Connell & Weaving
[2024] FedCFamC1F 140
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Connell & Weaving [2024] FedCFamC1F 140
File number(s): CRC 87 of 2022 Judgment of: BAUMANN J Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – DE FACTO – Whether the parties were in a genuine domestic relationship within the meaning of section 4AA of the Family Law Act 1975 – Existence of a de facto relationship contested by the Respondent – Where there was a short period of cohabitation – Where the Applicant asserts that he has made substantial contributions Legislation: Family Law Act 1975 (Cth) ss 44A, 90SB, 90SM, 90UB Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 19-21 February 2024 Place: City B Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person
Table of Corrections 25 March 2024 In paragraph 15 the reference to “1 January 2019” has been corrected to show “1 January 2020”. ORDERS
CRC 87 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CONNELL
Applicant
AND: MS WEAVING
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS:
1.That the Court declares that the parties were in a genuine domestic relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) for a period of less than two (2) years.
2.That the Initiating Application filed 15 March 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Connell & Weaving has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 March 2024
BAUMANN J:
The Applicant, Mr Connell (hereafter called “the Applicant”) and the Respondent, Ms Weaving (hereafter called “the Respondent”) are both in their fifties and met for the first time on a social occasion in mid-2019. What transpired after that initial meeting until what at least is accepted is a physical separation on 10 November 2021 (according to the Applicant’s version of facts), has been the focus of a discrete hearing. The issue to be determined is whether the parties were in a genuine domestic relationship within the meaning of Section 4AA of the Family Law Act (Cth) (“the Act”). Furthermore, it was an issue whether (as is required by s 90SB of the Act) the relationship was for a length of at least two years.
The third issue that the parties made submissions on and which has entertained the Court’s consideration is that if the relationship was not a genuine domestic relationship for a period exceeding two years, whether as prescribed by s 9SB(c) that a party to the de facto relationship has made substantial contributions of a kind mentioned in s 90SM(4)(a), (b) or (c) and that a failure to make an order or declaration would result in serious injustice to the Applicant.
THE PROCEEDINGS
Ultimately, the trial in this matter which took place in City B as a result of a transfer by Division 2 to Division 1 (apparently on the basis of complexity and an assertion that 37 witnesses were to be called), was conducted by the Applicant and Respondent as unrepresented parties. For Reasons already published when the matter came on for hearing on 19 February 2024, the Court was confronted with an application to adjourn the case, which was refused. Later, on the first day of the scheduled hearing, the lawyer appointed under s 102NA of the Act and funded by Legal Aid, sought leave and was given leave to withdraw for ethical reasons. Whilst it would not have been necessary for the reasons she explained to the Court, the unrepresented Respondent was unable to constrain herself and on many occasions during the hearing indicated how poorly she had been represented, and that a number of her witnesses who were able to give evidence and had signed some form of affidavit had not been called, or their affidavits not filed.
It is worth noting that as a result of the solicitor for the Respondent receiving instructions late, the trial affidavit of the Respondent was filed outside the time limits prescribed by Court Order, but I gave leave for her to rely upon it. On the second day of the hearing the solicitor on the record for the Applicant indicated that her retainer had been terminated – I think most likely because of non-payment of fees. After explaining to the Applicant the consequence of not having a lawyer present (the most obvious one being the inability because of s 102NA of the Act to cross-examine the Respondent) he confirmed he wished to proceed in the absence of a lawyer.
Accordingly, the trial proceeded, often with difficulties, disruptions and problems associated with the parties being unrepresented and emotionally engaged in this case, which has been running for over two years. The Respondent cross-examined the available witnesses of the Applicant and then on the third day both parties made submissions.
As the transcript will reveal, the parties, I am satisfied, did their best to assist the Court in making submissions about the issues that had to be determined, although both strayed into emotional issues. Earlier at the conclusion of the second day, the Court gave each party a copy of the legislation, in particular s 4AA, so that they could style their submissions.
