Brenna & Kolby
[2023] FedCFamC2F 1523
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brenna & Kolby [2023] FedCFamC2F 1523
File number(s): BRC 12538 of 2021 Judgment of: JUDGE COPE Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – de facto relationship – discrete issue – dispute as to duration of the de facto relationship – whether applicant is out of time to bring property settlement proceedings – declaration as to date and duration of de facto relationship – where the applicant is out of time to bring property proceedings – where the applicant has not demonstrated hardship – declaration made – leave refused – application dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 44, 90RD, 90SM
Cases cited: Althaus and Althaus (1982) FLC 91-233
Edmunds & Edmunds (2018) FLC 93-847
Fairbairn v Radecki (2022) 400 ALR 613
Gadzen & Simkin (2018) FLC 93-871
Hall and Hall (1979) FLC 90-679
Radecki & Fairbairn (2020) FLC 94-001
Sharp v Sharp (2011) 50 Fam LR 567
Whitford and Whitford (1979) FLC 90-612
Division: Division 2 Family Law Number of paragraphs: 131 Date of hearing: 6 April & 16 May 2023 Place: Brisbane Counsel for the Applicant: Mr Moutasallem Solicitor for the Applicant: Millennium Lawyers Solicitor for the Respondent: Not to be disclosed ORDERS
BRC 12538 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRENNA
Applicant
AND: MS KOLBY
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.It is declared pursuant to s 90RD(2) of the Family Law Act 1975 (Cth) (“the Act”) that for the purposes of any order pursuant to s 90SM of the Act, Mr Brenna and Ms Kolby were in a de facto relationship between the following dates:
(a)2008; and
(b)May 2016.
2.The application by the applicant for an order granting leave pursuant to s 44(6) of the Act to commence proceedings under Part VIIIAB of the Act and in particular s 90SM of the Act is refused.
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 COPE
PART 1: INTRODUCTION
The proceedings were commenced on 20 September 2021 by the applicant de facto husband, Mr Brenna (“the applicant”). The de facto wife, Ms Kolby (“the respondent”), filed a Response on 10 January 2022.
It is undisputed that the parties were in a de facto relationship. There is however a factual dispute as to when the de facto relationship commenced and also as to the date of final separation. The date of separation is significant as if the respondent is correct then the applicant is out of time to commence proceedings and this court will then need to consider whether to allow leave to proceed out of time.
There are separate proceedings on foot in relation to the care of the two children of the relationship being:
·X born in 2013 currently aged 10 years; and
·Y born in 2014 currently aged 8 years.
The applicant gives evidence that final separation occurred in late 2020 conceding an earlier separation but arguing a subsequent reconciliation occurred. On his evidence final separation occurred about ten years after the date of the commencement of the relationship.
The respondent maintains that the parties separated on a final basis in March 2016 being an eight year de facto relationship. Her evidence is that the parties lived under the one roof from time to time thereafter but did not reconcile other than for a few weeks in 2018. Her evidence is that, at the time they met, the applicant was involved with a criminal organisation. She gives evidence, which remained consistent under cross examination, of a relationship characterised by violence and threats. Her evidence is that post separation she was too fearful of the applicant to deny him entry to her home or to refuse to go on family outings with him.
On the applicant’s evidence the main asset of the relationship was real property at B Street, Town C (“the Town C property”). That property was purchased in 2018 in the respondent’s sole name for the sum of $480,000, with a mortgage obtained in the respondent’s sole name. The property has since been sold by the respondent for $927,000. The applicant’s evidence is that the parties were in a de facto relationship at the time of purchase, that he contributed to the deposit and mortgage repayments, and that he made non-financial contributions to that property.
The respondent’s evidence is that the Town C property was purchased and sold post separation. On her evidence the applicant lived in a separate room in that property from time to time and made minimal financial and non-financial contributions to the property.
Surprisingly for a matter where the dates and the extent of contributions were of great significance, little documentary evidence was produced to the court, and much of that was received in the days immediately prior to the first day of trial – much of it from the respondent.
Issues for Determination
The following issues require determination:
(a)What was the date of separation;
(b)Was the Initiating Application filed within the two year time limit prescribed by s 44(5) of the Act; and
(c)In the event that it is determined that the Initiating Application was filed outside of the two year time limit, should leave to proceed out of time pursuant to s 44(6) of the Act be granted to the applicant.
Orders sought
In the outline of case filed on 3 June 2022, the applicant seeks declarations as to the existence and date of termination of a de facto relationship and dismissal of the respondent’s Response. In the alternative he seeks leave to proceed out of time. In either event he seeks a costs order against the respondent.
The respondent seeks dismissal of the applicant’s Initiating Application and Reply and a costs order.
PART 2: THE EVIDENCE
An application was made by the respondent to allow her evidence to be taken by means of telephone link. Leave was granted given the allegations of family violence and where I was satisfied that I was able to assess the credibility of the respondent via electronic means. The applicant appeared in person on the first day of trial however all parties and their legal representatives appeared via electronic means on the second day.
