Bush & McCoy
[2024] FedCFamC2F 1276
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bush & McCoy [2024] FedCFamC2F 1276
File number(s): SYC 9165 of 2022 Judgment of: JUDGE BECKHOUSE Date of judgment: 21 November 2024 Catchwords: FAMILY LAW – Defacto relationship – Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the respondent denies the existence of a defacto relationship – Consideration of the nature of the parties’ 21 year relationship – Where the parties lived together – Where the parties had a non-exclusive sexual relationship – Where the applicant was financially dependent on the respondent – Whether the parties had a mutual commitment to a shared life together – Costs reserved. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AA, 4AA(1), 4AA(2), 4AA(4), 44(5), 44(6), 90RD, 90RD(1), 90SM, 90SM(4) and 90SB
Cases cited: Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206
Fairbairn v Radecki (2022) 275 CLR 400
Jonah & White (2011) 45 Fam LR 460
Lennon & Sanil (2020) FLC 93-962
Lynam v Director-General of Social Security (1984) FLC 91-577
Mayson & Wellard [2021] FamCAFC 115
Moby & Schulter (2010) FLC 93-447
Rooks & Padley [2014] FamCA 444
Shelby & Rylan [2022] FedCFamC1A 143
Sinclair & Whittaker (2013) FLC 93-551
Smoje v Forrester [2017] NSWCA 308
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Division: Division 2 Family Law Number of paragraphs: 199 Date of hearing: 15-18 July 2024 and 7 August 2024 Place: Sydney Counsel for the Applicant: Mr Apelbaum Solicitor for the Applicant: Unified Lawyers Counsel for the Respondent: Mr Ford Solicitor for the Respondent: Kells the Lawyers ORDERS
SYC 9165 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BUSH
Applicant
AND: MR MCCOY
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
21 NOVEMBER 2024
THE COURT DECLARES THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) a defacto relationship existed between the parties from June 2000 to 28 January 2021.
THE COURT ORDERS THAT:
Conciliation Conference
2.The parties are to attend a Conciliation Conference with a Registrar on 3 February 2025 at 9:00 am.
3.Each party must within 28 days from this date:
(a)do all things to provide full and frank disclosure to the other party including but not limited to such of the matters set out in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as are relevant to these proceedings;
(b)comply with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by serving on each other copies of the documents provided for therein as applicable; and
(c)provide confirmation that the Trustee of any fund sought to be the subject of a splitting order has been accorded procedural fairness.
4.At least seven (7) days before the Conciliation Conference each party must send to the other and to the Registrar a paginated and indexed single fully text searchable PDF document containing:
(a)a completed Confidential Case Outline Document (Dispute Resolution), which is not to be filed;
(b)a minute of orders sought;
(c)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(d)particulars of any financial resource;
(e)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(f)statements for, and where applicable, valuations of any superannuation interest; and
(g)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
5.Any documents required for the Conciliation Conference are to be emailed to …@…
6.Prior to the Conciliation Conference a lawyer must give to their client written notice setting out:
(a)the costs and disbursements incurred by the party up to and including the event; and
(b)the estimated future costs and disbursements of the party up to and including each future court event.
Costs
7.In the event that the Applicant seeks a costs order in her favour, the Applicant is to file and serve written submissions within 28 days on the costs incurred defending the determination of this threshold issue with such written submissions to be no longer than five (5) pages excluding annexures.
8.Thereafter, the Respondent is to file and serve written submissions in response within 28 days, with such written submissions to be no longer than five (5) pages excluding annexures.
9.Any costs application made in accordance with Order 7, shall be determined by the trial judge.
THE COURT NOTES THAT:
A.The written submissions in relation to costs are to comply with the relevant rules in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular, Chapter 12.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The parties are Ms Bush (“the applicant”) and Mr McCoy (“the respondent”).
The parties' preliminary dispute concerning the existence, duration, and termination of their alleged defacto relationship was separately scheduled for hearing to determine the Court's jurisdiction to adjudicate on their property interests.
This preliminary dispute arises from a unique set of circumstances. The parties' relationship began when the applicant was in her late teens. There is a significant 28-year age difference between the parties. The applicant has a long-standing history of substance abuse, which has resulted in involvement in minor criminal activities, frequent interactions with the police, and periods of incarceration. While acknowledging this history, the applicant maintains that the parties lived together in a domestic relationship as a defacto couple, albeit unconventionally. The respondent, however, characterises their relationship as a friendship focused on supporting the applicant's recovery from substance abuse. The applicant strongly disputes this characterisation. As a result, the parties, along with their respective supporters, engaged in a five-day argument over whether their relationship constitutes a defacto relationship under the Family Law Act 1975 (Cth) (“the Act”).
For the reasons which follow, it is declared the parties were in a defacto relationship between June 2000 and 28 January 2021.
ISSUES FOR DETERMINATION
While the applicant sought a declaration pursuant to s 90RD of the Act that a defacto relationship existed between the parties from June 2000 until 28 January 2021, the respondent said that a defacto relationship never existed, and the application should be dismissed.
The issues for determination are:
(a)Were the parties in a defacto relationship between June 2000 and 28 January 2021, as alleged by the applicant? Or for some other period?
(b)If the Court finds they were not in a defacto relationship for that period of time, were there periods of time when the relationship could be described as defacto?
(c)In the event that the Court finds that the parties were in a defacto relationship, when did the defacto relationship end pursuant to s 90RD of the Act?
(d)If the applicant’s Initiating Application was filed outside the standard application period, is the Court satisfied that hardship would be caused to the applicant if leave to continue the proceedings was not granted pursuant to s 44(6) of the Act?
EVIDENCE
Each of the parties filed Case Outline documents setting out the material relied upon.
The applicant relied upon the following documents:
(a)Initiating Application filed on 21 December 2022 (“the Initiating Application”)
(b)Affidavit of Ms Bush filed on 24 June 2024
(c)Affidavit of Ms B filed on 31 March 2023
(d)Affidavit of Mr C filed on 22 March 2023
(e)Financial Statement filed on 24 June 2024
On day one of the trial, counsel for the applicant also added that the applicant will be relying on her Points of Claim filed on 23 March 2023.
The respondent relied on the following documents:
(a)Amended Response filed on 9 July 2024
(b)Affidavit of Mr McCoy filed on 24 June 2024
(c)Affidavit of Mr D filed on 15 May 2023
(d)Affidavit of Ms E filed on 15 May 2023
(e)Affidavit of Mr F filed on 15 May 2023
(f)Affidavit of Ms G filed on 16 July 2024
(g)Points of Defence filed on 27 April 2023
I have also had regard to the material marked and tendered as exhibits.
The applicant and respondent were legally represented.
