Crowley & Pappas - [2013] FamCA 783

FAMILY COURT OF AUSTRALIA

CROWLEY & PAPPAS

[2013] FamCA 783

FAMILY LAW – De facto relationship – where applicant seeks declaration pursuant to s.90RD that the relationship was a “de facto” relationship – where parties in de facto relationship for 18 years – where parties separated in 2006 – whether relationship thereafter resumed in 2006 – whether parties in a relationship as a couple living together on genuine domestic basis – parties’ relationship was a “de facto” relationship”.

Family Law Act 1975 (Cth) s 4AA, s 90RD

Jonah & White [2011] FamCA 221
Moby v Schulter (2010) FLC 93-447
KQ v HAE [2007] 2Qd R 32
Vaughan & Bele [2011] FamCA 436
JRR v PH [2005] QSC 253
Zau & Uongh [2013] FamCA 347

APPLICANT:

Mr Crowley

RESPONDENT:

Mr Pappas

FILE NUMBER:

TVC

1044

2011

DATE DELIVERED:

11 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

27 and 28 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Keegan

SOLICITOR FOR THE APPLICANT:

Ross Lawyers

THE RESPONDENT:

In Person

Orders

Pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship (as defined in s 4AA of the Act) existed between the parties between March 1987 and 15 January 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowley & Pappas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC1044/2011

Mr Crowley
Applicant

And

Mr Pappas

Respondent

REASONS FOR JUDGMENT

introduction

The Orders sought

By his Amended Initiating Application filed 1 December 2011, the applicant sought a declaration under section 90 RD of the Family Law Act 1975 that at a de facto relationship existed between himself and the respondent for the period between March 1987 and 15 January 2011, or such other period as the court deems appropriate. He also sought a division of the property of the parties to that relationship. In his Response filed 16 November 2011, the respondent sought a declaration that the de facto relationship existed between the parties for the period from March 1987 until approximately the end of 2005.
If the respondent’s contention is correct, and the relationship concluded at the end of 2005, then this court would be without jurisdiction to make any division of the property of the parties to the relationship. In view of that, on 24 June 2013 I ordered that the competing applications for declaratory relief be tried before all other matters in the proceedings. This is the judgment and reasons in relation to the trial of that preliminary matter.

The issues

The parties are not in dispute that they were in a de facto relationship from March 1987 until the end of 2005. It was common ground that either at the end of 2005, or early in 2006, the respondent moved from T to Brisbane, and lived there for some months. It was also common ground that in August 2006, the parties resumed cohabitation, and continued to do so until 15 January 2011. What is in dispute is whether those years of cohabitation constituted a de facto relationship within the meaning of that term in the Family Law Act. More specifically from a jurisdictional perspective, the dispute is whether a de facto relationship existed between the parties at any time after 1 March 2009.
What distinguishes this case from many otherwise similar cases is that under cross-examination, the respondent conceded that at least up until 2010, the applicant would have believed that he was in a de facto relationship with the respondent. The respondent said that he had concealed the fact that he had not resumed the relationship in 2006 from the applicant, to enable him to become financially independent of the applicant.

THE LAW

Section 4AA(1) of the Family Law Act (Cth) provides as follows:
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.
Against the marginal note “Working out if persons have a relationship as a couple” s 4AA(2) provides as follows:
(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.
Sub-sections 4AA(3) and (4) provides some guidance as to the application as to the sub-section (2) as follows:
(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.
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)whether a de facto relationship exists or not is a question of fact, not a matter of discretion;[1]
(b)a de facto relationship does not need to be akin to a marriage[2] although the nature of the association involved in a marriage relationship may be instructive;[3]
(c)the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;[4]
(d)there need not be full time living together;[5]
(e)the relationship may be unhappy, but still subsisting;[6]
(f)sexual or other exclusivity is not necessary;[7]
(g)the gist of the inquiry is the degree to which parties have merged their lives into one.[8] That connotes financial, emotional and physical interdependence.[9]