I have considered and taken into account the parties’ evidence as outlined in the material filed and adduced under cross and re-examination. Whilst I do not address each and every piece of evidence due to the limitations of a written judgment, I have considered all the evidence before the court and applied the appropriate standard of proof as set out in s 140 of the Evidence Act 1995 (Cth).
I will address my findings here about the parties and the basis for those findings but parts of the evidence relevant to the questions for determination shall be considered.
Material Read
The parties helpfully filed detailed case outlines or outline of submissions documents in the proceedings.
The applicant relied on:
(a)Reply to Response filed 24 May 2022;
(b)Affidavit of the applicant filed by leave on 6 April 2023;
(c)Affidavit of applicant sworn on 14 July 2022.
The respondent relied on:
(a)Amended Response to Initiating Application filed 23 March 2022;
(b)Affidavit of the respondent filed by leave on 6 April 2023;
(c)Affidavit of the respondent filed on 5 July 2022;
(d)Affidavit of the respondent filed on 4 March 2022.
The following material was tendered:
Exhibit No Description of Exhibit Tendered by: H1 Two stamped photos that did not include date stamps H 16/05/2023 H2 Coloured photos used during cross examination H The Applicant De Facto Husband
The applicant for the main part presented well. He initially answered questions freely and made sensible concessions as regards some changes to his evidence.
However, as the cross examination continued, his temper and patience became frayed. This was particularly so when it came to the ownership of and contributions to the Town C property. He repeatedly talked over the solicitor for the respondent, raised his voice and occasionally yelled. He said words to the effect that he “did not realise she would do this to me and screw me over”.
A short break was taken at one stage to allow the applicant to regain his composure, but he continued to struggle to accept the process of cross examination. He gave long answers in evidence that did not answer questions. He was clearly resentful of what was, in reality, a particularly gentle cross examination.
The applicant denied being made bankrupt giving evidence when pressed that it was a “voluntary” bankruptcy; that he was not “made” bankrupt. He did not know how long he would be a bankrupt. The Initiating Application stated that the applicant was not a bankrupt when at that time he was. It was put to the applicant that at the first return date his solicitor advised the court that he was not a bankrupt. The applicant’s evidence was that he was not present on that occasion. On the evidence before the court, I cannot hold him responsible for what his lawyer may have said.
The applicant’s timeline of the relationship changed after the respondent served an affidavit annexing text messages and other documents to support her evidence of separation in 2016. The applicant then conceded that position and on his amended evidence the parties did not live in Suburb D for three years, as he originally alleged, but rather separated shortly after moving there; acknowledging separation had occurred by June 2016. He then alleges reconciliation occurred late in 2017 (not 2019 as per his earlier affidavit) and that the relationship was ongoing from there until on or about late 2020.
The applicant points to a series of events and documentary evidence after 2016 to support his contention of an ongoing de facto relationship. I shall review that evidence later in this judgment.
Although the applicant was able to be very specific about the addresses where the parties lived from time to time, on his evidence, he was consistently vague, unable to answer or downright wrong about dates of separation and cohabitation and living under the one roof. He was consistently unable or unwilling to answer questions about time frames or dates, whether it was about separation and reconciliation, employment, his movements between locations or leases. Given the importance of those dates and details this was a surprising failure on his part.
As to what were at times significant changes to his evidence, his position was to the effect that the reactivation of iCloud and the attendant access to photos, together with the respondent’s documentary evidence, refreshed his memory. He produced two photos of the children and gave evidence that they were taken in the respondent’s parent’s home in 2016 shortly after that separation. That was confirmed by the date stamp. This establishes nothing other than he spent time with the children on those dates, presuming the date stamp is correct. He himself does not argue reconciliation on those dates.
He is clearly an intelligent man, however I formed the view that his judgment and memories were unreliable.
The Respondent De Facto Wife
The respondent was a more impressive and consistent witness than the applicant. She made concessions when needed and was consistent and reliable in her evidence.
Further detail of her relevant evidence is addressed in the consideration and determination portion of this judgment.
Findings
I was satisfied that the applicant was trying to give a good account of himself. I did not form the view that he was being deliberately untruthful despite the significant changes to his evidence. It was clear that he felt genuinely hard done by and believed that the respondent was attempting to deprive him of what he sees as a rightful entitlement to the Town C property.
However, whether he viewed himself to be in a de facto relationship and whether it was in reality a de facto relationship in terms of the legislation may well be two very different matters.
The applicant’s evidence was that the respondent gave him a new phone two months prior to separation and nagged him to use it – implying that her intention was to destroy or lose evidence that was held on his original phone. I do not agree due in part to the fact that the respondent had misplaced one of her own phones and the crucial evidence it contained was discovered only shortly prior to trial. If she was operating on a plan then she would have kept very careful track of such important evidence.
