Besser & Vaudry
[2023] FedCFamC2F 1191
•12 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Besser & Vaudry [2023] FedCFamC2F 1191
File number(s): PAC 1804 of 2022 Judgment of: JUDGE BETTS Date of judgment: 12 September 2023 Catchwords: FAMILY LAW – de facto property settlement proceedings – whether the applicant has filed proceedings outside the ‘standard application period’ – where the Court must determine the end date of the relationship – where the Court considers the application has been filed outside the ‘standard application period’. Legislation: Family Law Act 1975, Pt VIII, Pt VIIIAB Cases cited: Clarence & Crisp (2016) FLC 93-728
Fairbairn & Radecki (2022) 64 Fam LR 604
H v P [2011] WASCA 78
Jonah v White (2012) FLC 93-522
Lynam v Director General of Social Security (1983) 52 ALR 128
Mayson & Wellard [2021] FamCAFC 115
Owens & Benson [2014] FamCAFC 243
Sinclair v Whittaker (2013) FLC 93-551
Division: Division 2 Family Law Number of paragraphs: 111 Date of last submission/s: 29 June 2023 Date of hearing: 1 May 2023 and 29 June 2023 Place: Newcastle Counsel for the Applicant: Mr Bithrey Solicitors for the Applicant: Dalzell Law Counsel for the Respondent: Mr Willoughby Solicitors for the Respondent: Conditsis Lawyers ORDERS
PAC 1804 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BESSER
Applicant
AND: MS VAUDRY
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
12 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that the de facto relationship between the parties ended by no later than 2 March 2018.
2.The Court will hear from the parties in relation to costs.
3.The Court will hear from the parties in relation to the Husband’s application to extend time for the bringing of these proceedings pursuant to s 44(6) of the Act.
4.The proceedings are adjourned to 9.30am on 15 February 2024 for further hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
In the year 2000, Mr Besser (‘the Husband’) and Ms Vaudry (‘the Wife’) entered into a de facto relationship when the Husband moved into the Wife’s home at Suburb C, City D.
At that stage both parties were in their early to mid-thirties. A single mother raising two (2) children then aged 14 and 11, the Wife was a ‘battler’ working full-time as a factory worker at a local employer where she earned a modest income. She had limited savings, a car and some modest superannuation.
The Husband was also a ‘battler’ though for different reasons. He had been diagnosed with a mental illness in 1999 and was in receipt of a Disability Support Pension. Like the Wife, he had limited savings, a car and some modest superannuation. But unlike the Wife, the Husband was also a longstanding drug addict and a problem gambler. From his teenage years he had been in trouble with the law, having various convictions.
The relationship between the parties was tumultuous. The Husband was actively involved in criminal activity in the City D region, primarily relating to illicit drugs, but also other offences. The Husband was also a serial perpetrator of coercive and controlling family violence against the Wife. Amongst other things, he threatened her, verbally abused her and on occasions violently assaulted her - which on some occasions resulted in Apprehended Violence Orders, criminal charges and imprisonment.
Apprehended Violence Orders did not deter the Husband; he displayed little or no respect for the law or for societal norms of behaviour. He was a law unto himself, a ‘standover man’, and a repeat criminal offender.
In broad terms the Husband was in prison for around half of the time between 2000 and 2021. The Wife visited him during some of his incarcerations, particularly in the early years. In between prison stints the Husband always ended up living back at her home again. That ended in February 2021, when the Husband was again arrested and imprisoned for numerous offences, including violently assaulting the Wife. This time though, upon his release from custody in late 2022, the Husband was immediately detained by immigration authorities and placed in detention pending deportation proceedings. A New Zealander by birth, the relevant Minister has apparently determined that he should return there. He is resisting that application.
On 6 April 2022 the Husband filed proceedings against the Wife in this Court seeking a property settlement. She resists his application, asserting that it was brought outside the ‘standard application period’ being two (2) years from end of the relationship: s 44(5) of the Family Law Act 1975 (Cth) (“the Act”). The Husband disagrees.
In essence the Husband says that the relationship ended in February 2021 when cohabitation came to an end once and for all. The Wife says the relationship had in fact ended years earlier in 2018 and that the only reason they stayed living in the same home thereafter was because she was afraid of him, unable to get him to leave, and that she was essentially ‘trapped’.
At this time the Court must therefore determine the end date of the relationship as a discrete preliminary issue.
If the Husband is correct about the end date of the relationship, then his application is within time and the proceedings can progress towards a final hearing in accordance with the usual case management pathway. If the Wife is correct, then the Husband seeks leave to proceed with his application out of time on the basis that a refusal to grant such leave would result in him suffering ‘hardship’.
FINAL HEARING & MATERIAL RELIED UPON
The hearing took place on 1 May and 29 June 2023. Mr Bithrey of counsel represented the Husband who appeared by videolink from detention. Mr Willoughby of counsel represented the Wife who appeared in person.
At the hearing, the parties relied upon the following documents:
Husband:
(a)Case Outline Document filed 30/04/23;
(b)Husband’s affidavit filed 24/04/23;
(c)Husband’s Financial Statement filed 24/04/23.
Wife
(a)Case Outline Document filed 28/04/23;
(b)Response filed 23/06/22;
(c)Wife’s affidavit filed 13/04/23;
(d)Wife’s Amended Financial Statement filed 13/04/23.
I had the benefit of seeing and hearing both parties be cross-examined. The Husband’s affidavit admits that he suffers from ‘memory problems’. [1] The parties also tendered some documentary exhibits which I will refer to as relevant.