RELEVANT CIRCUMSTANCES

[1]Jonah & White [2011] FamCA 221 at [58] per Murphy J

[2]Moby v Schulter (2010) FLC 93-447 at [163]-[164] per Mushin J

[3]KQ v HAE [2007] 2Qd R 32 at [18] per McMurdo P, Keane & Holmes JA

[4]Vaughan & Bele [2011] FamCA 436 at [11] per Cronin J

[5]Moby v Schulter (supra) at [140]

[6]JRR v PH [2005] QSC 253 at [29] per Byrne J

[7]ibid at [62]-[64]

[8]ibid at [60] and [67]

[9]Zau & Uongh [2013] FamCA 347 at [35] per Cronin J

The duration of the relationship

The parties agree that their relationship commenced in March 1987. The applicant asserts it continued – albeit with two suspensions or interruptions – until January 2011. The respondent says that the de facto relationship concluded in late 2005, however he concedes that a relationship of some kind continued thereafter, characterising it as that of flatmate, friend and business partner. On any view, whatever may have been the character of the relationship between 2006 and 2011, it was of approximately four and a half years duration, and the total length of the parties’ relationship – of whatever character it was from time to time – was in excess of 23 years.

The nature and extent of their common residence

The parties commenced to cohabit in February 1998. Save for two periods, the first in 2005 of approximately three months duration, and the second in 2006, also of approximately three months duration, the parties continually cohabited.
Their domestic arrangements are largely uncontroversial. With the exception of a period prior to 2006, when the applicant’s parents lived at the same address as the parties, and two post-2006 periods when the applicant’s son and his partner cohabited with the parties whilst they were house-sitting a friend’s home, it appears as though the parties only resided with each other. They socialised jointly at their home, enjoying drinks, meals or other get-togethers with mutual friends. Each contributed equally to the expenses associated with the home.
The parties’ sleeping arrangements occupied considerable attention at trial. It seems clear that when cohabiting, they normally slept in the same bed, albeit the respondent says that after 2006 he only did so because he was coerced into doing so by the applicant. In cross-examination the applicant asserted that the parties would only sleep apart if either of them was ill. Also relevant to this was the parties’ sleeping arrangements at locations other than their usual home. It was common ground that in or around November 2008, the parties commenced to house sit for a friend. At paragraph 154 of his 16 November 2011 affidavit, the respondent said in respect of this time “[t]he applicant continued to pressure and intimidate me into sleeping in the same bed as the applicant, and I succumbed, however there was absolutely no sexual contact or intimacy between the applicant and I.”
Further, the applicant and respondent had a group of friends with whom they used to go camping on the weekends. The applicant and respondent attended such events and slept in a camper trailer which had a queen sized bed in it, in which they always slept together. Amongst the evidence was a photograph of them both relaxing on that bed.
Finally, it was conceded by the respondent that when he and the applicant holidayed together overseas on one occasion, they occupied the same room, and presumably, the same bed. Certainly he did not assert anything different.
To the extent that there is any real conflict between the parties in relation to this issue, I find that after the parties resumed cohabitation in 2006, their habit was to share a bed together except in the case of illness.

