Cowell & Ross
[2022] FedCFamC2F 427
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cowell & Ross [2022] FedCFamC2F 427
File number: LNC 696 of 2020 Judgment of: JUDGE TURNBULL Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – JURISDICTION – PROPERTY – de facto relationship – relationship less than two years in duration – no children of the relationship – parties maintained separate residences – time spent together almost exclusively over weekends – no joint property or finances – no evidence of reputation or public aspects of the relationship
FAMILY LAW – EVIDENCE – relevance – formal irregularities
FAMILY LAW – PROCEDURE – adjournment application – applicant sought to file further material – where applicant self-represented – where applicant on notice of jurisdictional issue since initial trial directions
FAMILY LAW – PROCEDURE – res judicata – cause of action estoppel – contempt application summarily dismissed – where application re-filed three further times following summary dismissal
Legislation: Evidence Act 1995 (Cth) ss 140, 142
Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SL
Federal Circuit and Family Court of Australia Act 2021 (Cth) pt 6 div 4
Federal Circuit Court of Australia Act 2001 (Cth) s 42
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04(1)
Federal Circuit Court Rules 2001 (Cth) r 1.03(1)
Cases cited: Adesso & Peyton [2019] FCCA 343
AON Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Asprey & Delamarre [2013] FamCA 214
Britt & Britt [2017] FamCAFC 27
Clayton & Bant [2020] HCA 44
Crowley & Pappas [2013] FamCA 783
Halstron & Halstron [2021] FamCA 437
IMM v R [2016] HCA 14; 257 CLR 300
Jackson v Goldsmith (1950) 81 CLR 446
Johnson & Johnson (1997) FLC 92-764
Jonah & White [2011] FamCA 221
Locke & Norton [2014] FamCA 811Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589
Re F: Litigants in Person Guidelines [2001] FamCA 348
Spencer & Speight [2014] FamCA 436
Tomson & MacLaren [2021] FamCA 620
Michelle Fernando and Olivia Rundle, ‘The Family Court’s Approach to the “Circumstances” of a De Facto Relationship’ (2021) 34 Australian Journal of Family Law 181
Division: Division 2 Family Law Number of paragraphs: 234 Date of hearing: 24-26 August 2021, 9-10 November 2021 Place: Heard in Burnie, delivered in Gold Coast via Microsoft Teams Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr G Williams Solicitor for the Respondent: Glynn Williams Legal ORDERS
LNC 696 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COWELL
Applicant
AND: MS ROSS
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.With respect to the Amended Initiating Application filed 2 October 2020, and pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Act’), I declare that there was no de facto relationship between MR COWELL (‘the Applicant’) and MS ROSS (‘the Respondent’);
2.Further to paragraph 1 above, the Amended Initiating Application filed 2 October 2020 be dismissed for want of jurisdiction;
3.All extant applications, including any applications for contempt, be dismissed; and
4.All extant orders be discharged.
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 Cowell & Ross has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
Mr Cowell (‘the Applicant’) and Ms Ross (‘the Respondent’) met in early 2019. Their relationship, whatever its character, lasted 15 months — commencing in early 2019 and ending in mid-2020.[1]
[1] Mr Cowell, Affidavit ('Applicants - Submissions’), 24 August 2021, [175]; Ms Ross, Affidavit, 20 August 2021, [5], [15]. It is the Applicant’s position that the relationship commenced in April 2019 and lasted for 15 months, and the Respondent concedes a relationship of similar duration.
The parties agree that, during their relationship, they spent time together on weekends and occasionally during the week. The frequency, closeness and presentation of their relationship is disputed. Their disagreement in this respect creates the issue for determination in these Reasons — were the parties in a de facto relationship for some or all of that 15-month period?
That question is important. The Court’s jurisdiction to hear the Applicant’s ultimate property application depends upon it being answered in the affirmative.
For now, it is beneficial to briefly outline this matter’s procedural history.
The Applicant commenced property proceedings against the Respondent on 24 September 2020. He was unrepresented throughout the entirety of the proceedings.
The matter came before his Honour Judge McGuire, as he then was, on 9 November 2020. The matter was adjourned to 11 November 2020, at which time his Honour provided hearing directions with respect to the jurisdictional fact in issue.
The Applicant thereafter filed several interlocutory applications.[2] The effect and status of each application is set out at paragraph 33 of these Reasons for the purposes of clarity, and to ensure that no applications relevant to the jurisdictional question have been overlooked.
[2] Filed either as ‘Applications in a Case’ in the Federal Circuit Court of Australia before 1 September 2021 or ‘Applications in a Proceeding’ in the Federal Circuit and Family Court of Australia on or after 1 September 2021.
Upon first hearing the jurisdictional issue on 24 May 2021, his Honour Judge Dunkley made further filing and service directions. His Honour also summarily dismissed the Applicant’s contempt application, filed 14 December 2020, on the basis that it had no reasonable prospects of success. That application sought that Mr Williams and the Respondent be found in contempt by reason of their alleged non-compliance with the orders made on 11 November 2020.
The matter first came before me on 12 July 2021. At that time I listed the preliminary issue, relating to the jurisdictional question, for final hearing as a special fixture on 24 August 2021.
The final hearing commenced on 24 August 2021. The first day was consumed by evidentiary issues, resulting in some of the Applicant’s evidence being struck out. The bases upon which Mr Williams and the Applicant objected to one another’s documentation are discussed later in these Reasons, commencing at paragraph 44.
The matter continued to 25 and 26 August 2021, during which time the Respondent gave evidence under examination-in-chief and cross-examination. As of the afternoon of 26 August 2021 the Applicant’s cross-examination of the Respondent had not concluded. This being the case, the hearing was adjourned part-heard. The Respondent remained under cross-examination during the adjournment.
The final hearing recommenced on 9 November 2021. At this time the Applicant continued his cross-examination of the Respondent, gave his own evidence, and then commenced his submissions. The evidence concluded on 9 November 2021 and both parties’ final submissions were received that afternoon and on 10 November 2021.
The ultimate terms of order sought by the Applicant
The Applicant seeks the return of several items of property from the Respondent. His Amended Initiating Application filed 2 October 2020 seeks declaratory and financial orders, as well as orders in relation to ‘deception to gain a financial advantage’.[3] That is the application he sought to prosecute before this Court.
[3] Amended Application for Final Orders, 2 October 2020, pt A.
The contents of that document illuminate his desired outcome, although I note that the document does not comply with the formal requirements of an application. Under ‘final orders sought’, the Applicant wrote the following:
1.The Respondent – [Ms ROSS] ventured into her XXth “MENTAL BREAKDOWN” at 11:30pm Friday 19 June 2020 resulting from her daily-evening consumption of a 2-litre bottle of “Chancellors” bubbly white wine on her own !!
2.“SHE” vented her Spleen in a very, very abusive manner, appeared to be threatening physical violence and threw many of my belongings outside on to a verandah [sic], locked the door and blocked my access.
3.Numerous Items have since been retrieved under Police Supervision.
4.A List of Items that remain and exceed $4,000-00 in value will be supplied to the Court at the 1ST Appearance which the Applicant seeks on/or before Friday 1st August 2020.
5. ORDERS SOUGHT:
(a)that the Items be made available for the Applicants [sic] collection under Police Supervision
(b)[the text of (presumably) sub-paragraph (b) was written outside the margins of the form and is not visible beyond the top of the lettering and cannot be made out].
In essence, the Applicant seeks the return of items of property ‘under police supervision’. The full extract of his ‘final orders sought’ foreshadows two themes which were present throughout the litigation. The first is his incorrect use of Court forms, which complicated the trial beyond its substance. The second is his predilection for using Court documents to include irrelevant information or evidence. Such information or evidence was, at times, offensive to the Respondent.
As assured in paragraph 4 of his Amended Initiating Application, the Applicant provided a list of items at the commencement of the trial. That document was tendered as Exhibit A, and was also used by the Applicant as his financial statement (noting it does not comply with the Court’s approved form for the same). Its contents go beyond a list of items of which he seeks repossession, as foreshadowed by his Amended Initiating Application — it reads more like an invoice demanding payment for expenses incurred and labour purportedly undertaken by him.
Extracted below is the contents of Exhibit A. I have added, for convenience, numbers on the leftmost side so as to easily identify items to which these Reasons may refer. Where possible, I have also included the hand-written notes which appear on the document, although some are difficult to read. Any text below which appears in [italics and square brackets] is a hand-written note or amendment on the document as exhibited.
I T E M Description Costs
To Supplier
[MR COWELL]ITEM REQUIRED as . . . [Ms Ross]’s
Purchasing
COSTS[Mr Cowell]’s
Expenditure
CLAIMSPlus [Mr Cowell]’s
LABOUR to fit
+ MakeOvers
at NO CHARGE !![Refiled 24/09/2020] 1 +/- 10 44 Gallon Drums cut into 2-3 Garden Beds 100 Garden Vegetable PLANTER BOXES 0 100 200 2 Trailer Load of Soil for Garden Beds 70 Garden Vegetable PLANTER SOIL 0 70 120 3 90 year old Cacti Plants 300 Repairs to Rockery Garden 0 50 4 TREE PRUNER-CUTTER 250 Required to Prune Fruit Trees in 2019 0 250 200 5 EXTENSIVE TREE PRUNINGS – 20 hours LONNNNNNNG OVERDUE 450 6 4 – 5 – 6 X 10 litre DRUMS of Paint for 6 Internal Rooms 340 ALL WALLS + Ceilings Repaired and REPAINTED 0 340 550 7 +/- 12 Spray Cans of Paint 110 FRONT SCREEN DOOR REPAIR + MAKEOVER 0 110 50 8 INTERNAL Walls/ Ceilings REPAIRS and RE-PAINTING – 200 hours L A B O U R
______________
DONATED FOC2000 9 [*] ANTIQUE +/- 100 year old Crystal Chandaller [sic] 2000 ON LOAN to blend with [Ms Ross]’s NEW Dining Lights 0 2000 0 10 1 X Double-Bed Electric Blanket 120 the 1ST Electric Blanket ever fitted to that Bed 0 120 0 11 1 X KING Single-Bed Electric Blanket 45 To match the RHS fitted to that NEW Bed 0 45 0 12 WOOD HEATER REPAIRS and MAINTENANCE 150 VITAL REPAIRS to keep the HEATER functional 150 13 50 – 50 Contribution to Firewood Purchased in June 2019 150 Wood Heater Fuel 50% used 150 75 0 14 GOLDFISH POND MakeOver + FISH and Feature Costs 350 Repair and MakeOver 100 200 50 15 [*] 2 X Twin Fluorescent LIGHT Fittings for Garage/ Storage Room 400 Replace OLD and UNSERVICABLE Fittings 0 400 40 16 [*] 1 Large (600mm X 400mm) OVAL Mirror 600 ON LOAN 0 600 0 17 Raspberry Canes 50 Garden Supplies 0 50 0 T O T A L S $5,035.00 $250.00 $4,560.00 $3,660.00 CLAIMS AGAINST [MS ROSS] for ITEMS THAT CAN BE COLLECTED - CREDITTED …. OR in default Payment needs AND OUGHT to be made !!
