CALDER & CHEFFER
[2013] FCCA 1812
•12 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALDER & CHEFFER | [2013] FCCA 1812 |
| Catchwords: FAMILY LAW – Property – where parties in a relationship for a number of years – where applicant states that during that time the parties were in a de facto relationship for a period of greater than two years – where respondent states that the parties were never in a de facto relationship and that if it was declared that a de facto relationship existed then it was for a period of less than two years – Held that the de facto relationship existed for the period of 18 months when the parties were living together – that this was the only time in the relationship where the parties lived together on a genuine domestic basis – that the applicant’s application be dismissed as the Court does not have jurisdiction to determine an alteration of de facto property interests. |
| Legislation: Family Law Act 1975, Part VIIIAB, Division 2 Family Law Act 1975, ss.4AA(1)(c), 4AA(2), 4AA(3), 4AA(4), 90RD, 90SB, 90SB(a) |
| Jonah v White [2011] FamCA221 Kazama & Britton (2013) FamCA 4 Roy & Sturgeon (1986) 11 FLR Baker & Landon [2010] FMCAfam 280 Elias & Elias (1977) FLC 90-267 |
| Applicant: | MS CALDER |
| Respondent: | MR CHEFFER |
| File Number: | BRC 9239 of 2012 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 17 & 18 June 2013 |
| Date of Last Submission: | 23 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 12 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Emerson Family Law |
| Counsel for the Respondent: | Mr Page, SC |
| Solicitors for the Respondent: | Biggs Fitzgerald Pike |
ORDERS
That it is declared that pursuant to section 90RD of the Family Law Act 1975, the Applicant, MS CALDER and the Respondent, MR CHEFFER were in a de facto relationship for a period of eighteen months from April 2009 until October 2010.
That as the period of the de facto relationship is for a period of less than two (2) years as required by s.90SB(a) of the Family Law Act 1975 and as ss.90SB(b)(c) and (d) are not applicable, then Part VIIIAB, Division 2 Family Law Act 1975 whereby the Court has jurisdiction to make orders pertaining to maintenance, declarations of property interests and alterations of property interests, cannot be relied upon by the Applicant.
That the Applicant’s application for alteration of property interests filed on 12 October 2012 is hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Calder & Cheffer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 9239 of 2012
| MS CALDER |
Applicant
And
| MR CHEFFER |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties were in a relationship for a number of years.
The applicant is now seeking a de facto property division but the nature and length of the relationship is in dispute.
Proposals
The applicant is seeking a declaration that a de facto relationship existed between the applicant and the respondent and that the length of the de facto relationship was from mid-2004 to February 2005 and from December 2005 to October 2010.
If the Court is not satisfied that the relationship commenced in
mid-2004 then the applicant, in the alternative, is seeking that the Court make findings that the de facto relationship commenced in October 2007 and concluded in October 2010.
The respondent is seeking a declaration that a de facto relationship never existed.
If the Court finds that a de facto relationship did exist, then the respondent is seeking a declaration that the length of the relationship was from April 2009 to March 2010.
As this period is less than the required period of two years, then the respondent is requesting that the Court dismiss the applicant’s application for want of jurisdiction.
Issues
The issues therefore that require determination are:-
a)Did a de facto relationship exist between the applicant and the respondent and if so, during what period?
b)If a finding is made that the de facto relationship existed for two years or longer, then what is the future direction of this matter?
c)Additional issues.
Evidence
In considering the issues regard has been given to:-
a)the material as marked on the Court file;
b)the exhibits;
c)the oral evidence of the witnesses;
d)the written submissions by the parties;
e)the relevant legislation; and
f)the relevant authorities.
Both parties are legally represented.
A number of objections were raised to the evidence and rulings were made before the hearing of evidence.
The applicant filed a number of affidavits by other persons in support of her case.
The respondent did not seek to cross-examine the following persons:-
a)Ms T (sister-in-law);
b)Mr F (ex-husband);
c)Mr G (friend);
d)Mr M (cousin);
e)X (son);
f)Ms D (cousin);
g)Ms M (sister);
h)Mr D (friend); and
i)Mr J (brother).
For the applicant the following witnesses were called and
cross-examined by the respondent:-
a)the applicant, Ms Calder.
The respondent filed an affidavit by his daughter, Y.
Ms R was not required for cross-examination by the applicant.
For the respondent the following witnesses were called and
cross-examined by the applicant:-
a)the respondent, Mr Cheffer; and
b)Ms R (ex-wife).
I find that at times both parties were vague, evasive, calculating and self-serving in their evidence.
This unfortunately however is not uncommon, especially in matters involving property and where the breakdown has led to bitterness and actions taken and words spoken which otherwise would not be in the ordinary nature of the parties during their normal day to day life.
Although through the course of the judgment, reference will be made to specific aspects of the parties’ evidence, overall I find the parties to be credible witnesses.
I further find Ms R to be a credible witness.
Findings of fact are made on the balance of probabilities, having regard to the evidence and having observed the parties and in what follows statements of fact constitute findings of fact.