Whether a sexual relationship exists

At paragraphs 105 – 106 of his affidavit filed 16 that November 2011, the respondent said as follows: –
105.The applicant and I attempted to maintain a sexual relationship during the period from on or around 1 August 1992 to in or around late 2005, however this was hampered by my disability especially in the first 12 to 24 months after I came home from hospital.
106.The applicant was not faithful to me during this time, seeing other men behind my back whom he contacted through a gay chat site called…
In 2005 the respondent moved out of the parties’ home for three months. It appears that this was precipitated by his dissatisfaction with the relationship, although precisely what aspects of it prompted him to move out are unclear.
The respondent’s affidavit evidence as to his behaviour after he resumed co-habitation after the first occasion he moved out was as follows:-
132.The applicant pressured and intimidated me into sleeping in the same bed as the applicant, and I succumbed, however there was absolutely no sexual contact or intimacy between the applicant and I.
133.I did not want to share a bed with the applicant and I locked the applicant out of the bedroom as often as I could and I would sleep in other rooms to try to avoid the applicant whenever possible.
134.The applicant became furious and would humiliate me whenever I broached the topic of having separate sleeping arrangements and he would become aggressive, storming off and shouting. I was intimidated by the applicant. I kept sleeping in the same bed as the applicant to keep the peace and avoid the applicant’s fury. I believe that the applicant would physically harm me if I continued to disagree with the applicant.
135.When the applicant and I did share a bed the applicant and I each slept away from each other and there was absolutely no sexual contact or intimacy between us.
This evidence is curious because, as I understand the respondent’s evidence and case, the parties did resume their de facto relationship after the first separation. Precisely why sexual relations would not also be resumed was left unexplained. That causes me some doubt about the accuracy of the respondent’s recollection of the sexual history of the parties. Indeed the respondent admitted that his affidavit of 16 November 2011 was mistaken in that it asserted that the first separation occurred in 2006, whereas it was 2005. Perhaps he has transposed the events after the resumption of cohabitation following the second separation with those following the first, but the specificity of the sequencing in his affidavit suggests the contrary. Certainly it appears that the respondent suffers from some confusion in his recall of relevant events.
At paragraphs 116 and 117 of his affidavit filed 16 November 2011, the respondent said that in late 2005 he discovered that the applicant was seeking sexual relations with another man. His evidence was that the applicant said “I want an open relationship.” To this the respondent replied “I do not want an open relationship. That is not what a relationship is all about.”
At paragraph 118 he said “I was devastated. I did not want an open relationship or to be with other people and I just wanted to have a loving and committed life partnership with the applicant. The applicant however expressed to me that the applicant did not want this any more.”
The respondent’s affidavit detailed that about four weeks later, the applicant brought another man to their home and invited the respondent to join in sexual relations with them, which invitation the respondent declined. Nonetheless the applicant and the other person engaged in sexual relations in front of the respondent. After that event the respondent says that he told the applicant “[o]ur relationship is over. What just happened makes me feel physically ill. All trust between us is gone. If you want an open relationship you can have one, but not with me.” The respondent said that from that day onward, he considered that their de facto relationship was over.
It is common ground that in 2006, seemingly in consequence of the above episodes, the respondent again moved out of the parties’ home, on this occasion to Brisbane. Under cross-examination the applicant conceded that at the time the respondent had told him he was in Brisbane to start a new life. He returned to cohabit with the applicant in about August 2006. In his affidavit filed 16 November 2011, the respondent said that he returned to T from Brisbane in about August 2006 after he received a note from the applicant that caused him to believe that the applicant was going to kill himself if he did not return. That allegation was not pressed in cross-examination of the applicant, but rather it was suggested that the applicant went to Brisbane to give the respondent his medical records, which the applicant said he could not recall. What is plain is that in about August 2006 the applicant did travel to Brisbane, and that he and the respondent shortly thereafter returned in the same plane to T, and resumed co-habitation.
The respondent asserted that he returned to cohabit with the applicant as a flatmate only. At paragraph 202 of his affidavit filed 16 November 2011, he said that “[s]ince in or around late 2005 the applicant and my relationship has degraded into a complicated situation based upon business obligations, oppression, intimidation, old feelings and friendship.” At par 140 he said that upon his return:-
The applicant continued to pressure and intimidate me into sleeping in the same bed as the applicant and I succumbed, however there was absolutely no sexual contact or intimacy between the applicant and I.
At paragraphs 203-4 of his affidavit filed 11 November 2011, the respondent said:-
203.The applicant and I have not had a sexual relationship since in or around early 2006.
204.The applicant has developed relationships with other men since the separation and the applicant has been an active member on gay chat and hook up sites including… since in or around late 2005.
At paragraph 205, the respondent asserted that since in or around 2006 or 2007, the applicant had presented himself as a single gay man on internet chat sites, however the screen capture of one of his profiles on one of the sites annexed to the respondent’s affidavit plainly pertains to a time after November 2011, when on any view, the parties had separated.
As to the lack of sexual contact, although the applicant’s counsel’s cross-examination of the respondent did generally assert an ongoing sexual relationship after 2006, it did not descend to much specificity. Such specificity as there was included one instance where it was said that the parties had jointly engaged in sexual relations with a third person whilst holidaying overseas. The respondent appeared to concede that event, but said that on the night in question his drink had been spiked. From a credibility perspective, it is troubling that the emphatic nature of the respondent’s repeated denials of any post 2006 sexual contact whatsoever with the applicant – in language seemingly admitting no exception – was so quickly, albeit somewhat begrudgingly, conceded to be incorrect.
Further, whilst being cross-examined by the respondent, the applicant volunteered the names of two persons with whom he said both he and the respondent had engaged in mutual sexual encounters, along with “several others whose names I don’t know,” which assertion was not thereafter squarely challenged by the respondent. The applicant went on to say that he had opened an account with a particular internet site in the mid to early 2000’s, and that both he and the respondent used it to find third parties to bring into their relationship for sexual encounters. Again, to my observation, faced with such specific assertions, the respondent chose not to investigate or challenge them further in his cross-examination of the applicant.
For those reasons where the parties’ evidence in relation to their sexual relations after 2006 conflicts, I prefer the evidence of the applicant.
I find that both prior to 2006 and thereafter, there was a shared sexual relationship between the parties, albeit after 2006 it was more limited than previously, and in any event remained hampered by the respondent’s disability.

