CREESE & LAPTHORNE
[2017] FamCA 655
•25 August 2017
FAMILY COURT OF AUSTRALIA
| CREESE & LAPTHORNE | [2017] FamCA 655 |
| FAMILY LAW – JURISDICTION – De facto relationship – Where applicant sought alteration of property interests pursuant to s 90SM of the Family Law Act1975 (Cth) – Where applicant sought a declaration that a de facto relationship had existed between the parties within the meaning of s 90SB of the Family Law Act1975 (Cth) – Where the respondent sought a declaration that a de facto relationship never existed between the applicant and the respondent – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where the parties were living together in a de facto relationship – Where threshold of two year cohabitation is not satisfied – Where the applicant had made substantial contributions but was unable to establish that a failure to make a property order would result in a serious injustice – Application dismissed. |
| Evidence Act 1995 (Cth) s 140(1) Family Law Act 1975 (Cth) ss 4(1), 4AA, 90RD, 90SB, 90SF(3), 90SM Social Security Act 1991 (Cth) s 4 |
| Harriott & Arena [2016] FamCAFC 69 Jonah & White (2011) 45 Fam LR 460 Ricci v Jones [2011] FamCAFC 222 Sha & Cham [2017] FamCAFC 161 Sinclair & Whittaker (2013) FLC 93-551 |
| APPLICANT: | Mr Creese |
| RESPONDENT: | Ms Lapthorne |
| FILE NUMBER: | DGC | 2539 | of | 2014 |
| DATE DELIVERED: | 25 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATES: | 10, 11 & 12 May 2016; 30 August 2016 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Creese in person |
| COUNSEL FOR THE RESPONDENT: | Ms Christie (10, 11 & 12 May 2016); Mr Kearney SC with Ms Christie (30 August 2016) |
| SOLICITOR FOR THE RESPONDENT: | Cleary’s Commercial Lawyers Pty Ltd (10, 11 & 12 May 2016); McDonell Milne Toltz Family Lawyers (30 August 2017) |
Orders
That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between Mr Creese and Ms Lapthorne which would attract the application of Part VIIIAB of the Act.
That the Amended Initiating Application filed by Mr Creese on 5 September 2014 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Creese & Lapthorne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: DGC 2539 of 2014
| Mr Creese |
Applicant
And
| Ms Lapthorne |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Creese (“the applicant”) and Ms Lapthorne (“the respondent”) agree that they were living in a de facto relationship. They disagree, however, about whether the duration of their de facto relationship was sufficient to, and/or whether the nature of certain alleged contributions by the applicant would, enable this Court to have jurisdiction to make property settlement orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
Applications
By his Amended Initiating Application filed on 5 September 2014, the applicant seeks final property orders. He seeks a declaration that a de facto relationship had existed between the parties within the meaning of s 90SB of the Act. That is, for at least two years and/or that he made substantial relevant contributions and a failure to make a property order in his favour would result in serious injustice to him.
The application is opposed by the respondent. The respondent seeks a declaration pursuant to s 90RD of the Act that a de facto relationship never existed between the applicant and the respondent that would attract the application of Part VIIIAB of the Act.
A threshold question arises. This is whether the Court has jurisdiction to make the orders sought. The parties agreed that it would be appropriate for this Court to determine firstly this jurisdictional question and if the Court was to find it has jurisdiction, to determine the property application at a later hearing.
Background
The background facts are as follows.
The applicant was born in 1972 and is 45 years of age. The respondent was born in 1961 and is 56 years of age.
The applicant and respondent met on 3 January 2010 at a seminar in Tasmania. The applicant was living in Tasmania with his sister. The respondent was living in Sydney with her husband (“Mr Lapthorne”) and their two children, E then approximately 20 years and F then approximately 17 years.
After returning to Sydney the respondent contacted the applicant by email on 11 January 2010. Following this email message there was a vast amount of email correspondence between them. On 14 January 2010, the respondent suggested that the applicant move to Sydney. It is clear from the email correspondence that a close affection developed very quickly between the parties.
Following the respondent meeting the applicant, the respondent informed her husband that she had met the applicant and wanted to commence a sexual relationship with him. There had been difficulties in the respondent’s marriage and this development seems to have precipitated separation between the respondent and her husband. Mr Lapthorne moved out of the former matrimonial home at Suburb G to reside at a holiday home owned by him and the respondent at Suburb H when he was not travelling for his employment. Mr Lapthorne would come to the Suburb G family home approximately once per week for dinner, particularly to see the children.
The applicant came to visit the respondent in Sydney on 28 January 2010. On that day they commenced a sexual relationship.
Upon the applicant arriving in Sydney on 28 January 2010 he stayed at a local hotel for five or six nights then returned to Tasmania. Some days later, on 6 February 2010, the parties met in Canberra. The following day they both travelled to Tasmania and the respondent returned to Sydney on 8 February 2010.
On 8 or 9 February 2010 the applicant again visited Sydney, this time staying a couple of weeks at Suburb H which had become available in the absence of Mr Lapthorne who was in the United States on business. On 24 February 2010 the applicant visited the respondent in Melbourne and they subsequently went to J Town. On 27 February 2010 the applicant returned to Tasmania and the respondent returned to Sydney.
On 8 March 2010 the respondent visited Tasmania and she and the applicant went to K Town. The respondent returned to Sydney on 10 March 2010.
The respondent entered into a lease of an apartment at Suburb L in Sydney. She had arranged with the applicant that he would move to Sydney and take up residence at this apartment. He left Tasmania on 30 March 2010 and drove his motor vehicle to Sydney taking the car ferry Spirit of Tasmania. He moved into the Suburb L apartment at the end of March 2010. The respondent paid all the costs of the apartment.
On 16 April 2010 the parties visited the respondent’s sister in law Ms M at N Town returning to Sydney the following day.
From 28 April to 2 May 2010 the applicant attended a conference in Queensland.
In June 2010, the respondent and Mr Lapthorne attempted reconciliation and Mr Lapthorne moved back to the former matrimonial home at Suburb G living there for a week. But the reconciliation was not successful and he returned to reside at Suburb H when not overseas.
Between 27 and 29 June 2010 the parties had a holiday at O Town.
On 4 July 2010 the respondent and F commenced a skiing and studying holiday at P Town returning to Sydney on 11 July 2010. The applicant also went to P Town between 5 and 11 July but he stayed in a different apartment from the respondent and F.
On 9 August 2010 the applicant travelled to the United Kingdom to visit his daughter. He stayed there for four weeks returning to Sydney on 9 September 2010.
The applicant contends that when he returned from the United Kingdom, he moved most of his personal effects into the respondent’s home at Suburb G. He says that he lived with the respondent at her Suburb G home from 9 September 2010, but moved out after one week to allow the respondent’s teenage daughter, F some time to adjust. I shall refer to this again below.
On 30 September 2010 the respondent and F went on a holiday to S Town returning to Sydney on 10 October 2010. Between 6 and 8 October 2010 the applicant went to S Town making what he said was a clandestine visit to the respondent.
On 12 October 2010 the applicant drove to Tasmania returning to Sydney by air on 22 October 2010.
Between 29 November and 1 December 2010 the respondent was away from Suburb G with parents of Year 12 girls.
In November 2010 the respondent’s son, E, moved out of the Suburb G home.
In December 2010, the respondent and Mr Lapthorne accepted the finality of their marriage breakdown. Mr Lapthorne moved his belongings out of the Suburb G home. The respondent said that from this time, her relationship with the applicant became more serious, but that they continued to live in separate residences.
In December 2010, the respondent purchased a property as Trustee for the estate of her late sister for her nephews. The applicant assisted in completing renovations to the property, but he was paid from the estate for his work.
On 10 December 2010 the applicant, the respondent, F and a friend, T, went on a holiday overseas returning on 20 December 2010.
On 24 December 2010 the applicant went to Adelaide and spent Christmas with his family. The respondent joined him there on 26 December for his father’s wedding. They returned to Sydney on 28 December 2010, then attended a music festival together until 1 January 2011.
In February 2011 the lease on the Suburb L unit expired. The applicant moved into the respondent’s home at Suburb G.
In April 2011 the respondent and Mr Lapthorne sold the Suburb G home. Settlement occurred on 5 May 2011. The applicant contends that he completed significant work on the property to prepare it for sale. The respondent said that the applicant’s work on the property was limited. I shall refer to this again below.
After settlement of the sale of the Suburb G home, the parties temporarily moved into Suburb H for approximately one month.
In May 2011, the respondent and Mr Lapthorne entered into a binding financial agreement which brought finality to their financial relationship.
From 18 to 22 May 2011 the applicant visited his sister and friends in Tasmania.
Also in May 2011 the applicant’s belongings contained in numerous boxes were shipped from storage in the United Kingdom to Australia. This was paid for by the respondent.
On 26 May 2011, the respondent completed the purchase of the property at Suburb Q, known to the parties as “Property D”. The property was purchased for $4.825 million funded from the financial settlement between the respondent and Mr Lapthorne. The property was purchased with the intention of being used not only as a residence for the parties, but also to develop it as a business premises. The parties planned substantial renovation of the property.
On 31 May 2011 the parties moved into Property D and commenced work on its development. All work undertaken on Property D was paid for by the respondent. The applicant said that the respondent requested that he “project manage” the renovations. The respondent denied that this was the case, but rather, that Mr T, who had been employed as a builder for the property, was in charge of the project in that respect. I shall refer to this matter again below.
The applicant went skiing at P Town for three days from 5 to 8 July 2011.
In early 2011 F had been attending university in Canberra but she left university and moved into Property D in July 2011.
On 24 July 2011 the applicant travelled to the United Kingdom to visit his daughter. The respondent also travelled separately to Europe with F. The parties met and travelled in Europe and the United Kingdom together. F travelled to New York to visit her father. The parties returned to Sydney on 25 August 2011.
In late October 2011 the parties visited the applicant’s sister in Tasmania. They spent several days in North Queensland in late November 2011 and a few days at Town U just before Christmas 2011.
On 25 December 2011 the respondent and Mr Lapthorne became divorced.
Between 3 and 14 January 2012 the applicant and the respondent attended a course and a second course on 21 and 22 January 2012.
In late January 2012 the parties spent a week on holiday on the New South Wales North Coast.
The applicant attended a further course from 29 January to 4 February 2012. Then they spent the weekend at the New South Wales South Coast.
