Betts and Sheriff - [2012] FMCAfam 617

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETTS & SHERIFF

[2012] FMCAfam 617

FAMILY LAW – Property – de facto – threshold jurisdictional issue – whether parties were in a de facto relationship as at 1 March 2009 – found they were not – application dismissed.

Family Law Act 1975, s.4AA
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008; Item 86 of Part 2 of Schedule 1

Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148
Dahl & Hamblin (2011) FamCAFC 202
Fo v Haf (2006) QCAS 555
Jonah & White (2011) FamCA 221

Applicant:

MR BETTS

Respondent:

MS SHERIFF

File Number:

BRC 11932 of 2010

Judgment of:

Baumann FM

Hearing date:

5 October 2011

Date of Last Submission:

15 November 2011

Delivered at:

Brisbane

Delivered on:

28 June 2012

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Dr Sayers

Solicitors for the Respondent:

Harrington Family Law

ORDERS

The application filed 21 December 2010 be dismissed.
Any application for costs by the Respondent shall be made by written submissions, filed and served, within twenty-eight (28) days.
The Applicant shall file and serve any written submission in response to the application for costs within twenty-eight (28) days after receiving the Applicant’s submissions.
Unless otherwise ordered, any application for costs shall be determined on the papers in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Betts & Sheriff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 11932 of 2010

MR BETTS

Applicant

And

MS SHERIFF

Respondent

REASONS FOR JUDGMENT

Introduction

On 1994 the Applicant Mr Betts and the Respondent Ms Sheriff, who were both New Zealanders living in a Brisbane suburb, met and shortly thereafter commenced a relationship.
Neither party seeks to deny they had a relationship, however the Applicant says it was a de facto relationship which commenced in 1995 and continued until April 2010. The Respondent denies this is the case.
Because of the way in which a Court such as this has its jurisdiction founded by the Family Law Act 1975, a question of jurisdiction must first be answered before the Court can made any determination about any adjustment of property interests.
After commencing proceedings on 21 December 2010 the Court ordered on 17 June 2011 that the matter be listed for hearing on 5 October 2011. Although both parties had prepared extensive affidavits as to the relationship since 1994, the Court made it clear that in its view, the jurisdictional issue had to be determined as a threshold issue. The Court regrets that after final written submissions were filed on 4 November 2011, that these reasons for judgment were not delivered more quickly.

Definitions and jurisdiction

Section 4AA of the Family Law Act 1975 provides as follows:-
“De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
However, this Court (and the Family Court of Australia) only have jurisdiction to hear and determine de facto property cases where a couple have a relationship as a couple living together on a genuine domestic basis which was in existence at 1 March 2009 and continued thereafter.
The Act allows under Part VIIIAB (which contains s.90RA to s.90WA) that two or more periods can be aggregated for determining the required two year period of a de facto relationship (Dahl & Hamblin (2011) FamCAFC 202). Importantly, Item 86 of Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 makes it clear that the inserted Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant Schedule of the amending Act – namely, 1 March 2009.
The “essential issue” therefore, is whether a de facto relationship as defined by s.4AA was in existence at 1 March 2009.
The Applicant seeks a declaration of the type contemplated by s.90RD of the Act, namely that a de facto relationship was in existence at 1 March 2009. If this Court does not have jurisdiction, the Applicant may be able to pursue his claim in a State jurisdiction.
The issue to be determined is a “jurisdictional fact”. The term “jurisdictional fact” was held by the High Court in Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148 as:-
“The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.”
Clearly, the Respondent hoped to persuade the Court that in the interest of promoting finality or certainty and/or of minimising either the probability of further litigation or the complexity of further litigation, that the Court should consider whether there ever was a de facto relationship.
If the Court finds that a de facto relationship was in existence at 1 March 2009, then the Court has the power to declare pursuant to s.90RD the periods of the de facto relationship.
However, my view is that if the Court finds that there is no de facto relationship in existence at 1 March 2009, then it does not have the jurisdiction to declare periods of the de facto relationship prior to that date. Further more, depending on the actual terms of the legislation in any State or Territory which might then have jurisdiction (and the substantive law and other authorities applying in that State), any “findings” this Court might make could have little effect.
For these reasons, the Court will confine itself to the “essential issue” identified.

