Beulen and Tobin
[2018] FCCA 3794
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEULEN & TOBIN | [2018] FCCA 3794 |
| Catchwords: FAMILY LAW –Jurisdiction – de facto relationship – declaration made under s.90RD (i). |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90RD, (1) |
| Cases cited: Jonah & White [2011] FamCA 221 Sinclair v Whittaker [2013] FamCAFC 129 Lynam v DG of Social Security (1983) 52 ALR 128 Elias & Elias (1977) FLC 90-267 Jordan & Jordan [1996] FamCA 15 Benedict & Peake [2013] FCCA 332 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS BEULEN |
| Respondent: | MS TOBIN |
| File Number: | LNC 277 of 2018 |
| Judgment of: | Judge McGuire |
| Hearing date: | 17 December 2018 |
| Date of Last Submission: | 17 December 2018 |
| Delivered at: | Launceston |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Higgins |
| Solicitors for the Applicant: | McGrath & Co |
| Counsel for the Respondent: | Mr J Petersen |
| Solicitors for the Respondent: | Petersen Legal |
ORDERS
That pursuant to section 90RD(1) of the Family Law Act 1975 (as amended) it is declared that there was a de facto relationship within the meaning of the legislation between Ms Beulen and Ms Tobin between approximately 2003 and 10 August 2017.
That the parties must attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria) (noting an appointment in Location A on a date to be advised).
That within fourteen days each legal representative or self-represented litigant is to contact Relationships Australia (Victoria) ([email protected] or 1800 679 491) to confirm arrangements for mediation.
That within fourteen days of being notified of the nominated FDRP, each party must send to the FDRP documents outlining the dispute including the following :
(a)a copy of the parties’ respective applications, affidavits and Financial Statements;
(b)a full list of assets ( including any superannuation ) and liabilities including values;
(c)details of alleged financial contributions;
(d)relevant future needs factors pursuant to section 75(2) or 90SF(3) of the Family Law Act 1975;
(e)the proposal for property settlement; and
(f)copies of any current intervention or restraining orders.
That unless otherwise exempted from payment, the parties must each pay an amount equivalent to half of the Conciliation Conference fee in respect of the above mediation in accordance with the Family Law (Fees) Regulation 2012 prior to the property mediation.
That unless agreed in writing within 7 days of the date of these Orders, for the purposes of the Mediation only, then the parties jointly obtain valuations of any asset the value of which is in dispute such to be filed on Affidavit not later and 2 clear working days prior to the Mediation and that the parties to be equally responsible for the costs of the preparation and provision of the valuation.
That leave is granted to the parties to file with my Associate executed Consent Orders/Terms of Settlement prior to the adjourned date and if appropriate orders may be made in Chambers and the above adjourned date may be administratively vacated.
That the matter be adjourned for directions in the Federal Circuit Court at Launceston on Monday 25 March 2019 at 12.00 noon.
IT IS NOTED that publication of this judgment under the pseudonym Beulen & Tobin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 277 of 2018
| MS BEULEN |
Applicant
And
| MS TOBIN |
Respondent
REASONS FOR JUDGMENT
Applications
Ms Beulen is the applicant in a preliminary argument as to whether the Court has jurisdiction in property proceedings and seeking a declaration pursuant to section 90RD of the Family Law Act (1975) ("the Act') that the parties were in a de facto relationship within the meaning of section 4AA of the Act between 2003 and 10 August 2017.
The respondent, Ms Tobin, opposes the application. She agrees that the parties were in a same-sex relationship but only between 2003 and 2004. She says that the thereafter the relationship took on a different status being, firstly, as friends and housemates and then later as carer/patient for the purposes of obtaining Centrelink benefits and apparently based on Ms Beulen’s diagnosis of schizophrenia.
It is not disputed that the parties shared the same residence or residences between 2003 and 2017. They firstly lived in South Australia and more lately in Tasmania.
Relevant Law
The Act at section 90RD(1) provides that the Court can make a declaration as to the existence of a de facto relationship. The relevant amendments to the Act came in 2009. Obviously, the respondent in the matter now before me argues that if there was a de facto relationship then it did not continue after 2004. The applicant says that the relationship was ongoing until August 2017.
Trial judges receive some assistance in determining what is usually an issue and dispute of credit from section 4AA of the Act which provides:
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 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 an 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 two persons of different sexes and between two persons of the same sex;
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in a another de facto relationship.
The applicant asserting a de facto relationship carries an onus of establishing that status and that it existed for the requisite period including an onus to prove the qualitative factors of the relationship. For obvious reasons, a party denying the relationship carries no onus to prove the negative.
