Capleman and Capleman

[2018] FamCA 457

FAMILY COURT OF AUSTRALIA

CAPLEMAN & CAPLEMAN [2018] FamCA 457

FAMILY LAW – JURISDICTION – DE FACTO RELATIONSHIP – Where the applicant sought a declaration under s 90RD that she and the respondent were in a de facto relationship – Where the parties were previously married and have two children of the marriage – Where the parties commenced cohabitation some years after their divorce – Where it was established that the parties were in a de facto relationship during the time they were cohabiting.

Family Law Act 1975 (Cth) ss 4AA, 4AA(2), 90RD

Clarence v Crisp (2016) FLC 93-522
Jonah & White (2012) FLC 93-522
Lynam v D-G of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT: Ms Capleman

RESPONDENT: Mr Capleman

FILE NUMBER: SYC 6473 of 2016

DATE DELIVERED: 28 May 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 5 and 6 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Swan Lawyers

THE RESPONDENT: Self-represented

Orders

1. It is declared that between early 2011 and August 2015 the applicant and the respondent were in a de facto relationship.

2. The matter is listed for a mention before the Docket Registrar in order to make directions which will prepare the matter for a Conciliation Conference and a hearing should that be necessary.

3. On or before the expiration of 21 days from the date hereof, the applicant, and the respondent should he so desire, are to provide to the Court and the other party written submissions outlining why the Court should not refer to the relevant Government official a copy of my Reasons for Judgment delivered 24 May 2018 so that an investigation may be undertaken, if deemed necessary, to ascertain whether the applicant was entitled to receive a pension, or any other government payment, between early 2011 and August 2015.

4. I reserve my determination on whether a copy of my Reasons for Judgment delivered 24 May 2015 should be provided to a relevant Australian Government authority for their consideration.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Capleman & Capleman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 6473 of 2016

Ms Capleman

Applicant

And

Mr Capleman

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed by Ms Capleman (“the applicant”). In this hearing the Court is asked to determine if there is a de facto relationship between the applicant and Mr Capleman (“the respondent”).

2. The applicant sought a declaration, pursuant to s 90RD of the Family Law Act 1975 (Cth), that she and the respondent were in a de facto relationship between 2011 and 2015.

3. The applicant commenced proceedings by filing an Initiating Application in the Federal Circuit Court on 6 October 2016 in which she sought parenting and property orders. She has since amended her application on 28 March 2018.

4. The respondent filed a Response on 15 December 2016 which has since been amended on 11 July 2017 and again on 4 April 2018.  He opposed the orders sought by the applicant and sought other parenting orders.

5. The applicant relied on the following affidavits:

   ·Affidavit of the applicant filed 1 August 2017 and some paragraphs of her affidavit filed 6 October 2016;

   ·Affidavit of Ms B sworn 2 June 2017;

   ·Affidavit of Ms C sworn 28 May 2017;

   ·Affidavit of Ms D sworn 27 May 2017;

   ·Affidavit of Mr E sworn 24 April 2017; and

   ·Affidavit of Ms F sworn 24 April 2017.

6. The respondent relied solely on his affidavit sworn 11 July 2017.

7. The respondent had filed a number of affidavits sworn by witnesses who addressed matters touching upon the nature of his relationship with the applicant during the period 2011 to 2015. However, he chose not to read those affidavits.

8. In the hearing the applicant was represented and the respondent was not. Before the applicant gave her oral evidence I raised with the parties how the Court is to deal with objections to the content of the affidavits read by each party. Each agreed that the evidence in those affidavits should be accepted as evidence subject to the content being relevant and reliable. I have applied weight to the evidence presented on that basis. 

Background

1. The applicant and respondent met in 1990 when they were both still at school. The wife was aged 13 and the husband was 15. They commenced cohabitation in late 1992 and married in 1995 when the wife was aged 18.

2. The parties have two children. X (“X”) born in 2000, currently aged 17, and Y (“Y”) born in 2002, currently aged 16. X has experienced some health issues which will only be canvassed in these reasons insofar as it is relevant to the determination of the issue of a de facto relationship.

3. The parties separated in early 2006 when the respondent moved out of the former matrimonial home. They entered into a Financial Agreement on 3 August 2006 in settlement of their property matters.

4. They divorced in 2009.

5. In or around March 2010 the respondent purchased a two storey, four bedroom home at G Street, Suburb H (“the Suburb H property”). The property was purchased using a loan obtained by the respondent from his parents and a mortgage from the ANZ bank.

6. The parties commenced living in the same residence in October 2010 when the applicant moved into the Suburb H property. There is a dispute as to which part of the property each party lived in as and from that time.