Agreed relevant facts
Before considering the issues, it is useful to capture the agreed facts:-
a)The applicant is aged 50 and has some health issues.
b)The respondent is aged 52.
c)The applicant has two children from a previous marriage, X and W.
d)The respondent has two children from a previous marriage, Y and Z.
e)In 2003 the parties met.
f)Sometime in 2004 the parties commenced a sexual relationship.
g)The sexual aspect of their relationship continued until sometime in 2010 (although when in 2010 is in dispute) with both parties agreeing that the sexual relationship was non-existent during most of 2005 when the parties were not seeing each other.
h)Throughout the relationship the parties from time to time attended counselling.
i)In 2004 the respondent lived with his ex-wife Ms R. During that time the parties spent time together each week.
j)In 2004 the applicant owned and lived in a house property at Property M.
k)In 2004 the parties holidayed at (omitted).
l)In December 2004 the applicant attended with the respondent to the respondent’s Christmas work function.
m)In early 2005 the relationship came to an end.
n)In late 2005 the parties resumed their relationship.
o)In December 2005 the applicant attended with the respondent to the respondent’s Christmas work function.
p)In 2006 the ownership of the Property M property changed to include the applicant’s brother.
q)During 2006 the parties attended several social functions including dinners, a ball, social bowls events and weddings.
r)In 2006 the respondent spent a couple of nights camping with the applicant and the children over the school holidays.
s)In early 2006 the respondent moved out of his ex-wife’s premises and moved into a property at Property K.
t)From 2006 to early 2009 the parties lived in separate residences with the applicant living at Property M and the respondent living at Property K.
u)During this time the applicant stayed overnight with the respondent at his Property K residence and the respondent stayed overnight with the applicant at her Property M residence with both parties holding keys to the other party’s residence.
v)In 2006 the parties attended events involving other family members, including the parties’ children and other family members.
w)In December 2006 the applicant attended with the respondent to the respondent’s Christmas work function.
x)In 2007 the applicant received Family Tax Benefit payments from Centrelink for her two children.
y)During 2007 the parties had a trip to (omitted) for a wedding, attended rugby functions, various functions put on by the respondent’s employer, a funeral, parties and music events.
z)At the end of 2007 the parties, together with the applicant’s children, went on a holiday to (country omitted).
aa)From late 2007 until 2009 the applicant received financial assistance through a series of loans from the respondent.
bb)In 2008 the applicant received Family Tax Benefit payments from Centrelink for her two children.
cc)In 2008 the parties had a holiday in (country omitted) with family members and a holiday alone in (omitted).
dd)In 2008 the parties attended work functions, dinners, a wedding, a family get together at Christmas and a graduation dinner and dance performance for Y.
ee)In 2009 the parties continued to socialise and had short trips together including to (omitted), the (omitted) and (omitted).
ff)In 2009 the respondent assisted the applicant in setting up her home business.
gg)For the first few months of 2009 the applicant received Family Tax Benefit payments from Centrelink for her two children.
hh)In April 2009 the respondent moved into the applicant’s residence at Property M to live with the applicant and her children. The respondent retained the Property K property which was subsequently rented out.
ii)On 13 April 2009 the applicant informed Centrelink of the existence of a de facto relationship with the respondent.
jj)From April 2009 until October 2010 the respondent assisted in household chores.
kk)In November 2009 the respondent acquired a 75% interest in the Property M property which acknowledged the respondent’s financial assistance received by the applicant since late 2007/early 2008. This transfer removed the applicant’s brother’s interest from the title deed.
ll)A joint mortgage was obtained which enabled the parties to draw down from the mortgage from time to time.
mm)Money was drawn down from the mortgage which was used for renovations to the Property M property and to pay for expenses such as school fees for the applicant’s children.
nn)In early 2010 the parties stayed at (omitted) with the applicant’s children and other family members.
oo)In March 2010 the applicant asked the respondent to leave the Property M property.
pp)During 2010 the respondent accompanied the applicant to her parents’ funerals.
qq)In October 2010 the respondent left the Property M property and returned to the Property K property.
rr)After separation the applicant applied for Family Tax Benefit payments from Centrelink
ss)After separation the parties continued to see each other socially until October 2012 and at times were involved in a sexual relationship.
tt)On 12 October 2012 the applicant filed proceedings seeking a division of the de facto property.
It is in the context of these facts that consideration can be given to the issues.
Did a de facto relationship exist between the applicant and the respondent and if so during what period?
The law
The parties in this matter do not dispute that between 2004 and 2010, with the exception of several months in 2005, the parties were involved in a relationship.
But the parties dispute the nature of the relationship, with the applicant stating that it was a de facto relationship and the respondent stating it was a friendship.
But when does a relationship become a de facto relationship?
Section 4AA(1)(c) Family Law Act 1975 sets out the meaning of a de facto relationship as two persons “… having regard to all the circumstances of their relationship ….. have a relationship as a couple, living together on a genuine domestic basis.”
What is meant by the terms “relationship as a couple” and “living together on a genuine domestic basis” is not defined by the legislation.
Murphy J in Jonah v White [2011] FamCA221 at [60] comments:
It is the manifestation of “coupledom”, which involves the merger of two lives……. that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
As to what “circumstances” are to be considered by the Court in working out if the persons have a relationship as a couple is addressed in s.4AA(2) which provides a list of matters that the Court may consider including:
nature and extent of their common residence” “whether a sexual relationship exists”, “degree of financial dependence or interdependence” “ownership, use and acquisition of their property” “degree of mutual commitment” “care and support of children” and “reputation and public aspects of the relationship.