In late February 2012 building work commenced on the Property D project.
In April 2012 the applicant spent a week on holiday in Tasmania.
In April 2012 the parties attended a “pre-lodgement meeting”, preparatory to a development application, with the local Council about the parties’ plans to convert Property D into a business premises.
In June 2012 the respondent received notice from the Council that plans for Property D would be rejected.
In June 2012, Mr X and his associate, Mr Y, both chartered accountants for the respondent, arranged the necessary documentation for the respondent in effect to give the applicant 50 per cent of her shares in her company W Pty Limited. This share transfer occurred the following month. But upon Mr X being informed subsequently that W Pty Ltd was the trustee of the respondent’s self-managed superannuation fund, the respondent appointed a new trustee.
In June 2012 the parties spent a couple of days in Adelaide and later a couple of days in Melbourne.
In July 2012 the parties had a holiday overseas.
On 7 August 2012 the applicant left Sydney and travelled to Europe to visit his daughter. He became ill and admitted himself to a clinic in Europe on 10 August 2012.
In August 2012 the parties separated in circumstances to which I shall refer below.
On 23 October 2012 solicitors acting for the respondent wrote to the applicant to finalise separation arrangements between the parties.
By March 2013 the respondent had completed a revised version of the renovations to Property D.
On 22 August 2014 the applicant filed his Initiating Application commencing these proceedings.
In March 2015 the respondent sold D for $5.75 million which, taking account of the costs of renovation, represented a substantial loss. It had been on the market for approximately 12 months.
Credit
The Applicant
Mr Creese was reasonably responsive to answers during cross-examination. But not on all occasions. From time to time, he engaged with counsel for the respondent in what I regarded as semantic arguments. On a couple of occasions he suggested that counsel had not been sufficiently precise in her question and upon her asking a more precise question changed his answer.
And there was some criticism that the applicant was being evasive when he declined to nominate a date when he regarded the parties’ de facto relationship to have commenced. He responded that, in effect, this was an issue for the Court to determine. He is correct.
On a couple of occasions the applicant included in his responses extraneous material which appeared would be likely to serve his own case rather than being responsive to the question.
Having said this, generally I regard the applicant as a witness of the truth.
Mr V
Mr V gave his evidence by way of video link from the Townsville Registry of this Court.
Mr V was responsive in his answers to questions.
I regard him as a witness of the truth.
Mr LL
Mr LL conceded that he was not a person who could remember names and dates. He said that he relied on a text message to identify 28 January 2012 as being the time that he said he last visited Property D.
I accept his evidence that when he visited the applicant at Property D he saw workmen come and ask the applicant questions about what he wanted to be done.
I regard Mr LL as a truthful witness although I would place little weight on the time he said events occurred in the absence of other supportive evidence.
Ms TT
Parts of Ms TT’s affidavit were objected to and ruled as being inadmissible. On this basis Ms TT was not required for cross-examination. The remaining parts of her affidavit came into the evidence unchallenged.
The Respondent
Ms Lapthorne did not always demonstrate a good recollection of relevant events. On numerous occasions she was quite vague in her response to questions.
She had some difficulty in making concessions. From time to time she added information to her response which was not called for but which gave me the impression that she perceived such information would favour her case.
In my view the applicant demonstrated a much better recollection for details than the respondent. I have a considerably more favourable view about the reliability of his evidence than about that of the respondent. Where their evidence is in conflict, generally I prefer that of the applicant.
Ms UU
Ms UU is the professional stylist who assisted in the preparation of the Suburb G home for sale.
Ms UU was cross-examined by telephone from the United Kingdom.
She was somewhat unfocused in her answers but to be fair this might well have been because of the time difference. It was approximately 5.30 am in the United Kingdom at the time.
Ms UU appeared to me to have some difficulty making concessions although not entirely. My impression overall was that she was somewhat partisan towards the respondent and somewhat unbalanced against the applicant.
I have some reservations about the accuracy of her evidence.
Mr Z
Mr Z is the real estate agent who assisted the respondent and her husband in the sale of their properties at Suburb G and Suburb H by preparing marketing videos for each of the properties. He was also the real estate agent who acted for the vendor in selling Property D to the respondent.
Mr Z gave responsive answers to questions and demonstrated a good recollection for relevant matters. Generally I accept his evidence although I do not accept the opinion and speculation in the last paragraph of his affidavit.
Mr AA
Mr AA is a professional gardener who was employed by the respondent to undertake gardening work and maintenance at Property D. He gave responsive answers to questions and generally had a reasonable recollection of relevant events.
I regard him as a witness of the truth.
Ms BB
Ms BB is a long-standing friend of the respondent.
I accept her evidence.
Ms CC
Ms CC has been a close friend of the respondent for 35 years. Ms CC was reasonably responsive in her answers. I accept most of her evidence, but not the opinion which she expressed late in her affidavit about when she thought the applicant moved into the Suburb G home.
Ms DD
Ms DD is also a friend of the respondent.
I also accept her evidence apart from the opinion she expressed to the effect that the applicant did not live with the respondent in the Suburb G home in 2010.
Mr E
As indicated above Mr E is the respondent’s son. Mr E was responsive to questions.
Generally I accept Mr E’s evidence although I do not accept his various expressions of opinion.
Mr EE Lapthorne
Mr EE Lapthorne was an impressive witness who gave responsive answers to questions.
I do not hesitate to accept him as a witness of the truth.
Mr T
Mr T is the licensed builder who was in charge of the building works at Property D.
Mr T gave his evidence in a careful, measured way. He took time to consider each question and impressed me as taking care to provide a truthful answer. He made concessions readily.
I regard his affidavit as somewhat lacking in objectivity and limited in terms of the actual work completed at Property D and the involvement of the applicant therein. But to Mr T’s credit, this lack of balance became corrected during his cross-examination.
I do not hesitate to regard his evidence as being truthful.
Mr FF
Mr FF is the real estate agent who sold the Suburb G property. He gave his evidence in a co-operative, responsive and matter of fact way.
I regard him as a truthful witness.
Mr X
Mr X is a retired accountant. He had been the accountant for the respondent and her former husband over many years. He was responsive and cooperative in his answers.
I regard him as a witness of the truth.
Mr GG
Mr GG is a tiler who was contracted to undertake tiling as part of the Property D renovation project. He did a lot of work on the project, both before and after the parties separated.
He answered questions in a careful, measured way.
I regard him as a reliable witness.
The applicable law
Requirements for a property order
Section 90SB provides, in effect, that a court may make an order for property settlement after the breakdown of a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i)the applicant for the property order made substantial contributions as referred to in s 90SM(4)(a), (b) or (c); and
(ii)a failure to make the property order would result in a serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Subsection 90RD(1) of the Act provides, in effect, that if an application is made for an order for property settlement after the breakdown of a de facto relationship the Court may declare that a de facto relationship existed, or never existed, between the relevant parties.
In the present proceedings, there is no child of the parties’ relationship, nor has the relationship been registered under State or Territory law. Accordingly, in order to establish that the Court has jurisdiction to make a property order in his favour, it is incumbent on the applicant to establish either that he and the respondent were in a de facto relationship for a period of at least two years, or that he made substantial contributions and it would result in serious injustice to him for the Court not to make a property order.
Meaning of “de facto relationship”
Section 4(1) of the Act provides that “de facto relationship” has the meaning given by s 4AA of the Act.
Section 4AA of the Act provides relevantly as follows:
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family …; 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. [emphasis added]
Paragraph (c) has effect subject to subsection (5).
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
The applicant has the onus of establishing that a de facto relationship existed: Ricci v Jones [2011] FamCAFC 222 at [23]. The onus of proof is on the balance of probabilities: see s 140(1) of the Evidence Act 1995 (Cth).
The decision of Murphy J in Jonah & White (2011) 45 Fam LR 460 provides assistance about what is required in this regard. At page 466 his Honour said as follows:
39.In my view, the making of a declaration of the type contemplated by s 90RD of the Act does not involve the exercise of a judicial discretion. The question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations) which founds the jurisdiction to make orders of the type contemplated by that part of the Act. The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342; [2000] HCA 5 at [28] the High Court held:
[28] The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.
Murphy J went on to examine various authorities which dealt with the concept of “living together” and ultimately arrived at what he regarded as the essence of a de facto relationship as defined in Part VIIIAB of the Act holding as follows at page 471:
60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, “living together” as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
61.Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as “an affair” might in fact be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a “de facto relationship”.
…
65.It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
66.The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union — the merger of two individual lives into life as a couple — that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
Accordingly the question of whether parties were in a de facto relationship must be considered on a case by case basis and without circumscribing any particular factor. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Discussion
There is no issue that the parties had a relationship as a couple living together on a genuine domestic basis, that is, a de facto relationship as defined by s 4AA of the Act, from May 2011 when they moved into Property D, to the time when they separated and the relationship came to an end.
In order to determine whether such a de facto relationship existed for a period of at least two years and/or whether the applicant had made substantial contributions as defined I propose first to consider at what point in time the parties separated.
Separation
There was an issue about the date when the parties separated.
As indicated above, the applicant had left Sydney on 7 August 2012 and travelled to Europe. On 10 August 2012 he admitted himself into a clinic because he had become very ill.
There was an email message to the applicant sent by the respondent on 17 August 2012 in which she informed him that he was spending too much of her money and that she had placed a stop on his credit card. The email also complained about his “growing level of abuse”.
On 20 August 2012 the respondent sent an email message to the applicant which arrived apparently when he was in the clinic in Europe endeavouring to recover from an injury to his foot. In this email the respondent asked “Where would you like me send (sic) your belongings?”
The applicant asserted that he did not understand from this email message that the respondent was informing him that she had formed the intention to separate from him. He said he regarded what the respondent said in the email as not “in any way an indication of her desire to separate, merely a normal behaviour of the Respondent following an argument”. He said that he was undergoing intravenous drug therapy and was under the influence of strong pain-relieving, anti-inflammatory and antibiotic pharmaceuticals.
The applicant said that his first perception that the relationship might really be at an end was around the end of August 2012 after he received an email from mutual friends on 23 August 2012.
This email message was from Mr HH and Mr II dated 23 August 2012. Included in the email was the following:
[Ms Lapthorne] is very shaken and her request to us is to help her get through the separation with you in a calm and uncomplicated manner.
