CHAM & SHA

[2015] FamCA 355

FAMILY COURT OF AUSTRALIA

CHAM & SHA [2015] FamCA 355

FAMILY LAW – JURISDICTION – De Facto – Where the applicant sought to have enforced a financial agreement between her and the respondent which was expressed to have been made pursuant to s 90UC of the Family Law Act 1975 (Cth) (‘the Act’) –
Where the respondent sought a declaration that a de facto relationship never existed between the applicant and the respondent – Consideration of the circumstances set out in s 4AA(2) of the Act – Where the duration of the relationship was under two years – Where there is one child of the relationship who was conceived though IVF – Where the parties shared a common residence for relatively confined periods of time – Where the respondent provided financial assistance to the applicant – Where the respondent alleged he did not understand the contents of the financial agreement he signed or the legal advice he was given – Where it was found that the parties were in a de facto relationship within the meaning of the Act before and after entering into the financial agreement – Where the respondent’s application for the declaration was dismissed.

Evidence Act 1995 (Cth) – s 128, s 140(1)
Family Law Act 1975 (Cth) – s 90RD(1), s 90UC
Family Law Rules 2004 – r 10.13

Ricci v Jones [2011] FamCAFC 222
Jonah v White [2011] FamCA 221

APPLICANT: Ms Cham

RESPONDENT: Mr Sha

FILE NUMBER: SYC 6872 of 2013

DATE DELIVERED: 15 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 11 April 2014 and
17 September 2014

WRITTEN SUBMISSIONS:

22 October 2014 and

7 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Norrie

SOLICITOR FOR THE APPLICANT: Wang Lawyers

COUNSEL FOR THE RESPONDENT: Mr Docker

SOLICITOR FOR THE RESPONDENT: Guardian Legal

Orders

1. It is declared that this Court has jurisdiction to determine the Amended Initiating Application filed on 20 February 2014 by Ms Cham on the basis that she and Mr Sha were in a de facto relationship during the period from approximately mid-March 2012 until approximately September 2013.

2. That paragraph 1 of the Response to Initiating Application filed on 25 March 2014 by Mr Sha be dismissed.

3. That both parties have leave to re-list these proceedings for further directions by arrangement with the Associate to Johnston J.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6872 of 2013

Ms Cham

Applicant

And

Mr Sha

Respondent

REASONS FOR JUDGMENT

1. The issue in these proceedings is whether a de facto relationship existed between Ms Cham (“the applicant”) and Mr Sha (“the respondent”).

2. On 20 November 2013 the applicant filed an Initiating Application in which she sought to have enforced, a financial agreement between her and the respondent dated 3 August 2012. The agreement was expressed to have been made pursuant to s 90UC of the Family Law Act 1975(Cth) (“the Act), that is, between de facto parties.  This Application was amended by the applicant’s Amended Initiating Application filed on 20 February 2014 but the substance of the relief sought is the same.  The specific orders sought are as follows:

   1.A declaration that the financial agreement entered between the Applicant and the Respondent on 3 August 2012 (“the Financial Agreement”) is valid and enforceable and ought to be specifically performed.

   2.An order that the Financial Agreement be specifically performed.

   3.An order that the Respondent pay the Applicant the sum of $326,250.00.

   4.Such further or other order as the Court thinks fit.

   5.An order that the Respondent pay the Applicant’s costs pursuant to section 117(2) of the Family Law Act 1975 (Cth).

3. The application is opposed by the respondent. The respondent seeks a declaration pursuant to s 90RD(1) of the Act that a de facto relationship never existed between the applicant and the respondent that would attract the application of Part VIIIAB of the Act.

4. A threshold question arises. This is whether the Court has jurisdiction to make the orders sought. The Court would only have jurisdiction to do so if the parties were in a de facto relationship within the meaning of the Act as at the time they made the agreement namely, 3 August 2012.

5. Both parties agreed that this question of jurisdiction be determined as a preliminary issue and, if the Court was to find jurisdiction there be a subsequent hearing to determine the substantive matter.  

6. The applicant asserts that the parties had a de facto relationship which would attract the application of the relevant financial provisions of the Act. The respondent denies that the parties have ever been in a de facto relationship.

7. Pursuant to r 10.13 of the Family Law Rules 2004, I granted leave for the issue in relation to jurisdiction to be determined as a discrete issue prior to any consideration of the substantive application.

Background

1. The parties first met in December 2011 at a massage parlour where the applicant was working. In late February or early March 2012 the respondent invited the applicant out to dinner. They had sexual intercourse that evening.

2. The respondent was married. He had been married to Ms B since 1997.

3. On 13 July 1999 the respondent and his parents had purchased land at C Street, Suburb D (“the Suburb D farm”) each having a one-third share.  The respondent, his two sisters, his brothers and parents work on the farm growing vegetables.  The respondent sells the vegetables at Suburb E Markets on Mondays, Wednesdays and Fridays and works the other days at the farm.  

4. In March 2012 the respondent took the applicant to his home which he shared with Ms B at F Street, Suburb G (“Suburb G”).  Ms B was in Country H at the time. 

5. In mid-March 2012 the applicant stopped working at the massage parlour at the respondent’s request.

6. From April 2012 the respondent commenced paying the applicant $2000 a month.  He also purchased a couch and chair for the applicant’s home on 10 April 2012.

