Christian and Pether

FAMILY COURT OF AUSTRALIA

CHRISTIAN & PETHER

[2019] FamCA 826

FAMILY LAW – DE FACTO RELATIONSHIPS – Threshold issue – whether a de facto relationship existed – where the Applicant seeks a declaration that the parties were in a de facto relationship – findings as to credit of the witnesses – application dismissed.

Family Law Act 1975 (Cth), ss. 4AA, 90RD, 90SM, 117

APPLICANT:

Mr Christian

RESPONDENT:

Ms Pether

FILE NUMBER:

MLC

4320

2019

DATE DELIVERED:

22 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATES:

28-29 October 2019;
6-7 November 2019

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Fisken

SOLICITOR FOR THE RESPONDENT:

Forte Family Lawyers

Orders

The application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) is dismissed.
The amended initiating application filed 23 September 2019 is otherwise dismissed.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Applicant is to pay the costs of the Respondent such costs to be as agreed and in default of agreement to be assessed on a party/party basis by a Registrar in accordance with Chapter 19 of the Family Law Rules 2004 (Cth).

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4320 of 2019

Mr Christian

Applicant

And

Ms Pether

Respondent

REASONS FOR JUDGMENT

In these proceedings, the Applicant relies upon an Amended Initiating Application, filed by him on 23 September 2019. In essence, in that application, he seeks a payment from the Respondent of a total sum of $580,000 which he claims represents his contribution to the property of the Respondent; to the property of her mother and to the lifestyle expenses of the parties.
In her Amended Response, filed on 12 August 2019, and on which she relies, the Respondent seeks dismissal of the application of the Applicant.
The Applicant invokes the jurisdiction of the Court on the basis of his assertion that the parties were in a “de facto relationship”.
The meaning of “de facto relationship” is as set out in s 4AA of the Family Law Act 1975 (Cth) (‘the Act’). That section is, relevantly, as follows:-
De facto relationships
Meaning of de facto relationship
(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 (see subsection (6)); 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.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(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.

…

The Applicant seeks a declaration that the parties were in a de facto relationship pursuant to s 90RD of the Act. The Applicant makes application for an order under s 90SM of the Act, as provided for in s 90RD(1)(a) of the Act. The Applicant seeks a declaration from the Court that the period for which the de facto relationship existed was that period between 26 April 2013 and, at least, 7 July 2017. That is a period of approximately four years and two months.
The Respondent denies that the Applicant and she were ever in a de facto relationship as defined in s 4AA of the Act.
The Respondent agrees the Applicant and Respondent were in a “relationship” but not a de facto relationship, which included, as a part, a sexual relationship for the whole of their relationship, although both parties accept that in the last two years of the relationship, the frequency of that sexual activity diminished. The Respondent’s evidence is that such relationship existed from April 2013 until February 2017. That is a period of approximately three years and ten months.
In the period of their relationship, whatever its categorization, the parties agree that there were times when they were not seeing each other, and had temporarily, (as it transpired) ceased their relationship.
These reasons deal only with the threshold issue of the making of the declaration, pursuant to s.90RD of the Act, as to whether or not a de facto relationship existed between the parties. A dismissal of the application for a declaration would necessitate dismissal of the Amended Initiating Application of the Applicant.

Credibility

The Respondent gave her evidence in a forthright manner. She made concessions readily and was an impressive witness. In each and every instance where there was dispute between the parties as to factual matters, the Respondent’s evidence was more reliable. The witnesses called by the Respondent to corroborate her claims were also, as to each and every one of them, impressive witnesses whose evidence is accepted by the Court. To the extent that any of the evidence relied upon by the Respondent differed from that put before the Court by the Applicant, that of the Respondent and her witnesses is preferred.
The Applicant was not a credible witness. On a number of occasions, he refused to answer relevant questions asked of him on the basis that such answers might tend to incriminate him. His evidence was often not relevant; implausible; and unsupported by any corroborating evidence, either by evidence given by other witnesses or by documentary evidence that could have been placed before the Court, were such evidence to be of assistance to the Applicant. The Court draws an inference that the failure by the Applicant to provide disclosure in accordance with orders of the Court of 20 June 2019 and 12 August 2019 is indicative of the fact that the provision of such documents would not support the Applicant’s evidence.

