Christofis & Zorbas
[2011] FMCAfam 571
•10 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHRISTOFIS & ZORBAS | [2011] FMCAfam 571 |
| FAMILY LAW – De facto – preliminary consideration of jurisdictional issue as to whether or not the parties lived in a de facto relationship. |
| Family Law Act 1975, ss.4AA, 90RD Property (Relationships) Act 1984 (NSW) |
| Baker & Landon [2010] FMCAfam 280 Roy v Sturgeon (1986) 11 NSWLR 454; (1986) 11 Fam LR 271 Elias v Elias (1977) FLC ¶90-267 Moby & Schulter [2010] FamCA 748 |
| Applicant: | MR CHRISTOFIS |
| Respondent: | MS ZORBAS |
| File Number: | DGC 3085 of 2010 |
| Judgment of: | McGuire FM |
| Hearing dates: | 28, 29 & 30 March 2011 |
| Date of Last Submission: | 30 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Ken Smith & Associates |
| Counsel for the Respondent: | Ms Dunlop |
| Solicitors for the Respondent: | Waters Lawyers |
ORDERS
Pursuant to section 90RD of the Family Law Act 1975 IT IS DECLARED THAT a de facto relationship existed between the applicant Mr Christofis and the respondent Ms Zorbas for the period from 2002 until May 2010.
The parties and their legal representatives attend a conciliation conference with a Registrar of this Court at the Melbourne Registry on 19 August 2011 at 11.00 am.
The matter be
adjourned for final hearing before McGuire FM on
16 November 2011 at 10.00 am at Melbourne (with an estimated hearing time of one day).
Each party file and serve all affidavits upon which they seek to rely not later than 4.00 pm 28 days prior to the final hearing, and the parties shall not file further affidavits after that time without first obtaining leave from Federal Magistrate McGuire to so do.
Each party file and serve a case summary document not later than
7 days prior to the final hearing.
The Applicant pay the hearing fee or reduced hearing fee in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.
IT IS NOTED that publication of this judgment under the pseudonym Christofis & Zorbas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 3085 of 2010
| MR CHRISTOFIS |
Applicant
And
| MS ZORBAS |
Respondent
REASONS FOR JUDGMENT
The applicant, Mr Christofis, seeks a declaration pursuant to s.90RD of the Family Law Act 1975 (“the Act”) that he and the respondent,
Ms Zorbas, were in a de facto relationship within the meaning of the Act from 2002 until May 2010.The respondent argues that there was no de facto relationship
or, alternatively, if such a relationship did exist then is concluded
in 2005 and prior to the amendments to the Act of 1 March 2009 conferring jurisdiction on the Federal Magistrates Court of Australia and the Family Court of Australia to deal with financial issues between parties to a de facto relationship.
The parties ask the Court to determine this issue as a preliminary matter to the substantive issue of a property settlement.
The law
Section 4AA of the amended Act sets out the meaning of de facto relationship 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 (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.
Section 4AA(2) sets out a number of “circumstances” which may be indicative of a de facto relationship. It is clear, however, that the list
is not conclusive in that the subsection is worded as follows:(2) Those circumstances may include [my emphasis] 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.
The discretionary nature of the determination and the ability of the court to consider all relevant indicators is emphasised by s.4AA(4) which states:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, [with reference to those listed above] and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
Federal Magistrate Riethmuller in Baker & Landon[1] considered the indicators set out in s.4AA of the Act in determining whether or not
a de facto relationship existed. His Honour stated at [11]:[1] [2010] FMCAfam 280.
The requirements of s.4AA, in summarised form, require
a decision as to whether the parties ‘have a relationship living together on a bona fide domestic basis’. In coming to this decision the court must have regard to ‘all of the circumstances of the relationship’, which may include the factors set out in s.4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (s.4AA(3)) nor does the section attempt to prescribe the weight to be attached to any particular factor (s.4AA(4)). As a result the definition cannot be said to be closely proscribed.
I respectfully agree with his Honour’s assessment of the defining sections under the Act in respect of “de facto relationship”. Without the legal sanctions and niceties of a marriage certificate, courts
of various jurisdictions have pondered the notion and definition of “de facto relationship” or “marriage-type relationship” and the statements of Riethmuller FM seem to be in accord with those historical discussions. Justice Powell in Roy v Sturgeon[2] in considering a matter under the New South Wales Property (Relationships) Act 1984 held
at [458]:
With respect, it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis” into discrete “elements”, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case…
[2] (1986) 11 NSWLR 454; (1986) 11 Fam LR 271.
The evidence
The applicant swore two affidavits on 6 September 2010 and
28 February 2011. He also adduced evidence from Mr A, Mr N, Mr J and Ms J. The applicant and each of his witnesses were cross-examined.The respondent also relied on two affidavits sworn 21 October 2010 and 8 March 2011. She adduced evidence from Mr W, Ms W, Ms R, Ms T, Ms H and Ms B.
The deponents of all affidavits were cross-examined.
Both parties were represented by counsel. The hearing was continued over three days.
