Clark & Clark

[2014] FCCA 234

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARK & CLARK & ORS [2014] FCCA 234

Catchwords:
FAMILY LAW – Whether parties in de facto relationship from 2001 until 2002 (applicant’s version) or 2012 (respondent’s version) – parties having child in 2007 – applicant and respondent undertaking frequent trips overseas together – parties generally spending 3 nights together each week – parties not co-mingling finances but applicant giving respondent $400,000 in 2011 – overall picture entirely clear – de facto relationship as asserted by respondent established. 

Legislation:  
Family Law Act 1975 (Cth), s.4AA(2)

Jonah v White [2012] FamCAFC 200

Applicant: MR CLARK

First Respondent: MS CLARK

Second Respondent: MS S CLARK

Third Respondent: MS N CLARK

File Number: MLC 4865 of 2012

Judgment of: Judge Burchardt

Hearing dates: 9, 10, 11 & 12 December 2013

Date of Last Submission: 12 December 2013

Delivered at: Melbourne

Delivered on: 11 March 2014

REPRESENTATION

Counsel for the Applicant: Dr Wilson SC

Solicitors for the Applicant: Croxford Partners

Counsel for the First Respondent: Ms Williams

Solicitors for the First Respondent: Galbally & O’Bryan

Counsel for the Independent Children’s Lawyer: Ms Bonney

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

THE COURT DECLARES THAT:

1. The applicant and the first respondent were in a de facto relationship within the meaning of the Family Law Act 1975 from July 2001 until April 2012. 

IT IS NOTED that publication of this judgment under the pseudonym Clark & Clark & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4865 of 2012

MR CLARK

Applicant

And

MS CLARK

First Respondent

MS S CLARK

Second Respondent

MS N CLARK

Third Respondent

REASONS FOR JUDGMENT

Introductory

1. Interim parenting orders were made by consent on 12 December 2012.

2. The remaining issue before the Court is whether or not the de facto relationship that started between the applicant and the first respondent (whom I shall refer to the as the respondent) in 2001 ended in 2002, as the applicant says, or in 2012, as the respondent says. 

3. This issue is being determined as a preliminary matter further to orders I made on 6 February 2013 and upon which occasion I gave brief reasons for doing so. 

4. As the Full Court of the Family Court has recently made clear in Jonah v White [2012] FamCAFC 200, this issue involves a determination of fact which, in turn, enlivens the power of the Court to exercise its discretion to grant certain remedies under the Family Law Act 1975 (Cth) (“the Act”).

5. For the reasons that follow, I am of the very clear view that the parties were in a de facto relationship within the meaning of the legislation at all times from 2001 to 2012.  I will make a declaration accordingly.  

Some background agreed facts

1. I should interpolate at this stage and say that the parties have filed very substantial quantities of materials in this proceeding.  If I was to traverse each and every one of the very many allegations each party has had to make about the other, this judgment would be prolix.  I have had regard to all the materials filed and to my extensive notes taken during the proceeding, including notes taken following seeing a number of DVDs.  These reasons for judgment will concentrate on those aspects of the evidence that, in my opinion, are of significance. 

2. The applicant father was born in (country omitted) on (omitted) 1958.  To his great credit, he in due course became qualified as a (occupation omitted) and he has worked for many years in that capacity.  He has lived in (country omitted) for decades. 

3. The respondent mother was born on (omitted) 1962 and is a (occupation omitted).  She was born in (country omitted) and came to Australia on a migrant visa.  She is an Australian citizen. 

4. The respondent entered into an arranged marriage with a Mr A, who is 14 years older than her, by whom she had three daughters.  The eldest, X, was born on (omitted) 1986, the second, Y, was born on (omitted) 1992, and Z was born on (omitted) 1995. 

5. Both the father and the mother are accomplished (omitted) and specialise, it would seem, in (hobby omitted) what both described as (hobby omitted).  They met in May 2001, it would appear, when the mother auditioned for a (omitted) organised by the father.  There are perhaps some slight differences to the exact details, but on any view, by 31 July 2001 they had commenced a de facto relationship.  The respondent had left her job and her then husband in Melbourne and moved to (omitted), where the applicant then lived.  She took X and Z with her.  Y initially remained with her father, Mr A, but joined them two weeks later.  

6. Following a relatively short period of cohabitation with the applicant at a hotel in (omitted), the parties moved to a rental premises in (omitted), where they stayed either until February 2002 (applicant’s version) or June 2002 (respondent’s version).  In my view, nothing turns on which of them is correct, although I found the respondent’s evidence more compelling for reasons to which I shall return. 

7. The respondent returned to Melbourne with the children in 2002.  She continued thereafter to travel extensively and regularly with the applicant overseas.  It would appear that the vast majority of such travel was, in fact, paid for by (employer omitted) on behalf of the applicant, but it is also clear that the parties, as it were, travelled and lived well on these occasions.  

