Caughey & Peckham (No 2)
[2022] FedCFamC1F 670
Federal Circuit and Family Court of Australia
(DIVISION 1)
Caughey & Peckham (No 2) [2022] FedCFamC1F 670
File number(s): SYC 3782 of 2019 Judgment of: CHRISTIE J Date of judgment: 13 September 2022 Catchwords: FAMILY LAW – Section 90RD THRESHOLD – Where the applicant asserts the parties were in a de facto relationship for three years – Where the respondent contends the parties were in a de facto relationship for less than two years and the relationship broke down for several periods within the time the parties lived together – Whether the Court must deduct alleged periods of separation –Where contemporaneous documents were of assistance - Whether having regard to all circumstances in s 4AA of the Family Law Act 1975 (Cth) the parties were living together in a genuine domestic relationship – Where the Court finds that the parties were in a de facto relationship. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RB, 90RD, 90SB Cases cited: Blass & Blass (2022) 64 Fam LR 625; [2022] FedCFamC1A 63,
Carlson & Fulvium [2012] FamCA 32,
Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157,
Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68,
Dahl & Hamblin (2011) FLC 93-480; [2011] FamCAFC 202,
Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18,
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200,
Lynam v Director-General of Social Security (1983) 52 ALR 128,
Nord & Van (2018) FLC 93-833; [2018] FamCAFC 75,
Soulos & Sorbo [2019] FamCAFC 231.
Division: Division 1 First Instance Number of paragraphs: 144 Date of hearing: 1 – 5 August 2022 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Apex Legal Counsel for the Respondent: Mr Sullivan QC with Mr Livingstone Solicitor for the Respondent: Holmes Donnelly & Co ORDERS
SYC 3782 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CAUGHEY
Applicant
AND: MR PECKHAM
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
13 SEptember 2022
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) this Court declares the parties were in a de facto relationship for a period of not less than two years.
2.The matter is listed for a Case Management Hearing at 3.30 pm on 19 September 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under Caughey & Peckham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This matter was set down for a threshold hearing to determine whether the parties were in a de facto relationship as that is defined at law, and if they were, how long that relationship lasted.
At issue are the following factual matters:
(a)When did the parties commence to live together?
(b)When did the parties cease to live together?
(c)Did the parties live together for two years?
(d)From what date is the cohabiting relationship between the parties to be characterised as a de facto relationship having regard to the statute?
(e)During the period the parties lived together did they separate, if so for how long and should these periods be deducted from the total period of cohabitation?
(f)If the parties lived together for less than two years, did the applicant make substantial contributions?
(g)If the applicant made substantial contributions, would there be a serious injustice to her if she were not permitted to bring proceedings for property adjustment?
Background
Ms Caughey (“the applicant”) filed an Initiating Application on 13 June 2019.
Mr Peckham (“the respondent”) filed a Response on 26 July 2019.
It is common ground that the parties were in a relationship and that, for a period of time, it was a relationship where they shared a common residence but the legal characterisation of the relationship is in issue and the parties have requested that this Court, being the Federal Circuit and Family Court of Australia (Division 1) (“the Court”), determine the dispute.
The applicant asserts that she moved into the respondent’s property at B Street, Suburb D (“Suburb D”) in early 2016. She gives evidence that shortly after she registered her digital address on her Apple account as Suburb D. In mid-2016, the applicant’s affidavit evidence says that she changed her home address to Suburb D with the Australian Electoral Commission (“AEC”) and obtained a quote for removal of her possessions.
Both the applicant and respondent (“the parties”) called on their respective adult children from previous marriages to give evidence in their case. Each witness gave different versions of the applicant’s attendance at Suburb D in the period early 2016 to late 2016. As discussed below, from time to time, the account of the child differed from the account of the parent.
In late 2016 both parties agree that the applicant and respondent were living together at Suburb D on a full time basis.
In late 2016 the applicant sold a property owned by her at C Street, Suburb E having purchased an apartment in the F Building at G Street, Sydney (“the F Building”) in late 2016. The apartment came with a car space which the respondent’s daughter used.
The parties were not together to celebrate Christmas on 25 December 2016 (spending the day with their respective families) although agree that they spent the evening of 31 December 2016 together.
In early 2017 the applicant provided the respondent with a cheque in the sum of $250,000 which he used to purchase a boat. In mid-2017 the respondent transferred to the applicant $253,860 in repayment of the monies which she had loaned him for the purchase of the boat plus interest.
The parties agree that from at least mid-2017, the respondent proceeded to transfer to the applicant the sum of $1,000 per week.
Some weeks later the respondent says that the parties had an argument and there was a five week separation. In mid-2017 the respondent says he and the applicant reconciled and she moved back into Suburb D. The applicant denies a separation at this point.
In late 2017 the respondent says the parties had an argument and they separated for one week. The applicant denies a separation at this point.
In early 2018 the respondent’s daughter was admitted to H Hospital and both the applicant and respondent visited her during that hospitalisation.
During early 2018 the respondent says the parties separated for a period of no less than four weeks. The applicant says the parties did not separate and she travelled to Country N with her mother at this time.
In mid-2018 the applicant loaned money to the respondent to purchase flights to Country J which monies were repaid on 27 June 2018.
During the trip in Country J, the respondent says the parties argued and they were separated for no less than three weeks. The applicant says they were not separated and she travelled to City K to see her daughter during that period.
In late 2018 the respondent says the parties argued and separated for one week with the applicant moving back into Suburb D in September 2018. The applicant denies a separation at this point.
