Bava & Chaudry
[2021] FCCA 6
•13 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bava & Chaudry [2021] FCCA 6
File number(s): NCC 3312 of 2018 Judgment of: JUDGE TERRY Date of judgment: 13 January 2021 Catchwords: FAMILY LAW – De facto property – where the Applicant alleges that the parties were in a de facto relationship for 2 years & 9 months – where the Respondent denies that the parties were ever in a de facto relationship – where the Applicant has not discharged the onus of proving that a de facto relationship existed – declaration made pursuant to s. 90RD of the Family Law Act that the parties were never in a de facto relationship. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SB, 90SM Cases cited: Briginshaw & Briginshaw (1983) 60 CLR 336
Owens & Benson [2014] FamCAFC 243Number of paragraphs: 101 Date of hearing: 9 & 15 October 2020 Place: Newcastle Counsel for the Applicant: Ms Carty Solicitor for the Applicant: Kent Law Group Counsel for the Respondent: Mr Rugendyke Solicitor for the Respondent: Burke & Mead Lawyers ORDERS
NCC 2853 of 2020 BETWEEN: MS BAVA
Applicant
AND: MR CHAUDRY
Respondent
ORDER MADE BY:
JUDGE TERRY
DATE OF ORDER:
13 JANUARY 2021
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act it is declared that a de facto relationship never existed between Ms Bava and Mr Chaudry.
2.The Initiating Application filed on 22 October 2018 is dismissed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Bava & Chaudry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY:
Introduction
On 22 October 2018 Ms Bava (“the Applicant”) filed an application for a de facto property settlement. She claimed that she and Mr Chaudry (“the Respondent”) were in a de facto relationship between September 2014 and 23 June 2017.
On 4 February 2019 the Respondent filed a Response in which he denied that the parties were ever in a de facto relationship and sought dismissal of the application.
As a result the matter was listed for hearing to determine the threshold question of whether the parties were ever in a de facto relationship.
The evidence
The Applicant relied on her Initiating Application filed on 22 October 2018 and her affidavit filed on 17 September 2019.
The Applicant also filed a financial statement on 22 October 2018 but at this stage of the proceedings it is not relevant.
The Respondent relied on his Response filed on 4 February 2019, his affidavit filed on 2 December 2019 and the affidavit of his father Mr D filed on 9 December 2019. He also filed a financial statement but it is also not relevant at this stage of the proceedings.
The Applicant’s counsel referred in submissions to instances where the Respondent changed his evidence, namely his evidence about whether the parties ever shared a room when the Respondent’s children were there and about the reason why he let the Applicant contribute to the cost of renovations to his home.
I will bear this in mind when considering the findings open to me when there is conflict between the evidence of the parties, but this is not a case which turns greatly on credit. Many of the disagreements between the parties were not about the facts but about the inferences which could be drawn from the facts.
Background
The parties are both of Indian descent. I am unsure how long they have been in Australia but they were living in New South Wales at all material times.
The Applicant is the niece of the Respondent’s ex-wife Ms E and the parties first met in 1993 when she was a child. They had intermittent contact over the years and they began a sexual relationship in either late 2007 according to the Respondent or 2008 according to the Applicant, when they were about 24 and 39 respectively.
The sexual relationship ended in either October 2011 or December 2012 according to different versions given by the parties but they kept in touch after it ended. They occasionally met for dinner, they talked about issues the Applicant was having at work and with her parents and the Applicant invited the Respondent to attend a 60th birthday party for one of her work colleagues.
During this period the Applicant was living with her parents in Sydney and the Respondent was living in a home he owned at F Street, Suburb G.
It was common ground that in or about August 2014 the Applicant was keen to move out of her parents’ home and that in or about September 2014 she moved into the F Street, Suburb G property.
The Applicant said that the Respondent asked her to do so because he still had strong feelings for her. She put into evidence some text messages he sent her in August 2014 which included the following:
What? Why quit
Yes be my wife
……………..
Ok stop reminiscing get cracking. Get out of there and into F Street, Suburb G.[1]
[1] Text messages Exhibit C.