Credibility

Clearly, when a case such as this hinges almost critically on findings of fact, the parties’ credibility looms as an issue. This couple seemed to record many of their thoughts (at the time) in emails and many were produced for the Court to read and consider.
I also take into account that, although the Applicant was articulate, he was unrepresented at the hearing and his capacity to effectively cross-examine the Respondent was diminished.
In the end, it was not as much the facts that demonstrated the differences between the parties, but rather their perceptions of those facts seen, and deposed to, through their own prism. As is not in doubt, the parties did have a “relationship” for many years and the critical issue – and one which is importantly the only issue this Court must decide – is were they in “a relationship as a couple living together on a genuine domestic basis” – which is the statutory meanings of “de fact relationship” as defined under s.4AA of the Act – on 1 March 2009, or after that date.
By the time of the hearing before me on 5 October 2011, both parties accepted their relationship was over and I assess the growing disappointment of the deterioration of the personal relationship (in a sense accelerated by this litigation), had a greater affect on the Applicant’s testimony and perceptions than that of the Respondent. As I will soon analyse, the evidence of the witnesses relied upon by the parties added overall less assistance to the Court than the parties may have hoped. These comments are made about credibility generally without the clear finding at paragraph 31 of these reasons (the Centrelink documents) being diminished.

Relationship history from the parties’ perspective

Applicant

The Applicant relied upon his affidavits filed 31 March 2011 and 30 September 2011. Perhaps unsurprisingly, the Applicant was taken in cross-examination to a number of Centrelink documents which were attached to the Respondent’s affidavit filed 28 September 2011.
The Applicant is 55 years old and says he is in poor health. His primary income source is a disability pension. At the hearing the Applicant said he had no fixed abode. [Medical condition omitted]. The incident where the Applicant [medical condition omitted] occurred in November 1994 and embroiled the Applicant in a Court case where he was accused of attempted murder but was found not guilty by the jury.
The Applicant says the parties met in 1993 because his daughter [X] and the Respondent’s son [Y] were in the same class at [omitted] High School. The Applicant says that they started their relationship in February 1994 and although they maintained separate properties they “spent nearly every night together”. In 1996 the Applicant says the Respondent moved to [O] for work and in late 1997 he moved to Sydney, where he says the Respondent moved in early 1998 and “we cohabitated together as a family”, although [X] stayed in Brisbane with her grandmother and [Y] stayed in [O] initially. The Respondent’s youngest child [Z], moved to Sydney with his mother.
The Applicant in Sydney trained as a [occupation omitted], and says he worked in that role from 2001 to 2008. In 2008 whilst [employed] in Sydney, a ceiling fell on him causing permanent injury to his neck, left shoulder, arm and hand. The Applicant at paragraph 17 of his affidavit says:-
“17. Ms Sheriff and I were in a de facto relationship as evidence by:-
17.1The numerous letters, including love letters,

