BENNETT & CRICK
[2017] FCCA 329
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENNETT & CRICK | [2017] FCCA 329 |
| Catchwords: FAMILY LAW – Application for declaration pursuant to s.90RD of the Family Law Act 1975 (Cth) – whether the Court has jurisdiction to hear the application under 90SM of the Family Law Act 1975 (Cth) – whether the parties were in a de facto relationship after 1 March 2009 – whether in all the circumstances the parties lived together as a couple in a genuine domestic relationship – whether the de facto relationship finally broke down before 1 March, 2009 – whether one party formed the intention to end the relationship and acted upon it before 1 March 2009 – whether the party forming the intention to end the relationship communicated that intention to the other party. |
| Legislation: Family Law Act 1975, Part VIIIAB, ss.4AA, 4AA(1)(a), 4AA(1)(b), 4AA(1)(c), 4AA(2), 39B, 90RD, 90SM, 90SB(b), 90RB Evidence Act 1995, s.140(1) |
| Cases cited: Norton v Locke [2013] FamCAFC 202 |
| Applicant: | MS BENNETT |
| Respondent: | MR CRICK |
| File Number: | PAC 2610 of 2016 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 1 February 2017 |
| Date of Last Submission: | 1 February 2017 |
| Delivered at: | Canberra |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Valenti & Valenti |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between the parties commencing late 2001 and continuing until 9th June 2014.
The matter is listed for directions on 27 March 2017 at 9.30am in relation to the application for adjustment of property interests before Judge Tonkin.
IT IS NOTED that publication of this judgment under the pseudonym Bennett & Crick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2610 of 2016
| MS BENNETT |
Applicant
And
| MR CRICK |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant Ms Bennett was born in 1962 and was 54 years of age at the time of the trial. The respondent Mr Crick was born in 1961 and was 55 years of age. The parties commenced a relationship sometime in 2000. At that time the applicant was the sole proprietor of a property at B Street, Suburb L which she purchased in 1991 and the respondent was the sole proprietor of a property at F Street, Suburb D which he purchased prior to the commencement of the relationship.
The applicant asserted that the parties commenced living together as a couple in mid - 2001 when the respondent moved into her Suburb L home. The respondent said he did not move into that home until 2002 but could not recall the precise date. Just prior to X’s birth the parties briefly separated in 2003. The respondent returned to live with the applicant a few weeks later. The de facto relationship resumed. The parties’ child X was born in 2003. The child slept in the parties’ bed with the parties. The applicant and X moved into a spare bedroom in 2004. Thereafter the parties slept in separate bedrooms. The respondent used another room in the applicant’s home as an office for his business. The respondent contends the parties sexual relationship did not continue after February 2004. The applicant contends the parties sexual relationship did not continue after sometime in 2005. The respondent asserts that from February 2004 the parties lived separately under one roof until he left the home on 9th June 2014. The applicant asserts that the parties de facto relationship continued until the respondent left the Suburb L home in 2014.
During the period the parties lived in the same residence the parties did not own joint property, had no joint liabilities and no joint bank accounts. The parties agree that the respondent transferred to the applicant’s bank account weekly payments however the time those payments commenced was in dispute. In 2014 the respondent sold his Suburb D property. The applicant was not involved in the sale of the property nor was there any discussion about the sale and/or the disposition of the net proceeds of sale. After the respondent left the home in 2014 he continued to transfer a payment of $400 per week to the applicant’s bank account, for the benefit of X according to the respondent.
The application
On 8th June 2016 the applicant filed an initiating application for final orders with respect to an adjustment of property interests pursuant to section 90SM of the Family Law Act 1975 (“the Act”). In addition she sought an interim injunction restraining the respondent from dealing in any manner with property owned by him at G Street, Suburb F in the State of N.S.W without the consent of the applicant.
On 12th August 2016 the respondent filed a response. He sought a declaration that pursuant to section 90RD of the Act that the applicant and respondent were in a de facto relationship from 2002 to February 2004. In addition he sought an order dismissing the initiating application for want of jurisdiction. He sought by way of interlocutory order that the application for declaratory relief be determined as a specific issue prior to the hearing of the substantive application.