The parties were each cross-examined.
The witnesses called for the applicant were:
(a)Ms B
(b)Mr C
The witnesses called for the respondent were:
(a)Mr D
(b)Ms E
(c)Mr F
(d)Ms G
It has not been possible to refer to every aspect of each of the parties’ evidence. However, I have taken all the evidence into account.
There were some factual matters in dispute that I have had to determine. Section 140 of the Evidence Act 1995 (Cth) sets out the standard of proof in these proceedings as the balance of probabilities, and in what follows, statements of fact constitute findings of fact.
SHORT HISTORY OF THE RELATIONSHIP AND THESE PROCEEDINGS
The applicant was born in 1981 and is 43 years old.
The respondent was born in 1953 and is 71 years old.
The respondent was married to Ms H. They separated in 1999. There are five adult children from that relationship: Mr J, Ms G, Mr K, Mr L and Mr M (“the respondent’s children”).
In 2000, the parties commenced living together in a granny flat situated at the respondent’s residence at N Street, Suburb O (“the Suburb O property”).
After one or two years of living in the granny flat, the parties moved into the main house on the Suburb O property.
On 21 December 2022, the applicant filed an Initiating Application commencing these proceedings and seeking:
(a)financial relief;
(b)a declaration pursuant to s 90RD of the Act that there is a defacto relationship; and
(c)costs.
On 21 February 2023, the respondent filed a Response.
On 22 June 2023, the matter was set down for a four-day final hearing.
On 9 July 2024, the respondent filed an Amended Response seeking:
(a)a declaration pursuant to s 90RD(1) of the Act that a defacto relationship never existed between the parties;
(b)the applicant's Initiating Application be dismissed; and
(c)costs.
In his Amended Response, the respondent also included an alternative position in the event that the applicant is able to satisfy the threshold in s 4AA of the Act, namely:
(a)that the application be dismissed on the basis that the applicant is out of time and does not meet the criteria set out in s 44(5)(a) of the Act; and
(b)costs.
It is assumed that if the Court were to consider granting leave to apply, the criteria in s 44(6) would apply (and not s 44(5)(a) as stated).
The final hearing proceeded over five days, on 15, 16, 17 and 18 July 2024 and was stood over part heard until 7 August 2024.
As at the date of the final hearing:
(a)The applicant was living in a rented apartment in Suburb P with her new partner Mr C (although she described them as experiencing relationship difficulties).
(b)The applicant was unemployed and receiving government benefits.
(c)The respondent continued to live in the Suburb O property.
(d)The respondent was retired and living off his superannuation benefits.
(e)The respondent had re-partnered with Ms Q. They maintain two households and live between them.
HISTORY OF THE RELATIONSHIP
The use of the word ‘relationship’ in this judgment does not imply an acceptance that it was a defacto relationship.
The parties commenced a relationship in 1999. They disagree on the nature of their relationship. The applicant alleged that the parties first met at the home of a mutual friend in around 1997 or 1998 and began a sexual relationship in 1998. She alleged that they commenced dating in late 1999.
The respondent alleged that he first met the applicant in late 1999 on the road when the applicant offered sexual services to the respondent. He alleged that the parties entered into a contractual relationship and the respondent paid the applicant for her services for about four months.
The applicant alleged that cohabitation commenced in June 2000, when she moved into the granny flat situated at the Suburb O property where the parties lived together.
The respondent accepted that the parties lived under the one roof and had a sexual relationship but disputed that the relationship could be described as a defacto relationship.
In around 2001, the parties moved into the main residence of the Suburb O property. The applicant said that from that time they shared a bedroom in the main residence. The respondent denied this but admitted that they had a sexual relationship.
In early 2001, the applicant and respondent attended the Family Court to be observed with the respondent’s children for the purposes of the preparation of a Family Report dated early 2001 (“the Family Report”) arising from proceedings between the respondent and his former wife, Ms H (“the previous Family Court proceedings”).
In mid-2020, the applicant moved into a rental property in Suburb R (“the Suburb R property”) with Mr C.
In late 2020, the applicant moved back into the Suburb O property. At that time Mr C was incarcerated.
In early 2021, Mr C was released from a rehabilitation facility. The applicant moved out of the Suburb O property and alleged that the parties then separated on a final basis.
DETERMINATION OF FACTUAL CONTROVERSIES
There are a range of factual controversies that require resolution to determine the overarching issues. Before I turn to consider my findings and how the law should be applied to the facts in this case, I observe that each of these parties sees the facts in the case through the lens of their own experience and values.
This is not a case that will be determined simply on the basis of credit findings made, although I was pressed by counsel for the parties to do so. Credibility assessments are only required when there is no documentary, electronic or other form of incontrovertible evidence to resolve conflict over a material question of fact (State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 607, 608 and 620–621). When determining some controversies, I will need to prefer the evidence of some witnesses, over the evidence given by others. It is therefore necessary to make some observations about the evidence given.
Counsel for the respondent argued that an adverse credibility finding should be made against the applicant. There were matters she appeared determined to deny, regardless of evidence that tended to lead to a different conclusion. For example, she argued that she had enjoyed an exclusive sexual relationship with the respondent throughout their relationship. This was in the face of evidence that she had formed other relationships and had sexual encounters, sometimes for drugs or possibly financial benefit, throughout the 21-year relationship.
The applicant also gave evidence that she was prepared to lie if it were necessary to achieve an outcome she wanted. For example, when Mr C was incarcerated, his custodial records indicated that the applicant was his fiancé. The applicant gave evidence that they had never been engaged but that she told a lie to allow her to get access to Mr C in prison. She also conceded that she had lied on a Residential Tenancy Agreement entered into with Mr C in mid-2020 by naming herself as a tenant. She was questioned about the information she disclosed in her application for Centrelink benefits, particularly the statement “never married or lived with a partner.” She acknowledged that one of the impacts of that statement was “more pay, more money”.
There were parts of her evidence that I cannot accept as truthful. However, she gave her evidence coherently and made appropriate concessions when necessary.
While the respondent was courteous and respectful in court, he conveyed to me a sense of deep resentment that the applicant might be entitled to any adjustment of interests in his property. In his eagerness to defeat the applicant's claim, the respondent's evidence on certain matters appeared implausible, nonsensical, or unreliable.
An example of the nonsensical nature of the evidence he gave arose from a series of text messages he sent the applicant and Mr C between 2019 and January 2021. He was cross‑examined at length on the text messages. For example, when asked why he had written “I do love you” he admitted that he was in love with the applicant but described that love as a “love to get her off – off the drugs”. And later as “a friendship relationship”.