But there are no specific circumstances that must occur before a de facto relationship can be said to exist [s.4AA(3)].
Further the parties need not live together to be in a de facto relationship as stated by Watts J in Kazama & Britton (2013) FamCA 4 at [67] to [70]:
The fact that the parties maintained separate residences does not preclude a finding that they were “living together as a couple on a genuine domestic basis.
As observed by Murphy J in Jonah & White at [66] “The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time.”
Section 4AA(4) states that the weight the Court is to give matters in determining the existence of a de facto relationship is at the discretion of the Court.
But the finding of the existence of a de facto relationship must be based on fact as observed by Murphy J in Jonah & White at [39]:
The question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations).
Care must be taken not to adopt a formulae approach when considering the existence of circumstances that may give rise to a de facto relationship as discussed by Powell J in Roy & Sturgeon (1986) 11 FLR at page 274:
….it seems to me, to attempt to dissect the phrase “living together as a husband and wife on a bona fide basis domestic basis” into discrete elements, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis, which will vary from case to case.
Powell J at page 275 explores how different relationships can be and how over time a de facto relationship may develop:
The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.
If a finding is made as to the existence of a de facto relationship then the Court has the jurisdiction pursuant to s.90RD to make various declarations including a declaration as to the existence of a de facto relationship, the length of the de facto relationship and the date the de facto relationship ended.
The finding of the existence of a de facto relationship enlivens Part VIIIAB, Division 2 Family Law Act 1975 and enables the Court to alter property interests between the parties but only if pursuant to s.90SB the Court is satisfied that:-
a)the periods of the de facto relationship total at least two years; or
b)there is a child of the de facto relationship; or
c)a party has made substantial contributions and a failure to make an order or declaration would result in serious injustice to that party; or
d)the relationship is or was registered under a prescribed law of a state or territory.
Application of the law
In this matter the applicant is seeking a declaration that a de facto relationship existed and that it existed for periods which totalled more than two years.
No other aspect of s.90SB is relied upon.
Was there a de facto relationship?
The first question then is whether there has been a “manifestation of “coupledom”, “which involves the merger of two lives” in this matter which could lead to a conclusion that a de facto relationship existed between the applicant and the respondent?
The applicant says yes, and submits that factors in support are:-
a)The parties were in a sexual relationship which commenced soon after the parties met.
b)The applicant was involved with the respondent’s children.
c)The respondent was involved in the care and support of the applicant’s children.
d)The applicant was financially dependent upon the respondent with the respondent financially assisting the applicant from 2007 to 2010.
e)The parties’ finances were intermingled when they commenced living together in April 2009.
f)The parties co-own real property.
g)The parties spent substantial time together both in person and through other means of communication, such as telephone calls and emails.
h)The parties, from April 2009 to October 2010, lived together.
i)The parties were involved in each other’s lives on a domestic basis even when the parties were living apart.
j)When the parties commenced cohabitation in April 2009, the respondent was involved in running the household, including cooking and laundry.
k)The parties presented as a family unit attending many social and family functions and going away on holidays over the years.
l)The parties were mutually committed to a shared life and that commitment has existed for the extent of the relationship.
The respondent says no, and submits that factors in support are:-
a)The relationship was a friendship with the sexual relationship being a constant aspect of that friendship.
b)The friendship was often dysfunctional.
c)The email traffic between the parties is indicative of the true nature of the relationship whereby the applicant unilaterally wanted the relationship to be of a different nature.
d)The applicant’s failure to disclose a de facto relationship to Centrelink in 2007 and 2008 was indicative of the applicant’s knowledge that the relationship was not de facto in nature.
e)That neither party was involved in the care and support of each other’s children and that the children did not form a major element of the friendship.
f)The parties, even when living together, lived separate and independent lives.
g)That financial interdependence did not exist between the parties.
h)The financial transactions between the respondent and applicant leading up the acquisition of an interest by the respondent in the Property M property were by way of loans by the respondent to the applicant.
i)That the acquisition of 75% of the Property M property by the respondent and the setting up of the draw down facility through the joint mortgage account was a reflection of the arrangement reached between the parties whereby the respondent acquired a share in property rather than cash payment of the loans and that money was available to improve the property.
j)The arrangement whereby the respondent live with the applicant and acquire a share in the Property M property was a commercial arrangement as the respondent wanted to ensure that his 75% interest in the Property M property was maintained and that the renovations were completed.
k)Whilst in the public eye the parties may have been seen to be in a relationship, where each used terms of endearment when referring to each other, this reflected a friendship only.
l)Whilst at times the parties were committed to each other, it was not a mutual commitment, nor was it the intention of the respondent that it would be a shared life with the applicant.
In determining whether a de facto relationship existed between the applicant and the respondent and the length of any such relationship, if one existed, I have considered the relationship over four periods:-
a)The first period is from when the relationship commenced in 2004 until when the relationship ceased in early 2005.
b)The second period is from when the relationship recommenced in late 2005 until the provision of financial assistance by the respondent to the applicant in late 2007.
c)The third period is from late 2007 until the respondent moved into the Property M property in April 2009.
d)The fourth period is from April 2009 until October 2010 when the respondent left the Property M property.