Ms Sheriff has written to me in which she confirms our relationship.
17.2Our living together on a genuine domestic basis in rented accommodation in Sydney.
17.3My renovation of the Property B property and our mutual agreement to said renovation.
17.4Our mutual decision to purchase the Property T property.
17.5Our dependence on each other financially and emotionally.
17.6We had a sexual relationship.
17.7We cared for and supported each other’s children.
17.8[Y] called me “Dad”.
17.9Grocery shopping every Saturday morning; and
17.10We were known as a couple.”
I do not propose, for the reasons given in the introduction to this judgment, to significantly discuss the voluminous correspondent and allegations leading up to the event in 2007 where, even the Applicant concedes (at paragraph 24) that:-
“24.I moved out of living with Ms Sheriff in 2007 because [Z] was returning home and she wanted to spend some time with [Z]. I understood and agreed to move out however we continued our de facto relationship as evidenced by numerous emails from Ms Sheriff to me throughout 2008 and 2009.”
The Applicant relied upon a number of emails grouped together as “Annexure WB-15”. I deal further with those annexures below.
The Applicant at paragraphs 41 to 50 gives evidence about, what he described as, “my raising of [Y] and [Z] and our integrated family”, including (at paragraph 49) the obvious pain he has experienced finding out in 2007 that he was not [X]’s biological father. He said, sadly, he is “no longer” in [X]’s life.
In view of the “essential issue” which the Court must decide, a need to exhaustively examine the events from 1994 to 2007 relating to the children [Z], [Y] and [X] does not arise.
The property transactions (referred to by the Applicant in paragraph 17 of his affidavit), are more particularly dealt with by the Applicant, who says:-
a)The Property B property was purchased by the Respondent in 1984. The Applicant was a neighbour when they met in 1994. Prior to the Respondent moving to [O], the Respondent decided to turn the property into a rental/investment property. The Applicant says he did some work on the property at that time (see paragraphs 75 to 84). In 2006/2007 the Applicant says “Ms Sheriff and I initiated a plan to build and increase our investments”. The Applicant lived in Brisbane during this period “for a number of months to organise and do the labour work on the substantial renovations of the Property B property and to source a property in [I] and the subsequent purchase of the Property T property”. Again, although the Applicant at paragraphs 89 to 96 gives details of the work he says he completed, a full examination of those allegations is not necessary as they were all completed well before 1 March 2009.
b)The Applicant claims, at paragraph 97 of his Affidavit, that:-
“97.During this time, Ms Sheriff and I decided to purchase another investment property and during the down times of the renovation of the Property B property, I would catch the train to [I] to look at houses to purchase. I inspected and surveyed at least 50 houses in [I] with real estate agents.
98.…
99.Eventually I narrowed the houses down to three choices and Ms Sheriff flew up from Sydney to help make the final decision. We decided to purchase Property T and it was purchased in Ms Sheriff’s sole name only because she had an interest only loan approved in her name for the interim period.”
The Applicant claims a sexual relationship was maintained between 1994 and “separation in April 2010”. The Applicant claims separation (which in this case I take it to mean termination) of the relationship occurred by the unilateral actions of the Respondent sending a “Dear John” email to him dated 5 April 2010.”
The Applicant says that the parties established that Friday night was “our date night” and that they got together on the Friday night “even when we were no longer living under the same roof from 2007”(paragraph 129). He further deposes that until separation in 2010, “Ms Sheriff and I would go shopping on Saturday mornings together” and that this continued “even after we were no longer living together under the same roof”.
Relevantly, the Applicant says that in December 2009 “Ms Sheriff and I were jointly invited to our friends [names omitted] wedding in [G] New South Wales and we attended as a couple” (paragraph 129).
Although the Applicant says that he and the Respondent planned the Respondent’s trip to the USA together, he did not go with her. He does say again relying on Annexure “WB-15”, that he received regular emails from the Respondent – some of them about what he claims was his role as the Respondent’s “fitness trainer”.
Under cross-examination by Dr Sayers for the Respondent, the Applicant was shown a number of Centrelink documents, signed by him and mostly in his handwriting. The Respondent was never described as his partner. He says after 2992 he began to describe the Respondent as “a flatmate”. The documents are consistent and generally speak for themselves. The claim for benefit received by the Centrelink [omitted] office on 9 March 2010 (being at a time before the “Dear John” email the Applicant refers to in his evidence), makes no admission of any relationship with the Respondent, despite swearing under cross-examination that “I only felt the relationship was over in April 2010 when the Respondent ‘severed’ the relationship”. The Applicant was clearly aware his answers he gave to Centrelink questions through the time he claims he was in a de facto relationship were inconsistent to his evidence now, and further that the answers were used to assess, as a New Zealand citizen living in Australia, his entitlement to Government benefits. The documents damage his credibility significantly in my view.