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

It does not appear in contest that prior to the end of 2005 the parties’ finances were strongly interrelated. Over many years they had owned property together, financed by joint loans, albeit they maintained both separate and joint bank accounts. Between 1993 and 1996, after they relocated from Sydney to T, the parties jointly operated a horticultural business. From November 1996 until March 2011, they jointly conducted a retail business, which appears to have had two shops in the T region, and two franchisees located outside of T. They each were actively involved in the conduct of that business, save for a period in 2007 and 2008, when the respondent worked as a property consultant.
The parties jointly contributed to their mutual living expenses, both pre and post 2006.

The ownership, use and acquisition of their property

The respondent conceded that prior to the end of 2005, the parties jointly acquired, owned and used property. This included a series of residential properties, both in Sydney and T. In November 1993 the parties, together with the applicant’s parents, jointly purchased a property at P Street, T. Although three years later the parties sold their interest in the home to the applicant’s parents, they continued to reside there (subject to the two periods of non-cohabitation) until (it seems) 2008.

However the respondent contended that things changed after 2005. At paragraph 140-145 of his affidavit filed 16 November 2011, he described their financial relationship from late 2005 onwards as being “separate financial journeys” and that “all of the applicant and my financial dealings were separate.”
In support of this the respondent pointed to the history of his property dealings after 2005. Firstly, on 31 August 2006, the respondent entered into a contract in his sole name to purchase a house. The contract was subject to finance, and did not proceed because the necessary finance could not be raised. The applicant says that this demonstrates that, after cohabitation had resumed in that month, he and the applicant were no longer proceeding jointly in financial matters. The applicant’s case was that he was not concerned about the contract being in the respondent’s sole name, as by then they had reconciled.
In about January 2007, the respondent acquired land at 2 P Street, and commenced upon the process of the construction of a home and investment property upon the land. The respondent’s case was that he deliberately insisted upon the land being purchased in his sole name, with funds sourced solely from or by himself, because of his plan for financial independence. His evidence was that he exclusively was involved in the design and supervision of construction of the home, to which the applicant made no or minimal contribution.
The applicant’s case was that the respondent insisted upon the property being in his sole name because he was concerned that otherwise it may be in some way claimed by the applicant’s son. Under cross-examination, the applicant described the respondent’s conduct at the time as a “hissy fit” and that the respondent had “a bee in his bonnet” about making sure that the applicant’s son did not get his hands on the property.
The respondent also placed significance upon the fact that in 2006 he closed the parties’ joint bank account, and thereafter no joint account was maintained, and further, that from 2006, the parties made no property purchases in joint names.
However he conceded that the parties maintained a financial interrelationship after 2006 by virtue of their joint ownership, albeit via a corporation, of the retail business. He said at paragraph 146 “because [the business] was running at a loss it was difficult for me to remove myself from the business, particularly due to significant debts owed by [the business] to Westpac.”
After 2006, the parties did continue to own some shares in joint names, and owned a motor vehicle registered in both names.