Conclusion as to existence of a de facto relationship - 2004 to 2005
I find that the parties were not “living together on a genuine domestic basis” between 2004 and 2005 and that a “manifestation of ‘coupledom’, which involves the merger of two lives” did not exist.
I therefore find that the parties were not in a de facto relationship during this period
I make my finding based on the following:-
a)The evidence supports that this was a period where the parties were dating and getting to know each other.
b)The parties were not living together although they spent some overnights together.
c)I accept the respondent’s ex-wife’s evidence that the applicant rarely stayed overnight with the respondent whilst the respondent was living with the ex-wife.
d)The parties maintained separate residences.
e)The parties were primarily responsible in all aspects for the maintenance and upkeep for their own residences although I accept at times the parties assisted each other with cooking and cleaning when staying over with each other.
f)The relationship between the parties’ and the other party’s children was minimal during this time.
g)There was no financial independence or interdependence between the parties during this time.
h)I do not accept that the occasional purchase of groceries or other items for each other constitutes financial independence or interdependence.
i)I do not accept that payment towards social events and holidays for each other and family members constitutes financial independence or interdependence.
j)Whilst the parties were involved in a sexual relationship, this alone is not indicative of the existence of a de facto relationship.
k)The referring to each other as “girlfriend”, “boyfriend” or “partners” does not, on its own, make a relationship a de facto relationship.
l)The emails during this time are clearly indicative of two persons navigating their way through a new relationship and establishing boundaries but are in no way indicative of the merging of two lives or coupledom, as illustrated by the following:-
i)
In an email the applicant sent to the respondent on
11 November 2004 the applicant states:
I still believe that you can earn a person’s trust by getting to know them…..I’m not saying that you are a stranger but in some ways you are to me as you only let me into a very little of your life…The reasons is that you haven’t committed to me or indicated in any way the depth of your feelings to me…..I don’t really know why you are staying with me long term if you aren’t in love with me…..I believe my mistrust lies in your lack of commitment….A relationship should be two ways….Relationships aren’t easy at times, though I think ours hasn’t been too difficult so far and shouldn’t be if we try and understand each other…I hope you will be honest with me about why you are still with me or what your hopes are regarding our relationship….As I told you yesterday, the last three months I felt you haven’t given me much time…”
ii)
In an email the applicant sent to the respondent on
14 February 2005 the applicant states:
….While we were together, you were planning things for us to do together in the future. I don’t have a problem with you in my future; I’d love to spend more time with you so that both of us could get to know each other better and relax more with each other…..I told you that I need to have love from both sides of the parties in the relationship, that I don’t do the casual thing…..if you think that there is still the possibility that your feelings are developing, that you’d like to stay with me longer to explore where those feelings may lead you/us, I would be willing to continue our friendship. I could not stay with you if you have already decided that you could never fall in love with me, that you want to date other women because you haven’t found the right one yet and that I’m only a friend…..I do need some level of sharing in your life. I won’t be able to keep up the physical intimacy without that sharing.
m)The text messages during this time are clearly indicative of a blossoming romance, which is to be expected at the commencement of a girlfriend and boyfriend relationship.
Conclusion as to existence of a de facto relationship - 2005 to 2007
Whilst the respondent states that it was a friendship only and did his best in his evidence to downplay the level of affection for each other, including being dismissive as to the use of terms of endearment and dumbing down being seen as an exclusive couple actively involved in numerous social activities which at times involved family and friends, I find that a close intimate relationship existed during this time which at times ventured into a that of a girlfriend/boyfriend relationship.
I find however that the parties were not “living together on a genuine domestic basis” between 2005 and 2007 and that a “manifestation of ‘coupledom’, which involves the merger of two lives” did not exist.
I therefore find that the parties were not in a de facto relationship during this period.
I make my finding based on the following:-
a)The parties were not living together although they spent some overnights together.
b)The parties maintained separate residences.
c)The parties were primarily responsible in all aspects for the maintenance and upkeep for their own residences although I accept at times the parties assisted each other with cooking and cleaning when staying over with each other.
d)The applicant did not notify Centrelink of the existence of a de facto relationship during this period.
e)There was no financial independence or interdependence between the parties, with the parties maintaining separate finances.
f)I do not accept that the occasional purchase of groceries or other items for each other constitutes financial independence or interdependence.
g)I do not accept that payment towards social events and holidays for each other and family members constitutes financial independence or interdependence.
h)Whilst the parties spent time with the other party’s children, it was never in the role of being actively involved in the “care and control” of the children, with such interaction being limited to some lifts to and from school, sometimes cooking for the children, social events, holidays and the occasional overnight visit.
i)I do not accept that the exchange of parenting advice or criticism of each other’s children amounts to “care and control”.
j)I do not accept that the development of a bond and affection by the parties towards the other party’s children amounts to “care and control” of the children.
k)Whilst the parties were involved in a sexual relationship, this alone is not indicative of the existence of a de facto relationship.