A short time later in 2018 the parties travelled to L Town. In late 2018 they purchased M Street, L Town, NSW (“the L Town Property”). The applicant paid the deposit of $86,250. The respondent made a contribution of approximately $400,000. The majority of the purchase was funded by a loan from the National Australia Bank Private (“NAB”) in the sum of $1.3 million. The title was to be held as tenants in common in equal shares.
In late 2018 the respondent says the parties separated for a week. The applicant denies a separation at this point.
In late 2018 the applicant says she purchased furniture for the L Town Property.
A short time later in 2018 the respondent says the parties separated on a final basis.
In early 2019 the applicant attended at Suburb D and found the respondent in the bedroom with a woman.
A short time later the applicant attended Suburb D to collect some of her clothing. During this period the applicant was living with her mother.
In early 2019 the parties entered into a mortgage contract in respect of the borrowings to fund the L Town Property.
A matter of weeks later in 2019 the applicant attended Suburb D and again encountered the respondent with a woman. The applicant says she knew at that time the relationship was over.
In mid-2019 the applicant removed her personal effects from Suburb D.
On 13 June 2019 the applicant filed an Initiating Application. In that document she, curiously, gave as the date the parties commenced to live together: May 2014. She also cited 4 January 2019 as the date of separation. In answering questions about the relationship she selected the box for “no” when asked whether she had made substantial contributions. At trial the applicant’s case departed from all of these representations. The respondent noted that the applicant had not filed an Amended Initiating Application. That is so. However, the respondent and the Court understood the case the applicant was advancing from her trial affidavit and Case Outline (exhibit A).
De facto relationships: The law
Before the Court has jurisdiction to hear and determine an application for property adjustment the applicant must establish that the jurisdictional requirements have been met.
Section 4AA(1) of the Family Law Act 1975 (Cth) (“the Act”) states that a person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family; and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The Court may declare that a de facto relationship existed, or never existed, between two persons.
When making this declaration, the Court may also declare the period, or periods, of the de facto relationship and when the de facto relationship ended.
To determine whether two people are, or were, in a de facto relationship, the Court may take the following non-exhaustive list of matters into account under s 4AA(2) of the Act:
(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.
In addition, subsections 3 and 4 should also be considered in this context:
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In Nord & Van (2018) FLC 93-833 the Full Court of the Family Court of Australia (as it was then known) (“the Full Court”) cited Lynam v Director-General of Social Security (1983) 52 ALR 128 at [24]:
131. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at 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… 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.
Section 4AA(2)(a) of the Act requires consideration of the duration of the relationship.
In Dahl & Hamblin (2011) FLC 93-480 at [21] the Full Court said:
By use of the word ‘periods’ in s 90RD(2)(a) and s 90SB(a), Parliament must clearly have envisaged that a de facto relationship can breakdown and resume with the result that the original earlier period of the relationship and any resumed period after other breakdowns are capable of aggregation to establish the total time of the relationship for jurisdictional purposes.
As the facts emerged in these proceedings, there was an issue about whether periods of separation during the relationship are to be deducted from the total length of the relationship for the purpose of determining whether the relationship was two years in length (or longer).
It is also relevant in the context of this dispute to have regard to when the Court will consider that a de facto relationship has broken down. The law in respect of this issue and the principles which apply were the subject of the decision in Fairbairn v Radecki (2022) 400 ALR 613 (“Fairbairn”).
Credit
The applicant’s evidence suffered from a tendency to make broad statements which, when evaluated, were not literally true. There are numerous examples, including but not limited to:
(a)Counsel for the respondent cross-examined the applicant on the date she nominated in her Initiating Application as the date the parties commenced living together. That date was different from the one she asserted at the time of trial and she conceded the original date was wrong. The document had not been adopted by her on oath but it may be expected it was prepared on instructions;
(b)The address the applicant gave on the Initiating Application was incorrect;
(c)The applicant gave as the date of separation on the Initiating Application 4 January 2019; and
(d)When pressed by counsel for the respondent, the applicant explained the inconsistencies, in respect of the commencement of the relationship, in her various sworn documents (sometimes March 2016, sometimes May 2016 and later April 2016) arose as the parties’ “coupledom” evolved.
Ultimately I formed the view that she believed she had been committed to the relationship in early 2016 (and this may be factually accurate). That date is consistent with the evidence which witnesses in her case gave about contemporaneous statements made by the applicant to them. However, something more was required, in my view, to satisfy me at that stage the parties were a couple living together on a genuine domestic basis.
Counsel for the respondent asked that I approach the evidence of the applicant with caution and specifically that I find her evidence about the events of early 2019 to be a malicious and conscious untruth. The Full Court in Soulos & Sorbo [2019] FamCAFC 231 affirmed the proposition in Carlson & Fulvium [2012] FamCA 32 that:
… civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
I have not accepted all of the evidence of the applicant but that is not the same as making a positive finding of untruthfulness, and I do not make that finding: Crick & Bennett (2018) FLC 93-832; Blass & Blass (2022) 64 Fam LR 625.
The respondent did not have a good memory for dates during cross-examination which was unfortunate since the whole of the threshold issue falls to be determined having regard to dates.
Because of the difficulties in both parties’ evidence I have relied upon the exhibits as being a more accurate contemporaneous record of the parties’ communication and from that communication between them, a more accurate chronology is available to the Court.
Consideration
There is no dispute between the parties that they were in a relationship. It is necessary to make a finding as to when the relationship between the parties might first be classified as a de facto relationship (if at all).