Background
The applicant is 63 years of age being born [in] 1947. The respondent was born [in] 1944 and is therefore 66 years old.
The parties agree that they met in late 2001 or early 2002.
The respondent, Ms Zorbas, argues her case in the alternative and primarily that there was no de facto relationship at law. She does, however, say at paragraph 2 of her first affidavit sworn 21 October 2010 and whilst denying the applicant’s statement that the parties “began a relationship… in June 2002”:
… and say that I entered into a relationship with the Applicant on the 16th April 2002 and separated in February 2005.
When the parties met and commenced a relationship, whether
a de facto one or not, Ms Zorbas owned a property at Property N in Victoria. Mr Christofis owned a property at Property M in Victoria.It is clear on the evidence, and conceded by her, that Ms Zorbas spent time, including overnight time on occasions, at the applicant’s home.
It is equally clear that she maintained her own property and would also spend time there.The parties at this time were engaged in an intimate relationship.
The parties jointly purchased two vacant blocks of land at [1] and [2] Property B in Victoria. The applicant says that the purchase was made in July 2002. The respondent says that settlement took place on
29 May 2003. After seeing and hearing the parties cross-examined, I prefer the evidence of the respondent, Ms Zorbas, and, to his credit,
Mr Christofis admitted on occasions that he could not be specific as to some dates. There is dispute as to the source and amount of the deposit paid on the blocks. Given that I am only making a preliminary determination as to whether or not there was a de facto relationship between the parties and not the substantive issue of property settlement at this stage, nothing turns on that dispute. It is clear, however, that the properties were purchased and registered in the joint names of the parties.In about October 2002 the parties agree that they traded the respondent’s Mazda motor vehicle and the applicant’s Holden motor vehicle and purchased two new Holden motor vehicles for themselves.
Also in about late 2002 or 2003 the parties jointly borrowed approximately $228,000 which was secured over the applicant’s Property M property. A draw-down line of credit was established. The funds were used to complete the purchase of the Property B blocks of land and to build a dwelling on one lot. The other lot was sold in November 2004 for $208,000 which netted the parties approximately $74,000. Where there are discrepancies in detail between the applicant and the respondent in respect of these transactions, I prefer the evidence of the respondent who was able to provide corroborative material annexed to her affidavits and gave her evidence as to dates and events with more precision and confidence than did the applicant.
In 2004 the parties enjoyed a holiday together in Mauritius. Again, there is a dispute as to who contributed primarily to the costs of that holiday.
In 2003 the respondent Ms Zorbas had enjoyed a holiday in Hawaii without the applicant.
In November 2005 Ms Zorbas moved into the home constructed on the Property B block. The parties agree that the applicant remained primarily living at his Property M property. He, however, maintains the relationship continued and he stayed at the Property M property only for security reasons pending its sale and because the Property B home built on a sloping block was aggravating of his leg injuries which were awaiting surgery.
The Property B property was sold in December 2007. Earlier that year, in February 2007, Ms Zorbas had purchased a property registered in her own name at Property C. The purchase price of $290,000 was borrowed and secured by the Property B property which of course was registered in the joint names of the parties. That mortgage was paid upon the sale of the Property B property later that same year thereby rendering Property C, unencumbered. The total balance proceeds of sale of the Property B property after payment of the mortgage were paid to the applicant, Mr Christofis.
The sale of the applicant’s Property M property settled in about March 2007 and he moved into the Property B property pending its sale in November 2007 with Ms Zorbas having vacated the Property B property and moved into the Property C property in February 2007.
There is significant dispute between the parties as to the nature of their relationship or contact between February 2007 and early 2008.
Ms Zorbas says that there was minimal, if any, contact for them in that period. The applicant says that he too moved into the Property C property and only lived for a short period of time or intermittently
at the Property B property to protect it from vandalism whilst it was marketed for sale.On 3 January 2007 the parties each signed a handwritten document for the benefit of Centrelink and each of them denying that they lived with each other and, from Ms Zorbas, that they had ever lived together. That document is annexed to Ms Zorbas’ affidavit sworn 21 October 2010. Above the applicant’s signature appears the following:
My name is Mr Christofis and I live in [M] and have lived in the same house for 29 years. Ms Zorbas is a close friend only.
Ms Zorbas does not live with me. Yours sincerely…Ms Zorbas states to Centrelink:
I [sic] Ms Zorbas and I live at Property B. Mr Christofis is only a close friend and has never lived with me. Yours sincerely…
In June 2007 the applicant Mr Christofis cashed in and received his superannuation entitlement of $67,000. The parties agree that he did so without any discussion or immediate notification to Ms Zorbas. She says that this event in 2007 coincides with the period of minimal contact between the parties.
In late 2007 or early 2008 Mr Christofis entered hospital for surgery on his knees. This was the first of two operations. He was released from hospital in January 2008. He took up residence at the respondent’s home at Property C. The circumstances of that residence are in dispute between the parties.