7. The applicant vacated the Suburb H property in August 2015.

Credit

1. Each of the applicant and respondent gave oral evidence. Each of the applicant’s witnesses were required for cross-examination. One witness, Ms G, gave evidence by telephone with the consent of the respondent.

2. In relation to each of the applicant’s witnesses I find there was nothing about the way they gave their evidence or the content thereof which suggested they were being untruthful.

3. The applicant was the first witness to give oral evidence in the hearing. She presented as being mildly angry. She was assertive in her responses to questioning by the respondent. She initially demonstrated a manner of giving evidence which did not answer the question she was asked or deny or admit the proposition put to her. I advised her that such an approach would not be helpful to her case and she desisted from that approach from then on. Notwithstanding the description of the presentation of the applicant in the witness box I did not consider that presentation indicated she was being untruthful.

4. There are aspects of the content of the applicant’s evidence which do require consideration whilst endeavouring to determine the broader issue of credit.  The same is true of the respondent. This is a case where there are significant disputes on significant facts thus requiring the Court to determine which version is to be preferred in relation to those disputes, albeit that it may be the disputes are found to be as stated by the applicant in some cases and as stated by the respondent in others.

5. There are two areas of fact which may be very significant in determining which of the parties should be mainly accepted as presenting the most accurate evidence. Those two areas are:

   (a) The evidence of the applicant that she drove the children to school during a two year period when she was a disqualified driver and;

   (b) Whether she received a supporting parents’ pension during the period she says the parties were in a de-facto relationship.

   I will canvas the evidence about those two matters in these reasons.

6. The respondent gave oral evidence in an apparently honest manner. He represented himself and he appeared reasonably comfortable in that role.

7. The respondent was cross-examined by the applicants’ counsel. He did not appear to have a good recollection about dates and some events. He readily conceded same.

Relevant law

1. The meaning of a “de facto relationship” is set out in s 4AA of the Family Law Act 1975 (Cth).

2. A person is deemed to be in a de facto relationship with another person if “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

3. Sub-section (2) of that provision sets out a number of circumstances to be considered when determining whether two persons were in a de facto relationship. Those circumstances are:

   (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.

4. Sub-section (3) states that no particular finding in relation to any circumstance outlined above is to be regarded as necessary in deciding whether the persons have a de facto relationship.

5. The case law indicates that any attempts to isolate or place greater importance on any of the above factors would be productive of error (See Lynam v D-G of Social Security (1983) 52 ALR 128).

6. In Jonah & White (2012) FLC 93-522 the Full Court emphasised the importance of applying only the statutory test contained in s 4AA. Their Honours said, at 86,682:

   It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

7. The importance of not stepping outside of the statutory test in s 4AA(1) was revisited by the Full Court in Sinclair & Whittaker (2013) FLC 93-551 where their Honours Bryant CJ, Thackray and Aldridge JJ said:

   94. Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.

8. I propose to set out the evidence in relation to each of the circumstances enumerated in s 4AA(2) and any other evidence I consider relevant to a determination of the existence of a de facto relationship.

(a) The duration of the relationship

1. It was the applicant’s evidence that she and the respondent re-commenced a relationship at the end of 2011 which lasted until early 2015.

2. The applicant asserted that she initially resumed cohabitation with the respondent because she was struggling as a single mother. She deposed that by 2011 she and the respondent were sharing a room and a bed, with the exception of a two-month period that she slept on a mattress after an argument.

3. The applicant remained in the Suburb H property until mid to late 2015 when she asserts that they separated.

4. The respondent does not dispute that the applicant was residing in the Suburb H property in 2011. He asserts that the applicant moved out of the Suburb H property in August 2015 and he assisted her with the move. He denies that they were in a de facto relationship during that time.

(b) The nature and extent of their common residence

1. The Suburb H property is a two storey dwelling with four bedrooms.

2. The respondent deposed that in mid-2010 he converted the top level of the Suburb H property into a separate dwelling. He deposed that he treated the property as a duplex and that he and the children lived in the lower level of the property. The upstairs part of the property had its own separate entry.

3. The applicant moved into the Suburb H property in October 2010. It was her evidence that she commenced living at the Suburb H property because she was struggling to make ends meet as a single mother.

4. The respondent deposed that he offered the applicant the upper level of the Suburb H property in return for reduced rent to assist her as she was struggling financially. However, he had tenants living upstairs until July 2011 and the applicant stayed in the downstairs area until those tenants vacated the property.