The email asked the applicant to communicate directly with the authors rather than directly with the respondent. It also informed the applicant that arrangements had been made to professionally pack and remove his personal effects from Property D and sought directions for a delivery address.
In my view, if the applicant was in any doubt that the respondent had formed an intention to separate from him following his receipt of her email of 20 August 2012 and to communicate her intention to him, there could have been no doubt about this upon the applicant’s receipt of the 23 August 2012 email from Messrs HH and II.
In any event, the applicant subsequently prepared a draft “Financial Agreement Pursuant to Section 90 UD of the Family Law Act” and in the Background included at Recital G the following:
G. The parties separated on 21 August 2012 at which time their relationship irretrievably broke down and the parties agree there is no chance of their relationship resuming or cohabitation recommencing.
It would appear that the applicant accepts this because he said at [7] of his affidavit “[t]he relationship ended in August 2012.”
In these circumstances, in my view, the relationship between the parties had broken down and they separated not later than 23 August 2012.
The period from April 2010 to May 2011
As indicated above, the respondent concedes that the parties were living in a de facto relationship as defined from May 2011 when they moved into Property D until they separated in late August 2012, a period of slightly more than 15 months. To establish that such a relationship existed for at least two years as required, it would be necessary for the applicant to satisfy the Court that the parties had such a relationship for at least an additional period of more than nine months. Accordingly it is necessary to examine the nature of their relationship over the period from April 2010 when the applicant moved to Sydney to live, up to May 2011.
The relevant matters referred to in s 4AA(2) are as follows.
The duration of the relationship
There is no question that the parties commenced their sexual relationship on 28 January 2010 and continued to have such a relationship until the applicant left Property D on 7 August 2012.
The nature and extent of the common residence
The parties did not have a common residence until February 2011 when the Suburb L lease expired and the applicant moved into the Suburb G home. Up to this time they conducted their relationship partly at the Suburb G home, the Suburb L apartment, Suburb H and the respondent’s business premises.
The parties were at issue about how much time the applicant spent at the Suburb G home. The applicant asserted that he was present there for a considerable amount of time which included about 50 per cent of the available nights. The respondent denied this.
It is common ground that from the inception of their relationship until late 2010/early 2011 they had to be very discreet about the applicant being present at the Suburb G home. This was because F had become very distressed about the fact that her parents had separated.
In this regard, in his affidavit at the following paragraphs the applicant said:
[27]The Respondent and I had initially considered living together from early in our relationship. However, because of the ‘[F] factor’, this was not possible. As a result, the Respondent suggested finding a small house or flat that I could reside in until such time as [F] came to terms with our relationship…
[22]I recall a conversation with the Respondent in late January or early February 2010 after she had told [F] about her separation from [F’s] father, [Mr EE]. Unlike the Respondent’s son, [F] was struggling emotionally with the sudden and unexpected separation of her parents during her last year of high school. The Respondent said to me “when I told [F] about you and how we felt about each other [F] said “Mum, I don’t want to know!”, or words to that effect.
[23][F] was not coping well with the separation of her parents and it was placing additional stress on her in her final year of school. She began to display behaviours the Respondent found concerning and the Respondent was very keen to minimise any further upset to [F]. As a result of all of the concerns regarding the potential for escalation of [F’s] deteriorating emotional health, the Respondent and I agreed that, during the initial period of my move to Sydney, I would not stay openly with her at the family home at [JJ Street, Suburb G] (“the [Suburb G] House”). (emphasis added)
I accept this evidence
The lease on the Suburb L apartment commenced at the end of March or early April 2010. It was for a six months period. The applicant moved into the apartment at this time.
The Suburb L unit was the applicant’s base and his residence. It was envisaged as a temporary arrangement until such time as F could get to know the applicant and be more comfortable with the parties’ relationship. I accept that it was not possible for the parties to reside in a common residence certainly for most of 2010 for the above reasons. It would appear that F developed an eating disorder.
The respondent said that she visited the Suburb L apartment “around once or twice a fortnight”. She said that she never stayed there overnight. This latter assertion would appear to me to be likely to be true because the respondent was trying to keep the true extent of her relationship with the applicant from F’s knowledge. She was also very concerned to be at her Suburb G home to support F as much as possible during her final school year. In these circumstances, it is plausible that the respondent would need to be at home at Suburb G with F, not at Suburb L, during the night time.
The applicant said that from his first days in Sydney he and the respondent spent as much time together as they could possibly “squeeze in” but this was always subject to F’s emotional state.
He said that during the course of the first couple of months he would go to the respondent’s workplace or to the Suburb G home regularly during the day. He said this allowed the parties to spend significant amounts of time together away from her children and whilst F was at school. He also said that the respondent’s son Mr E was not working but usually slept in until early afternoon.
It is impossible to make a finding about the precise amount of time the applicant spent at the Suburb G home during the period between April 2010 and February 2011, when he moved into the home. On the one hand, as indicated above, he said that he was spending a considerable amount of time there which included about 50 per cent of the available nights. He said that he “frequently” made breakfast for the respondent at the Suburb G home and that he prepared many meals there which he would put in the fridge and which would be later enjoyed by the respondent and F. He said that he moved in for a week from 9 September 2010 but because of the deterioration in F’s behaviour, in effect, moved out and put in place what he described as “the 4.00 pm regime”. I shall refer to this below.
The applicant’s longstanding friend, Mr V, visited the applicant in Sydney between 11 and 13 May 2010. He stayed overnight at the Suburb L apartment with the applicant. He met the respondent on 11 May 2010 and attended at her home the following day where he had lunch with the applicant and her. Mr V said that when he attended the respondent’s home he noticed that the applicant was very familiar with the home and its layout, and that the applicant had his own keys.
Mr LL, also a friend of the applicant, said that he visited the parties in late November or the first week of December 2010 at the Suburb G home. He said that the applicant cooked breakfast for them there, that he also had lunch there and that they were joined by F for lunch.
On the other hand, the respondent said that during the time when the applicant was living at the Suburb L apartment between April 2010 and February 2011, most of the time which she spent with him was at her business premises at Suburb KK.
The respondent sent the applicant an email message dated 11 April 2010 in which she indicated she was having difficulty managing her various responsibilities to her family, her clients, her friends and to him. She said that she was not committing to him, that their happiness was intertwined and that her happiness and needs would have to “play second fiddle at least until the end of the year”. She suggested that if “this (was) all too hard” then he would have to do what was best for him. I shall refer to this email message again below.
The applicant said that he did not “formally” meet F until 30 June 2010. He said that he and the respondent had gone to the considerable trouble of “hiding the extent of (their) relationship from [F]” for several months. He also said that the respondent suggested to him that when he returned from visiting his daughter in the United Kingdom (in August/September) he might as well move in “properly”. The respondent denied this.
He also said that upon his return (in early September) from visiting his daughter he did in fact move the majority of his clothes and personal effects into the Suburb G home. But his possessions were few, limited to the contents of a small suitcase and a few bags.
This was put in issue by the respondent and various of her witnesses as referred to below. But I accept the applicant’s assertions over the respondent’s evidence and that of her witnesses, and find that it is more probable than not that at least some of the applicant’s clothing was present in the Suburb G home from time to time. He hardly had any belongings as was conceded by the respondent. Assuming that he did move some belongings into Suburb G I am not prepared to find it likely that they remained there in any significant measure in light of the evidence by the respondent’s witnesses otherwise.
The applicant said that F was “very possessive of her mother” and that the parties implemented what he described as the “4pm plan”. He said that this involved him in endeavouring to remain away from the Suburb G home between 4pm and the time F retired to bed so that F could have that time to spend with her mother.
In approximately February 2010 Mr Lapthorne and the respondent decided to have a trial separation and he commenced mostly to use Suburb H when he was not travelling. He did not move out of the Suburb G home entirely in the sense that he left his belongings and the majority of his clothing in the wardrobes at that home.
In June 2010 Mr Lapthorne and the respondent attempted a reconciliation and he lived solely at Suburb G for approximately one week. But then he ceased residing at Suburb G and he resumed his previous arrangement. He and the respondent were concerned to cause the minimum disruption to F in her Higher School Certificate (“HSC”) year so he attended at the Suburb G home approximately once a week for a family dinner, as he had done since February 2010.
Although Mr Lapthorne and the respondent decided in July 2010 that it would be better if he did not live at Suburb G he continued to visit regularly and to speak with the respondent at least once a week. But in December 2010 they decided they would not be able to reconcile and, he decided to relocate part time to the US and took steps to purchase an apartment there. At that time he removed his belongings from the Suburb G home.
Mr Lapthorne spent four periods of six weeks overseas during 2010. But he spoke with F almost every day. He said that in none of those conversations was he ever made aware that a person she had never met was living in the room next door (to her bedroom) with her mother while she was doing the HSC. Nor did she ever say that her mother was not present at the Suburb G home to prepare her meals or to make sure that she was getting all the support she needed for her HSC.
Throughout 2010 when Mr Lapthorne attended at Suburb G he did not see any sign of the applicant’s belongings there. He said that the respondent told him during many of their conversations during 2010 that she would not allow the applicant to be at the home in any capacity which might upset or disturb F, including staying at the home overnight. He said that at no time (during that year) did any member of his family suggest that the applicant had moved into, or was spending any significant amount of time at the Suburb G home.
Mr Lapthorne did concede, however, that if the applicant had clothing in a drawer somewhere he possibly would not have known about that and that F possibly might not have known about it either. He said that the possibility of the applicant living at the Suburb G home in plain sight with their daughter F doing her HSC in her anxious state was an absurdity and was impossible.
Mr Z, real estate agent, visited the Suburb G home on 11, 18 and 25 November 2010. This was for the purpose of preparing a video to assist in the marketing of the property for sale. On each occasion he was on the premises for several hours and went through the house in thorough detail. He said that throughout the house were belongings of the respondent and Mr Lapthorne. He did not see any (male) clothes which were not those of Mr Lapthorne or a suitcase in the bedroom. It appeared to him as though Mr Lapthorne had not moved out and certainly not that someone else had moved in. He saw the applicant once or twice at the Suburb G home but it appeared to him that he was nothing more than a friend of the respondent.
Ms UU, the professional stylist engaged by the respondent to advise and assist preparation of the Suburb G home for sale attended the home on many occasions. She did not recall seeing any belongings of the applicant at the home but she recalled seeing that Mr Lapthorne’s clothes were still in the wardrobe.