The applicant says the parties were in a de facto relationship from early 2016 until early 2019. In any event she contends that during that period, for periods, they lived in a de facto relationship. If the Court finds otherwise, she contends she made substantial contributions as required by the Act (in relationships of less than two years).
The respondent accepts that the Court may find there was a de facto relationship between mid-2017 and late 2018. However in those circumstances it would fall short of the two year requirement. The respondent contends that, should the Court find that the relationship was less than two years, the applicant has not satisfied the requirements of s 90SB(c) of the Act and so the threshold requirements have not been met.
When did the de facto relationship begin?
Notwithstanding what was contained in the applicant’s Initiating Application, at the hearing the applicant said that the de facto relationship commenced in early 2016. The respondent does not deny that the parties may be regarded as having been in a de facto relationship from mid-2017 until the date he says they separated.
In support of the applicant’s contention she pointed to a number of pieces of evidence which she said supported the finding that the de facto relationship commenced in early 2016. They were:
(a)The fact of the relationship having become more serious on Valentine’s Day 2016;
(b)The change to her AEC enrolment (or inquiry about same);
(c)The inquiry she made about removalists in mid-2016;
(d)The respondent having accompanied her to City K as her “partner” in early 2016; and
(e)Her “home” for the purpose of her Apple device reflecting the Suburb D residence of the respondent.
The evidence the applicant relies upon for a finding that the relationship should be characterised as a de facto relationship includes, the fact that in early 2016 she made a request of a person processing registrations for a conference she was to attend in 2016 to also register “her partner” Mr Peckham. The respondent agrees he attended with the applicant. They had been in a relationship and holidayed together on several occasions prior to early 2016. The applicant says this was different because she referred to the respondent as “her partner” and he travelled with her on that basis. I agree that the description of Mr Peckham as Ms Caughey’s partner is relevant to the question of the reputation and public aspects of the relationship and lends support to the applicant’s contention that the relationship might appropriately be characterised as a de facto relationship. However, that evidence must be read alongside other evidence both supportive of, and contrary to, that proposition.
The applicant relies on an email dated mid-2016 being an automatic reply from the AEC. The applicant says this was when she changed her address on the electoral roll. The applicant did not provide a copy of the confirmation but it is plain from the acknowledgment that the applicant sent the AEC an enrolment form. This is consistent with her case that she changed her enrolment at this time without being conclusive. It supports her contention that she had moved house.
On the same day, it would appear as though the applicant sought a quotation from a removal company. This is consistent with the applicant’s evidence that upon returning from City K, she moved all of her clothing from her residence at O Street, Suburb P (“Suburb P”), to the respondent’s home in Suburb D. The evidence does not make plain that professional removalists were engaged at this time. However, the respondent’s affidavit confirms clothes, toiletries, small personal items, crockery and cooking utensils were moved to Suburb D in late 2016 when, on the respondent’s own evidence, he says the applicant “commenced residing with…[him] on a full-time basis” (affidavit of Mr Peckham, 18 May 2020 at [27]). The text messages exchanged between the applicant’s daughter and the respondent on 4 October 2016 referred to in the respondent’s evidence suggest the date of the move was likely late 2016. I accept that at this point both parties may not have anticipated that the move would be a permanent one, but since the applicant did not move into the F Building after settlement, it very quickly became a permanent situation.
The applicant says that between early and late 2016 the parties lived together at Suburb D – apart from specific periods she outlines. The evidence of the applicant’s daughter (if accepted) supports this as she says she occupied her mother’s Suburb P rental property and her mother was not living there. For the reasons which appear below I am not satisfied that the memory of the applicant’s daughter of this period in 2016 is accurate and I prefer the evidence contained in the parties’ contemporaneous text message exchanges.
The respondent relies on the parties’ text message correspondence in the period early to late 2016 as inconsistent with the conclusion that the parties were cohabiting, certainly inconsistent with the applicant having moved in on a full time basis. I accept the text message evidence as being more reliable than the memories of the parties or their witnesses.
The applicant submitted that the toll records, which show trips across the Harbour Bridge, supported her case concerning cohabitation. The records she refers to commence on 31 August 2016 and cannot assist with her living arrangements before that date. The relevant period is that between mid-2016 and late 2016 when the respondent accepts the applicant was residing at Suburb D. The respondent has not identified any errors in the dates set out in the applicant’s affidavit (as regards this period). It is plain that the parties spent considerable time together in this period but were not necessarily residing together each night.
I find that in the period early to late 2016 the parties spent time together including overnight but had not yet commenced living together on a permanent basis. It is instructive to set out some of the text message communication the applicant sent to the respondent which grounds this finding:
[4 August 2016, 5.36 pm]
[Applicant] …I’m hoping you are will be able to see me Friday for weekend.
…
[12 August 2016, 5.08 pm]
[Applicant] Hi darling. I’ll come to yours to pick you up. I’ll leave shortly. Xoxo
…
[16 August 2016, 7.16 pm]
[Applicant] Are you interested in us catching up tonight?