The Respondent did not deny that the text messages were sent but he said that too much weight was being placed on them. He said that the Applicant told him that she was moving out of her parents’ home and asked if she could move in with him and informed him that she was saving up to buy her own place. He said that he was reluctant to agree to her proposal but in the end said that she could do so. He said that the following conversation also occurred:
I am not willing to commit myself. There is no guarantee anything will happen between us. My children will not like you being at my place. [2]
[2] Respondent’s affidavit paragraph 28.
I am satisfied that the Applicant hoped and perhaps even believed that once she moved into F Street, Suburb G she and the Respondent would have a future together as a couple and that this had some foundation in things the Respondent said to her. The evidence does not however support a finding that prior to the Applicant moving in the Respondent had made a firm commitment to live with her in a couple relationship.
The Respondent set up a separate bedroom in his house for the Applicant. The Applicant said that he told her that this was because he did not want to shock his children when they visited him by breaking the news to them too suddenly that he and the Applicant were in a relationship. She said that he told her that once the children got used to her living there he would tell them that he and the Applicant were in a relationship.
The Respondent said that he set the Applicant up in a separate bedroom because she was working shifts and needed to rest in accordance with her shift demands.
Wherever the truth lies about that there was no dispute that the Applicant always had a separate designated bedroom at F Street, Suburb G.
The Applicant said that a sexual relationship resumed after she moved in. She said that she would usually sleep in the separate room when the Respondent’s children were visiting but would sleep with the Respondent in the master bedroom when the children were not there.
The Respondent did not dispute that a sexual relationship resumed and that the Applicant sometimes slept in his bed. He characterised it as quite intermittent and said that it was usually initiated by the Applicant and that she did not often spend the whole night in his room. The Applicant did not concede that the Respondent was an unwilling participant in their sex life and maintained that she usually slept the whole night in his room.
The Respondent’s Counsel referred to the dispute about this aspect of the evidence in submissions but the case does not turn on findings about the nature of the parties’ sexual relationship and I will not attempt to resolve this dispute.
The Applicant and Respondent were both employed throughout the relationship. They were financially independent of each other and never shared a bank account.
The Respondent said that he could not remember whether there was a discussion about what the Applicant would pay when she moved into F Street, Suburb G but that there was an expectation that she would contribute. He said that in late October 2014 he told the Applicant that she needed to pay $200.00 per week rent plus expenses and that he reiterated this to her many times thereafter.
There is no corroboration for the Respondent’s claim that he asked the Applicant to pay rent in October 2014 but there is a text message on 5 May 2016[3] in which he asked her to pay $400.00 per fortnight and the Applicant agreed, without being specific as to dates, that the Respondent sometimes asked her to pay $200.00 per week board.
[3] Tender Bundle page 12
The Applicant said however that this would occur only during arguments and that once the argument was over the Respondent he did not pursue it, and there was no dispute that the Applicant never paid rent/board to the Respondent.
The Applicant did purchase groceries and household items while she lived at F Street, Suburb G and she made a contribution to the utility bills.
In November 2014 while on a joint shopping trip with the Respondent the Applicant purchased a dining table, chairs and a buffet for $5,000.00 for use in the F Street, Suburb G property. She said that she purchased them because the Respondent asked her to do so.[4] The Respondent said that the Applicant saw the setting when they were shopping at Suburb H and said that they should get it. He said that he told her that he had his budget set aside for home renovations and he would buy it after that. He said that notwithstanding this the Applicant approached the salesperson and negotiated a price and bought the setting.
[4] Applicant’s affidavit paragraph 46.
I cannot be satisfied on the balance of probabilities that the Respondent asked the Applicant to purchase the setting. The Applicant may be telling the truth, but the event happened six years ago and there is a risk that both parties have reconstructed what happened and are, perhaps unconsciously, preferring a recollection which supports their case.
However there was no dispute that the setting was purchased, that the Respondent had no objection to it being placed in his home and that it was used by the parties.
In mid 2015 the parties travelled in Country J. The Respondent said that the holiday was the Applicant’s idea and that she asked him if he would accompany her. He said that he told her that he could not afford to do so as he was putting money aside for renovations. He said that the Applicant constantly asked him to go with her and said that she would pay and in the end he agreed to accompany her.