l)The referring to each other as “girlfriend”, “boyfriend” or “partners” does not, on its own, make a relationship a de facto relationship.
m)The text messages around this time are indicative of a couple repairing and re-establishing their broken relationship as girlfriend/boyfriend.
n)The email traffic supports that the parties were redefining boundaries and working on redeveloping a relationship together as illustrated by the following:-
i)
In an email the applicant sent to the respondent on
6 February 2006 the applicant states:
…..I didn’t give you an altermatum; I just needed a reality check as I do when I am feeling we are getting closer, so I don’t have an unrealistic expectation of our friendship. I will leave it up to you to let me know how you are feeling about us as time progresses. You are a lovely friend and you are special to me…. I know you are trying very hard communicating with me to try to understand me so that we can have a better relationship….”
ii)In the lengthy email exchange in March 2006 when the applicant is receiving counselling, it is clear that the parties are unsure as to the strength of their friendship and where their relationship is heading.
iii)
In an email the applicant sent to the respondent on
4 October 2006, the applicant states:
……If you don’t open up to me now regarding what you want our relationship to do in the future, I feel like I won’t have any trust in your love for me….if you do decide to have future with me after I have a job and have my finances worked out…..I have no idea what you are thinking about but I don’t want a just a casual relationship. I have thought of you as close friend, my best friend…”
Conclusion as to existence of a de facto relationship - 2007 to 2009
Whilst the respondent states that it was a friendship only and did his best in his evidence to downplay the level of affection for each other, including being dismissive as to the use of terms of endearment and dumbing down being seen as an exclusive couple actively involved in numerous social activities which at times involved family and friends, I find that a close intimate relationship existed during this time but that this was in the context of a girlfriend/boyfriend relationship.
I find that the parties were not “living together on a genuine domestic basis” between 2007 and 2009 and that a “manifestation of ‘coupledom’, which involves the merger of two lives” did not exist.
I therefore find that the parties were not in a de facto relationship during this period.
I make my finding based on the following:-
a)The parties were not living together although they spent some overnights together.
b)The parties maintained separate residences.
c)The parties were primarily responsible in all aspects for the maintenance and upkeep for their own residences although I accept at times the parties assisted each other with cooking and cleaning when staying over with each other.
d)The applicant did not notify Centrelink of the existence of a de facto relationship during this period.
e)I find that there was no financial independence or interdependence between the parties and that the monies advanced by the respondent to the applicant were by way of loans which is supported by the following:-
i)It is evident in the early 2007 email traffic that the applicant was in financial difficulties and was requesting that the respondent assist her financially.
ii)The applicant acknowledged that the monies provided by the respondent during this period were by way of a loan where there was an expectation that monies be repaid.
iii)I do not accept the applicant’s argument that some of the monies paid by the respondent were not subject to the loan arrangement and find that monies provided to the applicant by the respondent either indirectly through payment of bills or directly by cash advances was paid by the respondent as part of the accumulating loan amount owing by the applicant.
iv)The applicant, in cross-examination, explained that the receipt of the monies from the respondent did not impact on her ability to receive Family Tax Benefit payments as her enquiries from Centrelink confirmed that as it was a loan and not income then it would not impact on the payments.
v)The parties kept a ledger of the monies received by the applicant from the respondent from 2007 until 2009 when the respondent moved into the Property M property.
vi)The emails, as annexed to the applicant’s April 2013 affidavit which were sent by the respondent to the applicant during this period, were business like in nature headed “Summary to date of loan from Mr Cheffer to Ms Calder” provide comprehensive mathematical equations as to the amount outstanding, how it was calculated and what repayments had been made.
vii)The respondent subsequently received a share of the applicant’s Property M property in lieu of the repayment of the loan.
f)I do not accept that the occasional purchase of groceries or other items for each other constitutes financial independence or interdependence.
g)I do not accept that payment towards social events and holidays for each other and family members constitutes financial independence or interdependence.
h)Whilst the parties spent time with the other party’s children, I find that it was never in the role of being actively involved in the “care and control” of the children, with such interaction being limited to some lifts to and from school, sometimes cooking for the children, social events, holidays and the occasional overnight visit.
i)I do not accept that the exchange of parenting advice or criticism of each other’s children amounts “to care and control’ of the children.
j)I do not accept that the development of a bond and affection by the parties towards the other party’s children amounts to “care and control” of the children.
k)Whilst the parties were involved in a sexual relationship, this alone is not indicative of the existence of a de facto relationship.
l)The referring to each other as “girlfriend”, “boyfriend” or “partners” or as “hubby” or “Mrs Cheffer” does not on its own make a relationship a de facto relationship.
m)The email traffic in 2007 supports that the parties’ lives had not yet merged, that the parties were not spending significant time together and that their relationship at times was tenuous which supports that the coupledom and the parties living together on a genuine domestic basis as required for a de facto relationship to exist had yet to occur.
n)This is illustrated by the following emails:-
i)
In an email the applicant sent to the respondent on
15 February 2007 the applicant states:
….if I’m not good enough for you, you need to find a woman who is…..feel like you can never respect my family, so you would never be able to have the bonds with me….I guess if you want someone who has a secure life and doesn’t have any major problems…that you will leave me”.