In July 2008 the respondent Ms Zorbas took out a loan for $35,000. She says she paid these monies to the applicant as he was being pursued by creditors. Mr Christofis says that the loan was used
to pay for dental work for both of them as well as paying some of his creditors and to purchase other items for Ms Zorbas.In May 2009 the parties agree that the applicant’s motor vehicle was transferred to the respondent. She says this happened so as to repay
his debts and accumulated loans in her name. He says that he was again being pursued by creditors and feared that the vehicle might
be repossessed.Mr Christofis was again hospitalised between January and August 2009.
Upon the applicant’s release from hospital in August 2009 the respondent obtained a carer’s benefit through Centrelink because of her caring for him.
Both parties agree that as from August 2009 the applicant slept in the back bedroom of the Property C property and that the parties were known as “friends” for Centrelink purposes. The respondent, of course, says that this had been the situation for some considerable time.
On about 8 May 2010 the applicant left the respondent’s home after she discovered text messages from another woman on his telephone.
The applicant’s case
The applicant says that there was a de facto relationship between
he and Ms Zorbas. He says however that the relationship had different characteristics over different time periods. Firstly, and until 2005,
he says that there was evidence of a traditional relationship where the parties mainly lived together and further that the respondent’s own case corroborates this fact.The applicant says that the respondent moved into his Property M home some months after they met via the internet. He says that the relationship was sexual. He concedes that the respondent maintained her own residence for a period before transferring it to her daughter.
He says that this is all indicative of a developing and committed relationship.The respondent concedes that there was a sexual relationship. She says that she moved between the applicant’s Property M home and her own home at Property N.
Significantly, and supportive of the applicant’s case, is the respondent’s own evidence at paragraph 19 of her affidavit of 21 October 2010, where she says:
… I advised Centrelink that I was living at Property M but was living in a bedroom in the back of the Applicant’s Property M home.
In 2004 the parties jointly purchased two blocks of land at Property B with the intention of together building a home. The titles were registered jointly in the names of the parties and the applicant says that this was indicative of their relationship and their intention.
In 2004 the parties holidayed together in Mauritius.
The respondent concedes at paragraph 19 of her trial affidavit sworn
21 February 2010 that there was a sexual relationship between the parties at least up to February 2005.Post-February 2005 the applicant says that the respondent continued
to live primarily in his Property M home until such time as she moved into the Property B property in about November 2005. The respondent says in her evidence that she believed the relationship was over as early as February 2005 and that she suffered emotional ill-treatment at the hands of the applicant. Mr Christofis questions, therefore, if this evidence was factually correct then why the respondent would remain living in his home when she could have stayed in the property transferred to her daughter or with other members of her supportive family. He says that the relationship continued and that the respondent remained in that relationship voluntarily.The applicant says that the respondent Ms Zorbas moved into
the Property B property alone because of two factors. Firstly, the Property B property was not practical for his purposes given that
he suffered severe osteoporosis in his legs which eventually required significant surgery. Secondly, he says that it was intended that he would sell his Property M property and that he remained primarily living there for security purposes and at the suggestion of the selling agent. He says, however, that he attended the Property B property regularly and was involved in the purchase of some of the fittings and furniture for that property. The applicant refers to paragraph 21 of the respondent’s affidavit sworn 21 October 2010 which alludes to him purchasing furniture for the Property B property. The applicant says that the respondent’s own evidence is therefore inconsistent with her statement that the parties had “gone their own ways” from earlier in 2005.The applicant is, of course, confronted with the Centrelink statements annexed to the respondent’s affidavit. The statement is dated 3 January 2007. Whilst it is clear that it is the intention of the written statements of both parties to indicate to Centrelink that there was no de facto relationship, the applicant says firstly that he did so at the request
of the respondent who dictated his statement for him and, secondly, that the contents are untrue and contrary to the weight of other evidence. Further, the applicant points to and relies on other
untruths in statements made by the respondent to Centrelink.
Annexed to Ms Zorbas’ own affidavit sworn 8 March 2011 is a copy
of a Centrelink document entitled “living arrangements”. The stamp on the document indicates 29 January 2008. It is clearly signed
by Ms Zorbas. In that document and declaration she again refers
to Mr Christofis only as a “friend”. However, Ms Zorbas quite clearly answers “no” to a question enquiring as to whether she had ever purchased any land, houses or other form of real estate with
Mr Christofis. This evidence is obviously false given that the parties jointly purchased the two blocks of land at Property B and jointly built a residence as well as obtaining a joint mortgage obligation.Further, Mr Christofis refers to the abovementioned handwritten statement to Centrelink of 3 January 2007 in questioning why
Ms Zorbas should be putting her signature to such a document when she otherwise claims the relationship to have ended as long ago
as 2005. That is, why she is telling Centrelink in 2007 that there is no relationship when she says it ended in 2005 and that she claims to have moved to Property B alone in 2005.The applicant argues that the evidence of the respondent for the period from 2007, through 2008 and until their final physical separation
in May 2010 is unsatisfactory. She says that she felt pity for him in about January 2008 when upon his release from hospital Mr Christofis knocked at her door penniless and without a place to live. Annexed to his affidavit sworn 28 February 2011 is a Centrelink statement which shows that he received Newstart Allowance for the period from
24 August 2007 to 30 June 2008. He argues firstly the fact of him receiving Newstart Allowance is contrary to the respondent’s argument that he presented in a penniless state. Secondly, the address shown on the document annexed to the applicant’s affidavit shows his address being the applicant’s Property C address. The applicant gives what he says is a plausible argument for the fact that the Property C property was purchased solely in the name of Ms Zorbas. He says that this was done at a time to protect both of them from creditors apparently pursuing him. He also says that no separate loan was required for the purchase of the Property C property because the parties were able to use the draw-down facility on the mortgage secured by the Property B properties. He asks the Court therefore to draw an inference that there was a continuing relationship evidenced by him allowing his interest in Property B to be used as security for the purchase of the Property C property even though he did not have the security of title to that property.