THE LAW SURROUNDING DE FACTO RELATIONSHIPS
Property settlement proceedings arising out of the breakdown of de facto relationships fall within Part VIIIAB of the Act which, in broad terms, replicates the provisions of the Part VIII of the Act which regulate property disputes between married couples.
The existence of a de facto relationship is not presumed and, when in issue, must be proved as a matter of fact. As each individual de facto relationship is different, the Act adopts the following broad and somewhat generic definition:
SECTION 4AA DE FACTO RELATIONSHIPS
Meaning of de facto relationship
4AA(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…; 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.
Working out if persons have a relationship as a couple
4AA(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.
4AA(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.
4AA(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.
…
In Jonah v White (2012) FLC 93-522, the Full Court held that s 4AA(1)(c) is the touchstone for determining whether a de facto relationship exists, ie. whether the parties have a relationship as ‘a couple living together on a genuine domestic basis’. [2] This is the seminal test to which the various ‘circumstances’ prescribed in s 4AA(2) are all directed. It is the application of the Act to the facts of each individual case which is decisive. Case law can be instructive, but cannot supplant the words of the statute: see the decision of the Full Court in Sinclair v Whittaker (2013) FLC 93-551. [3]
In Sinclair (supra), the Full Court cited with approval the observations of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at page 131:
… Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in 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 attitude 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.
A de facto relationship can be ended at any time. It continues to exist only for as long as the indicia which give the relationship its character continue to exist. The task of determining whether a relationship has ended is precisely the same task that must be performed to determine whether a de facto relationship exists in the first place: see the Full Court decision of Clarence & Crisp (2016) FLC 93-728. [4]
As each de facto relationship is different, no one circumstance in s 4AA(2) will necessarily determine that the relationship has ended. For instance, in Fairbairn & Radecki (2022) 64 Fam LR 604 the High Court found that a break in cohabitation brought about by one party going into an aged care facility did not of itself constitute the end of that particular de facto relationship.
The onus of proof is important in this context. Although the Wife contends that the de facto relationship ended in 2018, she does not have to prove this. Rather, the Husband carries the onus of proving that the relationship continued to meet the statutory definition after that alleged separation date: see the Full Court decisions of Owens & Benson [2014] FamCAFC 243 and Mayson & Wellard [2021] FamCAFC 115.
RELEVANT RELATIONSHIP HISTORY IN THIS CASE
The Wife was born in 1965, the Husband was born in 1966.
The Wife’s home had 3 bedrooms. When the Husband moved into the Wife’s home in 2000, the two of them occupied the master bedroom while each of the Wife’s children had their own bedrooms.
The parties had a sexual relationship. The Husband, who was not in paid employment, assisted the Wife with household cleaning, laundry, as well as attending to the outside tasks such as mowing the lawn and attending to the gardening. The parties shared the cooking duties, depending on whether the Wife was working a day shift or a night shift. At the end of a day at work, they watched TV together in the lounge. They treated each other as partners when they went out together in public, although they did not go out very often and their circle of mutual friends was quite small. When they did go out, they referred to each other as their ‘partner.’ I accept the Wife’s evidence that neither party socialised with the other’s friends.
The parties kept their bank accounts separate. The Wife was solely responsible for paying the rent and for practically all property outgoings. The Husband did buy groceries and on rare occasions paid some utility and insurance bills.
There was a dark side to the Husband, whose friendship group included criminal associates and other unsavoury characters. The Wife did not want to socialise with these people and likewise the Husband did not much socialise with her friendship group either.
Their relationship had barely begun when, in 2001, the Husband was convicted of various offences, for which he was fined and given a suspended sentence of imprisonment. But just a few months later, he was charged with another offence. A warrant issued for his arrest and he was soon charged with further offences. He seems to have been taken into custody in 2001 and in 2002 he was sentenced to a total of three years imprisonment, with a non-parole period ending in 2003.
The Husband was released on parole in or about 2003, having been incarcerated for just under two years. The de facto relationship continued during his incarceration. The Wife visited him in prison; they spoke on the telephone (as she was on his ‘call list’); and she gave the Husband spending money of around $60 per fortnight which she banked into an account for him.
During the Husband’s incarceration, the Wife had reverted back to being a sole parent again. She was solely responsible for all household tasks, including taking back over the yard work.
When the Husband was released on parole, the Wife collected him from the F Correctional Centre and took him back to the home where the relationship continued as before.
As a result of committing offences, in 2004 the Husband found himself back in custody again for another six months. The relationship continued as before; the Wife visited him in prison and they stayed in contact by telephone.
After the Husband’s release on this occasion, the de facto relationship became strained. The Husband was being increasingly verbally and physically abusive towards the Wife. Police took out an AVO to protect her. [5]
In 2005 or early 2006 the Husband moved out of the home and lived with a male friend for a while. But he still attended at the home. During this period when the parties’ relationship was somewhat ambiguous, the Husband violently assaulted the Wife. I accept her confronting affidavit evidence that:
25 In 2006, there was an incident between [Mr Besser] and I as follows:
a.[Mr Besser] was not living with me at this time but was residing with a friend at [G Street]. Upon [Mr Besser] arriving at my home, he quickly became aggressive towards me. I asked him to leave, and this resulted in him throwing a coffee cup at me and hitting me in the back of the head. I was knocked unconscious and when I regained consciousness I was on the floor in the hallway. I was bleeding heavily from the back of my head.
b.I was in shock and scared for my safety. I recall that [Mr Besser] had a gun with him. I was able to locate bullets in his bag and put them in a pot plant in my home. I was terrified that he would shoot me if he found them.