I did however form the view that the applicant believed what he wanted to believe and exaggerated his contributions and time frames to fit his narrative. Thus, the few weeks the parties lived together in Suburb D became three years in his memory. An enormous time difference that was disproved by independent evidence.
It beggars belief that the applicant did not move heaven and earth to obtain documentary evidence about his claims of financial and non-financial contributions. Rather he produces only one Westpac receipt reflecting one mortgage repayment, and only one receipt reflecting payment of rates to support his contention of regular and ongoing payments.
PART 3: THE LAW
A “de facto relationship” is defined in s 4AA of the Act, which provides:
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 (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
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.
(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.
In Fairbairn v Radecki (2022) 400 ALR 613, the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia in Radecki & Fairbairn (2020) FLC 94-001.
The High Court held:
6.The Act contains no exhaustive definition of the term ‘breakdown’, save that s 4 of the Act relevantly provides that in relation to a de facto relationship, it ‘does not include a breakdown of the relationship by reason of death’ …
…
21.…The primary judge found that the respondent’s conduct during the demise of the appellant’s mental capacity was inconsistent with a ‘fundamental premise’ of their relationship, namely the strict separation of their assets. That inconsistent conduct, all of which occurred while the appellant was ‘labouring under an incapacity’, comprised: the entry into a new enduring power of attorney that ‘favoured [the respondent’s] rights over hers’; the respondent instructing solicitors to prepare an updated will ‘on terms vastly more favourable to him’; the respondent’s ‘unwillingness to cooperate’ with the appellant’s children in the administration of her affairs; the respondent’s ‘persistent’ refusal to permit the Trustee to sell the home … while ‘neglecting to pay any of the [appellant’s] care costs’, thus depleting her estate; the respondent’s proposal that the appellant’s ‘super be used in the first instance to meet her costs’, and then his subsequent proposal that ‘he pay the … fees in the first instance and be reimbursed by the [appellant’s] estate’; and the respondent’s ‘ongoing and deliberate frustration’ of the Trustee’s lawful administration of the appellant’s financial affairs. The primary judge found that this conduct was ‘unequivocally indicative of and consistent only with … the cessation of the de facto relationship as it previously existed’. …
…
23.…The Full Court reviewed the conduct identified by the primary judge. None of the conduct was found to be fundamentally inconsistent with a continuing de facto relationship …
The High Court continued:
33.… cohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
39.The language of s 4AA of the Act and its reference to ‘living together’ requires no different approach to determining whether a relationship exists of the kind defined. ‘Living together’ … should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist.…
In this case the parties now agree that the de facto relationship broke down in 2016, though the exact date is not clear, the question is whether the de facto relationship was subsequently resumed and if so when it recommenced and when it ultimately ended.
Pursuant to s 90SM of the Act the timeframe for making a claim is set out in s 44:-
Proceedings in relation to de facto relationships
(5) Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
…
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
(Emphasis added)
Should I decide that the de facto relationship ended on the date stipulated by the respondent, the applicant seeks an order in the alternative, that he be granted leave pursuant to s 44(6) of the Act to file his application for property settlement out of time.
The court will only grant leave under s 44(6) after the end of the standard application period if it is satisfied that “hardship would be caused to the party, or a child if leave were not granted”.
In Whitford and Whitford (1979) FLC 90-612. (“Whitford”) at 78,144 the Full Court said:
[O]n an application for leave under s 44(3), two broad questions may arise for determination. The first of these is whether the court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the court is not so satisfied, that is the end of the matter. If the court is so satisfied, the second question arises. That is whether in the exercise of its discretion the court should grant or refuse leave to institute proceedings.
(Emphasis added)
Hardship in this legal context is addressed later in these reasons.
PART 4: CONSIDERATION & DETERMINATION
What is the date of separation
This involves a review of the parties’ evidence with particular reference to the legislation and what if anything changed.
There is no dispute that a de facto relationship existed. What is in dispute is when that ended.
The duration of the relationship
The parties agree that they were in a de facto relationship from either 2008 or 2010 though to March or May 2016. It is of little moment whether the end was in March or May 2016. The issue is whether what occurred after will suffice to satisfy the court that the de facto relationship was resumed.
Applicant’s evidence
The applicant’s evidence is that the de facto relationship commenced in 2010 and ended in or about late 2020.[1]
[1] Reply to Response filed 24 May 2022 (as to date of separation).
The applicant’s original affidavit evidence is that there was one period of separation from in or about 2018 that lasted for about a year with reconciliation occurring late in 2019. His affidavit evidence is that the respondent attended his home for a party in late 2019, they decided to rekindle the relationship and to “give things another go”. The date of reconciliation being 2019 was repeated in his affidavit filed 24 May 2022. In his trial affidavit he repeated that there was a period of separation from 2018 to 2019 after living in Suburb D for three years.