The Applicant’s evidence was much the same. She did not suggest that the Respondent asked her to pay for the trip and said as follows:
I paid for it in the belief that we were a couple who were making our life together.[5]
[5] Applicant’s affidavit paragraph 62.
In about July 2016 the Applicant paid $17,000.00 toward the installation of a new kitchen at F Street, Suburb G. She said that she also paid $2,800.00 for the replacement of a hot water system, $1,000.00 for the pool chlorinator, $2,000.00 for kitchen appliances, the cost of a new fridge, $2,000.00 for electrical works in the new sunroom, the cost of a chainsaw, the cost of downlights in the new sunroom, the cost of tiling in the laundry and the cost of Venetian glassware.
The Respondent agreed that the Applicant paid $17,000.00 toward the kitchen and $2,800.00 for the hot water system as part of renovations which cost in all about $80,000.00. He said that the cost of the appliances was part of the $17,000.00. Whether the other items were purchased I am unsure about but it does not matter for the purposes of this decision.
The Respondent gave two different explanations for why he acquiesced in the Applicant paying this money. In an affidavit filed earlier in the proceedings he said that it was because the Applicant had never paid him the rent she had agreed to pay and that she paid some of the cost of the renovations to make up for that. In his trial affidavit he said that it was because he had to take unpaid leave to go on the holiday to Country J and lost about $9,000.00 and that he raised this with the Applicant at the time and she agreed that she would put money toward the renovations if he went with her.
The Applicant denied that either version was true, and the fact that the Respondent came up with these two different versions causes me to doubt that he really remembers why he acquiesced in the Applicant putting money into the renovations. However the Applicant did not give any evidence about a specific conversation between the parties which led to her paying this money at this time. The highest her evidence went was as follows:
Mr Chaudry would ask me to pay for household items and renovations on various occasions and he would always say words to the effect of “It’ll be our home someday” or “this is for us” and I paid the money in the firm belief that we were in a relationship and building a future together.[6]
[6] Applicant’s affidavit paragraph 46.
There was no dispute that the Applicant purchased a new mobile phone for the Respondent’s father. She did not suggest that she was asked to do so. The Respondent’s father in his affidavit said that the Applicant was present on an occasion when the Respondent took him to a shop to buy a new mobile phone and she offered to buy it for him as a present and he accepted. I accept his evidence.
It was common ground that while the Applicant lived at F Street, Suburb G she was looking at purchasing a property. The Respondent implied that she intended to purchase a home to live in. The Applicant said that she intended to purchase an investment property. This is another area in which either party could be correct. There is no independent evidence which would allow me to find that one parties’ evidence should be preferred.
The Applicant said that she did the majority of the cooking and cleaning. She said that she was also instrumental in employing a cleaner to come in twice a month. The Respondent said that the cooking was either shared or he did the majority of it and that he was also involved in the cleaning.
Both parties were working and their evidence on this topic was not detailed and often consisted of bare assertion. I cannot make a finding that the Applicant did more cooking and cleaning than the Respondent and in any event she was living in the house, so the fact that she did some cooking and cleaning is a neutral factor and does not assist me to determine whether the parties were in a de facto relationship.
The Respondent has three children and after he and his wife separated in 2011 they entered into consent parenting orders which provided for the children to spend time with the Respondent in a four week cycle. It was to be from Tuesday to Thursday in week 1, Friday to Monday in week 2 and Saturday to Monday in weeks 3 and 4. During the period when the Applicant lived at F Street, Suburb G the Respondent’s younger two children spent time with the Respondent in accordance with this arrangement. The oldest child frequently did not attend.
The Applicant said that she helped care for and entertain the children when they visited, sometimes picked them up from or dropped them to school and on one occasion took one of them to the hospital.
The Respondent said that the Applicant only occasionally picked up or dropped off the children. He said that his father was heavily involved in helping with this and his father said the same in his affidavit. The Respondent denied that the Applicant ever took one of the children to the hospital.
I cannot make a finding about who has the details right if in fact either of them do. I accept that the Applicant had some involvement with the Respondent’s children when they visited but there is nothing to suggest that the Respondent was reliant on the Applicant to help him with the children.
The Respondent’s Counsel pointed out in submissions that the children and the Applicant were cousins so there was nothing remarkable about the Applicant interacting with them or playing with them and there is merit in that submission.
