property W property.
There is no dispute that, save for two exceptions, all correspondence to the Respondent were sent to him at his Property W address. Moreover, his Medicare card, health insurance, (omitted) membership and licenses (driving and security) specified the Property W address as his address. The first exception were cheques from Telstra to the Respondent for the use of his Property T Farm for a telecommunications tower. This correspondence was sent at the request of the Respondent to the address of the Property B property. The explanation that the Respondent gave was that he did not trust his brother not to steal those cheques from the Property W property and use them for his own benefit. This explanation was not disputed by the Applicant and I accept that this is the reason that correspondence was sent to the Property B property. However, the explanation suggests that the Respondent has significantly underestimated the time he spent at the Property B property away from his Property W home. I can see no reason why he would be concerned that his brother would interfere with his mail were he only away from his Property W home a few times a month. If he was living at the Property W property, there would be no reason why he could not regularly collect his mail before his brother had the opportunity. The other exception is correspondence relating to insurance for the Respondent’s motor vehicle. The Respondent’s explanation for this is that the Applicant offered to arrange the insurance through her work in order to obtain a better premium. I accept this explanation.
There is no dispute that the Respondent engaged in renovations and maintenance on the Property B property; such as erecting a pergola, working on the roof and improving the garden.
The Applicant deposed that the Property W property was rented out and produced documents purporting to support this assertion (Annexure D, Applicant’s Affidavit filed 29 January 2016). The Respondent said many friends of his had stayed at that property, rent free, including Mr D (who lived there for 6 and a half years without paying rent). When presented with a notation written by the Respondent in April 2012 on a calendar kept by the Applicant at the Property B property (Exhibit A7), stating, “Mr D (Mr D) asked to pay rent”, he responded that he did ask him for rent but he refused. The Respondent said that he did not pursue the matter. Although, I found this evidence somewhat implausible it is, in my view, irrelevant whether or not the Respondent derived rent from his property for the purpose of this decision. There is no dispute between the parties that the Respondent spent nights at his property. The dispute is over how many nights he lived there, or to rephrase the question correctly, how often did he stay overnight at the Property B property. The heavily disputed evidence over rent does not assist me in this regard as the Respondent may well have stayed overnight at the Property W property whilst his friends were living there.
A significant amount of evidence was given regarding belongings the Respondent kept at the Property B property. The evidence of the Applicant, A and B, is that the Respondent kept and used gym equipment, clothes, various health-related equipment and vitamin supplements at the Property B property. The Applicant annexed to her Affidavit filed on 9 January 2016 (Annexure E) a series of photographs which were said to depict these belongings. The Applicant said that these photographs contained in Annexure E were taken by B at her direction sometime in November 2013.
The Applicant’s evidence is that some time in November 2013, the Respondent came to the Property B property to collect various boxes of personal items (a photograph of which is contained in Annexure E). The Respondent denies this. The Respondent’s evidence is that, at most, he kept at the Property B property a couple of T-shirts, windcheaters and a tracksuit. The Applicant’s evidence that the numerous boxes contained the Respondent’s belongings suffers from an obvious deficiency. This is that the boxes are sealed. There is no photographic evidence of their contents. In addition, the Applicant does not refer to those boxes in her Affidavit filed on 29 January 2016. She deposes that she has many photographs of the Respondent’s belongings before they were transported (at [26]). This suggests the Applicant is referring to items described in [60] to [61] below. I am not prepared to find that the boxes in the photograph contain the Respondent’s belongings kept at the Property B property. This should not be taken to mean, however, that I am not satisfied that the Respondent kept belongings at the Property B property.
The Applicant’s evidence is also that the Respondent’s financial paperwork was kept at the Property B property and that in 2014, she put these documents into boxes which were collected by Ms J. The Respondent says that only one box of paperwork was delivered by Ms J to him. The Respondent’s evidence is that in around 2010 and 2012, the Applicant came to the Property W property and took without his permission financial paperwork.