Plus [MR COWELL]’S LABOUR to fit and undertake MAKEOVERS _______ $3,660-00 being donated to the Cause !!!
I T E M Description Costs
To Supplier
[MR COWELL]ITEM REQUIRED as . . . [Ms Ross]’s
Purchasing
COSTS
NOW THROWN AWAY[Mr Cowell]’s
Expenditure
CLAIMSPlus [Mr Cowell]’s
LABOUR to fit
+ MakeOvers
at NO CHARGE !!
[REPLACE / REPAIR & REMOVE]18 SURPLUS FROZEN FOOD ITEMS thrown away following Installation of a NEW REFRIGERATOR-FREEZER UNIT 0 GIFT to the Claimant by the RESPONDENT 50 20 20 19 1998 [Motor Vehicle 1] purchased @ +/- $8,000-00 circa 2016 by the Respondent 400
[$1,040.00]GIFT by the Respondent to the Late [Mr B] 8000 20 400
[$1,040.00]T O T A L S $400.00
[$1,040.00]$8,050.00 $40.00 $420.00
[$1,060.00]NO CLAIMS AGAINST the RESPONDENT for ITEMS GIFTED __ SAVE a Pending Vehicle RE-CALL CLAIM of $2,800-00 Value that will be[may be] REFUNDED to the RESPONDENT in Part or in FULL !!
At the outset of the trial, the items of which the Applicant sought the return was unclear. By the trial’s conclusion, and particularly under cross-examination and re-examination, he seemingly conceded that he only claims certain items as distilled from the list in Exhibit A. Those items appeared to include:
·an extension ladder (5 metres);
·a purportedly 100 year-old chandelier, given to him by his mother (Exhibit A, item 9);
·a jack hammer;
·ten goldfish (Exhibit A, item 14);
·a pair of reading glasses, left on a bedside table;
·a long-handled rake;
·a tree pruner with two-metre handles (Exhibit A, item 4);
·two fluorescent light fittings, kept in storage in the Respondent’s garage (Exhibit A, item 14);
·an oval-shaped mirror (Exhibit A, item 16); and
·some plants established in the Respondent’s garden, including a purportedly 90 year-old cacti plant (Exhibit A, items 2, 3 and possibly 17).[4]
[4] Not all items listed by the Applicant at the trial were accounted for in Exhibit A, and the distilled list of items remains somewhat unclear. The Applicant said during his evidence (as set out at paragraph 117 onwards of these Reasons) a number of things; he recovered some ‘tools’, but did not particularise in great detail the exact tools he recovered; he recovered a ‘rake’ (leaving uncertain whether the ‘long-handled rake’ in the distilled list is still pursued by him for recovery); he apparently seeks to recover the oval-shaped mirror, but did not mention it further after the Respondent said that he may be mistaken as to which mirror is installed in her home; he said that he recovered ‘some plants’, leaving it unclear the particular items which may remain at the Respondent’s property.
In effect, the Applicant seeks a declaration from this Court as to his total ownership, and subsequent rights of possession, over those items of property. This Court may make such a declaration and orders to effect the same under s 90SL of the Family Law Act 1975 (Cth) (‘the Act’), extracted in full as follows:
90SL Declaration of interests in property
(1) In proceedings between the parties to a de facto relationship:
(a) after the breakdown of the de facto relationship; and
(b) with respect to existing title or rights in respect of property;
the court may declare the title or rights, if any, that a party has in respect of the property.
Note 1: The geographical requirement in section 90SK must be satisfied.
Note 2: The court must be satisfied of at least one of the matters in section 90SB.
(2) If a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
These Reasons will not consider all of the preconditions to a declaration under s 90SL. Further, these Reasons will not assess the merit of the Applicant’s claims over, or entitlements to, items of property purportedly subject to these proceedings. Instead, I must determine the jurisdictional question of fact upon which the Applicant’s recourse to s 90SL primarily relies — were the Applicant and the Respondent in a de facto relationship?
The jurisdictional hurdle
To effect his terms of order sought with respect to property, the Applicant seeks a declaration that he and the Respondent were in a de facto relationship. In so contending, the Applicant bears an affirmative onus of proof. His Honour McGuire J in Tomson & MacLaren [2021] FamCA 620 on this point remarked upon the absurdity of the opposite being true:
39.The Applicant, asserting a fact, namely the existence of a de facto relationship, carries an onus of establishing that there was a de facto relationship and to do so according to the requisite standard of proof being on the balance of probabilities. It is not for the Respondent, and arguably logically impossible, to carry an onus to prove a negative being that the relationship did not exist.[5]
[5] Tomson & MacLaren [2021] FamCA 620, [39], citing Wellard & Mason [2021] FamCAFC 115, [30]. The standard of proof is contained in the Evidence Act 1995 (Cth) s 140.
The Respondent, naturally, seeks a declaration that a de facto relationship never existed between herself and the Applicant.
This Court may declare the existence or otherwise of a de facto relationship under s 90RD of the Act, extracted as follows:
90RD Declarations about existence of de facto relationships
(1) If:
(a) an Application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the Application, that a de facto relationship existed between the Applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA of the Act defines ‘de facto relationship’ and provides a non-exhaustive list of indicators:
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 subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
These Reasons are confined to the substantive jurisdictional question — the existence or non-existence of a de facto relationship. Despite the limited question for determination (and my best efforts to conduct the trial accordingly), evidence of tangential relevance gave rise to unanticipated complexities in answering this question. This is also not to say that the jurisdictional question is the only obstacle the Applicant faces in his ultimate quest for a declaration as to his proprietary rights. While the Applicant would likely satisfy the geographical requirement in s 90SK, much of his evidence and material seemingly attempted to cover the issue of contributions. I note the requirement in s 90SB(c) as a precondition to s 90SL,[6] although it is not for these Reasons to explore the merit of the Applicant’s arguments beyond the jurisdictional issue.
[6] Mr Cowell, Affidavit ('Applicants - Submissions’), 24 August 2021 (n 1), [585]; Ms Ross, Affidavit, 20 August 2021 (n 1), [5]-[8]. The Applicant estimates the relationship as being approximately 15 months in duration. The Respondent estimates 19 months as an absolute maximum, and substantially agrees with the 15-month estimate. Plainly, the parties agree that the relationship, if de facto, was not of two years’ duration or more. Further, there are no children of their relationship, and the Applicant did not produce evidence that the relationship was registered. That being the case, the Applicant would in his ultimate application have to establish under s 90SB(c) that he made substantial contributions of a kind mentioned in s 90SM(4)(a), (b), or (c) and that a failure to declare the relationship as de facto would result in serious injustice to him. The Applicant bears no such burden with respect to s 90RD, though by virtue of s 90RD(2)(c) I may make findings with respect to contributions if I declare a de facto relationship to have existed.
In determining whether or not a de facto relationship existed, I am to have regard to the definition in s 4AA(1) as informed by s 4AA as a whole. That definition is broad, and accommodates relationships of various character. The Court provided the Applicant and Mr Williams with a printed copy of s 4AA at the outset of the trial, and again upon the trial recommencing on 9 November 2021. This was done to help both sides, and in particular the Applicant, present relevant questions and submissions with respect to whether a de facto relationship existed.
If I am ultimately satisfied that the parties were in a de facto relationship, this will enliven the Court’s jurisdiction for the purposes of the primary proceedings under s 90SL. If I find that there was never a de facto relationship, that finding prevents this Court from hearing and determining an application under s 90SL.
The causes of action — a summary
The Initiating Application filed 24 September 2020 (as amended on 2 October 2020) is the cause of action against which this Court must determine the question of jurisdiction. As I indicated earlier — having done so in unequivocal terms — this jurisdictional fact in issue is the only dispute upon which these Reasons will make a determination.
That being said, I consider it necessary to set out the several interlocutory causes of action filed by the Applicant in these proceedings. The court file shows upwards of ten interlocutory applications. In some instances, the Applicant was well within his rights as a litigant to file the application. As a whole, however, the interlocutory causes of action make for a confusing procedural history.
There are a number of filing errors in the Applicant’s documentation. The same is true with respect to the form of his applications. His documents relied upon revealed that, in some instances, he filed submissions or affidavit-like material in the place of an Application in a Case or Application in a Proceeding.[7] He at times repeated previous documentation or filed blank applications. Perplexingly, he also re-filed the exact same contempt application on three occasions following its dismissal by his Honour Judge Dunkley. These Reasons (commencing at paragraph 226) specifically address the Applicant’s repeated contempt applications.
[7] See the documents relied upon, commencing at paragraph 34 of these Reasons.
Some applications seemingly have no bearing upon these proceedings, but have nevertheless been filed therein. I note in particular the applications filed on 8 November 2021 at 13:59 and 15:08. Those applications were at no point listed before me, nor do they appear to refer to any proceedings in this Court. Instead, they refer to proceedings in the Federal Court of Australia purportedly on foot in 2019. I am unsure as to the status of these proceedings, if they exist at all.
All applications and associated documentation filed after the final hearing commenced were not permitted to be relied upon when the hearing recommenced on 9 November 2021.
I have created a timeline of all of the causes of action in this matter, together with the most recent documents under each cause of action and details and status of each application. Again, this is not an exercise in determining all of the applications currently on the court file. It is instead an exercise in clarifying the nature of each application, and differentiating the myriad other causes of action from the application against which I must determine the jurisdictional issue before this Court.
Date
Type Document Description 24.09.2020 Initiating Application 02.10.2020 Application for final orders, filed in the form of a Response on 24 September 2020.
Amended Initiating Application filed 2 October 2020.20.11.2020 Application in a Case 20.11.2020 Application for interim orders of a procedural nature; seeking orders that the Respondent make, file and serve a Response, and for the listing of the matter for trial in December 2020. 14.12.2020 Application in a Case 14.12.2020 Application for the Respondent and Mr Williams to be held in contempt of court.
Summarily dismissed by his Honour Judge Dunkley on 24 May 2021, on the basis of there being no reasonable prospects of success.07.06.2021 Application in a Case 05.07.2021, 14:13 Repeats the exact contents of the Amended Initiating Application filed 2 October 2020.