7. On 29 June 2012 the respondent transferred $10 000 to the applicant.

8. On 31 July 2012 the respondent transferred a further $10 000 to the applicant.

9. On 3 August 2012 the parties entered into a financial agreement.  

10. On 7 September 2012 the applicant became pregnant using the IVF process.

11. On 5 October 2012 the respondent transferred $8000 to the applicant.

12. In October 2012 the respondent separated from his wife, Ms B.  He transferred his interest in Suburb G to her.

13. On 24 December 2012 the respondent purchased a pair of gold rings for the parties from I Jewellery.  

14. On 6 January 2013 the applicant came to Suburb G and was involved in an altercation with Ms B, which the respondent had to break up.  The police were called and the applicant was taken away in an ambulance.

15. On 11 January 2013 the respondent deposited $5000 into an account for the applicant.

16. On 17 February 2013 the applicant was on her way to the Suburb D farm.  She met him outside Hungry Jack’s Restaurant at Suburb J.  They had a physical altercation and the police attended.  The respondent went to the farm and the applicant followed him.  Again the police attended. 

17. Subsequently, the applicant applied for Centrelink benefits but said the respondent told her to apply.

18. On 27 February 2013 the applicant purchased a Louis Vuitton wallet at a cost of $470 and gave this to the respondent for his birthday.

19. Between 11 February and 9 December 2013 the respondent transferred approximately $30 000 to the applicant.  He also paid various bills, her car insurance, purchased her a new washing machine, strata levies and parking fine.

20. In April/May 2013 the applicant and respondent had an argument and the applicant went to Country H for approximately ten days. 

21. The parties’ child, K was born 2013.  DNA reports dated 17 June 2013 confirm that the respondent is her father.

22. After the child was born the respondent brought over to the applicant’s home invoices for council rates for his home and the farm and a copy of his driver licence and said to the applicant that he wanted to leave all his assets to the child in his will. 

23. On 3 August 2013 the respondent and Ms B, entered into a financial agreement, which ended their financial relationship and resulted in the respondent transferring his interest in Suburb G and their joint bank account to Ms B.

24. In September 2013 the relationship between the parties started to deteriorate.  The applicant discovered that the respondent was transferring his interests in the Suburb G property and the Suburb D farm at this time.  The applicant subsequently lodged caveats against these properties on 9 September 2013.

25. In September-October 2013 the respondent indicated to the applicant that he would not comply with his obligations under the Financial Agreement.

26. On 18 November 2013 the applicant signed a Separation Declaration pursuant to clause 6 of the Financial Agreement.

27. In December 2013 the applicant travelled to Country H with K.  The child has remained in Country H with the applicant’s mother.

28. On 15 January 2014 the respondent and Ms B divorced.

The Applicable Law

1. Section 4(1) of the Act provides that “de facto relationship” has the meaning given by s 4AA of the Act.

2. Section 4AA of the Act provides relevantly as follows:

   (1)      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. [emphasis added]

   Paragraph (c) has effect subject to subsection (5).

   (2)      Those circumstances may include any or all of the following:

   (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.

   (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.

   (5)      For the purposes of this Act:

   (a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

   (6)…

   ...

3. Section 90UC of the Act provides as follows:

   (1)      If:

   (a)while in a de facto relationship, the parties to the de facto relationship make a written agreement about any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and

   (b)at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and

   (c)  the agreement is expressed to be made under this section;

   the agreement is a Part VIIIAB financial agreement . The parties to the de facto relationship may make the Part VIIIAB financial agreement with one or more other people.

   (2)      The matters referred to in paragraph (1)(a) are the following:

   (a)      how all or any of the:

   (i)        property; or

   (ii        financial resources;

   of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed;

   (b)      the maintenance of either of the spouse parties.

   (3)A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2).

   (4)A Part VIIIAB financial agreement (the new agreement ) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

4. The applicant has the onus of establishing that a de facto relationship existed:  Ricci v Jones [2011] FamCAFC 222 at [23]. The onus of proof is on the balance of probabilities: see s 140(1) of the Evidence Act 1995 (Cth).

Credit

Applicant

1. The applicant gave her evidence through an interpreter.

2. The applicant was reasonably responsive in her answers to questions during cross-examination particularly bearing in mind the added complication of interpreting and translating the English and Country H languages. On occasions the applicant did provide an answer which presumably she perceived might serve her case.

3. The applicant made concessions on numerous occasions.

4. However, it is the case that the applicant was granted a certificate pursuant to section 128 of the Evidence Act. She represented to Centrelink that her status was single in making an application for payments from Centrelink at a time when she was seeking to persuade this Court that she was in a de facto relationship with the respondent. She said that this was the respondent’s idea. She said that he informed her in February 2013 that he wanted her to claim from Centrelink as a single mother. She said that he said that he did not have enough money to give her and their baby and that she could use Centrelink to reduce the pressure on him. The respondent denied that he said this. I prefer the applicant’s evidence about this.

5. It is also troubling that during her cross-examination the applicant said she could not remember who Mr L and Mr M were.  Her bank statements showed Mr L had deposited $900 and $300 to her account in June and July 2012.  The statement for July 2012 showed a $200 deposit having been made by “[Mr M]”.  At a time when few deposits were being made to this account, it reflects poorly on the applicant that she could not recall the person or persons who made the deposits. 

6. While I have some reservation about the accuracy of some of the applicant’s evidence, generally where it is in conflict with that of the respondent, I prefer the applicant’s evidence.

Respondent

1. The respondent also gave his evidence through an interpreter.

2. The respondent appeared to have great difficulty with the process of cross-examination.  I did not have the impression that this would be fully explained by the difficulties associated with his reliance on the interpreter.