…
[1 September 2016, 7.19 pm]
[Applicant] Hi baby I’ve cooked food for [Ms BB]… I’m making [Ms BB] eat something now. I’ll be checking in with you later to make sure it’s not too late for me to go to yours, given you too are unwell. Thinking of you. X
[7.25 pm]
[Applicant] I’m sorry I’m feeling sad for you. If I leave here after I’ve served meals it’ll be lateish and I am concerned I will be too late for you. Msg me if you would still like me to go to yours there x
…
[3 September 2016, 8.28 pm]
[Respondent] Oh darling if you’d like to come over I’d consider that a great honour x id love it… but of course I don’t want you driving around tired and late and get it if you don’t come over, it’s a huge job at your end and I let you down so take it easy x
[4 September 2016, 12.39 am]
[Applicant] Hi baby. I’ve quietly snuck into my room with a cup of tea and about to change into comfy clothes. It’s late and you will be asleep with pups. I’ll sleep here. I will miss you during the night… Hope you rest well bub. Thinking of you. Xox
…
[13 September 2016, 11.35 am]
[Applicant:]…I drove home to [Suburb P] at 6am this morning…
[4.15 pm]
[Respondent:] Ok I have a meeting […] for a short while now, I won’t come back if that’s ok. You are welcome at mineifyouwant X
[4.17 pm]
[Applicant:]…I’ll stay this side tonight
…
[7 October 2016, 10.40 am]
[Applicant] Hi sweetheart. .Apparently [Mr CC] doesn’t arrive in Syd til sarvo. I can do things over here at [Suburb P]. I’m going to give notice and leave [Suburb P] next month. Truly, thank you for offering to bridge the gap in timing. Very sweet and kind. It will be a fun few months ahead. Xoxo
As per the original.
The messages in October 2016 suggest that Suburb P remained available to the applicant and that she was spending time there, including with her daughter, but by November 2016 it is plain that the respondent accepted she was residing on a full time basis with him. That much is clear from his message to her of 20 November 2016 which reads “I’m so looking forward to you baby, I’ve really missed you, this is our first post-cohabitation adventure to a glorious fun future x”.
This text message evidence fits with the respondent’s evidence where he says during the period early 2016 to late 2016 the parties were in a causal relationship where the applicant stayed over at Suburb D two to three nights per week (affidavit of Mr Peckham 18 May 2020 at [19]).
The respondent’s son gave evidence that he could not recall seeing the applicant or her belongings during his stays at Suburb D between June and November 2016 – but in this regard his evidence was inconsistent with that of his father.
The reference in s 4AA of the Act to the “nature and extent of their common residence” does not require the Court to find that the parties lived together full time in order to conclude that there was a de facto relationship: s 4AA(3) of the Act and Jonah & White (2012) FLC 93-522; Clarence & Crisp (2016) FLC 93-728. Each circumstance of the parties’ relationship viewed holistically will be relevant to the assessment as to whether a de facto relationship existed at that time.
From late 2016 it is plain, on at least one version of the respondent’s evidence, that he accepted they were living together on a full time basis at Suburb D (affidavit of Mr Peckham, 18 May 2020 at [19]). Yet from the respondent’s perspective, notwithstanding full time cohabitation, it is his position that the de facto relationship ought not be recognised by the Court until May of 2017 where, as he says, “the applicant felt comfortable enough to move her belongings in and worked in [his office]” (affidavit of Mr Peckham, 18 May 2020 at [172]).
At least so far as the Act speaks of “the nature and extent of their common residence” I accept that as at 4 October 2016 the parties had assumed a common residence and thereafter lived together. From that point onwards the applicant ceased to maintain alternate rental premises and did not furnish or occupy the F Building. From that point onwards there were nights the parties did not spend together to enable one or the other of them to fulfil family obligations, work obligations, for the purpose of a holiday or, as is discussed in more detail below, when they had had an argument.
The fact of cohabitation from about 4 October 2016 is not, as the respondent submits, necessarily the conclusion of the inquiry. People may share a common residence without being in a de facto relationship. It is necessary to make further inquiries to determine whether “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”: s 4AA(1)(c) of the Act.
Existence of a sexual relationship
The parties shared a sexual relationship both prior to and after the commencement of full time cohabitation. There is nothing in the Act which dictates that the sexual relationship between the parties is an exclusive relationship. The respondent argued that each of the parties considered themselves free to “see other people” which appeared in this context to be a euphemism for being free to have a sexual relationship with other people. The evidence does not bear out the submission that both the applicant and the respondent were content with the sexual relationship being non-exclusive, since this topic was productive of significant discord between them.
A constant theme of the arguments between the parties was the applicant’s discontent with the fact that the respondent saw and spent time with people with whom he had had intimate relationships. The applicant during these arguments would refer to catching up with people with whom she had previously had relationships, but the evidence does not support a conclusion that she actually did.
Degree of financial dependence or interdependence and financial arrangements for support
The parties’ financial arrangements during the relevant period do support some level of financial dependence and/or interdependence. The applicant occupied the respondent’s home without making payment to him in respect of her occupation. In that sense he provided for her accommodation. In early 2017 the applicant provided the respondent with a loan of $250,000 from her own funds to enable him to purchase a boat. Those funds were repaid to her in mid-2017 with interest. The respondent gave oral evidence that the boat cost $250,000 to purchase and when pressed he conceded he had sold the boat after the parties separated for a sum of around $292,000. In light of these circumstances it is apparent the applicant’s loan facilitated its acquisition.
In mid-2017 the applicant commenced to receive $1,000 per week from the respondent. I note that the applicant’s evidence about when these payments commenced was internally inconsistent in so far as she gave conflicting dates for both the commencement and conclusion of the payments in her sworn affidavit evidence. There was no resolution of this inconsistency via cross-examination and so, doing the best I can, I formed the view that the payments commenced in mid-2017 (as both parties had sworn) and concluded in mid-2019 (as both parties had sworn) and disregarded the other dates the applicant included in her evidence as being likely in error.