The degree of mutual commitment to a shared life

There seems little doubt that after 2006 the parties continued to lead a shared life. They lived together, slept in the same bed, ran a business together, regularly socialised with a group of friends together, went camping with other friends together, and on occasion holidayed together.
The principal concern of the respondent appears to be that the parties did not have a mutual commitment to an exclusive, monogamous, sexual relationship. Whether by virtue of that or otherwise, he further said that he had no mutual commitment to share his life with the applicant, because in fact he was planning, upon achieving financial security, to “make a stand, after which it was going to be my rules from now on.” Leaving aside that his evidence as to that matter was not challenged, in my opinion the respondent did indeed intend, after 2005, to ensure that he became financially independent of the applicant. My view is that he was so hurt by his long-time partner’s desire to have a non-monogamous relationship, that he wanted to be able to wholly separate from him – emotionally, physically, financially and otherwise – in the event that circumstances in the future inclined him so to do.
However that finding does not preclude the respondent nonetheless being in a de facto relationship. It is equally consistent that the respondent was keeping his options open to “escape” the relationship, if things went badly, but also to continue the relationship if things were tolerable. Indeed, such a strategy has a degree of common sense to it.
In this regard it is informative to consider the events which led to the parties ceasing to cohabit in January 2011. The applicant had been asked by some friends to look after their dog whilst they were away on holidays. He drove the parties’ car – which was suitable for the respondent, who has a disability, to drive – to undertake this errand. He was gone for about three and a half hours. The respondent says that he was very angry because it precluded him from undertaking any activity away from home. He said that this crossed the “line in the sand.”
When the applicant returned, he and the respondent had a discussion. Seemingly during that discussion, the respondent took possession of the applicant’s mobile phone. The applicant sought to retrieve it: he said he was concerned that the respondent was trying to clear contacts in the phone’s memory; on the other hand, in cross-examination the respondent said that “the applicant exploded when he saw that I was looking through the messages on his phone.” The respondent says that there was a physical altercation. As a result of that he demanded that the applicant vacate the property, which he forthwith did.
The applicant says that he left because the respondent told him that his son, daughter-in-law and parents were no longer welcome to visit the house. The applicant further asserted that the respondent said that from that point forward the applicant would have to pay rent to occupy the home. He said that in those circumstances there was no point staying.
It struck me that the respondent was at pains, both in drawing his affidavit and in giving his evidence, to minimise the suggestion that he was at the time suspicious that the applicant had been away from the home having sex with another man or men. He denied that he was jealous on the day in question, no doubt in part because he appreciated that any concession of jealousy would be inconsistent with the relationship between the parties then being merely that of flatmates, friends and business partners.
In that context it is informative to consider the terms of an email which the respondent sent to the persons whose dog the applicant asserts he was away feeding. That email was sent on Friday, 11 February 2011, some 26 days after the parties had ceased to cohabit. It read as follows (with spelling and grammar corrected): –
Dear [Mr D] and [Mr W]
I am well aware that you know what is going on between [the applicant] and I. I would expect you would as it was because [the applicant] was asked to feed [the dog] that gave him the reason to get out of this house for 3 ½ hours. I do thank you for that!! But I guess you know that, that was always the plan.
I also have taken it that you are the type of people to take sides and that is OK with me also.
It is because of past conversations [you] had with [the applicant] that has encouraged [the applicant] to cheat on me. That also I thank you for.
[The applicant] and I will NEVER repair the damage done in the past, and I can say I hate him now because of the information gathered I know this has been planned for a very long time. I do not know how much scheming you pair had done behind my back.
I am disappointed but not surprised. You did well in pretending to be people that care about others.
Next time you are in church think about what you have done and I know in my heart that you will pay penance but not to me.
[Respondent’s first name]
In his evidence, the respondent sought to justify the terms and tone of that email by reference to the fact that he had been inconvenienced by not having access to his car for three and a half hours. I reject that suggestion. That email has all the bitterness that is frequently characteristic of the aftermath of the final break-up of a domestic relationship. There can be no real doubt that the accusation that was being levelled at the recipients was that they had facilitated, and indeed encouraged, the applicant to sexually “cheat” on the respondent. It is quite inconsistent with the response of someone who had for the last five years been only a flatmate, friend and business partner of the applicant, and whose complaint was that he had been inconvenienced by not having access to their car for three and a half hours. It has all the hallmarks of an angry ex-partner still smarting from the raw pain of the termination of a significant relationship due to supposed infidelity. Moreover, it is significant that that hurt had continued, at that stage, for some 26 days.
In my view, the most likely explanation for the language and tone of this relatively contemporaneous communication is that the respondent was still angry that the applicant had been sexually “unfaithful” to him. There is nothing inconsistent between that, on the one hand, and on the other, the respondent, having foreseen the prospect of that day potentially arriving in the light of the events of 2005 and 2006, engineering things so that in the event that he wanted to terminate the relationship in the future, he could do so knowing that he would be financially secure.