The Applicant’s Case
The applicant relies on her affidavit sworn 30 November 2018.
She says that the parties met as teenagers and commenced their relationship and living together in 2003 in South Australia. They lived together in properties owned by family members but moved to Tasmania in 2005. She says that a motivation for moving to Tasmania was the availability of IVF facilities for same-sex couples. She says that a property was purchased in Location B and concedes the property was purchased in the name of the respondent and with a mortgage obtained only in the name of the respondent.
She says that the parties lived consistently in that property until separation in 2017.
The applicant says that there were incidents of family violence during the relationship and that her reports to Tasmania police note the parties being in a same sex intimate relationship.
She says that the parties co-operated in the IVF process on two occasions in 2009 and 2011 albeit unsuccessfully.
The applicant says that they lived a quiet life in Tasmania but took holidays together and had family members visited them in Tasmania with some public outings and recognition of their relationship in Tasmania. She says that the parties undertook a 'wedding' type ceremony in a park in Location B albeit without witnesses or legal authority but that they mutually enshrined their relationship then with like tattoos.
The applicant brings corroborative evidence from a number of witnesses. There is an affidavit from Ms C. That affidavit is sworn 3 December 2018. Ms C is a midwife previously employed at the Location A IVF clinic. She produces documents from two separate consultations with the clinic both containing the names of the parties to these proceedings and asserted signatures of each of Ms Beulen and Ms Tobin. Ms C deposes that she did not verify the identification of either party and can put her evidence no higher than saying she met with two people.
Ms Beulen also adduces evidence from her sister, Ms N Beulen, and mother Ms R Beulen. Their affidavits are both sworn 30 November 2018. They both gave evidence and were cross-examined. Their evidence is strongly corroborative in their observations over a period of time consistent with the applicant and respondent being in an intimate, romantic and committed relationship. Ms N Beulen, in particular, speaks of a frequency of contact with her sister and her observations or understandings of a continuing relationship between the two parties. She provides evidence of receiving joint gifts and cards from the applicant and the respondent.
Ms R Beulen gives evidence at [17] as follows:
In March 2008 my husband and I travelled to Tasmania for around two weeks to visit Ms Beulen and Ms Tobin. We took them sightseeing and took them out for lunch and dinner paying for all their expenses. We also put $150 on their power account and bought them groceries to help them out. During this trip Ms Beulen and Ms Tobin acted like girlfriends, they would hold hands and cuddle.
The Respondent's Case
The respondent concedes that there was an intimate relationship between she and the applicant but only for approximately 12 months. She says that the relationship thereafter was one of simple friendship and later one of carer/patient.
Ms Tobin says there was no sexual relationship from about 2004 or 2005. She says that they kept separate bedrooms in their homes.
The respondent points to the fact that during the relevant period she purchased a home in Location B and that home was registered in her sole name and the mortgage taken out in her name alone.
The respondent denies having attended the IVF clinic and asks the Court to note discrepancies in the two signatures alleged to be hers.
The respondent argues that the official status of their relationship certified by Centrelink is indicative of there being no de facto relationship but rather one of carer/patient.
The respondent says that a series of text messages adduced by the applicant and asserted to be between the applicant and respondent at around the time of separation are concocted and that there is no evidence given by the applicant confirming the respondent's telephone number at the time.
Credit
Both parties gave evidence and were cross-examined. I found neither to be a more or less impressive witness than the other. I did observe Ms Beulen to be overly open and candid in her responses with a tendency to agree to propositions put to her by opposing Counsel and perhaps inconsistent with the suggestion by Ms Tobin that Ms Beulen is capable of sophisticated concoction and fabrication of evidence to support her case such as the above-mentioned email communications and the IVF procedure
Neither party retreated to any great extent from their substantive claims in their cross-examinations.
I similarly found Ms N Beulen and Ms R Beulen to be impressive witnesses. I did not observe them to be overly partisan and each easily withstood cross-examination and challenge.
Findings and Consideration
Unlike a marriage where there is unambiguous evidence such as a marriage certificate and marriage celebration, the definition and/or fact of a de facto relationship is often clouded in the subjective understandings of the participants and interpretation of the surrounding empirical evidence. As Murphy J insightfully observed in Jonah & White[1]:
The issue here is, in my view, not so much the veracity or reliability of the parties’ accounts of events, but rather, the picture presented by the totality of them and the conclusions resulting there from.