Material Relied Upon

For the purposes of establishing the threshold issue to be determined by the Court, the affidavit evidence relied upon by the Applicant was as follows:-
a)affidavits of the Applicant filed 10 August 2019; 27 August 2019; 23 September 2019; and 24 October 2019.
The Applicant also relied upon a case outline filed 28 October 2019.
The Respondent relied upon the following affidavit evidence:-
a)affidavit of the Respondent sworn 8 October 2019;
b)affidavit of Ms B sworn 4 October 2019;
c)affidavit of Mr A affirmed 4 October 2019;
d)affidavit of Mr C sworn 11 October 2019;
e)affidavit of Mr D affirmed 7 October 2019;
f)affidavit of Mr E affirmed 4 October 2019;
g)affidavit of Ms F affirmed 4 October 2019;
h)affidavit of Ms G affirmed or sworn 7 October 2019;
i)affidavit of Ms H affirmed 11 October 2019;
j)affidavit of Mr K sworn 7 October 2019; and
k)affidavit of Ms L affirmed 4 October 2019.
The Respondent also relied upon a case outline filed 22 October 2019.
The evidence as contained in the affidavits of Mr K, Ms G, Ms H, Ms L and Ms F was unchallenged by the Applicant. It was explained by the Court to the Applicant, who was a litigant in person, that if he wished to challenge the contents of any of those affidavits, he would be required to cross-examine the relevant deponent and put to the relevant deponent those matters that he disputed. He declined to cross-examine those witnesses. The unchallenged evidence of those witnesses is accepted by the Court.
The Applicant did cross-examine the Respondent and the following of her witnesses:-
a)Mr E;
b)Mr A, who is the Respondent’s son;
c)Ms B;
d)Mr C; and
e)Mr D.

Circumstances of the Relationship

The onus of proof in respect of the establishing of a de facto relationship is borne by the Applicant and the Court makes the following factual findings on the balance of probabilities.
The Applicant was born in 1962 and is now aged 57 years. He was previously unemployed; employed as a tradesman; and as a salesperson but at trial was again unemployed. The Respondent was born in 1959 and she is now aged 59 years. She worked for some 34 years as a public servant and retired from that employment approximately one year ago. She is now self-employed as a health care worker but works less than one day per week.
The Applicant has 3 children of a previous marriage. The Respondent has one child of a previous marriage namely Mr A, who was born in 1992. He is now aged 27 years. Mr A lived with the Respondent until approximately April 2015, when he was aged 23 years.
There are no children of the parties’ relationship and the relationship was not registered under a prescribed law of a State or Territory.