An issue in dispute related to the Respondent’s trailer. The Applicant and A said that the Respondent kept this trailer at the Property B property for the majority of the time. The Respondent denied this, saying that he lent the trailer for use by many people but otherwise kept it at his Property W property. There is a copy of a photograph in Annexure E to the Applicant’s Affidavit filed on 29 January 2016, which shows a trailer with gym equipment as well as pallets and other material on the trailer. There is no dispute that that is the Respondent’s trailer. The Applicant’s evidence is the photograph of the trailer was taken in or around November 2013. The Respondent said he did not collect the trailer for some months after the end of the relationship in October 2013. Given the Respondent’s evidence, one would have expected the Respondent to have collected his trailer early after the relationship ended. The fact that the trailer was left at the Property B property for some months after the relationship ended, contradicts in my opinion, the Respondent’s evidence that he mainly kept the trailer at his house lending it out for use by friends as required. I am satisfied it is more than likely the trailer was mostly kept at the Property B property during the relationship.
There does not seem to be any dispute that the Respondent regularly works out using gym equipment and that he is very conscious of his health. There is no doubt that gym equipment was kept in the backyard at the Property B property and that the Respondent has a fully equipped gym at the Property W property (Exhibit R6). The Applicant maintains that the Respondent brought the gym equipment to the Property B property and used it when he stayed there. The Respondent’s evidence on the time and way in which this equipment came to be in the backyard is confusing. In his Affidavit filed on 13 April 2015, he deposes at [62]:
I deny the contents of paragraph 26 and I say that I gave some old sporting equipment to Ms Balcomb’s children, which had been given to me by Mr W. I was initially taking the equipment to the tip when Ms Balcomb saw it in my trailer, after I stopped by her home for a cup of tea, when she asked if she could have it for her children. …
In cross-examination, the Respondent clarified that this paragraph referred to a piece of white equipment (one of three separate pieces of equipment) kept in the backyard of the Property B property. He said that he brought the other two pieces of equipment at different times in the relationship (he could not recall the dates) for the boys and him to use to train together. One of the pieces of equipment was a bench press and various weights. When the Respondent was shown a photograph (Exhibit A8) of B with the equipment in the background, he did not dispute that this would have been in 2001. When asked whether this Exhibit “gelled” with the Applicant’s evidence that the Respondent moved his belongings to the Property B property in 2001, the Respondent said, somewhat cryptically given his evidence, that it gelled with the idea that the Property W gym was closed at the time and that is when he acquired all the equipment.
It is difficult to make sense of the Respondent’s evidence. Doing the best I can, I am satisfied that it is more probable than not that he brought to the Property B property gym equipment for him to use at the Property B property and also to train with A and B. The Respondent submitted in his closing submissions that A and B referred to the gym equipment other than a piece of equipment he asserts he gave to the Applicant, as rubbish. This is a misrepresentation of the evidence given by A and B. Their consistent evidence was that after the relationship ended, they packed up the gym equipment and placed it on the Respondent’s trailer which was at the Applicant’s home together with some rubbish.
The Respondent was taken through various other belongings, including a dressing gown (which he said the Applicant provided him and which he wore when he stayed at the Property B property). He denied that shirts shown in the photograph of the Applicant’s closet in the master bedroom were his. Initially, he said he did not wear business type shirts but later conceded he was required to wear collared shirts when performing his work as a (occupation omitted).
There were various other items depicted in the photographs: such as, back stretcher, kettle bells, foot spa, vitamin supplements, protein powder and a box of syringes. The Respondent denied the vitamin supplements and protein powder were his, except for a container of Turmeric powder, which he said he placed into capsules for consumption. The Respondent denied that the box of syringes was his and rejected the assertion that he used syringes to inject Stanozolol. He said he used Stanozolol in tablet form. He denied that the foot spa was his. The Respondent confirmed that the back stretcher was his which together with kettle bells he brought from a boxing gym and left at the Property B property. He said the Applicant used the kettle bells. He also agreed that an air purifier, depicted in one of the photographs, was a gift given by the Applicant in 2008, which he used when staying at the Property B property. He confirmed that an image of an aftershave product on a bedside table was his and conceded that an image of a particular deodorant could have been his.