c.Once [Mr Besser] realised the bullets were missing, he came into the spare bedroom, where I was sitting in the corner, hiding, trying to stop the bleeding, and he started yelling at me and demanding the bullets. During this argument I could hear other people in my home, I was not aware who these people were.
d.[Mr Besser] proceeded to hit me in the head and body and I not sure [sic] whether it was his fists or the gun.
e.After some time, I took an opportunity to grab my car keys to try and go to the hospital. As I was trying to start my car, he grabbed me and pulled me out of the car. He kicked me repeatedly in the front yard yelling at me to get back into the house. I was scared that I was going to die on this occasion.
f.[Mr Besser] forced me to sit at the kitchen table and called me horrible and degrading names and told me that I was a ‘dead woman’. He forced me into his car and drove me around for a while. After he finally took me home, he told me words to the effect of “if you call the cops, I’m going to come back to finish you off.” Due to my fear of him, I did not contact the police.
g.Approximately two (2) weeks later, he returned to my home and accused me of stealing his guns. He hit me with [an object]. As he searched my home, I ran to a neighbour’s home and begged them not to open the door and to call the police.
h.[Mr Besser] came to their door with a knife demanding that they neighbours [sic] send me out. I was terrified that he would get through the door or that the neighbours would make me leave.
i.Once the police arrived, they took my statement and [Mr Besser] had already returned to his residence at [G Street]. I was informed by the Police when the Police attended to arrest [Mr Besser], that he appeared from behind the lounge and pointed a gun at the police and threatened to shoot the officer. Following this was a […] siege before the Police were able to enter safety and arrest him.
The Wife’s description gives a graphic window into the criminal mindset and behaviours of the Husband at that time, and the Wife’s fear and powerlessness to stop him or to properly protect herself.
As a result of these incidents, the Husband was charged with assaulting the Wife and causing her bodily harm, contravening an AVO for the Wife’s protection, common assault, firearms offences and using an offensive weapon to prevent a Police investigation. He was immediately taken into custody as a result and sentenced to imprisonment with a non-parole period. In practical terms the Husband was in prison from 2006 until 2010.
I accept the Wife’s evidence that the de facto relationship ended at that time. Her affidavit deposed that they did not in fact resume their relationship again until 2012, some two years after the Husband’s release from prison. But the evidence establishes that, following his release from prison in 2010, the Husband only stayed with a friend for perhaps a few months, following which he moved back in with the Wife. The Wife conceded in the witness box that their relationship had resumed again at that time.
While the relationship between the parties resumed as it had before, its nature was now somewhat different. Whatever the Wife’s feelings for the Husband, her ‘rose coloured glasses’ in relation to the Husband were well and truly gone. She held a genuine fear of him and more wary of his behaviour and his criminal associates.
The resumption of cohabitation only lasted a matter of months, because the Husband was soon charged with numerous further offences. In 2010 he was incarcerated again until 2012. [6] During this incarceration the relationship between the parties ended again.
Following his release from prison, in 2013 the Husband again started staying at the Wife’s City D home from time to time. In that year he was convicted of possessing an illicit drug, though he only received a bond on this occasion.
Later that year the Husband was living in the home on a full-time basis. Although the Wife’s affidavit denied it, she admitted in the witness box that their de facto relationship had resumed again. At that stage the Husband asked the Wife to apply to the housing commission to approve him as an additional occupant of the home. She agreed, filling out the requisite application. The form falsely described the Husband as a ‘friend’ of the Wife only. Both parties signed the form and approval was later granted.
Around 2015 the Wife’s daughter moved out of home; her room was converted into a spare room although it still contained a single bed. The Wife’s son still had his own room in the home and he stayed there periodically.
The Husband continued to behave in aggressive and abusive ways towards the Wife. I accept her confronting affidavit evidence that:
26 In [late] 2015, there was an incident between [Mr Besser] and I as follows:
a.[Mr Besser] and I drove to Melbourne and stayed in a motel overnight. [Mr Besser] became angry towards me and began accusing me of cheating on him, I was standing next to the bed and [Mr Besser] shoved me causing me to fall across the bed. I was concerned for my safety and scared of [Mr Besser], so the following morning I changed motels. [Mr Besser] sent me a message words to the effect of “you’re a gutless piece of shit” and further stated that I should catch a bus or train home and demanded that I had to transfer $20,000 into his account within twenty-four (24) hours or not to bother returning home.
b.[In late] 2015, [Mr Besser] texted me and told me that he had asked a friend to go to my house and get all of his belongings. [Mr Besser] sent me a further text messaged stating that he had told his friend that if my son, [Mr J], was to get in his was that he was ‘free to take care of him’. [Mr Besser] advised me that he was catching a flight and that he would be waiting at my home with a petrol drum.
c.[In late] 2015, [Mr Besser] sent me a text message advising that he was burning his way through my wardrobe.
d.[In late] 2015, [Mr Besser] sent me a text message stating words to the effect of “you got the check for me?” He further sent pictures and videos of him burning my clothes and shoes.
e.I felt unsafe and stayed in Melbourne for a few days hoping that [Mr Besser] would calm down and I could return home. As I had packed minimal clothes and observed [Mr Besser] to be burning my clothes at home, I purchased two suitcases of new clothing.
f.I do not recall that day that I returned home from Melbourne, however, [Mr Besser] was waiting for me when I arrived. I had to walk around to the back door as I was unable to open the front door. I saw [Mr Besser] sitting on the back steps with a petrol container next to him. I dropped the suitcases and tried to run for my life from [Mr Besser]. [Mr Besser] grabbed me outside of the neighbour’s house and knocked me to the ground. I thought that I was going to die.
