Dakin v Sansbury
[2010] FMCAfam 628
•13 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAKIN & SANSBURY | [2010] FMCAfam 628 |
| FAMILY LAW – Application for declaration of “de facto relationship” pursuant to section 90RD of the Family Law Act 1975 – Consideration of what is a de facto relationship under section 4AA of the Family Law Act 1975. |
| Acts Interpretation Act 1901 Migration Act 1958 Bankruptcy Act 1966 Family Law Act 1975, ss.4AA, 90RD, 90SM New South Wales Property (Relationships) Act 1984 Parliamentary Entitlements Act 1990 Social Security Act 1991 Prohibition Of Human Cloning For Reproduction Act 2002 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 |
| Roy v Sturgeon (1986) 11 NSWLR 545 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Moby & Schulter [2009] FamCA 1285 Baker & Landon [2010] FMCAfam 280 Pike & Howlett [2010] FMCAfam 802 |
| Applicant: | MS DAKIN |
| Respondent: | MR SANSBURY |
| File Number: | MLC 3048 of 2010 |
| Judgment of: | Bender FM |
| Hearing dates: | 15 & 16 June 2010 |
| Date of Last Submission: | 16 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 13 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Ambrose |
| Solicitors for the Respondent: | Cahill & Rowe Family Law |
ORDERS
It is declared pursuant to section 90RD of the Family Law Act 1975 for the purposes of an order under section 90SM of the Family Law Act 1975, that the applicant and respondent were in a de facto relationship which commenced in April 2003 and concluded on 11 December 2009.
IT IS NOTED that publication of this judgment under the pseudonym Dakin & Sansbury is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Melbourne |
MLC3048 of 2010
| MS DAKIN |
Applicant
And
| MR SANSBURY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in this matter filed an Initiating Application seeking final property orders. She alleged that she and the respondent had been in a de facto relationship as defined by the Family Law Act 1975 from November 2002 to 17 January 2010.
The respondent denies the parties have been in a de facto relationship since November 2002. He says that whilst they were in a relationship from 2002 this relationship was a “de facto relationship” as defined by the Family Law Act 1975 between May and December 2009 only.
In the Response filed by the respondent, he sought a declaration pursuant to section 90RD of the Family Law Act 1975 that the parties had been in a de facto relationship from 23 May 2009 to
11 December 2009 only and that such period was for less than two years as required by section 90SB(a) of the Family Law Act 1975.
Further the respondent sought a declaration that the applicant did not make substantial contributions as is set out under sections 90SM(4)(a),(b) and (c) of the Family Law Act 1975 and that, if such contributions were found to have been made, a failure to make the orders sought by the applicant would not result in serious injustice to the applicant within the meaning of section 90SB(c) of the Family Law Act 1975.
When the matter first came before me, I determined I would hear and rule on the question of whether the parties were in a de facto relationship as defined by the Family Law Act 1975 for a period of more than two years as a preliminary matter.
The Law
By way of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and as a result of the referring states, including Victoria having referred to the Commonwealth jurisdiction to enact legislation to govern the provision of maintenance and/or the division of property between the parties to a de facto relationship after the breakdown of their de facto relationship, the Federal and Family Courts were empowered to determine such issues from 1 March 2009.
If the court’s jurisdiction is to be exercised in proceedings between those who have been in a de facto relationship there are a number of thresholds in the legislation which must be overcome.
The first of these is whether there has been a de facto relationship as defined under the Family Law Act 1975.
Section 4AA of the Family Law Act 1975 sets out the meaning of de facto relationship as follows:
4AA [De facto relationships]
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
In the matter of Baker & Landon [2010] FMCAfam 280 Riethmuller FM considered the meaning of “de facto relationship” as set out in section 4AA of the Act. In paragraph 11 of his judgment His Honour noted:
11.The requirements of s.4AA, in summarised form, require a decision as to whether the parties ‘have a relationship living together on a bona fide domestic basis’. In coming to this decision the court must have regard to ‘all of the circumstances of the relationship’, which may include the factors set out in s.4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (s.4AA(3)) nor does the section attempt to prescribe the weight to be attached to any particular factor (s.4AA(4)). As a result the definition cannot be said to be closely proscribed.
In his judgment Riethmuller FM explored the legislation and case law relating to de facto relationships that predate the Family Law Act 1975 de facto property amendments to ascertain whether they assist with determining what a “de facto relationship” is under the Family Law Act 1975. The conclusions His Honour draws are best summarised as follows:
·the definition does not require an exclusive relationship and thus the definition under section 4AA of the Act is broader than a “marriage like” relationship which would ordinarily require some consideration of exclusivity;
·whilst the definition is said to flow from the decision of Powell J in Roy v Sturgeon (1986) 11 NSWLR 545 and from social security guidelines and the provisions of the New South Wales Property (Relationships) Act 1984, there are differences between that legislation and the Family Law Act 1975 in terms of wordings and the relevant considerations with the Family Law Act 1975 referring to a relationship as “a couple living together on a genuine domestic basis” rather than “adults who live together as a couple” that is referred to in the earlier mentioned legislation;
·the term “living together” cannot be taken in isolation and read as requiring that de facto couples always live together;
·whilst the definition of de facto relationship appears in a myriad of legislative provisions (Acts Interpretation Act 1901, Parliamentary Entitlements Act 1990, Bankruptcy Act 1966, Prohibition Of Human Cloning For Reproduction Act 2002, Social Security Act 1991, Migration Act 1958 to name a few) there are differences in the relationships covered by the term “de facto” as it appears in the different legislation, not only because of the different wording but also the different purposes of the statutory schemes. Thus, as His Honour notes in paragraph 22:
“It may well be a person is in a relationship sufficient to satisfy s.4AA of the Family Law Act 1975, yet not satisfy the relevant provision of the Social Security Act 1991.”