The applicant questions the credit of the respondent’s evidence.
He repeats that it is inconsistent for her to argue the end
of a relationship in February 2005 due to his emotional abuse, not have any contact with him for the majority of 2007 as she claims,
and simply allow him to live in her home when he unexpectedly knocks on her door in January 2008. He says that the court should prefer his version of events which is that the relationship remained
a supportive and committed one. He says he did spend time during 2007 at the Property C residence. The applicant was supportive
of him during his hospitalisation and that it was always intended that he would return to live at the Property C home after his release from hospital.The applicant also urges the court to question credit in relation to the respondent’s claim that she took him in, in the circumstances set
out above in January 2008 only until he could “get on his feet” and find alternative accommodation. He points to the fact that he remained resident, subject to a further lengthy period of hospitalisation, in the Property C property for more than two years from January 2008 until May 2010.The applicant points to the circumstances of the physical separation
of the parties in May 2010 as indicative of de facto relationship.
It is agreed between them that the respondent, Ms Zorbas, found some form of compromising text message on the applicant’s telephone from another woman. He says that she reacted predictably for a person
in an emotional relationship in that she spontaneously and vigorously demanded he exit the Property C property. The applicant says that this behaviour is inconsistent with the “simple friendship” relationship espoused by Ms Zorbas.The applicant points to other factors such as the respondent obtaining
a carer’s benefit for him in 2009 and upon his release from hospital. The applicant says that the respondent was noted as his next
of kin when he was hospitalised and that she was generally a regular visitor and supportive of him. The contention as to next of kin is not conceded by Ms Zorbas and no corroborating evidence was adduced. He says that he gave her the use of his credit card whilst he was
in hospital. He says that the respondent took out a personal loan in her name alone in order to satisfy some of his debts during the period following January 2008. He says that the parties socialised together and enjoyed family anniversaries and celebrations together.
Mr Christofis argues that this is inconsistent with Ms Zorbas’ argument that she gave him short term only accommodation out of pity and only until he could find an alternative.The applicant concedes that there was no sexual relationship during
the latter part of what he says was a continuing relationship. He says, however, that the court should place no store on this fact alone given that there were medical explanations on the part of both he and
Ms Zorbas for the ending of their intimate relations.
The applicant’s corroborative witnesses
Not surprisingly, the evidence adduced from witnesses in respect of each of the parties is in the main unhelpful and tends only to highlight the arguments emphasised by each of the parties in respect of their cases. Mr A says that he met Mr Christofis in [omitted] Hospital in May 2009. They shared the same ward. He says that Ms Zorbas was a regular visitor. He says that he continued to communicate with
Mr Christofis after the applicant was discharged in August 2009 and his observations were of the presence of Ms Zorbas.In cross-examination Mr A conceded that he never had any direct or specific discussions with Mr Christofis or Ms Zorbas as to the status of their relationship and he clearly relied on his own inferences.
Mr N swore an affidavit on 28 February 2011. He says that he has known Mr Christofis for more than nine years and that he believed the applicant and the respondent “were a couple”. At paragraph 3 of his affidavit Mr N says:
That on all occasions I saw the Applicant which included visits to the hospital, I always believed that he and the Respondent were
a couple by the way the Applicant talked about the Respondent and the houses they were building and buying and what they were doing together at the time, for example, holidays or having the Respondent’s grandchildren over to their house, and that the Respondent was taking care of the Applicant whilst he was
in hospital to get his knees fixed.In cross-examination Mr N conceded that during none of his visits to the applicant in hospital was Ms Zorbas present. He did, however, respond that he had met Ms Zorbas over two Christmas family lunches in about 2002 and 2003 when she was with the applicant. He conceded that he had not even spoken with the applicant specifically as to the nature of the relationship between he and Ms Zorbas.
Mr J swore an affidavit on 28 February 2011. It rapidly became clear that Mr J’s evidence was of little assistance given that he suffers from Asperger’s Syndrome and a number of other conditions. Mr J candidly admitted that he was not proficient at remembering dates and details. For instance, Mr J claimed that he has been taken to restaurants by the parties together as recently as early 2011 which was quite obviously contrary to the evidence of both parties. I can place little or no store on the evidence of Mr J.