On both parties’ cases this amount was linked to work undertaken by the applicant for the respondent in his office (referrable to his work and his investments). In cross-examination the respondent elaborated the $1,000 per week was a product of the applicant’s work in the office and also for his daughter to use the applicant’s car space in the city. The applicant pointed to text message communication between them as indicative of the fact that the respondent also expected her to use those funds to purchase items for the household. In the parties’ text message communication in early 2018 the respondent said:
Just so you have in writing, I intend to pay for our joint living expense and your enjoyment, I for example dd $1,000 pw to your account, sometime if there’s a problem in a particular week it may not go through but overwhelmingly it does and if you tell me it didn’t go through one week it will next week. Just say.
And later the same day:
As to the cards, I have provided cards in the past and have given you, if we are at a show together I pay, as I pay for all expenses when we go anywhere. I pay all utilities and put diesel in your car, and will pay anything else you want.
The applicant responded:
I do not agree with everything you have written… there are many things I pay for out of my money and out of the $1000 per week… this is all because I wanted you to give me a credit card for groceries household items… are we going to break up over groceries… omg!
The respondent replied:
Neither do I predictive spelling is crap. I do [not] want power over you with money and have not sought it, please park the allegation with whoever it belongs with but its not me. I have given you cards and pins in the past when we are out I pay for everything. If you pay for things you can ask for reimbursement its normal and was I not trying to do just that when you got all antsy a moment ago. Break up over groceries if you want as stupid pretexts go its as good as any other, you have been weird since Monday night when you accosted me in the shower.
As per the original.
The explanation that the $1,000 was for work undertaken by the applicant cannot be the whole explanation in circumstances where the payments did not cease until mid-2019 and it is not suggested any significant work was undertaken by the applicant for the respondent in the periods March to May 2019. It is also unlikely to be explained by the respondent’s contention that it was in part payment for the car space owned by the applicant in the building next to the F Building. The applicant relied on text messages where I accept the respondent appears to say that it is reasonable for the applicant to be applying some of the $1,000 to household expenses. I accept that the payment by respondent to applicant may appropriately be characterised as an allowance which came with an expectation that the applicant may provide some assistance in return.
The respondent provided the applicant with a credit card. It is plain from their communication (particularly messages exchanged on 6 and 7 March 2018 – exhibit D) that he intended it would be used for grocery shopping for the household consisting of the parties (and from time to time) the respondent’s adult daughter.
In May of 2018 the applicant paid $7,000 for the respondent’s airfares from Sydney to Country Q and City R to Country Q with her credit card. On 27 June 2018 the respondent paid the applicant for those airfares.
After the parties had entered into the contract to purchase the L Town Property, in late 2018, the applicant bought furniture at an approximate cost of $13,500.
In late 2018 the text communication between the parties suggests that the respondent was facing a financial issue and the applicant offered to loan him $50,000.
The applicant used benefits with S Company to acquire travel insurance and discounted travel for the respondent from about mid-2017.
In considering the fact that the allowance paid by the respondent to the applicant continued to May 2019, I formed the view that this was consistent both with the respondent’s desire to reconcile with the applicant during 2019 and also with his acknowledgment of some financial responsibility for her.
It follows from the above findings that I accept the applicant was, in part, dependent upon the respondent for financial support but also assisted him from time to time, including in the early stages of the relationship. The payment of interest on monies loaned suggests a more commercial arrangement than may usually exist between persons who are living together on a genuine domestic basis but I accept that the manner in which a couple organises their financial affairs is a product of many factors including their age, experience and income. Other aspects of the financial dealings between them speak to the concept that each saw the other as part of a couple, the respondent supporting the applicant, as well as the parties towards the end of the relationship buying a property together, as discussed below.
Ownership, use and acquisition of property
In late 2016 the applicant purchased an apartment in the F Building. The funds applied to the purchase were the applicant’s alone and she was the only person registered on title.
It seems that the property was tenanted from about mid-2017. The respondent suggested that the applicant may have spent time there during the period of their relationship (and some text communication supports the proposition that a few nights may have been spent there) but there is no evidence that she was living there.
As discussed above, the parties resided in a property in the name of the respondent alone, Suburb D property.
On or around late 2018 the parties signed a contract to purchase the L Town Property with settlement to occur in early 2019.
The deposit money of $86,250 was paid by the applicant in two instalments in late 2018.
In early 2018 NAB wrote to the parties making a loan offer in respect of the L Town Property purchase. The parties signed the mortgage in the same month in 2019.
In total the parties borrowed $1.3million towards the acquisition of the L Town Property.
In order to borrow the funds the parties provided financial and personal information to NAB which was contained in the Customer Copy of the Customer Particulars Report. When the form was printed on 16 April 2019, ahead of the mortgage being signed, the form recorded both the applicant and respondent as being in a de facto relationship with one another. The paperwork listed all of the assets in the names of the parties.
At about that time, referencing the purchase, the respondent sent the applicant a text message which read “It’s our paradise. We wanted it we did it. We have just had our best day in 6 months, let’s have more. X I am patient”.
There is no evidence of a reply by the applicant.
Degree of mutual commitment to a shared life
In the period between the start of the parties’ relationship in mid-2014 and approximately late 2016 the parties’ association may be characterised as a dating or romantic relationship. The parties had their own homes. The parties spent time together but did not usually live together. They took holidays together. Until about early 2016 another person lived at the home of the respondent in Suburb D and was regarded by members of the respondent’s family as his de facto partner.
I have considered whether, having been taken to the evidence about the parties’ arguments, I should consider this as consistent with an on-again off-again relationship and inconsistent with a mutual commitment to a shared life. I find that focusing on the minutiae of the parties’ discord skews the inquiry – no couples married or de facto are expected to be always contented with one another. Indeed, the fact that the relationship endured, notwithstanding disagreement, is also supportive of the commitment of the parties to the relationship itself.