·Looking at the principles of statutory interpretation as set out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 where the High Court held:
[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole."
His Honour states at paragraph 25:
“The result is the definition must be interpreted in the context of the operation of the Family Law Act 1975.”
Having considered the matters referred to above His Honour concludes in paragraph 27 as follows:
27.The matters referred to in s.4AA should be considered, along with any other facts or circumstances in the particular case or relationship ‘as may seem appropriate in the circumstances of the case’: see s.4AA(4). Care must be exercised before relying upon either the authorities, or developed norms, with respect to the definition of the term ‘de facto’ under other legislative provisions…
I am in agreement with His Honour’s conclusion. Whether the parties have been living in a de facto relationship must be determined by reference to the definition as set out in the Family Law Act 1975. It can not be determined by reference to the definition of “de facto relationship” as contained in other legislation nor decisions interpreting such other legislation. Further, the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.
Thus in order to determine whether the parties were “a couple living together on a genuine domestic basis” for a period of two or more years, it will be necessary to have regard to all the circumstances of their relationship in the context of the matters set out under subsection (2) of section 4AA of the Act but keeping in mind subsection (3) of section 4AA of the Act requires:
“No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.”
and that subsection (4) of section 4AA of the Act enables the court 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.”
The evidence
The parties’ relationship would appear to have had three quite distinct phases. The first was from November 2002 to December 2007 when both parties resided in Melbourne (“the Melbourne phase”). The second was between December 2007 and May 2009 when the applicant resided in [V] and the respondent spent considerable time in [V] (“the [V] phase”). The third was between 23 May 2009 and 11 December 2009 when both parties are in agreement they were in a de facto relationship (“agreed de facto phase”).
It is my intention to examine the parties’ evidence as to the nature of their relationship in each of the “phases” in the context of the circumstances as set out in section 4AA(2) of the Family Law Act 1975.
The Melbourne phase
(a) The duration of the relationship
Neither party disputes they were in a relationship for the entirety of this period. It is the nature of this relationship that is in dispute. The applicant’s evidence is she considered the relationship to be:
“exclusive and to be a de facto relationship from November 2002 onwards.”[1]
The respondent agrees that the parties commenced a relationship in November 2002 but says it was:
“sexual and one of friendship only.”[2]
[1] Paragraph 9 of the applicant’s affidavit sworn 1 April 2010 and filed 6 April 2010.
[2] Paragraph 2.9 of the respondent’s affidavit sworn 16 April 2010 and filed 19 April 2010.
(b) The nature and extent of their common residence
It is common ground that in this period the parties did not share a common residence. The applicant and her children from previous relationships resided in various rental accommodations (paid for by the respondent) and the respondent maintained his then home in [E], Melbourne.
It was also common ground the parties did not spend time together at each other’s independent residences and did not perform any household tasks for each other.
The parties would dine together on average five nights a week and then go to the respondent’s boat “[N]” at [omitted] Marina. It was the applicant’s evidence at the hearing of the matter the parties would stay overnight together, often with the applicant’s young son [Z] born [in] 2001 (“[Z]”), on average four nights per week. The respondent’s evidence was that the parties would dine with each other, repair to the boat where intimate relations ensued and then return to their respective homes by 11.00 pm to 12.00 am. It was his evidence they only spent one or two nights per week on the boat, usually on the weekend.
In her affidavit sworn 1 April 2010 at paragraph 23 the applicant deposed:
“[Z] and I often slept a night or two each week upon the Respondent’s [omitted] boat.”
In her affidavit sworn 5 May 2010 the applicant deposed at paragraph 7:
“From late 2002 until December 2007, the Respondent and I would spend on average at least 4 nights together on the Respondent’s [omitted] boat… We started out by only spending a night or two on the boat together in the early months of our relationship however the number of nights soon increased with the passing of time.”
In support of the applicant’s evidence in this regard, she filed an affidavit from Ms P sworn 10 June 2010. Ms P also gave vive voce evidence at the hearing of the matter. In that evidence she deposed that she had only known the parties as a couple, having met them as she and her partner had a boat that was berthed next to the boat owned by the respondent. It was her evidence that the parties would come to sleep on the boat about three times a week and that [Z] would often accompany them.
In cross-examination Ms P conceded that she was only at her boat on weekends and that she was not in a position to give evidence of what she had personally observed in relation to the amount of time the parties spent at the boat during the week.