Residences

When the parties met for the first time in 2013, a fact agreed between them, the Respondent was living at a property known as and situate at Street M, Suburb N in the State of Victoria (‘the Street M, Suburb N property’). She had purchased this home in her sole name on … 1987, some 26 years prior to meeting the Applicant. She had initially acquired her home with assistance from borrowings from O Bank, which was secured by a mortgage over the home. The majority of the mortgage repayments that were due were paid by the Respondent prior to her ever meeting the Applicant. Thereafter the mortgage was repaid substantially by April 2018. All mortgage repayments in respect of the Street M, Suburb N property had always been, and continued throughout the relationship to be made solely by the Respondent. No contribution toward them was ever made by the Applicant.
When the parties’ met for the first time, the Applicant was living in a room in a flat above a shop in Suburb N. He had been provided with such accommodation by a friend and he considered that accommodation very depressing. He had, in the months before, departed from the former matrimonial home in which he had resided with his former wife and children. It was a low period in the Applicant’s life. He had then no available funds of any significance, and was struggling to meet the payment of his daily expenses.
In around … 2013, being approximately eight weeks after commencing a relationship with the Respondent, and as admitted by the Applicant, the Applicant commenced to rent a property at Street Q, Suburb P in the State of Victoria (‘the Street Q, Suburb P property’). The Applicant rented this property in Suburb P to be close to his son’s school. In the early period of time of his renting that property, his son lived with him during the week and occasionally on the weekend. At the Street Q, Suburb P property, the Applicant housed his various cars; jet ski; ute; and a boat. The Applicant continued to rent this property as admitted by him, until around February 2017.
On the Respondent’s evidence, which is preferred to that of the Applicant, the Respondent attended upon the Applicant's Street Q, Suburb P property on only one or two occasions. The longest period in which she stayed at the home was approximately 10 minutes. Had the Applicant’s evidence been accepted, his evidence placed the Respondent at the Street Q, Suburb P property on one occasion only, being overnight, in a period approaching four years.
Conversely, the Applicant spent regular time, at least in the early years of the relationship, at the Respondent’s Street M, Suburb N property. The evidence of the Applicant was both that he resided at the Street M, Suburb N property, and that the parties did not reside together at this property. In support of the former claim, the Applicant alleged that in … 2013, when the parties first commenced their relationship he purchased a bed for he and the Respondent which was delivered to the Street M, Suburb N property. He claimed Mr A assisted him in delivering it to the property. Mr A denied that assertion. Mr A and the Respondent’s evidence was that no bed was ever delivered to their home at any time. In fact as the evidence disclosed, the Applicant had purchased the bed for himself with a fictitious name he used on occasion – ‘Mr R’ – and the bed had been delivered to his home being the Street Q, Suburb P property. During the proceedings the Applicant then changed his claim, to allege that which was in some of his affidavit material, namely that he spent weekends with the Respondent at the Street M, Suburb N property, commencing from Friday evenings until Monday mornings and other and further times during the mid-week. In February 2015, when his son moved back to live with his mother on a full time basis, the Applicant’s evidence was that he:-
continued living at my rental but spent nearly all the time at the Suburb N property home renovating, fixing, painting, gardening, or looking at “S Builders” in Suburb N property in order to get ideas for our new home we were to build for us to live in.[1]
[1] Affidavit of Mr Christian filed 27 August 2019, [11].
The evidence of the Respondent differed to that of the Applicant as set out in the previous paragraph. Her evidence was that the parties spent time with each other on most weekends, including day and overnight time being one night, and occasionally two nights each week, those nights being usually a Friday and/or Saturday night. The Applicant rarely stayed over during the week at the Respondent’s home, and did not stay for periods beyond that as set out in the Respondent’s evidence.
The Respondent’s evidence was corroborated by the evidence of her son Mr A and neither the Respondent nor her son’s evidence was disturbed by the Applicant’s challenge to that evidence. Mr A lived with his mother during her relationship with the Applicant from April 2013 to April 2015. Mr A recalled that the Applicant would bring an overnight bag with him on the occasions he stayed overnight, those occasions being as described in his mother’s evidence, and that such bag would have his clothing and other necessities in it. Mr A’s evidence was that the Applicant did not leave toiletries in the bathroom shared by Mr A and his mother, a claim that was made by the Applicant. The only items Mr A recalled the Applicant leaving at the Street M, Suburb N property were an old pinball machine together with some old plumbing equipment, such as ducts for heating systems and air conditioning pipes. The Street M, Suburb N property was a small house, comprising two bedrooms, one bathroom, and one lounge room. It also had a kitchen. It was the home of the Respondent and her son.
The frequency of the Applicant’s overnight stays with, and visits to, the Respondent lessened as time went on and difficulties appeared in the relationship. In 2015, the Applicant stayed overnight in the Respondent’s home for about two to three nights each month. The parties continued to see each other during the day on weekends for various activities or outings, such as going to the gym, walks, bike rides, or going out for dinner. When the parties went out with each other for dinner or some other event, their expenses were usually shared. When one of them surprised the other with tickets for trips or events, the arrangement between them was that the other would pay for related expenses such as transport, alcohol and meals. Often when the Applicant stayed over at the Respondent’s home, he slept on the couch in the lounge room rather than in the Respondent’s bed. Although the parties continued their sexual relationship, it reduced over time with each party suspicious of the other, in part because each party had formed the view that the other was continuing to be active on online dating sites. Additionally, in 2015, the Respondent lost considerable trust in the Applicant because of the circumstances surrounding his purchase of a Motor Vehicle EE, a matter to which I shall return.
Throughout the period of their relationship the parties occasionally travelled interstate where they stayed for between one and three nights at a hotel. The longest period of time the parties spent continuously together was on a cruise to Country T for six or seven nights in about … 2016 coupled with a night or two in Country FF.
In April 2015, Mr A moved out of the Street M, Suburb N property and into rental accommodation nearby. He commenced to pick his mother up from her home, and take her out for dinner mid-week in most weeks. On nearly every occasion that he attended at his mother’s home, she was home alone, and the two of them went out for dinner together. On other occasions Mr A would visit his mother on a Saturday. He observed the Applicant to be sometimes also visiting his mother at the Street M, Suburb N property, or at his mother’s beach box on the beach nearby. On these occasions, Mr A also recalled seeing his mother’s handyman, Mr GG, attending to maintenance or repairs at the Street M, Suburb N property.
From his observations between 2013 and 2015, when he resided in his mother’s home, and thereafter when he visited her regularly, Mr A observed his mother and the Applicant to live separate lives during the years of their relationship. His mother continued in her paid employment; maintained her love of gardening; enjoyed her hobbies; and continued to catch up with her friends and spend a lot of time at the beach. Her time spent with the Applicant mostly included walks on the beach, bike riding together and going out for dinner or to see live music or movies on a weekend.
Between 22 March 2016 and 12 April 2016 the Respondent moved into temporary accommodation at the HH Apartments in Suburb P because her home was damaged when part of a neighbour’s roof flew off and hit her bungalow roof. Her backyard was contaminated and her home needed to be repaired before she could live in it again. Her insurer paid for her stay at the HH Apartments and subsequently a property in Suburb JJ. The Applicant visited the Respondent on some of the nights that she was accommodated in both the HH Apartments and in Suburb JJ. They had dinner together during his visits. Whilst staying at the HH Apartments the Respondent’s cat had to stay at a cattery. This cat had been with the Respondent and her son since 2009. The Applicant paid $200 for the cattery’s fee by credit card because the Respondent had no money with her at the relevant time. She repaid the Applicant his expenditure.