The respondent submits that it is relevant that the parties did not spend Christmas together in 2016. This is inconsistent, the respondent contends, with a mutual commitment to a shared life. The evidence suggests that each of the parties had family commitments – a not uncommon circumstance for people with adult children. The fact that they did not celebrate together on this day is relevant but not determinative of the question of whether the parties had a mutual commitment to a shared life. The respondent accepts that the following year he attended the applicant’s daughter’s home for a short while on Christmas Day. There are various indicators throughout the evidence that each party was committed to a future together as a couple. These include talking about future endeavours such as joint property purchases and future celebrations such as Christmas. They also include the mundane day to day ways in which each of the parties were involved in the lives of one another such as the applicant caring for the respondent when he was incapacitated, the applicant caring for the respondent’s daughter, the elaborate arrangements for the pets and the work undertaken on the various boats.
Care and support of children
Section 4AA(2)(h) of the Act is expressed in different terms from s 90RB of the Act which speaks of a “child of the de facto relationship” being the child of both parties in the context of the application of Part VIIIAB of the Act.
The definition of a de facto relationship in Part I of the Act includes as one of the factors to be considered “care and support of children”. In this case neither party had a child of the de facto relationship, indeed, neither party had minor children. However, the expression “care and support of children” does not require those to be the children of the de facto relationship or minor children.
Even if I am wrong and the section refers only to minor children, or children of the de facto relationship, that does not make the care provided by the applicant to the respondent’s daughter irrelevant to determination of the threshold issue. The list of matters in s 4AA of the Act is illustrative rather than exhaustive and facts which support the conclusion that a couple is living together on a genuine domestic basis would include the care of children (even adult children).
The applicant provided care to the respondent’s adult child when she was unwell and hospitalised. The applicant visited the respondent’s daughter in hospital, participated in two outreach programs with the respondent and his daughter, arranged outings, attended to laundry and cooked when she returned home, all of which are supportive of the conclusion that the applicant and respondent regarded themselves as a family and the applicant provided care to the respondent’s daughter in that context. The parties did not disagree that the care was provided, just as to its extent.
Reputation and public aspects
The evidence is plain that the applicant’s family regarded the applicant and respondent as a couple or partners. They were not challenged about this aspect of their evidence. Given the respondent’s concession about the existence of a de facto relationship in the period May 2017 to December 2018, it is necessary to consider the evidence about the period prior to May 2017.
During that contested period the applicant’s daughter graduated and the respondent attended the small family lunch to celebrate. In early 2017 the applicant’s daughter completed her professional studies. The applicant and respondent attended the ceremony and afterwards, the office of the person for whom the applicant’s daughter worked. The applicant’s daughter says the respondent introduced himself as “[Ms Caughey’s] partner”. This evidence was unchallenged.
Counsel who appeared on behalf of the applicant submitted that the respondent’s failure to call as a witness his friend Mr T (“Mr T”) is material as both Mr T and his wife travelled with the parties on a number of occasions including during the period November 2016 to May 2017 when both parties agree they were living together but the respondent says they were not in a de facto relationship. The evidence of those persons would be evidence in respect of the reputation and public aspects of the relationship. The applicant’s counsel said, and I accept, that a failure to call this evidence without explanation supports the conclusion that the evidence would not have assisted the respondent’s case.
The evidence of the respondent’s family was supportive of his case but not always consistent with it. The evidence of his brothers was of limited value since they readily accepted that they were very infrequent visitors to Suburb D.
I accept that there is evidence supportive of the conclusion that the parties were a couple living together on a genuine domestic basis from 4 October 2016 to 4 January 2019.
Breakdown of the relationship
In order to determine whether the period or periods of the de facto relationship are two years or greater it is necessary, having regard to the evidence in this case, to fix a start date and an end date (breakdown of the relationship) and then to turn to the question of whether during the period of the relationship there were other occasions on which the relationship broke down.
The High Court of Australia reiterated the elements of a relationship breakdown in Fairbairn at [29]:
A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by presence of an ongoing relationship of some sort.
The respondent’s case was that there were five separations which totalled 13 and a half weeks and on each occasion the Court should find that the relationship had broken down.
Separation alleged by the respondent: five weeks in July/August 2017
The respondent could not, during cross-examination, remember specific dates. He says that the parties were separated in early July 2017 and explains the fact the applicant photographed the respondent purchasing a car on 5 July 2017 by saying she “just appeared”. That seems inherently improbable and does not explain why, if that were the case, she then accompanied him to the car dealership and took a picture of him taking ownership of the vehicle.
It is plain from the parties’ text and email communication that they had an argument in July 2017. The evidence suggests it probably occurred on 6 July 2017. That is consistent with the toll records which show the applicant travelling over the Harbour Bridge on 5 and 6 July 2017. It is consistent with the applicant having been present when the respondent purchased his car on 5 July 2017.
The text communication between them in July 2017 is consistent with the respondent’s position that the parties were arguing. It is plain that while they were arguing the applicant had not removed her personal items from the respondent’s home. That supports the conclusion that she had neither formed nor acted upon an intention to permanently separate.
The applicant says the parties were sailing together in Suburb U on 1 August 2017 and she was not challenged about that evidence in cross-examination. She exhibited a photograph of them together on that day.
On 5 August 2017 the applicant took a photograph in V Town. She says the parties were together that day. Neither party is shown in the photograph. She says the parties were en route to the snow. The respondent fell short of denying that he was in V Town and agrees that on 8 August 2017 they were in AA Town together.