Ms BB, a longstanding friend of the respondent, was in the habit of running with the respondent and their dogs three mornings a week throughout 2010 and 2011. Commencement of this activity would alternate between their respective homes in Suburb G. On the occasions when she commenced from the respondent’s home she would go around to the kitchen/main living area at the rear of the house. After their runs she would often have a cup of tea at the respondent’s home. At no time on these occasions did she see the applicant.
In late 2010 when Ms BB visited the Suburb G home she would often chat to F and less frequently to Mr E. There was no suggestion from them that the applicant had been spending time at the home and certainly not that he had moved in.
Ms BB recalled that in late January 2011 the respondent informed her that she and Mr Lapthorne had separated and that the applicant might be moving into Suburb G.
Ms CC, a long time close friend of the respondent said that throughout 2010 it was evident to her that the respondent was focussed almost entirely on ensuring that F was not disturbed during her HSC year and that the respondent’s time was spent predominantly with her children. She said that when she visited the respondent at the Suburb G home she did not see the applicant there until very late in 2010. She said that from about February 2011 when she visited there, the applicant was there more whereas before then she would see him there infrequently.
Ms DD, also a longstanding friend of the respondent, lived adjacent to the Suburb G home and saw the respondent at least once a week including regularly at the Suburb G home. She said that she only met the applicant once at the Suburb G home and this was in late November 2010.
Mr E lived at the Suburb G home with the respondent and his sister F including during the period from commencement of the parties’ relationship until early November 2010. Mr E said that at no time while he lived at the Suburb G home did the applicant reside there, or indeed visit regularly. His understanding was that the applicant lived at Suburb L. He said that the applicant “may have begun to stay regularly at Suburb G from around February 2011” from his observations.
This evidence of Mr E is inconsistent with the numerous text messages between the applicant and the respondent from which one would infer that the applicant was often at the Suburb G home. This is because the text messages refer to the fact that considerable work was being undertaken by the applicant to the Suburb G home and its grounds in September 2010 to mid-October 2010 and in November 2010, including participation in some of the work performed by Mr E.
Mr FF is the real estate agent who acted for the respondent and Mr Lapthorne on the sale of their Suburb G home. He visited the home on many occasions and agreed with the applicant that he saw him there on several occasions. He said in his affidavit that he did not see any evidence of the applicant living in the home prior to February 2011. But he conceded during cross-examination that he would not have known whether the applicant was living there or not.
Mr MM is a friend of the respondent. He stayed at the Suburb G home with his wife and their children in 2010 and visited there at other times. He recalled seeing the applicant and Mr E helping a painter to paint some walls near the tennis court and some railing. He said that this was “minor renovations”.
Mr X, the respondent’s accountant, said that on or about 11 January 2011 he visited the Suburb G home and met with both the respondent and Mr Lapthorne. He said that at that time they had agreed to separate and that Mr Lapthorne was in the process of relocating to Suburb H and buying in New York. He said that on that occasion he had no reason to believe that the applicant was living in the Suburb G home.
What this evidence by the respondent’s witnesses tends to suggest is that it is likely that the applicant visited the Suburb G home less frequently than was asserted by him. But it is clear that the parties were conducting a clandestine relationship at the Suburb G home, clandestine at least in relation to F, because each of them has said this. The applicant referred to numerous email and text messages to this effect, including the following text message by the respondent to the applicant on 19 May 2010:
Hey ma honey just home…Y gotta get some sleep [Mr Creese] it’s starting to take it’s (sic) toll on both of us but walking in my front door contemplating a night of solitude in a cold bed was not the most snuggly of thoughts… All a bit difficult now spending just one night apart… Not sure if all our sneaky nights together have put us in very good stead for the next 6 months!
And a text message from the respondent to the applicant on 12 July 2010 at 4:08 pm:
…[F] is going to the sauna soon so you can sneAk in if you wish ta…
On the respondent’s evidence “all (those) sneaky nights together” were not at Suburb L so the reference must have been to Suburb G.
And the applicant did say that Mr E was in the habit of sleeping through the mornings until early afternoon. So if the applicant had been at Suburb G during the morning Mr E would not necessarily have known about this.
The respondent was also in the habit of concealing the presence of the applicant at Suburb G which is clear from the following paragraphs of the applicant’s affidavit:
36.Eventually, on or around the 30 June 2010, I formally met [F], the Respondent’s daughter, whilst I was at the [Suburb G] House during the day. The Respondent and I were at the house together when [F] came home unexpectedly early. The Respondent asked me to step out onto the patio whilst she spoke to [F]. This was not an uncommon scenario, since I was used to the Respondent being at the beck and call of her daughter and undertaking elaborate subterfuge to avoid [F’s] suspicions if I was at the [Suburb G] home. Shown below and annexed hereto and marked with the letter “B” is an SMS message relating to this:
park down side of driveway as [F] in coming home shortly to pick up her jacket. She’ll only ve I’m and out though I ll leAve the gate open for you
SMS from Respondent to me, 26/06/2010 6:20 PM
37.I ducked out onto the patio, but the door was open and after some chat between [F] and her mother, I heard [F] say, “I know he’s here, Mum! I might as well meet him now” or words to that effect. Shortly after this, the Respondent walked out onto the patio, and said that [F] would like to meet me. [F] and I then met ‘officially’ in the Respondent’s kitchen that afternoon. Apparently, I met with [F’s] approval…
(as per original)
Doing the best I can in difficult circumstances, I am satisfied that it is more probable than not that the applicant was present at the Suburb G home regularly and more frequently than the evidence of the respondent’s witnesses would tend to suggest, certainly more frequently than the respondent was prepared to concede during the trial, but probably less than the “around fifty per cent of the evenings” as asserted by him. This is because both parties have indicated that there was a level of secrecy about the way they were conducting their relationship, certainly so far as conducting it in front of F and, apparently some of the respondent’s witnesses, was concerned.
There is no question, however, that the applicant was not living at the Suburb G home prior to February 2011, with the likely exception that he probably spent approximately a week there in early September 2010. I prefer his evidence about the time spent by him at the Suburb G home between April 2010 and February 2011 to that of the respondent and her witnesses.
Accordingly, as indicated above, although I am satisfied that the applicant was frequently a visitor to the Suburb G home and also spent many nights there during the relevant period, he was not resident there until February 2011. And the parties did not have a common residence until that time.
Whether a sexual relationship exists
As indicated above, the parties commenced a sexual relationship on 28 January 2010 and this continued throughout their relationship until the applicant left Property D on 7 August 2012.
The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
The respondent financially supported the applicant almost entirely, subject to his receipt of the Newstart Allowance or its equivalent until June 2010, from his arrival in Sydney in April 2010 until June 2010 and thereafter entirely until the parties separated in late August 2012.
The respondent involved the applicant in her financial affairs and was very trusting and candid in relation to such financial affairs virtually from the outset of their relationship. He said that she was discussing her financial circumstances with him even before he moved to Sydney including the fact that she anticipated a financial settlement with Mr Lapthorne from the sale of their Suburb G home.
For example, the respondent’s email message to the applicant early in their relationship of 23 February 2010 included the following:
… perhaps we need to pull our heads in a bit and stop being so damn excited about ways we could reap financial rewards …. monetarily we only have to worry (if at all) about getting through this year, then we’ll be secure.
After the applicant moved into the Suburb L apartment, the respondent arranged for him to have a debit card and this enabled him to access her Westpac Banking Corporation account and withdraw cash from ATM facilities. She appears to have been comfortable about him operating her account. For example, on 21 April 2010, three weeks after he had moved to the Suburb L apartment, she sent him the following text message:
[Mr Creese] what s my credit card nber need for [Mr E] to pay bills and 3 digits.
On 27 September 2010 the applicant sent the respondent the following text message:
Want to leave me your visa in the pot plant? …
And the same day the respondent sent the following text message to the applicant:
When you get a chance honey can you text me with my new visa number for tms lol
The respondent complains about the applicant’s level of spending her money and annexes details of relevant bank statements. But the difficulty is that she authorised him to operate on her accounts which he then did. And he used the accounts for what might generally be described as living expenses not only in relation to himself but also in relation to the respondent, her children and some expenditure on maintaining or improving the Suburb G property. This is clear from the emails and text messages. And the expenditure included payment for at least some of the shopping for the respondent and at least some of the rental payments for the Suburb L apartment.
For example, on 30 September 2010 the following text message was sent by the applicant to the respondent:
NAB baby? … And do you need me to pick you up cash on my travels or anything else you can think of? …
There was an issue about the circumstances in which the applicant obtained electronic access to the respondent’s NAB account in early October 2010. The applicant said that the respondent asked for his assistance to manage her accounts and gave him full electronic access to a NAB account which he understood to be an account of the respondent and her husband. There was an email message dated 4 October 2010 from the respondent to the applicant which contained an email message dated 7 May 2010 from the respondent’s accountant, Mr X to her which had been forwarded to the respondent. Mr X’s email message contained the codes, bank details and instructions to enable electronic access to the NAB account. The applicant said the respondent forwarded this information to him. The respondent denied this and said that the applicant had the passwords and means of accessing her emails and did this, then forwarded Mr X’s email message to himself.
I am unable to resolve this issue. But, in any event, it matters little for two reasons. Firstly, the respondent said that the applicant only operated on the account “a couple of times – it was innocuous”, that the money was used to purchase groceries and that she arranged for the applicant’s access to the account to be stopped approximately one and a half months later. Secondly, there is ample evidence before the Court to demonstrate that the respondent made her Westpac facilities available to the applicant and subsequently a NAB credit card facility.
The respondent said that it was always her intention that the rent paid by her for the Suburb L apartment would be repaid to her by the applicant. She said that she had an agreement with the applicant to this effect. The applicant denied this.
The respondent said that the absence of a written agreement between her and the applicant about this was a matter of some concern to her accountant, Mr X. She said that this became the subject of discussion between her and Mr X in approximately September 2010. She said that Mr X advised her that he thought it unwise not to formalise the said loan.
I accept that this discussion between the respondent and Mr X is likely to have occurred. After all he was the accountant not only for the respondent but also for her husband, Mr Lapthorne. Mr X said that he had an in depth knowledge of the financial affairs of the respondent and Mr Lapthorne. So one would expect Mr X, as the respondent’s accountant, to be wondering why the respondent would be paying rent on an apartment for the applicant, and to be asking questions about this.