He was asked about a text message where he said to the applicant “[y]ou will not mind me looking for someone else.” His evidence was that he was not referring to moving on to another relationship after the breakup of his relationship with the applicant but rather, it had taken him 23 years to get into a new relationship saying “[w]ell, [Ms Q] is the first real relationship I’ve had since my wife”. This too was implausible.
The text messages between the parties will be discussed further on. Ultimately, they do go to the credit of the respondent because he was unable to provide any other alternate logical reason for why he sent them or how they could be read in another way.
The evidence given by the respondent about the applicant’s role in the Family Report process in 2001 was also found to be both self-serving and unreliable. In summary, the applicant alleged that she had attended the Family Report interviews in Suburb S in the previous Family Court proceedings. In his affidavit and during the first four days of evidence the respondent both denied that he was ever in a defacto relationship with the applicant and that the applicant had attended the Family Report interviews.
The file from the previous Family Court proceedings was produced before day five of the hearing commenced. The file included amongst other documents, an affidavit filed by the respondent in 2001 and the Family Report. The applicant featured in the proceedings as the “defacto” partner of the respondent. When the hearing resumed, and presumably having become aware of the contents of the Family Court file, the respondent was recalled. He changed his evidence agreeing that he and the applicant were in a relationship in 2000 but that they separated. He agreed that the applicant had travelled with him to the Family Report interviews but said he could not remember in great detail what had taken place in those proceedings as they were 23 years ago.
His evidence about this was concerning. He attempted to explain that he had made some statements to the Family Report writer because he was “after [his] children”. I assumed he was saying that he thought his relationship with the applicant might bolster his case for shared care. His admission that he was prepared (in those previous Family Court proceedings at least) to say or do things that might better his case, leaves me with a concern about the evidence he gave in general. It might suggest that the respondent is inclined to give evidence that supports his case and withhold evidence of matters that might be against his interests.
These observations do not mean that I have determined that one party’s evidence should be preferred over another. It simply highlights my concerns about the truthfulness and reliability of the evidence given by both parties on some issues.
When witnesses are called by a party to give evidence it is assumed that they are not necessarily partisan. But being called to give evidence in support of the case of a party, needs to be distinguished from a witness who gives evidence that is not truthful or lacks credibility.
The applicant’s mother Ms B was well placed to give evidence. She had a long-term friendship with the respondent and out of most of the witnesses, appeared to have spent the most time with the applicant and respondent at their home and in other social settings. She was forthcoming when she expressed her concern (or perhaps despair) about her daughter’s drug addiction, criminal activities and associates. I found her evidence to be reliable.
The applicant called her new partner Mr C to give evidence. Mr C has what can be described as an extensive criminal history. In July 2024 he sent a text message to the respondent:
Gday [Mr McCoy] it’s [Mr C]. Not sure you are already aware but [Ms Bush] and I are no longer together. I was wondering if it would be worth my while catching up to discuss next week as it may save you some money if my recollection sways your way?
(As per the original)
Mr C admitted the statement “[Ms Bush] and I are no longer together” was a lie. He gave evidence that the text message was sent “opportunistically”. I cannot discount that he remains in a relationship with the applicant for very similar reasons either, although this observation has no bearing on the decisions I have to make. He was not a witness of truth and I place little weight upon the evidence that he gave.
The respondent relied upon the evidence of Mr D. I found him to be an honest and forthright witness. However, I formed the view that as an ex-business associate of the respondent, his knowledge of the relationship was limited to what he had been told by the respondent or observed on infrequent occasions. On the contentious issues of the relationship that the Court needs to determine, he appeared to have limited knowledge. On other issues it appeared that he may have been briefed by the respondent. For example, he on several occasions unnecessarily volunteered information about the respondent cooking meals for him.
The respondent also relied upon the evidence of a former business associate of over 20 years, Mr F. He was asked a range of questions about the relationship between the applicant and the respondent and had little direct knowledge of most matters. He seemed to be a mouthpiece for the respondent, at times offering information he was not asked for. For example, about the affection the parties displayed towards each other, or the applicant’s drug dependency. He was keen to share his observations about the applicant’s lack of involvement in the respondent’s business activities. When it was suggested to him by counsel for the applicant that he was “appalled” that the applicant was seeking a property settlement he said, “I’m disappointed for trying to rob somebody for something that she didn’t deserve”. I found him to be genuine but that he had formed a view about the applicant on the basis of what other people had told him, as opposed to his own direct dealings with her.
Ms E, the daughter of Mr T, gave evidence. She impressed as an honest person who has suffered great trauma in her life as a result of her parents’ drug dependencies. I have approached her evidence with some caution because she was recollecting matters from her childhood including conversations with parents who were drug affected. Whilst I found her to be a credible witness, her recollections may not have been reliable or accurate for these reasons.
The respondent’s daughter Ms G filed a late affidavit and gave evidence on day five. She appeared to be forthright and an honest witness although much aligned to her father and his case.
THE LAW
An order pursuant to s 90SM can only be made if the Court is satisfied of the existence of one of the four criteria contained in s 90SB of the Act. For the purposes here, the Court must be satisfied in accordance with s 90SB(a) that the period, or the total of the periods, of the defacto relationship is at least two years.
Section 44(5) of the Act requires that any application under s 90SM must be made within two years after the end of the defacto relationship. Accordingly, if it is determined that a defacto relationship between the parties existed but ended before 21 December 2020, an application for leave to apply after the end of the standard application period needs to be considered.
The declaration as to the existence of a defacto relationship under “s 90RD of the Act does not involve an exercise of judicial discretion” (see Jonah & White (2011) 45 Fam LR 460 at [39]). Instead, it becomes an evaluative factual determination, taking into account the criteria set out within s 4AA of the Act (see Lennon & Sanil (2020) FLC 93-962 at [8]).
The essential test set out in s 4AA(1) is whether or not the parties had “a relationship as a couple living together on a genuine domestic basis.” Pursuant to s 4AA(2) of the Act this may be determined by the Court having regard to the following circumstances:
(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.
The applicant bears the onus of establishing the dates of cohabitation and separation. She must also establish on the balance of probabilities that separation occurred within two years of the commencement of the proceedings (see Mayson & Wellard [2021] FamCAFC 115 at [30]).
Section 4AA(4) of the Act provides the Court with discretion as to the weight attached to the circumstances detailed in s 4AA(2), and any other matters considered relevant by a court. Section 4AA(4) provides that:
A court determining whether a defacto 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.