8. The respondent had an abortion of what she says was the applicant’s child in late 2001 and had another abortion to a child conceived with him in 2003. 

9. In 2006, the applicant says that the parties had “a fling”, but on any view, the parties’ child, daughter W, was born on (omitted) 2007. 

10. It is clear from exhibits G1 and H1 to the trial affidavit of the respondent that in 2009, the applicant was charged with intentional property damage and was placed on a diversion.  It is also clear that the applicant was convicted in 2012 as a result of matters arising from an assault by the applicant on the respondent on 28 April 2012. 

The positions of the parties – the applicant

1. It is the applicant’s case that following the brief period of cohabitation in 2002, the respondent returned to Melbourne at his behest. He acted in this way because he was concerned that if the parties continued to live together for more than one year, he might be at risk of de facto property proceedings (presumably under Part 9 of the Property Law Act (VIC) 1958, as the relevant amendments to the Family Law Act were years away).

2. The applicant maintained that thereafter, and with the exception of late 2006 when W was conceived, there were no sexual relations between him and the respondent.  It is his case that while he occasionally spent time in the respondent’s home in Melbourne (there were a number of such homes from time to time) for one reason or another, he was never in a de facto relationship with the respondent thereafter.  

3. The applicant denied any violence committed against the respondent and, indeed, had much to say by way of criticism of the respondent as a mother in his affidavit material.  I do not propose to traverse the comprehensive mutual mud-slinging that the parties engaged in, save to comment as to their credit in due course. 

4. The applicant conceded that the respondent had travelled with him from time to time, as, indeed, had her children, but said that these were rewards for their participation in the (hobby omitted), (omitted), which was set up by him and the respondent in 2002. 

5. It was the applicant’s case that he had, in fact, resuscitated his relationship with his first wife, Ms S Clark, (the second respondent), in 2002, although it was also his case that he and Ms S Clark kept this secret from the community in (omitted), where they both lived. 

6. The applicant’s case was that following W’s birth, he agreed to conduct a mock wedding reception in order to ensure that persons within his and the respondent’s community would not attach the stigma of illegitimacy to W.  The applicant denied having exchanged rings with the respondent on the day of the mock wedding reception. 

7. The applicant denied that he had undergone a ceremony of marriage in (country omitted) in December 2008.  He said that a DVD purporting to show the ceremony was incomplete and had been deliberately and maliciously edited to ensure a false presentation.  He also said that his signature had been forged on a number of documents relating to the purported ceremony in (country omitted).  This latter assertion is correct.  Two expert witnesses whose affidavits to this effect were filed by the applicant were not required for cross-examination as the concession was made (implicitly, if not otherwise) that the forgeries were, indeed, such. 

8. The applicant admitted that he had divorced his first wife in 2008 but said this was essentially a response to the birth of W on the part of his first wife but that he had managed to continue relations with his first wife thereafter, at least until 2012. 

9. During his cross-examination, the applicant repeated an admission made in his affidavit filed 27 September 2012 that he had been trying to enter into a relationship with the respondent following W’s birth but had not done so.  He said that it was this, plus threats of not being allowed to see W, that caused him to give the respondent $400,000 in 2011. 

The respondent’s position

1. It was the respondent’s position that the applicant had indeed persuaded her to return to Melbourne in 2002.  She said she was not keen to do so but, if I paraphrase her evidence correctly she said that, effectively, she agreed to do so because she loved the applicant so much.  

2. The applicant said that a sexual relationship with the respondent continued unabated throughout all the years to 2012.  She said that the applicant would come invariably to spend from Friday to Monday with her (this expanded for a while to Thursday to Monday and then contracted again).  She said that the applicant continued to support her financially when she returned to Melbourne and provided her with a car from time to time (three such cars were said to be provided and it seems common cause that the third, a Mazda, is still in the respondent’s possession). 

3. It was the respondent’s case that the travels overseas were in no way a reward for the participation of herself and/or her daughters in the (hobby omitted) but that they travelled and held themselves out together, when they did travel, as man and wife. 

4. The respondent said that she had exchanged rings and vows with the applicant on the date of the mock wedding reception, although she conceded that she knew she was not married at that time. 

5. It was the respondent’s case that the parties did get married in (country omitted) and that the applicant had converted to (country omitted) to do so. 

6. It was the respondent’s case that the applicant had been violent to her throughout the relationship, but that she had put up with this because of his apologetic behaviour thereafter and because she loved him. 

7. The applicant did not concede that the $400,000 given to her in 2011 was given, as it were, as a response to duress over possible visiting rights to W.  She said that the applicant had told her that he had not done enough for her and W and that this was an appropriate adjustment. 