ii)In an email the applicant sent to the respondent on 12 March 2007 the applicant states:
Not sure what to make of our phone conversation Sunday night. One thing that jumped out at me was that you said you wouldn’t want to live with me cause you’d have to cook for me and you can’t look after yourself let alone anyone else…..I see you are not coping with running your home (coping less well than I do) and me getting too tired to finish chores on my own (like the dishes), your garden to upkeep and mine, two household to run with only two busy people to run them and I think…what a waste of time and energy! Wouldn’t it make sense to have two people running one household and maintaining one garden to take half the burden off each other?......So why don’t you want to try? You said it’s because you want a home of your own that you haven’t had for years. Wouldn’t a shared home be yours and mine? What is the real issue?......Please let me know what the issues are as I don’t think our relationship will last if your workload….stays high for long periods of time…..I would love to help you out every fortnight with cleaning etc. but I can’t do it all. I see this as more reason for us to try living together if you want to next six years of our life together to improve.”
iii)In an email the applicant sent to the respondent on 12 March 2007 the applicant states:
...I still think it’ll be difficult to keep our relationship going if, over extended periods of time your workloads keeps up and mine increases and we don’t spend much time together. I believe you build a relationship on support that you give each other; the most precious thing you can give someone is some of your time. I can wait longer for us to have more of a life together if you really think at this stage that you want me in your future”.
iv)In an email the respondent sent to the applicant on 7 May 2007 the applicant states:
Thanks for the week night dinner invitation – I will see how the week goes….Weekend – I need to plan these…this is a quick response to your text, I don’t want an email war now….
v)In an email the applicant sent to the respondent on 20 May 2007 the applicant states:
…..I said that I couldn’t handle you not answering my calls when you get pissed off with me….I want you to know that every time you do that to me and I have to go to your house to talk to you the next day….I get to the point of nearly walking out on you. I find it is a cruel thing you do to me….If you ever do cut my communication off again, I will be leaving our relationship…..Also I feel cut off from you because I have no other ways of getting in touch with anyone in your life….I will not feel part of your life without you trusting me with the phone numbers of your family…I need this sorted out. Maybe we should get counselling as a couple if we can’t sort it out ourselves because one more time and it’s over….
vi)
In an email the applicant sent to the respondent on
25 September 2007 the applicant states:
….I have grave concerns as to our relationship…..I know you are able to have a relationship that works with me…that has disappeared over the last few months…..How can you love me if you resent helping me because you are of the opinion that the disorder in my home is purely due to disorganisation…..How can you love me if you invalidate what I value in a relationship? How can you love me if you resent helping me out when I am really sick?....I’m now at the point where I fear your reaction and get sick to the stomach when I have to ask you for help…..You seem to have too many conditions that need to be filled before you can believe a woman is worthy of your partnership. It’s like you have a checklist. I often suspect you are waiting for me to be completely financially independent…This is not love to me…I have hope and believe in you that you will get your life to a more organised, love-focussed place at some time in your life, a life where being with me is important to you….I’d like to live with a partner who wants me…
vii)
In an email the applicant sent to the respondent on
5 November 2007 the applicant states:
….My need to hear that you want to spend more time with me comes from you having been away for so long and from the awareness while you were away that when you planned the holiday, no thoughts that you would miss me were in your mind…That’s why I needed reassurance last night; I’ve been waiting five weeks (and longer) to hear and I can’t wait another six months or a year or more to hear that you really do want to live with me…I need to be staying with you every night now for a while to put my fears at bay but it seems I can’t have that. It’s worse having you home and not being able to see you than having you away.
viii)
In an email the applicant sent to the respondent on
5 November 2007 the applicant states:
…….in my past, I had guys who laid strong foundations in the first year…but the supporting structures…were weak. With you, it’s been the opposite. I feel like the foundations you’ve set were very wet in the first year ….yet the structures of our relationship…was very strong. The messages I got from you were mixed, so I was always doubting whether you really loved me or not…Over the last two years after we’ve been back together, the foundations you’ve been setting dried a little harder …with you introducing me slowly into your family and circle of friends...but I was totally thrown by you booking such an important holiday without even consulting me…I was so shocked to learn that you didn’t trust me and even lied about your plans…to hide you were going to (country omitted). Our foundations, before and while you were gone got rained heavily on and became wet again…I am totally in a confused state of mind about our friendship…I feel hurt and insecure and not daring to think you really want to settle down with me….To get me to stay, it will take you really listening to me, not running away from me, not hanging up on me, not turning your phone off on me, not needing a weekend away from me…I am on the verge of walking out if you revert back to any of these behaviours. If you don’t want me in your life…then we need counselling or to break up…
o)The uncertainty as to the strength of the relationship and what possible future the parties may have together continued into the beginning of 2008, when the parties were attending counselling therefore dispelling the notion of the existence of de facto relationship at that time, as illustrated by the following email:-
i)In an email the applicant sent to the respondent on 5 March 2008 the applicant states:
…….I left tonight because I don’t feel my presence has made any difference to you the last couple of nights…You came over Monday night and your attitude was of someone who had been inconvenienced by being there…You seemed more interested all night into getting into bed, with or without me didn’t seem to make any difference to you. Not sure why you came over, thought the idea was to spend time together……I didn’t realise how big our problems were until we spoke to (omitted)…..am not sure I can try to make things work if I can’t feel that you want me…
p)By 2008 plans were underway to progress their relationship to that of living and being financially involved, in improvement of the Property M property and the establishment of a home based business for the applicant.