The respondent then on 5 April 2023 produced many texts that gave evidence contrary to that claim, supporting her evidence of separation in 2016. The majority of those texts were to and from an unnamed third person. The respondent advised that these texts were retrieved from a lost device which had just that week been found.
In his affidavit filed 6 April 2023 and under oath in cross examination, the applicant accepted that evidence in general terms and accepted separation occurred in mid-2016. His evidence remined that the separation was temporary but brought forward the date of reconciliation to late 2017 or early 2018. The explanation given under oath was that he had a new phone and until receipt of the respondent’s affidavit sworn on 5 April 2022, which contained documentary evidence supporting her dates, he had not realised he could access the iCloud to retrieve photos – and that doing so had jogged his memory. Two of those photos are annexed to his most recent affidavit and were later tendered with the date stamps included.
The applicant’s earlier and repeated evidence as to the dates of separation and resumption of cohabitation was, on his own evidence, wrong. I am asked by the respondent to place little weight on his more recent evidence as a consequence of this inconsistency.
During the lengthy cross examination, and despite the changes to his evidence, the applicant did not concede that the parties had not lived together in a de facto relationship after 23 March 2016. He also did not accept the respondent’s evidence that the only reconciliation was for a brief period in 2018.
He did however concede that at times he claimed Centrelink benefits as a single person when in between jobs, though again was unable to be specific as to dates.
I also considered that on the Bankruptcy Notice dated late 2019 the applicant’s address is listed as E Street, Suburb F. This is at a time when the applicant alleges he lived with the respondent and nowhere else, yet even on his own evidence to an independent third party that was not the case.
Respondent’s evidence
The respondent’s evidence is that cohabitation commenced in 2008 and ended finally in 2016. She has been consistent with the dates throughout – save for conceding the date of separation was March 2016 rather than May 2016 as she had originally thought. I am not troubled by that minor change.
In January 2021 the respondent told the police that she and the applicant had been separated for five years but they were all living under the one roof at the time. That is consistent with her evidence throughout these proceedings. Further these proceedings were not on foot at that time, which makes her evidence that much more persuasive.
The respondent’s evidence is that the parties separated on a final basis in 2016 and that any communication or time spent after that was not a continuation of or reinstatement of the de facto relationship save for a brief reconciliation in 2018. Rather her evidence was that she was too afraid to say no to the father when he sought to stay in her home or, in the case of the trip to Country H, unwilling to turn down a once in a lifetime opportunity.
The respondent did not concede that she and the applicant lived together from 2018 until late 2020 despite being hard pressed under cross examination. Her evidence has always been that from time to time the applicant lived in her house and as specific events or photos were put to her, she repeated that evidence. She did not concede that they were in a de facto relationship after 2016.
The only reconciliation that she conceded was a brief one in about early 2018. Much was made of the fact that this was not included in her earlier material. She denied however that she was trying to hide the reconciliation. A brief reconciliation alone is not however necessarily sufficient to establish a recommencement of a de facto relationship.
Due to the applicant’s inconsistencies and significant changes to his evidence, I prefer the respondent’s evidence about the duration of the relationship.
The nature and extent of their common residence
There is no requirement that parties actually live together under the one roof for the purpose of a de-facto relationship to be found to exist; relationships come in all forms and are subject to each participant’s own belief systems and circumstances. It is however one of the factors that is considered.
The applicant’s affidavit evidence was that the parties had moved to Suburb D in 2015 and lived together there in his sister’s home near his parents for three years. It was only after the respondent provided documents to the contrary that he conceded separation in 2016, that they had only lived together in Suburb D for a few weeks not three years but gave evidence that it had “seemed longer”. There is a significant difference between a few weeks and three years.
He also changed his evidence as to the date of reconciliation from 2019 to 2017. In support of this he produced a rent receipt for a Town C property for one week in early 2017 and under cross examination gave evidence that he recollected signing a lease for a year but breaking that lease in order to live with the respondent – initially at her parents’ home and then in the Town C property. This was not however in his affidavit, and I am unsure how it can be said to be supported by the receipt. I do not accept that evidence and formed the view that the applicant was confused about when things had occurred.
The applicant’s evidence at the time of trial was that the parties reconciled in late 2017. His evidence is that they were back together but were not living under the one roof. On his evidence they lived together under the one roof again from the date of the purchase of the real property which he originally put at 2020 but changed under cross examination to mid-2018 acknowledging that they were not living together on 8 May 2018. Under cross examination he alleged a period of cohabitation with the respondent’s parents to save money before moving into the Town C property. Documents produced by the respondent established that the Town C property was purchased in late 2018 and the applicant conceded that.
His evidence around when cohabitation is alleged to have recommenced was inconsistent. Under cross examination he also gave evidence that when they obtained the mortgage on the Town C property is when they started living together – which would have been in or about late 2018 according to the documents produced by the respondent.