The High Court in Fairbairn v Radecki (2022) 275 CLR 400 (“Fairbairn”) gave some guidance into the application of s 4AA. There at [28] it was said:
Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a defacto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a defacto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
In determining whether or not a defacto relationship exists, I must consider the whole of the circumstances of the relationship. The Full Court in Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair”) noted at [65]:
Given the nature of the definition of a defacto relationship in the Act the ultimate decision as to whether there is a defacto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
The Full Court in Sinclair adopted the observations of Fitzgerald J in Lynam v Director-General of Social Security (1984) FLC 91-577, who said at 79,663:
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 infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
In Rooks & Padley [2014] FamCA 444, Tree J explained and summarised the relevant provisions at [10]:
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)Whether a defacto relationship exists or not is a question of fact, not a matter of discretion;
(b)A defacto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive;
(c)The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d)Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established;
(e)There need not be full time living together;
(f)The relationship may be unhappy, but still subsisting;
(g)Sexual or other exclusivity is not necessary;
(h)The gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.
(Footnotes omitted)
In Moby & Schulter (2010) FLC 93-447 at [140] it was held that a couple are not required to live together on a full-time basis, in the sense of unbroken periods, or for the majority of the relationship for it to be characterised as a defacto relationship. This has more recently been endorsed by the Full Court in Shelby & Rylan [2022] FedCFamC1A 143 where it was observed:
19.The High Court has arguably clarified that parties do not need to live together in order to be in a defacto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a defacto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances.
FINDINGS
The duration of the relationship - Section 4AA(2)(a)
The applicant alleges that the parties were in a defacto relationship together from June 2000. This was the date she says that she moved into the granny flat in the Suburb O property. The respondent concedes that the parties lived together in the granny flat for at least 12 months before moving into the main house. He disputes that they were living in a defacto relationship.
The respondent filed an affidavit on 4 October 2001 (“2001 affidavit”) for his previous Family Court proceedings. There he was seeking orders to adjust interests in property as well as parenting orders. For the purpose of those proceedings, he deposed in an affidavit that he commenced a defacto relationship with the applicant in early 2000.
Ms B corroborated the existence of a defacto relationship in 2000. She said that she was initially shocked about the age difference but that the applicant told her that “I love him and he loves me.” She deposed to attending at the granny flat home and helping to set up the main bedroom for the applicant and the respondent.
The respondent had deposed in the 2001 affidavit that the parties lived in the granny flat together until they separated in May 2001. During cross-examination he gave evidence that he only had a vague recollection of the 2001 affidavit. I asked him if he remembered events at around that time well or vaguely and he said, “I think I do”. Counsel for the applicant put to the respondent that the statement in the 2001 affidavit was false and was made to counter concerns raised about their relationship in the Family Report. The respondent categorically denied this.
At the time of the interviews for the Family Report, the respondent’s children complained about the affection that the applicant and respondent displayed in their presence including that they could hear them being “overtly affectionate.” The children also complained about the age difference because the applicant was only two years older than the respondent’s oldest son Mr J. The Family Report writer recorded that the respondent described their relationship as “one of mutual respect and love” and reported that while she was 18 at that time, no problems had arisen with their age difference. When this was put to the respondent under cross-examination by counsel for the applicant, he denied saying this to the Family Report writer.
When it was put to the respondent that in his 2001 affidavit he had described the relationship between him and the applicant as a “defacto relationship” and used the word “cohabit” to describe their living arrangement; he also rejected this. Alternatively, he said he could not recall events from 23 years ago. I did not find the evidence of the respondent on this issue credible. I prefer the evidence of the applicant.
I find that the parties were living under the one roof from February 2000. This date is supported by the material filed in the previous Family Court proceedings which were completed more contemporaneously to the events. I will categorise the nature of that relationship later.
The respondent swore in the 2001 affidavit for the purpose of the previous Family Court proceedings that he had separated from the applicant. This was not a matter he deposed to in the affidavit filed in these proceedings. When he became aware of the contents of the file from the previous Family Court proceedings, he adopted it as true under cross-examination. Yet he also said that he could not remember in great detail what had taken place 23 years ago. His assertion about their separation in 2001 was put to the applicant when she was cross-examined on day five. She categorically denied that the parties had separated in 2001. I prefer her evidence about this.
The Court needs to make a finding as to when the relationship ended. The applicant has denied commencing a relationship with Mr C prior to February 2021, but I do not accept her evidence on this.
The applicant became friends with Mr C in mid-2019. It would appear that the relationship (however it is defined) between the applicant and respondent from that point was in difficulty. The respondent relied upon a text message he sent Mr U in November 2019 stating “[Ms Bush] does [sic] not live here anymore [sic]. She is in a relationship with [Mr C]. They’re [sic] living all over the place”. The parties on different occasions admitted to making false statements. However, I cannot discount that the applicant had been away from the home for several days in the company of Mr C.
In November 2019 the applicant and respondent exchanged text messages and the respondent asked the applicant to return home. The respondent packed the applicant’s bags, asked when she was coming home and sent text messages to the applicant enquiring as to whether the relationship was at an end. In those text messages he accused her of being in a relationship with Mr C. Based on the text messages exchanged between them at that time, it is clear that the applicant was spending lengths of time away from the Suburb O property and that the respondent wanted the applicant “home” and gave her an ultimatum to this effect.
For reasons not fully explained, Mr C was a guest in the Suburb O property from late 2019 to mid-2020 and stayed in the guest room until he was asked to leave by the respondent. The respondent says that the applicant stayed in the room with Mr C. I do not accept that. The evidence before the Court (including the text messages exchanged between the parties) and the demeanour of the respondent, led me the conclude that the respondent would not have condoned the applicant having a committed intimate relationship with Mr C when living under his roof in the Suburb O property.
The parties agree that the applicant co-signed a rental application with Mr C in mid-2020 for the Suburb R property. The respondent says that the applicant moved out of the Suburb O property with Mr C. The applicant disagrees, and says she stayed there only for a few nights to assist with the move.
Between 2020 and 2021, Mr C was incarcerated and thereafter detained in rehabilitation. The Suburb R property was subleased.
It was an agreed fact that the applicant remained living in the Suburb O property from at least late 2020 until early 2021.
The respondent relies on a range of matters to support his contention that the applicant was in a relationship with Mr C from late 2019. The most significant of those are:
(a)A document she sent to the correction facility where she describes herself as Mr C’s “fiancé”.
(b)Documents that allowed her to transfer funds to Mr C while he was incarcerated.
(c)The Residential Tenancy Agreement in their joint names.
(d)The Notice of Order from NCAT when a dispute arose about the applicant and Mr C’s tenancy of the Suburb R property from 2021.
The difficulty with placing weight on these contentions is that both parties gave different reasons for these occurrences. Both parties were found to lie on occasions to support the outcome they wanted. There was no evidence led about a change in the nature of the relationship or the household arrangement between the applicant and respondent from late 2019.
The applicant finally left the Suburb O property in early 2021 when Mr C was released. Both parties accept that the relationship of the parties (however that is defined), was then at an end.