On 22nd November 2016 the applicant filed an amended application seeking a section 90RD declaration that the parties were in a de facto relationship commencing 2001 and continuing until 9th June 2014. In the alternative that leave be granted to the applicant to apply for orders after the end of the “standard application period.” An interim injunction was also sought with respect to the disposal of a property owned by the respondent at Suburb F.
On 19th January 2017 the respondent filed an application in a case seeking leave to rely on further affidavits in support of his response.
On 27th January 2017 the applicant sought to dismiss the respondent’s application in a case.
At the commencement of the trial on 1st February 2017 the applicant sought declaratory relief that a de facto relationship existed commencing 2001 and continuing until 9th June 2014. The alternative order sought in the amended application was not pressed. The applicant relied on the affidavit of Ms Bennett filed 22nd November 2016, the affidavit of Mr V filed 22nd November 2016 and the affidavit of Ms Q filed 22nd November 2016.
The respondent did not press his interim application. Following the Court raising with Counsel the question of jurisdiction to make an order for declaratory relief for the period between 2002 and February 2004 Counsel for the respondent withdrew this application. The respondent sought an order that the amended application be dismissed for want of jurisdiction. He relied on the affidavit of Mr Crick filed 25th November 2016.
Both parties gave evidence and were cross examined.
The parties agreed that the sole issue to be determined by the Court was whether a de facto relationship existed between the applicant and the respondent commencing in 2001 and continuing until 9th June 2014 or whether the de facto relationship ceased in February 2004.
Legal principles
In Norton v Locke [2013] FamCAFC 202 the Full Court determined at [43] that the Federal Circuit Court had jurisdiction “to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This Court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction…”
The Court has the power and the obligation to determine jurisdiction. The applicant has the onus of establishing that a de facto relationship existed for the requisite period (see Ricci v Jones (2011) FamCAFC 222) and that onus is on the balance of probabilities (see section 140 (1) Evidence Act 1995). In S v B (No.2) (2004) 32 Fam LR 429 Dutney J said at [49]: “In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality” and at [50] “the party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove the negative.”
Pursuant to section 39B of the Act the Court has jurisdiction with respect to matters arising under the Act in respect of which de facto financial causes are instituted under the Family Law Act 1975 (Cth). Part VIIIAB of the Act deals with financial matters relating to de facto relationships. Under section 4 of the Act a de facto financial cause means relevantly “(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.”
The applicant, having filed an application for an order under section 90SM of the Act, seeks a declaration under section 90RD of the Act about the existence of a de facto relationship.
Strickland J said in Fenton & Marvel [2013] FamCAFC 132 at [12]:
“To find jurisdiction there must be a de facto relationship which continues for at least two years (if none of paragraphs (b), (c) or (d) of section 90SB of the FLA apply) and it must not have broken down finally before 1st March 2009.”
In the present case section 90SB(b) of the Act is satisfied. X born in 2003 is in accordance with section 90RB of the Family Law Act 1975 (Cth) a child of both of the parties to the de facto relationship.
Were the parties living together as a couple on a genuine domestic basis until 9th June 2014
Sections 4AA(1)(a) and (b)[1] of the Act are satisfied in this case. In addition the Court is required to be satisfied that pursuant to section 4AA(1)(c) of the Act, having regard to all the circumstances of their relationship, the parties had “a relationship as a couple living together on a genuine domestic basis” that did not break down before 1st March 2009.
[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
In Hayes v Marquis [2008] NSWCA 10, Einstein J discussed the notion of living together in the context of a de facto relationship property dispute (at [166]):
“[166] Upon its proper construction the expression ‘living together’ in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to cohabit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as ‘their home’. Both of them may not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan Deceased [1980] 5 Fam LR 813 where Jacobs J observed [at 822] that ‘there may be states of cohabitation where (the partners) see as much of each other as they can’, to which I would add — ‘in the circumstances’. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonably.”