The applicant concedes that when they were living under the one roof in the Town C property that he slept in a separate room – variously giving evidence that this was due to his snoring, because he started work early and because a child liked to get into bed.
However, the Bankruptcy Notice dated late 2019 does not support that the parties were living together at that time. That document provides that the applicant’s address at that time was E Street, Suburb F, Queensland.
The applicant became very elevated around his evidence regarding the Town C property. He gave evidence of working physically on the property including sanding and painting. This was different from his affidavit material which spoke only of concreting a pathway and otherwise stated that he paid for renovations.
The respondent’s position is that the applicant came and went from the Town C property at will simply because she was too frightened to refuse him. Her evidence is that he had other addresses where he lived. He denied this, giving evidence that he stayed with friends at times only because it was convenient for work but that his main residence remained with the respondent.
I prefer the respondent’s evidence about this aspect of the matter as the applicant’s evidence was unreliable and inconsistent. Further the respondent’s evidence is supported by the applicant’s own evidence that he received Centrelink payments as a single person and the different address provided on the applicant’s own Bankruptcy Notice.
Whether a sexual relationship exists
Clearly the parties had a sexual relationship – they have two children. The question is whether that ended in early 2016 and if they did have sex after that date, what weight to place on that given the respondent’s allegations of being fearful of the applicant.
The applicant’s evidence under cross examination was that the parties did have sex after early 2016. The frequency or circumstances of the sex was not put in evidence by him other than his evidence of the reconciliation or rekindling of the relationship in late 2019 – later said to be 2017 - and his affidavit evidence that they were intimate on a number of occasions, that they had sex, and that the respondent had an abortion.
The existence of sex alone does not mean that a de facto relationship has been resumed but can be a significant factor.
The applicant’s understanding seems to be that if they had sex then they recommenced a de facto relationship – for example at his party in late 2017 he gives evidence of “rekindling” the relationship. However, under cross examination he gave evidence that on some unnamed date in mid-2018 as they were going to daycare to collect the children the respondent turned to him and said, “why don’t we give it another go”. That evidence suggests that he accepts that at that stage they were not in a relationship which directly contradicts his own evidence.
The respondent’s evidence is that a sexual relationship was not ongoing. She concedes an abortion but rather that it was a pregnancy to a third person. She could not recall if she had told the applicant about the abortion.
I accept the respondent’s evidence that the applicant constantly sought to persuade her to resume the relationship and that he interpreted every kindness, politeness or concession as a resumption of the relationship.
Due to the inconsistencies and changes to the applicant’s evidence I prefer that of the respondent as regards this issue.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
The applicant’s financial statement filed on 20 September 2021 was of little use to the court as it provided no real picture of his work or finances. Cross examination did little to clarify it, with the applicant offering that he may have misunderstood the document, could not recall where and when he worked or where and when he was on Centrelink. While he agreed that he was on Centrelink at times, he was unable to recall when he received Centrelink in the past and on what occasions he did so as a single person.
The applicant claims to have made financial contributions to the mortgage but produces only two documents. His evidence is that he had cash money in his room and that in addition the respondent had access to a keycard for his bank account.
The applicant also gave evidence that he kept cash at the respondent’s father’s home. He gave evidence that the cash was savings, but he also gave evidence that it was the insurance payout. I am uncertain why the applicant would have large sums of cash secreted in other people’s homes, but regardless of that, there is no documentary evidence to support these financial contributions which are denied by the respondent. For example, there is no evidence of the insurance payout assessment, any payout being deposited into a bank account or being withdrawn from a bank account in cash.
The applicant provided only two documents supporting his evidence of financial contributions. One of those receipts reflects a payment of $600 into a Westpac account in late 2020. The applicant’s evidence is that the mortgage was not with Westpac, but that the respondent had an account with Westpac, such that even on his own evidence it is not a direct payment to the mortgage.
The second document is a receipt for payment of rates dated late 2023. In the case of both documents there is no evidence on the face of the documents as to who actually made the payments, they are simply receipts.
The applicant’s affidavit evidence is that he contributed $600 per week by withdrawing cash from the bank at a service station and handing that cash to the respondent. No bank statements were provided and this is denied by the respondent.
The applicant has produced no independent evidence of regular payments. Due to his ever-changing evidence, I do not accept that he made regular financial contributions as he alleges.
The ownership, use and acquisition of their property
The applicant gave evidence under oath as to the process of applying for a loan to purchase the property at B Street, Town C. On his detailed evidence there was a family desire to ensure that “Uncle G” did not get the Town C property which formed part of the respondent’s grandmother’s estate. While that was persuasive, he then gave evidence that the reason his name was not on the property was due to his bankruptcy. The applicant became bankrupt in late 2019. The documents produced by the respondent as to the conveyance reflect that it was finalised in late 2018, which is over a year prior to the date of Bankruptcy. Therefore, the applicant’s evidence is not correct and throws his other evidence around this issue into doubt.