I consider that the evidence of each of the parties was affected significantly by the fact that their recollections now, in respect of events past, was refracted through the prism of their own perceptions of the relationship and of the varying degrees of disappointment felt by each at its demise…
[1] [2011] FamCA 221
Importantly for this determination, it is one for the Court and not necessarily for the parties themselves and as observed by the Full Court in Sinclair v Whittaker[2] as follows:
Given the nature of the definition of a de facto relationship in the Act, the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative.
[2] [2013] FamCAFC 129
Clearly, the participants to a de facto relationship have often not engaged in a definitive ceremonial or registration process. The Act itself notes the lack of precise definition and offers only non-determinative indicators to assist trial judges in determining what is or is not essentially a circumstance of merged lives and genuine domestic commitment.
In the matter now before me, and not unusually in such considerations and disputes, there are factors which argue both for or against the finding of a de facto relationship and which impact on what is ultimately a discretionary determination and as noted eloquently by Fitzgerald J in Lynam v DG of Social Security[3] thus:
Each element of a relationship draws its colour and its significance from the other elements some of which may point in 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 attitudes and activities means that there will be an almost infinitive 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… meets the statutory test.
[3] (1983) 52 ALR 128
The factors here which argue against a finding of a de facto relationship are put strongly by Counsel for the Ms Tobin and with some merit and include the following: –
(a)Although the parties admit sharing a residence for some 13 or 14 years, there is little or no evidence of mutual financial activity. There is no evidence of joint bank accounts. The only significant purchase during the relationship was of a residential property at Location B and this was made solely by Ms Tobin with a mortgage obtained in her name and with the home registered solely in her name. Ms Beulen's evidence as to financial contribution was vague, uncertain and uncorroborated;
(b)Both parties agree that during the course of their cohabitation they obtained Centrelink approval for payment on a carer/patient basis with Ms Tobin being the designated carer of Ms Beulen. I infer that representations were made by both parties to Centrelink in order to obtain the benefit and inconsistent with them being in a de facto relationship. This, of course, raises considerations under what is colloquially known as the Elias principle[4]. Although later cases[5] have diluted the consideration from the status of 'principle', it remains relevant that where a party has made a prior representation to obtain a benefit and then comes to Court making a contrary representation, then a Court should act cautiously in accepting the latter statement. Suffice to say that even later authority suggests that in considering whether to apply the principle the Court must take the assertion of fact at its highest[6]. Relevantly, Ms Beulen deposes at [34] – [36] of her affidavit:
[4] Elias & Elias (1977) FLC 90-267
[5] Jordan & Jordan [1996] FamCA 15
[6] Benedict & Peake [2013] FCCA 332
In 2009 Ms Tobin was in receipt of Newstart Centrelink benefits. She got sick of having to apply for jobs all the time, so she raised the idea of becoming my carer seeing as I was in receipt of a Centrelink disability pension. I agreed to this as I wanted it to be easier for her to receive Centrelink benefits. As such, we went to see my general practitioner regarding Ms Tobin becoming my carer. My general practitioner gave approval for this and Ms Tobin applied to Centrelink and started receiving Centrelink carer’s payments.
Nothing changed in our relationship after Ms Tobin became my carer, as Ms Tobin already took me to all my psychologist and psychiatrist appointments. She continued to prevent me from taking my mediation (sic).
Ms Tobin and I remained in a de facto relationship whilst she was in receipt of the carer payment.
Ms Tobin deposes at [5] of her trial affidavit:
Throughout our time together there were repeated filings with Centrelink that stated we were not in a de facto relationship.;
(c)Ms Tobin’s Counsel argues that generally the Court should be cautious in respect of the credit and honesty of the applicant. Notably, it seems that in about 2009 the applicant's relationship with her extended family, including her witnesses in this matter, significantly broke down due to the applicant being dishonest with her family in respect of claiming she was pregnant. Counsel for the respondent argues that Ms Beulen has a demonstrated capacity to be dishonest and in issues of credit then the Court should prefer the evidence of Ms Tobin;
(d)The respondent denies and was consistent in those denials in cross-examination that she was not a signatory to any IVF process and despite it being asserted that her signature appears on the relevant documentation and, secondly, that she was not a participant in asserted text message communications with Ms Beulen in the days following the physical separation in August 2017. Ms Tobin points out that the witness Ms C concedes that she did not verify the identity of the signatories to the IVF documents. Ms Tobin also asserts and adduces evidence that her mobile telephone number does not appear on the documents presented by Ms Beulen to evidence the alleged text message conversations;
(e)Counsel for Ms Tobin argues that the carer/patient relationship identified with Centrelink is consistent with Ms Beulen's conceded diagnosis of schizophrenia and other associated conditions;
(f)Counsel for Ms Tobin submits that there is a dearth of any evidence of a public representation or acknowledgement of Ms Beulen and Ms Tobin as a couple save and except from family members who may be partisan.