q)This is illustrated by the following email traffic:-
i)In an email the respondent sent to the applicant on 28 May 2008 the respondent states:
Just want to tell you that I am looking forward to us spending our lives together. It’s going to take some sorting – especially with all my stuff in my house – and financially there will be a few things to organise and resolve however everything will be OK. I am looking forward to getting ourselves organised – sitting down together with your kids (and maybe mine as some stage as well) and discussing how we want to plan our lives. Your kids are great and I hope we will have fun organising our home together so that their needs are met as best we can along with yours, mine, and any others that may live with us.
ii)
In an email the applicant sent to the respondent on
14 August 2008 the applicant, whilst setting out the research conducted by the applicant as to what is involved in having home stay students and the renovations needed to the Property M property for this to occur states:
….I have been so happy the last few months because I finally feel my life will move ahead more quickly and with a whole lot more love and support in it thanks to you. I am excited that I will be able to keep my family financially and not drain your resources or my assets.
iii)In the respondent’s response email on 14 August the respondent states:
…Of course I will listen and understand what is required to set up child day care at your place. However if it requires works that are not required as part of our planned home renos and are significant in costs then we need to think about them and decide….
iv)
In an email the respondent sent to the applicant on
23 November 2008, the respondent discussed what financial information was needed from the applicant’s brother in order to transfer over the Property M property.
v)In an email the applicant sent to the respondent on 4 January 2009 that applicant states:
….I would like us to work together to get your paperwork done and mine, finish the (omitted) renos with me doing the majority of the work during the week so I can get the business going earlier before I collapse then clean your house and move your stuff over to my place. It would mean me not working and you paying our bills probably for a month or six weeks, but that would go on our IOU list, not a handout from you……This is the time we should be careful to make things work financially and health wise…..I would have to declare to Centrelink us living together for this to work…I also don’t think the job you have of sorting your things at your place and moving them to my place is a job that can be done by one person only. I believe we need to work together. Please let us work together to get this done more quickly otherwise it will be Christmas 2009 and we still won’t have you living here and your house rented out. I’m not sure I can wait another year for you….”
r)Whilst leading up to the respondent moving in to the Property M property in 2009 there were extensive discussions as to the renovation of the Property M property and the commencement of the applicant’s home business, I find that these were plans only to take the next step forward in their relationship and not indicative, at that point in time, that the parties lives had merged and that they were involved in coupledom.
s)Similarly the discussion surrounding the preparation of a de facto agreement, which never eventuated, was in preparation of the parties living together and not evidence that a de facto relationship existed at this time.
Conclusion as to existence of a de facto relationship - 2009 to 2010
I find that the parties were “living together on a genuine domestic basis” between April 2009 and October 2010 and that a “manifestation of ‘coupledom’, which involves the merger of two lives” existed.
I therefore find that the parties were in a de facto relationship for this period.
I make my findings based on the following:-
a)The parties were living together in the Property M property with the applicant’s children.
b)The applicant notified Centrelink of the existence of a de facto relationship during this period.
c)I do not accept the respondent’s evidence that it was a friendship only during this period and that there was no intention to settle down with the applicant or to make plans as to their future.
d)The emails leading up to the parties moving in together in 2009 are indicative of an acknowledgment by both parties that the relationship was shifting from one of boyfriend/girlfriend to a relationship whereby the parties would be merging their lives and being a couple.
e)I find that the parties during this time were mutually committed to each other as demonstrated by the following:-
i)The parties shared the duties of running the household.
ii)The parties shared in doing things for and with the applicant’s children.
iii)The respondent prepared “To do lists” for the members of the household.
iv)The parties planned for the renovations for the Property M property and the respondent prepared comprehensive spreadsheets as to what needed to be done at the Property M property.
v)The parties became financially enmeshed with the transfer of a part share in the Property M property to the respondent, the parties taking out the joint mortgage and the parties accessing monies from the draw down facilities to carry out the renovations.
vi)There was an acknowledgment of the family unit by the respondent when in the joint application for the loan; one of the reasons quoted was “new computers and accessories required for all family members:- Mr Cheffer, Ms Calder and Ms Calder’s children for work and school.”.
vii)The parties projected their existence as a couple to the outside world as evidenced by various invoices attached to the applicant’s April 2013 affidavit in respect to the work carried out in the renovations which refer to “Mr & Mrs Cheffer”, “Ms Calder & Mr Cheffer” and “Mr Cheffer and Ms Calder”.
viii)The respondent assisted the applicant in setting up her business of a (omitted) including doing budget sheets.
f)I do not accept the respondent’s evidence that the arrangement to move into the Property M property and acquire a share in the property was a commercial arrangement only as:-
i)The sexual part of their relationship continued.
ii)The respondent became more actively involved with the applicant’s children.
iii)The respondent allowed his finances including wages to be enmeshed with the finances of the applicant.