5. It was the applicant’s case that she and the respondent commenced sharing a bedroom and a bed in early 2011. This event marks the commencement of the applicant’s case that she and the respondent commenced to cohabit in a de facto relationship. The respondent disputed this assertion, and claimed that the applicant slept on a mattress in the lounge room.

6. The respondent deposed that the applicant moved upstairs when the tenants left in July 2011. It was the applicant’s evidence that the respondent also moved into the upstairs area at this time.

7. The respondent deposed that the applicant failed to pay rent as agreed and that he received rent from various flatmates whom the applicant had staying with her between October 2011 and December 2012.

8. It was the applicant’s evidence that upon resuming cohabitation with the respondent she completed all the household chores and was the primary carer of the children. She deposed that the applicant, respondent and children would eat dinner together as a family most nights.

9. Two of the applicant’s witnesses deposed to having observed the applicant to have her clothing and personal items in the main room of the Suburb H home along with the clothes and personal items of the respondent. The respondent deposed that between 2013 and 2015 he permitted the applicant to utilise space in his wardrobe to store her clothes.

10. The applicant’s parents swore affidavits in which they deposed to staying overnight at the Suburb H property on a few occasions between 2011 and 2015. The applicant’s mother and father both deposed that they observed the applicant and respondent sharing a bedroom and a bed. The respondent claimed that the applicant was uncomfortable at her parents seeing her sleep on a mattress so he consented to her sharing a bed with him when they stayed over.

11. In cross-examination the respondent agreed there were photos of the applicant and respondent in the house. The respondent was shown a photograph (Exhibit W3) which he conceded was a photo of the refrigerator in the Suburb H property, and further he conceded there was a photo of the applicant in a wedding dress. He also agreed there were other photos of the applicant on the refrigerator in the house.

12. There was another aspect to this case which is important. There are two children of the parties’ marriage. Those two children lived with the applicant after the parties’ separation (of the marriage) and their divorce. When the applicant commenced residing in the Suburb H property so did the children. The evidence satisfies me that each of the applicant and respondent thereafter fulfilled significant roles in the day to day care of those children. 

13. In relation to the dispute as to which part of the property each party resided in, it is necessary to note that the case law indicates that “full-time residence” is not necessary in determining whether the parties shared a common residence (See Clarence v Crisp (2016) FLC 93-522).

(c) Whether a sexual relationship exists

1. The applicant deposed that she and the respondent had a sexual relationship from the time she moved back into the Suburb H property until separation in 2015. This was not disputed by the respondent. The thrust of the respondents’ case was that this happened occasionally rather than frequently or routinely (if that be an appropriate descriptive). In cross-examination he conceded he had sexual intercourse with the applicant, on average, once a month. However, he said “it may not have been that regular”. There were no months however, when they did not have sexual intercourse. He conceded that on occasions he shared a bed with the applicant.

2. Ms B, a close friend of the applicant, swore an affidavit in which she deposed to observing the applicant and respondent sleeping in the same bed in May 2014. At that time she had a conversation with the applicant in which she asked whether she and the respondent were still in a relationship and whether they were still sleeping together to which the applicant said “yes”.

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. The applicant asserted that during the cohabitation period she purchased all of the groceries and household goods and paid for the children’s clothing and extra-curricular activities. She asserted that she undertook all of the domestic chores in the household, including taking the children to school and after school activities and appointments.

2. There is no issue that the respondent paid for the mortgage and utility bills. He asserts that he paid all of the school fees and costs of maintenance for the children.

3. The respondent deposed that the applicant did occasionally purchase household goods and groceries for himself and the children, however, he said she would provide him with receipts and he would reimburse her less the rent that she owed him.

4. It was the respondent’s case that he and the applicant had kept their personal finances separate since their separation in 2006.

5. In cross-examination the respondent conceded that between April 2011 and April 2015 the applicant had the use of a credit card on an account owned and operated by him.

6. The respondent claimed that the applicant never paid him rent, although they had agreed that she would pay him $400 per week. Between July 2011 and July 2013 the respondent said he received rent from persons to whom the applicant sub‑leased her part of the Suburb H property.

7. In 2013 the applicant set up a business in the Suburb H property which became her workplace. She asserted that this allowed her to continue to work whilst caring for the children by taking them to and from school and their extra-curricular activities.

8. Between January and March 2013 the respondent renovated the Suburb H property to erect a separate granny flat and amalgamated the upstairs and downstairs area of the Suburb H property. He leased the granny flat for $340 per week. 

(e) The ownership, use and acquisition of their property

1. The Suburb H property was purchased by the respondent in about 2010 and was in his sole name. The property was acquired by the respondent prior to the applicant commencing to occupy the property with him. He was solely responsible for the mortgage payments and outgoings.