Clearly the applicant was in and out of a relationship with Mr C from late 2019 until early 2021 when she made clear to the respondent that she was choosing Mr C over him. But during that period the evidence leads me to conclude that the respondent did not see the relationship as at an end and he continued to hold out a hope that the applicant would remain in the relationship with him. I rely upon the text messages between the respondent and Mr C of January 2021. It would seem that they were sent as a final ultimatum from the respondent which required the applicant to choose either pursuing a relationship with Mr C or remaining with him.
Having determined the period of the relationship, it is now necessary to determine whether it can be described as defacto in nature.
The nature and extent of their common residence - Section 4AA(2)(b)
Sleeping arrangements in Suburb O
In early 2000, the parties moved into the granny flat home that adjoined the Suburb O property.
In or around 2001, the parties moved into the main residence of the Suburb O property.
No rent was ever paid by the applicant to the respondent.
There was conjecture as to the sleeping arrangements in the Suburb O property. The applicant argued that:
(a)The parties shared the main bedroom until 28 January 2021.
(b)She bought a decorative linen set for the bed and decorated the room with her items including teddy bears (and tendered a photo of her on the bed in the main bedroom to support this assertion).
(c)The house only had two bedrooms and a study and from time to time there were tenants who stayed in the spare room including Mr C (he corroborated this) as well as the respondent’s daughter Ms G who stayed in the spare room of the house for several months in 2007, and Mr T towards the end of his life in 2014 (this was denied by the respondent).
Ms B deposed that she visited the house often and found the applicant asleep in the main bedroom.
Ms G deposed that she stayed in the Suburb O property in 2007 for around four months. Her affidavit did not directly address the sleeping arrangements. Under cross-examination she said that she slept in the back room of the house in 2007 and then again for a few months in 2010. She was unable to tell the Court where the applicant slept.
The respondent denied sharing a room with the applicant but says they did engage in sexual intercourse on occasions and shared the bed in the main bedroom for this purpose. His evidence was that the applicant “slept in the spare bedroom quite often. She also slept with me, or had sex with me, quite often in my bed, as she wanted to”.
It was put to the applicant by counsel for the respondent that she slept in the spare room of the Suburb O property, and she categorically denied this.
The respondent deposed that when Mr T was staying at the Suburb O property, he stayed in the guest bedroom.
Mr D voluntarily offered that he had walked through the house and saw that the applicant had her own bedroom, but his evidence did not assist in supporting the respondent’s contention that she slept in the spare bedroom.
The applicant gave the clearest and most consistent account of the sleeping arrangements in the Suburb O property. I find that when she was staying in the Suburb O property, she shared a bed with the respondent in the main bedroom which she had decorated. This was the room where she kept her belongings.
I cannot discount the possibility that the applicant had a sexual relationship with Mr C while he was staying at the Suburb O property. This may have been the reason he was asked to leave. However, there was no evidence to satisfy me that, during the period of the relationship, she shared a room with Mr C or Mr T while staying at the Suburb O property.
Was there a dedication to each other or did they each have other partners?
The respondent argued that the applicant moved out of the Suburb O property approximately 30 times between 2000 and 2021 during the relationship. He also argued that the applicant was engaged in a range of relationships with other men over this period.
Mr V
The respondent claimed that in around 2003 or 2004 the applicant was in a relationship with Mr V and moved into Ms B’s property to live with him for approximately four to six months. He said he recalled Ms B collecting the applicant’s belongings from his house.
This was denied by the applicant. Ms B also denied the allegation. She said that Mr V was her friend from the pub and that he might have stayed with her one night.
There was insufficient evidence to allow a finding to be made that the applicant was in a relationship with Mr V and/or left the Suburb O property to live with him.
The respondent alleged that the applicant was in a defacto relationship with Mr W which he asserts lasted from 2007 until 2013. During that relationship, the respondent said that he allowed them to stay at the Suburb O property when they were unable to secure accommodation.
During cross-examination, counsel for the applicant directed the respondent to his assertions about the existence of additional relationships between the applicant and other men during this period. He said, “at that time she possibly was in two relationships, or three, or whatever”.
The respondent’s recollection of the periods of the relationship with Mr W or other details in relation to that relationship were vague at best. When asked during cross-examination about how he knew the applicant was in relationship with Mr W he recalled that “she wasn’t at home”, and that in “2008 or 2009, somewhere around there. I am not 100 per cent sure” he and several others saw her “down the street holding his hand”.
He admitted to seeing nothing else that would allow him to conclude that they were in a relationship.
The applicant admitted that Mr W was an associate from her rehabilitation clinic. She admitted that he was with her in public places taking drugs or with drug paraphernalia on at least the occasions described in four COPS events over a two-year period between late 2006 and early 2009. She denied being in a long-term relationship with him.
Ms B recalled that Mr W was a friend of the applicant from the methadone clinic, but she disagreed with the assertion that they had been in a relationship from 2007 to 2013.
The evidence supported the assertion that Mr W and the applicant spent time together over several years. They certainly took drugs together and were known to local Police who often moved them on from public places. I cannot discount the possibility that they engaged in sexual acts together. It is probable that the applicant did not return to the Suburb O property to sleep on some occasions when she was in the company of Mr W. However, there was insufficient evidence to allow a finding that the applicant left the relationship with the respondent, or the Suburb O property, to live with Mr W.
Mr T
The respondent claimed that the applicant was in a relationship with Mr T which lasted from 2011 until 2014. The respondent alleged that the applicant and Mr T spent a few nights together at the Suburb O property.
When Mr T died in 2014, the applicant and respondent were holidaying together in Country X. The respondent wrote a message signed by “[Ms Bush] and [Mr McCoy]” and gave it to Ms B to be read out at the funeral. It included the words “[Ms Bush] and [sic] I will miss [Mr T] very deeply he had become like a brother to us.” During cross-examination, he could not explain why he had written that Mr T had “stayed 1 to 2 days a week with us for the last 3 or 4 years”.
When asked whether he would have written the letter if he had believed that the applicant was in a relationship with Mr T he conceded that “[Mr T] was so sick at the time, I don’t think he was able to have any relationship”.
He also agreed that he had travelled on holiday with the applicant to Country Y in 2013 and then to Country X in 2014 which was during the period he asserted that the applicant was in a relationship with Mr T (and earlier Mr W). He could provide no personal observations to help the Court to understand why he alleged that Mr T was in a relationship with the applicant.
Ms E gave evidence. She was confident that her father had a sexual relationship with the applicant, or at least that she had provided sexual services to him in exchange for drugs.
She deposed that her father referred to the applicant as “his [p]artner.” While she accepted that the applicant did not live with her father on a permanent basis, in her view “she was there enough to be classed as living there to my father”.