In May 2016, the Respondent began seeing a counsellor once a week to help her deal with the Applicant’s anger and erratic behaviour and to help her break up with him permanently. One major incident had occurred prior to this time which was an occasion when the Applicant was intoxicated and belligerent. The parties were out on the bay in Suburb N in the Applicant’s boat. The Respondent repeatedly asked the Applicant to stop drinking and return to the marina and he refused both requests. The Respondent became very scared, and although she could not swim, she put a life jacket on before jumping into the water in an attempt to get to shore. As observed by Ms H, whose evidence was unchallenged and corroborated that of the Respondent, the Applicant was observed to be driving his boat:-
zooming back and forth, horizontally to the beach. Mr Christian was driving his boat straight towards Ms Pether, turning away from her at the last minute, before spinning his boat around and again driving straight toward Ms Pether.
Ms H became concerned for the Respondent’s welfare and swam out to her. When she reached the Respondent, she observed the Respondent to have tears in her eyes and to appear to be upset and frightened. Ms H then swam back to the sandbar at the beach pulling the Respondent behind her by her life jacket. By that time, Ms H noticed the Applicant to have driven the boat away in the direction of Suburb P.
Otherwise, Ms H’s evidence was that she lived in Suburb N, diagonally opposite the Respondent’s home. Ms H often observed the Respondent at the front of her home gardening, sweeping, putting out the bins, checking the mailbox, or attending to other tasks. She always observed the Respondent to attend to those tasks alone. She observed the Applicant commence to visit the Respondent at her home in 2013 and to cease doing so in late 2016 or early 2017. She recalled observing the Applicant visiting the Respondent on a weekend, although not every weekend, and usually on a Friday or a Saturday evening and occasionally both. She herself only saw the Applicant briefly. Her evidence also corroborated that of the Respondent that the Applicant never attended the “LL Club” social activity referred to in paragraph 67 of these reasons.