(c) Whether a sexual relationship exists
It is common ground that the parties had a sexual relationship for the entirety of their time together as a couple.
(d) The degree of financial dependence or inter-dependence, and any arrangements for financial support, between them
From April 2003 until December 2007, the applicant lived in four different rental properties with her three sons [X] born [in] 1987 now aged 23 years (“[X]”), [Y] born [in] 1991 now aged 18 years (“[Y]”) and [Z] currently aged 9 years. These properties were leased in the respondent’s sole name and the respondent paid all the rental on these properties.
It was the applicant’s evidence that in addition to paying the rental for herself and the children, the respondent paid for dinner on average five times per week as well as for family groceries on a weekly basis. She deposed that the respondent paid for overseas travel for themselves and the children including holidays to New Zealand, the United States, Canada and [V].
The applicant deposed that the respondent paid for private health insurance for herself and her son [Z] between 2008 and June 2009, as well as for dental procedures which were not covered by health insurance.
The applicant, in cross-examination, agreed that she was responsible for the payment of all her utilities, maintained separate bank accounts from the respondent, maintained separate private health insurance and owned her own motor vehicle.
It was the respondent’s evidence that during this period he gifted the applicant substantial amounts of money as at that time he was able to afford to do so. The respondent also agreed that he had paid for overseas holidays for himself, the applicant as well as their respective children. It was the respondent’s evidence that on the rare occasions he was at the supermarket with the applicant that he would generally pay for the groceries as he could afford to do so.
In relation to the payment of the applicant’s private health insurance, it was the respondent’s evidence that the applicant had used his credit card to make those payments without his permission and that when this came to his attention, he immediately advised her to stop utilising his credit card in this manner.
It was the applicant’s evidence that in addition to the financial assistance provided by the respondent, she was in regular receipt of weekly maintenance of $150.00 from [Z]’s father, Mr W, together with a sole-parenting benefit from Centrelink.
It was the respondent’s evidence, which was conceded by the applicant, that he had not known the identity of [Z]’s father until the filing of the applicant’s first affidavit. Further, the respondent was not aware that the applicant had been in receipt of maintenance and Centrelink payments during their relationship until the applicant’s affidavit was filed. This will be expanded upon later in this judgment.
It was the applicant’s evidence that during this period she was very much involved in the respondent’s business.
The respondent was the owner of a business known as “[P] Pty Ltd”. [Work performed by applicant omitted.]
It was the applicant’s evidence that the respondent sought her advice on most of his day to day business activities. She gave evidence that she assisted the respondent with staffing issues between 2002 and 2007, which primarily involved selecting new staff for [P] when positions became vacant.
The applicant also gave evidence that she researched [omitted] companies in the United Kingdom and examined the potential market in the United Kingdom.
The respondent categorically denied that the applicant had any involvement in any business that was operated by him save for assisting with a “few” [omitted]. It was his evidence that she had no involvement in staff selection, save for recommending a friend at one stage and pressuring him to give her son [X] a job.
The respondent indicated it was he that travelled to the United Kingdom to look at that market for [omitted] in that country and that the applicant did not accompany him on that business trip.
The respondent filed an affidavit from Ms A who had been an employee of [P] between 2000 and 2007. Ms A also gave viva voce evidence at the hearing of the matter.
In her evidence Ms A indicated that she was aware that the applicant had assisted the respondent in [omitted] in around 2003, but that otherwise the applicant had no involvement with the business while
Ms A was employed there. She indicated that she had only seen the applicant attend the business premises of [P] on one or two occasions and had not met any of the applicant’s children including her son [Z].
It was Ms A’s evidence that other than the [omitted] period in 2003, she had not known the applicant to have any involvement with [P].
It was Ms A’s evidence that she had no knowledge of the respondent’s domestic relationships as their discussions were about business matters only.
(e) The ownership, use and acquisition of their property
It is common ground that in this period there was no jointly owned property by the parties, nor were there any properties jointly acquired by them in this period.
(f) The degree of mutual commitment to a shared life
In her affidavit sworn 5 May 2010 at paragraph 41, the applicant deposes as follows:
“I acknowledge that our relationship was sexual and that it was also one of friendship, but that it was also one of mutual dependency… I agree with the Respondent when he says that we would see each other on average five nights out of seven.”
Further in paragraph 42 she deposes:
“The Respondent and I did not see a lot of each other during the day during the week. This is like a normal husband and wife situation where the husband works and the wife stays at home.”
The applicant deposes that her relationship with the respondent was an exclusive one and that she was committed to the respondent and to their life together into the future. She denied the respondent’s allegation she told him she had sex with a man in Sydney during this period.
As set out earlier in this judgment, the respondent’s evidence was that theirs was a sexual relationship and one of friendship but that he saw it as nothing more than that. It was his evidence that it was not an exclusive relationship and that he was involved with other women as well as with the respondent. When cross-examined, he was unable to name these women other than to say he visited them after the races and before meeting the applicant on a Saturday.