Separations are relevant, they speak to various aspects of the s 4AA indicia, cohabitation (or extent of common residence) and also the mutual commitment to a shared life.
The respondent’s witness Ms W (“Ms W”) gave evidence that the respondent had told her about separations occurring between the parties. This sits uncomfortably with the respondent’s evidence that he did not tell Ms W about separations and accordingly does not assist the respondent’s case.
The question that arises is this: is the period between 6 July 2017 and 1 August 2017 to be regarded as a period when the relationship between the parties had broken down? I accept that during this period the applicant described the couple as “broken up” in text messages between them. Unfortunately, the text messages tendered by the respondent (exhibit E) have a gap such that they do not contain any of the messages between 30 April 2017 and 5 September 2017.
Importantly, the parties agree that during this period the applicant wrote to the respondent to say “if we CAN’T find our way back together, I will remove all my personal effects from your house”. The evidence is she did not. I accept that the relationship between the parties experienced difficulties but that is not the same as having broken down.
Separation alleged by the respondent: March-April 2018
The respondent contended the parties separated for a period of about four or five weeks as set out in his affidavit of 18 May 2020 at [57] and as contended in his oral evidence.
The parties were arguing about money in early March 2018 but the content of that argument makes plain that it was in the context of their ongoing relationship. The relationship experienced strain as a consequence of the respondent’s daughter’s ill health and the demands that created on the time of both the parties (see exhibit E). Both before and after her discharge on 13 March 2018 the parties were involved in looking after her. To the extent they spent time apart during this period they told one another they missed each other.
The applicant does not dispute that she travelled to Country N with her mother. Exhibit D contains text messages between the applicant and respondent, including during that period. Those messages include the following interchange:
[25 March 2018, 10.36pm]
[Respondent]…had a quiet one with [Ms DD] today, bbq and discussed plans, returning to work on 9/4, was worried she was getting grandiose for a second but she calmed down and moved on. She’s much better and improving daily. Miss you so much it’s all empty in my home and in my heart. Xxxx
[25 March 2018, 10.49pm]
[Applicant] Missing you too baby.
I’m on my way to [EE Restaurant] for wine and dinner. Wish I was kissing by this […] restaurant. But, I’ll be taking Mum instead…Hug to darling[Ms DD]. X
On 9 April 2018 the applicant sent a text to the respondent at 5.56 pm which read:
Hi darling, my phone is not working atm. I didn’t hear from you, so I assumed your preference is for my return to be later in the week. So I am listing for Wednesday flight given there are lots of business class seats. Therefore I will be in Sydney Thursday early am
The applicant’s trip to Country N in March 2018 with her mother cannot be regarded as the breakdown of the parties’ relationship. The applicant exhibited photographs from that trip, from 25 March through 10 April 2018 and the text messages continue to refer to the applicant missing the respondent and vice versa. These messages are inconsistent with the conclusion that the relationship had broken down during this period.
Separation alleged by the respondent: during the parties’ trip to Country J
The parties travelled together to Country J in late May 2018. At some point during that trip the parties had an argument on their way to the airport. The respondent says that it was a separation as at 6 June 2018. The applicant says she had a pre-existing arrangement to fly to City K to meet her daughter. Certainly she was with her daughter in City K from at least 9 June 2018.
It is not in dispute that the parties argued. The applicant’s evidence includes the tickets for Mr Peckham to return to Australia in her evidence. He was booked to fly out of Country Q on 7 June 2018. The ticket was booked with the applicant’s travel benefits and issued on 5 June 2018.
The parties argued and the email and text communication between them starting on 6 June 2018 is consistent with the applicant wanting to end the relationship. She appeared to remain of that view on 14 June 2018.
There are email messages in both parties’ case which suggest that the parties spent time apart after the argument (the applicant in the United States of America (“the US”) with her daughter, the respondent in Australia) and upon the applicant’s return to Australia. For example on 17 June 2018 the respondent’s email to the applicant says in part “come over or not…” However, that same email also includes the words “I’m happy to look after you and enjoy a life together” and on 18 June 2018 “[l]et’s resume those happy times” and the same day “Darling come home”. Those messages suggest the parties were having problems in their relationship but could hardly be considered evidence that the relationship had ended.
On 8 July 2018 the parties were planning their trip in the US. The email from the respondent to the applicant on that day is signed off “I’m lying in our bed again. Love you xxxx”
The applicant then travelled to the US to meet the respondent. The applicant relies on photographs of that trip. The parties were certainly physically together in City K on or before 15 July 2018. The respondent’s ticket was issued by the applicant’s travel benefits on 28 June 2018 and he arrived in the US that same day. The parties were not physically in the same place but that, by itself, will not be a breakdown of the relationship.
I accept that the parties’ relationship was strained in the period between 6 June 2018 and about 28 June 2018 when the applicant booked the respondent’s travel but I do not find that it had broken down.
Separation alleged by the respondent: one week September 2018
The respondent says the parties argued on 17 September 2018 and were separated from that date until 24 September 2018. The respondent relies on text messages. Those messages support the fact of an argument and the applicant telling the respondent that she would stay at the F Building that night (17 September 2018). But in light of his messages to her “…I accept your apology as you have mine, I again apologise. I hate fighting with you. I love you and want to make you happy. Please let me xxx” and on 18 September 2018: “…I’m sorry, I want you back home xxx”; it is not possible to characterise this argument as the breakdown of the relationship. Neither party says the applicant moved her belongings from their home at Suburb D at this time.