Financial Matters

All of the Respondent’s household bills were in her name. The Applicant did not contribute to any of those bills and nor did the Respondent contribute to the Applicant’s payment of his rental or household bills, or toward the cost of the groceries in his home. When the Applicant visited the Respondent, she paid for the food that he ate whilst at her home. Sometimes he brought beer or wine with him for them to both consume.
The parties had no joint bank accounts, no joint loans, no joint insurance and/or jointly owned possessions. They made no joint applications.
The Respondent did not record the Applicant as her partner or spouse on any official documents save as described in paragraph 47 hereafter. The Applicant was not listed as her spouse on her taxation returns during the relationship. He was not listed as a beneficiary in respect of any of the Respondent’s superannuation entitlements, and the Respondent maintained a single level of cover under her health insurance.
The Respondent did not make a will or rewrite a will naming the Applicant as a beneficiary. Nor did the Applicant do so with respect to the Respondent, save that, in what could only be considered a very strange act, the Applicant altered his will to include the Respondent as a guardian of his children in the event of the death of their mother. This alteration to his will was done without any discussion with the Respondent, who had no knowledge of the alteration and who did not consent to it. Indeed, at the time of the alteration of his will, the Respondent had never met the Applicant’s children. The Applicant, in that document, described the address of the Respondent as being that of his rental Street Q, Suburb P property. This was not a truthful description of the residence of the Respondent, but typified the Applicant’s approach to the concept of being truthful. Such concept was not an important one.
The Applicant was in receipt of Centrelink benefits at the commencement of the relationship and for periods between 2014 and 2016. The Court infers he represented to Centrelink that he was a single person. He claimed to Centrelink that he was living in his rental Street Q, Suburb P property, and was suffering from significant physical injuries which rendered him unable to work.
The parties did not acquire any real property together or have any joint investments. Despite the Applicant’s assertions to the contrary, the Court finds they had no joint plans to acquire property together at any time. The Applicant’s evidence, that the parties were looking to buy residential property in 2013 at a cost exceeding one million dollars in circumstances where he was unemployed with no capital, and neither he nor the Respondent had individually or together approached a borrower to obtain funding, was implausible. Whilst the Applicant asserted the parties had keys to each other’s homes, the Court prefers the evidence of the Respondent which is that they did not give their respective house keys to each other. Further, the Respondent did not provide the keys to her beach box to the Applicant as claimed by him.
In about 2015, and when employed as a salesperson, the Applicant bought a Motor Vehicle EE for himself in the name of the Respondent without her knowledge or consent. The Respondent did not sign the contract but there is a signature which purports to be hers on it. The Applicant forged her signature. She did not financially contribute to the purchase. She had her own car. The Respondent did not drive the Motor Vehicle EE. Indeed, the Applicant’s evidence was that the Respondent was scared of it. She did however pay for insurance cover for the vehicle for a 12 month period from 4 September 2015 once she discovered that the vehicle was registered in her name and was uninsured. The Applicant refused her request that he insure the vehicle. The Applicant’s deceit and fraudulent conduct caused considerable disharmony between the parties and occasioned much stress to the Respondent.
The Respondent discovered the Applicant’s purchase of the Motor Vehicle EE in her name in these circumstances. Following the Applicant’s purchase of the car the Respondent received two parking fines from the Suburb P City Council. After receiving the first fine, the Respondent phoned the Applicant to ask him to explain what had occurred. At that time, she was told by him that the Motor Vehicle EE was, in fact, registered in her name. She paid the fines of the Applicant because she did not wish to argue with him further about the issue.
The Respondent’s ongoing exposure in respect of the Motor Vehicle EE led her however to make numerous verbal requests of the Applicant that he transfer the Motor Vehicle EE into his own name. He refused. The Applicant told her the stamp duty (approximately $1,570) and roadworthy certificate (approximately $3,500) were too expensive for him to pay. He did not purchase this car in the name of the Respondent as a gesture of his devotion and love, as he would have it. Rather, he registered the car in the name of the Respondent because he did not want, at that time, his ex-wife to know that he had such asset. The Applicant and his ex-wife had conducted proceedings as to property and parenting matters in the Federal Circuit Court of Australia.
On 31 July 2015, the Applicant wrote to the Respondent pleading with him to transfer the car into his name. He agreed to transfer the Motor Vehicle EE into his name but conditional upon the Respondent agreeing to transfer the car as a domestic partner. To that end, the Applicant brought a statutory declaration to the Respondent’s home for her to declare that they were in a de facto relationship. By that time, the Respondent considered the Motor Vehicle EE to be, for her, a serious liability. She was incurring the loss of demerit points and paying the Applicant’s fines. She did not sign and date the statutory declaration provided to her by the Applicant because it was untrue. They argued about it. But at that time, she remained firm. After her refusal to sign and date the statutory declaration, the parties ceased to see each other for a short time, being approximately 10 days or two weeks. Thereafter, they resumed their relationship but the ongoing conflict as to the issue put a stress upon it.
In March 2016, the Motor Vehicle EE was damaged. The Applicant told the Respondent that a tree on the Suburb P property drive property fell on the car and that he had tried to make a claim against his landlord. Indeed, the Applicant had engaged in proceedings at the Victorian Civil and Administrative Tribunal (‘VCAT’). The Applicant was unsuccessful. He requested of the Respondent that she claim the repairs on her insurance taken out in respect of the vehicle. The Respondent made a claim with RACV, her insurer, and the car was repaired. The Applicant paid the excess.
In July 2016, the parties separated for a time, not resuming their relationship until late September 2016. In the period wherein the relationship was not ongoing, the Applicant contacted the Respondent indicating, for the first time, that he wished for a transfer of the Motor Vehicle EE into his name. He also told the Respondent, for the first time, that he had bought a jet ski and jet ski trailer in her name without her knowledge. The Applicant also wished for a transfer of each of these items to him, with such transfer to be noted as between former domestic partners.
The Applicant exerted considerable pressure upon the Respondent whom he had placed in a most difficult position. His conduct was entirely deceitful. Ultimately, the Respondent capitulated to the pressure exerted by the Applicant and on 13 September 2016, the Respondent signed and dated a statutory declaration asserting the parties were in a former de facto relationship in order to effect a transfer of ownership of the Motor Vehicle EE from her name into the name of the Applicant.
In July 2016, the Respondent began making arrangements to sell her mother’s large five bedroom home. Her mother had moved out of her home situate at Street U, Suburb V in the State of Victoria (‘the Street U, Suburb V property’) in about … 2014 upon her entering a nursing home. The Respondent, at that time, arranged for the Street U, Suburb V property to be let through the agency of Real Estate Agent Suburb N. In 2015 the Respondent’s mother died. The Respondent continued to let the property through Real Estate Agent Suburb N until July 2016 paying not only for her own mortgage and outgoings with respect to her Street M, Suburb N property and beach box, but also commencing to pay the outgoings with respect to her mother’s property at Street U, Suburb V. The Applicant contributed to none of those necessarily incurred expenses. The Applicant sought that the Respondent let him sell her mother’s Street U, Suburb V property. The Respondent refused that request. The Applicant became agitated and angry as a consequence. This was simply a further matter which led to the cessation of the parties’ relationship between July and September 2016.