In support of this claim, the respondent filed an affidavit from Mr C, who also gave viva voce evidence at the hearing of the matter. It was Mr C’s evidence that he and the respondent had been friends for over 40 years, that he was aware of the respondent having relationships with other women during the same period he was going out with the applicant and that at no time did the respondent advise or indicate to him that he was in a committed relationship with the applicant.
I accept the applicant’s evidence that her relationship with the respondent was an “exclusive one”. I found the respondent’s evidence that he had other relationships less than convincing.
However “exclusivity” is not necessary for a finding that the parties have been in a de facto relationship under the Family Law Act 1975. The definition of “de facto relationship” under section 4AA of the Family Law Act 1975 does not require exclusivity and makes it clear that such relationship can be established even if one or other of the parties is married or in another de facto relationship (see section 4AA(5)(b)).
As set out earlier in this judgment, it was not until the applicant filed her affidavit material that the respondent was advised as to the identity of [Z]’s father, that the applicant had been in receipt of ongoing child support for [Z] from his father and that she had been receiving Centrelink payments for the entirety of the Melbourne phase of their relationship.
It was the respondent’s evidence that when they commenced their relationship, the applicant had told him that [Z]’s father was a gentleman by the name of “[first name omitted]” with whom she had been in a violent relationship and from whom she had fled from Sydney to Melbourne.
This was not disputed by the applicant and when cross-examined as to why she had withheld this information from the respondent, she gave evidence that as they had only just met, she wasn’t going to tell him her whole life story at that time, particularly in circumstances where [Z]’s father was then in another relationship and in circumstances where there was some embarrassment about [Z]’s conception as the applicant was not in a relationship with Mr W at the time of his conception. She was also concerned as to the age difference between [X] and [Z], [X] having the same father as [Z].
The applicant was unable to offer any explanation as to why, with the development of the relationship, she had not subsequently told the respondent the truth of [Z]’s paternity or the extent of the financial support provided to her by [Z]’s father.
(g) 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 never registered under a provision of State or Territory legislation.
(h) The care and support of children
When the parties commenced their relationship in 2002, the applicant’s youngest son [Z] was only a baby.
It was the applicant’s evidence that [Z] looked upon the respondent as his father-figure, that he was enrolled in kindergarten and school using the surname “Dakin-Sansbury” and that the respondent had provided financial support for [Z], including paying for kindergarten fees, school fees, sporting activities, clothing and other expenses for [Z].
It was the applicant’s evidence that the respondent attended [Z]’s school functions with her, as well as sporting events where he would urge [Z] on by yelling out “Go [Sansbury]”. She deposed that [Z] referred to the respondent as “Dad”.
It was the respondent’s evidence that he did have a role in [Z]’s life, and as he was of the impression that [Z] did not have a father in his life, he did not discourage [Z] from calling him “Dad” or looking upon him as a father-figure. It was his evidence that if he had known the truth as to [Z]’s paternity, and in particular that he had the same father as [X] and a father who was financially supporting him, he would not have encouraged [Z] to refer to him as “Dad” or been so overtly supportive of [Z] in their interactions with each other.
The respondent denied knowingly paying for any expenses associated with [Z] but conceded that it was possible that the monies he gifted the applicant could have been used in [Z]’s support in the ways that the applicant described.
In her initial Application before the court, the applicant was pursuing orders for the respondent to pay maintenance for [Z]. When the matter proceeded before me, the applicant advised the court she was not pursuing that Application, nor would she be pursuing that Application into the future in the event that the court was found to have jurisdiction to hear the substantive property matters between the parties.
The reputation and public aspects of the relationship
It was the applicant’s evidence that she considered that she and the respondent were in a committed, mutually dependent relationship and that they presented themselves publically as a couple.
It was her evidence that in December 2002, shortly after the commencement of their relationship, she and the respondent together with their respective children all flew to [L], USA where there was some discussion about them marrying. It was her evidence that she and the respondent decided it was too early in their relationship and no marriage took place.
It was the applicant’s evidence that when in public with the respondent, he would introduce her as either his fiancé or his partner.
It was the applicant’s evidence that they socialised together with both friends and family regularly and that their friends and family understood them to be a committed couple.
The applicant filed several affidavits from family and friends in relation to their understanding of the relationship that existed between herself and the respondent.
She filed an affidavit from Mr S, the respondent’s adult son. Mr S also gave viva voce evidence at the hearing of the matter. It was Mr S’s evidence that he first met the applicant with his father when he was
12 years old and travelled with them to [L], USA. It was his evidence that he understood they were to get married but ultimately that didn’t take place. He saw the parties as being in a committed relationship as whenever they travelled together they would hold hands, share the same hotel room and behave generally as “boyfriend and girlfriend”. It was his evidence that he would see his father and the respondent on average once a month, if not every couple of months between 2002 and 2007.
Mr S indicated that he was aware that in the Melbourne phase the parties had never lived together. It was his evidence that he had had no contact with his father since late 2007 when the home in which he, his mother and sister were living was sold by the respondent, leaving them without any accommodation.
Ms P filed two affidavits on the applicant’s behalf, one sworn 19 April 2010 and the second sworn 23 May 2010. Ms P also gave viva voce evidence at the hearing of the matter.