Amended Case Application filed 5 July 2021, repeats the exact contents of the Contempt Application filed 14 December 2020 and dismissed by his Honour Judge Dunkley on 24 May 2021.07.07.2021 Application in a Case 07.07.2021 Filing error, no contents. 08.07.2021 Application in a Case 23.08.2021 Amended Application in a Case filed 23 August 2021, titled ‘Applicants – Submissions (part completed)’. 24.08.2021 Application in a Case 24.08.2021 Titled ‘Applicants – Submissions’, and relied upon at trial as part of the Applicant’s evidence. 11.10.2021 Application in a Proceeding 11.10.2021 Repeats the exact contents of the Contempt Application filed 14 December 2020 and dismissed by his Honour Judge Dunkley on 24 May 2021. 20.10.2021 Application in a Proceeding 20.10.2021 Repeats the exact contents of the Contempt Application filed 14 December 2020 and dismissed by his Honour Judge Dunkley on 24 May 2021. 29.10.2021 Application in a Proceeding 29.10.2021 Repeats the exact contents of the document titled ‘Applicants – Submissions’ filed 24 August 2021.
That document, as filed on 24 August 2021, was subject to evidentiary objections and exclusions on 24 August 2021.08.11.2021 Application in a Proceeding 08.11.2021, 13:59 Collection of correspondence between the Applicant and Mr D with respect to proceedings between the Respondent and her former husband. 08.11.2021 Application in a Proceeding 08.11.2021, 15:08 Federal Court form CP1, ‘General Form: Indictable Criminal Proceedings’, seemingly also filed in 2019 in the course of the proceedings between the Respondent and her former husband, seeking orders that the financial settlement was fraudulent and for compensatory damages against multiple respondents. 08.11.2021 Application in a Proceeding 08.11.2021, 16:36 Consists of a single page containing the words ‘previously e-lodged, 8/11/2021’. DOCUMENTS RELIED UPON
The Applicant initially sought to rely upon the following documents:
·Amended Initiating Application filed 2 October 2020;
·Affidavit of Mr Cowell filed 14 December 2020;
·Affidavit of Mr Cowell filed 7 June 2021;
·Application in a Case filed 7 June 2021;
·Amended Case Application filed 5 July 2021;
·Application in a Case filed 8 July 2021;
·Affidavit of Mr Cowell filed 8 July 2021; and
·Application in a Case (titled ‘APPLICANTS - S U B M I S S I O N S’) filed 24 August 2021.
Following the evidentiary arguments and rulings of 24 August 2021, I deemed the Applicant’s affidavit evidence to be contained in the affidavit filed 14 December 2020 and the Application in a Case (titled ‘APPLICANTS - S U B M I S S I O N S’) filed 24 August 2021. Mr Williams agreed that, notwithstanding formal irregularities, the interlocutory application document filed 24 August 2021 was in effect part of the Applicant’s evidence. With the agreement of the Applicant and Mr Williams, those two documents were compiled and tendered as Exhibit A2.
Accounting for the evidentiary rulings, and including tendered material throughout the trial, the documents upon which the Applicant relied are:
·Amended Initiating Application filed 2 October 2020;
·Exhibit A — the list of items which the Applicant seeks to recover from the Respondent (extracted in full at paragraph 17 of these Reasons);
·Exhibit A2 — the Applicant’s affidavit filed 14 December 2020 and Application in a Case filed 24 August 2021, compiled (including evidentiary exclusions) into one document for convenience, and relied upon as the Applicant’s affidavit evidence; and
·Exhibit A3 — a letter from the Applicant and addressed to the Duty Sergeant of Tasmania Police City C dated 1 December 2019 (extracted in full at paragraph 125 of these Reasons).
The Respondent relied upon the following documents:
·Response filed 20 August 2021;
·Affidavit of Ms Ross filed 20 August 2021; and
·Financial Statement of Ms Ross filed 20 August 2021.
PRELIMINARY MATTERS
The first preliminary point concerns the guidelines with respect to self-represented litigants, and the steps taken by this Court during the trial to meet those guidelines. Secondly, I will briefly discuss the evidentiary arguments and determinations from 24 August 2021. Thirdly, I will address the Applicant’s application for an adjournment on 25 August 2021 and my reasons, in longer form, for not allowing the adjournment at that time.
Re F: Litigants in Person Guidelines
The Full Court of the Family Court in Re F: Litigants in Person Guidelines [2001] FamCA 348 (‘Re F’) reviewed and revised judicial guidelines for conducting proceedings involving self-represented litigants. Their Honours’ guidelines are as follows
10.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
11.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
12.A judge should explain to the litigant in person any procedures relevant to the litigation;
13.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
14.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
15.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
16.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
17.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
18.Where the interests of justice and the circumstances of the case require it, a judge may:
•draw attention to the law applied by the Court in determining issues before it;
•question witnesses;
•identify applications or submissions which ought to be put to the Court;
•suggest procedural steps that may be taken by a party;
•clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.[8]
[8] Re F: Litigants in Person Guidelines [2001] FamCA 348, [253].
It was noted at the commencement of the trial that there were a number of errors in the Applicant’s documentation. As explained above, he had not filed a financial statement and Exhibit A (his purported financial statement) did not comply with the Court’s approved form.
Following the guidelines in Re F, I took care to ensure that the Applicant understood the process and procedure that would be adopted in his case. I provided him with a copy of the documentation that he filed which I would allow to be read into evidence. Further, I provided him with a copy of s 4AA and attempted to focus and guide his questioning on multiple occasions so as to remain relevant to the jurisdictional issue.
The Applicant was given time to put his case to the Court, and was allowed significant latitude during his cross-examination of the Respondent. Further, I reminded him about trial procedure throughout the course of the final hearing — namely, flagging that he may wish to take notes for the purpose of re-examination.
I am satisfied that the Applicant was afforded full procedural fairness and that, in doing so, appropriate measures were taken to ensure that the Court remained impartial.
Evidentiary objections and exclusions — 24 August 2021
Mr Williams, Counsel for the Respondent, raised several evidentiary objections on the basis of relevance.
The Evidence Act 1995 (Cth) sets out that relevance is the first hurdle to be cleared by a piece of evidence on its pathway to admissibility:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
In determining whether a piece of evidence is relevant, the facts necessary for making such a determination are to be proved on the balance of probabilities.[9] A Court must take into account the importance of the evidence in the proceedings and the gravity of the matters alleged in relation to the question.[10]
[9] Evidence Act 1995 (Cth), s 142(1).
[10] Ibid s 142(2).
The hearing commenced with Mr Williams arguing for certain parts of the Applicant’s documentation to be struck out on the basis of irrelevance to the jurisdictional question. The arguments proceeded for approximately two hours. With respect to a number of the evidentiary issues raised, I ruled that the material was indeed irrelevant to the question at hand. Any material subject to objection which I deemed to be irrelevant was struck out.
During the evidentiary arguments, I raised with Mr Williams the approach adopted by the Full Court in Britt & Britt [2017] FamCAFC 27 (‘Britt’).[11] In Britt, the Full Court addressed whether evidence with respect to family violence should have been admitted:
33.Therefore, in determining the admissibility of the proposed evidence set out above, the primary judge was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous. If the evidence could do so – that is, if it was not “inherently incredible, fanciful or preposterous” – it should have been admitted.
34.In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. That is particularly so where the Court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
35.Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.
[11] Britt & Britt [2017] FamCAFC 27, [33]-[35] (May, Aldridge and Cronin JJ).
In approaching relevance with respect to the ability of evidence to rationally affect the assessment of a fact in issue, their Honours also refer to IMM v R [2016] HCA 14; 257 CLR 300:
[t]he assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.[12]
[12] IMM v R (2016) 257 CLR 300, 313 (French CJ, Kiefel, Bell and Keane JJ).
In essence, the very first inquiry into the relevance of a piece of evidence does not interrogate in great detail the probative value of that evidence. Evidence that is ‘of only some, even slight, probative value will be prima facie admissible’, unless that evidence is ‘so inherently incredible, fanciful or preposterous’ that its ‘effect on the probability of the existence of a fact in issue would be nil’.[13]
[13] Ibid 312.
As stated above in paragraph 35, the evidence upon which the Applicant could permissibly rely was compiled by my Associate into a single document. That document was tendered as Exhibit A2, and the two documents therein were sworn by the Applicant during evidence-in-chief. Mr Williams agreed that Exhibit A2 represented the Applicant’s affidavit evidence, despite formal irregularities in the composite documents. The Applicant’s non-compliance with the Court’s approved forms complicated the proceedings, with affidavit material being filed in the form of applications and vice versa. In this respect I note the Application in a Case — titled ‘APPLICANTS - S U B M I S S I O N S’ — filed 24 August 2021, as one of the two documents included in Exhibit A2. This document contained most of the material upon which the Applicant was permitted to rely, including photographs, extracts from correspondence, and his own assertions in response to documents filed on behalf of the Respondent and provisions of the Act.
That document also reflects the ultimate terms of order sought as set out in the Amended Initiating Application filed 2 October 2020, although in slightly different words. Extracted below, verbatim, are the terms of order sought as set out in Exhibit A2:
RETURN OF PROPERTY ITEMS SEIZED AND RETAINED 12 months ago at [E Street, Suburb F]
Exhibit A2 does not contain terms of order sought with respect to the jurisdictional issue, though it is incidental to his primary application that he seeks a declaration under s 90RD of the Act that a de facto relationship existed between himself and the Respondent.
The Applicant’s adjournment application — 25 August 2021
The second day of the trial commenced on 25 August 2021 at approximately 11:30am and, upon recommencement, the Applicant applied for an adjournment. He requested that the proceedings be adjourned to allow him further time to file affidavits from third parties who may be able to support his case. The argument in relation to the adjournment application took approximately 45 minutes.
I declined the Applicant’s adjournment application and did not grant leave for him to file further affidavit material. My primary reason for doing so was that several orders had already been made as to the filing of documentation for the purpose of the hearing. This includes, in particular, orders made in November 2020 and May and July 2021. In my view, the Applicant had ample opportunity to file all documentation upon which he intended to rely — including affidavits of any witnesses in support of the existence of a de facto relationship between the parties.
Further, he was put on notice in November 2020 that the jurisdictional issue required a determination before his ultimate application could be considered. The Applicant’s evidence filed 24 August 2021 demonstrates his knowledge of s 4AA(2)(i) with respect to the public aspects of the relationship, stating that:
( YES … several of the Respondent’s few friends and acquaintances were introduced to the Applicant )[14]
[14] Mr Cowell, Affidavit ('Applicants - Submissions’), 24 August 2021 (n 1), [225].