3. The respondent was very slow and largely unresponsive in his answers.  Time and again questions had to be repeated and even then, often the answer was unresponsive.  Few concessions were made.  On numerous occasions, rather than give a responsive answer, he would give an answer which was really a submission in his case.

4. In his first affidavit he deliberately misrepresented the state of his relationship with the applicant.  I shall refer to this again below.

5. In my view the respondent was a less impressive witness than the applicant.  Where their evidence conflicts I prefer that of the applicant.

Ms B

1. Ms B is the former wife of the respondent.  She also required the assistance of an interpreter.

2. Ms B was forthright in her answers to questions.  But there is a conflict between her interests and the case being presented by the applicant.  In any event, there have been numerous distasteful exchanges between them since the respondent informed Ms B that he was in a relationship with the applicant.  I am cautious about accepting her evidence in its entirety.

Ms N

1. Ms N is the respondent’s sister.  She also was assisted by an interpreter.

2. Ms N was responsive and co-operative in her answers to questions.  But given that she is very close to the respondent I have some reservations about her evidence.

The Essential Issue

1. The essential issue is whether, as at 3 August 2012, the time when the parties entered into the financial agreement, they were in a de facto relationship.

2. It is clear that the requirements of s 4AA(1)(a) and (b) are satisfied namely, that the parties are not legally married to each other and that they are not related by family.

3. The contest concerns the third requirement, that contained in s 4AA(1)(c). This is:

   A person is in a de facto relationship with another person if:

   …

   (c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

4. Both learned counsel referred to the decision of Murphy J in Jonah & White [2011] FamCA 221 as providing assistance about what is required in this regard. Commencing at [47] his Honour said as follows:

   47.In Moby v Schulter, above, Mushin J considered a number of authorities in State jurisdictions. His Honour agreed with the approach exemplified in earlier decisions in New South Wales, including Roy v Sturgeon [1986] DFC 95-031; Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677 and the decision of the NSW Court of Appeal in Light v Anderson [1992] DFC 95-102. His Honour went on to say:

   139.While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept” there are two specific elements of that definition which require individual considerations. The first of those is the concept of “a couple”. For the purposes of the definition, “a couple” is constituted by two people whether of the same or opposite sexes.

   140.The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.

   141.Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor.

   48.His Honour’s approach might be seen to embrace Powell J’s approach in Simonis v Perpetual Trustee C Ltd at 685 where Powell J held that the (then) definition of “living with … on a bona fide domestic basis” (in s 6 of the Family Provision Act 1982 (NSW)) was “a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts”.

   49.In Hayes v Marquis [2008] NSWCA 10, McColl JA held that the effect of earlier decisions of the New South Wales courts, including the Court of Appeal, meant that “practically, [it is] … necessary to consider the evidence as a whole, not under isolated headings” (citing Barnes v de Jesus [2001] NSWSC 19 at [26] per Windeyer J). Her Honour went on to hold that “… the concept of ‘living together’ will always be something different from living together as a couple, one of the critical requirements for a de facto relationship”. There, her Honour was distinguishing de facto relationship from a “close personal relationship”, an expression which is separately defined in the Property (Relationships) Act 1984 (NSW).

   50.In the same case, Einstein J held (albeit in the respect of the definition of the “close personal relationship” in s 5(1)(b) of that NSW Act) that:

   166.Upon its proper construction the expression “living together” in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to co-habit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as “their home”. Both of them might not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan deceased [1980] 5 FamLR 813 where Jacobs J observed [at 822] that “there may be states of cohabitation where (the partners) see as much of each other as they can”, to which I would add – “in the circumstances”. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonable.

   51.That passage was cited with approval by White J in the NSW Supreme Court in Vaughan v Hoskovich [2010] NSWSC 706. His Honour said in respect of the definition of de facto relationship within the NSW legislation that:

   51.What is clear from ss 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences …

   …

   53.It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.

   54.Nevertheless, as has been observed in respect of that specific consideration in the NSW legislation:

   [50] One of the circumstances of the relationship to be taken into account under s 4(2) is para (b), namely the nature and extent of common residence. Subsection 4(3) provides that no finding in respect of any of the matters mentioned in subss (2)(a)-(i) is to be regarded as necessary for the existence of a de facto relationship. That is curious as it seems difficult to see how parties could be said to be living together as a couple if they never had a common residence. However, in Piris v Egan [2008] NSWCA 59, Campbell J said (at [146]) that:

   [146]… it should be recalled that the list of “circumstances” in s 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in s 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in s 4(2).

   (Vaughan v Hoskovich, above).

   …

   58.It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.

   59.In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.

   60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.

   61.Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as “an affair” might in fact be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a “de facto relationship”.

1. With respect I agree with Mushin J’s opinion that the question of whether parties were in a de facto relationship must be considered on a case by case basis and without circumscribing any particular factor. And as Murphy J observed, s 4AA specifically provides that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

2. The first evidence I propose to refer to in this regard is that concerning the relevant s 4AA(2) matters and then I shall refer to the written agreement between the parties dated 3 August 2012, and the circumstances in which they made this agreement.

The s 4AA(2) Matters

1. Because I am determining whether the parties were in a de facto relationship as at 3 August 2012 I shall confine my consideration at this point to the relevant evidence from commencement of the parties’ relationship up to 3 August 2012. 