In addition to oral submissions, the Respondent provided written submissions. The transcript will reveal that I engaged with each party upon the issues which were of most relevance. Before making findings, as are required, I made the observation to the solicitors when they did appear before me on the first day, that the quality of the material sadly was wanting. It was clear that the solicitors had been ensnared by their client’s desire to run cases bound up with high emotion, hurt, frustration and anger. Both trial affidavits (and in the Applicant’s case the affidavits of the supporting witnesses) were littered with hearsay, lay opinion, prejudicial allegations and simply irrelevant allegations. I indicated to the solicitors when they were present that I could see little point in this case of spending a day seeking to rule out parts of the affidavit that were clearly inadmissible – the rules of evidence apply in this property matter.
In the end, doing the best I could, I am satisfied both parties had an opportunity to present their case, although right until the end of her final submission the Respondent continued to try and introduce new evidence that she said was available, had not been put before the Court by her lawyer, and which she thought was relevant. I indicated to her she was not permitted to do so, particularly after the evidence had closed at the end of the second day.
WERE THE PARTIES IN A DE FACTO RELATIONSHIP AT ALL WITHIN THE MEANING OF SECTION 4AA OF THE FAMILY LAW ACT?
Apart from the parties’ evidence which was not tested and the evidence of the witnesses who I will mention next, and some subpoena documents, I am satisfied that the parties were in a genuine domestic relationship, although the period of time of that relationship, while certainly less than two years, is difficult to determine. I make these findings on the evidence:
(a)The parties met in mid-2019 and began dating. The evidence is that the Respondent was introduced to the Applicant’s mother and brother shortly thereafter. To the extent that a witness, Mr C, said he met the couple in early 2019 at a show, he is clearly mistaken. Sadly, as I will observe, nearly all of the witnesses relied upon by the Applicant were very poor and vague historians;
(b)I am satisfied that from the date of initial meeting, the parties continued to interact and most likely a sexual relationship had begun, but whether it was of the intensity described by the Applicant (four encounters of sexual relationship per week) is denied by the Respondent and a finding does not need to be made as to frequency;
(c)That on or about late 2019, the Applicant was required to leave his then accommodation. I do not need to inquire into the reasons of that, save that I am satisfied on all the evidence that the Applicant did not have a place to live and that the Respondent, as she suggests, and with a home that she owned and had owned for some time in City F, offered him the opportunity initially to live in her house;
(d)The Applicant’s furniture was generally and mostly held at the home of his mother. At the time she also held one of his cars. The evidence of his mother, Ms Weaving, is that the furniture was not collected until February 2020. In submissions, the Applicant says it was not necessary to obtain furniture earlier as the Respondent had a full house of furniture;
(e)I am satisfied that at least from 1 January 2020, the Applicant and Respondent represented themselves as a couple. This commenced with the first of four occasions sleeping overnight at the home of a long-term friend of the Applicant, Ms E. She gave evidence, which I accept, that the parties did stay at her home on New Year’s Eve 2019; for her birthday in 2020; for Easter 2020 and for her son’s birthday celebrations in 2020. Thereafter, although she maintained contact with both parties and I find particularly became a friend of the Respondent who helped Ms E with completing visa applications for Ms E’s now husband to enter Australia, she interacted with the parties, but not always as a couple and intermittently. It is clear from the evidence of Ms E that she feels aggrieved by the Respondent because she says she was, “blocked on Facebook”, by her.
In this case, the Applicant did not in any significant way engage with his family – his mother, Ms D, and brother, Mr G – during the relationship with the Respondent. Mr G, who had had an accident in mid-2019, had offered his older brother, the Applicant, accommodation over periods of time before 2019. I took his evidence to confirm that the Applicant’s living arrangements (whether by way of couch surfing as the Respondent suggests or otherwise) was never particularly secure. Mr G indicated in his evidence that he had had little to do with his brother and had not observed him with the Respondent during 2020 and thereafter (although he says he spoke to his brother from time to time). The Applicant did not spend much time at all with his mother. The mother clearly blames the Respondent for that situation saying in an offhand comment, “she alienated [Mr Connell] from his family”. It is also suggested that she made some serious allegations about the Respondent being a liar to Ms E.
There is evidence of photographs and confirmation by the parties about their interaction as a couple socially and including in what was, it seems, the Respondent’s particular interest in participating in social events. Although there is a conflict about the extent to which they participated as a couple and whether it was merely because the Respondent had appropriate attire for the Applicant matters little. I am satisfied whether it was at a concert referred to by the Applicant’s mother or other events, that there were occasions where these parties demonstrated a close relationship in the community.