The Applicant also did not tender any other evidence, in the absence of affidavits or witnesses, with respect to the public aspects of their relationship.
The power to grant or refuse an adjournment application is within my discretion as a trial judge. In this matter, I exercised that discretion by reference to AON Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 (‘AON’) and the Court’s case management principles.
Of course, the discretion as to adjournment applications also must take into account unexpected or unavoidable inconveniences or delays. There may be ‘sufficiently compelling reasons’ to grant an adjournment if an applicant ‘offer[s] a reasonable or convincing excuse for … not being ready to proceed’.[15] The Applicant did not offer any excuse for having not filed the affidavits prior to the commencement of the trial. In the circumstances, I considered that an adjournment would unreasonably delay the proceedings. Further, it would prejudice the Respondent if the Applicant filed affidavit material to which she did not have an opportunity to respond.[16]
[15] Forster & Forster [2014] FamCAFC 88, [82].
[16] Ibid [80]-[89], at which the Full Court discussed the primary judge’s miscarriage in refusing the adjournment application in circumstances where, notwithstanding the burden that continuing a long-standing case would place on court resources, the appellant was not to blame for the significant delays in the matter’s progression (including the appointment of a litigation guardian) and, as such, the adjournment application should have been allowed.
At the time of my ruling to dismiss the adjournment application, this Court still existed in the form of the Federal Circuit Court of Australia. As such, I was at that time obliged to:
proceed without undue formality and … endeavour to ensure that proceedings are not protracted.[17]
[17] Federal Circuit Court of Australia Act 1999 (Cth), s 42.
To achieve the procedural objectives of the Federal Circuit Court, the Rules of Court set out objects of:
[assisting] the just, efficient and economical resolution of proceedings.[18]
[18] Federal Circuit Court Rules 2001 (Cth), r 1.03(1).
This Court, now Division 2 of the Federal Circuit and Family Court of Australia, remains bound by this foundational principle of case management.[19] This is not to say that I am applying the new Court’s rules with retrospective effect — the content of the legislation and the rules demonstrate continuity in each court’s prioritisation of efficient case management. At the time of the hearing, and now, this Court remains bound by the case management principles stated by the High Court of Australia in AON. I referred to that decision in dismissing the application, having mind to (but not extracting at the time) their Honours’ remarks in AON (citations omitted, emphasis added):
113.A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
114.In the past it has been left largely to the parties to prepare for trial and to seek the Court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the Courts arises from tradition and from principle and policy. It is recognised by the Courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.[20]
[19] Federal Circuit and Family Court of Australia Act 2021 (Cth), pt 6, div 4; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 1.04(1).
[20] AON Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175, [113]-[114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The capacity of a costs order to compensate the Respondent is not, however, the sole consideration. In light of the extract above, for that to be the case would be absurd. French CJ confirms that:
5.In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs …[21]
[21] Ibid [5].
Further, in relation to the interests of litigants as against the interests of the public as a whole his Honour remarked as follows:
23. …
[T]he adversarial system has been qualified by changing practices in the Courts directed to the reduction of costs and delay and the realisation that the Courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
24. …
Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials …[22]
[22] Ibid [23]-[24].
I referred to AON at the hearing and, while I did not extract the above paragraphs for the parties, I grounded my decision heavily in the principle of law for which AON stands.
The Applicant expressed several times that he just wanted his items of property to be returned to him. Understandably, he may perceive these jurisdictional proceedings as a time-consuming step in reclaiming those items of property allegedly withheld. Litigants in general may, at times, perceive the judicial system as a slow remedial pathway laden with difficult obstacles. The same applies to both divisions of this Court.
I hope that, in reading my restated and clarified reasons for dismissing his adjournment application, the Applicant appreciates my reasons for doing so. This Court’s time must be devoted to achieving — for all litigants — justice which is at once efficient and procedurally fair. Granting unjustified adjournments such as that for which the Applicant applied would be to impede other litigants’ journey to finalisation, whether through settlement or after a final hearing.
EVIDENCE
The nature of the proceedings required the Respondent to give her evidence before the Applicant. She sought an order that the Applicant’s application be dismissed for want of jurisdiction since, in her view, there was no de facto relationship. I note here that her application for dismissal did not shift the onus of proof with respect to the jurisdictional fact in issue. That onus remained with the Applicant, as explained at paragraph 21 of these Reasons, notwithstanding that the Respondent gave her evidence first.
Further, the Respondent represented to the Court that she could not take much time off from her employment. Having already spent the first day on evidentiary arguments, the Respondent commenced her evidence on 25 August 2021 and subjected herself to cross-examination by the Applicant.
The Respondent’s evidence
The Respondent adopted the contents of her affidavit and financial statement. Mr Williams further asked her about the photographs contained in the Applicant’s documentation. She said that some were taken on the veranda at her home. With respect to a chandelier pictured in the photographs, she said that it belonged to the Applicant’s mother, that he brought it to her home, and that it did not work. There was also a photograph of some firewood and an upturned tank, to which the Respondent said that the firewood was from one of her friends and that her and the Applicant collected it together. She specifically said that the Applicant did not pay for the firewood for her residence. Lastly, she was questioned as to the occasions in the photographs, to which she responded that she and the Applicant had in fact been on some outings together as pictured.
The Applicant then cross-examined the Respondent directly.
I was left with a clear impression that these proceedings have placed a considerable burden upon the Respondent. It was evident that she was exhausted by these proceedings, even with the case being only at a preliminary stage before the Court. The proceedings, originally listed for half a day, extended for five days. The Respondent was unable to attend her employment as a carer for four days as a result, which plainly caused her further stress. The Respondent was not present on the fifth day due to her work commitments.
Before exploring the substance of the Applicant’s questions, I note the remarks of the Full Court of the Family Court in Re F, as signposted above from paragraph 39 onwards of these Reasons. Specifically, I note the Full Court’s remarks with respect to the provision of legal assistance from a Court to a self-represented party. Referring to the decision of Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438 and Johnson & Johnson (1997) FLC 92-764, their Honours said that (emphasis in original):
224.it is usually undesirable for the judge to give legal advice, particularly, when it is of a strategic nature. We do however think that there can be circumstances where the requirement to conduct a fair trial requires a judge to give assistance of a legal nature to a litigant in person even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.[23]
[23] Re F: Litigants in Person Guidelines (n 7), [224].
I informed the Applicant several times throughout the trial that his questions must be relevant to the jurisdictional fact in issue. The Court provided both the Applicant and Mr Williams with a copy of s 4AA of the Act, and I pointed the Applicant towards the factors contained therein to guide his line of questioning. In doing so, I consider that the Applicant was afforded the appropriate guidance — I could not strategically advise him as to the manner of his cross-examination and I do not consider that my interjections and information compromised the appearance of impartiality in any event.
Notwithstanding the Court’s guidance in this respect, the Applicant nevertheless asked the Respondent many irrelevant questions during cross-examination. For example, the Applicant’s questioning often concerned his multiple applications seeking that the Respondent and Mr Williams be found in contempt of court. This was, according to the Applicant, by reason of non-compliance with procedural orders made by then-Judge McGuire. Despite my interventions to prevent questions, the Applicant persisted on this point. This, and other irrelevant questions or comments, considerably inflated the length of his cross-examination.
The Respondent answered the Applicant’s questions as directly as she could, though a number of the Applicant’s ‘questions’ were put in the form of statements. On such occasions, I directed the Applicant to structure that aspect of his case as a question to which the Respondent could provide an answer.
Unfortunately, the exchanges between Applicant and the Respondent did at times devolve into arguments. I had to also end those exchanges. Further, the Respondent would at times answer questions from the Applicant with statements to the effect that the question was irrelevant. It was clear that the Respondent became overwhelmed at some points, which led her to question the relevance of the Applicant’s questions. On these occasions I directed the Respondent to answer the question put to her— this is, of course, provided I was satisfied as to the question’s relevance to the jurisdictional issue myself.
The Applicant commenced his cross-examination by asking:
Hello again [Ms Ross]. Often also called ‘[…]’ if you recall. I certainly recall in moments of your suggested eccentricity.
The Respondent was cross-examined by the Applicant over a total period of three days.
The Applicant’s cross-examination was, at times, on point. That is to say, some of his questions were relevant to the question of whether or not the parties were in a de facto relationship. At other times, however, his questions were irrelevant to the jurisdictional issue. I did not allow a number of questions that sought to deal with extraneous matters.
Beyond irrelevancy, the Applicant’s questions were at times unnecessarily probing and offensive. In particular, some of his questions regarding the nature of the Respondent’s relationship with her former husband were quite exasperating.
The Applicant’s process was to take the Respondent through each paragraph of her trial affidavit and ask questions (or often simply make statements) in relation to those individual paragraphs. The Respondent maintained her composure for the most part although, as stated above, she did at times become emotional and avoid answering straight away.
The Respondent was asked whether she agreed that the Applicant undertook various renovations to her home. She answered to the effect that he would often, and without permission, take up a project at her house and that she felt obliged to allow him to complete it. The essence of this response was repeated several times throughout her cross-examination.
The Respondent confirmed that the Applicant did stay at her home most weekends and that, typically, he slept in her bed. She denied that there was any extensive sexual relationship between them. In fact, she suggested that the Applicant was not capable of such a relationship.
In essence, the Respondent’s account of their routine was that she would return home from work on a Friday night to the Applicant waiting for her. He kept some equipment, including a printer, in her garage. He did not, however, enter the house without waiting for her to attend. He would then stay the weekend, sometimes longer, and leave to return to his property at G Town. There were a number of vehicles parked at the Applicant’s G Town property, one of which he occupied. The Respondent confirmed that she did not, at any stage, stay overnight in any of the vehicles at the Applicant’s G Town property. Further, she agreed that the Applicant never invited her to do so, though she added that she had no intention of spending the night at his property. The Applicant later confirmed in his own evidence that he never invited the Respondent to stay over on his property.
As for the items of property purportedly remaining at the Respondent’s property, she agreed that certain items were returned to the Applicant in mid-2020. She does not know what happened to the chandelier in the Applicant’s photographs, which apparently belonged to his mother and is one hundred years old. Further, she said that the plants and trees that the Applicant planted on her property remain there. The Respondent stated that they were a gift. She agreed with the Applicant that originally she did not want them. She said that while the garden may have been untidy the Applicant took the work upon himself without her permission.
The Respondent did not resile from the position stated in her affidavit that:
29.… There is no property of any kind that could belong to him that is left at my property. He did bring me goldfish, but I disposed of these. They were a gift to me. There is nothing more that I have.[24]
[24] Ms Ross, Affidavit, 20 August 2021 (n 1), [29].