In Jonah & White [2011] FamCA 221; 45 Fam LR 460 His Honour Justice Murphy discussed the application of section 4AA(1)(c) with reference to a number of previous authorities. He said at [47]:
“In Moby v Schulter, Mushin J considered a number of authorities in State jurisdictions. His Honour agreed with the approach exemplified in earlier decisions in New South Wales, including Roy v Sturgeon [1986] DFC 95-031; Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677 and the decision of the NSW Court of Appeal in Light v Anderson [1992] DFC 95-102. His Honour went on to say:
139.While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept” there are two specific elements of that definition which require individual considerations. The first of those is the concept of “a couple”. For the purposes of the definition, “a couple” is constituted by two people whether of the same or opposite sexes.
140.The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
141.Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor.”
In Jonah & White (supra) Justice Murphy said at [60]:
“In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”
Justice Murphy said further at [66]:
“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’.”
The Full Court in Jonah & White (supra) dismissed an appeal against Justice Murphy’s refusal to declare that the appellant had lived in a de facto relationship with the respondent pursuant to section 90RD of the Act.
Section 4AA(2) of the Act directs attention to a non-exhaustive list of circumstances to which the court may have regard, the existence of any one of which is unnecessary before a court might find that a de facto relationship existed. The Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate in the circumstances of the case: See section 4AA(3) of the Act.
In Cadman & Hallett (2014) FLC 93-603, on appeal before the Full Court of the Family Court, the issue before the trial judge had been when the relationship between the parties ended. The appellant contended that the relationship ended in January 2000. The respondent argued that the relationship ended in October 2010. The trial judge found that the appellant formed an intention to end the relationship in mid-2010 when he changed his will. In dismissing the appeal, the Full Court considered and applied the interpretation of the statute, and the relevant principles emerging from leading authorities, which determine a “de facto relationship” as a matter of law.
Justice Rees in Cadman & Hallett (at first instance) [2013] FamCA 819, after referring to a number of authorities dealing with both married and de facto couples, said at [133]:
“[133] The Full Court (in Price & Underwood [2008] FamCAFC 46) stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.
[134] Thus the authorities establish that in order to establish that a relationship has ‘broken down’ for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.”
In Aitken v Deakin [2010] FMCAfam 35 McGuire FM (as he then was) said at [8 – 9]:
“[8]....Counsel for both parties agree that I should be guided by the early decisions of the Family Court of Australia in respect of separation under one roof in relation to divorce applications.
[9] Those authorities make it clear that there are three elements of separation in a legal sense. They are:
(a)The development of an intention to separate. That intention need not be mutual;
(b)The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional; and
(c) Some form of action upon the determination to separate.”
[10] I am of the view that the test of the element of ‘communication’ is an objective one.”
In Todd & Todd (No.2)[2] Watson J held (though dealing with marriage):
“Separation can only occur in the sense used by the Act where one or both of the spouses formed the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.”
[2] (1976) 1 Fam LR 11186; 25 FLR 260; FLC 90-008
The Full Court of the Family Court has made it clear that there is a need to communicate the intention to separate to the other party. That communication can be either spoken or unspoken (see Falk & Falk[3]).
[3] (1977) 3 Fam LR 11238; FLC 90-247
It remains that each case must be determined upon its own facts. As the Full Court of the Family Court said in Pavey and Pavey at [75,214]:
...it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.”
In Lynam v DG of Social Security (1983) 52 ALR 128 Fitzgerald J said at [131] (in relation to the question whether the parties were living together as respondent and applicant on a bona fide domestic basis):
“Each element of a relationship draws it colour and its significance from the other elements some of which may point in one direction and some it the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”
Credibility
Much was made by Counsel for the respondent regarding the applicant’s credibility. She was cross examined on inconsistencies between her affidavit and her oral evidence about matters which occurred 15 years prior. She told the Court her memory was hazy and readily accepted she was confused. She agreed she changed her evidence as to when the relationship commenced after reading the respondent’s affidavit acknowledging that her recollection was poor but her memory was assisted by reference to the date the respondent asserted he commenced his business. I do not accept the applicant was being evasive or dishonest. I accept that her memory was hazy as to dates. I find that she did her best to recall events a long time ago. I found the applicant to be a credible witness.