Throughout the time the Applicant lived at F Street, Suburb G the parties had many conversations in which the Applicant complained about the Respondent not being willing to commit to a relationship and in which he reiterated that he was not willing to do so. There was also no dispute that on many occasions the Respondent asked the Applicant to move out. There are text messages on 31 August 2015, 5 May 2016, 22 July 2016 and 1 January 2017 to this effect and there may be more in the voluminous text messages the parties provided.
On 10 November 2016 the Applicant sent the Respondent a text message in which she told him that she was done and she would not pursue him anymore.
The Applicant said that this was the nature of their relationship and that after the Respondent asked her to move out and after she sent text messages like her message of 10 November 2016 they would get back onto an even keel again and those matters would be forgotten.
There is some support for that in the fact that not long after the Respondent sent the Applicant the text message on 1 January 2017 asking her to move out the Applicant accompanied the Respondent and his children on a short holiday on the Region K and that in early 2017 the Respondent invited her to accompany him to the Region K when he went there on a short business trip. However there was no dispute that the Respondent asked the Applicant to move out frequently in the last six months she was at F Street, Suburb G and she did so on 23 June 2017.
It was the Applicant’s case that the de facto relationship ceased on that day. However she said that the Respondent kept in contact with her and sent her a photograph of the newly renovated home on 5 November 2017 and on another occasion reminded her of a ring which they had looked at when they were both living at F Street, Suburb G. She said this reinforced in her mind that they had been in a de facto relationship when she was living there and that it had ended only because she had moved out.
During closing submissions the Applicant’s Counsel said that these actions by the Respondent supported the Applicant’s case that prior to 23 June 2017 the parties were in a de facto relationship. However even if I could infer from those actions that the Respondent regretted the relationship ending and even if I could make an even greater inference and find that they were evidence the Respondent was hoping to entice the Applicant back into a relationship, it does not strengthen the Applicant’s case about the nature of the relationship.
The Respondent’s case was that the parties were never in a de facto relationship. His case was that it rapidly became apparent after the Applicant moved into F Street, Suburb G that there was no future in their relationship and that it never progressed to being the relationship of a couple living together on a genuine domestic basis.
The applicable law
The Applicant is seeking property settlement orders pursuant to s. 90SM of the Family Law Act which permits the court to make an order altering the interests of de facto partners in property providing certain jurisdictional requirements are met.
There is also a geographical requirement but that is met in this case.
The jurisdictional requirements are contained in s. 90SB and they are that the court must be satisfied that the period of the de facto relationship was at least two years; or that there is a child of the relationship; or that a party to the de facto relationship has made substantial contributions of a kind mentioned in s. 90SM (4) (a) (b) or (c) and a failure to make an order or declaration would result in serious injustice to the applicant; or that the relationship was registered under a prescribed law of a state or territory.
It was common ground that if the relationship between the parties could be characterised as a de facto relationship it lasted more than two years and the issue in this case is not whether the two year period is established and if not whether one of the exceptions applies, but whether a de facto relationship existed at all.
That brings into play s. 90RD of the Family Law Act which provides as follows:
(1)If:
(a) an application is made for an order under section 90SM [….] 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 purpose of those proceedings declare that a de facto relationship existed or never existed between these 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any 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;
(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; and
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
The definition of de facto relationship in the Family Law Act
S.4AA of the Family Law Act provides as follows:
Meaning of 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
The applicant and respondent satisfy s. 4AA (1) (a) and (b). They are not legally married to each other and they are not related by family as that term is defined in s. 4AA (6). The issue I need to decide is whether they satisfy s.4AA(1)(c), in other words whether having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis.
To assist me to do so I will make findings about the matters in s. 4AA (2).
The s. 4AA (2) matters
The duration of the relationship.
There are many kinds of relationships and the parties undoubtedly had a relationship between September 2014 and 23 June 2017. Whether it is appropriately characterised as a de facto relationship, a romantic relationship, a sexual relationship, a friendship or some other kind of relationship is the issue in the case.
The nature and extent of common residence.
The parties lived together in the F Street, Suburb G property throughout the period in which the Applicant asserted they were in a de facto relationship.
Whether a sexual relationship existed.