The Respondent also referred to her former husband’s funeral arrangements. She said that the Applicant’s involvement in those arrangements caused considerable angst and hostility between the Applicant and her children. Further, she said it created a rift between herself and her children — she could not, in her account, sit with them at her former husband’s funeral. The Respondent agreed that one of her children had threatened the Applicant, and that for this reason he stayed at her home over that period.
There was also evidence of the Applicant making police reports about the Respondent herself and her children in late 2019. The Applicant tendered evidence of the same in Exhibit A3, extracted at paragraph 125 of these Reasons.
The Respondent denied any suggestion that the parties were financially or emotionally interdependent. She confirmed that the parties did not, at any stage, hold a joint bank account, jointly purchase property or travel on holidays together. She said that the Applicant would, at times, pay for the food that they might consume over the weekend spent together. She denied that he contributed to rates or other similar costs. While the Respondent conceded that the Applicant may have contributed to some of the renovation work as undertaken by him, she said that he did the work voluntarily and at no stage did the parties agree that she would incur a debt as a result. She accepted that he may have, on one occasion, contributed to her petrol costs when they went for long drives.
The Respondent accepted that she allowed him to use her washing machine because the laundromat was costing him too much. She further said, however, that this arrangement began with him bringing his washing to her home without asking her first.
With respect to the public aspects of their relationship the Respondent denied any stage introducing the Applicant to any of her friends as her partner. In her account, she referred to him as her ‘friend’, including to her own friends and her daughter. To her grandchildren, she referred to him as ‘Mr Cowell’.
In essence, the Respondent denied that she suggested to the Applicant or anyone else — at any time — that the parties were more than friends who spent weekends together. She says that at no point did she present their relationship as that of a couple living together on a genuine domestic basis.
The Respondent gave answers emotionally, at times. It must be remembered that she was subject to a very long cross-examination, and that she was subject to some unnecessary and offensive questions.
The Respondent’s evidence throughout the trial did not compromise, and indeed was complementary to, her affidavit evidence.
The Applicant’s case and trial procedure — preliminary notes
As I have explained above, I made a number of observations of the Applicant throughout the trial beyond his evidence itself. I benefitted from having observed the Applicant’s manner of questioning and argument, in that it identified the points upon which he was determined to put his position.
The Applicant, at times, conducted himself in a very suitable manner and asked appropriate questions of the witness. That is, he at times asked questions which were proper and relevant to the question of whether there was a de facto relationship. On too many occasions, however, I had to remind the Applicant to confine his questions and submissions towards the jurisdictional fact in issue. It was not the task of this Court to receive, read or allow irrelevant submissions, information, questions or documents. Notwithstanding my frequent requests for his adherence to that direction, and my disallowance of evidence and submissions accordingly, the Applicant repeatedly sought to advance, discuss or question upon issues which had no bearing on the issue to be determined.
In particular, the Applicant appeared to be fixated upon his several contempt applications against the Respondent and Mr Williams. He clearly wished to discuss the topic with the Respondent and even inquired as to privileged conversations between herself and Mr Williams.
I repeatedly told the Applicant that his questions in this respect were not only irrelevant but impermissible. This did not deter the Applicant — he persisted with attempts to question and argue on the issue. I further reminded him that his contempt application filed 14 December 2020 was dismissed on 24 May 2021 by order of his Honour Judge Dunkley. That order was not appealed by the Applicant, nor had the Applicant sought leave to appeal the decision out of time. I further reminded him of the limitation periods with respect to filing Notices of Appeal. The Applicant agreed that he had not appealed or sought leave to do so out of time, but said that he ‘might’.
The Applicant appeared to believe that, notwithstanding the unchallenged summary dismissal of his contempt application, he could continuously litigate as to Judge Dunkley and others’ allegedly illegal and inappropriate dismissal of the application without hearing the same. He spoke of Registry staff not accepting his applications. Further, he complained of not receiving a transcript after purportedly applying for one. The Court had not, as of the time of the Applicant’s complaint in this respect, received notification of such a request having been made.
As discussed earlier in these Reasons, the Applicant applied for an adjournment to file further affidavit material. I denied that application. The Applicant also sought to file further affidavit material from a witness approximately half-way through his cross-examination of the Respondent. I reminded him of my ruling that no further affidavits were to be filed and that the time for filing affidavits had long passed.
In any event, the trial adjourned on 26 August 2021 to 9 November 2021. The trial was protracted, continuing far beyond the estimated hearing time of half a day. The interjections and constant interruptions in the trial process unnecessarily extended and complicated the proceedings.
Notably, and as explored at paragraphs 26, 41 and 75 of these Reasons, the Applicant was given a copy of s 4AA on 24 August 2021 and again on 9 November 2021. He was provided with that section to use as a reference during his cross-examination of the Respondent and his submissions. Ultimately, during his final submissions, I took him through the factors myself. When given the opportunity to add any further questions or submissions not already asked or argued, the Applicant again sought to refer to documents that were not before me. As foreshadowed above, he also repeatedly referred to evidence concerning the alleged contempt of the Respondent and Mr Williams. That evidence was not before me, nor did I receive submissions from the Applicant as to the contempt applications.
During the part-heard adjournment of the trial, the Applicant filed no less than four applications. He sought, upon recommencement on 9 November 2021, to rely upon those applications and the accompanying affidavits. He was not granted leave to file these documents.
The Applicant’s evidence
The Applicant gave evidence towards the end of the hearing, commencing on 9 November 2021, and prior to submissions being received.
As discussed at paragraph 35 of these Reasons, the evidentiary proceedings on 24 August 2021 resulted in two documents — the affidavit of 14 December 2020 and the Application in a Case document filed 24 August 2021 — being amalgamated into Exhibit A2 as the Applicant’s affidavit evidence. Those documents contained all of Applicant’s admissible affidavit evidence, to which he swore as true in evidence-in-chief.
I asked him his birth date, to which he said that he ‘turned off the clock’ on his 46th birthday. He did not give an exact date of birth in response, although the Application in a Case cover sheet does provide a 1948 date upon which the Applicant says he was born.
As for his occupation, he described himself as a pensioner and a ‘professional litigant’. This was, in my view, an accurate description. The Applicant undoubtedly holds a zest for bringing litigation before a court, though it might be said (as noted at paragraphs 14, 16 and 51 of these Reasons) that his filed documentation was non-compliant with the Court’s approved forms. The filing errors alongside the manner of his oral evidence made for a somewhat confusing case as presented by the Applicant.
The Applicant was cross-examined by Mr Williams.
At times, the Applicant answered questions directly. He also, unfortunately, tended to wander off the question put to him and instead refer to matters he wished to discuss. I warned the Applicant that he needed to simply answer the questions asked of him without adding further statements or commentary.
Importantly, I made it clear to the Applicant that he was able to take a written note of questions he wished to clarify under re-examination. I had a number of discussions with the Applicant during the trial as to the re-examination process. Notwithstanding my remarks in that respect, under re-examination the Applicant did not want to clarify his evidence. Rather, he again reverted to the contempt applications and other unrelated matters.
With respect to the s 4AA factors the Applicant confirmed that the parties did not at any stage purchase property together, co-own property, or share a joint bank account.
Further, the Applicant confirmed that the Respondent never stayed at his property at G Town. Indeed, he hastened to add that he never invited her to do so.
The Applicant agreed that on Friday nights, upon attending the Respondent’s home, he did not at any stage enter the house without her permission. He did, however, say that he believed that the Respondent had granted him permission to do so on occasion.
I note here the Applicant’s concession that he did not have permission to possess a key to the Respondent’s residence. Earlier in the proceedings he indicated that, somehow, he possessed a key. This appeared to be a surprise to the Respondent, within whom I detected a concern about his possible means of entry to her home. The Applicant indicated that he did not know the current location of the key, and I suggested to him that he make an effort to find and return it to the Respondent.
The Applicant set out the three occasions in July 2020 upon which he says he recovered items of personal property from the Respondent’s home. In his account, he was accompanied by police on all three occasions. The Respondent agreed that police did attend with the Applicant on at least two occasions. All of the Applicant’s belongings were either in the garage to the Respondents home (where he stored a printer and some other items) or on the veranda (including some bins, which the Applicant did not pursue in his final list of items sought to be recovered).
The Applicant said that the first occasion took place shortly after the Respondent ended their relationship by ‘kicking him out of her house’. He recovered from the garage and the veranda, his printer, along with a spade, a fork, a rake and six cans of paint. He put these items in his trailer. The second occasion occurred ten days later, in which the Applicant again arrived with the police and obtained some further items from the garage and veranda. These items included further tools, which he again placed in his trailer. He said that he may also have retrieved some plants and one or two garden hoes. On the third occasion, the Applicant collected 16 half-barrels from the nature strip and put them into his car and trailer.
The Respondent provided the Applicant with a whipper-snipper — despite not being convinced that the item actually belongs to him — in November 2020.[25] Further, she agreed at that time to return some electric blankets through her lawyer’s office and the 16 barrels as mentioned above.[26]
[25] Ibid [28].
[26] Ibid [29].
The Applicant maintained that some of his personal property items remained at the Respondent’s residence. In re-examination he set out the list of items he seeks to recover. The list is set out at paragraph 18 of these Reasons and repeated here for convenience:
·an extension ladder (5 metres);
·a purportedly 100 year-old chandelier, given to him by his mother;
·a jack hammer;
·ten goldfish;
·a pair of reading glasses, left on a bedside table;
·a long-handled rake;
·a tree pruner with two-metre handles;
·two fluorescent light fittings, kept in storage in the Respondent’s garage;
·an oval-shaped mirror; and
·some plants established in the Respondent’s garden, including a purportedly 90 year-old cacti plant.
Whilst the Applicant was cross-examining the Respondent about his items, the Respondent referred to the oval mirror. She said, in effect, that the mirror that she had installed was not oval and that he recovered his oval mirror. The Applicant then said ‘yes — I’ll check’. Nothing further was said about the oval mirror during the hearing.
With respect to the chandelier, the Respondent’s evidence was that she had no idea what became of it. The Applicant, on the other hand, contended that the Respondent had seen it and she therefore must know its whereabouts.
In setting out the property which he sought to have returned to him, the Applicant was adamant that he did not claim any interest in or title to the Respondent’s property. He said that he did not want any part of her home. In his view, the only reason he initiated proceedings was to recover his personal property items allegedly withheld by the Respondent.
Mr Williams reminded the Applicant of the Respondent’s evidence that she did not have any of his items in her possession at her property. The Applicant maintained his position that his belongings remained at her property as claimed.