I do not intend to traverse the extensive evidence on this issue, save to say I prefer the evidence of the Applicant, supported by A, that the Respondent brought various items of gym equipment which were located in the backyard and which he regularly used during the time he stayed at the Property B property. I am also satisfied that the Respondent kept sufficient clothing at the Property B property to use for work and leisure. It may well be as the Applicant says that her closet was full of his clothes.
The Applicant’s evidence is that the Respondent purchased a filing cabinet to accommodate the growing amount of paperwork, including the Respondent’s financial matters and later the investment properties. The Applicant says that the Respondent brought his paperwork sent to the Property W property to the Property B property for her to file. The Respondent agreed that the financial paperwork with respect to the investment properties was kept and maintained by the Applicant at the Property B property. He also conceded, during cross-examination that the Applicant undertook book work for him. He asserted, however, that the Applicant unilaterally took various financial documents from the Property W property to work on at her home. His evidence was slightly confusing. Initially the Respondent said that he took his paperwork several times but he later said that she took his paperwork without his permission and that this occurred on only one or two occasions after 2010. I do not accept the Respondent’s evidence. It is implausible that if the Applicant had as the Respondent maintains, unilaterally taken the paperwork from his property, he would have allowed her to retain the paperwork at the Property B property. I am satisfied that it is more probable than not, given his evidence of his limited education and that the Applicant was the literate person in the relationship, that he brought his paperwork home for the Applicant to file and maintain.
Mr J gave evidence that around April 2014, the Respondent whom he said he remained friendly with for around a year after the parties’ relationship ended, asked him to collect his paperwork from the Property B property. Mr J said that he telephoned the Applicant and conveyed the Respondent’s request. He said he then attended the Property B property and observed the Applicant in a room which looked like an office going through what he described as a lot of paperwork, removing and packing the Respondent’s paperwork in cardboard boxes. Mr J says there were four boxes in total and that he delivered those boxes almost immediately to the Respondent.
The Respondent agrees that he requested Mr J to collect paperwork from the Applicant. The Respondent says, however, that only one cardboard box was delivered. I prefer the evidence of Mr J that he delivered four cardboard boxes to the Respondent. I accept Mr J’s evidence that he observed the Applicant placing paperwork into these boxes. Accordingly, on the balance of probabilities, I am satisfied that Mr J delivered four cardboard boxes containing the Respondent’s paperwork from the Applicant’s home to the Respondent in or around April 2014.
The Applicant produced an extract from a 2012 calendar for the month of April (Exhibit A7). There is no dispute this is an extract from a calendar kept at the Property B property by the Applicant. The Respondent confirmed that in the square for 5 April 2012 he wrote, “Mr D, asked to pay rent”. The Applicant also produced extracts from a calendar, for the year 2013, kept at the Property B property. On that calendar at various dates in June, July, August and September are notes written by the Respondent; such as “Start Stanozol cycle” and references to “(omitted) 5 shut” and “(omitted) 4” (Exhibit A3). The Respondent confirmed that this was indeed his writing. In relation to the Stanozol, he said he wrote to remind himself to commence taking the tablets. He also confirmed that (omitted) was one of the places he worked at. Similarly, there is in Annexure Q to the Applicant’s Affidavit filed on 29 January 2016, which contains extracts from a calendar kept at the Property B property by the Applicant for September and October 2010 which contains handwritten notes by the Applicant on different dates referring to “(omitted)”.
Whether a Sexual Relationship Exists
There does not seem to be any dispute that there was a sexual relationship (other than a disputed period between 2005 to 2008) from the beginning of the relationship, when they met, until the relationship ended at the end of 2013. The Respondent maintains that there was no intimacy during the time he dated another women from 2005 to 2008. It seems to me having regard to the evidence, that it is more likely than not that the sexual relationship may have diminished in intensity during that time but nevertheless persisted throughout the relationship.
The Degree of Financial Dependence or Interdependence and any Arrangements for Financial Support between Them
Other than the two investment properties (see below), the Applicant and Respondent maintained separate bank accounts in their own names during the relationship. The employment and rental income earned by each of the parties was deposited into their respective bank accounts. The parties were responsible for the mortgage on each of their homes.