It seems both from the parties’ messages and the toll records for 20 and 21 September 2018 that while they were still arguing the applicant did return to Suburb D on 19 September 2018. The evidence does not support a finding that the relationship between the parties broke down for a week in September 2018.
Separation alleged by the respondent: one week 29 November 2018
The respondent contends that the parties’ relationship broke down for a period on 29 November 2018. The applicant does not agree. The applicant’s text messages to the respondent record her view that the respondent had asked for a “clean break”. The respondent’s text messages deny that he had asked for a separation and suggest the reverse was true. Having read all of the text communication during that period, as contained in exhibit E, the parties were certainly arguing at length but it is plain that the applicant returned to Suburb D and, as well as arguments, the messages contain tenderness and discussions about the future. To the extent that there was talk about the relationship ending at this point it did not come to fruition.
Period 22 December 2018 to April 2019
The applicant and respondent did not spend time together under the one roof in a common residence after 22 December 2018.
On 22 December 2018, after an argument, the applicant sent the respondent a number of text messages including one which read in part “You and I are only friends not family [Mr Peckham]”.
The text messages convey the applicant’s hurt that she perceived the respondent as excluding her and treating her poorly but as at this date neither party indicated that the relationship was over – in fact the applicant’s messages talked about her hope that Christmas the following year (2019) would be better. Unfortunately the text message exchanges (which were lengthy) do little except chronicle the misunderstandings and perceptions of each party such that it appears plain that by 4 January 2019, when the applicant saw the respondent with another woman at Suburb D, the relationship, which had not involved cohabitation since 22 December 2018, broke down on a final basis. Before that date the communication between the parties suggests that both may have been amenable to resumption of cohabitation.
On the evening of 4 January 2019 the applicant sent the respondent three text messages. They read:
…
8.24 pm
Never
You are disgusting
Never
8.25 pm
Leave me alone.
Ordering me to get out with your brothers support is disgusting
8.25 pm
I am blocking you. I am in shock.
The respondent asked that I make a finding about what occurred on 4 January 2019. The applicant contended that a finding was unnecessary. The agreed facts permit me to conclude that the applicant walked in and unexpectedly found the respondent with a woman. This precipitated the parties’ continued estrangement and resulted in their eventual separation.
The respondent says a finding is necessary because it goes to the credit of the applicant. Given the content of exhibits C and D, I would not make a credit finding adverse to the applicant about the events of 4 January 2019, and I decline to otherwise make a finding about what occurred on that day as it is unnecessary in the assessment of the evidence concerning the breakdown of a relationship or otherwise.
4 January 2019 to April 2019
The respondent relies on all the text messages from that period. She contends that the parties had not emotionally separated. It is true to say that a proper reading of that evidence would support a conclusion that the respondent would have reconciled but not vice versa. The applicant’s messages are consistent with an intention to end the relationship and pursue property adjustment.
The applicant says that during this period the parties jointly borrowed $1.3million and jointly committed to paying $2.4million in capital and interest. That is an accurate statement of fact but it is not determinative of whether the relationship was ongoing.
By early 2019 the applicant and respondent had decided to complete rather than rescind the contract for purchase of the L Town Property. I accept each described their relationship as “de facto relationship” in the NAB documents completed to obtain the mortgage. The representation to the bank is relevant but not determinative as I must weigh it against the other evidence which points strongly towards the de facto relationship having ended.
In the same document the applicant listed the date on which she commenced residing at her current address as 14 February 2016 (being the respondent’s property at Suburb D). On both parties’ evidence the applicant was actually residing in Suburb P in February 2016. Her inclusion of that date in the form is consistent with her memory that the parties’ relationship became more serious at that time but not proof that the parties actually resided together (contrary to their sworn evidence) on that date.
Period or Periods?
I have found that the relationship between the parties met the definition of a de facto relationship for the period 4 October 2016 to 4 January 2019, a period of two years and three months.
I am required to consider the argument that periods of separation during the de facto relationship should be deducted from the total length of the relationship. This is a two-step exercise. I must first make a finding as to whether, on the material before the Court, the parties were in fact separated for the period for which the respondent contends, if so for how long and then determine whether such period is to be deducted.
As set out above, I am not convinced that anything other than the period of estrangement in July/August 2017 comes close to a breakdown of the relationship (as opposed to an argument between the parties). Even if I were to have come to a different conclusion about the period 6 July 2017 to 1 August 2017 and hence deducted that period from the two years and three months, it would still be a relationship in excess of two years.
End of the relationship
The applicant says the relationship ended on 27 April 2019, precipitated by seeing the respondent with another woman. She says she then moved her possessions out of Suburb D in May 2019 and the weekly payments ceased.
It is my view that there may have been a desire on the part of the respondent to reconcile after 4 January 2019 but no mutual commitment to a shared life, no sexual relationship, no common residence and no socialising as a couple. While I have had regard to the fact that the applicant did not move her belongings out of Suburb D during earlier arguments as consistent with the relationship continuing, here the belongings remaining in Suburb D is of less significance against the many factors which point to the relationship having been at an end. The parties did not travel together – something which was a constant throughout their relationship. The respondent told third parties that he and the applicant were no longer a couple. I find the de facto relationship had broken down as at 4 January 2019.
Conclusion
As I have found the de facto relationship was longer than two years it is not necessary for me to consider whether the applicant made substantial contributions.
This decision is confined to establishing whether the relationship meets the definition of a de facto relationship within the Act – the exercise of property adjustment (if any) in what, on any view, was a very short relationship, remains and I will make directions for that matter to be listed for case management.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 September 2022
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