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

There is no evidence that the relationship was registered under any State law at any time.

The care and support of children

It appears as though both parties had a parental relationship with the applicant’s son Mr J. In about September 2008, shortly after Mr J started a relationship with Ms H, whom he later married, she was introduced (although she could not recall how, by whom, or in what precise terms) to the respondent as “[the applicant’s] life partner and [J’s] other parent.”
Ms H gave evidence that she and J cohabited with the parties during two occasions when they were housesitting a friend’s house near T.
In paragraph 6 of her affidavit filed 15 June 2012, Ms H said “since September 2008 [the applicant and respondent] played an integral role in our lives and provided strong family support to [J] and myself.”
Although there is some dispute as to their respective roles, it is clear that both parties were involved in organising the J and Ms H’s wedding reception. In paragraph 7 of Ms H’s affidavit she said “they were both strongly involved in every step of our wedding and even danced happily at our reception.” She went on to say that the respondent “assisted with organising and coordination of the wedding such as directing guests, creating invitations, decorating the wedding venue in making decorations by hand.”

The reputation and public aspects of the relationship

The applicant called a number of the parties’ friends to give evidence relevant to this consideration. They included family members and friends. Amongst the family members with his father, Mr C and his mother, Ms C. In substance, their evidence was that they treated the respondent no differently to how they treated other members of their family. They gave evidence of their observations of the parties’ cohabitation over the years, and the occasions when the parties jointly attended or hosted family social events. Their belief was that the parties were in a de facto relationship until January 2011.
Amongst the friends who were called, were Ms S and her son R. Ms S said that she had known the parties for 16 years, having met them when operating their retail business. She said she became very good friends with both of them, and considered them both as family. It appears as though her son R had been friends with the applicant’s son J, since they met in school in 2000. Ms S said that the parties were invited to, and did, attend R’s wedding as a couple, as well as her own wedding. As to the latter, Ms S recalls that the parties danced together at that event, “and generally appeared to be comfortable together.” R gave evidence that between 2000 and 2010 he “spent many hours in [the parties’] company at their house, on trips, on social outings and have known them to be a de facto couple for all of those years.” He said that he was the best man at the applicant son’s wedding in 2010, and he believes that the parties attended that as a couple, and “noticed them on many occasions to be smiling and embracing and sharing in the special occasion as any proud parents would.”
The balance of the parties’ friends called by the applicant were same-sex couples. Ms O and Ms A gave evidence that they had known the parties for 14 years. They socialised with them, and extended and received invitations to socialise as a couple. Amongst those social events were camping weekends, concerts, lunches, dinners and other celebratory events. Photographs taken by them during those occasions were annexed to their affidavits. They appear to show the parties relaxing and enjoying the company of each other and the other persons depicted in them.
Also called were Ms F and Ms N. Ms F is a non-practising lawyer, and Ms N is a retired health professional. They deposed that they had known the parties for approximately 10 years, and had socialised extensively with them. Ms F gave evidence that that they used to circulate in the same group of friends approximately every fortnight at a local restaurant. In about January 2007, they began joint camping trips with the parties, along with other persons, on weekends and long weekends. She gave evidence that on one of those occasions it ended up with just the four of them. They spent until late at night chatting and getting to know each other as friends. She said “it was clear from the conversations we were having about relationships that both [the parties] believed they were a committed, long-term relationship. There was nothing in either of their behaviour to make us think otherwise.” Ms F also said in her affidavit “over the years, we have all discussed our relationships and the problems couples have over the time and [the parties] have both disclosed that they went through a bad patch but had thankfully been able to sort out their differences and after that had become stronger as a couple.” She also gave evidence of visits to their home and observing the fact that they slept together in the same bedroom. Ms N said that “until January 2011, there was every indication that they were a couple, and no indication that they were not.”