I accept her evidence that in clearing out her father’s room after his death she found drug bottles bearing the applicant’s name and some personal items that she assumed belonged to the applicant. Whilst I found Ms E to be an honest witness, much of her evidence was largely based on suspicion and hearsay.
Mr T was a drug addict. The applicant and Mr T were associated with each other as a result of their drug use. I cannot discount the possibility that the applicant sold or exchanged drugs with Mr T. Nor can I discount that she on occasions stayed with Mr T overnight and that they had a sexual relationship. However, there was no evidence to satisfy me that the applicant left the relationship with the respondent for Mr T. Nor was there any evidence that would allow a finding to be made that Mr T and the applicant lived together at the Suburb O property in the guest room.
The card written by the respondent on the death of Mr T, and the fact that the applicant and respondent were on holiday together when his funeral was on, points towards a different interpretation of their relationship than that which the respondent deposed.
Mr Z
The respondent claimed that around late 2014 or early 2015 the applicant commenced a relationship with Mr Z and lived with him for several months at his parents’ home. This time frame changed to 2015 until 2016 when he gave evidence.
A COPS entry suggested (and the applicant conceded) that she and Mr Z spent time together and engaged in criminal activities together.
During cross-examination, the respondent agreed that he and the applicant travelled to Country X together during the period they were alleged to have been in a relationship together. His evidence was that he had so little trust in the applicant that he was not prepared to leave her at home alone.
The evidence supported the assertion that Mr Z and the applicant regularly spent time together over a two-year period. They were involved in criminal activity together. However, there was insufficient evidence to allow a finding that the applicant left the relationship with the respondent, or the Suburb O property, to live with Mr Z.
Mr AA
The respondent claimed that in 2016 the applicant commenced a relationship with Mr AA and lived with him for several months.
Ms B recalled that while she saw the applicant socialising with Mr AA at a club, she was not aware of her daughter ever living with him. That was consistent with the applicant’s description of him as a “drinking [buddy].”
There is insufficient evidence to allow a finding that the applicant was ever in a relationship with Mr AA.
Mr U
The respondent deposed that between 2017 to 2018 the applicant began a relationship with Mr U and lived with him at his parents’ home. He alleged that the applicant was told to leave by Mr U’s parents. He further alleged that he and Ms B picked up the applicant from Mr U’s home and returned her to the Suburb O property. He described the relationship between Mr U and the applicant as “turbulent.”
The applicant denied being in a relationship with Mr U. However, she acknowledged meeting him at the methadone clinic and being involved in criminal activities with him such as stealing, for which she was charged and later convicted in early 2018.
There was interesting cross-examination about a COPS event in early 2018 when Mr U was reported as saying to the applicant “I love you babe.” She said it was what he said to all his girlfriends before clarifying that “[h]is girlfriends – girls as in friends”. It was not convincing evidence.
The respondent annexed to his affidavit the text message dated November 2019 that he purportedly sent to Mr U. I do not find this text message to be evidence of anything in particular because it was not tendered with any other text messages.
Ms B was asked for her perspective on the applicant’s relationship with Mr U. She conceded that she “had a low opinion of him” because of his influence on the applicant’s drug consumption. She recalled that the applicant would stay with Mr U for several days at a time and that his consumption of drugs with the applicant worried her.
The evidence supported the assertion that Mr U and the applicant spent time together over a two-year period. They were involved in drug consumption and criminal activity together. They most likely had a sexual relationship. However, there was insufficient evidence to allow a finding that the applicant left the relationship with the respondent, or the Suburb O property, to live permanently with Mr U.
Mr C
The respondent alleged that the applicant commenced a relationship with Mr C in mid-2019. The circumstances pertaining to the living arrangements of Mr C have already been described earlier.
Other relevant arrangements
In addition to the assertions as to the other relationships conducted by the applicant, the respondent argued that the applicant was incarcerated throughout the relationship. Tendered were the prison visitor records for 2019. They indicated that the applicant’s mother and the respondent visited the applicant on six occasions. The records describe the respondent’s relationship to the applicant as “DEFACTO”. The respondent agreed that he made the arrangements to visit but only did so on behalf of Ms B who did not like driving. He suggested that he was only allowed to visit the applicant if he described himself as her defacto partner.
Whether a sexual relationship existed - Section 4AA(2)(c)
The applicant alleged that the parties maintained an exclusive sexual relationship during the period between June 2000 and 28 January 2021.
The respondent alleged that the applicant engaged in soliciting and had multiple sexual relationships with other men during the period she alleged they were in a defacto relationship.
The applicant denied that she had ever been paid for sexual services. She was taken to Police records that appeared to suggest that she had been observed soliciting sexual services. She denied that those records were accurate. For example, she was taken to a COPS event late 2015 where it was alleged that she was involved in a sexual act with another man. She denied that she had been.
Whether she was engaged in soliciting or not, I am satisfied that she did engage in sexual activities with other men in the course of her relationship with the respondent.
The respondent accepted that the parties engaged in sexual intercourse but denied that the parties engaged in an exclusive sexual relationship.
For his part, he said that he had engaged in sexual relations with prostitutes and with other women at times when the applicant was in relationships with other men or when the applicant was incarcerated as the parties were not in an exclusive relationship.
The degree of financial dependence or interdependence, any arrangements for financial support, between them - Section 4AA(2)(d)
Since at least 2016, the applicant has been in receipt of a Centrelink allowance. She did not at any time declare to either Centrelink or the Australian Tax Office that the respondent was a “spouse”. She described her relationship status as “[n]ever been married or lived with a partner.” There was conjecture about when she completed these Centrelink forms. Regardless, it is accepted that she obtained government benefits at the rate prescribed for a single person with no dependents.
It appears that the income received by the applicant was used solely by her to fund her lifestyle.
The respondent appeared to meet all of the day-to-day expenses of the household. He agreed that he paid the vet bills for the applicant’s dog. I accept the parties often shopped for groceries together, however I find that the respondent generally paid for the household expenses.
The respondent consistently paid the expenses associated with holidays when he was accompanied by the applicant.
There is no evidence that the respondent ever gave the applicant cash or access to his bank accounts. This is hardly surprising given her drug dependency.
There was no evidence led of any financial contributions made by the applicant towards the household expenses in the Suburb O property, including rent.
The respondent covered the applicant on his private health insurance policy from 2001 until 2013. In 2000, the respondent supported the applicant’s attendance at a drug rehabilitation facility in Suburb BB. He first paid $7,000 for her to attend a residential rehabilitation program. Two months later he paid $4,000 towards a further residential rehabilitation program. He said that he did this as a gesture for a friend.