An analysis of some of the other materials before the Court

1. The original Initiating Application filed by the father on 31 May 2012 only concerned W and sought a week-about regime.  His Affidavit in Support filed on the same day relevantly said that the parties lived together for approximately six months but had not done so since “early 2002 and our de facto relationship ended on that date” (paragraph 11). 

2. At paragraph 12 the affidavit reads:

   “Since we separated our relationship has been conducted on the basis that on occasions I would stay with the Respondent on Saturday night.  I usually stayed with the Respondent once every 4 or 5 weeks.  Since the initial period of 6 months the Respondent has never again stayed with me in (omitted).”

3. The affidavit also referred to and annexed a copy of an Intervention Order made against the father on 3 June 2011.  The protected persons were the respondent mother, Z and W.  The order was due to expire on 3 June 2015, a period of four years from its inception. 

4. Two things may be said about this affidavit material.  First, on its face it makes it clear that some sort of relationship between the applicant and respondent was ongoing, even though it was asserted that the de facto relationship had ended in 2002.  Second, the applicant’s conduct as perceived by the Court giving rise to the Intervention Order must have been extreme.  Four years is a lengthy period for an Intervention Order. 

5. The affidavit also showed, as is undisputed, that the applicant paid the respondent $400,000 in March 2011.  The affidavit further deposed to an incident on 28 April 2012 when the relationship on any view came to a final conclusion. 

6. The next affidavit filed by the applicant father was on 23 August 2012.  Despite the earlier denial that the respondent had ever attended him in (omitted), paragraph 1(d) of the affidavit asserts that “Ms Clark came to Property C only once.  She accompanied her mother who was in (omitted) for a (omitted).”

7. At paragraph 5(a), the applicant asserted:

   “I did not visit or stay with her on Friday night, Saturday night or Sunday nights on a weekly basis as claimed by Ms Clark.  Occasionally I did stay with her on a Saturday night but not on a regular basis.  When I did stay we mostly slept in separate beds.”

8. I note the comprehensive mudslinging engaged in by the applicant set out at paragraph 14 of the affidavit. 

9. The respondent’s affidavit filed on 17 September 2012 correctly asserts that the applicant was charged with assault by the police as a result of the 28 April 2012 incident (as earlier indicated, he has been convicted). 

10. Once again, I note the comprehensive mudslinging by the respondent in paragraph 8(g). 

11. Exhibit SC1 annexed to the affidavit of the respondent consists of a number of photographs.  One of them is annotated as having been taken in (country omitted) in November 2008, just before the parties went to (country omitted) for the putative marriage ceremony.  The photograph shows the applicant kissing the respondent affectionately.  

12. Exhibit SC4 is a police record from March 2009 (exhibited more fully in the respondent’s trial affidavit).  From the latter material it is clear that the applicant father was charged with unlawful breaking of an object and placed on a diversion.  

13. In his affidavit filed 27 September 2012, the applicant asserts that the numerous overseas trips engaged in with the respondent were simply to compensate her and her children for their activities in his (hobby omitted).  I further note at paragraph 7(f) the applicant accuses the respondent and her daughters of inappropriate conduct.  The applicant also deposes at paragraph 9(f) a suspicion that Y had had an abortion, a distasteful assertion not later pressed. 

14. The respondent’s affidavit filed 4 October 2012 condescends to accusing the applicant of professional misconduct. 

15. The affidavit of the applicant’s first wife, Ms S Clark, filed 13 December 2012, relevantly asserts that she and the applicant stayed at each other’s homes on a regular basis and regularly shared meals.  It asserts that they usually spent two or three nights a week together and weekends usually on a Saturday evening or Sunday.  The affidavit asserts that following the return of the respondent to Melbourne, the applicant and Ms S Clark resumed their relationship in 2002 until final separation in February 2012. 

16. The trial affidavit of the respondent filed 4 December 2013 sets out at paragraph 40 various holidays that the parties spent together.  Annexure “I” shows photographs of the parties in (country omitted) in 2003, sometime after the relationship had ended according to the applicant.  They show the parties in affectionate stances which would indicate a relationship of something more than ordinary friendship. 

17. Annexure “J” is photographs taken of the parties in (country omitted) and (country omitted) in 2004.  One of the photographs shows the applicant naked at least from the waist up with what appears to be a drink beside him.  Another one shows the parties kissing.  Once again, these photographs are redolent of a relationship of something more than ordinary friendship.  Annexure “R” is asserted by the applicant to be a Valentine’s Day note (undated) which asserts, “Love you now and forever, my valentine and my wife”.  The authenticity of that assertion was not challenged by the applicant’s counsel in cross-examination.  Annexure “C1” is a wedding invitation from a Mr and Mrs V addressed to the applicant and respondent as Mr and Mrs Clark in 2010. 