2. The relevant matters referred to in s 4AA(2) are as follows.

The duration of the relationship

1. As indicated above, the parties commenced their relationship as sex worker and client.  This was in December 2011.  In early March 2012 they went out to dinner together and had sexual intercourse.  The respondent regards this as the commencement of their relationship.  The applicant said it commenced earlier than this.  In my view, little turns on the date of commencement of their relationship, this being either December 2011 or March 2012.  There is no question that as at 3 August 2012 the relationship was on foot (and it continued until approximately September/October 2013). 

The nature and extent of the common residence

1. This was a matter in issue. 

2. The applicant said that in mid-March 2012 the respondent took her to his home at F Street, Suburb G (“Suburb G”) for a few days.  The respondent said this was only for one night.  It is clear that the respondent’s wife had gone to Country H on 14 March 2012 and that she returned to Australia on 25 March 2012.  On the basis of the poor view generally which I have about the respondent’s evidence and the fact that the absence of his wife provided opportunity for the visit as asserted by the applicant, I prefer the applicant’s evidence about this.  But little turns on the point.

3. During this period it is common ground that the applicant and the respondent visited the Suburb D farm.  In her affidavit sworn on 28 March 2014 at [20] – [21] the applicant said as follows:

   20.When we returned from the [Suburb D] Property, the Respondent and I had a conversation in words to the following effect:

   Respondent: I like you.  I want to live with you.  Every Monday, Wednesday and Friday when I finish my work at the market, I want to stay overnight at your apartment.  So I want to be with you at least three times a week.  Can you also quit your job at the massage parlour for me?

   [Applicant]:  I like you too.  I want a family.  I want to have a family with children like your sisters and brother.  But at present I have to work because I have to raise my daughter and pay for the mortgage.

   Respondent: No problem.  Every Monday, Wednesday and Friday I go to sell vegetables at Suburb E wholesale markets.  I have been doing business there for years.  Many customers do cash transactions with me.  I have enough additional income to support you.  I can give you $2000.00 each month for your mortgage and living costs.

   [Applicant]:  Okay.  I will do what you say.

   21.From late February 2012, the Respondent stayed overnight with me at my apartment at [O Street, Suburb P] … on Monday, Wednesday and Friday.

4. The respondent denied this conversation.  He said in his affidavit sworn on 14 March 2014 at [19] that the conversation was as follows:

   [Cham]:“Since both of us don’t have our own child, would you like to have a baby with me?  I would like to try if you want to.”

   Me:“I would like to have a baby with you but can you still have a baby?”

   [Cham]:“A lot of women give birth at an old age now.  I am not that old.  Even if I cannot get pregnant naturally, there are always IVF treatments.  Australian government encourages people to have babies.”

   Me:“That would be great if you really wanted to.  We’ll start trying then.  I’m happy to pay for all medical treatments if necessary.  But you must stop working at the massage parlour.”

   [Cham]:“I’ll stop next week if you help me to pay for my mortgage as well.”

   Me:“I’ll help you as much as I can then.”

5. In my view, there is really not much difference about the substance of these accounts.  The difference is that the applicant’s version alleges an expressed desire by the respondent to live together every Monday, Wednesday and Friday.  These were the days when he said he was not in the habit of staying at the Suburb D farm.

6. The account of the applicant about the Mondays, Wednesdays and Fridays accords with the time the respondent would have had available given his work commitments and seems quite credible bearing in mind that it was said in the very early stages of their developing relationship and at a time when the respondent was trying to persuade the applicant to have an exclusive relationship with him.

7. I find it difficult to accept that in the absence of some sort of offer by the respondent to commit to time together such as Mondays, Wednesdays and Fridays, the applicant would have been persuaded to give up her employment.  After all, she made it clear to the respondent that she had bills to pay.  In my view, it is more likely than not that the respondent was offering a serious relationship to the applicant and informed her about the level of his availability as well as the amount of money he would be able to pay her regularly.

8. As indicated above, I also have the view that generally the evidence of the applicant is more likely to be true than that of the respondent.  I accept the applicant’s version about this matter as being more likely to be closer to the truth than that of the respondent.

9. The applicant went on to say as follows in her affidavit at [22]:

   22.This sleeping arrangement (of Mondays, Wednesdays and Fridays at her apartment) continued until about October 2012 when the Respondent stayed four nights per week.

10. The applicant went on to talk about the frequency of nights spent by him at her home after October 2012.  But at this point it is unnecessary to consider sleeping arrangements after 3 August 2012.

11. The respondent denied this.  He said that from mid-March 2012 he started seeing the applicant a couple of times per week, usually Mondays, Wednesdays or Fridays.  He said that during the couple of months that followed (April/May), he sometimes stayed overnight at the applicant’s home once or twice per week and stayed at Suburb G the rest of the time.  This of course was not correct because he had said elsewhere in his affidavit that he stayed at the farm three nights per week.

12. In approximately May 2012 the respondent admitted to his wife that he was seeing the applicant.  He said that his wife became really emotional and angry with him.  He said that he did not want his marriage ruined so for a few weeks he tried to stay at home as much as possible to try and save the marriage and only visited the applicant a couple of times per week at her home on which occasions he did not stay overnight.

13. In his first affidavit sworn on 14 March 2014 at [30] the respondent said that approximately a month before the birth of the parties’ child (born in 2013) he and the applicant had another argument and he decided to stop visiting her and that since then he had not stayed overnight at her place.

14. Yet in his later affidavit sworn on 8 April 2014 the respondent conceded at [28] that his earlier assertion about not staying overnight at the applicant’s home at [30] was wrong and that the real position was that in fact after the baby was born not only did he visit the applicant’s home but he had sex with her there.  The respondent apologised for this error in his affidavit.