It was Ms P’s evidence that she and the applicant are close friends who saw each other several times a week.
It was her evidence over the seven years that the parties were in Melbourne, she would have gone out with them socially as a couple on 10 to 12 occasions. She described the respondent as “possessive” of the applicant, giving evidence that when the applicant was visiting her the respondent would often ring the applicant and, if she and the applicant went out separately to the respondent, he would ring to see where she was and what time she would be returning. It was Ms P’s evidence that the applicant would be worried about upsetting the respondent if it would appear she was going to be returning late.
Ms P described the parties as a couple who planned things together, including trips and holidays, and that she considered them to be in a committed long-term relationship.
The applicant also filed affidavits from Ms M which were sworn on
5 May 2010 and 24 May 2010.
It was Ms M’s evidence that she lived with the applicant and her three children in 2003 and 2004. It was her evidence that during this period she paid no rental but would babysit [Z] when the applicant went out regularly in the evenings to spend time with the respondent. It was
Ms M’s evidence that the applicant and respondent would stay at the boat on most weekends and on occasions during the week as well. Her evidence as to how often the weekly overnight stays were was somewhat vague, other than to depose that often when she woke in the morning at 7.30 am, the applicant would have arrived home and be preparing breakfast for [Z].
It should be noted that these witnesses, together with two others, also gave evidence that was relevant to the [V] period and that aspect of their evidence will be referred to in that component of the judgment.
The respondent did not deny that he and the applicant were in a relationship in this period and that they were seen by friends to be a couple. He disputed that he referred to the applicant as his fiancé, but conceded that he would introduce her either as his girlfriend or his partner when they were out together socially.
It was the respondent’s evidence that at no time did he give any indications that their relationship was anything other than that of boyfriend and girlfriend, or that there was anything other to the relationship than companionship, friendship and ongoing sexual interaction.
During this period, both parties maintained independent residences. The respondent’s former partner and his children lived in a house owned by him at the rear of where he was living and his former partner, it would appear in lieu of rental, performed all his domestic duties including cleaning and washing.
During this period the respondent was a full-time [omitted] as well as the owner of [P] Pty Ltd. The respondent owned, sold and bought a number of properties, both in Melbourne and Geelong, as well as the boat “[N]”. These businesses and enterprises would appear to have been successful in this period, enabling the respondent to live a very comfortable lifestyle as well as enabling him to pay the applicant’s rent and to gift her substantial sums of money from time to time.
The [V] phase
The parties first visited [V] in 2005, at the applicant’s suggestion, for a holiday.
Over the next two years they were regular visitors to [V], during which time its’ potential for investment was explored.
It is the applicant’s evidence that towards the end of 2005 the respondent told her that he wanted a change in lifestyle, that he was sick of [occupations omitted]. It was her evidence that the respondent told her that he wanted to reinvent himself and live with her and [Z] in [V] where he could see real potential for the development of business.
It was the applicant’s evidence that she thought long and hard about moving to [V] with the respondent, as that would involve leaving her two older sons, but there was a decision made by both of them in 2007 that they would move to [V].
It was the applicant’s evidence that she and the respondent searched for a suitable family home in [V] and the property at Property C was purchased in October 2007. It needed renovations completed, including the completion of bathrooms and those renovations were completed under the parties’ direction. She, the respondent and [Z] went to [V] in December 2007 when they moved into the Property C property.
It was her evidence that [Z] was enrolled in a French-speaking school in [V] and he commenced there in March 2008.
It was the applicant’s evidence that investments were made by the respondent in real estate and various businesses in [V], as well as ongoing enquiries made in relation to whether it was possible to invest in a [omitted].
It was her evidence that during this period the respondent commuted between Melbourne and [V] as he continued to be involved in the business of [P] even though he had sold it in 2007.
It was the applicant’s evidence that whenever the respondent came to [V], he would live in the Property C property with herself and [Z].
The applicant gave evidence that prior to moving to [V], all her furnishings had been either placed in storage in a container on a property owned by the respondent in Geelong or were used to furnish premises at Property R, Geelong (“Property R”), which were also owned by the respondent. It was her evidence that when in Australia, the respondent lived in the Property R property.
The applicant gave evidence that she regularly returned to Victoria and when she did so she would live with the respondent at Property R.
It was the applicant’s evidence that in or around Christmas 2008, the respondent approached her to advise her that he was finding the [V] experience very hard and by March 2009 had told her that he “hated the place” and that if they were going to be together then she would need to move back to Australia.
It was the applicant’s evidence that she then decided to move back to Australia and did so in May 2009 where the parties commenced cohabitation in rental accommodation at Property V in Geelong.
It was the respondent’s evidence that at no time did he decide to relocate to [V]. It was his evidence that it was the applicant who wished to live in [V] and it was she and she alone who relocated there, albeit in the Property C property purchased by him. In relation to that property, it was the respondent’s evidence that it was purchased as a holiday home and investment only.
It was the respondent’s evidence that he never lived in [V], but he would travel to [V] every three or four weeks for approximately three to four days. It was his evidence that of the 495 days between
10 December 2007 and 24 April 2009, he spent only 101 days in [V]. The respondent gave evidence that he at all times maintained his Australian citizenship and paid tax as an Australian citizen.
