Caughey & Peckham (No 2)

Case [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.

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AGLC
Caughey & Peckham (No 2) [2022] FedCFamC1F 670
Case
[2022] FedCFamC1F 670
Decision Date

CaseChat Overview and Summary

In Caughey & Peckham (No 2), the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the legal characterisation of the relationship between Ms Caughey and Mr Peckham, specifically whether it qualified as a de facto relationship under the relevant statute. The primary dispute was over the timeline of their relationship, the periods of cohabitation, and whether substantial contributions were made by Ms Caughey. The court had to ascertain when the parties began living together, whether they lived together for two years, and if the relationship was characterised as a de facto relationship from a particular date. Additionally, the court needed to determine if there were any separations during their cohabitation and how those periods should be treated. If the relationship was less than two years, the court had to consider if Ms Caughey made substantial contributions, and whether denying her property adjustment proceedings would cause serious injustice.

The court meticulously reviewed the evidence presented, including witness testimonies and documentary evidence, to establish a timeline of the relationship's evolution. It found that while the applicant claimed the relationship began in early 2016, the respondent agreed only that it began in mid-2017. The court weighed various factors, such as the applicant's change of address with the Australian Electoral Commission and her registration of Mr Peckham as her partner for a conference, against other evidence that suggested a later start date. The court concluded that despite the applicant's assertions, the relationship did not qualify as a de facto relationship until mid-2017. The court found that the relationship had broken down as of 4 January 2019, as evidenced by the lack of mutual commitment, sexual relationship, common residence, or socializing as a couple. The court did not need to determine whether Ms Caughey made substantial contributions because the relationship duration was less than two years, thus falling outside the statutory requirement.

The court’s decision hinged on the interpretation of the evidence and the statutory definition of a de facto relationship. It relied heavily on contemporaneous records and communications between the parties, finding them more reliable than the sometimes conflicting testimonies of the parties and their children. The court concluded that the de facto relationship had indeed existed but did not meet the statutory duration requirement of two years. As a result, the court did not need to address whether Ms Caughey made substantial contributions or whether denying her property adjustment proceedings would cause serious injustice. The court directed that the matter be listed for further case management to address property adjustment issues.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.