The parties had a sexual relationship while they lived at F Street, Suburb G. It will not assist me to delve into issues such as who initiated sexual intimacy or when the sexual relationship ended.
The degree of financial dependence and interdependence, and any arrangements for financial support, between them.
The parties were both employed, had their own bank accounts and made their own spending decisions. Neither was dependent on the other for financial support.
The Applicant purchased groceries and household items and paid some bills while she lived in the F Street, Suburb G property but she consumed some of the groceries, used the household items and used the utilities and there was no suggestion that the Respondent depended on her to make those purchases and pay those bills.
The ownership, use and acquisition of their property.
No joint property was purchased.
Early in the relationship the Applicant purchased a dining table, chairs and buffet which was placed in the F Street, Suburb G property and used by the parties.
The degree of mutual commitment to a shared life.
The parties did some things together which might be considered to be evidence of a mutual commitment to a shared life. They travelled in Country J together in mid 2015. The Applicant organised the trip and paid for most of the travel costs, accommodation, gifts and activities but the Respondent willingly accompanied her. Photographs were tendered of them looking happy during this trip.
They also travelled to the Region K together in early 2017 with the Respondent’s children and on 13 April 2017 when the Respondent invited the Applicant to accompany him on a business trip.
These things are also consistent with a friendship but the Applicant’s decision to contribute $17,000.00 or more to the renovations to the F Street, Suburb G property where the parties were living is in a different class and could be considered evidence of her commitment to a shared life with the Respondent.
However Applicant’s own evidence strongly suggests that the Respondent never committed to a shared life as a couple with the Applicant.
The Applicant said that whenever the Respondent sent her gifts or flowers he would never sign his name on the card or the card would read “friendship”. She gave evidence of actions by the Respondent which suggest that he carefully distanced himself from any suggestion that they were a couple living together on a genuine domestic basis as opposed to being friends and housemates. She said that he introduced her to his work colleagues as his friend, including on an occasion in 2015 when they attended the Region L Ball which she thought they were attending as a couple.
These could of course have been cunning actions by the Respondent who wished to enjoy all the fruits of a de facto relationship but hide it from the world, but the Applicant never announced to the world that they were a couple either and her evidence suggests she was engaged in a constant struggle to try to get the Respondent to be the partner she wanted and that he never responded in the way she hoped.
The Applicant said that within two weeks of her moving into F Street, Suburb G the Respondent said that the relationship was not working and that she should find her own place. Her evidence was to the effect that he continued to say this on and off throughout the relationship and that it became more frequent toward the end.
The Applicant said that not too much weight should be placed on this because she tried to end the relationship several times prior to moving out in June 2017 and when she did the Respondent would be kind again and as a result she would give the relationship another chance.
The operative phrase here however is that she would give the relationship another chance. There is abundant evidence of the Applicant seeking a particular kind of commitment from the Respondent and the Respondent informing her that he could not give that commitment. The Respondent might have run hot and cold with insisting the Applicant move out but he never wavered from his refusal to give her the commitment she wanted.
There is no evidence of any period during which the parties had a mutual commitment to shared life.
Whether the relationship is registered under a prescribed law.
There is no relevant prescribed law
The care and support of children.
The parties have no children. The Respondent’s younger two children spent time at F Street, Suburb G throughout the period that the Applicant lived at there. The Applicant did some things for the children such as entertain them and pick them up and drop them off because she was on hand to do it, but there is nothing to suggest that the Applicant’s care and support of the children was significant or was relied on by the Respondent.
The Applicant referred to two occasions, a New Year’s Eve and a M Festival, where the Respondent left her at home without warning and took the children to these events. She said that she later found out that he had picked up his ex-wife along the way. She said that:
Thereafter Mr Chaudry discouraged the children from talking to me about things they did or where they had been together as a family.[7]
[7] Applicant’s Affidavit paragraph 49.
The Respondent denied that his ex-wife attended these events and said that the Applicant had been invited to go but didn’t, but even if the Applicant has some of the facts wrong this is evidence of the Applicant’s perception of the Respondent’s unwillingness to involve her as a significant person in the children’s lives.
Finally I must consider the reputation and public aspects of the relationship.