Ms J is the step-daughter of Mr Christofis. She swore an affidavit on 28 February 2011. She deposes that the respondent moved into the applicant’s home in 2002 taking with her much of her own personalty such as photographs and sewing equipment. She deposes that the applicant’s extended family and the respondent’s extended family enjoyed Christmases together in 2002 and 2003. Ms J corroborates the applicant’s evidence that he remained in the Property M home to provide security for the premises when the applicant had moved into the Property B home. Ms J deposes that Mr Christofis moved into the Property C house in about April 2007 and returned there after his stays in hospital. Ms J essentially adhered to this evidence under cross-examination.
The respondent’s case
Firstly, the respondent argues primarily that there was no de facto relationship between she and the applicant. She concedes that they met and had a friendship. She says that she would spend periods of time
at the applicant’s Property M home and that the relationship
was a sexual one. She says, however, that she maintained her own residence as she was not sure that the relationship would be an enduring or successful one and that in her mind it ended in February 2005.The applicant says that she ended the relationship as she was subjected to unspecified emotional abuse at the hands of the applicant.
The respondent says that she moved alone into the Property B property and that this is indicative of her intention to separate from the applicant. She challenges the regular attendances claimed by the applicant at the Property B property.
The respondent says that whilst she enjoyed a holiday with
the applicant in Mauritius, she also enjoyed holidays alone and
in particular a holiday in Hawaii.Ms Zorbas says that the Property C property purchased in her own name and unencumbered is an indication of her separation from the applicant. She agrees that the Property C property was purchased
by use of a mortgage on the Property B property. She says that
she transferred her interest in the Property B property back
to the respondent and effectively ended their financial and property relationships.The respondent says that she notified Centrelink of the nature of her relationship with the applicant and that this corroborates her argument that there was never a committed relationship and that such relationship as there was, was only one of being “friends”.
The respondent says that there was no sexual relationship after February 2005.
Importantly, the respondent says that she had little or no contact with the applicant for the period of her moving into the Property C home until January 2008 when the applicant, without prior notice, knocked on her door having recently been released from hospital and claimed
to be penniless and without a place to live. She says that she took pity on the applicant’s situation as she would with any person and gave him short term accommodation in a spare room in her home.The respondent concedes that she was supportive, actually and financially, of the applicant during the period from January 2008 until May 2010. She emphasises, however, that this was not indicative
of a de facto relationship between them but rather of her altruism
and how she would treat any person in that situation. The respondent says that in about June 2007 the applicant cashed in his superannuation entitlement without her knowledge and that his own evidence under cross-examination corroborates her view as to there being
no committed or financial relationship by that time. When questioned as to why he did not tell Ms Zorbas of the vesting of his superannuation, Mr Christofis replied “because she would want some of it”. She argues that this evidence of the applicant is inconsistent with there being a de facto relationship at that time.The respondent says that the applicant’s time living in her Property C home from January 2008 until May 2010 should be seen within the context of him spending approximately 12 months of that period
in hospital.The respondent maintains that any socialising or enjoyment of each other’s company in the period since January 2008 is simply
an indication of friendship rather than a committed de facto relationship.Ms Zorbas says her reaction to her finding the telephone text message in May 2010 was simply her disappointment that Mr Christofis may have entertained women in her house during her absences.
Her counsel relies on Ms Zorbas’ emphasis on “my house” when cross-examined as to this issue.Ms Zorbas says that she has always informed Centrelink of the actual situation between she and Mr Christofis and even in 2008 confirmed that they were “just friends”.
In summary Ms Zorbas says that her relationship had no permanence, no commitment and any financial relationship was severed as long ago as 2007.
The respondent’s corroborative witnesses
Again, and due to the personal nature of de facto relationships, the witnesses adducing evidence for the respondent were of little probative value.
Ms B gave witness for the respondent. She said that she observed that the applicant came to live at the Property C home some time after it was purchased and that he had his own toilet and bathroom. Given the nature of Mr Christofis’ medical conditions, such evidence is not inconsistent with his own evidence. Ms B said that “she never saw them acting as a couple”. However, the emotions within a relationship and those displayed publicly can vary enormously and I can glean little assistance from this comment.
Ms W is the respondent’s daughter. Ms W says at paragraph 3 of her affidavit:
The Applicant and my mother commenced a relationship in April 2002 having met some six months earlier. The Applicant was living in his Property M residence while my mother was living in her Property N residence.
Such a statement is demonstrative of the alignments of witnesses
in such a matter as this. The respondent’s own evidence is that she would spend substantial block periods of time at the Property M residence whilst maintaining her own home.Ms W corroborates her mother’s version of events of January 2008 in that she says that the applicant presented as unemployed and very apologetic to her mother and asking if he could stay.
Mr W is Ms W’s husband and the son-in-law of the respondent. He says at paragraph 20 of his affidavit sworn 10 March 2010:
At no time did I witness any emotional or physical feelings between them [the parties to these proceedings].