18. To return to the text of the affidavit, at paragraph 72, the respondent deposes that the charges arising out of the incident on 28 April 2012 were listed before a Court on 4 November 2012 and that the respondent pleaded guilty to unlawful assault in breach of the 2011 Intervention Order and received a fine as penalty.  That assertion was not put in issue. 

19. Annexure “A” to the trial affidavit is a Financial Agreement between the applicant and his first wife Ms S Clark executed on 4 September 2007.  In Recital D it is expressly asserted that:

    “The parties separated in July 2001 and have lived separately and apart since that date.  Whilst no Divorce Order has been granted, the parties consider their marriage at an end and there is no prospect of a reconciliation.”

20. Both parties received independent legal advice in relation to the execution of this Agreement. 

21. Annexure “B” to the trial affidavit is the applicant’s Application for Divorce from Ms S Clark filed in the Federal Magistrates Court (as it was then known) on 4 December 2007.  That, of course, is a sworn document.  In paragraph 16 of that document the date of separation is given as July 2001.  Paragraph 17 confirms that that date was the date upon which the applicant regarded the marriage as over.  Paragraph 18 responds negatively to the enquiry, “Since you and your spouse separated, have you lived under the one roof but not as husband and wife?” and paragraph 19 likewise to the question, “At any time after you separated, have you and your spouse lived together as husband and wife?” 

22. Annexure “C” to the trial affidavit is a draft Financial Agreement prepared by Barbayannis Lawyers, who were then acting on behalf of the applicant in 2010.  In Recital paragraph 1(c) it is asserted:

    “The parties married in (country omitted) on (omitted) 2008 in a religious ceremony.”

    and in (d):

    “That although the parties did not marry until (omitted) 2008, the parties commenced a relationship on 31^st July 2001 but Mr Clark lives and works in (omitted) and Ms Clark lives and works in Melbourne.” 

23. Annexure “F1” is a Medicare card with the names of the applicant, the respondent and the respondent’s three daughters which was valid until 07/2008. 

24. Annexures “G1” and “H1” are documents relating to the 2009 incident to which I have already referred. 

25. The respondent’s three daughters have all sworn affidavits supportive of their mother, and, in particular, stressing the regularity of the applicant’s visits to their house. 

26. The applicant’s affidavit filed on 6 December 2013 deposes at paragraphs 19 and 20:

    “19.  Despite travelling together from time to time, we did not behave as a couple but were merely travel companions.  Even though posed photos together, we did not stay in the same room, nor did we have sex during such overseas trips.  On occasions when we could not obtain a separate room, I would sleep on the couch or on the floor.

    20.  Essentially, the overseas trips were formed as a consequence of duress.  I was made to feel that if I was to spend time with W on the terms of the Respondent, that I had to pay significant sums of monies, in addition to showering her and her daughters with gifts such as overseas holidays.”

1. It should be noted that the affidavit is also very strongly critical of the respondent’s capacities as a mother. 

2. On 6 December 2012, the applicant filed an affidavit of Mr N.  Mr N deposed to being a friend of the applicant’s, and that the applicant stayed with him in (omitted) on weekends once every two or three months.  He further deposed that in or about 2006, during a visit to see the applicant in (omitted), he met the first wife Ms S Clark.  He deposed, “She was very pleasant and she cooked for me that weekend”.  Most of the affidavit otherwise is hearsay. 

3. The final affidavit filed on behalf of the applicant is that of Mr L.  Mr L deposed to having spent a great deal of time with the applicant socially.  He said he met the respondent and the applicant once in 2001.  He deposed to visiting the applicant’s residence frequently until 2007, and that he met the ex-wife, Ms S Clark, about three times.  At paragraphs 6 and 7 of the affidavit, he said:

   “6.… I recall having dinner with the Applicant and Ms S Clark on two occasions.  Both times a meal was prepared by Ms S Clark who was a good cook.  After each dinner, I noticed that Ms S Clark was tidying and cleaning up the house.

   7.In or about 2010, one night, we went to Ms S Clark’s residence for dinner.  It was too late to drive back home so we spent the night there.  On this night, the Applicant and Ms S Clark slept together in the master bedroom.” 

4. He deposed to a further meeting with Ms S Clark at the property bought by the applicant in Property C, in 2007.  The rest of the affidavit is essentially hearsay. 

The Exhibits

1. Exhibit A5 is a photograph of the respondent with a large glass of red wine in her hand.  While it might be thought on one view to be equivocal, the impression I get looking at it is that the respondent is not posed in any formal way, and appears to be more probably then otherwise about to consume, or in the process of consuming, the wine. 

2. Exhibit R1 is W’s baby book.  Inter alia it shows that the applicant was present, if not at, shortly after the birth of W.  It shows the applicant bathing the very young baby.  One of the photographs shows the applicant with W, naked from the waist up.  Two photographs are placed in (omitted), according to a caption written by the respondent.  That assertion was not challenged in cross-examination. 