There is some intermingling of their finances, although as I refer to later in these Reasons, the way in which that arose is contested and could not of course be tested by cross-examination. There is no evidence that the parties actually acquired any significant property together.
The evidence as to a mutual commitment to a shared life reveals that each party came into the relationship and its continuance with different perspectives. Whilst of course a party can be in more than one de facto relationship at the same time (see s 4AA(5)(b)), and the Respondent asserts that she was in a relationship with a man who she described as, “ […]” (who did not give evidence in this case) therefore the only evidence of some “commitment” relates to the assertion by the Applicant that he bought an engagement ring for the Respondent.
The fact that there was an item of jewellery purchased is not in dispute – what is in dispute is whether it was an engagement ring. There is no evidence of any formal announcement of the engagement or, for example, the Applicant’s mother being invited to any ceremony to celebrate such an important event in the life of her son.
From these findings and the evidence I have heard of the other witnesses, I am satisfied that at least by 1 January 2020, the parties had commenced to live together on a genuine domestic basis. However, as I will now describe, the real issue is when that relationship came to an end.
WHEN DID THE RELATIONSHIP TERMINATE?
Again, doing the best I can on the untested evidence, I am satisfied that the relationship began to sour during 2021. I accept there is a prospect that the Applicant saw the relationship differently than did the Respondent. I find, however, that three issues satisfy me that the relationship ended well before November 2021 – being the end of the two-year period. They are as follows:
(a)At least by June 2021 the conflict between the parties according to the Respondent was such that she says that on one occasion she was locked out of her house by the Applicant. She said she caused her son to come to the home to protect her. There is no evidence from her son (it being one of the affidavits allegedly available, but not filed). Nonetheless, the Respondent says, and I accept, that she had formed the view by at least June 2021 that the relationship was over, but that she was having difficulties in having the Applicant leave the property. She said she had asked him to leave and he refused. She gives evidence in her affidavit, which I accept, that she indicated that he should leave both orally and, she says (although denied by the Applicant), gave him some form of, “eviction notice”. She said she did not know what else she could do to try and convince him to leave the property;
(b)After the Respondent obtained an inheritance from the estate of her late mother, she used the modest benefit primarily to significantly reduce the mortgage on her home, but also, amongst other things, she purchased a motor vehicle. The evidence is that the Applicant, who is a tradesman, did not have a suitable working vehicle at the time, and that although purchased by the Respondent and always registered in her name, she allowed (I would say consistent with the sort of mutual support the relationship at the early stage was offering each other), the Applicant to use the motor vehicle. The vehicle had signwriting with details of the Applicant’s trade qualifications. As the relationship, in view of the Respondent had broken down, she indicated to the Respondent at least by 16 September 2021 that she wanted the car returned to her. She said he refused to do so and she did not know what she could do. Ultimately, after the Applicant finally left the Respondent’s home in November 2021, and with the agency of a person through a commercial recovery organisation, the vehicle was taken from the possession of the Applicant. There are sadly allegations that the person who did so used criminal threats and behaviour. I do not need to make a finding about that gentleman. The Respondent says that she was informed to engage a recovery specialist by her legal advisor at the time;
(c)The third issue that in my view identifies the relationship having come to an end before November was the decision of the Respondent to cause her lawyers to produce a binding financial agreement asserted to be under s 90UB of the Act. The document is annexure D to the affidavit of the Applicant. Although he says he never received it, it is attached to his affidavit. Nonetheless, annexure D reveals that by a letter dated 3 November 2021 from solicitors said to then be acting for the Respondent to solicitors then acting for the Applicant, a draft agreement was produced. The Applicant refused to sign the agreement. The intended agreement was clear. It was to protect the assets of the Respondent and the signing of the agreement was conditional upon the parties entering into a de facto relationship according to the Respondent (see recital C). On the Respondent’s instructions (I infer) recital K was included in these terms:
[Ms Weaving] and [Mr Connell] intend to commence living in a de facto relationship on an as yet undecided future date and this agreement is conditional upon the de facto relationship commencing and is intended to deal with the whole of the property and financial resources of the parties now and in the future in the event of the breakdown of their de facto relationship without resort to litigation
I can well understand why the Applicant essentially around the time of final physical separation refused to sign the agreement. I can well understand why the Respondent might have been advised to have an agreement signed, but its timing was a matter of some curiosity to the Court.