Respondent

The Respondent is born on the same day as the Applicant and therefore is also 55 years of age. She currently is a resident of New Zealand where she returned in September 2010. Apart from her affidavit filed 28 September 2011, which attached over 300 pages of Centrelink documents, the Respondent relied upon her (very similar) affidavits filed 21 February 2011 and 4 May 2011.
Focusing, as in my view this Court should, on the essential issue in dispute as earlier identified, much of the Respondent’s affidavits depose to events that occurred between 1993 to 2008 – which the Respondent describes as “History of the Friendship”. The Respondent says that the parties never “cohabited in Brisbane” although they were sexually intimate at times. At paragraph 9 the Respondent says:-
“9.…Mr Betts made it clear he was recovering from twenty years of a bad marriage and he was not prepared, wiling or able to enter into a committed relationship with me. I accepted his reasons. As I had already had two failed marriages at that time I was also more interested in a ‘no strings attached’ casual relationship.…”
In January 1996 the Respondent moved to [O] with her sons [Z] and [Y] where she lived and [worked]. She rented out her home at Property B to tenants. At this time the Applicant was dealing with the serious criminal proceedings arising from the incident in November 1994. The Respondent says she moved to Sydney in January 1998 “to boost my career”, taking up a position eventually after six months with [omitted]. The Respondent says, after a period she and the Applicant leased a flat at [M] “as co-tenants”.
Between paragraphs 17 to 47 of her affidavit sworn 4 May 2011, the Respondent gives her version of the relationship with the Applicant to about 2006. For reasons already recorded, it is not necessary for this Court to make findings about that period. Suffice it to say, that whilst the Applicant claimed they were effectively in a genuine domestic relationship and were cohabitating, the Respondent denied that to be the case.
It is clear that the parties did have a joint 50^th birthday party in August 2006, but the Respondent said by late 2006 “our relationship had deteriorated” and she says he was in another relationship with a lady named [name omitted].
The Applicant relied upon the draft will self-prepared by the Respondent in early 2007 in which the Applicant was named as a beneficiary. The discussions about the reasons for the terms of the draft will are disputed, however it is not disputed that in September 2008 the Respondent made a will, which she executed and the Applicant was not a beneficiary (see Exhibit 2). The Respondent says (at paragraph 52) that the month before preparing a new will (which was presumably in August 2008), “…I had told [Mr Betts] I considered our relationship to be at its end”.

The Respondent says that during 2007 and 2008 the Applicant travelled to New Zealand three times, however after he returned form one trip in September 2007 “we decided that it would be better to live separately and distance our friendship”. When he left, the Applicant “took all his belongings with him”. This is disputed by the Applicant.
On 16 October 2008, the Applicant sent an email to the Respondent, which is Annexure “A” to the Respondent’s affidavit. The email, in my view, speaks for itself and relevantly says, inter alia as follows:-
“…You stated that you have moved on, regarding your on line dating with a much older man, good luck with that [Ms Sheriff]. I can only assume that you have a committed relationship already. We have both decided for closure and what a shame that we cannot resolve our differences with help, and of course repair the issues which are pitiful to say the least. I am not going t move on with ANYONE until I KNOW that we are actually done and dusted. I love you and care for you and are very saddened by your actions. HOPE …XX. Closure, bring it on, is what you said to me, so here it is. There is two options:
1. We do de facto settlement of all chattels and investments and come to some comprise (sic) over the amount, this is the cheap way of doing closure and does not involved lawyers. There is mediation with counsellor they provide if couples can not agree. I will send the web sight (sic) to you so you can make your own inquiries. What I am asking for is Two-hundred fifty thousand dollars as an out of Court settlement. The standard fee $1400 so maybe we can go 50, 50 in this charge.
2. If we cannot agree on any settlement then we contact our lawyer and they thrash it out. I believe after watching recent proceedings that the lawyers get a lot of money for the fees incurred. This is a brief outline let me know how you feel Ms Sheriff. I have appointment tomorrow to give instructions. Hoping this all meets with your approval. Love always wb xxooooooo.”
This email by the Applicant (sent at 17.48.35 on Thursday 16 October 2008) appears to attach information from a Law Society of New South Wales website. Interestingly, it appears to be in response to an email sent to the Applicant by the Respondent at 1.49.35 that day saying:-
“I got an email from [name omitted] re. the next church service and it included this excerpt from one of her books. I thought you might find it meaningful and timely. This isn’t the way I wanted things to be [Mr Betts] but I can see how its got to this. For the time being its probably the only way we can take stock as individuals and move on with our lives. Take care [Mr Betts]. I only wish you the very best and thank you for all the love we’ve shared over the years. Love always [Ms Sheriff].”
The Respondent says that after this email exchange “I kept my distance form [Mr Betts]. We both posted profiles on the RSVP internet dating site and I started seeing other people…”, although after a “verbally aggressive and irrational incident with [Mr Betts] on New Years Eve 2009 (31 December 2009), I decided that I could no longer be in contact with him at all. Rather than to speak to him face to face, I sent him an email which is attached to his affidavit filed December 2010. Given his vulnerability at the time, I expressed and explained my desire not to see or speak with him again in the kindest and most supportive way possible” (paragraph 75).
At paragraphs 110 to 121 of the Respondent’s affidavit she gives her version of the improvement and management of her real estate interests, culminating in the sale of the Property B property in July 2010 and the purchase by her of a home in New Zealand with her fiancé Mr F.
In response to the Applicant’s claim that he and the Respondent attended the wedding of [names omitted] in December 2009 as a couple, the Respondent says that the Applicant was invited to attend as he was paid to [omitted]. The Respondent did concede, during the wedding weekend, they shared the same house and bedroom.