To the contrary, however, there is also evidence left for consideration consistent with there being a de facto relationship between Ms Beulen and Ms Tobin and including the following:
(a)It is agreed that the parties resided together for a considerable period being from about 2003 until August 2017. They did so in circumstances where they moved from South Australia to Tasmania;
(b)There is corroborating evidence in documents subpoenaed from the police in respect of alleged domestic violence issues where Ms Beulen asserts on more than one occasion and including over some years that she and Ms Tobin were in a domestic/lesbian relationship;
(c)Ms Beulen adduces corroborating evidence from her mother and her sister supporting her contentions of a de facto relationship and noting their observations consistent with indicators of a romantic and de facto relationship;
(d)In her evidence in Court Ms Tobin volunteered that her own mother had visited the shared residence of the parties on at least one occasion with the implication being that the mother would have corroborated that the parties did not share a bedroom and were not in a de facto relationship. Ms Tobin did not adduce evidence on affidavit from her mother and her Counsel conceded in final submissions that this leaves open for the Court to make an inference that the evidence of the mother would not have assisted Ms Tobin's case and consistent with the well-known principle in Jones v Dunkel[7].;
(e)There is prima facie evidence in the form of the IVF documentation that Ms Tobin was a party to the execution of those documents and, secondly, prima facie evidence in the form of the text messages asserted by Ms Beulen following separation and which indicate the fact of a of a domestic relationship between the two participants. The question for the Court here is whether to accept the evidence of Ms Tobin that each of these documents are concoctions or fabrications by Ms Beulen including the forgery of Ms Tobin's signature or whether the documents speak for themselves?
(f)Similarly, there are documents in the form of congratulatory cards from Ms Beulen to members of Ms Beulen's family which include reference to the respondent and consistent as an indicator of a domestic relationship. Again, this consideration must be seen against the blanket denials by Ms Tobin;
(g)Ms Beulen gives evidence of mutual commitment and enjoyment of a relationship including of a wedding type ceremony undertaken by the parties (albeit without witnesses), mutual tattoos, and mutually enjoyed holidays and some social activities. Again, these assertions must be seen against the denials by Ms Tobin of them being indicators of any relationship and a blanket denial in respect of a wedding type ceremony.
[7] (1959) 101 CLR 298
Conclusions
I have had the benefit of seeing and hearing both the applicant and the respondent give their evidence and be cross-examined. This is an obvious and distinct advantage where I must make findings of credit such being on the balance of probabilities. My impression from hearing and considering the evidence is that this is not a matter where there is an honest conflict of subjective understandings of these participants as to the nature of their relationship. Rather, I prefer that one or other these parties has been less than honest in the evidence to this Court.
On the balance of probabilities, and on reflection, I am satisfied that there was a de facto relationship between Ms Beulen and Ms Tobin. I place reliance and weight upon the following factors in reaching this determination:
(a)That the relationship endured over a period of some 13 or 14 years and included a mutual move of residence between South Australia and Tasmania;
(b)There is no evidence of either party entering into any other romantic or domestic type relationship;
(c)The applicant was not challenged in her evidence of a sexual relationship which endured until approximately 2017;
(d)There is there is prima facie evidence of contemporaneous statements made by Ms Beulen to the police of a relationship consistent with a de facto relationship and I place greater weight on these statements than I do on what may be seen as a mutual fraud on the Department of Centrelink, and I generally accept the explanation given by Ms Beulen in respect of the representations made to Centrelink;
(e)There is corroborative evidence adduced by Ms Beulen from her mother and her sister consistent with there being a de facto relationship whereas I do draw the inference available to me under Jones & Dunkel (supra) and without explanation by Ms Tobin that the evidence of her mother would not have assisted her case.
(f)I generally prefer and accept the evidence of Ms Beulen in respect of the IVF documents evidencing the participation of both Ms Beulen and Ms Tobin and the evidence of the text messages asserted by Ms Beulen to be between the parties at around August 2017 and where my observations of Ms Beulen were not of a person capable of the sophisticated concoctions asserted by Ms Tobin in respect of forged IVF documents and/or fabricated text messages which themselves do not, by reason of their content, read as an exercise in concoction for the purpose of this application.
Consequently, there will be a declaration pursuant to section 90RD (1) of the Act that Ms Beulen and Ms Tobin were in a de facto relationship for the purposes of the Act and that the relationship continued from about 2003 until 10 August 2017. I will also make procedural orders for the continuation of property settlement proceedings between the two.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 21 December 2018
0
5
2