g.[Mr Besser] proceeded to jump on me, punching me in the face several times and stated words to the effect of “I’m going to break your nose.” I recall there being another person present who was speaking to [Mr Besser] and they both left me on the ground.
h.After a period of time, I was able to stumble to the shops nearby and I hid at the back of one of the shops. The owner let me use his phone to call the police. I observed [Mr Besser] to be driving past the shops look around [sic] for me. I was so scared that he was going to find me. The Police arrived and took me to the police station where I made a statement, and I was informed that upon the Police attending my home that [Mr Besser] was nowhere to be found.
i.I returned home and had to smash the window to gain entry as the front door had been padlocked from the inside and the back door had also been padlocked. I continued to significantly be concerned for my safety and worried that [Mr Besser] would return and try to burn me in my home with both doors padlocked. As a result, I left to go stay a friend’s house for several days.
j.As a result of this assault, I had a broken nose and black eyes. I was bruised on my arm and had scratches on my ear.
k.After I was informed that [Mr Besser] was in custody, I returned home. However, approximately a week later, I was informed by one of [Mr Besser's] friends that [Mr Besser] had been bailed and was at [K Mental Health Centre]. I spoke to [Mr Besser], and he sounded sincere regarding his actions and that he was trying to help and work on his aggression towards me. [Mr Besser] informed me that they would not release him without a place to stay and that he had nowhere else to go. [Mr Besser] begged me to let him back into my home.
l.I regretfully allowed [Mr Besser] to return to my home, however, I wanted to believe that he was sorry and I also scared of what he would do if I did not let him back into my home.
m.I attended Court in relation to this assault and [Mr Besser] was found guilty. [Mr Besser] was not sentenced to any gaol time. However, a Final ADVO was put in place for my protection for 12 months.
The incident described by the Wife is nothing short of horrific. He made threats to kill her, to kill her son and to burn the home down. He did in fact set fire to some of her clothing. He then viciously assaulted the Wife when she returned to the home.
The Wife’s actions in letting the Husband return to the home after the assault are strongly suggestive of fear and desperation on her part. The AVO could have prohibited him from living there or from even coming within a geographic distance of the home. It didn’t, inferentially because the Wife did not want it to. Like many family violence victims, the Wife was simply doing what she felt she had to do in order to survive. To the extent that there was still a de facto relationship on foot between the parties, the relationship was spiralling down and the mutuality usually inherent in such a relationship had largely dwindled away.
I accept the Wife’s evidence that she and the Husband slept separately from that point onwards and that the sexual relationship ceased and did not resume. Initially the Wife slept in the spare room (her daughter’s old room) while the Husband stayed in the master bedroom. In 2016 the Wife returned to the master bedroom and the Husband began sleeping on the couch.
Tragically, in 2016 the Wife’s son died. The Husband accompanied the Wife to the funeral. The Wife was devastated. For a time she was unable to work. She lived off savings, barely leaving her room or interacting with anyone, including the Husband. I accept the Husband’s evidence that the Wife left her son’s room entirely untouched so as to preserve his memory. It was not a room that either of them slept in. The Husband continued to sleep on the couch.
Not long after her son’s death, the Wife wrote a despairing letter to the Husband in which she vented her feelings. The letter, tendered as exhibit 4, was in these terms (with typographical errors as per the original):
Finished, over, & done.
You don’t care how I feel, I have no say.
You constantly do things that you know will piss me off. Let people in my house who are scum even when I ask you not to. I think the only reason you are still at my house is your to lazy…..
You sit around doing nothing all day every day. Yet you had the hide to say [Mr J] was lazy & doing nothing. Telling me you wash up and vacuum everyday, lies, to get me & [Mr J] fighting. You have everyone running around for you & you don’t and can’t be bothered to do anything to make me happy.
I sick of you snoring every night & doing nothing about it. When I got TV on it’s the end of the world cause you can’t sleep. Welcome to my world.
I have to say that I know you take pleasure in pissing me off.
And go out of your way to be a cunt to me. I put up with your crap for too long, over it!!
For completeness, the ‘Mr J’ referred to in the letter was the Wife’s deceased son. In the letter Wife was essentially pleading for the Husband to change so that they could salvage their relationship.
In 2016 the parties went on a cruise in Queensland, which the Husband paid for. Inferentially, for the purposes of this trip they shared a cabin together.
In late 2016 the housing commission made the City D home available to the Wife to purchase for $295,000. Her affidavit evidence is that she used her life savings to pay a $50,000 deposit (including legal fees and stamp duty) and took out a mortgage for the balance. The title to the home was placed in her sole name.
In the witness box the Husband claimed that he was the source of the Wife’s deposit money. He said that he had given her cash, claiming that the source of the funds were ‘gambling winnings’ during the relationship totalling some $300,000 - $400,000.
If it was true that the Husband gave the Wife the money, it seemed incredible that he chose not to mention doing so in his affidavit. For that reason alone I was inclined to reject his evidence.
But then, the Wife’s evidence as to her ‘life savings’ was rather glib and indeed no more than a bare assertion unsupported by any independent evidence. Given her own modest financial circumstances throughout, more scrutiny was warranted and to that end I invited the Wife’s counsel to have her produce some corroborating documents when the hearing resumed on 29 June.
When the matter resumed that day, the Wife produced a bundle of account statements revealing that one of her savings accounts had an opening balance of $73,080 as at October 2016. But that ‘snapshot’ on its own was equivocal; the money may have been in her account at that date but it did not exclude the Husband’s version that he had given it to her.