3. Exhibit R2 is a carefully framed photograph of the parties and W at a stage I would infer relatively shortly after her birth, and exhibit R3 is a series of cards printed following W’s birth showing the parties and/or W.  The preparation of these exhibits would have taken some organisation, time and money. 

4. Exhibit R6 is a photographic record of a holiday the parties and W spent in (country omitted) in late 2011/early 2012.  To my way of thinking, they show the parties as a family unit (giving no weight to the annotations which I presume were placed by the respondent).  I note that a photograph taken on 8 January 2012 shows both the parties drinking. 

5. I also saw a number of DVDs in the presence of the parties and their representatives. 

6. First shown to the Court was the elaborate charade at the (omitted) in January 2008.  If this was an attempt to convince the world that the parties were in a permanent relationship and married and that their daughter was not born out of wedlock it was certainly a very elaborate one.  The DVD is expertly taken and produced.  It shows the parties arriving to meet numerous guests and having what one would describe as normal happy reactions one would ordinarily see at a wedding feast.  The announcer says that W is not there because she is teething.  They are announced as Mr and Mrs Clark.  The respondent looks radiantly happy.  The parties sing a love song to one another in it.  At one point, the respondent says, “My soul mate is my husband now”, at a point where the applicant is beaming approvingly in the background.  At another stage, the applicant says, “Thank you for coming to celebrate our marriage.  I am going to spend the rest of my life with my soul mate”. 

7. The Court also saw a video taken in (country omitted), albeit that there is a dispute about whether it was a complete version.  This was much harder to construe.  At times, the applicant and respondent both seemed tense, and it appeared to me that the person who was identified as the respondent’s mother seemed, by and large, somewhat distressed.  At one stage, the applicant appears to agree with or repeat the words said by a third party to the effect, “I do agree to marry her”.  He also says, “I accept her”.  At another point, all in the video shot pray after the (religion omitted) fashion, including the respondent.  The applicant also appears to sign some sort of document.  A meal then follows, during which the applicant seemed to me to be somewhat less relaxed than some of the other parties.  Following some discussion and clarification, I accept that the applicant said inter alia, “I accept her as wife”. 

The psychosexual report of Dr K

1. Dr K has produced a psychosexual report dated 14 December 2012.  Given that the parties have arrived at consent orders in relation to children, that is not perhaps a matter of such significance now as it would have been otherwise.  Albeit that Dr K’s report was posited on an acceptance of the applicant’s version of events, it concluded that he was not a risk of sexual misconduct (putting the matter in the round).  What is relevant in Dr K’s report is what the applicant told Dr K. 

2. At paragraph 16, the following is recorded:

   “Mr Clark has had three major relationships, with his marriage to Ms S Clark between 1981 and 2008 with final separation finally in 2012, although there being an initial separation in 2001.  Mr Clark was first married at age 24, although this marriage was relatively short lived.  His relationship with Ms Clark between 2001 and 2006, although his account was that this was an intermittent relationship. …”

3. At paragraph 19, it is recorded:

   “Mr Clark’s account is that he was previously married to Ms S Clark between 1981 and 2008, nevertheless he separated in 2001.  At this point, he met Ms Clark and this relationship ended in 2006. …”

4. At paragraph 22, the report states:

   “Mr Clark’s account was that he was pushed into a marriage ceremony with Ms Clark and his view is that this was financially motivated. …”

5. I should note in passing that the two reports of Dr W which are annexed to her affidavit filed on 6 September 2013 do not contain any material suggesting that the applicant’s account to Dr W of his relationship with the respondent was different from what he has propounded in his affidavits. 

The credit of the witnesses

1. I have set out the above admittedly selective description of the materials filed in the case because they go to show a number of matters that are objectively established and a number of matters that go to their credit.  

2. The first thing to be said is that despite the distasteful way in which the parties threw every aspersion they possibly could think of against each other they ultimately agreed to a regime whereby the child lives predominantly with the mother and spends time with the father in what, on one view, is a relatively conventional set of orders.  Given that each had gone to quite some lengths to suggest that an outcome of this sort was utterly inappropriate, and condescended to distasteful assertions in part to do so, it is immediately apparent that they both must have exaggerated substantially.  While they deserve credit for being able, with the assistance of the Independent Children’s Lawyer, to produce a sensible resolution to the parenting issues in this case, the extravagance of their prior assertions speaks for itself.  These are both persons given to exaggeration and hyperbole. 

3. It is quite clear despite the applicant’s denials, that he has been subject to curial sanction on at least three occasions (2009, the Intervention Order in 2011, and the 2012 proceedings).  While the applicant seeks to explain these incidents away, in my opinion they go to suggest that the propensity of the applicant to lack of self control and violence is indeed made out. 