The respondent described the 21-year relationship as a friendship based on his desire to get the applicant “off drugs”. Whether the relationship was a “friendship” or not, I am satisfied that the applicant had a financial dependence upon the respondent during the course of the relationship. The respondent financially supported the applicant by providing housing at no cost to her, feeding her and paying expenses on her behalf such as health insurance and for her drug rehabilitation programs.
The ownership, use and acquisition of their property - Section 4AA(2)(e)
The applicant deposed that the parties shared their finances. This is perhaps an overstatement. There was no evidence to suggest that the parties had access to each other’s bank accounts or that they merged their financial affairs.
The applicant argued that she assisted the respondent with his business (CC Pty Ltd) for twelve months. She said that she was not paid an income, but the respondent retained the earnings and paid for their joint expenses until the business ceased in 2001.
The respondent established a business with his former wife in 1999. However, a new business name was registered in 2002 (DD Business). The company was deregistered in late 2015 and the business name cancelled in mid-2017.
The applicant deposed that she assisted the respondent with this business. She had an email address through the business allocated to her. The respondent denied that the applicant assisted with the business at any time. Ms B deposed that she designed the logo, although this too was disputed by the respondent.
Two people who worked closely with the business, Mr D and Mr F could not recall the applicant having any involvement in the day-to-day operation of the business.
Whilst it is likely that between 1999 and 2015 the applicant assisted the respondent from time to time with minor tasks arising from the businesses, there was no evidence that would allow me to find that the applicant played a day-to-day role in the operation of either businesses.
The degree of mutual commitment to a shared life - Section 4AA(2)(f)
There were several features of the relationship that suggested a mutual commitment to a shared life together.
The Family Report described them as having a relationship “of mutual respect and love.” During cross-examination, Ms G, reflecting on their relationship in 2000 said “there was certainly a mutual sort of something going on with them.”
The parties frequently went shopping together to buy household items. The respondent sought out the applicant’s views when undertaking renovations.
The applicant said she bought the dog in 2003 using her Centrelink payments. The respondent said they did not buy the dog together, however, during cross-examination he conceded to attending “[a pet store] at the shopping centre” with the applicant on the day the dog was purchased.
Visitors to the home did not classify the dog as belonging only to the applicant. Mr F recalled that the respondent took the dog onto job sites with him.
When the dog died in 2018, he was buried in the backyard at the Suburb O property. The veterinary clinic sent a condolences card addressed to “[Mr McCoy], [Ms Bush] [and] family” describing Mr McCoy as “Dad” and Ms Bush as “Mum.” They referred to the dog as “… [Bush-McCoy].”
The applicant alleged that in early 2013 the respondent applied for passports for the parties. During cross-examination, the respondent disagreed with this arguing that they each applied for their own passports. The passports were both issued for a 10-year period and expired four days apart. Whether it was the work of the respondent, or the parties individually, the timing suggests a degree of mutual intention and conduct on their parts.
After passports had been obtained, the applicant and respondent frequently travelled together. Their trips included:
(a)2013, Country Y.
(b)2013, to Queensland.
(c)2014, to Country X with Ms B who accompanied them with her partner.
(d)2014, to Country EE for a holiday. This was a gift from Ms B.
(e)2015, to Country X with Ms B who accompanied them with her partner.
(f)2017, to Country X with Ms B who accompanied them with her partner.
(g)2018, to Country X with Ms B.
The parties had planned a flight to the USA in 2018 from where they would embark upon a month long tour. The applicant was unable to attend as she was incarcerated. The respondent travelled alone. He nominated Ms B as his emergency contact.
The applicant alleged that she travelled to Country X with the respondent, Ms B and her mother’s partner in 2020. This was denied by the respondent. Apart from that deposed by the applicant, no evidence was before the Court to corroborate that they travelled to Country X together in 2020.
Tickets to international locations were on occasion purchased using a travel agent. On these holidays the parties travelled together, stayed in the same hotel room and in the same bed. Photographs were tendered of them enjoying these holidays together. The photos show them with their arms around each other and displaying physical intimacy and affection. To an outsider, they appear to be photographs of a happy couple on holidays.
Text messages exchanged between Mr C and the respondent, and the applicant and the respondent were also the subject of cross-examination. Those text messages suggested a commitment to a shared life. For example, in text messages sent to Mr C the respondent said:
(a)January 2021: “If [Ms Bush] wants to be with you or anyone else she is a free agent. The only thing is she takes all her things and yours and let me get on with my life … I am sick of chasing my [tail]. I have been doing that for 20 years.”
(b)January 2021: “[Ms Bush] needs to make up her mind up who she wants to be with. I do not want to store her property either.”
Examples of text messages sent by the respondent to the applicant include:
(a)May 2021: “You used me [Ms Bush]. You were waiting for [Mr C] to get out and you were gone. Very wrong … This is how you treat me after 21 years.”
(b)December 2019: “I have always loved you and if you could not see that [you’re] a fool.”
(c)December 2019: “I have always loved you. From the first time I met you. You must be stupid not to know that.”
(d)December 2019: “I love you. If I have to burn my bridges. So be it. Let [Mr C] handle your lies and leave me go find someone else who might make me happy. [You’re] the one who walked out.”
The respondent’s evidence on the purpose and intent of these text messages was confusing and obfuscating. I accept that they evidence a more intimate relationship between the applicant and the respondent, and that their exclusive relationship appeared (at least by 2021) to be a pre‑condition or requirement for the applicant primarily living in the Suburb O property. The text messages also indicate that their relationship was not as the respondent described.
Whilst the respondent asked the Court to accept that he had also had relationships with other women, he was unable to name any women he had been in a relationship with in the 21 years between his separation from his first wife in 2000 and his new relationship with Ms Q which commenced in late 2021.
The care and support of children - Section 4AA(2)(h)
The parties had no children together. Whilst the respondent’s children are now adults, it is alleged by the applicant that she did provide care and support for them when they were much younger. She said that she cooked meals, assisted with homework, did laundry and other household tasks.
Ms G, who lived with the parties for three months, disagreed with this assertion. Ms G was only 13 at the time her parents separated, and in my view, would have had a limited recollection of the applicant’s involvement. However, even if the applicant is accepted on this, the respondent’s children spent very little time in the Suburb O property and their relationship was not a comfortable one.
The reputation and public aspects of the relationship - Section 4AA(2)(i)
The applicant argued that the parties maintained a public relationship. She said that they went on dates, introduced each other as partners and were occasionally affectionate in public. This was supported by Ms B who said she heard her daughter being introduced as the respondent’s partner.
The respondent disagreed. He said that he did not introduce the applicant to his family and friends as his partner. Whilst acknowledging that the parties went out in public together, for example to the local pub or club, he said that they spent time separate from each other.