15. In my view, the most likely explanation for this change of heart by the respondent was that after his original assertion at [30] that he had not stayed overnight at the applicant’s home since a month before the child’s birth, he was served with her affidavit sworn on 28 March 2014 to which were annexed copies of various photos of him in late June 2013 in bed with the applicant and their baby. 

16. I have mentioned those assertions by the respondent although they are outside the relevant time frame (up to 3 August 2012) because in my view, this evidence reflects very poorly on his credit.  I regard it as being an attempt by the respondent to minimise the extent of the parties’ sexual relationship and the extent to which he slept at the applicant’s home overnight.  It is consistent with the poor view I have generally about his evidence. 

17. The relevant evidence by the respondent’s ex-wife Ms B about the respondent’s absence overnight from their home at Suburb G was to the following effect.

18. Before the respondent’s “affair with Cham” he would come home from the markets Mondays, Wednesdays and Fridays between 3.00 pm and 6.00 pm.  Over the relevant period from approximately April 2012 to September 2013 the respondent came home most evenings other than the Tuesdays, Thursdays and Sundays when he stayed at the farm before leaving for the markets early the following mornings. 

19. For example, one night in approximately early April 2012 he did not come home after work as he usually would.  Between April and early May 2012 the respondent stayed at home most nights and even started staying some of the Tuesdays, Thursdays and Sunday nights which he had previously been in the habit of staying at the farm.  He started to get home at approximately 8.00 pm or later on the Mondays, Wednesdays and Fridays rather than his previous practice of arriving home between 3.00 pm and 6.00 pm.

20. In May 2012 the respondent informed her that he was collecting the applicant from the airport following her trip to Country H and that he did not come home that evening.  From approximately June 2012 the respondent went back to staying at the farm on Tuesdays, Thursdays and Sunday evenings but came home for dinner and stayed overnight on the Mondays, Wednesdays and Fridays. 

21. The account as alleged by the respondent and his former wife is quite different from that asserted by the applicant. 

22. What is the Court to make of this?  On the one hand there is a consistency about the evidence of the respondent and his former wife Ms B.  But as I have said, it is my view that the respondent has sought to minimise the extent of his relationship with the applicant.  While I had a reasonable view about Ms B as a witness, her interests and those of the applicant are opposed and the respondent has acted to secure Ms B’s interests by transferring his interest in the Suburb G property to her.  As indicated above, there have been many arguments between the applicant and Ms B including both using unseemly language, trading insults, and both becoming very upset with the other.  Accordingly, I have serious reservations about the reliability of the respondent’s evidence and that of Ms B on this point. 

23. On the other hand, it seems unlikely that the applicant’s evidence about the extent to which the respondent stayed overnight at her home is impeccable.  After all, as was submitted by learned counsel for the respondent, it was not correct in relation to the periods in April/May 2012, August 2012 and April/May 2013 when she was overseas.

24. I suspect the truth about the extent of the respondent sleeping overnight at the applicant’s apartment lies somewhere between the two accounts.  In my view, such a position is one where it is likely that the respondent was regularly at the applicant’s apartment including spending overnight time but the quantification of the number of nights is unclear, except that it is more probable than not that they were regular and significant rather than sporadic.

25. In all the circumstances I am drawn to the finding that it is more probable than not that the respondent spent considerable time each week at the applicant’s home including spending time overnight there regularly but I am unable to quantify the time so spent. 

26. There was a strong submission by learned counsel for the respondent that there was no common residence because the parties never lived together.  This was on the basis firstly of the assertions by the respondent and his former wife about infrequency of his absence from Suburb G as referred to by me above.  But it was also submitted that both the applicant and the respondent in their evidence referred to the respondent as having “stayed” overnight with her at her apartment or “visited” her there rather than saying that he “lived” there.

27. I must say that I have the view that in fact the parties did have a common residence and this was at the applicant’s home, albeit for relatively confined periods of time. 

Whether a sexual relationship exists

1. It is common ground that the parties had a sexual relationship during the period of their relationship.  Their evidence about the frequency of sex differs. 

2. The applicant said that they had sexual intercourse at least three times a week until she became pregnant. 

3. The respondent said that they had sexual intercourse approximately three times a week during the first month or so after their relationship started in approximately March 2012 and a couple of times a week until the applicant became pregnant in early September 2012. 

4. In my view, it is unnecessary to make a finding about the precise frequency of the parties having sexual intercourse.  Suffice it to say I am satisfied that they had sexual intercourse regularly throughout their relationship.

The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties

1. As indicated above, the applicant gave up her employment at the massage parlour at the request of the respondent and upon his assurance that he would pay for her mortgage and other expenses. 

2. It was common ground that from approximately April 2012 the respondent made monthly deposits of $2000 to the applicant’s Westpac Banking Corporation account for payment of the applicant’s mortgage and her daughter’s school fees.  The respondent gave the applicant money for her other expenses whenever she requested him to do so from time to time.  It is clear that this extended to payment of her electricity accounts, rates, unit levies and various other expenses.

3. The respondent continued to pay in this manner over the relevant period (and until after the applicant gave birth to their child). 

The ownership, use and acquisition of their property

1. The parties did not own any property together.  But it is clear that the respondent had the enjoyment of the applicant’s home as he wished and spent a considerable amount of time there including overnight with the applicant. 

2. It is also the case that the respondent purchased a lounge and an armchair for the applicant’s property which he was in the habit of using himself. 