Mr W deposes that the applicant would talk about other women often and in front of the respondent and her family. He says that he did not see any of the applicant’s family visit him at the respondent’s
Property C home. However, the context of such an observation is seen in the next paragraph where he deposes that his wife would visit
Ms Zorbas “at least two times per week”. Later at paragraph 23 of his affidavit Mr W confirms that Ms Zorbas would drive the applicant to and from his medical appointments and that Ms Zorbas’ own extended family would visit the applicant in hospital. This evidence is a little surprising given the evidence that Ms Zorbas’ family had perhaps taken legal advice on her behalf previously and that Ms Zorbas had allegedly suffered some emotional abuse at the hands of the respondent thereby initiating her determination to separate from him.Ms H says that she has “often” stayed at the respondent’s Property C home and witnessed that the applicant has his own room. This evidence is not contrary to that of Mr Christofis himself. In cross-examination, however, Ms H confirmed that during her visits, which totalled three, Mr Christofis had cooked meals for everyone in the home.
Ms T says that she has been to the respondent’s home and observed that the applicant has his own separate room and facilities. Ms R gives similar evidence.
Discussion
The duration of the parties’ relationship
It is clear that the parties met around early 2002. They met on the internet. The evidence as a whole, including Ms Zorbas’ own evidence, is that they were in a relationship from about mid-2002. Ms Zorbas says at paragraph 2 of her affidavit sworn 21 October 2010:
…and say that I entered into a relationship with the Applicant on the 16th April 2002 and separated in February 2005.
The applicant says that the relationship was enduring. The respondent says that it changed its characteristics and became firstly one
of financial necessity and then one of friendship. In whatever form, however, that relationship itself has endured, or at least did until
May 2010.The respondent says that there was no contact during the greater part
of 2007. The applicant says to the contrary that he would regularly visit and stay at the Property C property. I prefer the evidence of the applicant on this issue. I note the indication to Centrelink of his address for the 2007/2008 financial year in the annexure to his affidavit showing the Property C property to be his address for Centrelink benefits although of course it is not disputed that he was living there in June 2008 when the document is dated. Having had the advantage
of seeing and hearing both parties give their evidence in court and
be cross-examined, I prefer the evidence of the applicant
Mr Christofis as to the circumstances of the purchase of the Property C property and the reasons for it being put into the sole name of
Ms Zorbas. I accept that he had an involvement in and interest in the purchase of that property. He gives a plausible explanation as to why his name is not on title. Significantly, his interest in the Property B property was used as security for the purchase of Property C. Specifically, I accept his evidence that he continued to “visit” the Property C property. The applicant’s version of the continuing relationship during 2007 is more consistent with him coming to live at Property C in early 2008 than the explanation given by the respondent.As such, I am of the view that a relationship of sorts continued and endured between the parties from 2002 until May 2010 and is not punctuated by little or no contact in 2007 as put by the respondent. That is, I find there to be a continuing relationship but I must consider whether that remained a de facto relationship within the meaning of the Act.
The nature and extent of the parties’ common residence
On the evidence before me I am able to find that the parties did share the applicant’s residence at Property M for a period of time. I am mindful that the respondent retained her own residence. However, it seems odd to me that the respondent will claim to be the victim of some form of abuse from the applicant, determined to separate in February 2005, but remain resident at Property M until November of that year when she moved into the Property B property. The strongest likelihood is that she would have other options of accommodation in such circumstances including her former home which she had transferred to her daughter and a supportive family. I am not convinced by her response to this proposition that in that she was protecting her investment. Her investment was protected by her recognition on title to the Property B properties.
Equally, there is no doubt that the parties shared a common residence from January 2008 until May 2010 regardless of the applicant’s hospitalisation for a significant part of that time. There is no evidence that the applicant had any alternative residence available to him.
He lived in the Property C property prior to his last hospitalisation. He returned to that property. Indeed, there is no argument by the respondent to the contrary. The respondent’s argument is as to the nature of their relationship during those periods of common residence.There remains an issue as to the residence of the parties between November 2005 when the respondent moved into Property B and February 2007 when she completed the purchase of Property C. On my calculations, this is a period of some 15 months. I have no doubt on the evidence that the applicant initially remained living primarily at Property M. I accept, on the evidence as a whole, that the parties retained a relationship during the relevant period. The applicant in cross-examination said that he would “visit” the respondent. I do not see his use of this term as contrary to maintaining a relationship. The respondent concedes that the applicant made purchases of furniture and fittings for the Property B house during this time. This is consistent with there being common residence. In my view the applicant gives plausible explanations as to him remaining in residence at Property M. He says he would stay there to secure the home pending its sale and because it was easier on his leg ailments.