The Applicant maintains that the Respondent gave her money each week during the course of the relationship to assist with living expenses, pay his Tattslotto bets and after 2009, assist in the payment of the mortgages on the two investment properties.
The Respondent’s oral evidence is that prior to the purchase of the investment properties in 2009 and 2010, he gave to the Applicant an amount of $200.00 each week to assist in her living expenses. The Respondent said that after they purchased the investment properties, he gave the Applicant $400.00 each week, he believed, to make up the shortfall in the payment of the mortgages on the two properties. His evidence is that he was not aware that the Applicant used this money to assist in living expenses.
The Ownership, Use and Acquisition of their Property
The parties jointly acquired two investment properties; the Property H property and the Property G property.
The application for a loan to purchase the Property H property in July 2009 identifies the Applicant and Respondent as the purchasers of the property and lists the address for the parties as the Property W property. At item 4 of the application form, the Property B property is listed as security for the loan (Exhibit R1).
The Applicant’s evidence is that the parties considered the purchase of the investment properties to be their superannuation. The Respondent maintains that the purchase of the two investment properties was purely a commercial enterprise. This characterisation of the investment in those properties is inconsistent with the Respondent’s evidence that he paid the Applicant $400.00 weekly to cover her inability to make the loan repayments and that he performed minor renovations/maintenance on the properties without seeking reimbursement from the Applicant.
The Applicant’s evidence is that when tenants vacated the Property T Farm, she would assist the Respondent in cleaning the house before the next tenants moved in. She also says that she replaced the drapes and curtains on one occasion (using the drapes and curtains from her mother’s house) and often assisted in gardening around the Property T Farm. The Respondent denies that the Applicant assisted at all in cleaning the house or generally in maintaining it. A gave evidence that he recalled going with the Applicant and Respondent to the Property T Farm to assist in cleaning the house.
The Applicant also gave evidence that she assisted the Respondent in the renovations to the Property W property. In her oral evidence, it became clear that the assistance she provided was the carrying of bricks, the painting of doors and window frames and the “filling in” of the Mosiac on the house’s external wall.
The Respondent vigorously denied the Applicant assisted at all in both the renovations and the creation and building of a mosaic on an exterior wall of the house. In my view it is likely that the Applicant did on occasions assist the Respondent in minor aspects of the renovations to the Property W property.
The Applicant agreed that the Respondent designed the mosaic and took great pride in its creation. Given this concession and the Respondent’s vigorous denial, I am satisfied that it is more likely than not that the Applicant may have assisted in minor aspects related to the creation of the mosaic but not its actual placement on the exterior wall. This, I am satisfied, was done by the Respondent alone.
The Degree of Mutual Commitment to a Shared Life
It is somewhat difficult to separate this fact from the evidence relevant to other factors specified under s.4AA(2A) of the Act. In particular, the evidence and findings with respect to the exploration by the parties of having a child through IVF treatment and the Respondent’s relationship with the Applicant’s children, especially A, are in my view, relevant to the consideration of the degree of mutual commitment to a shared life.
Annexure N of the Applicant’s Affidavit filed on 29 January 2016 contains copies of various cards from the Respondent to the Applicant on special occasions. The Respondent has variously written to the Applicant:
a)“Happy Bday my love Love u heaps Another $500 to you Mr Daley forever” (2002);
b)“To Ms Balcomb 50th birthday Hope it is a top year for you Love always Mr Daley”; and
c)“It doesn’t have to be Valentine’s Day to tell you how much I appreciate everything you do for me most of the time without condition nor complaint. Thank you. You may not be the best in the world, But your the best that I could ever find. Love always Mr Daley” (Undated).
The Respondent agreed there was a high level of affection and commitment displayed in his writings to the Applicant. He denied, however, that their relationship was a committed one. He said, simply it was “a relationship”.
In his written submissions, the Respondent argues these cards are expressions of love, which could just as easily emanate from a boyfriend/girlfriend relationship and over the period in question are quite sparse. No doubt this is true, however, in the consideration of the totality of the relationship, they can well be expressions of a deep commitment.