I am not persuaded that the respondent required the applicant to repay the rent to her or that she seriously sought such from the applicant. Such an assertion does not sit comfortably with the fact that she was the moving party in him leaving his life in Tasmania to endeavour to pursue a relationship with her in Sydney. And it does not sit comfortably with the email and text correspondence between the parties to the effect that she had fallen in love with the applicant and was most desirous of doing what she could to encourage him to move to Sydney. I think it more probable than not that the respondent needed to give Mr X an explanation for her paying rent on the Suburb L apartment for the applicant. As indicated above, it is clear that during the relevant time the respondent had not revealed to Mr X the true nature of her relationship with the applicant, merely referring to him as a business associate. I prefer the applicant’s denial over the respondent’s assertion that there was an agreement that the rent would be repaid by the applicant to the respondent.
It was common ground that the applicant had access to the respondent’s Westpac bank account from early in 2010 and later that year to her NAB account also.
The ownership, use and acquisition of their property
Apart from the gift by the respondent to the applicant of shares in W Pty Ltd, the parties did not have any shared property. They did not acquire any property together.
The respondent agreed that the applicant was “heavily involved in” the acquisition of Property D. This included involvement with the conveyancing professionals and also dealing with Mr Z, the agent who sold the Property D to the respondent. In my view, this is relevant to the contentious period immediately prior to the parties commencing their residence in Property D.
As indicated below, the respondent purchased a motor vehicle, a motor cycle, a computer and other items of personalty for the applicant.
The degree of mutual commitment to a shared life
I accept that both parties were committed to a shared life. But they are in issue about when this commitment commenced. The respondent conceded that they had a commitment to a shared life but only from the time they moved into Property D. The applicant’s case was that they really had such a commitment from very early in their relationship.
On the one hand, the applicant left his life in Tasmania and came to Sydney at the respondent’s request to develop the relationship he had commenced with her. Obviously this was a significant commitment. On the other hand, the respondent also made a major commitment in renting the Suburb L apartment, financially supporting the respondent over the whole period of their relationship and rearranging her marriage and her parental and domestic responsibilities to accommodate the respondent. Obviously this was not easy and each party had to make major changes to their lives.
From the time the applicant arrived to live in Sydney in April 2010 to August 2012 when the parties separated, they were very supportive of one another. It was also the case that the respondent was supportive of the applicant’s relationship with his daughter in that the respondent paid for the applicant to travel to the UK each year during their relationship to visit his daughter.
The applicant was also supportive of the relationships between the respondent and her children. He appears to have been able to get on well with the respondent’s son Mr E from the outset. As indicated above, things were somewhat difficult for F and the applicant did not meet her until 30 June 2010. It would appear that from late 2010 the applicant and F got on quite well and that the applicant was emotionally and psychologically supportive of F. In my view, these matters are reflective of a commitment to a shared life.
The parties had a strong common interest in establishing a health centre or retreat business together and this was evident during the entirety of their relationship. For example, the respondent sent an email message on 21 May 2010 to Ms NN of the Harbour Trust concerning possible business premises at Suburb KK. She referred to the applicant as her “partner” and described the applicant and herself as “[Health] Practitioners with a vision of establishing a complementary health centre …”. The parties spent a great deal of their time discussing this and planning for this. They attended professional presentations and conferences and investigated possible opportunities in this direction. Ms TT said that when the parties visited her in Tasmania in October 2010 they spoke about entering a business partnership of complimentary health practice with the goal of opening a health retreat.
From approximately late September 2010, the applicant assisted the respondent in undertaking work to the Suburb G home and its grounds with a view to improving its presentation for the purpose of selling the property. In my view, this was reflective of the applicant’s commitment to a shared life as I shall refer to again below.
True it is that on occasion things became difficult for the respondent to manage and she suggested to the applicant that she felt unable to commit to him because of all her responsibilities, particularly to F. On those occasions she offered for him to leave the relationship and/or do whatever he wished.
One such occasion was within a couple of weeks of the applicant’s arrival in Sydney and is reflected in the email message by the respondent to him dated 11 April 2010 which included the following:
Don’t know how this is going to pan out but just going to run with my thoughts…..
I’m feeling …. Don’t really know what I’m feeling actually just numb I guess and pretty sad – this is such an unfathomable scenario, I seem to be messing with so many people’s emotions on such a profound level I just can’t keep the ball rolling in a straight line - I deviate one way and it impacts horribly on someone I love – from you to my mother, [Mr EE], [F], [Mr E] and even [Ms M] (who’s sent another email asking when I’m going to call, cause I promised I would), I’ve not been there for my clients wholeheartedly, haven’t even spoken to a couple of friends I’d usually catch up with on a regular basis and then there’s my dogs.
…
I’m not committing to you [Mr Creese], and I know how much that hurts you, it (sic) but it’s because your happiness and mine are very much intertwined and my happiness, my needs and my ultimate joy in a relationship has to play second fiddle at least until the end of the year. It’s seriously just not fair to cause such disarray to the lives of others at the moment, and I know it seems ridiculous that I’d factor so strongly in the psyche of those around me but I pulled out for a bit [Mr Creese] and the deluge started. I think that’s you texting me so I’ll leave it here for now. Just don’t really know what to do, but seriously if this is all too hard well please you have to do what’s best for you, your sanity and sense of self.
Loving you [Mr Creese]
[Ms Lapthorne]
There was a text message in a similar vein from the respondent to the applicant on 17 June 2010, relevant parts of which were:
… Maybe you should take a break from me and all that that entails for a few days cause I know I have a hell of a lot of accompanying baggage … It’s normality for me [Mr Creese] but I can understand if it’s too overwhelming and draining for you and it ain’t gonna change buddy until next year. maybe go hang out with [Mr OO] on his island or go to tassy and come back Monday evening or Tuesday morning … If you feel the needto stay away longer that’s seriously totally cool too … Please have good long think about it I’m really getting worried about what this is doing to you.
Yet notwithstanding these expressions of uncertainty, the relationship continued and the parties continued to support one another.
In all these circumstances, in my view, the parties had an ongoing, mutual commitment to a shared life.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship was not so registered.
The care and support of children
There are no children of the relationship.
The reputation and public aspects of the relationship
There were some limits on the extent to which the parties conducted their relationship publicly.
On the one hand, the applicant said that the parties conducted their relationship in public and that friends and relatives understood that they were a couple. His friends, Messrs V and PP referred to above were well aware of the nature of the parties’ relationship. The applicant said that during most of 2010 and for the subsequent period of the relationship the respondent introduced him to her friends and associates as her “partner”. Ms TT said that the applicant introduced the respondent to herself and friends at a Christmas party in Tasmania as his “partner”. But I am satisfied that this was not always the case as will be seen below.
It is also the case, as indicated above, that the respondent informed her sister in law, Ms M, and her husband, Mr Lapthorne, within weeks of meeting the applicant and prior to it occurring, that she would very soon be commencing a sexual relationship with the applicant. Within days she had informed her children about her affection for the applicant and her separation from their father.
Having said this, despite the respondent’s enthusiasm for her new relationship, she was somewhat circumspect with the friends and business associates who were her witnesses in these proceedings, particularly during the first half of 2010.
Mr X, the respondent’s former accountant, said that he first met the applicant in September 2010. This was at the respondent’s business premises. He said that the respondent introduced the applicant as “the guy I mentioned from Tasmania, who is helping me with [the business]”. He said that at no time on that occasion or prior thereto was there any suggestion that the applicant was other than a business associate or consultant employed by the business.
Mr X was not aware that the applicant and the respondent were in a personal relationship until he visited the respondent at Property D in May 2011 and the respondent pointed out what she referred to as “our bedroom”.
Ms DD, like the respondent, is a health professional. She said that the respondent first mentioned the applicant to her in around April 2010. Ms DD said that the respondent informed her that she had met the applicant at a retreat, that he had all the right qualifications and should be able to add some other services to her practice. Ms DD first met the applicant in the second half of 2010.
Ms DD said that she became aware that the respondent “had some feelings” for the applicant in early November 2010. At that time they had a conversation during which the respondent said that there was a mutual attraction between her and the applicant but she was not “rushing into something” because she would get F through her HSC first, then see what happens.
Ms CC, a close friend of the respondent, said that not until February 2011 did the respondent begin to acknowledge that she was in any form of serious personal relationship with the applicant. She said that the first time that the respondent had mentioned the applicant to her was in early May 2010 and this conversation was “vague” and “more around a business relationship”- that the parties were interested in looking at setting up a business.
On 6 August 2010, the applicant signed a declaration on a form apparently required by Centrelink to enable payment to the applicant of the Newstart Allowance for the period from 1 April 2010 to 9 June 2010. There were numerous places on the form which required him to declare whether he was living in a de facto relationship or had commenced living with someone as their partner. The applicant did not so declare.
It was submitted on behalf of the respondent that the declaration by the applicant is significant for the following reasons. Firstly, the applicant himself was declaring the nature of his relationship with the respondent. Secondly, it is consistent with the parties not living in a de facto relationship at the time and the applicant did not suggest to the respondent during cross-examination that they were in a de facto relationship at or prior to this time. Thirdly, it reflects poorly on the applicant’s credit.
I accept that this reflects somewhat poorly on the applicant’s credit. He endeavoured to explain this declaration by saying that he understood that Centrelink applied a different definition of “de facto relationship” from that in the Act. Yet s 4 of the Social Security Act 1991 (Cth) is similar to s 4AA of the Act.
In Sinclair & Whittaker (2013) FLC 93-551 the Full Court noted that the trial judge, Loughnan J, dealt with representations made by a respondent to lending institutions and to government bodies where she had stated she was “single” when an available option was “de facto”. The Full Court referred at 87,391 to his Honour as having said as follows:
It is important to note that even if the representations of a party during the relationship or since were false and deliberately so, and even if that was done for the purposes of gaining a monetary or other advantage, the characterisation of the relationship remains a matter for me. The importance of a person not profiting from an earlier misrepresentation does not detract from the Court’s obligation to identify the true position, where that is practicable. In this case the issue is whether the parties’ relationship in fact meets the statutory definition. (Reference omitted)
As was submitted on behalf of the respondent, the fact that the applicant did not declare himself to be living in a de facto relationship when he had an opportunity to do so is consistent with him not to have regarded himself at the time as so living. Nevertheless, I place limited weight on this.