(f) The degree of mutual commitment to a shared life

1. The respondent asserted that the applicant had engaged in a number of casual relationships with other men after their separation in 2006 and during the time she lived at the Suburb H property. He claimed that she was in a relationship with a man, Mr J, until December 2011.

2. The applicant deposed that the parties and the children shared various family holidays together. The respondent conceded that the applicant was present on a holiday he and the children shared in 2014.

3. The applicant deposed that in May 2012 she had her ring finger tattooed with the respondent’s name. She showed the Court and the respondent her tattoo during the hearing.

4. It is the applicant’s case that the parties socialised as a family in public places from time to time. Some of the photographs which the applicant tendered I am satisfied do establish that assertion.

1. The respondent asserted that he did not socialise with the applicant following their marriage separation in 2006.

2. Ms D was a witness for the applicant. She swore an affidavit on 27 May 2017. She said she has known the applicant for five years. She visited the applicant and the respondent on “a regular basis”. She observed the applicant and respondent embrace each other “from time to time.” She was in “no doubt” that they were living together and she said that they presented as “a couple”.

3. The applicant’s father swore an affidavit on 24 April 2017. The applicant read that affidavit in her case.

4. The applicant’s father said that he had a conversation with the applicant (inferentially at the time she began to occupy the Suburb H property) where he said to her “Do you know what you are doing?” to which she replied “Yes. I want to be part of a family. I miss the family unit.”

5. The applicant’s father said that he and his wife stayed at the Suburb H property when the applicant was living there. That occurred more frequently than twice a year. He observed the applicant and respondent shared a bedroom and slept in the same bed. He said that the applicant and respondent visited him for “family holidays”. On those occasions they stayed in the same bedroom. In 2014 the family stayed at his house for Christmas.

6. The applicant’s mother swore an affidavit on 24 April 2017. She said after the applicant moved to live at the Suburb H property, she and her husband (the applicant’s father) stayed at that house with the applicant and respondent at least three times each year. She said she saw the applicant and respondent in bed together without clothing and on other occasions in pyjamas.

7. The applicant’s mother said that there were occasions when the applicant, the respondent and their children stayed with her. On those occasions the applicant and respondent “shared a bed and bedroom”.

8. Ms B, a friend of the applicant, also swore an affidavit. She also saw the applicant at the Suburb H property. She observed the applicant undertaking domestic tasks including cooking and cleaning. She stayed with the parties on one occasion and saw that they shared a bedroom and bed.

(g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

1. The parties did not register a relationship under the Relationships Register Act 2010 (NSW).

2. This does not apply.

(h) The care and support of children

1. The applicant deposed that she had the primary care of the children after the parties’ separation in 2006 until moving into the Suburb H property in 2010. This was disputed by the respondent who claimed that the children lived with him and the applicant on a “more or less equal basis”.

2. The applicant claimed that the children frequently stayed in the upper level of the Suburb H property with her and that this continued after, as she asserts, the respondent moved upstairs in 2011.

3. The evidence in relation to the children and with whom they lived primarily between 2011 and 2015, was somewhat unclear.  However, it is not necessary to decide that issue as there is no dispute the children and the parties all lived in the same residence at Suburb H.

4. On 24 April 2017 orders were made, by consent, for the respondent to have sole parental responsibility and care of the children, and for the children to spend time with the applicant in accordance with their wishes.

(i) The reputation and public aspects of the relationship

1. Annexed to the applicant’s affidavit are a number of posts to social media which she made throughout the 2011 to 2015 period, including photographs of the respondent and one of their wedding photographs.

2. The applicant’s mother deposed that in December 2015 the respondent said to her “I will always love [the applicant] and I will always be there for her and look after her.”

3. The affidavit evidence filed in the applicant’s case is limited to observations made by third parties of the applicant and respondent within the Suburb H home.

4. The respondent claimed that he and the applicant did not socialise or go out together.

5. The respondent annexed to his affidavit a letter written by the applicant for a Local Court matter in which she claimed she was a single mother. In response to this, the applicant stated that she wrote this as she believed it would reduce her sentence. I do not consider this factor to provide support for the respondent’s case having regard to the Full Court’s decision in Sinclair & Whittaker where their Honours held that the parties’ perception of the nature of their relationship is not determinative. Their Honours said:

   66. The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10 McColl JA said at [99]:

   Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances … (Reference omitted)

Any other relevant factor

1. As stated earlier there are two aspects of the applicants’ evidence which may impact upon her credibility generally. I stated those matters earlier as:

   (a)The evidence of the applicant that she drove the children to school during a two year period when she was a disqualified driver; and

   (b) Whether the applicant received a supporting parent’s pension during the period she says the parties were in a de facto relationship.