The Wife did not produce any earlier account statements to show how the account balance had grown up to that date. Moreover, the statements that the Wife produced were patently incomplete; I was only provided with pages 1 and 7 of what was clearly, on the face of the documents, a 9 page bundle.
The bank statements the Wife did produce revealed two further cash deposits made to her account totalling $10,147 in October 2016. The Wife said that these amounts were repayment of a loan owing to her by a friend ‘Ms L’ and that these moneys formed part of the deposit money. But then the Wife also said she was not sure that those moneys came from Ms L at all.
I do not accept the Wife’s evidence that Ms L gave her that money but consider that the Husband did so. Moreover, I do not accept that the Wife had funded the deposit from her own life savings as I do not accept that she had the capacity to save that amount given her own financial circumstances throughout. Though the Wife denied it, I am satisfied that the Husband did in fact pay cash to the Wife for the deposit, including the $10,147 referred to, and that the Husband’s cash made up a substantial portion, and perhaps all of the deposit.
Why did the Husband omit to mention this in his affidavit and why was the Wife’s version of events so glib and unconvincing? On the weight of the evidence, the compelling inference is that the cash was the proceeds of crimes engaged in by the Husband, most likely his involvement in the illicit drug trade. [7]
To avoid doubt, I reject the Husband’s evidence that the cash was the product of ‘gambling winnings’ on his part.
After acquiring the home the Wife was solely responsible for all mortgage repayments thereafter’ the Husband admitted in the witness box that he had never made a single repayment as he said he had never been asked to. The Wife also paid for practically all of the utilities and other outgoings for the home.
In late 2017 M Company made a payment to the Wife of approximately $325,000 on account of her late son’s death benefit. The Wife applied approximately $160,000 of that money towards the mortgage and deposited the other half into a mortgage offset account. (As a result of her son’s death, the Wife also retained his Motor Vehicle 1 which she allowed the Husband to drive.)
Seemingly flush with cash, in 2017 the Husband paid for the windows of the home to be upgraded and for security locks and fly screens to be installed. [8] He says this cost $28,000 but has no receipts. He then paid for the exterior cladding to be replaced, signing a ‘Minor Residential Works Contract’ in 2017 which provided for a contract price of $15,790. He also paid the $1,500 deposit. The Husband also organised and paid for a verandah to be installed at the home.[9] In the witness box he suggested that it had cost tens of thousands of dollars.
The Wife did not have the funds to pay for these works herself. Mr Willoughby submitted that although the Husband paid for the works, the Wife had ‘no say in it’ and that the payments were themselves evidence of his ongoing coercive behaviour. There is some merit in that submission, as the Wife was by no means an equal partner in this toxic and abusive relationship. That said, the Wife saw herself as benefitting from the works in question and there is no suggestion that she attempted to talk the Husband out of paying.
Again the compelling inference is that the Husband’s cash was wholly, or at least substantially, derived as the proceeds of crime. After all, his only declared source of income from 2000 onwards was a Disability Support Pension, which he did not receive for around half of the time because he was in prison. He was an admitted drug addict and gambler and had never had any substantial bank accounts or assets. My conclusion is also fortified by the content of exhibit 1.
Did the de facto relationship end in 2018?
In her affidavit the Wife deposed that:
13.By 2018, [Mr Besser] and I’s relationship had completely broken down. I no longer considered [Mr Besser] and I to be in a relationship and I had communicated this to [Mr Besser] on numerous occasions. I barely talked or interacted with [Mr Besser].
14.[Mr Besser] and I no longer attended any events as a couple, we did not have a sexual relationship, we each independently purchased and prepared our own food. I did not attend to [Mr Besser]’s laundry or cleaning up after him, however I maintain [sic] the remainder of the house to a good condition.
…
30.Between 2018 to 2021, I asked [Mr Besser] to move out on many occasions, however, this would result in [Mr Besser] becoming very angry, aggressive and violent towards me including screaming and yelling at me, punching me or pushing me to the ground. Due to this I became incredibly fearful for my safety if I mentioned [Mr Besser] moving out.
I broadly accept the Wife’s evidence, including that from 2018 she told the Husband that they were no longer in a relationship as well as asking him to move out. But I do not accept that she instigated such discussions on ‘numerous’ or ‘many’ occasions as she suggests. Given the wife’s instinct for self-preservation and her history of placating the Husband, I am satisfied that she raised these topics on relatively few occasions only. But she did raise them.
It was suggested to the Wife in the witness box that she had ‘always known she could call the Police’ if she wanted to remove the Husband from the home. She disagreed. It was suggested to her that she could have ended the relationship at any earlier time when the Husband was in prison and she again disagreed. At that point she was crying; her tears were genuine. I am satisfied that she felt helpless and afraid.
In early 2018, Police executed a search warrant at the home. They found large clear resealable bags containing illicit drugs. Police also found two sets of scales and $900 cash. [10] The Husband was charged with numerous drug possession and supply offences and seems to have been taken into custody immediately, where he remained until 2019.
The Wife contends that the relationship ended when the Husband went into custody. The Husband seems to agree with that, his affidavit deposing:
29.In 2018 I was charged with [drug offences] and sentenced to incarceration on [in] 2018 concluding [in] 2019 at [N Correctional Centre]. [Ms Vaudry] and I ceased our relationship in or about 2018 for the period of about 6 months during this incarceration. [Ms Vaudry] would not visit me, and I did not call.
The Husband was taken to this paragraph in the witness box. But when asked to confirm that the parties had separated in 2018, he responded: “Not that I know of”. Asked why he had deposed that they had, he said he “didn’t know”. Moreover, he now claimed that the parties had spoken on the telephone every Sunday while he was in prison on that occasion. In short, the Husband disavowed paragraph 29 as being entirely inaccurate, reasoning that he was in a “complete rush to sign the affidavit…I only had one day to do it…and I didn’t read it properly.”