What does emerge from the evidence, particularly the affidavits by the respondent’s witnesses, is that during the period there was limitation on the extent to which the parties, particularly the respondent, presented themselves publicly as being engaged in a close personal relationship apparently brought about because of what they perceived to be a need to be discreet because of F.
Conclusion about de facto relationship
The duration of the relationship between the parties was approximately 2 years, 7 months, from its commencement in January 2010 to its conclusion in August 2012.
The parties had a sexual relationship from 28 January 2010 until their separation in August 2012.
Working backwards in time, as I have said, there is no issue that the parties were living in a de facto relationship as defined, between May 2011 and separation in August 2012.
It is common ground that the applicant commenced to reside at the Suburb G home with the respondent in February 2011 upon the expiration of the Suburb L lease. In my view, at that point in time, that is, in February 2011, there were sufficient indicia of a de facto relationship for the Court to be confident of its existence at that time. These included a sexual relationship, a common residence, financial dependence by the applicant on the respondent and access to her bank accounts, a mutual commitment to a shared life including significant support by the applicant to the respondent in relation to the sale of Suburb G and significant effort by the applicant in relation to making Suburb G ready for sale. In addition, by this time, F had completed her HSC year and the parties had become more open about conducting their relationship more publicly which emerges from the evidence of some of the respondent’s witnesses.
The period prior to February 2011 poses more difficulty for the applicant.
Two years prior to 23 August 2012 is 23 August 2010. If the applicant was able to establish that the parties lived in a de facto relationship between 23 August 2010 and 23 August 2012 this would enable jurisdiction. But I accept the submission on behalf of the respondent that the applicant was overseas for the month from 9 August 2010 to 9 September 2010 and was therefore not living with the respondent.
Accordingly, assuming for the moment that the applicant was able to establish the required de facto relationship during the period from the applicant’s return from overseas on 9 September 2010 to February 2011, the applicant would still need to establish that the parties were living in a de facto relationship for at least a few weeks prior to 9 August 2010 when the applicant left Sydney for the United Kingdom, which could then be aggregated with the above periods to reach the two year requirement. This requires consideration of the circumstances of the parties’ relationship between April 2010 when the applicant moved to Sydney and commenced living at Suburb L and 9 August 2010 when he departed for the United Kingdom.
During this period, the matters which would tend to suggest the existence of a de facto relationship are the following:
·an ongoing sexual relationship;
·the applicant being financially dependent on the respondent, the willingness of the respondent to pay his rent on Suburb L and to provide a lot of money for his support including funding holidays, and permitting him to operate on her accounts;
·some mutual commitment to a shared life as described above including a plan to establish a health retreat business together;
·spending considerable time together including at the respondent’s business premises, at the Suburb G property including many occasions, particularly evenings, when the respondent arranged for the applicant to “sneak in” and to a lesser extent at the Suburb L apartment;
·some limited public aspects of the relationship in the sense that the respondent informed her then husband, their children, and some members of their respective families about the fact that she was in a relationship with the applicant;
·the fact that the applicant was introduced by the respondent to F on 30 June 2010.
The matters which would tend to suggest that a de facto relationship did not exist during this period are the following:
·there was no common residence. The respondent resided at the Suburb G home and the applicant resided at the Suburb L apartment;
·they did not own any property together;
·although, as I have said, they had some level of mutual commitment to a shared life, the respondent did make it clear to the applicant on occasions that she was really struggling to fit the relationship in around her family commitments, particularly to F and that she was unable to make a commitment to him;
·the applicant did not declare himself as being in a de facto relationship on the application form for the Newstart benefit;
·the respondent did not represent to her close friends and business associates, including her accountant, that she had other than a business relationship with the applicant.
The Full Court said in their very recent decision in Sha & Cham [2017] FamCAFC 161 at page 9 as follows:
50.As was said in (Lynam v Director-General of Social Security (1983) 52 ALR 128) at 131:
… [e]ach element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
(Emphasis added)
The composite picture during this period is of two persons very much in love, enjoying their relationship including their ongoing sexual relationship, involving themselves in each other’s lives but constrained in this by the respondent’s need to continue to care for her family, including not to disclose the true nature of her relationship to F and to continue to be available to F as her primary parent for as much time as possible.
In weighing these and the other relevant matters referred to above, I am unpersuaded that during this period between April and August 2010 the parties had arrived in their relationship at that position described by Murphy J in Jonah & White (supra) at [60] where “the parties have so merged their lives that they were, for all practical purposes, “living together” as a couple on a genuine domestic basis”.
As I have indicated above, there were aspects of a merger but, in my view, the required degree of merger was not achieved during the said period mainly because of the respondent’s obligations to her family, particularly F.
As indicated above, the onus is on the applicant to establish that the parties were in a de facto relationship as defined for a period, or total periods, of at least two years. I am not persuaded for the above reasons to this effect.
Accordingly, I am unable to find that the Court has jurisdiction to make a property order based on s 90SB(a) of the Act.
Substantial contributions
The applicant has asserted that he has made substantial contributions over the course of the parties’ relationship, including in relation to the acquisition, conservation and improvement of the respondent’s property. These contributions fall into three areas being in relation to the preparation for sale of the respondent’s Suburb G and Suburb H homes and in relation to the acquisition and development of Property D.
Suburb G property
The applicant said that he completed a lot of work in making the Suburb G home ready for sale. He said this included, but was not limited to, the following:
•organisation and oversight of all necessary works to prepare Suburb G for sale;
•consultation with the respondent on major decisions;
•general de-cluttering of household and removal by skip;
•clearing of garage space to use as a temporary storage facility for household items;
•packing up of many household items to relocate them from the home for storage in the garage;
•building garage shelving to accommodate the items;
•polishing of all brass door handles and repairs to door woodwork as necessary (the ‘bling’ factor);
•replacement of all light switches and power points throughout house;
•replacement of wall lights;
•general tidy up of garden and external spaces;
•repairs to leaking fishpond;
•assisting with general tidying and cleaning prior to inspections;
•cleaning/polishing of internal limestone floors;
•pressure wash cleaning of the majority of external surfaces;
•substantial landscaping of both tall and short hedges around the property;
•replacement of all Mondo grass with weed-proofed gravel around driveways and patio;
•preparation and painting of extensive railings on all patios, pool and balconies;
•painting of tennis court fence;
•renovation of steam room (unfinished at time of sale);
•removal (and subsequent replacement) of the home cinema installation in the basement level; and
•supervising professional tradesmen with respect to painting the home inside and out and repairing the wine cellar air-conditioning unit.
In addition, the applicant said that he assisted the respondent in packing and moving her belongings out of the Suburb G home in late April 2011.
There was considerable issue about the extent of the applicant’s efforts in making the Suburb G home ready for sale.
The respondent said that when the Suburb G home was rearranged for the purposes of presenting it for sale the applicant was not living there. She said that she rearranged it in accordance with the advice of her professional stylist, Ms UU whom he had engaged to assist her to prepare the home for marketing. The respondent said that she (the respondent) engaged professional painters. She conceded that the applicant assisted in helping to move furniture, sweeping and, on a couple of occasions, trimming the hedges. She said he also assisted in removing some Mondo grass adjoining the driveway and replacing this with pebbles. She said that he patched a minor break in a cracked kerb. She said that a professional handyman and painter undertook the bulk of the work involved. She agreed that the applicant and her son, Mr E, undertook some outdoor work. She also said the applicant replaced light switches. She said it was professional gardeners who (usually) trimmed the hedges and professional pool maintenance workers who undertook the swimming pool and ponds maintenance.
On 15 November 2010, at the time Suburb G was being prepared for marketing, the respondent sent an email message which included the following:
[Mr Creese] I did not ask you to do the driveway nor the downstairs area, you did so of your own volition – as I said repeatedly I greatly appreciate all you have done to prepare the house for sale but I feel it is leaving such a bitter taste in your mouth that I’d really prefer from now on you did not – you have done the majority of it anyway. It’s now time for you to do your own thing…
(emphasis added)
This was prior to Ms UU’s involvement at Suburb G. The respondent conceded during cross-examination that the applicant had “a fairly major involvement in getting that house ready for sale”. But the respondent maintained that many of the things which the applicant did were unnecessary and that she did not ask him to do them.
Ms UU suggested improvements to the wife including purchasing small pieces of furniture such as bedside tables as well as items such as lamps and small decorative items, some interior repainting and generally reorganising the house including moving furniture, adjusting placement of artworks and similar matters. She said that at all times the decisions about how to style the home were made by her in consultation with the respondent. She was present at the home for two to three days a week over several weeks dependent on “showings” of the home. She said that on occasions when a prospective purchaser was about to view the home, she and the respondent would be extremely busy getting it prepared.
She said that she saw the applicant at the Suburb G home quite regularly throughout the period of her involvement. She said he had very little to do with the remodelling of the home, both in terms of decisions about what was to be done and implementation of the decisions. She did see the applicant undertaking minor tasks in preparation for a visit such as sweeping the back veranda and removing dog waste from the back lawn. She said he also assisted in moving some furniture. She also observed him changing the light switches which apparently was a matter of some controversy, her view being that it was unnecessary because in her opinion prospective purchasers would not even notice the light switches.
Mr Lapthorne said that the respondent informed him that the applicant had done some gurneying (pressure water cleaning) and tree trimming, changed a few light bulbs and changed some light switches.
Mr FF, the real estate agent who sold the Suburb G property for the respondent and Mr Lapthorne said that he visited the property on many occasions to conduct meetings with the respondent and Mr Lapthorne and for inspections. He said that on none of such occasions did he see the applicant working on the premises. But he said that the first occasion he saw the property was in late 2010 and that he did see the applicant at the property on several occasions.
Ms DD said that she saw the applicant assisting the respondent in tidying the Suburb G backyard including trimming trees and raking leaves.
Mr E said that he saw the applicant assisting the respondent move things into storage in the garage and that the applicant spent time with him pressure cleaning the driveway and exterior walls. He also said that preparing the Suburb G home for presentation to prospective purchasers did not involve a great deal of work other than basic tidying up.
Mr LL said that he saw shelving in the garage and painted railings which the applicant said he had been working on.
In my view, the respondent has endeavoured to minimise the significance of the contributions which the applicant made to the exercise of undertaking work to the Suburb G home in order to present it for sale in an appropriate manner. It is clear from the respondent’s above email message dated 15 November 2010 that as at that time he had done the “majority” of the work involved. Ms UU and Mr FF came onto the scene after that time.