I found the respondent guarded in his responses to questions from the applicant’s Counsel and careful not to volunteer information. I had difficulty accepting the respondent’s account that he communicated his intention to the applicant to separate in February 2004 (referred to below). Generally I preferred the applicant’s evidence to the respondent’s evidence.
Assessment of the evidence
The parties met in 2000 and commenced a relationship. The applicant deposed that the parties moved in together in mid–2001 and later gave evidence that the respondent moved in during the first quarter of 2001 however she accepted that the respondent was operating his business when he moved into her home. The respondent asserted he did not move into the applicant’s home until 2002 but was unable to nominate any date. I find that the respondent moved into that property sometime after he established his business in late August 2001. I am unable to be more specific as to the time the de facto relationship commenced other than late 2001.
At the time the respondent moved into the Suburb L property, the applicant was the sole proprietor of that property. She had purchased it in 1991. The respondent at the commencement of the relationship owned a property at F Street, Suburb D, N.S.W.
The respondent claimed he purchased groceries for both parties and shared living expenses prior to X’s birth whilst the applicant denied this. I find that the applicant paid for the bulk of the parties living expenses prior to the birth of X. Prior to X’s birth she worked as a Manager for Company J earning about $65,000 p.a. She took a redundancy shortly before X was born. I note during this period the respondent concedes that the parties were living in a de facto relationship.
From the commencement of the relationship each party paid for his or her mortgage (though the applicant was unsure whether the respondent had a mortgage) each dealt with their property to the exclusion of the other and each paid for renovations on his or her property without the assistance of the other. The manner in which the parties paid expenses on their respective properties was consistent before and after February 2004.
In 2002 the parties discussed purchasing a property together at Suburb N. The respondent suggested that they sell their properties and purchase the Suburb N property in joint names. The applicant declined on the basis that it was too early in the relationship for such a commitment and indicated that she liked living in her Suburb L property.
The parties had a brief separation in September 2003 when the respondent left the Suburb L home however he returned to live in the applicant’s home a few weeks later and the parties resumed their de facto relationship and shared the same bed. The respondent sold his motor bike to pay for baby furniture prior to X’s birth which I accept. X was born to the parties in 2003. The respondent contends that after the brief separation the parties’ relationship deteriorated. The applicant denies this was the case.
The parties continued with their sexual relationship after X was born. I find that the applicant and X moved into another bedroom in about February 2004. I accept the applicant’s account that X was sharing the parties’ bed and the respondent needed his sleep and this was the reason they moved into another room. I find that after February 2004 the parties did not share a bedroom. I prefer the applicant’s evidence that the parties last had sexual relations sometime in 2005. The applicant recalled that the last time this occurred was sometime in 2005 in the “front room.” The respondent contended that they had no further sexual relations after February 2004.
The applicant returned to work when X was about 7 months old. The applicant recalled that the respondent began contributing financially towards the household around this time. The applicant gave evidence that she placed X into day care which was expensive, they had a discussion about the respondent contributing to household expenses and around this time the respondent began transferring $300 per week into the applicant’s bank account. I accept the applicant’s evidence and note there was no independent documentary evidence to establish the time the payments commenced being transferred to the applicant’s bank account. I find that the respondent provided the applicant and the parties’ child with financial support even though their finances were not intermingled in the sense of having joint bank accounts. The applicant continued to pay all the household bills and purchase the groceries. The applicant cooked, cleaned and washed for the respondent and the family including cooking the majority of meals which the parties ate together. In addition between 2001 and 2005 she made the respondent’s lunch until she discovered he was throwing it away. The respondent agrees the applicant made his lunch for a short period. I accept the applicant’s evidence that she made the respondent’s lunch until about 2005. This was after the date that the respondent said they separated on a final basis.
The respondent agreed he purchased and paid for motor vehicle 1 for the applicant’s use in 2005. He said that one of her friends had visited and she had motor vehicle 3 and he bought the applicant one as a surprise for her using his own funds. The applicant and X continued to use this vehicle during the relationship. The purchase was made after the date the respondent gave for final separation.
Both parties agree that in about 2007 the respondent increased his transfer of payments to the applicant’s bank account to $500 per week. X had commenced school. The applicant continued to shop for the groceries, prepare the meals, clean and wash in addition to undertaking employment. The respondent worked six days a week. He continued to operate the administrative side of his business from another room in the applicant’s home.