The respondent conceded that the applicant did return to Australia on many occasions after relocating to [V], and that when she did so she would live with him in the Property R property. He was adamant however that during this period they did not live together either in [V] or in Australia.
It was the respondent’s evidence that it was the applicant’s decision to return to Australia from [V] as she had decided that it was not somewhere she wished to live permanently.
I will now look at the [V] phase in the context of the factors set out under section 4AA(2) of the Family Law Act 1975.
(a) The duration of the relationship
The parties were in a relationship for the entirety of the [V] phase. It would appear that the parties “commuted” between [V] and Victoria. There were periods when they were in [V] together, periods when they were in Victoria together and periods when the applicant was in [V] and the respondent in Victoria.
(b) The nature and extent of their common residence
During this period, the parties did share residences. When in [V] they lived together in Property C and when in Victoria they lived together in the Property R property. Thus they were living together during this period though I accept that for almost half of the time they lived apart because the applicant was based in [V] and to some extent the respondent was based in Victoria.
(c) Whether a sexual relationship exists
During this period the parties continued their sexual relationship.
(d) The degree of financial dependence or inter-dependence, and any arrangements for financial support, between them
There was very little evidence led by either party as to what the financial arrangements were between them during the [V] period.
In her affidavit sworn 5 May 2010 in paragraph 69, the applicant deposes as follows:
“During my time in [V], the Respondent fully supported [Z] and myself.”
In paragraph 69 of his affidavit sworn 3 June 2010 and in response to paragraph 69 of the applicant’s affidavit, the respondent deposed as follows:
“I was not responsible for the support of the Applicant and her children however I did pay mortgage payments in relation to the property were the Applicant resided but I did not provide the Applicant with money for living expenses. I did not pay utilities and telephone accounts. I had no knowledge what the Applicant’s income was. I presumed it was from the business that she was operating herself being [B]. The applicant whilst in [V] was receiving funds from Mr W and I believe Centrelink. She was also operating a business known as [B]… and presumably receiving money from that business. I also believe that the Applicant removed money from the business known as “[W]” that she was not entitled to.”
During the running of the matter, a document headed “Proposal” was placed into evidence before the court. This was a lengthy letter that was sent by the applicant to the respondent in or around September 2008. In that correspondence the applicant is putting a proposal to the respondent that he transfer to her the business known as “[B]” in order to alleviate the financial pressures on the respondent of having to support the applicant and her son [Z] in [V]. In the first page of that document, the applicant writes as follows:
“I feel that you regard me as a big financial burden and it hurts very much.
What I am proposing will mean that our relationship might survive and even become fun again if I can somehow manage to make the [B] Business work well enough to provide for me and [Z] and [name omitted] and ensure that I can have financial independence from you.”
Further in the document, the applicant writes:
“The reality is that you never made any provision of money for me and [Z] to live. It is cruel and horrible that you just did not consider it but that is no longer the point. I am going back to totally no money for groceries, [Z]’s health, let alone my own health.”
The applicant then writes:
“I don’t want you to be responsible for me for everything. I have never wanted it, and it is strangling us. I have very much appreciated your paying the rent over the years but I have never been able to earn because of our constant travel, our pursuit of our dreams, the nature of our full on night time relationship etc., [Z] would never see me, and I am the only person he has, at the end of the day.”
It was apparent from the parties’ evidence that by September 2008, the [V] experiences and investments were not panning out as had been hoped. It would appear that the respondent was starting to experience considerable financial difficulty and had become disenchanted with the prospects for investment in that country.
The parties’ evidence as to the level of their respective involvement in the development of the investments in [V] was quite markedly different. It was the applicant’s evidence that she went with the respondent to inspect properties in [V], dealt with the Government, accountants, staffing, boat-building and repairing engineers as well as performing secretarial duties on the respondent’s behalf. It was her evidence that she made all arrangements for travel for the respondent as well as the staff engaged by them in their various businesses and that she was the “go to” person in [V], especially when the respondent was in Australia.
To this end, the applicant filed an affidavit from Mr D sworn
24 May 2010 and Mr Dakin gave oral evidence at the hearing of the matter. Mr Dakin is the Managing Director of [Dakin] Pty Ltd, who were engaged by the parties to effect repairs to a boat named “[R]” that the respondent had bought on the internet with a view to taking it to [V] as a business enterprise. It was Mr Dakin’s evidence that he met the applicant and respondent together, that they presented themselves to him as a couple, that the applicant attended his meetings with the respondent and took notes and that she accompanied them when they travelled to Tasmania to discuss engaging a captain to sail the boat to [V].
Mr Dakin conceded that he has instituted proceedings against the respondent for outstanding monies owed to him and that he had not instituted those proceedings against the applicant. It was his evidence that as he had done most of the business with the respondent, it appeared to him that the respondent was the main person and director of the business.