The degree of mutual commitment to a shared life

1. It is clear that the respondent was most anxious for the applicant to have his child.  As indicated above, at the outset of their relationship he informed the applicant that he would be available on Mondays, Wednesdays and Fridays and that he wanted to live with her on those occasions.  A regular and constant feature of the parties’ relationship was the respondent’s ongoing assurances that he was most desirous of her having their child and that he would support her and the child.  The financial agreement between the parties underlined this commitment in my view. 

2. In turn, the applicant showed a commitment to a shared life with the respondent in the sense that she accepted his assurances about supporting her and the child, gave up her employment as a sex worker and committed herself to endeavouring to have his child under the IVF program. 

3. It was submitted on behalf of the respondent that the relationship lacked a mutual intention to be a couple living together in a genuine domestic relationship.  It was submitted that the applicant wanted such a relationship but the respondent did not, that she wanted him to divorce his wife and that he did not want to do so.

4. I do not accept that there was no commitment to a shared life.  It is true that the applicant asked the respondent on numerous occasions to divorce his wife and that he appeared not to want to do so.  In my view, the respondent has shown that he desired to have both his relationship with his wife and his relationship with the applicant.  His behaviour has been such as to demonstrate considerable effort by him in endeavouring to maintain both relationships.  I note in this regard that at a time of some strain in the parties’ relationship he wrote a letter to the applicant dated 7 May 2012 in which he addressed the applicant as “…” which was translated to mean “My old woman:  Folk expression in calling wife between married couples in [Country H] to show affection and intimacy”. 

5. The letter went on to say:

   No matter you like it or not, you became the only woman, my dearest wife in my heart from the very moment you called me … …

6. The name “…” was translated to mean “My old man:  Folk expression in calling husband between married couples in Country H to show affection and intimacy”.

7. The respondent asserted that this translation was incorrect.  Yet he conceded that in the letter he addressed the applicant as “My wife” and signed off “Your Husband”.

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

1. Although there was no registration of the parties’ relationship, in my view, it is very significant that the financial agreement entered into by them on 3 August 2012 was expressed to be pursuant to s 90UC of the Act.

2. I note also that the first two recitals to the agreement referred to the parties as being in a de facto relationship.  These recitals are as follows:

   A.[Mr Sha] and [Ms Cham] have been living together as de facto partners since February 2012.  They love each other and hope for living tranquillity in their life together and wish to produce their own child by using the professional medical IVF treatment (medical process of fertilizing egg outside woman’s body) in Sydney. 

   B.To manage disputes in the future about the ownership of property and to avoid unpleasantness, they wish to set down in writing before the birth of the child how their financial relationship should be regulated during the de facto relationship and, if despite their best intentions of their de facto relationship fails, how their property should be divided between them.

   [Emphasis added]

3. As I shall observe below, the respondent alleges that he did not understand the agreement.

The care and support of children

1. This is a matter relevant to the period following 3 August 2012.  But in my view, it is relevant to note that in approximately late June 2012 or perhaps July 2012 the parties were informed by a doctor about what each of them would have to do to fulfil the IVF program requirements.  This is further evidence of a commitment by them to have a child and it was always the respondent’s assurance that he would pay for the costs of the program.

The reputation and public aspects of the relationship

1. It is clear that the parties had a social life visiting restaurants, public parks, beaches, shopping centres and other venues together.  Occasionally they were accompanied by the applicant’s daughter.  But there is no evidence of involvement of other persons in these activities. 

2. The applicant asserted that she had considerable interchange with the respondent’s elder sister and some interchange with his parents and other family members at the Suburb D Farm.  In my view, it is more likely than not that the applicant has exaggerated the extent of this.  In my view the evidence leads to a finding that she had limited contact with members of his family.

1. But there are other public aspects to the relationship. 

2. There were numerous documents addressed to the respondent at the applicant’s address at Suburb P.  During the relevant period these comprised the electricity accounts for the applicant’s home over the period from 31 May 2012 which were in both her name and that of the respondent and were forwarded to the applicant’s address.  The applicant said that the respondent asked her to have his name put on the accounts because he was paying them.  She denied that when he asked her why she had put his name on the account that she said “why not, you’re the one paying it”.  The applicant denied that they had any such conversation.  Whatever the circumstances were which caused the respondent’s name on the account, in my view, it is relevant that he was prepared to have his name on the account showing the applicant’s address.

The Written Agreement

1. As indicated above, in my view, the written agreement between the parties made on 3 August 2012 and the events surrounding the making of the agreement are very relevant to the determination of whether they were in a de facto relationship at the time.

2. The applicant said in her 28 March 2014 affidavit at [37] that in early July 2012 she had a conversation with the respondent to the following effect:

   Applicant:I am going to have so many injections for the IVF process.  This will hurt me.  I gave birth to my eldest daughter twenty years ago.  I’m already forty-two years old.  You must treat me and our baby well.

   Respondent: Don’t worry.  I will make you happy.  We have been living together for five months now.  No matter what happens, I will continue to care for you and our baby.  I will ensure you and our baby will be looked after even if our relationship breaks down.  We can sign an agreement.

3. The respondent denied this conversation.

4. The applicant consulted a solicitor Mr Q.  She said that the respondent was extremely busy at work.  She said that the respondent gave her the council rates notice for the Suburb D Farm and also for Suburb G for her to take to the lawyer.  In this regard I note that the financial agreement includes the particulars of title of the Suburb G home. 

5. I accept the applicant’s evidence that she obtained these details from the respondent and gave them to the solicitor.  I accept, therefore, that it is more probable than not that there were discussions between the parties prior to the preparation of the financial agreement, to the effect that an agreement would be prepared.  I have the view that in these circumstances it is more probable than not that the conversation was as asserted by the applicant.