The Applicant was also asked about the events surrounding the funeral of the Respondent’s former husband. The funeral took place in 2019, some six months from the time at which he says the relationship commenced. The Applicant agreed that he attended the funeral, but he said that he did so with the Respondent’s agreement. The Applicant further agreed that, during this time, the Respondent’s children visited her to arrange their father’s funeral. He said that he also spent time at her home at that time.
The evidence in relation to this period of time reveals a very unsavoury affair. Specifically, the Applicant alleges that one of the Respondent’s sons threatened him with physical harm. The Applicant agreed that he went to the police and made a complaint. He tendered a letter, Exhibit A3, detailing the contents of his complaint:
[…] 2019
(likely to be lodged at the
prior to 6pm)
[CITY C] POLICE STATIONAttention: The DUTY SERGEANT
Good Afternoon!
I, [Mr COWELL] (hereinafter [Mr Cowell]) lodge this Complaint against the following persons and I seek immediate TASMANIA POLICE PROTECTION – [City C] Office as my Life has been threatened…
1. [Mr H] (a 40-year old male resident in [City J] Western Australia), who is currently visiting and residing with his mother [Ms Ross] at
[E Street, Suburb F]
following his late fathers [sic] Death…
2. [Mr K] (a 32-year old male from Western Australia resident), who is currently visiting BUT NOT residing with his mother [Ms Ross] at
[E Street, Suburb F]
following his late fathers [sic] Death…
3. [Ms Ross] (hereinafter [Ms Ross]), (a 61-year old woman originally from Queensland via Perth Western Australia), and the Owner-Resident of the Property at
[E Street, Suburb F]
who has been the ostracised and vilified wife of the late [Mr B] (hereinafter [Mr B]) for some 40-years of the 40-year Marriage, and since and following his Death... with further vilification prior to and since … by [Mr B] and [Ms Ross]’s three children [Mr H], [Ms L] and [Mr K].
4. [Ms L]… a 38-year old Married and Separated woman with three young Children), residing in her own home immediately adjacent to [Ms Ross]’s Property, being her mother [Ms Ross] at
[E Street, Suburb F]
5. Solicitor- Barrister [Mr D] (hereinafter [Mr D]), a +/-60-year old from Interstate who has taken up a Legal Practice in [City C] some years ago), and who had been the Solicitor-Barrister for the late [Mr B] since February-March of 2019, AND, who has sought to conspire with [Mr B] to defraud, extort Funds and commit Perjury in the FCCA Court Matter in […].
6. Solicitor-Barrister [Mr Glynn Williams] (hereinafter [Mr Glynn Williams]), a +/-55-year old from Interstate who has taken up a Legal Practice in [City N] some years ago), and who has been substantially Briefed on the Proceeding in [...] scheduled and Listed to Commence tomorrow…
AND WHO HAS FAILED TO LODGE A NOTICE OF APPEARANCE
and to provide a Service Agreement to [Ms Ross] in [City C] at 10:30am, and who has submitted his Bill for Costs from that Meeting together with Extras from the Meeting
(WITHOUT A PROPERLY AUTHORISED SERVICES AGREEMENT BEING AUTHORISED by [Ms Ross])
_________and who has failed to return [Ms Ross]’s Voice Messages left on his Answering Service on […] thereby potentially leaving [Ms Ross] unrepresented at the commencement of Proceeding tomorrow...
[Ms Ross] has agreed with [Mr Cowell] that she ought Immediately seek an adjournment to a date to be fixed such she can gain alternative legal representation.
_____________
COMPLAINT DETAILS (partially only in the interests of expediency)
There is a Bundle of Documents Numbered 1 – 8 attached which describe in more detail the nature and major aspects of the Complaint.
1. [Ms Ross] advised the Writer ([Mr Cowell]) on […] that [Mr H] intends to
KILL - “K-I-L-L”
[Mr Cowell] who has been a friend of [Ms Ross] since […] 2019 and more recently as the “Best Friend” and de facto Partner of [Ms Ross] and a legal adviser to [Ms Ross] since […] 2019.
2. [Mr Cowell] has been aware of the dysfunctional proclivities of the [ROSS] immediate family and the extended family of [Ms Ross] since […] 2019 and more recently since the Death of [Ms Ross]’s husband...
3. Divorce Papers DRAFTS and Letters and a [Ms Ross] Criminal Proceedings Indictment against [Mr D], and the late [Mr B] have been jointly compiled by [Ms Ross] and [Mr Cowell] since the receipt of [Mr D’s] first and subsequent many Letters for Property Settlement Funds variously ranging from $120,000-00 to $160,000-00 . . . . all prior to [Mr B’s death].
4. Vicious and substantial arguments and threats between the immediate and extended family and associates of [Mr B] have taken place over many years, and moreso since Tuesday of last week ([…]) involving the immediate family and extended family and friends of [Ms Ross] and [Mr B] have occurred involving the pending Court Appearance and the placement of
erroneous DEATH and FUNERAL NOTICES
in the Advocate Newspaper….
[the document extracts two funeral notices, with the majority of the text indecipherable]
5. Document #7 will be Noted as a
CRIMINAL PROCEEDINGS INDICTMENT
against [Mr D] for initiating an Originating Application for and on behalf of the late [Mr B] seeking the following ORDERS . . .
2. Final orders sought
(State precisely and briefly the final orders sought by the applicant – give a number to each order sought)
1.That an account be taken of all assets and liabilities of the Applicant Husband and the Respondent Wife, including superannuation, and that there be an equal division of same.
2.That the Husband be relieved from further pleading particulars of Orders sought until full disclosure has been made by the Respondent Wife.
3.That the Wife pay the Husband’s costs of and incidental to this Application.
5. [Mr Cowell] . . . this COMPLAINT requests that these “ORIGINAL DOCUMENTS and the accompanying eight (8) Attachments are delivered to the FCCA – Federal Circuit Court Chambers – [Burnie] for the Attention of the Associate to his Honour McGUIRE J. AND . . . being for his ultimate consideration during the 10:30am Proceeding as [Mr Cowell], the Writer notes that both Judicial Offices (and Others) have declined to acknowledge prior communication from him in this and other Matters, AND unless Tasmania Police – [City C] can guarantee [Mr Cowell]’s Protection, [Mr Cowell] may decline to attend the Public Proceeding as an “Interested Third Party”.
6. [Ms Ross] in particular needs to be advised by Tasmania Police at her address prior to 7am on […] 2019 of this Complaint (as she will be absent from that time for her work duties),
AND ideally at/or about 8pm this day […]
and that [Mr Cowell] seeks that “RESTRAINT ORDERS” be put in place such that none of the Complainees save [Ms Ross] can present themselves to [Mr Cowell].
AND THAT she may choose to avoid-decline the Court Appearance as she is presently embroiled in her 3RD/4TH Mental Breakdown, AND that she has been previously hospitalised and is presently under the Treatment of Psychologist [Mr O] (??) Surname at [P Town] (??) who unknown to [Mr Cowell] and also by a Psychiatrist, and that the Complainees themselves, their associates and/or their Contractors CANNOT approach [Mr Cowell] at any time for the next seven (7) days, and that [Ms Ross] may only make polite Voicemail, SMS and/or email Communication in any Event.
[Mr Cowell] has suggested to [Ms Ross] that she attend the Court tomorrow and seek simple Adjournment Orders in Matter [...]
I again note that, as explained in paragraph 21 of these Reasons, the Applicant bears the onus of proving the existence of the jurisdictional fact in issue. He will discharge his onus if his evidence establishes that, on the balance of probabilities, he and the Respondent were in a de facto relationship.
Section 4AA(2)(a) — the duration of the relationship
The Applicant appeared to concede that the relationship, whatever its nature, was not at least two years in duration. On his evidence, the relationship lasted no more than 15-16 months and ended in mid-2020.[32] The Respondent agrees with this estimation.[33]
[32] Mr Cowell, Affidavit ('Applicants - Submissions’), 24 August 2021 (n 1), 15, 26.
[33] Ibid [175]; Ms Ross, Affidavit, 20 August 2021 (n 1), [5], [15].
Section 4AA(2)(b) — the nature and extent of their common residence
The parties agree that they spent weekends together at the Respondent’s home for a period of roughly twelve months, between mid-2019 and mid-2020.
There was some variation to the regularity of time spent between the Applicant and the Respondent. On some occasions, the Applicant’s visits — and the Respondent emphasised visits — extended into Monday or Tuesday. On one occasion in mid-2020 the Applicant stayed with the Respondent for a week while he was ill.
I accept the Respondent’s evidence that the Applicant’s time at her home was mainly on weekends for companionship. She said that, at times, he would arrive at her home without invitation. On those occasions he would, notwithstanding the absence of an invitation to do so, usually stay at her home.
The Applicant would often stay overnight on the weekends, but would return to his own residence during the week. The parties agree that he maintained his own residence in the form of a vehicle parked at G Town, on property leased from a third party. The Respondent never stayed overnight at the Applicant’s residence. Indeed — and as the Applicant hastened to mention — he never invited her to do so. The Respondent only attended the G Town property on two occasions.[34]
[34] Ms Ross, Affidavit, 20 August 2021 (n 1), [18].
When the Applicant stayed at the Respondent’s home, he would often attend to maintenance issues and even undertake some renovations. The Respondent states, and I accept, that the Applicant would often commence those tasks without her permission. The Applicant did not challenge the Respondent’s general assertion in this regard. Further, I accept that once such work had started the Respondent would let the Applicant try and complete the same.
The Applicant agrees, for the most part, that he did not at any stage contribute to any costs associated with the Respondent’s home. His position is that, save for his contributions to firewood costs (in the amount of $150.00; Exhibit A, item 13), some groceries, a contribution towards electricity and rates, he did not involve himself in the budgeting for, or expenses associated with, his weekends with the Respondent.
The Respondent denied that the Applicant made any financial contribution as alleged other than money towards food they may consume on the weekend he was staying at her home. The Applicant conceded during final submissions that he did not possess receipts or other documentation to prove his alleged expenditure. Given the lack of corroborative evidence, and upon accepting the Respondent’s denials, I am not satisfied that the Applicant contributed to the Respondent’s rates, electricity or firewood costs as he claims.
I find that the arrangement between the parties was informal, whereby the Applicant would visit the Respondent’s home and spend a few nights each week.
The nature of the Applicant’s occupation of the Respondent’s house was no more than a weekend arrangement between friends and/or lovers. The arrangement did not progress to one in which the parties committed to sharing a common residence.