The Respondent hired tradespeople to paint and clean up around her mother’s home. She engaged a painter, Mr V, and Gardening Services, W Store, and X Group to perform works at her direction and in relation to which, she made payments. The selling agents were Real Estate Agent Suburb N and the Respondent placed in evidence before the Court an affidavit from Ms G, real estate agent, who had the conduct of the sale. The tradesmen engaged by the Respondent were recommended by Ms G to conduct necessary improvements which included painting, carpeting, landscaping, electrical repairs, handyman repairs and styling. Ms G remained in contact with the Respondent during the period when the Street U, Suburb V property was being improved for sale and thereafter when Ms G commenced marketing the property for sale. That campaign ran for four weeks, culminating in the Street U, Suburb V property being sold at auction on … 2016. Unbeknown to the Respondent, the Applicant attended the public auction of the Street U, Suburb V property.
Throughout the entire preparation for and conduct of the sale, Ms G dealt exclusively with the Respondent with respect to the sale of the Street U, Suburb V property. At no time during that period nor the earlier rental period, did Real Estate Agent Suburb N’s sales department or rental department request the Applicant to undertake or complete any repairs of the Street U, Suburb V property. They had no dealings with him.
The Applicant did however provide the Respondent, both at her request and on his instigation, with mostly modest assistance, with respect to the maintenance of her home and that of her mother. That included one task which was more difficult, being the installation of a tin roof on the Respondent’s damaged rear bungalow. Otherwise the Applicant did do those tasks admitted by the Respondent in paragraph 53 of her affidavit sworn 8 October 2019, all of a minor nature together with helping the Respondent to put together a flat pack IKEA wardrobe that she had purchased. The Applicant also once, or twice, at the Street M, Suburb N property and early in the relationship, mowed the lawn. Thereafter, the Respondent engaged Y Group to do the lawns on a regular basis and that person did so. Maintenance and repair jobs in respect of the Street M, Suburb N property were for the most part undertaken by handymen employed by the Respondent.
No real cleaning tasks were undertaken by the Applicant during the period of the relationship, as claimed by him. The Respondent employed and paid for a cleaner from 2013 to 2016 who was a Ms Z, and from 2016 to 2019, a cleaner who was Ms AA. They cleaned the Respondent’s home at the Respondent’s request and expense each fortnight. Until 2015, Mr A also regularly assisted his mother in this regard.
In respect of the small maintenance tasks or other modest assistance provided by the Applicant to the Respondent with the maintenance of her home and that of her mother, the parties agreed that the Respondent would pay for the materials in respect thereto or reimburse the Applicant. Generally, the parties worked together on these type of tasks. In return for his assistance in the performance of these maintenance tasks in respect of the Respondent and her mother’s home, the Respondent provided meals for the Applicant when he visited, or took him out for lunch or dinner on the same day. She paid the Applicant’s car insurance for one year. Whilst the parties were cleaning out the Respondent’s mother’s home after she died, the Applicant asked for, and was given by the Respondent, many items from her mother’s home. These items included her father’s clothes, golf clubs, books, cupboards, drawers, kitchen appliances such as an old fashioned Mixmaster, a kitchen table and eight chairs, a barbecue, lawnmower, gardening tools, handyman tools and power tools, some of which were stored in their cases, an antique book collection, two lamps, some artwork, about 12 to 15 fishing rods and fishing equipment neatly in boxes. The work done by the Applicant in respect of the Respondent’s mother’s home occurred over a period of about two days and included some minor works as set out in paragraph 54 of the affidavit of evidence of the Respondent sworn 8 October 2019.
Otherwise, as described in the evidence of Mr C, Mr C was engaged by the Respondent solely and paid by her solely to undertake various maintenance tasks as directed by her in respect of the Street M, Suburb N property; the Street U, Suburb V property; and the Respondent’s beach bathing box between 2014 and 2018 and on a regular basis. Mr C became the Respondent’s handyman following the relocation of her earlier handyman, Mr GG, to a different country. Mr C did various jobs at the Respondent’s home as well as at her mother’s home, which included gardening, replacing boards, fitting rows of towel hooks and shelves at the bathing box, installing security measures and performing regular handyman maintenance works. Mr C’s evidence was challenged unsuccessfully by the Applicant. Indeed, the Applicant’s cross-examination of Mr C seemed directed to a fishing exercise aimed at the operations of Mr C’s business.
Save as set out in paragraph 60 hereafter, no major work was ever undertaken at any time before, during and after the relationship of the parties in respect of the Respondent’s home, as her intention had been, since her purchase of the home in 1987, to knock it down and rebuild two townhouses on the land. This intent was obvious in the Respondent’s evidence and that of Mr D.
The Applicant sought to challenge Mr D’s evidence and was not successful in doing so. The Court accepts the evidence of Mr D in its totality. Mr D operates a BB Building Inspections franchise. He has expertise in building and construction, in addition to being a qualified carpenter and he is a person who has worked in the building industry for over 20 years, working as a site manager, site supervisor and operating overseeing construction projects.
On 23 May 2019, at the request of the Respondent, Mr D undertook an inspection of the Street M, Suburb N property, and prepared a building inspection report as to the condition of the property. Such report is dated 26 May 2019 and was introduced into evidence in the proceedings. That report noted, essentially, that the Street M, Suburb N property was in urgent need of repair, painting and maintenance and/or major replacement works. It appeared to Mr D from the condition in which he found the buildings on the property that no interior or exterior renovation works to maintain or protect the longevity of the buildings had been carried out for an extended period of time, which he estimated to be up to 15 years.
He noted in summary that the Street M, Suburb N property showed multiple signs of deterioration due to the failure to properly maintain the property over an extended period. He noted in respect of the bathroom’s presentation that it appeared no maintenance work had been undertaken to the bathroom for a very long time, if at all, and noted that the laundry was in similar disrepair. He said of the rear bungalow interior that it had large areas of splitting in the ceiling sheets, and the exterior required weatherboards replaced, rotting windows fixed and painting to protect it from the elements. The roof sheets were loose and spouting was not in use due to overgrowth and dust. The damage caused was the result of years of neglect.
Mr D further noted in the second bedroom of the Street M, Suburb N property that there was evidence of excessive moisture present at the time of his inspection, and that in all areas of the main building, all timber floors showed signs of deterioration and wood rot, with him suspecting that defect had developed as a result of damp conditions in the subfloor over time. He provided a very comprehensive building inspection report, noting also wood rot on the front porch flooring and general deterioration to a considerable degree of the entire property.
Prior to Mr D’s inspection of the property and in 2016 the Respondent had paid a professional painter to paint her boatshed interior and exterior, the two bedrooms of her home in Street M, Suburb N internally, and the interior of the bungalow at the rear of the home. This was cosmetic work, not contributed to by the Applicant.
Despite his claims to the contrary, the Court finds the Applicant made no material or capital improvements to any of the Street M, Suburb N property; the Street U, Suburb V property and the Respondent’s beach bathing box. The Applicant produced to the other party and to the Court no significant and/or relevant receipts or invoices to evidence that he contributed to any purported renovations or other improvements to these properties.