6. At [24] of the respondent’s affidavit sworn on 14 March 2014 he said as follows:

   In or about later July 2012, Cham told me in words to the effect as follows:

   [Cham]:I’ve already got a solicitor to draft an agreement about our plan to have a baby.  I’ve also arranged a solicitor for you to sign the agreement in front of him.  You just need to sign it and pay the legal costs.  It’s all for our baby’s good as you promised.  But if you don’t sign the agreement I won’t have a baby with you. 

   [Me]:If that makes you happy, I’ll sign it then. 

7. On 3 August 2012 the respondent finished his usual run of selling vegetables and attended an appointment which the applicant had made for him to see a solicitor at the office of her previous migration agent called Mr Q.  He said that the solicitor was called Mr R whom he had never met before.  He said the solicitor explained to him in English about the legal agreement which the applicant wanted him to sign and the solicitor Mr Q translated it for him in Country H.  He said that he did not understand the content of the document and the legal advice he was supposed to receive.  He also said that he was really tired by the time of the appointment.  He said that he signed the agreement because if he did not sign it, the applicant would be really angry with him.

8. As indicated above, the deed which constituted the financial agreement was expressed to be made under s 90UC of the Act. The terms of the deed include the following:

   1.[Mr Sha] has promised to pay [Ms Cham] 50% (fifty percent) of the official market value (recognised by the average of two registered property valuers) of the above mentioned property in [F Street, Suburb G], NSW within two (2) years from the date of the birth of the child by [Ms Cham] even if de facto relationship breaks down and also all of the property owned by [Mr Sha] and [Ms Cham] respectively as at the date of this deed (whether or not it is specified in the recitals to this deed) shall remain vested in each party respectively.

   2.[Ms Cham] has no objection to [Mr Sha’s] continuing employment.  She will give him support and encouragement in employment or in any further or alternative business or employment that he chooses to follow. 

   3.[Mr Sha] promises that during the de facto relationship, he will provide $400 per week of the financial support to [Ms Cham].  And [Mr Sha] must pay the child $400 per week of living cost with 10% (ten percent) increase on the cumulative year to year payment and also any kind of reasonable expenses (e.g. private school education) till to the age of 18 or to be completed the course of the university in Australia.

   …

   5.[Mr Sha] and [Ms Cham] both agree that in the event of the breakdown of the de facto relationship, before they separate, they will deal with their property in accordance with this deed.

   [Emphasis added]

9. It is clear that each of the parties had the benefit of independent legal advice about the deed although the respondent says that he did not understand the document’s content and the legal advice. 

10. This was not the first written agreement that the respondent has entered into.  On 18 June 1999 the respondent entered into a loan agreement with his father which acknowledged that his father had loaned him $120 000 which the respondent had used towards the acquisition of a one-third interest in the Suburb D farm.  The respondent indicated that before he signed this agreement the document was read to him in Country H.  He indicated that he accepted this agreement as a binding legal document.  It is clear that he understood this agreement.

11. The respondent also entered into a binding financial agreement under Part VIIIA of the Act with his former wife on 3 August 2013. He acknowledged that a solicitor interpreted the agreement for him (in the Country H language). He indicated that he accepted this agreement as binding on him and that after signing this agreement he transferred his interest in the Suburb G home to his former wife.

12. The respondent also acknowledged the following.  That a Mr R, solicitor, acted for him in relation to the agreement between himself and the applicant and that he understood it was a legal document.  That a Mr Q, who was a solicitor, translated the agreement for him in Cantonese on 3 August 2012.  That Mr R provided the respondent with a letter on the day containing certain advice about the agreement. 

13. Notwithstanding that he signed the agreement which included at Recital A “[Mr Sha] and [Ms Cham] have been living together as de facto partners since February 2012”, the inclusion in Mr R’s letter to him on the day of “We also note that you have been in a de-facto relationship with [Ms Cham] for approximately (4) months …” and the other references to “de facto relationship” in the agreement referred to above, the respondent said that he did not accept that the relationship between him and the applicant was “as cohabiting partners”.  By this I understand the respondent to deny that the parties were in a de facto relationship.

14. The respondent said that he signed the agreement at the time because both he and the applicant wanted to have a baby, the applicant told him that if he did not sign the agreement she would not have the baby, she would be very angry, and she said the reason they had to sign the agreement was to protect the child’s future livelihood.

15. I am unable to accept that the respondent did not understand the contents of the agreement and the legal advice.  He knew well before the day the agreement was signed, that the applicant wanted the parties to enter into an agreement prior to them embarking on the IVF treatment.  It was obvious to him that the parties were involved in a serious relationship.  At his request the applicant had given up her sex work to provide him with sexual exclusivity in their relationship.  In return he had been paying the costs of her mortgage and educational expenses of her daughter and other expenses.  He had brought himself into great difficulty in his relationship with his wife because he was having his serious relationship with the applicant including staying regularly at her home.  He would have the Court believe that in all these circumstances, because he was tired and/or because of difficulties in interpretation or translation, he did not hear or understand the part of the document which made reference to the parties being in a de facto relationship, or the legal advice, and thought this was only to do with having a baby and the applicant being angry with him if he did not sign.  I am afraid I do not believe him.

Conclusion About Jurisdiction

1. Taking account of all the relevant matters referred to above, I am of the view that the reality of the parties’ relationship at the time they made the written agreement was that they were living together as a couple on a genuine domestic basis albeit for only part of the time. Accordingly, in my view, as at 3 August 2012 all the statutory requirements of s 4AA(1) of the Act were satisfied.