The parties never told the Applicant’s parents, the Respondent’s parents, the Respondent’s children or any of their friends or acquaintances that they were anything other than friends and the Applicant called no witnesses who said that they considered the parties to be a couple.
There is some evidence of an attempt to hide the fact that they were even associating with each other. In early 2017 the Applicant accompanied the Respondent to the Region K when he went there on a short business trip. She posted some photos of herself on the Region K on her Facebook page but deliberately did not show the Respondent in the photos. In cross-examination she said that this was because she did not want to embarrass anyone.
Discussion
The Applicant has the onus of proving on the balance of probabilities that a de facto relationship existed.[8] In Briginshaw & Briginshaw the High Court said that for a court to be satisfied about something on the balance of probabilities it must:
… feel an actual persuasion of its occurrence or existence. It cannot be found as the result of a mere mechanical comparison of probabilities independently of any belief in its reality … at common law it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.[9]
[8] Owens & Benson [2014] FamCAFC 243.
[9] Briginshaw & Briginshaw (1938) 60 CLR 336.
There is no doubt that the parties were in a relationship between September 2014 and June 2017, and that it was a different relationship to the one they presented to the world, which was of two people who were friends, were related by marriage and were living under the same roof.
Unbeknown to the world the parties had a sexual relationship, and the content of some of their messages suggests that it was at times at least a romantic relationship.
The Applicant asked the court to go further and find on the balance of probabilities that it was a de facto relationship, in other words that the parties were a couple living together on a genuine domestic basis.
She asked the court to take into account that not only were the parties in a sexual and sometimes romantic relationship and shared a dwelling but that she contributed financially to the relationship by purchasing an expensive dining setting and most importantly by making a contribution to the renovations to the Respondent’s home, something she would not have done if she had not believed that the parties were a couple who were committed to each other and had a future together.
The Applicant’s Counsel had to concede that the parties were not known as a couple to family and friends but she pointed out that S4AA(3) made clear that no particular finding in relation to any circumstance was to be regarded as necessary in deciding whether the persons have a de facto relationship and that this one missing element did detract from the Applicant’s case.
There is however another missing element and that is that there is no evidence of the parties ever having a mutual commitment to a shared life.
There is abundant evidence of the Applicant seeking from the Respondent more than he was willing to give. None of the text messages or reported conversations between the parties refer to any plans for the future. The Respondent often asked the Applicant to move out, intermittently at first and frequently in the last six months that they lived under one roof.
In those circumstances the fact that they did not tell anyone that they were a couple becomes significant.
In theory people could be in a de facto relationship which they kept secret from the world, but I cannot find that this is the case here.
The parties did live in the same house and have a sexual relationship but there was no financial dependence or interdependence between them, no joint acquisition of property and most importantly there was no mutual commitment to a shared life, rather there was an endless struggle by the Applicant to get the Respondent to commit to such a life and a refusal by the Respondent to do so.
The fact that the Respondent allowed the Applicant to contribute in excess of $17,000.00 to the renovations to his home does not tip the balance in favour of a finding that the parties were in a de facto relationship. The Applicant believed that by doing this she was making a contribution to a joint future but it was a belief founded in hope and not on any clear and unequivocal representations by the Respondent.
I asked the Respondent’s Counsel during submissions if it was his case that his client was a bounder and a cad but that the parties were never in a de facto relationship and his response was “I suppose you could say that”.
I certainly could say it. The Respondent recounted numerous conversations with the Applicant in which she pressed him to commit to the kind of a relationship she wanted and he informed her that he could not do so. From his own evidence it must have been obvious to him that she wanted much more from the relationship than he was willing to give. In light of this, his decisions to allow her to pay for him to go on a month long holiday in Country J and to pay money toward his renovations could be considered odious behaviour.
However it does not follow that the parties were in a de facto relationship.
There are matters the Applicant can draw on in support of her case but there are other matters which go strongly the other way. I cannot be satisfied on the balance of probabilities, in other words I cannot feel an actual persuasion, that the parties were ever in a de facto relationship.
I intend to make a declaration pursuant to s. 90RD of the Family Law Act that the parties were never in a de facto relationship and it follows that the Initiating Application filed on 22 October 2018 must be dismissed.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry. Associate:
Dated: 13 January 2021
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