In submissions and not in evidence, the Respondent says she caused the agreement to be prepared (and I infer instructions must have been given some weeks earlier) because she thought it would encourage the Applicant to leave the home when all other attempts for him to do so had failed. She said she knew he would not sign the agreement and that this would be a “trigger” to him getting out of the house.
Considering the evidence of the parties and the findings I now make, I am satisfied that the de facto relationship which commenced by early 2020 had definitely ceased as a genuine domestic relationship at least by September 2021. As a result of these findings, the statutory requirement for a two-year genuine domestic relationship has not been satisfied noting, as I did during the course of the hearing, that the Respondent did not bear the onus, but that it was the Applicant who was required to satisfy the Court beyond a reasonable doubt that a relationship of a genuine domestic nature of more than two years had occurred. The Applicant has failed to discharge that evidentiary responsibility.
DID THE APPLICANT MAKE SUBSTANTIAL CONTRIBUTIONS AS REQUIRED BY SECTION 90SB?
At paragraph 64 of the trial affidavit, the Applicant, who I again acknowledge is a tradesman, gives details of what he says were the works he undertook to around the Respondent’s home. Many of them can be seen of minor significance for example, constructing a chicken coop and constructing vegetable gardens (which accept he did). To some degree, this was supported by the evidence of Mr C who was the bird enthusiast who engaged with the parties. The more substantial construction issues to the home of the Respondent related to constructions of a man cave and an area underneath the home and fencing. The Respondent gives evidence that a great deal of work was undertaken by contractors and produces invoices proximate in time. I would have expected that in a genuine domestic relationship incidental outside maintenance and similar tasks for which the Applicant was trained or at least experienced would have been undertaken by him. I do not regard the works and contributions in that regard as, “substantial”, within the meaning of the Act. I find that most of the work he said he did, he undertook, although the Respondent would say much of it was done without quality. Again, that is just a reflection of their ongoing toxic relationship.
The most significant factor in relation to contributions are the allegations made by the Applicant that at least from June 2020 as reflected by the bank statements at annexure F to his affidavit, he made financial contributions to a joint account exceeding or around $47,482.35. (see paragraph 43). To counter this allegation, the Respondent, particularly at paragraphs 60 to 61 of her trial affidavit, explains the creation of the bank account and its use. She also attaches bank statements to her trial affidavit. Unlike the statements attached by the Applicant, the Respondent’s bank statements (some of which relate to the account of the Applicant) contain notations as to what she says the transactions represent).
I explained to the Respondent of course that it is possible for any person doing internet banking to self-describe what the payment was for, or receipt was about, but that does not make it true. Nonetheless, I have caused an examination of the bank statements to be made from which I make these findings, having considered their contents, namely:
(a)the account details attached to the Applicant’s affidavit (annexure “F”) reveals a joint account with a bank without any “description” as the Respondent asserted for example, rent account commencing June 2020;
(b)the Respondent provides some bank statements as well and the joint account statements;
(c)there are some descriptions recorded for example, Mr Connell lodging; Rent lodgings Mr Connell; Pay Mr Connell borrowed all which she says she entered. The fact, at the time she entered such descriptions confirms her view of various payments but that does not make the description true;
(d)the Applicant says that he made regular payments, in cash, of $400 towards mortgage payments. This is disputed by the Respondent, who says the receipts by the Applicant were for rent and lodgings as well as many repayments of small loans or financial assistance made by her to the Applicant. For example, for the purchase of birds, dentist fees etc; and
(e)the Respondent asserts that the regular deductions from her bank “[…] Home Loan” demonstrate the regular loans she provided the Applicant at least between 1 April 2020 and 2 September 2021.
On balance, and in the absence of any cross-examination, my assessment of these confusing bank entries is that the intermingling was more by way of mutual support offered by the Respondent (a public servant with regular income) to the Applicant who, as a subcontracting tradesman, had less regular and consistent income. The fact that there are entries to the Respondent’s home loan account, by way of partial reimbursement of loans allegedly made, support the Respondent’s assertion.