The Respondent agreed he trusted the Applicant and said he did not think the Applicant would do what she is doing, meaning attempting to institute property proceedings. The background to this is that, at the commencement of the relationship, the Respondent was engaged in property proceedings in the Supreme Court of Victoria in relation to a previous relationship.
The Respondent’s evidence is that during the period 2005 to 2008, his relationship with the Applicant was virtually non-existent. He said that he still saw the Applicant on a regular basis but just not as consistently as before. He referred to the lack of intimacy between the parties and that their relations were not as cordial. He said during this time he was in a relationship with a woman called Ms K who worked at (employer omitted) (later known as (employer omitted)) where the Respondent worked as a (occupation omitted). He gave evidence that they engaged in their relationship after work in the early hours of the morning and during the daytime.
The fact that the Respondent had an intimate relationship with another woman is not, of its own, determinative of the question before the Court.
The Full Court in Jonah & White [2012] FamCAFC 200 said with respect to s.4AA(5) of the Act at [36]:
“The effect of sub-s (5) on the determination of whether parties have a relationship as a couple living together on a genuine domestic basis is to import into it the understanding that a person can (as the authority of Green v Green (1989) 17 NSWLR 343 demonstrates) maintain two simultaneous relationships. That one of the parties asserted to have been in a de facto relationship was, at the same time, in another relationship, whether de facto or married, is a matter to be taken into account when considering the circumstances of the relationship and the indicia in s 4AA(2). However, the fundamental question remains to be determined and now we turn to that.”
The Applicant’s evidence is that she found out about this affair in 2006, packed up the Respondent’s belongings and delivered them to his Property W property. She says that they soon reconciled and the Respondent moved back into the Property B property.
The Respondent was taken to Annexure I of the Applicant’s Affidavit filed on 29 January 2016, which contains a copy of an itinerary for a trip for the Applicant and Respondent to (country omitted). The departure date on the itinerary is (omitted) 2006. The Respondent said the parties were not intimate during the trip, they went on the trip more as friends, although they shared the same bedroom and bed. In the same Annexure is a copy of an itinerary for a (omitted) Cruise for the Applicant and the Respondent dated (omitted) 2007. The Respondent gave evidence that the cruise was 14 days in duration, that he and the Applicant shared the same bedroom and bed and that they were probably intimate. There is also an itinerary from Flight Centre for a trip to (country omitted) from (omitted) 2012 to (omitted) 2012. The Respondent paid for the travel associated with these trips
The Respondent was taken to Annexure N of the Applicant’s Affidavit filed 29 January 2016, which contains a copy of a birthday card given by the Respondent to the Applicant around (omitted) 2006/2007 for the Applicant’s birthday. In the card the Applicant writes:
Christmas is a time to celebrate, greed and glutony however opening presents is for fools and …so its time to travel relax and unravel. I will leave it to you to choose either (country omitted) or a cruise. Its more fun to go away Don’t worry ILE pay Merry Xmas Ms Balcomb. Lots love Mr Daley.
The Respondent agreed that the card was written during an affectionate time. He was unable to give a plausible explanation for his generosity in paying for two overseas trips for himself and the Applicant during the time he said their relationship was non-existent.
Registration of the Relationship
The relationship was not registered under any law in Victoria.
Care and Support of the Children
The parties did not have children together. A major dispute between the parties is whether there was a mutual exploration by the Applicant and Respondent about the prospects of having a child together through IVF treatment.
I have referred earlier to the Respondent’s evidence in his Affidavit filed on 13 April 2015 on this topic which I found to be misleading (see [31] above).
Mr J gave evidence that on the evening after the parties had attended the obstetrician, the Applicant and Respondent came to his home to have dinner and were very excited about the prospect of having a child together. The Respondent denies that he and the Applicant went to Mr J’s house for dinner that night. I prefer Mr J’s evidence.
The Respondent said that he could not recall whether, at his Mother’s 70th birthday party, he announced to the guests that he and the Applicant were trying to have a child. His evidence was that he had always wanted to have a child. Ms K denied that the Applicant and Respondent announced at her 70th birthday party that they intended to have a child together. However, her evidence was that they said at a dinner at Mr B’s home that they intended to try and have a baby through IVF.