As a result of giving that answer, the matter was stood down so the Husband could re-read his affidavit. When the hearing resumed shortly afterwards, the Husband immediately sought to correct paragraph 30 of his affidavit as well, wherein he had deposed that:
30.In or about 2018 my [Motor Vehicle 2] was stolen and the [Ms Vaudry] put a post on Facebook asking for assistance from people to relocate the car while I was in jail. [S]he refers to me as her partner at this time I thought the relationship was started again…
According to the Husband, paragraph 30 should not have said that the relationship “started again” given that he “did not think the relationship had stopped” in the first place.
I will return to the Motor Vehicle 2 shortly but for present purposes it suffices to say that I reject the Husband’s belated attempts in the witness box to ‘correct’ paragraphs 29 and 30 of his affidavit. I am satisfied that the Husband did consider the parties to be separated in 2018 when he went into custody, as he had originally deposed. This is also consistent with the letter sent by the Husband’s solicitors to the Wife on 19 March 2021 seeking to institute property settlement negotiations. [11]
Although each party’s personal understanding and belief as to the status of the relationship at that time is not determinative of the question, I am nonetheless satisfied that both of them were correct. The de facto relationship between the parties had ended and I am satisfied that it had ended before the Husband was imprisoned. Its demise had been coming for years, particularly since the Husband’s 2015 assault on the Wife. By 2018 the indicia of the relationship had dwindled to such an extent that the parties were, for all intents and purposes, already living largely separate lives under the one roof. The parties barely interacted. They no longer shared household tasks. The Husband no longer did the yard work.
At the time the Husband went to prison, the parties’ common residence was about all they had left. But in a practical sense, the Wife’s mindset was that she could not ‘get rid’ of the Husband anyway. Her attempts to get him to leave the home had been unsuccessful and met with aggressive responses. The Husband’s substantial financial contributions towards the home had also ‘muddied the waters’ in that each party seems to have acted on the basis that those contributions gave the Husband some sort of claim to the home, or at least a right of occupation. As set out in paragraph 62 herein, the Husband had to some extent ‘bulldozed’ the Wife by making those contributions.
Did the de facto relationship resume thereafter and only come to a final end in 2021?
As a result of my above findings, the Husband carries the onus of establishing that the de facto relationship in fact resumed.
I turn now to the events from 2018 onwards to determine whether there was, or was not, a resumption of the de facto relationship. For convenience I will group the evidence under some specific headings, but without losing sight of the overall or composite picture of the relationship.
The Motor Vehicle 2:
While the Husband was in prison in 2018, one Mr O stole his Motor Vehicle 2 from the home.
Shortly afterwards, the Wife made a public Facebook post in relation to the theft. The Husband’s affidavit annexes a copy of her post. It contains a photograph of Motor Vehicle 2 and reads as follows (with typographical errors as per the original): [12]
This [Motor Vehicle 2] rego […] has been stolen. It belongs to my partner [Mr Besser]. It’s been stolen by a so called friend of his [Mr O], who is a low life theivin’ dog. He is a total dickhead, a wanna be using [Mr Besser]’s name. I am offering a reward to any one who can tell me where the car is.
[MR O] IS A THEIF. #[mro]isadog
#[mro]thievindog
#stolen[motorvehicle2]
#[mro]policedog
The relevant point is that this was a public post in which the Wife refers to the Husband as her ‘partner’.
In my view little turns on the post. The relationship had already ended at the time it was made, and both parties were aware that it had ended. The Husband admitted that he did not even know about the existence of the post until after being released from prison in 2019. In my view the post was no more than the Wife attempting to leverage the Husband’s criminal reputation to try to intimidate Mr O into giving the car back, and/or to perhaps encourage the Husband’s friends or associates in the criminal world to assist in its retrieval. Linking herself to the Husband in this way made the post more menacing or intimidating.
Resumption of cohabitation after Husband’s release from prison:
Upon the Husband’s release from prison in 2019, the Wife collected him and brought him back to live in the City D home.
In the witness box the Husband said that during this period of cohabitation the Wife positively told him that she considered them to still be in a relationship. Yet his affidavit made no mention of any such discussion and, when pressed, the Husband could not recall any of the details of what was said. Ultimately I consider that the Husband concocted this evidence to try to bolster his case that the relationship was on foot.
The Husband deposed that the parties were still sharing a bedroom, but I prefer the Wife’s evidence that she remained in the master bedroom and he was on the couch. Behind closed doors, the parties were effectively living separate lives under the one roof. It was a cohabitation of convenience for the Husband and an imposition for the Wife who he knew did not want him there.
Insurance payments & associated documents in both parties’ names:
The Husband clearly continued to make financial contributions in respect of the home.
His affidavit annexes some 2018, 2019 and 2021 P Company Insurance documents addressed to both parties. The documents relate to both home and contents insurance, and motor vehicle insurance. [13] His evidence was that he paid for the home insurance in cash at P Company’s Suburb Q branch. The Wife was aware that he did. In relation to the motor vehicle insurance, both parties drove the vehicle in question.
New Year’s Eve Party 2019/2020:
In 2019 the Husband claims that the parties held a large New Year’s Eve party at the home. This particular allegation can be put aside as I prefer the Wife’s evidence that there was no such party.