iv)The respondent obtained a share in the Property M property which did not satisfy the extent of the loan amount provided to the applicant between 2007 and 2009.
g)The financial situation had changed in this period and I find that the parties were financially dependent or interdependent based on the following:-
i)The loans from the respondent to the applicant ceased and no more entries were made to the ledger kept by the parties.
ii)The parties’ financial situation changed when the respondent moved in, with the parties sharing in the costs of running the household.
iii)The respondent acquired a share in the Property M property.
iv)The parties acquired a joint mortgage over the Property M property.
v)The parties had access to monies through the mortgage by way of draw down facilities such monies being used by both parties as well as for the renovation of the Property M property.
vi)The parties set up and chose the names for the sub-accounts which were fed into by the draw down monies.
vii)A joint bank account was opened by the parties.
viii)The parties’ income were placed into joint accounts and used for joint purposes.
ix)The parties took out and utilised a joint credit card.
h)I find that the conflict that occurred between the parties (described by the applicant at [480] of her April 2013 affidavit as “arguments…regarding finances, renovations and parenting styles”) which lead to the demise of the de facto relationship is indicative of the reality faced by the parties when their relationship made the crossover from that of girlfriend and boyfriend to that of a de facto couple.
i)I find that the de facto relationship ceased in October 2010 and not in March 2010 based on the following:-
i)Although the applicant requested the respondent to leave in March 2013, the parties continued to share the same bed and bedroom until October 2013, where a level of intimacy continued.
ii)The parties continued to attend family functions and social engagements between March 2010 and October 2010.
iii)The parties continued to access the accounts and make purchases.
iv)The parties were both aware that the relationship had ended.
Conclusion as to existence of a de facto relationship
I find that a de facto relationship existed between the applicant and the respondent and that the de facto relationship commenced in April 2009 and concluded in October 2010.
Is the extent of the de facto relationship such that the Court has jurisdiction pursuant to section 90SB?
The second question then is: Does the Court have jurisdiction to make any orders to alter the property interests between the applicant and the respondent now that the finding has been made as to the existence of a de facto relationship between April 2009 and October 2010?
Conclusion
I find that, as the period of the de facto relationship was for a period of some 18 months, which is less than the requisite period of two years as set out in section 90SB(a), then the Court does not have the jurisdiction to determine a property division between the parties.
Additional issues
During the course of the hearing and in submissions several issues were raised, which will now be addressed.
The first issue is the credibility of the applicant as the applicant failed to annex to her affidavit all of the email traffic which occurred between the parties during their relationship, which was then annexed to the respondent’s affidavit.
I find that the failure of the applicant to annex such documents is no different to the failure of the respondent to annex to his affidavit, emails and text messages which also existed and which appeared in the applicant’s affidavit only.
It is clear from the material that the parties chose to bring to the Court’s attention those pieces of evidence which would best bolster their case.
Whilst this is a dangerous practise, unfortunately it is not an unusual practise.
The Court’s role is to make findings on all the evidence before the Court, however that evidence has been brought to the attention of the Court.
The emails and the text messages make informative reading and in this matter paint a picture which is very different to that portrayed by either party.
I have placed significant weight on the emails and text messages in making findings as to the existence and length of a de facto relationship.
This brings up to the second issue which is the argument by the respondent that the relationship, being in a state of dysfunction, could not at any time be seen as a de facto relationship.
Certainly this relationship has had its difficulties.
The applicant was at times needy and emotional and the respondent was at times distant and dismissive.
But, despite the dysfunction, both parties allowed this relationship to span over a number of years; at times progressing, and at times regressing.
Towards the end of the relationship, the relationship progressed resulting in the parties living together for 18 months.
During the relationship parties had choices.
The respondent could have left the relationship.
The respondent could have chosen not to live with the applicant.
The respondent could have chosen not to become financially involved with the applicant.
But the respondent stayed, knowing what difficulties the relationship had endured and what difficulties the parties may be facing.
As stated by Riethmuller FM (As his Honour was then known) in Baker & Landon [2010] FMCAfam280:
In assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints and grievances and less than entire commitment are often found in personal relationships, including marriage, and are not inconsistent with mutual commitment to a shared life.
I therefore find that the presence of dysfunction, whilst perhaps defining the relationship, had added little to the impact on the status of the relationship and therefore I give little weight to its existence in determining whether a de facto relationship existed.
The third issue is the failure by the respondent to notify Centrelink as to the existence of a de facto relationship until April 2009.
Whilst not a determining factor on its own, I find that failure of the applicant to inform Centrelink as to the existence of the de facto relationship is an issue together with many other issues that were taken into account in declaring the existence of a de facto relationship.
However I do not accept that this is a situation where the principle as set out in Elias & Elias (1977) FLC 90-267 applies as there is insufficient evidence to support that the applicant, as alleged by the respondent, made representations to Centrelink to gain an advantage and that the applicant subsequently lead evidence that contradicted these representations.
The last issue is the submission by the respondent that the facts in this matter “bear a striking resemblance” to the facts in Jonah & White.
I disagree and, in any event, it is imperative that each matter be determined on its own facts and that is these facts only that lead to the final conclusion.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 12 November 2013
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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