In his Affidavit filed on 13 April 2015, the Respondent deposed that he gave no emotional support to the Applicant’s children. In cross-examination, he was taken to Annexure K of the Applicant’s Affidavit filed on 29 January 2016, which contains a copy of a 21st birthday card from the Respondent to B in which the Respondent wrote:
To a son, stepson and mate.
You have come of age. Now you are your own man. We wish only the best for you in life. Hope it is a full rich happy and prosperous one. Love and best wishes Mr Daley and Ms Balcomb. XXXX
It is to be noted that “Ms Balcomb” is a reference to the Applicant.
There is also, in Annexure L to the Applicant’s Affidavit filed on 29 January 2016, a copy of an inscription written by the Respondent on a key-shaped 21st birthday card for A, in which he writes:
Happy fucken birthday son from Mr Daley. Hope u ava fucken ball.
The Respondent’s response to being shown these cards was that he referred to all young men as “son” and “stepson”. Although I accept that the Respondent may well refer to young men as “son”, I find it implausible that he would refer to young men he interacts with, for example, at the (omitted) gym as “stepson”.
The Respondent confirmed that he received Father’s Day cards from the boys. He said that he lacked a father during his formative years and that it was in his nature to try and help young men. His evidence that his relationship with A and B was no different to any other child he encountered was completely implausible given the evidence he gave at the end of the hearing where he said with respect to his relationship with A and B, the following:
“I loved A”;
“I would do anything for the kid.”
“It’s not distant with A, no. I love the kid.”
With respect to B, the Respondent said that he had his ups and downs with the child and that as a teenager they clashed but agreed that he was generous with the children and close to them. The Respondent then stated in an extremely emotional state that he had not heard from them since the relationship ended, following which he held his head in his hands appearing to be crying. Because of the clear distress the Respondent was experiencing, the hearing was adjourned to the next day.
The next day, whilst continuing to give his evidence the Respondent recanted on his earlier evidence, saying that he was not that involved with the children as he was not around that much. I formed the view that the Respondent gave this evidence having had the opportunity to reflect on the impact his evidence given the day before may have had on his case, overnight. I do not accept that this evidence reflects the reality of his relationship with the Applicant’s children.
I am satisfied that the cards sent on special occasions which on their face, disclose a warm and affectionate relationship, reflect the reality of the Respondent’s relationship with the Applicant’s children. I am satisfied that the Respondent had, during the parties’ relationship, formed an emotionally close relationship with the Applicant’s sons, A and B.
I find it more likely than not that the mutual affection, as evident from the Respondent’s oral evidence and the material before the Court, could only have developed in circumstances where the Respondent spent regular and consistent time at the Applicant’s home, after school, during weekends and on school holidays.
The Reputation & Public Aspects of the Relationship
At [65] and [68] of his Affidavit filed on 13 April 2015, the Respondent deposed:
65. …I also had sexual relations with two other women whilst Ms Balcomb and I were dating, which Ms Balcomb was aware of. They were not affairs because Ms Balcomb and I were never in a relationship.
68. …except to say I attended approximately four Christmas meals, one wedding when I first met her and her grandmother’s funeral.
(My emphasis)
Similarly, at [11] of his Affidavit filed on 13 April 2015, the Respondent deposed:
“…We rarely socialised together as we had separate friends.”
It became apparent, on hearing the Respondent’s evidence in cross-examination, that these statements were misleading regarding the parties’ engagement together at social or family functions.
Contrary to the matters the Respondent swore to, he agreed in cross-examination that through him the Mr B family became friends of the Applicant. There is no dispute that the Respondent and Mr B have been long time close friends. The Respondent agreed that the Applicant became friends with Mr B’s wife, Ms L, that he and the Applicant attended the wedding of the Mr B’s children, Ms L’s 50th birthday party and that Mr B and Ms L attended the Applicant’s 50th birthday party. It was put to the Respondent that some of the Mr B’s extended family attended the Applicant’s 50th birthday party, including the partner of Mr B’s brother. The Respondent initially denied this but agreed this was the case when shown a photograph of a group of people who attended the Applicant’s 50th birthday party (Exhibit A9).