Husband spends further money on the home:
In 2020 the Husband paid for the roof tiles to be replaced, a ‘fiddly’ and expensive job which ran into tens of thousands of dollars. Again the compelling inference is that these moneys were wholly, or at least substantially, the proceeds of crime. My observations in paragraph 62 of these Reasons apply equally to this expenditure.
At around the same time, the Wife also paid for various home renovations including having a shed built on the property, installing solar panels, kitchen renovations, concreting, driveway and fencing work at a cost upwards of $45,000.
Husband again assaults the Wife:
In 2020 the Wife asked the Husband to stop using her late son’s motor vehicle as by that time he had had several accidents in it. The Husband was angry, grabbing her hair and punching her in the face, resulting in a black eye and a split lip.
Fearful for her safety, the Wife did not report the Husband to the Police.
Events in early 2021:
In early 2021 Police stopped the Husband in his car and took him back to the home where they executed a search warrant. The Wife answered the door and let them in.
Subpoenaed Police records describe the home as being:
premises occupied by the accused [Mr Besser] and his de facto partner [Ms Vaudry].
Inside the home, Police discovered multiple clear resealable bags containing a white substance weighing approximately 30 grams and $21,000 in cash in various denominations hidden in the kitchen cupboards. Police also found two mobile phones side by side on the coffee table and four clear resealable bags of cannabis which the Husband told them was ‘for personal use’.[14]
As a result of these discoveries, Police charged the Husband with further drug offences (including drug supply) and recklessly dealing with proceeds of crime. He admitted to bail and remained living in the home.
The Husband’s liberty was to be short-lived because, some three weeks after this event in early 2021, he violently assaulted the Wife as a result of which he was charged with assaulting the wife causing her bodily harm and his bail was immediately revoked. As for what happened on this occasion, I accept the Wife’s confronting affidavit evidence that:
28[In early] 2021, [Mr Besser]’s friend and I were discussing selling my [motor vehicle]. [Mr Besser] was sitting in the lounge room and during this discussion he became angry. [Mr Besser] walked into the kitchen, grabbed me around the neck and squeezed hard. He then started punching me in the face. [Mr Besser] is a large man and physically able to dominate me easily. He then pushed my head into the kitchen bench and cabinets and into the kitchen sink. My head hit the kitchen sink tap with force, causing a cut to the back of my head. I was significantly distressed and scared during this incident and worried that [Mr Besser] may assault me further or attempt to kill me. [Mr Besser] then left the home, and I was treated by Ambulance Paramedics before being taken to [R Hospital] for further treatment.
The Wife’s affidavit annexes various photographs taken of her after this assault in which she is clearly bloodied and battered. [15]
Police spoke to the Wife at around midnight and took out another AVO to protect her from the Husband. This time around, the AVO conditions specifically included a requirement that the Husband not go within 200 metres of the home. [16]
The Husband’s counsel pointed to what the Wife told the Police about the parties’ relationship on that occasion. To quote from the AVO application: [17]
The accused in this matter is [Mr Besser] and the victim is [Ms Vaudry].
The accused and victim have been in a domestic relationship for the past 20 years and are currently living together at [the home]. There are no current Apprehended Violence Orders between the accused and victim and no children as a result of their relationship. The accused and victim are now separated but still living together at the above address, with the accused sleeping on the lounge.
At the time the Wife spoke to Police it was the early hours of the morning and she had only just been violently assaulted by the Husband that day. I accept her evidence that she could not remember much about the night in question, including what she told them. Her generic statement about a ‘20 year domestic relationship’ was not incompatible with past events as she understood them because, broadly speaking, the parties had shared a home since 2000 albeit that the Husband had spent half of that time in prison. Moreover, while the Wife did tell Police that the parties were ‘now separated’ this is not inconsistent with them having separated in 2018. Overall, I do not place weight upon what the Wife told Police on this occasion.
In the witness box the Husband was asked about the content of the Wife’s proof of evidence (exhibit 1), and specifically her suggestion that he had a large wad of cash at the time he was arrested in 2021. The Husband agreed that he had around $40,000 cash which he described as a ‘gambling kitty’. The Wife claimed (in exhibit 1) to have overheard the Husband tell his friend that ‘I have made arrangements to keep my money safe’. But when Mr Willoughby asked the Husband where the ‘kitty’ was at the time of his arrest the Husband told him it was:
None of your business.
Despite having no obvious assets or income, the Husband was able to privately pay his criminal lawyers around $9,000 for their subsequent representation.
The Husband was incarcerated at S Correctional Centre on this occasion. He agrees that the Wife did not visit him in prison and says that in 2021 he heard from some associates that the Wife considered their relationship to be over. He said he accepted that. Interestingly, when asked why he thought the relationship was over at that time, he said “because of the assault”. Asked why he didn’t think it had ended because of the earlier assaults, he said “I don’t know”.
In March 2021 the Husband’s lawyers wrote to the Wife seeking to institute property settlement negotiations in which they asserted that the relationship had ended in 2018 but that there had been a subsequent reconciliation for 5 – 6 months. [18] To round out the Chronology, I reiterate that the Husband commenced these proceedings in April 2022. He engaged his lawyers on a private basis; according to his Financial Statement a friend paid them $20,000 on his behalf. In 2022 he was transferred to detention. He had paid his immigration lawyers $4,000 so far. In March 2023, the Wife started seeing a counsellor at T Counselling Centre. She intends to apply for compensation as a result of the Husband’s family violence towards her.
CONSIDERATION OF THE RELATIONSHIP FROM 2018 ONWARDS
Having regard to the nature of the family violence perpetrated by the Husband in this particular relationship, both counsel understandably took me to the Full Court decision of Mayson & Wellard (supra). In that case, the husband contended that the de facto relationship between the parties was in existence from 2010 to 2015. The wife contended that it had come to an end in late 2011 or early 2012.