I find that the applicant was the primary carer for Xd while the parties lived together and although the respondent worked long hours he spent time with X when not at work playing with her, attending birthday parties for her, celebrating each birthday and Christmas with her and the applicant, providing X with gifts for her mother on the mother’s birthday and Christmas, socialising with the applicant’s family including attending barbecues and swimming in the applicant’s sister’s pool. I find that the respondent had known the applicant’s family for many years since his early twenties and their friendship continued.
The respondent contended that the parties did not hold themselves out as a couple in public however he agreed “we did attend events from time to time as parents for X for her benefit.” I find that the parties demonstrated they were a couple when they attended together at school functions, attended at the applicant’s sister’s home whether to swim in the pool or for a barbecue, when they had pizza with friends and when they had a barbecue on the Suburb F property in the presence of employees from his Company F.
I accept the applicant’s evidence that when they attended barbecues at the applicant’s sisters home, the applicant would sit with the respondent and sometimes X would sit between them. I accept the applicant’s evidence that the parties went out together with mutual friends to pizza restaurants. They attended at least one dinner together at the home of the parents of children from X’s school. The respondent recalled this was in about 2011 and he said it occurred on one occasion. The applicant suggested it occurred more than once. The parties attended all of X’s school functions together the respondent said occasionally he would arrive at a different time to the applicant. The respondent deposed in his affidavit to the parties going out together on one occasion when X was very young whilst a neighbour babysat. I find that the parties frequently presented as a couple. I note however that the parties agree that they did not go out to dinner alone or go on holidays together as a family prior to 9th June 2014.
The respondent purchased a property at Suburb F in 2008. Though the respondent deposed in his affidavit that “Ms Bennett was not involved in any way with the purchase of my Suburb F property” this was not correct. The respondent agreed in cross examination that they had discussed his intended purchase of this property. The applicant’s brother in law had alerted the respondent to the fact that the property was on the market. The respondent agreed that the applicant tried to talk him out of the purchase and he went ahead regardless telling her it was a good investment. He said “she did not speak to me for three days after this.” I find that the applicant and respondent discussed his future plan to buy the Suburb F property.
The respondent agreed that he, the applicant and X had a barbecue on the Suburb F property with two employees from Company F. I find that the parties presented as a couple on this occasion. The applicant said there were other times when she, the respondent and X attended the Suburb F property for barbecues and socialised particularly with the applicant’s sister and brother in law. I find this to be the case and note that the applicant’s sister indicated they always presented as if they were “together.” I accept that evidence.
During the relationship the parties jointly paid a gardener to mow the lawns. The applicant said this was due to the respondent working long hours. I accept her evidence. I find that the parties at no time had a joint bank account or purchased property in joint names. I find that the respondent dealt with his Suburb D property to the exclusion of the applicant. He sold this property in 2014 and did not consult the applicant. He used the proceeds of sale to pay off his business overdraft and purchased other trucks. This was a property he owned prior to the commencement of the relationship. He paid for renovations on the property and the applicant did not contribute. He had previously rented the property to friends and on the open market and did not consult the applicant. I find this was the manner in which the parties always dealt with property they had brought into the relationship.
The respondent initially denied the applicant was involved in his transport business. He agreed that he operated his business from the applicant’s home until he moved out in June 2014. One of the bedrooms was used as his home office and it was filled with filing cabinets for the business. He agreed he used the home landline each morning for work purposes but said the call was a free call. The applicant asserted that the respondent used the internet connected to her home. I accept her evidence. He agreed under cross examination that the applicant drove him to drop off his trucks for repair and then drove him to collect the trucks most recently in 2013 or early 2014. He agreed that she helped him resolve a dispute with the Telecom Ombudsman and she assisted him with a Telstra business debt and she did some typing for the business. I accept the applicant’s evidence that she had some involvement in the respondent’s business.