The Respondent agreed in his cross-examination, having been presented with various photographic images (Annexure J to the Applicant’s Affidavit filed on 29 January 2016), that the Applicant attended his mother’s 70th birthday party in (omitted) 2013 and barbecues with him at Mr B’s home. He also agreed that he attended the 21st birthday parties of the Applicant’s children’s friends and B’s debutante ball. There was a photograph of the Respondent’s cousin’s son, which the Respondent agreed was taken at a Christmas lunch at the Property B property at which various members of his family attended in 2007. The Respondent agreed he attended a Christmas celebration at the Applicant’s parent’s house. Ultimately, the Respondent agreed that his friends and family socialised with the Applicant at the Property B property and that his mother attended a number of Christmas dinners at the Property B property. There is a photograph of a scroll he presented to the Applicant at a New Year’s Eve party in front of the guests. The scroll referred to a gift to the Applicant from the Respondent, being a trip to (country omitted). The Respondent agreed that, other than the times he was working on New Year’s Eve, he held New Year’s Eve parties at the Property W property and the Applicant attended these.
There is in evidence two birthday cards from Mr B’s family to B (Exhibits A4 and A5). The card dated (omitted) 2012 for his 21st birthday contains handwriting as follows:
“Where have the years gone?
I still remember that annoying teenager giving us heaps!
Hang on that hasn’t changed.
Have a fantastic time o/s
Lots of Love from Mr B, Ms L and Ms N.”
This card suggests a knowledge and familiarity of B developed over many years by Mr B’s family.
A gave evidence that he and his brother were very close to the children of Mr B and his wife Ms L. He said that they would socialise together most weekends, having a barbecue at either the Property B property or their house in (omitted). They went on a camping trip together and joined them at functions celebrating special occasions. I accept A’s evidence about the close relationship that existed between he and his brother and Mr B’s children.
The evidence supports a conclusion that, through the Respondent, the Applicant and her children formed a close relationship with Mr B’s family persisting over some years.
Ms P gave (undisputed) evidence that the Respondent attended her home for special occasions and she saw him twice at the Applicant’s parents’ home.
The Applicant gave evidence about the Applicant and Respondent attending Mr B’s children’s birthday parties, one of their children’s engagement party and Mr B’s son staying overnight at the Property B property with her children. The Applicant gave evidence that she and the Respondent attended birthday parties of the Respondent’s relatives.
The Applicant said that over the years she formed a friendship with Ms K. In addition to the Sunday roast dinners, the Applicant said she went to Ms K’s house and shared Christmas days with her at the Property B property and the Respondent’s brother-in-law’s home. The Applicant said that they remained friends for a while after the relationship ended.
Annexure O to the Applicant’s Affidavit filed on 29 January 2016 contains a copy of a letter from Ms K to the Applicant, dated 14 October 2015. The letter commences:
“Hi Ms Balcomb – I hope you are well, I think of you often.”
The letter then proceeds to refer to various individuals including her sons, describing their circumstances in a way which, I am satisfied, presumes a level of knowledge by the Applicant about these individuals. The letter ends with the following;
“Hope your boys (men) are happy and doing fine also yourself and Mum and Dad. Must go Ms Balcomb Take care. Ms K and M. xxxx”
In Annexure M the Applicant’s Affidavit filed on 29 January 2016, there are copies of two Christmas cards sent by Ms K, where she writes inside the cards, “To Dear A and B and Ms Balcomb” and “To Ms Balcomb A and B”. The Respondent agreed, having been shown two Christmas cards from his mother to the Applicant, the children and himself that the card was directed to them as a family.
The Applicant relies on two income tax returns of the Respondent in which he identifies the Applicant as a spouse. The Respondent’s explanation for this is that although he was continuing to use the same accountancy firm, he used a new accountant for those two years who inserted that information without his knowledge. I find this explanation unacceptable. The Respondent signed the income tax returns and it was his responsibility to ensure that what was said there was correct in every way. However, against this, there is no evidence that he identified the Applicant as a spouse in any other of his income tax returns during the period of the relationship.