Mr O, architect, also filed affidavits on behalf of the applicant which were sworn on 19 April 2010 and 1 June 2010. Mr O also gave evidence at the hearing of the matter. It was his evidence that the respondent introduced the applicant to him as his partner and that at the request of the respondent, he travelled to [V] to look at his various property investments and prepare plans for a potential [business omitted] that was being contemplated in [O].
It was Mr O’s evidence that he understood the applicant and respondent’s financial affairs to be enmeshed. When challenged as to how he would know this, it was his evidence that he was fairly knowledgeable of the respondent’s financial circumstances, at least in 2007, as such information was needed to enable the discussions they were having in relation to the possible kinds of developments that were being contemplated.
Mr O gave evidence that he had discussions with the parties around the “[W]” business and the involvement that the applicant would have in the running of that business.
Mr O conceded that he currently has a dispute with the respondent before VCAT in relation to alleged monies owed by the respondent to him. He confirmed he was suing the respondent in his personal capacity as the respondent had signed an agreement with him in relation to the respondent’s property called “[S]” in Geelong.
The respondent denied the level of involvement claimed by the applicant in the [V] investments and businesses. It was his evidence that he was the driving force behind the investments in [V], it was he who dealt with any Government officialdom as was required and that whilst the applicant did assist with the staffing arrangements in [V] as well as making his travel arrangements, her involvement was relatively minimal.
The respondent filed an affidavit from Mr M, who is his [V]-based accountant, sworn 26 May 2010. Mr M also gave evidence at the hearing of the matter. It was Mr M’s evidence that he had never been aware of or at any time believed that the respondent was residing in a de facto relationship with the applicant. He agreed he had met her in [V] with the respondent and that he was aware that when in [V] the respondent resided at the Property C property with the applicant.
It was Mr M’s evidence that he did not believe that the applicant was involved in the respondent’s businesses in [V]. Placed into evidence were copies of facsimiles dated 30 April 2009 and 11 August 2008 directed from Mr M to the applicant in relation to a business known as “[H] Limited”. The facsimiles required the applicant to provide certain financial documentation and also forwarded copies of unsigned agreements and requested that she undertake certain actions in or on behalf of [H] Limited. Mr M was unable to explain why he would be forwarding this documentation to the applicant if she did not have any involvement in the businesses being conducted in [V].
I am satisfied that the applicant was wholly dependent upon the respondent for her financial support whilst she was resident in [V], and that with the deterioration of the respondent’s financial position, this caused ongoing tension and conflict between them.
(e) The ownership, use and acquisition of their property
During this period a significant number of assets were purchased by the respondent including real estate, businesses, boats, jet skis and motor vehicles. The financing for such purchases was provided solely by the respondent.
The applicant and her son [Z] lived in the Property C property, which is where the respondent stayed whenever he was in [V]. In 2008 the applicant’s son [X] moved to [V] and moved into Property C. He became involved in the [W] business.
The applicant was involved in the conduct of the [W] and [B] businesses and the latter was transferred to the applicant (pursuant to her request) by the respondent in late 2008.
The applicant did not invest any monies personally into [V] as she did not have any funds to so invest.
(f) The degree of mutual commitment to a shared life
It was the applicant’s evidence that as early as 2005 the respondent expressed a dissatisfaction with his life in Australia and that they formulated the plan to invest in and move to [V] to pursue their life and relationship there.
It was her evidence that having made that decision the parties took a number of trips to [V] to investigate various properties and possible investments. The applicant further deposed that in 2007 the respondent started to dispose of his assets in Australia and to invest them in properties and businesses in [V].
It was the applicant’s evidence that the parties plan to sell up in Australia and relocate to [V] was told by herself and the respondent to various family and friends prior to their leaving for [V] at the end of 2007.
It was the applicant’s evidence that unfortunately the [V] dream did not come to fruition and by late 2008 the respondent advised her that he no longer wished to pursue their life in [V]. In light of that information she and her son [Z] moved back to live with the respondent in Australia in May 2009.
All the witnesses called by the applicant confirmed that they had had discussions with the respondent prior to December 2007 in which he told them that it was his intention to move to live in [V] with the respondent.
It was Mr S’s evidence that the respondent, his father, came over to visit him at his home in [E], Melbourne and told him that he was selling everything in Melbourne to start a life in [V] with the applicant. It was Mr S’s evidence that the respondent told him that he would be moving after the property in which they were living was sold.
It was Ms P’s evidence that the respondent had told her at dinner that he had bought property in [V] with the intention of residing there.
Ms P’s evidence was that in discussions with the applicant and respondent, they had told her that they were moving to [V]. It was her evidence that the respondent had told her that he had business plans there that involved projects such as [omitted], and that they had bought a house in [V] in which to live.
It was Ms M’s evidence that at [Z]’s birthday party in July 2007, the applicant and respondent told her they were moving to [V] to live with [Z]. It was also her evidence that the respondent told her in 2009 that he had decided he no longer wanted to live in [V] and had made a mistake in investing there.
The respondent denied absolutely that he ever proposed to reside in [V] and claimed that it was the applicant who wished to live there with her son [Z] as she wanted [Z] to learn a second language.