The applicant gave confusing evidence under cross examination that the Town C property was purchased in 2020 when the documents reflect it as late 2018.
The applicant conceded under cross examination that the respondent’s father reduced the purchase price to $480,000 out of good will. However, he also gave evidence that her father took $22,000 out of his money for the deposit and that he (the applicant) asked his parents for another $10,000. The applicant agreed that there was no documentary evidence to support those contributions claiming that it was cash money from the insurance payout for the house that burnt down (that was back in 2015), that the respondent and her father had access to that money as it was “hidden” there. This is not accepted by the respondent. And, as noted earlier, I have to wonder why an insurance pay out was converted to cash and hidden. It makes no sense. Further his evidence under cross examination about contributions to the purchase was different to his evidence in chief where he claimed that his contribution to the purchase of the Town C property was $30,000 used from his savings, $10,000 borrowed from his parents and another $10,000 borrowed from his sister.
I am also interested about this insurance money that was received. How much was it? Did it go into a joint account? Did he discuss the claim and the payout with the respondent and plans for the future? She says not and I am inclined to accept her evidence about that given that none of that detail is in the applicant’s trial affidavit. His evidence in chief is that he contributed from savings and borrowed money from his family, being $10,000 each from his parents and his sister. Yet he provided no evidence from those people or any documents to support those alleged loans. At trial his evidence was, as noted above, that the money he paid was cash that came from the insurance payout. I do not accept his evidence about that as it just kept changing and was unsupported either by his family or by documents.
The applicant would not concede otherwise and gave evidence that without him the respondent would not have got the house. But his name was not on the house or on the mortgage.
The applicant gave further evidence that he contributed to the mortgage alleging that the respondent had a second key card to his bank account and took money out for that purpose alleging that the mortgage payments were $4,800 per month and the respondent would not have been able to pay it without his input. On his own evidence, however, he was earning about $1,000 per week after moving to Town C being less than the alleged mortgage repayments. He later referred to a Westpac receipt for $600 as a weekly payment of the mortgage which would be about $2,400 per month - a different amount again. I simply have no consistent evidence of any such contributions.
I do not accept the applicant’s evidence about his contributions to the purchase price or to mortgage repayments due to the lack of documentary evidence and due to the inconsistencies in both his evidence in chief and his oral evidence.
The degree of mutual commitment to a shared life
There are a number of matters that the applicant points to that arguably support a mutual commitment to a shared life.
Under cross examination he said that on an unspecified date in mid-2018 when he and the respondent were driving to collect the children from daycare, she turned to him and suggested they give the relationship another go. This was nowhere in his affidavit though I note he alleges that his recent discovery of iCloud photos has jogged his memory about matters generally. It is not however an earth shattering vow of commitment that is alleged.
In early 2018 there was correspondence between the respondent and a wedding reception venue about a possible wedding in late 2019. The applicant produced that email correspondence but conceded that the event had not occurred as it was too expensive and said that they had “other plans”. Nowhere in his evidence however does he detail those other plans. He also could not account for how he came by the email as despite his evidence under cross examination, he is clearly not copied into the email exchange that he has produced. The respondent concedes the enquiry however her evidence is that it was her dream wedding venue and in order to get the quote she had to provide names and dates. Making enquiries about a wedding venue is, if I may term it that, next level. It reflects a serious intention. I accept that about that time, even on the respondent’s evidence, there was a reconciliation, and she explored a wedding venue.
In mid-2019 the parties travelled to Country H. The documentary evidence is that the parties travelled only four days after the applicant purchased the ticket for the respondent. His evidence is that this was due to the respondent needing to renew her passport, that once it was renewed he booked, that they travelled as a couple, that she wore her engagement ring and they were arm in arm. He did not concede that she was intimidated by him.
It is hard to accept that intimidation walks hand in hand with an overseas holiday. The respondent’s position was that this was her dream destination and that his organisation paid rather than the applicant. She also denied that they were there as a couple but conceded that she wore the engagement ring because she was told to do so by the applicant. It was a trip that even on the applicant’s evidence was undertaken at short notice.
The evidence of joint travel to Country H, regardless of the related evidence and motivations, supports that there was some type of relationship between the parties at that time. Whether that amounted to a de facto relationship will be determined after consideration of all the factors overall.
A number of communications between the parties have been produced in late 2020 reflecting in the main mundane household type communications and some photos also taken in 2020. These reflect that they were living, at least part of the time, in the same household and apparently on friendly terms but they take me no further than that.
There is no evidence of any mutual plans for a joint future or for the children that is persuasive of the degree of commitment suggested by the applicant. That he wished there to be is clear enough, but it takes more than one person to form a de facto relationship.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
The relationship was never registered.
The care and support of children
I accept the respondent’s evidence that she was the primary carer for the children. The applicant’s evidence that he had some involvement with their care was not challenged however I accept the respondent’s evidence about the extent of that involvement given the evidence that supports the claim that the applicant at times lived and worked elsewhere.