The wife’s affidavit had alleged that she was the victim of high level family violence, including non-consensual sexual activity from mid-2011 onwards. The trial Judge had accepted the wife’s evidence about that. But the trial Judge nonetheless found for the husband, observing that:
Sadly, however, as [counsel for the husband] submitted, evidence of domestic violence in a relationship can have limited relevance to determining whether a de facto relationship existed…
(my emphasis)
Shortly after the trial Judge handed down judgment, the Husband was convicted at a jury trial of violently raping, sexually and physically assaulting the Wife in the period after 2011 or early 2012. The Wife appealed to the Full Court who gave the Wife leave to adduce that further evidence.
The Full Court went on to uphold the Wife’s appeal, observing that the family violence in that case was not of limited relevance but was in fact highly relevant and could only have led to a finding that there was not a genuine domestic relationship in place from late 2011 or early 2012 as the wife contended. In a joint judgment, Strickland, Ryan & Kent JJ observed that:
35As is readily apparent from the terms of s 4AA read as a whole, each case falls to be considered on its unique facts in determining whether, “having regard to all of the circumstances”, it can be concluded that the relationship under consideration is “as a couple living together on a genuine domestic basis.” There will be cases…where, notwithstanding an instance of, or some episodes of, family violence (as defined in s 4AB of the Act), upon review of all the circumstances of the relationship, the conclusion that the relationship meets the statutory definition is nonetheless tenable. However, it does not follow that the presence of family violence within a relationship cannot have determinative significance as to whether the relationship meets, or continues to meet, the statutory definition. There will be cases where the nature and extent of family violence and/or its effects upon the victim renders untenable the characterisation of that relationship as one of “a couple living together on a genuine domestic basis.” The perpetration of family violence is entirely antithetical to the element of mutuality which may generally be accepted as an element, at least to some degree, in a genuine relationship as a couple. It follows that family violence will always be highly relevant as one of the circumstances to be considered in determining whether, on review of all the circumstances of the relationship, the statutory test is met.
By reference to this authority, Mr Willoughby contended that the nature of the family violence in this case was such that the parties could not be said to have been “a couple living together on a genuine domestic basis” after 2018. Mr Willoughby submitted that the Husband’s perpetration of coercive and controlling family violence was pervasive, protracted and dominating by nature. He submitted that in a practical sense the Wife had no choice but to let the Husband stay living in the home and no choice but to let him invest money into it if he chose to.
Mr Bithrey contended that from 2018 to 2021 the parties were “a couple living together on a genuine domestic basis” notwithstanding the family violence the Husband perpetrated and notwithstanding the Husband’s periods of imprisonment. He said that the family violence was not inconsistent with there being a de facto relationship as there was no evidence that the Wife’s will was in any way overborne by the Husband’s violence. He submitted that the Husband’s family violence towards the Wife was a feature of their relationship throughout; though unfortunate, it was ‘part of human nature’. He submitted that there was no material change in the nature of the relationship from 2018 to 2021 and that the preponderance of relationship circumstances in s 4AA(2) were consistent with the de facto relationship being on foot. He also pointed to the late but significant financial contributions made by the Husband towards the home, arguing that he would not have made those contributions if he thought the relationship was ended.
In circumstances where:
·there had been a marked deterioration in the parties’ relationship from 2015 onwards as a direct result of the Husband’s family violence; and
·where by 2018 the parties were essentially living separate lives under the one roof; and
·they were only continuing to share a home together after 2018 because the Wife felt afraid of the Husband and powerless to evict him;
I am not satisfied that such indications of a de facto relationship as can be pointed to from 2018 onwards in fact bring the relationship within the statutory definition.
CONCLUSION & ORDERS
For these Reasons, I make the declaration and orders set out at the commencement herein.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 12 September 2023
[1] Paragraph 8
[2] Joint judgment of May, Strickland & Ainslie-Wallace JJ reported at 86,682
[3] Paragraph 94 of the joint judgment of Bryant CJ, Thackray & Aldridge JJ reported at 87,398
[4] In so holding, the Full Court approved of the earlier decision of Murphy JA in H v P [2011] WASCA 78
[5] The AVO is not specifically referred to in the affidavit material but its existence is apparent from paragraph [34] of these Reasons
[6] The Husband’s criminal history is exhibit 8. It suggests that he may have been in custody from 2010
[7] The Husband has no convictions for drug trafficking per se but does have a number of convictions for supplying drugs and, as will be seen, the Police have seized drugs and substantial cash from the home in the course of executing search warrants
[8] The Husband deposed that he paid for this work in 2018 but in the witness box admitted he was “bad with dates” and agreed that it could possibly have been in 2017. I consider 2017 to be accurate, particularly given exhibit 3
[9] The Husband deposed that he paid for this work in 2019 but in the witness box admitted he was “bad with dates” and agreed that it could possibly have been in 2017. I consider 2017 or early 2018 the most likely, particularly given that he went back into custody in 2018 and remained there until 2019
[10] Exhibit 7
[11] Annexure “V-04” to the Wife’s affidavit
[12] Annexure “B” to the Husband’s affidavit
[13] Annexure “C” to the Husband’s affidavit
[14] Exhibit 5
[15] Annexure “V-07” to the Wife’s affidavit
[16] Annexure “V-03” to the Wife’s affidavit
[17] Annexure “V-03” to the Wife’s affidavit; see also exhibit 6
[18] Annexure “V-04” to the Wife’s affidavit
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