Also called to give evidence were Mr D and Mr W. They said that they had known the parties since they met at a function in July 2004, and from there on became good friends with both of them. They spent a significant amount of time with them on a weekly basis, and throughout that time believed they were committed couple. In 2005 they had, together with others, started to go camping together. They spent numerous weekends away together. On occasion when they stayed at their home, the parties shared the same bedroom. In cross-examination, Mr D gave evidence that during the time in 2006 when the respondent was in Brisbane, the respondent had telephoned him asking for his help, and particularly asking him to speak with the applicant about their relationship. He said that he regarded the parties as his closest friends in T. Both Mr D and Mr W believed that the parties were in a de facto relationship until January 2011. In cross-examination Mr D said that he was “flabbergasted” that the parties separated. He thought that they would never do that. It is pertinent to note that it was to Mr D and Mr W that the respondent directed the email of 11 February 2011, insinuating that they had had some hand in orchestrating an opportunity for the applicant to spend time with other men.
In large part the respondent’s cross-examination of these witnesses was directed toward showing that the relationship which the parties had with them was on a somewhat superficial social level. By and large, the witnesses conceded that their friendship was not of a kind which involved long, deep and meaningful conversations about their intimate lives. However what was plain in relation to all of these witnesses during their cross-examination by the respondent, was that they genuinely believed that up until January 2011 the applicant and the respondent were a couple, and socialised with them as such. I think it significant that the parties socialised with other same-sex couples, and those couples regarded the parties as in a relationship identical, or of a similar character, to their own.
I should also make it plain that some of the applicant’s witnesses, during their cross-examination by the respondent, evidenced a degree of exasperation that the respondent was, in these proceedings, contending that after 2006 the parties were not in a de facto relationship. In particular Ms F, who when practising had specialised in family law, emphatically asserted her view that the parties were in a de facto relationship up until January 2011. I got the distinct impression that, based on her observations, she rejected as complete and utter nonsense any suggestion to the contrary.
The applicant tendered into evidence a large framed photograph. The photograph was headed “Happy 50^th”. It was presented to the parties by some of their friends during their joint holiday overseas in 2010, having been organised by the applicant’s son J. On it were inscribed 26 messages from the parties’ family and friends, each of which was directed towards the parties jointly. Amongst the messages was one from the applicant’s son J and his wife Ms H, which commenced “Happy birthday Dad and Uncle …!” Another was from “…” which commenced “Dear Uncle … and Uncle …”. The last message was from “…” and read “…, Happy 50^th guys and best wishes for another 50 good years together”. After the parties returned to T, the photograph was hung in their home.
The respondent filed affidavits from two witnesses relating to the reputation and public aspect of the asserted relationship, being Ms V and Mr Y. Only Ms V was required for cross-examination. Her evidence was that she had known the parties since about 1993, as both an employee and friend. She worked as a sales assistant in their retail business. She said that she was aware of a problem in the parties’ relationship in about 2005 or 2006, and since then had not observed any outward displays of affection between the applicant and the respondent, nor had she observed the applicant and the respondent behave like a de facto couple, although they were usually cordial to each other.
Mr Y’s evidence was that he had been friends with the parties since around May 2005. He said that when he first met the parties he did not consider that they were in a de facto relationship, based upon his observations of them. (This is itself of note, because both parties concede that they then were in a de facto relationship). Rather he formed the view that they were a business partnership and friendship “turning sour”. He said that when he attended social functions with the parties, they did not show any affection to each other and would often sit separately. He further said that when he travelled with a group, including the applicant and the respondent, overseas in 2010, he observed that the parties “did not display the conduct or behaviours of a de facto couple or of a couple in a loving, caring and mutual relationship…” He further gave evidence that he observed the applicant interacting in a way which he described as “over friendly” with “a local hire boy” at bars and nightclubs in the overseas country.
As at the date that he swore his affidavit, Mr Y resided in Western Australia. It is not possible to discern from his affidavit on how many occasions he had observed the parties or, other than overseas, the circumstances in which he had occasion to observe them.
Upon balance it seems clear that the preponderance of evidence strongly supports that, amongst their circle of friends, the parties presented as, and were accepted as, a de facto couple. In this regard I am particularly influenced by the fact that the relevant witnesses who gave that evidence came from a range of backgrounds, and included same-sex couples, other friends and family members.