The Applicant was — as established by the evidence — well aware of the nature of their arrangement. That is, he knew that he was staying at the Respondent’s home and that it was ultimately her choice as to whether he stayed there on any particular weekend. He always waited for an invitation to enter her house. He left if she asked him to and he stopped directing his mail to her address upon her request for him to desist that practice.
This is not to say that the parties’ subjective perceptions of their relationship is determinative of the jurisdictional fact in issue, as outlined by his Honour McGuire J in Tomson & MacLaren above. It is relevant, however, that the Applicant admittedly did not let himself into her home without her consent.
The Respondent did not provide him with a key to her home, and was visibly alarmed in the courtroom upon being informed that he possessed one. The Applicant says that he has lost his key. How he came to possess the key is unknown, though it is likely from when he changed the locks at her home. It is clear that the Respondent did not provide it to him.
The Applicant would often arrive at the Respondent’s home before she finished work and wait in the garage area for her to get home. He would not let himself into her home to wait for her. This evidence supports the Respondent’s position that the parties did not set up a shared domestic residence, nor did they live together. At no stage did the parties discuss their weekend time as being anything more than visits bookended by the Applicant returning to his residence at G Town.
I find that the parties did not establish a common residence and, instead, maintained separate homes for the duration of their relationship.
As extracted above in Halstron & Halstron, McEvoy J clearly states that parties retaining separate residences is not itself determinative of the jurisdictional question. In relation to the case before me, however, this finding counters the Applicant’s strong contention that they shared a common residence and lived together on a genuine domestic basis on weekends.
Section 4AA(2)(c) — whether a sexual relationship exists
The parties agree that they shared a bed for much of the time the Applicant stayed at the Respondent’s home. While the Respondent described her relationship with the Applicant as a ‘friendship’ but she said that there was one occasion on which they had sexual relations. She also agrees that that on other occasions herself and the Applicant did engage in affectionate encounters. The Applicant contended with respect to their sexual relations — which is his account occurred two to three times — that ‘the lady was not capable’.
The evidence surrounding the parties’ sexual relationship was somewhat vague. The intimate contact between them appears to have been infrequent, with each party contending that the other was in some fashion ‘incapable’ of maintaining a sexual relationship.
It is not for this Court to interrogate the regularity or quality of a sexual relationship. Such a thing is subject to several influences and its existence or non-existence is not determined solely by the nature of the parties’ relationship.[35] Further, the term ‘sexual relationship’ does not merely refer to the occurrence of sexual intercourse, but ‘must include conscious degrees of mutuality between the couple’.[36]
[35] Crowley & Pappas [2013] FamCA 783, [30] (Tree J).
[36] Spencer & Speight [2014] FamCA 436, [121]-[123] (Benjamin J). See also Fernando and Rundle (n 28), 194, who explain the inclusion of a sexual relationship in s 4AA as ‘not surprising because sex is an expected characteristic of a romantic or ‘couple’ relationship and distinguishes those attachments from friendship, carer and other relationships’.
The parties appear to have, at least at some moments, held affection for one another. They had a sexual relationship, albeit brief, and shared a bed for some (if not most) of the time the Applicant visited the Respondent’s home. I do note, however, that I view this factor alongside my finding in relation to s 4AA(2)(b) above.
Section 4AA(2)(d) — the degree of financial dependence or interdependence, and any arrangements for financial support, between them
At the outset of this consideration, I will briefly remark upon the nature of ‘financial dependence’ and ‘financial interdependence’ within the Act. As with all of the other factors, the parties’ financial arrangements are to be assessed within the circumstances of their relationship.
Financial ‘mingling’, whether through joint bank accounts, co-owned property or otherwise, is neither necessary nor fatal to finding a de facto relationship.[37] The same can be said of financial support flowing from party A to party B and vice versa.[38] Ultimately, the evidence of the parties’ financial arrangements must be assessed alongside the other circumstances of their relationship.
[37] Asprey & Delamarre [2013] FamCA 214, [75] (Cleary J).
[38] Fernando and Rundle (n 28), 195; the authors explain the findings in Locke & Norton [2014] FamCA 811 and Jonah & White [2011] FamCA 221, in that the former regarded the provision of financial support as ‘neutral’ while the latter considered that the same indicated the existence of a de facto relationship. From my own view of these authorities, they seemingly reveal that this factor in particular can take on a notably different colour in different factual matrixes.
The Respondent firmly asserted that neither party was, at any stage financially dependent on the other, nor was there any financial interdependence between them.
The Respondent denies that the Applicant contributed to costs associated with her home. She agreed that he contributed to food costs when he stayed, but said that he did not contribute to household supplies. As already found, there is insufficient evidence to establish the Applicant’s position that he paid money towards the Respondent’s rates and/or electricity bills. The Respondent denies this in any event. Likewise, the Respondent at, no stage, made any financial contribution to the Applicant’s lease nor any other expenses associated with his residence at G Town.
The costs of any works or renovations undertaken by the Applicant, as approved by the Respondent, were met by the Respondent. She concedes that he did use his own paint to paint her hothouse and the sunroom.[39]
[39] Ms Ross, Affidavit, 20 August 2021 (n 1), [11]-[12].
In relation to the work undertaken by the Applicant without the Respondent’s permission, he claims that he devoted some of his resources to that work. Exhibit A only refers to ‘Mr Cowell’s expenditure’. He did not provide any evidence to substantiate his claims in this regard.
There was no evidence that either party supported the other through monies or other financial means. This is the case even in relation to social outings such as dinner, cafes, or other occasions. The lack of evidence in this respect is, of course, save for the groceries paid by the Applicant as agreed by the Respondent. They did not purchase presents for third party friends or relatives.
As stated above, I am satisfied that neither party contributed to the other’s utility bills. Further, neither party loaned money to the other, either documented or undocumented. They did not purchase any real estate or personal assets together, nor did they discuss the possibility of doing so.
On the evidence, I find that there was no financial dependence or interdependence throughout the 15 months of the parties’ relationship. As already stated there was no joint bank account, no joint credit card, no access to each other’s online banking or emails, and no inclusion of the other as a beneficiary in a will. The Applicant’s explanation for this was that the relationship was ‘developing’. Importantly, the Applicant agreed that he continued to receive a full pension from mid-2019 to mid-2020. Further, he confirmed that he did not inform Centrelink that he was in a de facto relationship.
I find that there is no evidence of financial interdependence or financial dependence upon one party by the other during the 15-month relationship. Further, there is scant evidence of any financial contributions as made by one party towards another. As such, save for the few instances mentioned above, neither party financially contributed to the other at any stage during the 15-month relationship.
Section 4AA(2)(e) — the ownership, use and acquisition of their property
Neither party claims to hold an interest in the other party’s property. In fact the Applicant readily conceded that, even if a de facto relationship is declared to have existed, he has no entitlement whatsoever to the Respondent’s real or personal property.
Likewise, the Respondent does not seek to claim any interest in the Applicant’s property if this Court ultimately finds it has jurisdiction to hear the s 90SL application.
The Applicant plainly kept some of his possessions at the Respondent’s home, including some plants and a purportedly 90 year-old cactus in her garden. The Respondent has retained those plants on the basis that they were a gift from the Applicant and they remain in her garden. Further, the Respondent conceded that the Applicant may have provided some soil while undertaking garden work.
With respect to the plants, the Applicant claims that he ‘loaned’ them to the Respondent. His position is, in essence, that they were not a gift to her and as such he remains the proper owner. I raised with him that ‘loaning’ possessions may be a contra-indication of a de facto relationship — plants established in a de facto partner’s garden would not usually be considered ‘borrowed’ property. The Applicant maintained his position, saying that he would not have loaned her the plants had he not enjoyed ‘numerous outings’ with the Respondent. He further maintained that, those plants being rightfully his, he wishes for them to be recovered.
On his own evidence, the Applicant has retrieved much of the property that he brought to the Respondent’s home. These items of property are set out at paragraphs 117-118 of these Reasons. The outstanding items of property to be recovered in his account are, as far as could be discerned from the Applicant’s evidence, those listed at paragraph 18 of these Reasons.
Ultimately, it was not completely clear which items remained at the Respondent’s home and which items the Applicant had repatriated therefrom. His documentation, specifically Exhibit A, appears to include items of property which he stated during cross-examination had been returned to him. What is clear, however, is that the plants in the Respondent’s garden remain. The Respondent was firm that those plants are all that she retains and that she regards them as a gift.
The parties agree that the Applicant undertook some works on the Respondent’s property including painting, plastering and general maintenance. As discussed earlier in these Reasons, the Respondent said that the Applicant would often commence work without her permission. For example, the Applicant changed the lock on the Respondent’s front door without her consent. He said that he was worried for her safety, due to her purportedly dangerous former husband. It was revealed during evidence that not only did he undertake this task without permission, but further that he retained a key to her property — a complete surprise to the Respondent. From there, the Respondent felt as though she had to tacitly allow him to complete those projects or tasks. She did not pay the Applicant for any of his labour but usually met the costs of any materials.
The Applicant conceded that, notwithstanding his efforts towards the Respondent’s property out of a genuine desire to assist her, those efforts did not amount to a contribution entitling him to any interest therein.
It cannot be said that either party has made any contribution to the other’s home or other property such that it would alter their existing legal interests in the same.
The evidence does not satisfy me that any of the Applicant’s chattels brought into the Respondent’s home remain there — save for the plants in her garden. As such I find that all of the Applicant’s possessions were either returned to him over three separate occasions, the chronology of which is set out at paragraphs 117-118 of these Reasons, or are no longer in the Respondent’s possession.
The parties held their property, both real and personal, separately throughout their relationship. They formed no intention to grant each other any legal or equitable interests in property they already owned, nor did they plan to jointly acquire property in the future.
The manner in which the parties used the Respondent’s home also indicates an intention to keep their lives separate. The Applicant’s items at the Respondent’s property were returned to him at the end of their relationship. Further, the Respondent’s house remained assuredly her own in that the Applicant did not enter her home without her permission at the start of each weekend they spent together. The Applicant’s work on her property, whether requested or not, was never intended by either party to represent a ‘pooling’ of their skills or resources so as to be a ‘contribution’ to their shared life, or as creating a legal interest in that property.
I find that the manner in which the parties owned, used, acquired, and dealt with property during the relationship is inconsistent with the parties living together on a genuine domestic basis.
Section 4AA(2)(f) — the degree of mutual commitment to a shared life
The Respondent said that she had no commitment to a shared life with the Applicant. She agrees that they maintained a connection on weekends, sometimes extending a few days beyond that. Notwithstanding this, at no time did she regard the relationship as a source of companionship and at times intimacy — they did not have a shared life.