Mutual Commitment

During the relationship the Applicant proposed to the Respondent countless times. On two occasions he booked the same bed and breakfast in Suburb CC and proposed to the Respondent who said “yes” on each occasion but later changed her mind. The Respondent never referred to the Applicant as her fiancé. Rather the parties described each other as boyfriend or girlfriend. On one occasion, being a lunch on Christmas Day 2015, whilst at the Street M, Suburb N property, and in front of Mr A and his then girlfriend, the Applicant again proposed to the Respondent who said “no” repeatedly. Mr A recalled the Applicant producing a ring and asking his mother to marry him. His evidence was that his mother kept saying “stop it” and “stop making a scene” and that the situation led Mr A to feel uncomfortable about the way the Applicant was behaving toward his mother. He noted the Applicant eventually stopped pursuing the matter. Despite this difference in approach, there was nonetheless a degree of mutual love and affection in the relationship at varying times.
During the relationship the parties each bought for the other various gifts for Christmas and birthdays. Over time the Applicant gifted to the Respondent the following:-
a)a six-piece wicker plastic cane modular outdoor lounge suite and table;
b)a white outdoor chair;
c)an outdoor concrete bar table and four stools;
d)a plant;
e)a large ornate mirror;
f)a stand-up paddle board and cover; and
g)a barbecue.
After the ending of the relationship in February 2017 and on 26 June 2017, the Applicant attempted to gain entry into the Respondent’s Street M, Suburb N property. Her CCTV system recorded the Applicant peering into her windows whilst wearing gloves. He was carrying something in his hand, and repeatedly trying to break in through the back door. On 7 July 2017 Mr A observed the Applicant to be driving along Street M, Suburb N away from his mother’s home towing a trailer containing many of those items that the Applicant had purchased as gifts for the Respondent during the relationship. Mr A rang the police and later signed a statutory declaration dated 21 August 2017. The Applicant had entered onto the Street M, Suburb N property of the Respondent without her knowledge or consent and removed the items gifted to her by him during the relationship from the home. The Applicant had also broken into the beach bathing box belonging to the Respondent and removed the balance of the gifts given to her that were housed there. The Respondent reported these matters to the police.
The Applicant provided no financial support for Mr A nor did he buy him Christmas or birthday presents or attend his birthday celebrations. Likewise, the Respondent provided no financial or other support to the Applicant’s children. She did not enter their homes, nor they her home. She bought them no Christmas or birthday gifts.
The Respondent met the Applicant’s eldest daughter on one occasion only in … 2017, in a hospital for a short visit after she had a baby. The Respondent had not met her before and did not see her again. She was not invited to her wedding or any celebration of the baby’s birth. She was in fact embarrassed to meet the Applicant’s eldest daughter under the circumstances in which she did. She otherwise did not meet the Applicant’s middle daughter.
The Applicant rarely socialised with the Respondent’s friends. On two to three Sundays each month from about Christmas 2014 onward the Respondent usually had a social function with her neighbours. These neighbours were Ms H and Mr J. They named their Sunday gathering “LL Club”. The Applicant never attended her neighbours “LL Club” with the Respondent. Additional to this activity was the Respondent’s regular social night with Ms L. This occurred on a Friday night once each month. This was not an occasion to which the Applicant was invited. On the whole of the evidence the Respondent generally kept separate her regular social life with her friends from her time spent with the Applicant. Likewise she did not socialise to any significant extent with any friend of the Applicant.