The Respondent kept her income entirely separate. On the balance of probabilities, I find the joint account was for the purpose of keeping some records of the financial intermingling. There is no evidence offered to the Court as to how the fluctuating balance of the loans provided to the Applicant by the Respondent altered.
I agree with the submission of the Applicant that the transactions do reflect some intermingling and that at least he did make a number of payments into the account referred to in annexure F. However, as I have indicated, there is suggestion that some of those payments were in respect of loans and monies.
During this period where payments were being made (and I accept that the Applicant says that the nature of his relationship with the Respondent was not either that of landlord/tenant or as a lodger or boarder), the Applicant had for much of this time the use, it seems free of charge, of the Hilux purchased and owned by the Respondent. During this period, he was essentially in the home in some form of cohabitation.
Upon a reflection and consideration of all the evidence and notwithstanding that I am prepared to accept that when the Applicant assisted the Respondent either in works around her property or, as he says, in assisting her and family members moving chattels and the like, he did so genuinely, and I suspect on most occasions believing that he was in a long-term relationship with the Applicant.
Nonetheless, the Court is required to make a finding as to whether the Applicant who seeks an order ultimately for property alteration made a substantial contribution of the kind mentioned in s 90SM(4)(a), (b) and (c).
Considering all factors, I find that he did not make a substantial contribution.
WOULD A FAILURE TO MAKE AN ORDER RESULT IN SERIOUS INJUSTICE TO THE APPLICANT?
Strictly speaking, having made a finding that I am not satisfied the Applicant made a substantial contribution as required by s 90SB(c)(i), I do not need to consider s 90SB(c)(ii). However, for completeness and in case I am found to be wrong in respect of s 90SB(c)(i), I make these further findings.
The Act requires the Court to consider, if a substantial contribution had been made, that, “a failure to make the order or declaration would result in serious injustice to the Applicant”. This requires to some degree a consideration of what could be the likely result of any contested action, for property alteration orders. I am conscious of the fact that these parties have expended some tens of thousands of dollars in pursuing this litigation today already.
This litigation has taken a significant emotional toll upon both of them. The Respondent says that the stressors of litigation caused her to self-harm. The Applicant says post-separation he was admitted as an involuntary patient in a mental health ward (he alleges as a result of some actions by police who were encouraged to do so by the Respondent). As the parties presented to me, it is clear (both parties being in their fifties) that this has been a very stressful period whilst the litigation has been undertaken. I make those observations merely so as to identify for these parties whether an action for property division would have any substantial beneficial outcome. In my view, it is unlikely to have any beneficial outcome for the Applicant and most likely totally outweighed by the costs of further pursuing litigation (he already owes funds of over $10,000 to his last solicitors), because of:
(a)the fact that all the property of any substantial nature, being the Respondent’s home in City F and her superannuation, and the fact that an inheritance of approximately $160,000 during the course of the relationship was used substantially to reduce the mortgage (thereby increasing the equity), were contributions by the Respondent;
(b)there being no evidence that the Applicant made any significant financial contributions other than those already identified during the course of the relationship;
(c)as I have already identified, it is a relationship of less than two years duration;
(d)both parties are capable at their age of supporting themselves – the Applicant being a tradesman and the Respondent a public servant;
(e)there are no children of the relationship and the homemaker contributions are not significant as a result; and
(f)the pool of assets (all really brought into the relationship by the Respondent) would not exceed on current estimates $230,000.
In my view, and I find, that if I was satisfied that a substantial contribution had been made (which I have not), then a failure to make an order would not result in any serious injustice to the Applicant.
CONCLUSION
For the reasons given, the Application of the Applicant for relief filed and pursued with great vigour since 15 March 2022 must be dismissed.
Whilst the Application and Responses both sought orders for costs, and even though the parties represented themselves at the trial (and in the Respondent’s case for part of the preparation she had the benefit of a s 102NA appointed lawyer), I would ask the parties to seriously consider pursuing any order for costs which is only likely to further cause costs to be incurred and recovery, if a costs order was ever, will be problematic. That is of course a matter for the parties.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 8 March 2024
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