It was submitted on behalf of the respondent that what the applicant did to assist in making the Suburb G home ready for presentation for sale were “some minor tasks”. It was submitted that he could not have made such contributions between 9 August and 9 September 2010 when he was in the United Kingdom, during 11 days in October 2010 when he was in Tasmania or when he was visiting his father in Adelaide over Christmas 2010.
It was submitted that Mr MM described the applicant’s work as “minor” and that Mr E described it as “basic tidying up” and the applicant as having had “barely any involvement”.
I must say I prefer the evidence of the applicant over that of the respondent and her witnesses about this matter. I accept that the applicant undertook the work as asserted by him in detail above. It is also my view that the major part of his contribution was completed prior to the involvement of Mr Z and Ms UU.
Having said this, although I do not regard what the applicant did were “minor tasks” I am not persuaded that these contributions, without more, would amount to “substantial contributions” within the meaning of s 90SB and s 90SM. I shall refer to this again below.
Suburb H property
The applicant said that he undertook the following:
•organised for the air-conditioning/heating to be professionally repaired;
•pressure cleaned all limestone surfaces external to the house;
•pressure cleaned the driveway/garage and all sandstone lining the driveway;
•undertook extensive weeding and replanting of planter boxes lining the driveway and in the front garden;
•trimmed hedges; and
•pruned as necessary in rear gardens.
The applicant said that he and Mr E transplanted many of the plants in the front garden, split plants, and engaged in general preparation for sandstone blocks which were subsequently positioned in the front garden by Mr E and his friends.
The applicant said that the respondent and he:
•spring-cleaned the property;
•rearranged furniture;
•placed unnecessary household effects into the storage area under the house;
•cleared away personal effects to present the home in a show home condition;
•purchased some minor pieces of furniture and props to decorate the hallway and living room;
•tidied up all bedrooms and walk-in robes; and
•undertook extensive weeding to front and rear gardens.
Mr E said that he and his friends Mr PP, who was a landscaper at the time, and Me QQ refurbished the whole garden. He said they brought in big stones and plants and dug up the whole garden.
On the other hand the respondent said that the applicant only gave minor assistance to her son and his friends in cleaning up the property.
I prefer the evidence of the applicant over that of the respondent about these matters. I accept that the applicant undertook the tasks as described by him above.
It was submitted on behalf of the respondent that Suburb H was not a relevant property for the purposes of s 90SM. This is because under the property settlement between the respondent and her former husband, Mr Lapthorne was to receive the proceeds of sale of Suburb H.
It is unnecessary to determine whether Suburb H is relevant property because even if it was, almost the entirety of the contributions made by the applicant fell into what this Court would consider as being the “ordinary” or “usual” welfare contributions and would not be regarded as being substantial contributions.
Property D
It is clear that the purchase of Property D was paid for by, and was registered in the name of, the respondent. No financial contribution has been made by the applicant to its acquisition, conservation or improvement, or otherwise.
The applicant said that the health retreat the parties were intending to create at Property D was always envisaged as being a joint enterprise between them. He said that he handled all of the correspondence regarding the conveyancing in relation to the purchase of the property.
In approximately late May 2011, the parties moved into Property D with the assistance of professional removalists.
In late September 2011 the parties commenced researching the requirements of a development application with the objective of developing Property D into a residential health retreat. This included discussions with a town planner and an architect. But the costs appeared to be high and they concentrated for some months on working on internal and external remodelling and repairing Property D, work which would not require Council approval.
In April 2012 they resumed the task of preparing a development application and went ahead and engaged a town planner. A “pre-lodgement meeting” was arranged with RR Council and this took place on 18 April 2012. Some of the documentation relating to the proposal was prepared by the applicant.
The respondent said that she made a development application to RR Council. I accept the applicant’s denial about this because it was clear from Council’s pre-lodgement report which was received at the end of June 2012 that approval would not be given for Property D to be developed as a residential health retreat, although an education establishment would be permissible.
Upon receipt of this response from Council the applicant had further discussions with the planners with a view to endeavouring to overcome the concerns of Council. Subsequently, a surveyor was engaged to prepare a survey for the purpose of calculating all hard surface areas. But there is no evidence to the effect that a development application was lodged with Council.
I accept the applicant’s assertion that Mr T was the builder and site foreman in relation to the Property D renovation and had no involvement in the design, planning, organisation or control of resources/budget between February and August 2012.
The applicant asserted that he “project managed” renovation work to Property D and secured quotes for various works. This was a matter in issue.
The applicant set out in an annexure to his affidavit a detailed description of building work which it was necessary to undertake to the Property D building. These matters included rectifying and rebuilding extensively termite-damaged structure and rot to timber. They also included considerable work to fix problems with the swimming pool, air-conditioning, atrium, water ingress, sewer, pipework, leaking bathrooms and some structural problems.
The applicant also set out in an annexure to his affidavit what he says was his involvement in the Property D development project as follows:
•initial consultations with a planner;
•consultation with an architect;
•consultation with council officers;
•consultation with surveyors;
•general overview and management of the Property D project;
•securing quotes for a multitude of potential works, both inside and outside the house;
•obtaining a structural analysis of the atrium to assess structure;
•resolving heating/cooling issues of the main house;
•design of new pool area, extensive drainage, and solar pool heating system;
•direction and supervision of all backpacker labourers;
•direction of Mr T as the applicant’s foreman and master builder;
•direction of Mr AA as general garden maintenance worker (when necessary);
•direction of SS Pty Ltd;
•direction of plumber;
•design of interior spaces and storage facilities;
•design of house zoning system;
•design and specification of all new air-conditioning systems;
•specification of all new kitchen appliances;
•design of new kitchen for main house;
•reduction of carbon footprint and increased energy and thermal efficiency, including insulation and double-glazing;
•design of hot air ducting system (not put in place);
•design of new kitchen for catering kitchen and classroom (not put in place); and
•design of exterior food gardens (not put in place).
The respondent denied that the applicant was the project manager. She also said that he has overstated the contributions that he made to the gardens and to the supervision of persons working on the Property D project. The respondent hired Mr T as the licensed builder. The respondent said that it was Mr T who was the project manager. She said that the applicant might have assisted in installation of insulation.
Mr T said that he was engaged by the respondent to be builder and supervisor of the extensive renovations at Property D. He said his role as builder and supervisor required him to coordinate subcontractors, discuss the works with the respondent and determine the scope of the works, manage the project on a day-to-day basis and provide his professional opinion about the best methods to complete the project. He said that he commenced work on the project in late February or early March 2012.
Mr T said that from time to time the applicant would give him directions about work he felt needed to be done. Mr T said that he did his best to accommodate the applicant’s directions despite those directions often being excessive and unnecessary. He said that he believed that the applicant had a negative impact upon progress of the project.
Mr T set out in detail matters which he described as work carried out at the insistence of the applicant which he regarded as excessive. This included insulation more in line with what might be necessary in the European winter, an expensive heating system for the pool, an unnecessary increase in height of a dam and an excessive electrical system. He said the applicant would frequently interrupt him and his team to discuss unrelated work and request changes to work already underway. He said the applicant’s interruptions made the project more costly and less time efficient.
Mr T said that the applicant did very little work on the various projects on site. He said that to the best of his knowledge and belief the only work that the applicant actually did was:
•to assist in the laying of insulation batts;
•to be involved in determining which air-conditioning system was to be installed; and
•to occasionally provide him with rough sketches for various buildings and designs, the only sketch which he found to be of use being the applicant’s design for a sauna.
Mr T said in his affidavit that at the time of the applicant’s departure from Property D (August 2012) the vast majority of the works necessary to complete the project were either not completed, or in some cases, not yet started. He estimated that the project was, at most, 50 per cent complete at the time the applicant departed.
Mr AA, a professional horticulturalist and gardener, was employed by the wife in July 2011 to work two days a week doing maintenance and gardening at Property D. He said that occasionally the applicant would discuss with him plans he had for the future of the garden, none of which eventuated. He said that occasionally the applicant spent time working, however, this was never more than one to two hours per day and frequently less.
Mr AA said that the applicant introduced no ideas that came to fruition. He said that, for example, on one occasion he bought approximately $700 worth of fruit trees which were never planted because the applicant could not decide how or where to plant them. He said that most of those trees died after sitting in a tray for nearly a year. He expressed his professional view that it did not appear to him as though the applicant had any idea whatsoever how to manage or develop a garden. He said that on regular occasions the applicant would interrupt his work to discuss planting an organic garden, however took no steps to allow this to occur. He said such interruptions cost him time and money because the pointless delays caused him to have to spend more time working to complete his job. He said as a consequence of his frustration about this and his belief that the project would not “go anywhere” he left the project in April 2012.
He said that after the parties separated the respondent approached him and he agreed to return. He said that when he returned, the garden was in a state of disarray. He said that, for example, the expensive buffalo grass was more than two feet high and full of clover, there was a large amount of weeds in the garden beds and many of the expensive ornamental plants had died. He said that between the time of the separation (August 2012) and March 2014 he spent significant time recovering the garden from its derelict state. He said that the applicant’s input to the garden was more of a hindrance than a help and that only upon the applicant’s departure was he able to salvage the garden and create something that was impressive and healthy.
Mr GG, a licensed professional tiler, was engaged to provide tiling to various areas of Property D. There was an issue about the nature and extent of the applicant’s involvement with Mr GG. Mr GG said that initially the applicant purported to contract his services for a large amount of work without the respondent’s authority and that the respondent informed him that the applicant did not have her authority to make such a contract on her behalf. Mr GG said that he lost work as a consequence of the applicant’s behaviour in this regard.
Subsequently the respondent engaged his services and he installed tiles to various rooms at Property D. He said that the job became more expensive as a result of various issues caused by the applicant. He said that the applicant offered many unrealistic ideas that never went ahead and that by August 2012 he had stopped listening to the applicant entirely other than to humour him. He said that this was also because the applicant’s interruptions caused significant distraction while he tried to complete his work. He said that the applicant had undertaken some limited grinding work on the tile joints in F’s bathroom but he (the tiler) had to complete the work. He said that the applicant was present when he was working on one of three bathrooms he tiled but not for the remaining much more substantial tiling work he did at Property D.
Mr GG said that the applicant’s contributions to the renovation of Property D were at best minimal and were probably negative.