Other witnesses

The Applicant relied upon an affidavit of Mr C who was unavailable for cross-examination, as was his witness Ms P. Nothing of substance is deposed to in those affidavits which would support a finding that the couple were in a genuine domestic relationship as at 1 March 2009. Much of the evidence is hearsay in any event.
The Applicant relies on the train of emails being Annexure “WB-15” to show a continuing relationship. Those communications are consistent with a deteriorating relationship, but one where the parties still cared about each other. It is not in dispute that the parties had a relationship. The issue for this Court was whether a de facto relationship as defined by the Act, was in existence on or after 1 March 2009.
The witnesses relied upon by the Respondent were available for cross-examination. This was a difficult and emotional exercise for the Applicant. [X], a woman who he treated as a daughter for much of her infancy, confirmed she believed herself to be the daughter of the Applicant until 2007. She says that the Applicant told her in about 2007, he had separated from the Respondent. My sense from her evidence is that [X] has been hurt by what she sees as the Applicant withdrawing from her after the paternity tests in 2007. Whatever might be the situation in respect of that issue, the evidence of this witness corroborates a cessation of the relationship as she perceived it, in around 2007.
Ms T is a retired [omitted]. Although she has worked with the Respondent, she says that from January 2008 to April 2008 she stayed with the Respondent in her [M] apartment.
Critically, at paragraph 9 of her affidavit, she deposes to the Applicant (whilst [omitted] in 2008), telling her that “he did not want to continue any relationship with Ms Sheriff”, but that they both had an interest in cooking and that they therefore would hold dinner parties together. I found Ms T a believable witness and accept her evidence.
Mr F, who is now the fiancé of the Respondent, was previously a close friend of the Applicant and has known him for 35 years. He says in mid-2007, when the couple were visiting him in New Zealand, both of them “confided” in him some concerns about their relationship with the other, being:-
a)The Respondent said that her relationship with the Applicant was shaky. In July 2008 he says the Respondent rang him and said she was happy they were separated and she wanted “to close the relationship and move on”.
b)The Applicant told him in mid-2007 that his relationship with the Respondent “was over and they were going their separate ways”, subsequent meetings when the Applicant was in New Zealand visiting (or on one occasion attending a funeral), he says the Applicant told him of other intimate relationships. Eventually, Mr F shared this information with the Respondent in August 2008, and he says the Applicant found out and was “furious”.
The evidence of Mr F, from afar, and without any observations of the parties after 2007 (when at bets the relationship was described differently by both), does not assist greatly in determining the essential issue, although it does tend to support the Respondent.
The Respondent’s two sons, [Z] (now aged 26 years) and [Y] (now aged 32 years) detail at some length their recollections of the role undertaken by the Applicant in their life when they were younger. [Z] relevantly says he returned to live with his Mother at a until in [M] “so that she could share the expenses of living in the unit”. He continued to live there until April 2009. he says (at paragraph 7) that:-
“At that time [Mr Betts] was living in a unit at [omitted] but he would still occasionally come to visit my mother at the Unit.”
During this period [Z] was occupying the spare room and the Applicant would occasionally spend the night at the unit and on a few occasions during the period from late 2008 to April 2009, “he shared a bedroom with my mother”. His observations were that “the previously warm and loving relationship they enjoyed had degenerated”.
[Y] was less empathetic towards the Applicant than was [Z]. It must be called that he had not been living with his Mother since 1997. He is currently a publican in New Zealand and has nothing good to say about the Applicant. At paragraph 22 of his affidavit he says:-
“22.I went to stay with my Mother at the apartment where she was living at [M] in Sydney for a period of about 10 weeks in around May/June 2008. During that 10 week period I did not see Mr Betts on a single occasion which led me to understand that his relationship with my Mother had terminated. …”