4. Further, the DVD of the parties mock wedding reception in 2008 sits, at best, exceptionally uneasily with the applicant’s assertion that the parties were not in a relationship and that W was merely conceived as a result of a fling in late 2006.  Whether, as the applicant says, several of his close relatives were aware that the purported wedding was a charade or not, the demeanour of the parties on this occasion is entirely that of a couple in a relationship.  The same has to be said of the DVD taken in 2011 to 2012.  The observations of the applicant to the effect that he would not be able to hold the camera because he was too excited are simply utterly incompatible with the proposition that he was not engaged in a sexual relationship with the respondent at that time. 

5. All the evidence I have cited above leads very strongly to the conclusion that the objective evidence supports the proposition that the parties remained in a relationship that was at least sexually intimate from 2002 to 2012.  The applicant’s assertion that the relationship came to a complete end for all effects and purposes in early 2002 is, amongst other things, utterly incompatible with the pregnancy that was required to be aborted in 2003. 

6. It is appropriate to say something also about the demeanour of the witnesses.  The applicant was not a good witness.  His answers were frequently non-responsive to questions put and were self-serving.  His assertion that the respondent was always promising that they would live together but it never happened was not in his affidavit material and had all the appearance of being an answer made up on the run.  His answers about the court proceedings following 28 April 2012 incident, during which the applicant purported not to remember the details in any significant way, was extremely unconvincing. 

7. By way of contrast, the respondent was in the main a careful witness who gave clear responsive answers to the questions put to her.  In my view, she was not significantly shaken in cross-examination, albeit that her assertion with those persons who were giving evidence favourable to the applicant were bribed is part of the tendency to gross exaggeration to which I have already referred. 

8. One area in which I found the respondent’s evidence unsatisfactory was in relation to the purported wedding in (country omitted).  While she has from time to time asserted that this was a legally binding effective marriage, in the witness box she was much less prepared to do so.  This is an important matter and one about which she ought to have had a clear recollection and view. 

9. Nonetheless, some aspects of the respondent’s evidence were given with evident conviction.  Her description of the routine whereby the applicant would come and visit her and the particular details she gave as to their lovemaking were given with a sincerity that I found compelling.  On her own account, and accepting that she is not as strict a (religion omitted) as she asserts (she clearly drinks more than she was prepared to admit), she is from a relatively conservative background and for her to give these sort of details would not have been easy. 

10. Each of the respondent’s three daughters were called.  They were all articulate, careful, sensible and, notwithstanding their years, mature witnesses.  It was quite obvious they were telling the truth. 

11. Mr N was not a good witness.  His answers were at times extremely evasive.  He was not even entirely sure of whether he was aware that the applicant had divorced Ms S Clark in 2008. 

12. Mr L was, in my view, a good witness, although it should be noted that he saw the applicant and Ms S Clark only a small number of times.  In cross-examination, he said he saw them together some three to four times between 2001 and 2012 with the last such time being in 2010 to 2011.  Whilst I accept Mr L’s evidence, it is immediately apparent that it does not go very far. 

Conclusions about the facts that are in dispute

1. It is clear that the applicant and the respondent met in about May 2001 and commenced an intimate relationship almost at once.  By the end of July 2001, the respondent had left her first husband and gone to live with her children in (omitted) with the applicant.  The precise configuration of which child came when does not matter for these purposes. 

2. It is clear beyond any doubt that the arrival on the scene of the respondent would have greatly discommoded Ms S Clark.  It is far more probable than otherwise that she did indeed separate with the applicant in 2001 as the divorce application attests. 

3. In 2002 (and it does not matter, it seems to me, whether it was in February or June), the respondent returned to Melbourne.  She did so at the insistence of the applicant and in part because it suited her own desire to promote the education of her children in Melbourne and the studies in which she subsequently enrolled. 

4. The applicant continued to maintain an intimate relationship with the respondent.  While it is immediately apparent that he cannot have spent every single weekend between 2002 and 2012 that he was not overseas with the respondent, I accept the general thrust of the evidence of the respondent and her children that the applicant was a routine attendee throughout.  I further accept – because it is conformable with commonsense and because I believe the respondent anyway – that from time to time she went to (omitted) when the applicant was on call. 

5. It is clear that the parties continued their work in the (hobby omitted) for some years, although it is not clear when the respondent’s participation and that of her daughters ceased. 

6. I do not accept for an instant that the applicant rewarded the respondent for that activity by the overseas trips.  The evidence is clear beyond doubt that the parties were in an intimate relationship and that these overseas trips were part of that. 

7. The respondent became pregnant yet again to the applicant in 2006, and this time the baby went to term.  Thereafter, the applicant has been a very loving and indeed, almost everybody seems to agree, somewhat an obsessive loving parent.  I fully accept that the parties intended to marry in 2008.  The applicant had taken active steps to divorce.  In fact, his divorce came through almost contemporaneously with the wedding ceremony at (omitted).  I accept the respondent’s version of the events of that day and that the parties exchanged vows and rings (I have not dealt with the jewellery that the applicant gave the respondent, but it all points to the same conclusions as all the other material). 