In the Respondent’s account, the relationship was largely characterised by her coming home on a Friday night to see the Applicant waiting for her at her home. He would then stay for the weekend. It was not a situation in which she planned for that to occur, and as a relationship it never progressed beyond him staying over on weekends. The Applicant did not challenge this assertion.
The Respondent says that in the last four months of their relationship — in early 2020 — she and the Applicant would often argue. These arguments would result in her telling him to leave her home, and he would follow that direction once made. Again, this assertion was not challenged.
As stated above, the Applicant also started projects on the Respondent’s property without permission which the Respondent felt she had to let him finish. It was very rare, she says, for her to ask him to do something for her and for him to carry out that request.
The Applicant’s unilateral involvement in the Respondent’s life — as opposed to a mutual commitment to a shared life — is exemplified by his conduct around the Respondent’s former husband’s funeral. The Applicant arranged a second quote without her consent, which led to an acrimonious fallout between herself and her children. She describes the situation in her affidavit as follows:
17.…
His intrusion into the funeral arrangements were quite distressing and my children became aware of what he had done and it caused significant tension with them, and at the funeral. I found myself sitting away from the children. …
The Applicant conceded that he contacted the alternate funeral parlour for a quote without the Respondent’s consent. In his retelling, he said that he simply heard her raise the question of the funeral costs when he accompanied her to the meeting with the originally appointed funeral director. He maintains that hearing the Respondent ask that question gave him a right to get an alternative quote for the costs associated with her former husband’s funeral. His involvement caused the Respondent and her children a great deal of unwanted stress. This example provides insight as to the Applicant’s general attitude during their relationship. That is, that he could impose himself upon the Respondent and infiltrate her life without her consent. Once he did so, he would then be entwined in the issue or activity at hand.
The Applicant did not necessarily disagree with the Respondent’s characterisation of the relationship. He maintains that they were committed to a shared life on weekends when they were together, but seemingly concedes that their commitment to a shared life did not exist during the week. He did not challenge that he would arrive at her home on Fridays, sometimes uninvited, and then would stay over as the Respondent claims.
Further, the Applicant does not challenge that he would commence projects at the Respondent’s property without her permission and then would be required to finish them. He does not challenge that he changed the lock on her front door without her consent, though he clarified that he did so out of fear for her safety. He did not, however, ask the Respondent whether she was concerned for her own safety.
The Respondent agreed under cross-examination that the Applicant did stay with her for an entire week when he was ill. She also agreed that he did bring his washing to her home. Further, she agreed that when he spent time in Adelaide in 2019 they spoke on the telephone. They ostensibly spent a number of hours and outings together — he assisted her in completing her divorce paperwork, they went for long drives, and on at least ten occasions they had dinner at her favourite eatery — the Q Restaurant.
Notwithstanding the Respondent’s concessions, I find that the parties were not mutually committed to a shared life. At its highest, their arrangement occurred regularly on weekends, with the Applicant often arriving unannounced and uninvited, after which time the Applicant would return to his home at G Town which he continued to lease throughout the relationship.
The Applicant was, however, always a visitor to the Respondent’s home. He would wait to be invited in. Further, he would comply with the Respondent’s demands for him to leave.
I find that the relationship dwindled to its conclusion four months prior to its end in mid-2020. During those four months the parties’ relationship was characterised by regular arguments during which the Respondent would sometimes demand that the Applicant leave. No doubt the tension created by the Applicant’s complaint to police about the Respondent and her children did not assist the parties to maintain a harmonious relationship.
Section 4AA(2)(g) — whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The parties’ relationship was not registered under the Relationships Act 2003 (Tas) or any other State or Territory legislation.
Section 4AA(2)(h) — the care and support of children
The parties have no children together. Neither of them assisted with the care of any children of the other party.
The Applicant stated that he assisted the Respondent’s daughter with some maintenance at her home, which adjoins that of the Respondent. No independent evidence was adduced to corroborate this claim.
In fact, it appears that the Respondent’s children had a very hostile attitude towards the Applicant. The Applicant made a complaint to police of a threat allegedly made by Mr K, the Respondent’s son, as extracted in Exhibit A3 above. This document evidences that the Applicant did not show a commitment to providing care and support for the Respondent or her children, or even any attempt to rebuild the relationship, following the events of late 2019. Rather, it evidences the complete opposite.
Section 4AA(2)(i) — the reputation and public aspects of the relationship
There was little evidence in relation to the public aspects and perceptions of the parties’ relationship. The Respondent said that on a few occasions she introduced the Applicant to others by referring to him as her ‘friend’ or as ‘Mr Cowell’, recalling a dinner party as an example. She said that she did not use any title such as ‘partner’ (or anything else to indicate de facto coupledom) for the Applicant when introducing him to others.
The Applicant did not provide any evidence to establish the public nature of their relationship. Further, he did not challenge the Respondent on this point. The Applicant did title himself as the Respondent’s ‘best friend’ and ‘de facto partner’ in Exhibit A3, although there is no evidence that the Respondent shared his description of their relationship.
The Applicant’s in-effect affidavit evidence in Exhibit A2 includes images of the parties together — at least three appear to have been taken at a restaurant or café. The Respondent agrees that she and the Applicant were often out and about together. These images do not prove that the parties represented themselves as a de facto couple, nor do they prove that others perceived them to be in such a relationship.
On the evidence available to the Court I am not satisfied that the parties communicated to others that they were in a genuine domestic relationship, nor that they induced or fostered a public perception of the same. There was also no evidence that the relationship’s reputation within the parties’ friendship or community networks was one of a genuine domestic character.
Section 4AA(4) — any other matters as may seem appropriate to the court in the circumstances of the case
Neither party adduced any other relevant evidence with respect to whether they lived in a genuine domestic relationship between mid-2019 and mid-2020.
DETERMINATION OF THE JURISDICTIONAL FACT
Taking into account all the circumstances of their relationship, and considering the evidence as a whole, I am not satisfied that the parties were a de facto couple for any period of the 15-16 months in which they spent time together.
I accept — in its entirety — the Respondent’s evidence concerning the manner in which the parties conducted their relationship. I reject the Applicant’s assertion that the relationship was anything more than a friendship, albeit romantic at times. As such, I find that the parties did not live together on a genuine domestic basis, at any stage.
As I have found, the purpose of the Applicant’s litigation was not for the Applicant to seek an adjustment of the parties overall proprietary interests. His aim was to force the return to him of a bewilderingly small list of items.
The Applicant accepts that most of the items that he had taken to the Respondent’s home were returned to him, at times, with the assistance of police. The Respondent maintains that the only items that she retains are plants she believes were gifted to her by the Applicant. The Applicant has failed to establish that the Respondent possesses any other items of his property.
I accept the Respondent’s evidence with respect to the Applicant’s recovery of his items over three occasions, save for the plants in her garden. I make no finding as to whether the Applicant has any rightful claim to those plants, but I am satisfied that the Respondent believes them to have been gifted to her.
In conclusion, taking into account all matters as referred to in paragraphs 154-217 of these Reasons, I will declare pursuant to s 90RD of the Act that there was no de facto relationship between the Applicant and the Respondent.[40]
[40] Family Law Act 1975 (Cth), s 90RE.
Consequently, this Court has no jurisdiction to hear the Applicant’s application for a declaration of property interests under pt VIIIAB of the Act. I intend to dismiss the Amended Initiating Application filed 2 October 2020 for want of jurisdiction.
Further, I intend to dismiss all outstanding applications within this matter.
I address specifically the Applicant’s contempt applications below from paragraph 226 onwards.
THE APPLICANT’S CONTEMPT APPLICATION — RES JUDICATA
As stated earlier in these Reasons, the Applicant has filed a multitude of applications during the life of this litigation. Those applications included applications seeking a finding that Mr Williams and/or the Respondent are in contempt of the Court. The Applicant’s statement of the alleged contempt reads as follows:
Failure by both the Respondent and her Solicitor to comply with the ORDERS of McGuire J. (attached).
As foreshadowed by my earlier comments about case management principles the justice system has for a long time estopped parties from churning their disputes through the courts. This includes re-litigating an issue already determined or bringing a previously un-litigated issue before a court having unreasonably not done so at the original opportunity. The relevant estoppel in this case is cause of action estoppel — res judicata.
The core of res judicata, as opposed to other forms of estoppel, is that ‘the application of the doctrine … hinges on the controversy that has been quelled in the earlier proceeding’.[41] As explained in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589:
res judicata comes into operation whenever a party attempts in a second proceedings to litigate a cause of action which has merged into judgment in a prior proceeding.[42]
[41] Clayton & Bant [2020] HCA 44, [53] (Gordon J). Her Honour agreed with the decision of the plurality (Kiefel CJ, Bell and Gageler JJ), and in her own reasons explains the principles of issue, action and Anshun estoppel and their effect in the context of foreign judgments.
[42] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 597 (Gibbs CJ, Mason and Aickin JJ); cited by Gordon J in Clayton & Bant (n 40), [54], with reference to the ‘inquiry about the character of the claim made and decided’.
Indeed, his Honour Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 recognised in the mid-20th century that it is inefficient for Court time to be spent re-hearing matters already adjudicated or settled. Although his Honour disagreed with the plurality’s decision to allow the appeal, he insightfully remarked that:
This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro eadem causa.”[43]
[43] Jackson v Goldsmith (1950) 81 CLR 446, 466 (Fullagar J).
His Honour’s remarks above are, in a way, prophetic of the case management principles which would emerge over half a century after the publication of Jackson v Goldsmith.
As stated, the Applicant’s first contempt application was summarily dismissed by his Honour Judge Dunkley on 24 May 2021 on the basis that it had no reasonable prospects of success.
The Applicant then continued to file for contempt using the same grounds (and indeed the very same paperwork, re-uploaded) as his contempt application originally filed 14 December 2020 and dismissed on 24 May 2021. The Applicant filed the same application, with reference to the very same conduct, three further times on 7 June 2021, 11 October 2021 and 20 October 2021. I am certain that the Applicant has uploaded the same document as the original application as it is hand-written, with the handwriting and marking being identical across all four copies. All copies refer to the same court date on the front page (being 15 December 2020) and all are signed and witnessed on 14 December 2020. Further, the statement of alleged contempt contains the exact same conduct.
The Applicant did not appeal his Honour Judge Dunkley’s summary dismissal of the contempt application of 14 December 2020. No Notice of Appeal was filed within the 28-day limitation period. Further, the Applicant did not apply for an extension of time to file the same after the limitation period expired.
The Applicant is therefore attempting to re-litigate an application where a final decision has been made. His three contempt applications of 7 June 2021, 11 October 2021 and 20 October 2021 are therefore res judicata and must be dismissed.
I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 7 April 2022
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