The reputation and public aspects of the relationship
As detailed above, the applicant points to travel, excursions, and family gatherings to support his application. This includes the following:
(a)In late 2019 the parties booked accommodation at J Resort, Region K for the family. That was cancelled and instead the parties travelled to Sydney to spend time with applicant’s family. Family photos were produced. The respondent concedes this trip but does not concede that the parties shared a room. I prefer her evidence about that as she has made concessions at times and her evidence is overall more consistent and reliable than that of the applicant.
(b)In early 2020 the family trip to J Resort, Region K occurred and photos are produced. The respondent’s evidence is that she was fearful of the applicant and reluctant to say no to him.
(c)In about 2019 the applicant alleges that he purchased an engagement ring for the respondent. The respondent conceded that the applicant gave her a ring which was made from her own family jewellery and that it was subsequently plated in yellow gold. I accept her evidence about that.
(d)In early 2020 the applicant paved concrete pathway at B Street, Town C. A photo was produced. That was conceded.
(e)In or about late 2020, the parties travelled together with the children to L Venue. Although challenged, the applicant was adamant that the parties were in a relationship at that time.
(f)In late 2020 the applicant gives evidence that he purchased dogs for the family and ordered clothing for the family. His evidence under cross examination was that he was significantly involved and paid $3,000 to purchase a second puppy. This evidence was different from his affidavit material where he stated simply that they purchased two dogs together. The applicant produced no documents about the cash and his evidence in the witness box was that he used money from the sale of a car. The respondent produces documents reflecting that she was the purchaser of the dogs and gives evidence that she paid. I prefer her evidence due to the applicant’s consistency.
(g)In late 2020 the parties attended dinner together.
The applicant’s evidence is that these separate events are indicators of an ongoing de facto relationship. The respondent’s evidence is that these events were due to her fear of the applicant and her inability to say no to him.
These social events are the applicant’s strongest evidence that the relationship was resumed – at least around this time. The question is whether those events balance out the lack of evidence about other aspects of a de facto relationship when considering the evidence in its totality and the findings that I have made.
Several photos were provided of the respondent and the children in Sydney along with the applicant and his family. The respondent readily conceded that she attended on one occasion for his mother’s birthday, but that she did so not as his partner but rather because he required it of her and because she wanted to ensure the children were safe and returned to her care. She denied sharing a room in his mother’s home but gave evidence that they stayed in separate rooms in his sister’s home. I accept her evidence about that.
The respondent did not concede regular outings with the applicant and the children but rather the odd occasion.
Her evidence as to the ring was that the respondent has this made from her own family jewellery and that it was a ring that the applicant gave to her and then removed at times. She gave evidence that he knew how much sentimental value the ring had for her.
She has also produced texts between herself and a third person between mid-2016 to mid-2021 which support that so far as she was concerned, and was sharing with at least this person, they were not in a relationship.
On the applicant’s evidence, final separation occurred in late 2020. Both parties agree that there was a dispute on this day, that the police attended, and the applicant was arrested. It is not unusual for such dramatic events to signify separation. It is however also not usual for such dramatic events to occur after separation.
Due to the applicant’s overall inconsistent evidence and the lack of documentary support, where their evidence is in conflict, I prefer the evidence of the respondent.
Finding as to Date of Separation
People can be in a relationship of some sort without it being a de facto relationship. They date, they have casual relationships, and they may, as alleged by the respondent in this case, be in a forced relationship or forced proximity due to fear or coercion.
The applicant points to a series of events over about a five-year period after March 2016 as evidence of an ongoing de facto relationship together with his evidence of financial contributions which are largely unsupported by documentary evidence. The respondent concedes those social events but argues that she had no choice but to comply with the applicant’s invitations due to her fear of him and her concern for the children in his sole care. I accept her evidence about those social outings. While I am troubled about the trip to Country H, as noted earlier, those concerns are well and truly outweighed by my views of the applicant in the witness box as to his determination and strength of purpose. I formed the view that it would be hard indeed to deny the applicant what he wanted.
Balanced against the social events are a number of factors including:
(a)the applicant’s inconsistent and unreliable evidence,
(b)the lack of any supporting evidence from family or friends as to money alleged to have been provided for the deposit on the Town C property,
(c)the lack of any supporting evidence as to whether a de facto relationship existed after 2016, and
(d)the lack of evidence as to financial contributions to the acquisition of the Town C property or indeed any payments made towards that property.
I accept that the applicant did some hands-on work on the Town C property. However, such work can be done on the property of an ex-partner for a number of reasons – for example in lieu of child support, in lieu of rent, or out of friendship. Or it can be done to create an obligation or sense of obligation in the recipient. It does not mean that the parties are in a de facto relationship.