8. It is far more probable than otherwise that the applicant had continued some sort of relationship with Ms S Clark during the years 2002 to 2008.  The evidence of Mr L is to this effect, and the evidence of Mr N would support it, although, as I say, I give little weight to Mr N’s evidence because I found him an unsatisfactory witness and because he had very little to say in any event. 

9. What did ring true in the applicant’s evidence was that following the breakdown of his relationship with Ms S Clark in 2001 to 2002, he endeavoured to resuscitate it (no doubt for his own benefit) thereafter.  The measure of his success is not possible for me to say, but whatever it was, it must have come to an abrupt end when the news of the respondent’s pregnancy and the birth of the child got out.  That explains the divorce application readily, and it is more probable than otherwise that the applicant represented to the respondent that he would marry her.  He did not do so, it would appear, because of an oversight by his then solicitor. 

10. The parties later in 2008 went to (country omitted) and (country omitted).  I accept that there must have been some discussion of some sort of marriage ceremony because they were going to go to (country omitted) (although they did not ultimately do so) as a honeymoon.  I accept the respondent’s evidence that discussions to this effect were held.

11. It remains unclear to me what the legal effect of whatever took place in (country omitted) was.  At least some of the documents that were generated as a result of that episode are conceded to have been forged, and this is a fraudulent endeavour for which the respondent cannot escape criticism.  She adopted these forged documents as part of her case.  I am unable to accept any assertion that she bears no responsibility for them.  As I find, however, these reflect her desperation in this case, and while I have given that proper weight, I do not regard it as fatal to her credibility; both these parties plainly are capable of being untruthful.  

12. Things thus continued until the final separation in 2012.  It is clear that from time to time, the applicant was abusive and drunk and/or violent.  He was plainly contrite as some of the exhibited material shows, and I accept that at one and the same time, the respondent was outraged by the applicant’s behaviour but forgave him.  There were, after all, compelling financial reasons to do so, not least the $400,000 she was given.  A gift of this enormity is utterly inconsistent with a total lack of obligation.  I am not prepared to accept and do not accept that it was given solely, as it were, to respond to blackmail by the respondent to the effect that the applicant would not see the child if he did not do so. 

13. In summary, it is clear to me beyond doubt that the applicant and respondent remained in an intimate relationship, essentially as described by the respondent and her children, from 2002 until 2012. 

14. It is highly possible – although the evidence does not go far enough to say this with any certainty – that the applicant also managed to conduct some sort of relationship with Ms S Clark from time to time, although I note that even on his version of events, it came to an end in 2012. 

15. I have not dealt thus far with the affidavit of Ms S Clark.  She was not called to give evidence, and no explanation was given as to why this was the case.  This omission is in my opinion very important.  Her evidence has not been tested by cross-examination and I have not had the advantage of assessing her evidence accordingly.  It should be noted that in any event, Ms S Clark’s affidavit only asserts a relationship between her and the applicant between 2002 and February 2012.  It gives no details of the nature of that relationship and does not touch at all upon the matters asserted as to the relationship between the applicant and the respondent (scarcely surprisingly perhaps).  I note that on any view of the facts, Ms S Clark and the applicant did not reside together after 2001.  I find that the applicant’s assertion that he continued his relationship with Ms S Clark in secret unacceptable.  This is so if for no other reason than according to Mr N and Mr L, they were aware of it.  In the circumstances, the affidavit of Ms S Clark is of really virtually no weight whatever. 

The applicable law

1. The Full Court of the Family Court has recently considered the question of what makes a de facto relationship in the relatively recent case of Jonah v White [2012] FamCAFC 200, an appeal from a decision of Murphy J. The Full Court set out the definition of de facto relationship by reciting s.4AA of the Family Law Act 1975 as follows:

   “4AA 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 subs (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 subs (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.”

1. At [20], the Full Court referred to the decision of Murphy J and set out paragraph [58] of it as follows:

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

2. At [23], the Full Court set out a further extract from the decision of Murphy J of which I set out [66], which was:

   “The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union — the merger of two individual lives into life as a couple — that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship.”

3. The Full Court, in my view, accepted the propositions just set out.  The Full Court went on to say at [32] and following:

   “[32] It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

   [33] The court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.

   [34] Although s 4AA(1)(c) is expressed to be “subject to subs (5)”, in our view, that does not mean that it is subordinate to or dominated by it. To accord subs (5) such a meaning would give a prominence unwarranted by the context of the section and the subsections. We reject the appellant’s argument if it is intended to mean that the whole of s 4AA is subjugated to subs (5).