Conclusion
I have looked at all the circumstances of the relationship between the parties and I am satisfied that they lived together during this period, as a couple, on a genuine domestic basis. Although it is not necessary to identify any particular factor, I have regard to the factors specified in s.4AA(2) of the Act, as well as other considerations.
I am satisfied that the Respondent lived at the Applicant’s house in Property B regularly and consistently and other than during the period after 2012, for most of each week. During this time, the Respondent brought and left enough of his belongings at the Property B property, so that he could comfortably stay there. He engaged in conduct that suggests he made this place his home: such as writing on the calendars kept by the Applicant at her house, reminders for his everyday life and keeping the names and contact numbers of various persons and work in the notebook kept by the Applicant as a phone book. I formed the view that the Respondent came and went as he chose and utilised the facilities of the house. I am satisfied that the Applicant cooked for the Respondent, cleaned the house and washed his clothes during the time he spent at the Property B property.
I am satisfied that the Respondent, over the period of the relationship, kept his financial paperwork at the Property B property which the Applicant filed and maintained. I am also satisfied, the Respondent having given this evidence, that the Applicant undertook bookwork for him.
The Respondent formed a close and affectionate relationship with the Applicant’s two boys. Such a relationship can only, in my opinion, have evolved from a mutual commitment to a shared life between the Applicant and Respondent and by the Respondent spending a significant amount of time in the children’s lives. I am satisfied the Respondent treated the boys as his step-children and that his reference to them as such did not simply reflect the way he addressed other male children.
The evidence supports a finding that the Applicant and Respondent explored together the possibility of having a child together by IVF treatment and further shared this decision with their friends and the Respondent’s mother. This finding is, in my view indicative not only of the parties’ mutual commitment to a shared life but the announcement of that to their friends and family.
I am satisfied that during the relationship, the Applicant and her children developed a good friendship with the family of Mr B, a very close friend of the Respondent. The evidence supports that this endured over a period of time. This friendship more likely than not developed because the Applicant and Respondent were living together as a couple. I am satisfied that the Applicant and Respondent’s Mother became close and it is very evident that Ms K regarded the Applicant as well as the children with great affection. Again, in my opinion this more likely than not developed because the Applicant and Respondent were living together as a couple.
The affectionate cards the Respondent presented the Applicant with, together with his generosity in gifts comprising travel overseas on their own would not necessarily assist the Court. But in the context of other evidence, disclose in my view a loving, committed and supportive relationship.
The parties were known as a couple and held and attended many social events, parties and barbecues for family and friends together. They were embraced by the Respondent’s mother as family members.
Although the parties kept their financial affairs separate and owned property separately (save for the investment properties), the evidence is that the Respondent continuously supported the Applicant financially during the relationship.
I am satisfied that the Respondent, reflecting his commitment to the relationship, financially supported the Applicant both prior to the purchase of the investment properties, providing the Applicant with $200.00 per week to support her needs and subsequently an increased amount of $400.00 each week to make up the shortfall in mortgage repayments for the investment properties. I accept the Respondent’s evidence that when they socialised he would pay for the Applicant as was his want.
I am satisfied that the purchase of the investment properties was not merely a commercial enterprise as the Respondent asserts but rather a long term financial commitment for each other’s benefit. The Property B property was apparently used as security for the loans on the investment properties and the Respondent provided finances to make up on any shortfall between the rental income derived from the investment properties and the mortgage on those properties. He also deposes to maintaining and renovating the investment properties without it seems seeking reimbursement for the expenses which would have been involved in improving and in preserving the properties from the Applicant. All of this suggests that the purchase of the investment properties and the parties approach to those properties during the relationship was not on a commercial footing but rather one that was part of their commitment to a shared life together. I am satisfied that the investment properties were purchased by the parties as a long term investment; akin to superannuation.
I have formed the view that the Applicant’s failure to declare to Centrelink that she was in a de facto relationship was deliberate with a view to obtaining a benefit to which she may not have been entitled.
Having regard to all the circumstances of the relationship of the parties, I conclude that it is more likely than not that they had a relationship as a couple living together on a genuine domestic basis.
Accordingly, I find that the parties were in a de facto relationship between late 2001 and 15 October 2013. I make declarations reflecting this finding.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 1 July 2016
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