Summary of findings on the statutory considerations

In the written submissions of Counsel for the Respondent, the Court was invited to consider the decision of the Supreme Court of Queensland – Court of Appeal in FO v HAF (2006) QCA 555 which was contended reveals the “guiding principle from all the above case law”. However I think for this case the observations of the principles to be applied is best described by Murphy J in Jonah & White (2011) FamCA 221, where his Honour (after considering the State authorities he referred to including FO v HAF (supra) said at [55] that:-
“55.Again, the approach there exemplified can be seen to be consistent with authorities in Queensland where a very similar legislative regime has been considered. Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together or a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.”
I now turn to those statutory considerations, with a particular focus on 1 March 2009 and thereafter.
The parties were not legally married or related by family to each other.
I am satisfied that although until sometime in 2007, the parties had lived under the one roof and had a sexual relationship, the relationship of that nature had come to an end well before 1 March 2009 and has not existed in that previous form since 1 March 2009.
It is not necessary to find whether the parties shared a common residence before 2007 in a genuine domestic relationship but they did not do so after 2007.
The sexual relationship between the parties, on both account, was regular in the early parts of the relationship and when they lived under the one roof – however from 2007 I am satisfied that whatever sexual relationship continued was spasmodic, irregular and had probably totally ceased by March 2009 (save perhaps for the wedding weekend at [G]). In this regard the evidence of the Respondent, and her sons, is to be preferred to that of the Applicant.
At all times, according to the Centrelink records, the Applicant was claiming and being paid as a single recipient of benefits. I am not satisfied that at 1 March 2009 there was any financial dependence and that the evidence shows no intermingling of the financial resources of the parties at anytime to any significant degree.
Apart from possibly some items of furniture, the Respondent acquired or continued to hold as her sole and exclusive property her interest in the Property B property and [I] property. Any contributions made by the Applicant to the Property B property were in 2006/2007 and the Respondent says she paid him for all his time and effort – including hire cars. I am not required to make a definitive finding on that dispute, however, I observe that seeing the Respondent owned the property since 1984 and had used her funds, and rental income, to preserve, maintain and improve the property, the Applicant’s own evidence only demonstrates a minimal contribution.
The Act requires me to consider “the degree of mutual commitment to a shared life”. I regard it as best to leave a fuller examination, if asked to do so, to a Court with the required jurisdiction, however I am satisfied that at 1 March 2009 no further or prospective mutual commitment to a share life existed. The actions of the Applicant in sending his “letter of demand” for $250,000 was, I accept, the last straw for the Respondent even though by that date the relationship was ambivalent at best. I had the benefit of seeing both parties in the witness box. The Applicant presented as a man who has lost everything. His [omitted] and further serious injuries from the falling ceiling had reduced him to poor health; his income earning capacity as a [omitted] has diminished; a child who he regarded as his daughter has been revealed to be the biological child of another and feels abandoned; he has no assets and lives in his car. The relationship which, I accepted he hoped would flourish, has gone and the Respondent is now in the arms of not only another man – but one of his best friends.
The Respondent has moved back to New Zealand; is engaged and has her career on the go. Her prospects seem as bright as the Applicant’s seem glum. However, I saw in the Respondent a true empathy for the Applicant – not because of his actions in commencing these proceedings – but because her decision to cease any real relationship (de facto or otherwise in mid to late 2008) has probably added to this man’s emotional decline. The comparison – even loving – tensor of many of the emails from 2007 are, in my view, an electronic method of letting him down easily.
The relationship was not registered. Since well before 2007 has the Applicant provided no care or support for the Respondent’s children. It is impossible to determine the level of his previous involvement, save to observe that [Z] says, at best he acted as a friendly adult – although the young man’s birthday tribute suggests some feelings for the Applicant at that time may have remained.
The “reputation and public aspects of the relationship” had ceased at least in 2007 however again I do not believe it is appropriate to make more extensive findings about earlier periods. The attendance at the wedding in December 2009 is more than adequately explained by the Respondent and I accept her evidence in preference to the Applicant’s version.

Conclusion

Based on the findings set out above, no de facto relationship existed between the Applicant and the Respondent as at 1 March 2009 nor has it existed since that time.
As a result, this Court does not have jurisdiction to consider further the Application. It must be dismissed accordingly.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Baumann FM

Date: 28 June 2012