Other

The Applicant claimed the relationship between the parties continued until July 2017. Yet he acknowledged the Respondent had told him it was over in February 2017 which advice she confirmed to him in early March 2017. The Respondent signed a rental agreement for a property (not being the Street Q, Suburb P property) on 9 March 2017. That rental agreement was also purportedly signed by the Respondent on 9 March 2017. The signature was not that of the Respondent. Again the Applicant forged her signature.
On 11 May 2017, the Respondent received a text message from Real Estate Agent Suburb P, reminding her that a rental payment was in arrears. The Respondent was, of course, not living in any rental property, but in her own home being the Street M, Suburb N property. She telephoned Real Estate Agent Suburb P to enquire about the text message. She was advised by Mr DD, a director of Real Estate Agent Suburb P that a rental and bond agreement for a property at Street KK, Suburb P in the State of Victoria was in her name and that of the Applicant. The Respondent advised Mr DD that she had never signed any rental or bond agreement for that property.
The Respondent made a statutory declaration with the police on 29 July 2017 as to these matters. That statutory declaration stated that she separated in February 2017 from the Applicant, and also stated that he had never lived at her address and that she had never lived with him at any address.
In either late-July or early-August 2017, the Respondent applied for an intervention order against the Applicant. The Applicant responded by filing his own application against the Respondent on 22 August 2017. In that application, the Applicant himself stated that he had been separated for six months from the Respondent. This added to the evidence which supported a finding that his claim that the relationship subsisted until at least July 2017 was fanciful.
Post the conclusion of the relationship and on 5 February 2019, the Respondent entered into a contract to sell part of her Street M, Suburb N property to finance the building of her long planned new home. The sale price was $800,000 with settlement due on the later of 19 June 2019 or 14 days after the Respondent gave notice in writing to the purchaser of registration of the plan of subdivision.
On 29 March 2019, over two years since the parties had separated, the Applicant lodged his first caveat over the Respondent’s Street M, Suburb N property.
On 30 April 2019, the Respondent instructed lawyers to lodge a notice with Land Use Victoria under s.89A of the Transfer of Land Act1958 (Vic), seeking the removal of the Applicant’s caveat. The Applicant notified Land Use Victoria of these proceedings and, as a result, the caveat did not lapse.
The caveat prevented the Respondent from lodging the plan of subdivision and settling on the sale. As a consequence, she was unable to execute a contract with the builder that she had engaged, S Builders.
On 21 June 2019, the Respondent filed an originating motion in the County Court of Victoria, seeking the removal of the caveat lodged by the Applicant and for costs of and incidental to those proceedings to be paid by the Respondent on an indemnity basis. On 2 July 2019, the County Court proceedings were heard before Her Honour Judge Ryan, and Her Honour made orders for the removal of the caveat lodged by the Applicant over the Street M, Suburb N property and for the Applicant to pay the Respondent’s costs of and incidental to the proceedings on an indemnity basis. The Applicant has not complied with that order.
On 8 August 2019, the Applicant lodged a further caveat over the Respondent’s property, claiming a freehold interest in the property arising from an implied, resulting or constructive trust. The further caveat claimed an interest over the land contained within Certificate of Title Volume … Folio …, which included land contained within the fenced boundary of the Respondent’s neighbour’s property. The further caveat was lodged against the title of both the Respondent’s property and that of her neighbour. This action of the Applicant required further proceedings to be initiated in the County Court by the Respondent.
The outcome of those proceedings was that on 4 October 2019, His Honour Judge Woodward made orders for the removal of the further caveat lodged by the Applicant and for the Applicant to pay the Respondent’s costs of and incidental to the proceedings on an indemnity basis, fixed in the sum of $15,000. The Applicant has not complied with that second costs order against him.
The Respondent’s existing house was demolished on … 2019, and since that time she has been renting privately. The delays occasioned by the actions of the Applicant have occasioned to her great expense in the incursion of significantly more rental, as well as legal costs in court proceedings with multiple court dates.

Conclusion

On the evidence before the Court the Applicant and the Respondent maintained separate lives. There was not a merger of their independent lives into that of two people “living together as a couple on a genuine domestic basis.”[2] Indeed every aspect of their lives as detailed in these reasons spoke against that description. In all of the circumstances as canvassed above it is patently clear that the relationship between the parties was not a de facto relationship as defined by the Act.
[2]Acts Interpretation Act 1901 (Cth) s 2F.
The Applicant has been entirely unsuccessful. He has occasioned considerable legal costs to the Respondent pursuing a case without merit. The Respondent seeks indemnity costs. The Court is not inclined however to exercise its discretion to award costs in that manner but considers there are circumstances that justify an order for costs against the Applicant.
In having regard to those matters as set out in s.117(2) of the Act the Court is concerned with the considerable diminution of the Respondent’s financial circumstances occasioned by the Applicant’s conduct in relation to the proceedings, including his failure to comply with orders as to discovery and/or production of documents and his pursuit of this litigation in, at times, a chaotic way. He has been wholly unsuccessful and there appeared a motivation to extract material gain in the context of no entitlement to it of which he would have, or at the least should have, been aware. He has scant regard for the truth. He is intent on causing the maximum cost and difficulty to the Respondent as is seen in his County Court of Victoria and this, litigation. In the exercise of its discretion an order for costs shall be made.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 22 November 2019.

Associate:

Date: 22 November 2019

[2019] FamCA 826

22 November 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Appeal

Procedural Fairness