2. During her oral evidence the applicant said she had driven the children to school in the mornings during the period that she lived in the Suburb H property. She also conceded that during that period she had been an unlicensed driver having had her license cancelled for a period of two years. She conceded she had been apprehended by police whilst driving unlicensed. She was required to attend at court and she received a further short period of disqualification. She said she had told the presiding Magistrate it was a “once only” occasion that she had driven during the period of disqualification.

3. The applicant said that she had used the respondent’s motor vehicle to drive during the disqualification period. She said she had done so with his consent. The inference clearly intended was that the respondent had aided and abetted her law-breaking activity.

4. The respondent did not deny the applicant had driven the children to school in his vehicle during a period he knew her to be a disqualified driver.

5. The respondent tendered bank records of the applicant for the period 23 August 2012 to 23 November 2012. The records were marked as Exhibit H1. The record showed receipt by the applicant of three deposits. Two were received on 11 September 2012 and one was received on 12 September 2012. The detail was recorded as follows:

   11 Sep Deposit-Family Allowance Aus Gov $100.66.

   11 Sep Deposit-Family Allowance Aus Gov $339.36

   12 Sep Deposit-Pension CTRLINK Pension $516.20

6. It is the respondent’s case that those deposits establish that at a time the application asserts she was living in a de facto relationship with the respondent she was representing to the Australian Government that she was not married or living in a de facto relationship. The respondent’s case is that the applicant is being untruthful when she now says she was, at the time she was receiving the pension on 12 September 2012 and thereafter, living in a de facto relationship.

7. Notwithstanding the inference, suggested by evidence of receipt of a pension by the applicant in 2012, that she had represented to the Australian Government authority that she was not living in a de facto relationship, in the absence of a clear admission by the applicant (not given in this hearing) that she had made that representation, I could not be satisfied she had done so. Nor could I be satisfied that she was not entitled to receive the pension payment even had she informed the Government authority of the living circumstances she now asserts was a de facto relationship with the respondent.

8. Given that a declaration is sought by the applicant as to the existence of a de facto relationship with the respondent between 2011 and 2015, and given that the evidence does create an inference that the applicant in such circumstances may not have been entitled to such a payment, the Court has, in my opinion, an obligation to hear from the applicant as to why the Court should not provide to the relevant Government officer a copy of this judgment. I will provide such an opportunity to the applicant should I make the declaration she seeks.

9. The evidence of the applicant having driven a motor vehicle in NSW during a period of disqualification of her driving license, which evidence I do accept, together with her evidence that she was untruthful when she informed the presiding Magistrate that the occasion on which she was apprehended by police driving a motor vehicle during a period of disqualification was a once only event, does tend to establish that the applicant has a disregard for some of the laws of this land and that she is prepared to lie to a appointed member of the judiciary. As such her evidence needs to be considered very carefully to assess whether she should be believed in this hearing.

10. The fact that the applicant has confessed to the unlawful act of driving whilst a disqualified driver and that she had lied about that to a judicial officer, may suggest contrition on her behalf and perhaps now a realisation that such behaviour was illegal and reprehensible.

Determination

1. The applicant submitted that there is sufficient evidence to establish that, on the balance of probabilities, there was a de facto relationship between the applicant and respondent which commenced in 2011 and concluded in mid-2015. The respondent submitted to the contrary.

2. I am satisfied that during the period 2011 and mid 2015 the applicant and the respondent did engage in a sexual relationship which occurred on at least a monthly basis. I am satisfied they shared the same bed and bedroom for the majority of the said period. I am satisfied that the respondent did provide the applicant with financial support either through the reimbursement of funds she expended on household expenses or for the children. I am satisfied that the applicant, respondent and the children shared holidays together and that to the casual observer showed all the appearance of a united family.

3. I am satisfied that the applicant and the respondent shared in the care of the children whilst they all resided in the Suburb H property.

4. I am satisfied that the applicant and the respondent, and on occasions the children, did participate in social outings on some occasions separate from their holiday periods together. On such occasions I am satisfied they presented as “a couple” or as an intact family unit.

5. Having considered the above factors in globo, I am satisfied that the balance of factors favouring the applicant’s case outweigh those which favour the respondent’s case. I am satisfied on the balance of probabilities that the parties did live in a de facto relationship between early 2011 and August 2015. I will make a declaration to that effect as sought by the applicant.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 28 May 2018

Associate: 

Date:  28 May 2018