Mr GG was subjected to detailed cross-examination by the applicant much of which was not relevant. I accept the thrust of Mr GG’s evidence and regard the applicant’s contribution to the tiling at Property D as having been modest at best.
Mr Z said that the applicant had described to him many ambitious plans he had for Property D. These included planting a citrus orchard, an extensive herb garden, extensive aquaponics systems, re-landscaping the driveway area and completely redesigning the back portion of the house.
Mr Z visited Property D in approximately September 2011. He said that the property was in a state of disarray and the garden was not in good shape. Several persons were working in the garden but not the applicant. The applicant was on the balcony drinking wine. When Mr Z visited Property D in August 2012 after the parties had separated it appeared that none of the plans the applicant had described to him had been commenced. The property still looked incomplete with a significant amount of construction going on.
During his cross-examination Mr T provided a more balanced account of the contributions which he observed the applicant to have made to the Property D project than emerged from his affidavit. As indicated above, in his affidavit, Mr T said that when the applicant left for overseas in early August 2012, at most, 50 per cent of the work on the project had been completed. But he spoke more positively during cross-examination about progress which had been made. It emerged that at the time of the applicant’s departure from Property D in August 2012 the following work had been done:
• the top level of the house had been insulated but the atrium had not been completed;
• the yoga room had been completed, the staircases rebuilt and the staircase wall built;
• the upstairs bathroom was in the process of being finished but this was one of seven bathrooms and the remaining bathrooms required work;
• the top room had been completed;
• all windows and doors had been changed; and
• extensive drainage works around the house had been completed.
Mr T agreed that after the applicant departed there was not much left to do on the infrastructure. But he said that this represented approximately half the required work and explained that the finishing work involved a lot of time. He said that he and his tradespersons commenced work at Property D in February 2012 and they were still working there for six months after the applicant departed.
Mr T agreed with the applicant that he (the applicant) gave Mr T many directions about the work to be undertaken. For example he agreed with the applicant that on most mornings he and the applicant had a conversation about “the state of play for the day”. I interpreted this to mean what work was likely to be undertaken that day and issues involved. And such a conversation often occurred around 7.00 am when the applicant would greet Mr T and tradespersons and let them enter the property. Mr T agreed that the applicant was managing the project in terms of decisions and directions. But he also made it clear that from his point of view, this was in the context of the applicant being regarded by him and his team as one of the owners of the property and that in relation to many of the decisions that were made, the respondent was also present and she was regarded as the client who was meeting all the costs of the project. Mr T would not accept that the applicant was the project manager. Rather he “looked at (the applicant) as an owner”.
Mr LL, the applicant’s friend said that he visited the Property D and when he was there he saw workmen asking the applicant questions and the applicant providing instructions.
Ms TT said that she visited the parties at Property D in early August 2012. She said that the applicant was supervising 6-8 workers around the building site.
It is also the case that in early December 2011 the applicant arranged the hire of a cherry picker for him to use to prune some palm trees at Property D. To save money he decided to endeavour to perform this work personally and with the assistance of some backpacker labourers. During the course of using this piece of equipment his foot became crushed by the cherry picker and he sustained an injury. I am satisfied that the applicant was personally performing work at Property D on this occasion.
It is clear from the numerous invoices for the purchase of materials and appliances, and building services for the Property D project which were addressed to both the applicant and the respondent annexed to the applicant’s affidavit that the applicant was involved in engaging the entity which supplied the materials, appliances or building services referred to in the invoices.
In my view, the respondent has endeavoured to minimise the applicant’s contributions, particularly in relation to the Property D project. There has been an array of witnesses in the respondent’s case, the builder, the tiler and the gardener who were involved in working on the Property D renovation and development project who gave evidence critical of the applicant. But, in my view, what their evidence also did was made it clear that the applicant was very much involved in the Property D project. He described himself as being the project manager. The respondent and others went to pains to endeavour to demonstrate that this was not the case. As I have said, the respondent said that Mr T, the builder, was the project manager. I cannot accept this, at least not during the time the applicant was at Property D. Mr T was the builder. He took instructions from the parties. I accept that during the period of his involvement with the Property D renovation the applicant was the project manager.
Taking account of all the evidence in relation to Property D I am comfortably satisfied that during the time the applicant was resident at Property D, that is, from May 2011 to August 2012, he was heavily involved in the conceptualisation, design and management of the project. There can be no doubt about his enthusiasm and energy for the project. He involved himself from the outset by personally dealing with the real estate agent who handled the sale of the property as well as with the conveyancer. He involved himself in consultations and discussions with Council officials responsible for administering the application to renovate and develop Property D and with the town planner, and architect. He communicated regularly with the builder and the various tradespersons who came on site and undertook the work. And he involved himself generally in some of the physical work.
It is true that there was some criticism of him from the builder, the gardener and the tiler. They have experienced frustration with some of his views about what should be done. Clearly there were different opinions about some matters of design and specification. In my view, however, this does not somehow negative the significance of the applicant’s contributions or render them unworthy of value.
It is also true that the respondent sustained a loss when she sold Property D. It was submitted on behalf of the respondent that whatever the applicant’s contributions might have been, they came to little anyway because the property sold at a loss. In my view, to conclude this would be to miss the point that the applicant made contributions of substance to the project.
The applicant supported the respondent in her desire and decision to purchase the property. Between them they conceptualised a design for the project. It was their project and their dream. They did not always agree. Clearly some of the applicant’s ideas did not come to fruition and, on Mr T’s evidence, might have been somewhat extravagant.
Nevertheless, in my view, the applicant’s involvement, particularly with Property D, was a substantial contribution worthy of acknowledgement as such.
Helpfully, senior counsel for the respondent referred to numerous authorities. Firstly, reference was made to Holden CJ having said in V and K [2005] FCWA 80 in relation to the equivalent concept pursuant to the Family Law Act 1997 (WA):
Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependent children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, (the section) is aimed at more exceptional circumstances where serious injustice may be caused by the application of (the relevant provision).
Learned counsel also referred to the comments by Black J in Aston v Al Nahyan [2012] NSWSC 57 where his Honour described “substantial” to mean “of ample or considerable amount, quality or dimensions”.
I note that in Harriott & Arena [2016] FamCAFC 69 the Full Court said as follows:
63.To the best of our knowledge, the meaning of “substantial contributions” has not been the subject of careful consideration by this Full Court, although the matter was touched on in Redmond & Mullins [2015] FamCAFC 69, where V and K was cited. However, the meaning of “substantial” has been the subject of much discussion by other courts. Our review of those authorities indicates support for these observations of Deane J in Tillmans Butcheries Pty Ltd v The Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 382:
The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ( … [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case…
64.Clearly the “substantial contributions” test is a subjective one. Any effort to elucidate its meaning by use of other words or phrases will simply replace one subjective test with another. It will remain a matter of impression whether the contributions are considered to be “substantial”…
In my view, it is clear that the contributions made by the applicant in relation to the Suburb G home and particularly in relation to Property D were more than what is understood by the “usual or ordinary” contributions. The period over which the contributions were made was not long. But the Property D project was significant and involved a great deal of effort.
I am satisfied on the evidence overall that both the applicant and the respondent put in a considerable amount of work in conceptualising, planning, designing and implementing this project which was referred to by Mr T as an “extensive renovation project”. The fact that it did not come to fruition in the manner originally conceptualised by the parties does not affect the quantity or quality of the contributions by the applicant. In my view, notwithstanding the somewhat limited period of time involved, his contributions were not “trivial” or “token” or “usual” or “ordinary” but were contributions of substance. Without them, the Property D project would not have reached the point of progress enunciated by Mr T as at the time the applicant went overseas in August 2012 as referred to above.
Accordingly, in my view, the applicant has made substantial non-financial contributions to the acquisition, conservation and improvement of Property D and otherwise in relation to it within the meaning of s 90SB(c)(i) and s 90SM(4)(b) of the Act. And in my view, his contributions in relation to the Suburb G home were more than “usual” or “ordinary”.
Serious injustice
Having arrived at this point, it is necessary to consider whether failure to make an order pursuant to s 90SM would result in a serious injustice to the applicant.
It was submitted on behalf of the respondent that so much money has been spent on the applicant by the respondent over the short period of their relationship that it could not be a serious injustice for the Court not to make a property order in his favour. Such expenditure by the respondent was submitted as having included not less than $245 000 in either cash or purchases made for his direct benefit, joint holidays undertaken by the parties during their relationship at the respondent’s expense and the cost-free accommodation afforded to the applicant by the Suburb G, Suburb H and Property D properties.
It was also submitted that there has been no corresponding, or in fact any, financial benefit to the respondent from the relationship.
It was further submitted that in a non-financial sense, on having regard to the above submissions, there is no evidence that the respondent has obtained any greater benefit during or following the relationship than the applicant. It was submitted that in fact the applicant has derived far greater benefits than the respondent.
It was submitted that the applicant has not contended or demonstrated that he has suffered any economic loss during or as a consequence of the relationship.
Conclusion about “serious injustice”
As I have said, I accept that the applicant has made “substantial contributions” within the meaning of s 90SB. But in my view, he faces an insurmountable difficulty at this point. This is that, in my view, if the Court was to find jurisdiction and proceed to consider whether it would be appropriate to make a property order as required by s 90SM(1), it would be confronted by the reality of the huge disparity between the parties in terms of their contributions overall. On the one hand, the applicant has made substantial contributions although over a brief period but, in my view, on the evidence before the Court, it is clear that the respondent’s contributions overall have been overwhelming. She owned an interest in two items of very valuable real estate and other property at the commencement of the relationship and she made close to the entirety of the financial contributions to the relationship in the absence of the applicant engaging in income-producing work. In terms of the relevant s 90SF(3) matters, clearly the respondent owns substantial property whereas the applicant does not. But the relationship was short and cannot be said to have affected the applicant’s earning capacity. Furthermore, he is some years younger than the respondent.
In all these circumstances, in my view, it is highly unlikely that the Court would be satisfied that it would be just and equitable to make a property order in favour of the applicant.
Accordingly, I am not persuaded that a failure to make a property order would result in a serious injustice to the applicant.
Conclusion
The applicant has not been able to establish that the Court has jurisdiction to make a property order in his favour pursuant to s 90SM. I propose therefore to order that his Amended Initiating Application be dismissed and to make the declaration sought by the respondent.
I certify that the preceding three hundred and fifteen (315) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 25 August 2017.
Associate:
Date: 25 August 2017
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