Having weighed all the above matters I am of the view the weight of the evidence supports the respondent’s evidence that the de facto relationship ended in 2016. Although there was a short reconciliation occurring in 2018, I am not satisfied that what occurred was sufficient to amount to a resumption of a de facto relationship.
Was the Initiating Application filed within the two-year time limit prescribed by s44(5) of the Act
This follows automatically from the finding made as to the date of separation, whether it is 2016 or, if I am wrong about the reconciliation not reaching the threshold of a de facto relationship, then 2018, that the Initiating Application filed on 20 September 2021 was filed outside the time limit for de facto property matters.
In the event that it is determined that the Initiating Application was filed outside of the two year time limit, should leave to proceed out of time pursuant to s44(6) of the Act be granted to the Applicant.
The Full Court Whitford and Whitford explored the meaning of “hardship” and said:[2]
In our view the meaning of “hardship” in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. Cf. the meanings assigned to “hardship” in the Shorter Oxford Dictionary and in Webster’s New International Dictionary…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense. As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec. 44(3) or 44(4) for saying that that the right or entitlement lost must be a substantial one.
(As per original)
[2] at 78,144 – 78,145.
In Althaus and Althaus (1982) FLC 91-233, Evatt CJ (with whom Marshall SJ and Strauss J agreed) observed of earlier cases: [3]
…Now to some extent there may be an exercise of semantics involved here. The case of McDonald referred to a reasonable prima facie case as the test. Other cases such as McKenzie and Whitford suggest that the applicant needs to show that she would probably succeed. In the case of Perkins and Perkins (1979) FLC 90-600, Lindenmayer J. suggested that the test was that there was a reasonable probability of the claim being successful…
In my opinion, sec. 44(3) and (4) are not intended to require a detailed hearing on the merits to determine whether the applicant’s claim will succeed. The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.
[3] at 77,266 – 77,267.
In Hall and Hall (1979) FLC 90-679 the Full Court said:[4]
Fundamental to that [a finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept…
[4] at 78,627.
In Sharp v Sharp (2011) 50 Fam LR 567 the majority of the Full Court stated (May & Ainslie-Wallace JJ):
17.It is well-accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
18.In assessing hardship in this context the well-established test is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exits is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
In Edmunds & Edmunds (2018) FLC 93-847, the Full Court said:
47.As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48.That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
In Gadzen & Simkin (2018) FLC 93-871 the Full Court set out the above law and went on to state:
37.It follows from these authorities that the starting point in determining an application for leave is to consider the question of hardship which requires for its existence a conclusion that an applicant has a prima facie or arguable case of substance having regard to all of the circumstances of the case. That must take into account the costs or likely costs to be incurred in pursuing the claim.
I then turn to consider the asset pool and the applicant’s entitlement to that in accordance with the law and the usual pathway. As is common in cases where the entitlement to a property settlement is disputed, there is little evidence about the asset pool so I must do the best I can on the evidence before the court.
The respondent conceded that after the sale of the Town C property there was about $480,000 left once the mortgage had been paid out. So there are, or were, funds potentially available to be the subject of the application. However, based on the findings that I have made the property was purchased and sold post separation and by the respondent alone. Any contributions made by the applicant were therefore made outside the context of a de facto relationship.
The property increased in value. Whether that was due to market forces or renovations and improvements or both is unknown. It is accepted that the applicant made some non-financial contributions to that property, but those contributions were made in the context of my findings that the parties were not in a de facto relationship at the time.
In any event the evidence that the applicant gives of his financial and non-financial contributions is general in terms and largely unsupported. The independent evidence is of, at best, minor financial contributions and some limited non-financial contributions. I prefer the respondent’s evidence about the extent of the applicant’s financial and non-financial contributions for the reasons stated above.
In summary at the time of separation the parties had no significant assets that are known to the court. The applicant alleges a cash sum of unknown quantum “hidden” at the respondent’s father’s home possibly sourced from an insurance payout. There is absolutely no independent evidence that the money existed or of it did, then there is no evidence as to the quantum.
The respondent acquired the Town C property post separation. Whatever minor contributions the applicant chose to make to that property are not sufficient to entitle him to a de facto property settlement at all. If I am wrong about that, then his entitlement would be minor indeed.
In those circumstances I am not satisfied that the applicant will suffer any hardship if he is not granted leave to proceed out of time.
PART 5: CONCLUSION
The Initiating Application was filed on 20 September 2021, some five years and four months post separation in May 2016. The reason given for the delay was the applicant’s alleged belief that the parties remained in a de facto relationship up until late 2020. I do not accept that was a reasonable belief in all the circumstances of this case. The fact that the applicant wanted to be in a de facto relationship with the respondent is not sufficient to make it so.
I am not satisfied that, as required by section 44(6)(a), the applicant has demonstrated that he would suffer hardship in the event that he is not able to prosecute his claim. For these reasons, the applicant’s application for leave to proceed out of time is refused and the Initiating Application dismissed.
I therefore make the orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 29 November 2023
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