   [35] It is also unnecessary for the disposition of this appeal, other than to refer to subss (3) and (4), to decide whether, as asserted by the appellant, a finding of a de facto relationship could be made absent any of the indicia to which the section refers. Of course to be a “couple” it is necessary for there to be a mutual intention to have such a relationship.

   [36] The effect of subs (5) on the determination of whether parties have a relationship as a couple living together on a genuine domestic basis is to import into it the understanding that a person can (as the authority of Green v Green (1989) 17 NSWLR 343 demonstrates) maintain two simultaneous relationships. That one of the parties asserted to have been in a de facto relationship was, at the same time, in another relationship, whether de facto or married, is a matter to be taken into account when considering the circumstances of the relationship and the indicia in s 4AA(2). However, the fundamental question remains to be determined and now we turn to that.”

4. The sub-heading immediately below that last quotation is “Were the parties living together on a genuine domestic basis.” Clearly, that is the question the Court has to address in this instance. I turn to the indicia in s.4AA(2) of the Act.

The duration of the relationship

1. Contrary to the position adopted by the applicant, I find that the relationship subsisted from 2001 until 2012.  True it is that from 2002 to 2012, the parties did not live in the same primary residence.  Nonetheless, the applicant spent, subject no doubt to some exceptions of the sort indicated by Mr N and Mr L, between 2 and 3 nights, almost every week with the respondent. 

The nature and extent of their common residence

1. In a sense, I have already dealt with this.  The parties lived together for some 10 or so months (I have preferred the respondent’s evidence generally) and then spent approximately a third of their time together.  This was the case, albeit that it was predominantly at the respondent’s home, wherever that was, from time to time. 

Whether a sexual relationship exists

1. The two abortions (the latter in 2003, well after the applicant says the relationship ceased) and the video showing sexual excitement in (country omitted) show beyond any doubt that this was a sexual relationship.  In any event, I have already accepted the respondent’s evidence as to the nature of this sexual relationship.  Photographs of the applicant naked from the waist up only go to buttress such a conclusion, together with the fact that at least one of the videos shows the parties in a double bedroom, utterly inconsistent with the applicant’s denials. 

The degree of financial dependence or interdependence and any arrangements for financial support between them

1. The applicant continued to benefit the respondent financially when she moved to Melbourne.  He found her a rental property, although it is not clear if he paid any rent.  He gave the applicant the enormous sum of $400,000 in 2011.  This amount was, on any view, extremely significant.  I have made it clear, I trust, that I reject the applicant’s explanation for the payment. 

The ownership, use and acquisition of property

1. The parties have not owned property in common, but the applicant gave the respondent the money to buy out her home.  He also gave her a series of cars, one of which she still owns. 

The degree of mutual commitment to a shared life

1. There was clearly a degree of commitment to a shared life.  Everything the respondent did suggests that whatever the applicant thought, she regarded herself as being in a permanent relationship.  That state of mind is clearly not wholly wishful thinking.  She was radiantly happy at the ceremony at (omitted) in 2008; so was the applicant.  He referred to the applicant as his wife and clearly made a public commitment in that regard.  While the ceremony in (country omitted) is more opaque, the fact is that the photographs of the parties on their travels, and most particularly the last DVD taken as recently as 2011-2012, show beyond doubt a couple committed to one another. 

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

1. This is irrelevant. 

The care and support of children

1. There is no doubt that the applicant has cared for and supported the respondent’s three children who are not biologically his own.  The photographs show the parties together on social occasions and the like.  More particularly, however, the photographs exhibited show the parties together looking after W.  While the applicant would say that this was the only chance he had to see W and nothing more should be made of it, the photographs speak for themselves.  The parties were clearly involved as a family unit with W and indeed the respondent’s three other children also, at least to an extent. 

The reputation and public aspects of the relationship

1. The evidence here is so clear, it scarcely needs to be stated in any detail.  The parties underwent the elaborate reception at (omitted) in 2008.  As late as 2010, third parties were inviting them to a wedding as a married couple.  The respondent took the name Clark by no later than 2008 and a Medicare card in the names of all the parties was issued.  I have no doubt that the parties held themselves out as a couple. 

Conclusion

1. Taking all the materials in this case as a whole, the conclusion is obvious. The materials point overwhelmingly to a view that the parties were in a de facto relationship within the meaning of the Act between 2002 and 2012. While there are clearly some indicia that would point against this, such as the lack of permanent joint residence, the non-intermingling of bank accounts and other financial resources, and the fact of whatever relationship the applicant continued with Ms S Clark, these are all vastly outweighed by all the other numerous factors to which I have referred.

2. In the circumstances, I will declare that the parties were in a de facto relationship from July 2001 until April 2012.  I will need to hear from the parties further as to the future conduct of the matter. 

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  11 March 2014