The respondent also admitted to referring to the applicant to other people as “my girl.” Under cross-examination he argued that he would use the term for someone he was in a friendship with. But then he admitted he had only ever used the term when he referred to previous girlfriends.
Reference has already been made to the veterinarian condolence card as evidencing this public facing aspect of their relationship. Arguably, the card sent to be read out at Mr T’s funeral provides another example of the way that the applicant and respondent held themselves out to the public. Also tendered was a birthday card sent to Ms B’s partner Mr GG on his birthday signed “Love always [Ms Bush, Mr McCoy and the dog]”, and a birthday card sent to the respondent saying “hope you have a fabulous [b]irthday with many more to come. Love always and forever [Ms Bush and the dog].”
Whilst the respondent contended that the applicant had limited involvement with his family, this is possibly to be expected given their age difference and the view that his children took of her.
The applicant and respondent did spend time with other members of their families. For example, in around 2004 the respondent’s sister Ms JJ was moved into assisted living and they both visited her. Ms B deposed that from 2000 to around 2020, the respondent was invited and attended their family gatherings such as birthday parties, Easter and Christmas, noting they stopped due to COVID-19. On at least one occasion the parties attended a New Years Eve party together. They travelled together as a couple.
The respondent was also observed to have developed a close and supportive relationship with the extended maternal family. In text messages he sent the applicant in November 2019, he refers to discussing the relationship difficulties with the applicant’s father observing, “[y]our father said to me you are doing what your Mother done to him. You cannot have it both ways. You ever have me or [Mr C]” (As per the original). In another text message at around that time he advised the applicant that he was mowing her father’s lawn and that he has spoken to her “nan”.
I prefer the evidence of the applicant and her mother on this issue and conclude there was a public aspect to their relationship.
CONCLUSION
I have considered the various relevant indicia set out in s 4AA(2)(a) – (i) to guide a determination of whether or not a defacto relationship existed between the applicant and the respondent. Pursuant to s 4AA(1)(c) of the Act, these factors are guidelines to be considered in “all the circumstances of their relationship” and as part of the composite picture. Relationships may take many forms and this one is no different. The parties presented an unorthodox relationship. While they shared a common residence for 21 years, there were other aspects of their relationship that lead me to question whether there was a sufficient degree of mutual commitment to a shared life.
The respondent argued that the applicant’s drug addiction and involvement in criminal activity over two decades pointed against a finding of a mutual commitment to a shared life. There was never an assertion that the respondent shared in any of this aspect of the applicant’s life, except perhaps for mutual friendships that they formed with people such as Mr T and Mr C.
The applicant spent periods of time away from the Suburb O property. Sometimes due to her incarceration. At other times because she was spending time with other men or engaged in activities arising from her drug use. But cohabitation is not an essential ingredient for the existence of a defacto relationship (see Fairbairn at [32] – [36]).
It seems that the respondent had a commitment to a shared life with the applicant and he wished to continue a shared life with the applicant, preferably if she were drug free. The same perhaps cannot be said for the applicant’s commitment to the relationship in its later stages. There were significant periods later in the relationship where she was under the influence of drugs and spent time in the company of drug and criminal associates. However, whilst it might be the case that the applicant had less of a commitment to the relationship than the respondent, I am persuaded that she did have, at least during the relevant years, a commitment to a shared life with him in the sense referred to in s 4AA(2)(f) of the Act.
In determining the existence of a defacto relationship, I am guided by the decision of the New South Wales Court of Appeal of Smoje v Forrester [2017] NSWCA 308, where Meagher JA said at [42]:
Whilst the state of living “together” does not require that the living occur at and from a single place, or that the two adults spend all of their time together at the same place, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description.
Here the parties:
(a)Shared a common residence at the Suburb O property from early 2000 until 28 January 2021.
(b)Shared the same bedroom, first in the granny flat and later in the Suburb O property for the whole of this period.
(c)Had a sexual relationship although not an exclusive one.
(d)Kept their finances separate but the applicant was financially dependent on the respondent.
(e)Had a mutual commitment to a shared life together which included going on holidays together, supporting each other’s family members, sharing domestic tasks and the care of a dog.
(f)Were viewed by family members and many in their community as a couple or family unit.
In making this determination, I have had regard to Cizek & Mihov where a declaration that a defacto relationship did not exist was made about a relationship spanning 12 years where there was found to be no ‘meeting of minds’ as the parties were committed to different relationships and there was found to be a minimal degree of mutual commitment to a shared life. Whilst the cases bear some similarities, I am not prepared to elevate the need for an exclusive sexual relationship and living together continuously, above the other matters contained in s 4AA(2).
When viewed as a whole, I am persuaded that the parties were in a defacto relationship within the meaning of s 4AA of the Act from at least the time when the applicant moved into the Suburb O property. At that time, the parties had “a relationship as a couple living together on a genuine domestic basis”. That evaluative factual finding emerges from the conglomeration of considerations prescribed by s 4AA(2) of the Act.
It is impossible to be precise about the dates upon which the defacto relationship ended, because it seems on the evidence that the strength of their commitment to each other waned over the years. However, the evidence leads me to conclude that whilst the applicant lacked commitment to the relationship for a number of years, she remained dependent upon the respondent, continued to treat Suburb O as her primary residence and neither of them took steps to bring it to a final conclusion until 28 January 2021.
On that basis the application was filed within time.
The making of that finding is a pre-condition to the applicant’s application under s 90SM to alter property interests.
It should however be noted that the Court will not make an order under s 90SM unless it is satisfied that it is just and equitable to make such an order. In considering what order should be made the Court then turns its attention to the matters set out in s 90SM(4) such as contributions (whether of a financial nature or otherwise) to the acquisition, conservation and improvement of property.
Counsel for the applicant contended that the respondent’s case had focussed on attacking the character of the applicant. He made somewhat impassioned submissions that whilst the applicant did have a long-standing history of either involvement with the police or criminal offending and drug use, she was entitled to have a defacto relationship and be given “fair treatment”. In arriving at the conclusion, I trust the applicant feels confident that she has not been judged on her lifestyle choices. However, the making of a finding of the existence of a defacto relationship under s 90RD, is a distinct hearing from the determination that now needs to be made under s 90SM. I place on the record the Court’s concern that the costs associated with pursuing an adjustment under s 90SM should be proportionate with any anticipated outcome.
COSTS
As the s 90SM claim is yet to be determined, I am of the view that the costs of this hearing should be reserved to the trial judge who hears the s 90SM claim.
I will make procedural directions to bring the matter to a determination and recuse myself from determining that matter on the basis of the observations I have made here.
I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 21 November 2024
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