Prior to June 2014 the respondent’s nephew lived with the parties for a period of ten months. He was 22 years old at the time, was in with the wrong crowd, was unemployed and according to the respondent “was getting into drugs.” The applicant agreed for the respondent’s nephew to stay in her home, she cooked and cleaned for him and he paid board of $150 per week. Once he was successful in securing employment he left the home. I find that the parties agreed between them that it was appropriate for both of them to care for the respondent’s nephew in this regard.
The applicant continued to purchase the groceries throughout the relationship, to cook, clean and wash for all members of the household until the respondent left the home on 9th June 2014. She purchased the respondent’s personal items including toothpaste, soap and shampoo, underwear, socks, shirts, shorts and deodorant. The parties attended a wedding together and prior to the wedding went together and purchased a suit, tie and shoes for the respondent. The applicant would buy special food for the respondent’s birthday and prepare it. He agreed that on occasion she had shaved the respondent’s back. The applicant said she gave him a haircut and trimmed his facial hair. The respondent denied this to be the case. I prefer the applicant’s evidence. The applicant and X kept their clothes in a large built - in wardrobe located in the bedroom the respondent slept in and they would come and go as they pleased. The respondent said he complained to the applicant about this. The respondent agreed the parties attended social events together but said there were always many other people there, which he and the applicant had known for a long time including members of the applicant’s family. I accept the evidence that the parties attended social functions together and infer they attended as a couple.
The respondent agreed that he left the Suburb L property on 9th June 2014. He agreed that he had formed a new relationship with a woman named Ms Y at that time. I infer that he left the applicant to pursue his new relationship.
The respondent argued that the parties separated on a final basis in February 2004 when the applicant moved into another room with the child. The applicant disagreed that there was an argument about X sleeping in her own room. She said she moved out because the respondent needed his sleep. I have accepted her evidence as to the reason she moved out of the bedroom. She denied being abusive towards the respondent and X as claimed by him. The respondent did not suggest that this abuse continued after February 2004. I note there were no further periods of separation until after the respondent left the home on 9th June 2014.
If the respondent formed an intention to end the relationship in February 2004 I find that he did not act on that intention and did not communicate his intention to the applicant. In answer to an inquiry by the Court about what (if anything) the respondent said to the applicant in February 2004 about the breakdown of the de facto relationship, he responded that he told the applicant “this isn’t working – we’re better off on our own.” He said she said she couldn’t afford to be living on her own and it was better that the respondent stayed and contributed to the household. He said he then asked her “how much do you want.” This conversation was not included in the respondent’s affidavit nor was it put to the applicant by the respondent’s Counsel in cross examination. I do not accept the respondent’s evidence in this regard. I do not accept that the respondent directly communicated to the applicant in February 2004 or at any other time after that until he left the home in June 2014 that the de facto relationship had broken down. I find that the parties continued to have sexual relations after February 2004, socialised together as a couple and continued to provide mutual support for each other with the applicant undertaking the majority of domestic tasks and the respondent providing financial support after February 2004 and their relationship continued in that manner until the respondent left the home in June 2014. I find that both parties continued to care for X. I find that they lived together in a common residence between late 2001 until 9th June 2014. I find that the parties were recognised as a couple amongst parents at X’s school, with friends and with the applicant’s family.
Conclusion
The circumstances to which the court may have regard in determining whether persons have a relationship as a couple under section 4AA(2) of the Act are a guide only and the existence (or absence) of any criteria is not determinative. It is the common intention of the parties as to what their relationship is to be, what their relationship is to involve and what their respective roles and responsibilities are, that primarily determines the nature of the relationship. Similarly when the relationship breaks down the communication of one party’s intention to separate should be unambiguous and unconditional.
The Court is required to be satisfied having regard to all the circumstances of their relationship, the parties had a relationship as a couple living together on a genuine domestic basis that did not break down before 1st March 2009. Notwithstanding that their sexual relationship came to an end in 2005 and they had no joint assets or liabilities (save for perhaps a motor vehicle) I find that the parties by their conduct demonstrated a degree of mutual commitment to a shared life, supported and cared for their child, provided practical and financial assistance and support for each other and their child. I find that a de facto relationship existed between the parties commencing late 2001 and continuing until 9th June 2014.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Associate:
Date: 28 February 2017
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