On the whole, I am of the view that the parties have maintained
a “common residence” throughout their relationship. Initially they lived at the Property M property. They then jointly built a home
on their jointly owned Property B home. For practical reasons
the applicant did not move permanently to that property until his Property M home was sold. Similarly, the Property B property
was eventually sold. Property C was purchased before the sale
of Property B. Following that sale it is clear that the applicant lived primarily with the respondent at the Property C property. In doing
so, I prefer the evidence of the applicant over that of the respondent that their relationship continued throughout 2007. I have already referred to the Centrelink document annexed to the applicant’s affidavit and the inconsistencies in its contents and other evidence before
me. It is hard to find otherwise than the respondent was simply being dishonest with Centrelink. The questions regarding purchase
of property and establishment of joint loans are in my view clear
and unambiguous. The respondent’s answers are blatantly false.
I have had the advantage of seeing and hearing the parties give their evidence and be cross-examined on this point. I find the applicant’s version of events more credible and consistent with the mutual behaviour of the parties during the entirety of the period from 2002 until 2010.
Existence of sexual relationship
The respondent concedes a sexual relationship between 2002 and 2005. It is likely on the evidence that that sexual intimacy between the parties ceased over time due to a number of health factors in respect of each
of them. However, the cessation of the sexual relationship is not necessarily indicative of the breakdown of the relationship itself.
Financial independence, interdependence and arrangements for financial support
The evidence on a whole shows an ongoing financial relationship
and dependency from 2002 until 2010. Significantly, and early in the relationship, the parties jointly purchased two blocks of land
at Property B. The titles were registered in their joint names. The mortgage was taken jointly. They jointly built a residence. They traded and purchased motor vehicles together. Despite the change in their living arrangements, on the respondent’s own evidence the applicant purchased furniture for the Property B home.It is true that the Property C property was registered solely in the name of the respondent. The applicant gives a viable explanation
for this occurring. However the purchase was secured with a mortgage over jointly owned property.In the latter phase of their relationship and in about 2008 or 2009 the respondent took out a loan in an amount of $30,000 of which at least
a significant part was used for the benefit of the applicant.The parties have indicated to Centrelink that they were not financially dependent. However, on the evidence before me the Centrelink documents completed by the respondent are clearly untrue in some particulars such as her denial that the parties had ever purchased property together. Given this evidence, I prefer the version of events
of the applicant that it was the respondent who initiated the joint statements to Centrelink which were on my findings also in fact false.The respondent was given and had use of the applicant’s credit
and bank cards during his hospitalisation. She was for a period his carer and received a financial benefit from Centrelink accordingly. Such evidence does not sit well with her claim of taking the applicant into her home only on a temporary basis and until he could find alternative accommodation.The applicant cashed in his superannuation entitlement in a sum
of approximately $67,000 in June 2007. When cross-examined
as to why he did so without disclosing the same to the respondent, the applicant says “because she would want some of it”. The respondent relies on this as an indication of their relationship having been broken down prior to this time. However, on reflection, such an answer might also be relied upon by the applicant to show that a relationship
did continue at that time.
Ownership, use and acquisition of property
The parties together made a significant purchase of blocks of land
at Property B and the building of a residence there. They jointly entered into a mortgage loan to do so. The re-draw facility on the Property B property mortgage was used to purchase the Property C property subsequently registered solely in the name of the respondent.
The parties’ degree of mutual commitment to a shared life
The respondent denies any commitment to a relationship with
the applicant from early 2005 if at all. However, there are indicators from the evidence otherwise. The applicant purchased furniture for
the Property B property after the respondent had taken up residence. This was at a time when she says the relationship had ended.
The Property C property was purchased and registered solely in the name of the respondent with substantial funds from the joint mortgage facility secured by the Property B property. Such a transaction would arguably be considered imprudent on behalf of the applicant particularly if there had been a breakdown in his relationship with
the respondent in that he would be accepting financial responsibility effectively without security given the registration of title of the Property C property solely in the respondent’s name. There is no evidence such as of a caveat to otherwise protect his interest.
In my view a financial transaction in these terms is indicative
of a shared commitment.The respondent has admirably assisted, attended and cared for the applicant during his hospitalisations and recuperation in recent years. She says that she would do so for anyone in need. However, her actions are in many ways contrary to her evidence of her suffering emotional abuse at the hands of the applicant and the breakdown
of their relationship. Rather, the applicant can rely on these events
to evidence a continuing mutual and shared commitment.It is the evidence of both parties that since 2008 they have socialised, lived and shared time and interests together. They each, of course, put a different slant on these facts. However, what is clear on the evidence is that from 2002 they have been a presence in each other’s lives. There have been consistent signs of actual and financial commitment
to each other. They have spent and enjoyed their lives together.In making my determination I consider a number of points in time and indicators. However, I also view the alleged relationship as a whole
for the period 2002 to 2010. I do so against an understanding that there is no set, standard or “normal” definable “de facto relationship”.
I must consider each of the factors within the whole. On consideration of all of the evidence, I am of the view that there has been an historical commitment by the parties to each other. They have shared their lives. The fact that they may have at times lived primarily in different residences is not itself determinative of a separation.