WERE THE PARTIES A COUPLE LIVING TOGETHER ON A GENUINE DOMESTIC BASIS?

Although there may have been some aspects of the parties’ relationship which some may regard as unusual or unconventional, having regard to the above findings in relation to s.4AA(2) circumstances, I find when the parties resumed cohabitation in 2006, they also resumed the pre-existing and conceded de facto relationship. I reject the respondent’s assertion that he did not regard himself as being in such a relationship. That assertion has the aspect of an ex post facto construction of events in a way which he would not have done prior to separation in January 2011.
Of particular importance in this regard is his unusual evidence that, in substance, he was content to have the applicant believe that he was in a de facto relationship, solely for the purposes of enabling the respondent to achieve sufficient financial independence. When one considers that, apparently, the respondent asserts that he was prepared to live in such a state for in excess of four years, I am not persuaded such was the respondent’s contemporaneous state of mind. Rather, I find that the respondent was more cautious, and perhaps more suspicious, after the relationship resumed in 2006, and did attempt to structure the financial affairs of the parties in a way that may either give him greater power in the event of further difficulties within the relationship, or alternatively and as transpired, enable him to, at least initially, financially weather any final separation better than the applicant could.
Critical to my finding is the email of 11 February. As I previously observed, it has all the hallmarks of the anger, resentment and hurt which frequently attend a final relationship breakdown, and is quite inconsistent with that breakdown having occurred nearly five years previously.
I will therefore make a declaration substantially in terms of paragraph e) of the applicant’s Amended Initiating Application filed 1 December 2011.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 October 2013.

Associate:

Date: 11 October 2013