2. In these circumstances, in my view, the Court has jurisdiction to make the orders sought by the applicant.

The Declaration Sought by the Respondent

1. As indicated above, the respondent seeks a declaration pursuant to s 90RD(1) of the Act that a de facto relationship never existed between the parties that would attract the application of Part VIIAB of the Act.

2. Although this application has not succeeded on the basis of my findings up to 3 August 2012 it is still necessary to consider whether or not the parties were in a de facto relationship within the meaning of the legislation during the period from 4 August 2012 until they separated in approximately September 2013.

3. I do not propose to refer to every piece of relevant evidence for this period.  Because I am satisfied that their de facto relationship existed as at the commencement of this period I propose to consider whether the relationship changed and, if so, whether the changes were such that the Court could declare that the parties were not in a de facto relationship at some point during the period.

4. As I have said, the parties’ relationship continued over this period until they separated in approximately September 2013.

5. So far as their common residence is concerned, the applicant said that until October 2012 the respondent stayed at her home Monday, Wednesday and Friday nights and from approximately October 2012 until approximately February 2013 he stayed three nights per week.  The applicant said that the respondent continued to stay three nights per week until approximately September 2013 when their relationship started to deteriorate.

6. On the other hand the respondent said that from September 2012 for the next three months or so he visited the applicant two to three times per week and stayed with her overnight about once per week. 

7. He said that from about the time of separation with his wife (October 2012) he was staying mostly with his parents at the farm.  But sometimes he stayed at Suburb G which had become his wife’s home because by this time he had transferred his interest in it to her.  He said that he stayed in a separate bedroom at the home. 

8. The respondent said that four to five months into the applicant’s pregnancy (say approximately January 2013) he started to visit her less, namely, about one – two times per week because they were arguing and on many of the visits he left without staying overnight. 

9. The evidence by the respondent’s former wife about this period was as follows.

10. From late August to September 2012 the respondent did not come home on Fridays and that on another evening in September 2012 he left home with the applicant and did not return home that evening. 

11. After she and the respondent separated in October 2012 the respondent still came home four – five nights per week and slept in a separate bedroom.

12. Between October and December 2012 the respondent did not come home after arguments which they were having fortnightly and he did not come home on some Friday evenings.

13. During December 2012 and January 2013 the respondent stayed most nights at her Suburb G home.  Between early February through March 2013 the respondent spent a few Friday nights away from home.

14. Between early April and the end of May 2013 the respondent spent almost every night including Friday nights at home except one Wednesday night.  From June to September 2013 the respondent stayed at home regularly except for some Wednesday nights.

15. As indicated above, the respondent conceded that he was wrong in his assertions about not having stayed at the applicant’s home since approximately May 2013.  As also indicated above, in my view, he sought to minimise his relationship with the applicant.  I have the same reservations about the likely unreliability of the respondent’s evidence about this matter and have a similar view to that which I hold in relation to the earlier period.  That is, that it is more probable than not that the respondent visited the applicant regularly at her home and stayed there overnight on regular and numerous occasions.

16. It is common ground that the parties continued their sexual relationship. 

17. During the relevant period, electricity accounts and other correspondence addressed to the respondent continued to be delivered to the applicant’s home showing the respondent as having the same address.

18. The address on the respondent’s current Driver Licence is that of the applicant’s home at Suburb P.  The applicant said that she accompanied the respondent to the RTA office in approximately September 2012 when he applied for a replacement licence.  She denied that she said since it is close to her place why doesn’t he just use her address.  I must say I think the respondent’s assertion about this matter is inconsistent with common sense.  I think the more likely explanation was that he was quite happy to give the respondent’s address to the RTA because he was in the habit of living there frequently.  It also occurred a few weeks before the respondent and his former wife separated and at a time when he said they were arguing.  This might have made him less likely to use the Suburb G address.

19. The respondent’s motor vehicle registration renewal for 2014 was also sent to the applicant’s address.  The 2013/2014 Comprehensive Motor Vehicle Insurance Certificate in respect of the Honda vehicle which the respondent purchased for the applicant was issued in the name of the respondent with the recorded address being the applicant’s address.  The respondent said the reason for this was because he was the person who paid for the insurance.  In my view, at its minimum significance, this shows that the respondent was happy for this to reflect his name at the applicant’s address. 

20. On 24 December 2012 the respondent purchased a pair of gold rings for $1370.  He had his name engraved on the ring which he gave to the applicant and her name engraved on the ring which he kept for himself.  The applicant said that these were wedding rings and the respondent denied this saying that they were merely a Christmas gift.  I do not accept the respondent’s explanation which I regard as minimising the significance of the rings.  They were purchased at a time when the respondent and his wife had separated and the applicant was several months pregnant with his child.  I am not persuaded that these were necessarily wedding rings. But in my view the rings were not only a public demonstration of the parties having a serious relationship, but were also an indication of a serious commitment by the respondent to the applicant. 

Conclusion

1. There is nothing about the characteristics of the parties’ relationship during the period from 4 August 2012 to what appears to have been their separation in approximately September 2013, which would cause me to have a view that their de facto relationship became a lesser relationship during the period.

2. Accordingly, I am satisfied that during this period also, the parties were in a de facto relationship within the meaning of the Act.

3. In all the circumstances, therefore, there can be no basis for the declaration sought by the respondent.  His application will be dismissed.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 15 May 2015.

Associate:     

Date:              15 May 2015