Reputation and public aspects of the relationship
In this respect I do not place much store on the corroborative evidence of either party. The evidence is clear that the parties have enjoyed
a social and public relationship. They have shared family anniversaries and events from 2002 until 2010. The respondent’s grandchildren would come into the applicant’s home from the early stages of their relationship. The respondent’s family visited the applicant in hospital. The parties have shared holidays. It is generally accepted by them
and their witnesses that they intended to build their “dream home”
on the Property B property. The respondent’s counsel attempted
to make something of the fact that there were not regular public outbursts of emotion or affection between the applicant and the respondent. In my view, however, this is equally a factor of personality and demeanour rather than an indicator of a relationship or otherwise.An objective observer from 2002 to 2010 would have little difficulty
in my view in recognising a continuing relationship between the applicant and the respondent. The fact that they might occupy separate rooms in the same house as noted by some of the respondent’s witnesses is not in itself conclusive of there being no de facto relationship and is simply one reference to be made amongst many.
Other circumstances
There remains to consider the evidence that both of the parties indicated to Centrelink in January 2007 that they were not and had not been in a relationship. Firstly, I note that the respondent is giving this notification in 2007 when she says the relationship broke down
in 2005. No explanation for this occurring in 2007 was adduced, although of course the parties did jointly own property during 2007.Arguably, the letter to Centrelink, or at least that portion of it penned and signed by the applicant Mr Christofis, is captured by the Elias principle.[3] Put simply, the principle is that a person should not
be permitted to rely on a representation at a point in time for their
own benefit and then later deny the substance of that representation
so as to achieve an alternative benefit. The “principle” is nota mandatory one. It is no more than a logical and understandable consideration for a court in evaluating evidence.[3] Elias v Elias (1977) FLC ¶90-267.
The applicant says that he penned and signed the note to Centrelink
at the instigation of the respondent and presumably to allow her to retain her personal Centrelink benefit. The respondent denies that this is the fact. Nevertheless, it remains unexplained other than
my speculation above as to why such a note to Centrelink was being prepared in January 2007. Further, it is clear that the respondent completed other documentation to Centrelink which was factually incorrect in respect of her relationship with Mr Christofis. Taking all of these matters into account, I am not of the view that the note
to Centrelink penned and signed by Mr Christofis is fatal for his case under the Elias principle.
Conclusion
Section 4AA of the Act gives the court a broad discretion
in determining whether a de facto relationship exists. This is not surprising given the varying natures of relationships generally and the fact that a de facto relationship does not generally have the defining characteristics of a formal marriage. As his Honour Mushin J said
in Moby & Schulter[4] at [166]:The absence of any formal requirement such as a marriage ceremony evidenced by a Certificate leads to the concept that a de facto relationship is, for the purpose of the legislation, diverse. In my view, the whole structure of the legislation confirms that view. Part of that diversity is incorporated in the discussion above. Further confirmation of that diversity is to be found in the proposition that a broad definition of de facto relationship may be attended by one or more of the circumstances referred to in the section but does not necessarily require a finding of the existence of any single circumstance or for that matter, any circumstance at all.
[4] [2010] FamCA 748.
In the matter before me there was undoubtedly a relationship between the parties. It did, however, undergo a number of phases. Firstly,
I reject on the evidence the respondent’s initial argument that there was never a de facto relationship. Indeed, in my view, the respondent’s own evidence including financial commitment, sexual relationship, cohabitation (at least for periods) and public recognition make
it irresistible that such a relationship existed from 2002 until early 2005.On the evidence as a whole, I am of the view that the relationship continued until May 2010. There were periods when the parties lived primarily in different residences. However, I prefer the evidence of the applicant that there has always been a continuation of contact and commitment between them. I find that the actions of the respondent
in accepting the applicant as a resident in the Property C home from January 2008 until May 2010 as consistent with the applicant’s argument and inherently incredible in respect of the respondent’s argument given that she claims that the relationship broke down
in 2005 in circumstances of emotional abuse. The parties have entered into a number of interconnected financial transactions following 2005. The applicant gave use of credit cards to the respondent. Loans were taken for joint benefit. A commitment to care of the applicant by the respondent has been formally recognised. They have shared a common residence. They have socialised. Their relationship has a public persona.In isolation the respondent argues a number of indicators contrary
to a continuing relationship, such as the cessation of the sexual relationship and the registration of the title of the Property C property into her name alone. However, on the balance of probabilities
I am of the view that an emotional and committed relationship continued from 2002 until May 2010. Although not in itself
a determining factor, the circumstances of the events of May 2010
are themselves persuasive. It is clear that the respondent Ms Zorbas acted spontaneously and assertively when discovering a telephone text message on the applicant’s phone from another woman. Her actions
in immediately evicting the respondent are inconsistent with her own claims of emotional detachment from him.I will make a declaration that the applicant Mr Christofis and the respondent Ms Zorbas were in a de facto relationship from 2002 until May 2010. This will have the effect, of course, of also determining that this court has jurisdiction to deal with an application for alteration of property interests between the parties.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 10 June 2011
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