It was the respondent’s evidence that whilst he did have a ten year resident visa for [V], this was obtained because it made travelling to and from [V] much easier. It was his evidence that he never resided in [V] on a permanent basis, that he always maintained a residence in Australia, that he always paid taxes as an Australian citizen in Australia and that if he had intended to reside in [V] he would have taken advantage of the tax-free status of [V].
It was the respondent’s evidence that in or around August 2008 he caused his then solicitors to prepare a draft “Financial Relationship Agreement” which attempted to regulate the parties’ financial arrangements. The Agreement was predicated on the respondent’s allegation that they had not been living in a de facto relationship but were contemplating doing so in the future. The applicant rejected the Agreement on the basis that it did not reflect the reality of their relationship, nor was it fair. She conveyed her opposition to the document to the respondent who did not pursue the matter further.
(g) 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 never registered under a provision of State or Territory legislation during this period.
(h) The care and support of children
[Z] lived with the applicant in [V] and was enrolled to attend school in [V]. It was the applicant’s evidence, not disputed by the respondent, that they both attended [Z]’s school in [V] to enrol him and that [Z], along with the applicant, was financially dependent upon the respondent during this period. It was the applicant’s evidence she did not receive child support for [Z] from his natural father during this time.
As noted previously in this judgment, the applicant advised the court that she was not pursuing any Application for contributions from the respondent in relation to [Z]’s care into the future.
The reputation and public aspects of the relationship
It was the applicant’s evidence that she and the respondent were known in [V] to friends, business associates and the Government officials with whom they dealt in [V] as a committed couple and that at all times she was introduced to others by the respondent as his partner.
Again, as previously set out in this portion of the judgment, the witnesses called by the applicant confirmed that that was their understanding of the relationship between the parties and how they presented themselves to them and to the world at large.
The respondent did not deny that the parties were in a relationship and were a couple during this period, but was adamant it was not a de facto relationship.
There is no doubt that during this period the parties experienced some real difficulties in their relationship because of the realisation that their dreams of making their fortune in [V] were not realised.
Further, it also became apparent that having determined there was no future for the applicant or the respondent in [V] they were required to make decisions in the context of where they were going to live into the future.
This is very much borne out in the “Proposal” of the applicant to the respondent sent to him in September 2008 and previously referred to in this judgment where she says:
“I have to stay there (sic [V]) for [Z]’s sake. Our relationship is not stable enough to live here together, and you are under so much pressure that it is ridiculous to even contemplate such an idea right now.”
The agreed de facto phase
Both parties are in agreement that they were in a de facto relationship, living together in Geelong between 23 May 2009 and 11 December 2009.
On 11 December 2009 following an argument between the parties, the applicant made an Application for an Intervention Order against the respondent in the Geelong Magistrates Court after which the respondent moved out of the parties’ then rental accommodation at
Property V. It was the applicant’s evidence that between that date and 17 January 2010, the parties attempted to “salvage” their relationship whilst they resided in separate properties. It was the applicant’s evidence that they went on a big trip together, ate dinners together, spent nights together in various hotels and continued their sexual relationship. It was the applicant’s evidence that she determined the relationship was finally at an end on or around 17 January 2010 when she found the respondent on her premises in breach of the Intervention Order.
The respondent agreed that after the Intervention Order was taken out on 11 December 2009, he and the applicant went out to dinner, went on trips together and continued their sexual relationship. It was his evidence that this was a resumption of the relationship that they had had prior to their period of cohabitation and was not a resumption of their de facto relationship.
It was common ground that the respondent continued to be responsible for rental on the applicant’s premises up until 17 January 2010.
Conclusion
There are very few Family Law authorities as to the definition of a
“de facto relationship” under section 4AA of the Family Law Act 1975 since the amendments to the legislation were made.
I have already made reference to the illuminating judgment of Riethmuller FM in Baker & Landon [2010] FMCAfam 280.
Cronin J in Moby & Schulter [2009] FamCA 1285, a judgment that is a great deal shorter than this one, drew the conclusion that he was able to make a finding as to the nature of the relationship on untested evidence because:
“…both parties have acknowledged that they have had some sort of relationship, bearing in mind that s 4AA gives the court a very wide discretion to define what a relationship really means.”
Later in the decision, noting the differences in the parties’ version of the relationship, Cronin J draws the conclusion that it fell within the definition of de facto relationship:
“vague as it is.”
In the matter of Pike & Howlett [2010] FMCAfam 802 Turner FM was also called upon to make a declaration as to the existence of a
de facto relationship. In a similarly succinct judgment, Her Honour cited with approval the observations of Powell J in the matter of Roy v Sturgeon (1986) 11 NSWLR 545 where at page 274 His Honour stated:
“With respect, it seems to me, to attempt to dissect the phrase ‘living together as a husband and wife on a bona fide domestic basis’ into discrete elements, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too will the various aspects of their relationship, which lead one to hold that a man and a woman are living together as husband and wife on a bona fide domestic basis, which will vary from case to case.”
In paragraph 275, His Honour Powell J states:
“The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long-term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.”
In his closing submissions on behalf of the respondent, Counsel argued that it would be a rare case indeed where two parties that did not share a common residence, would be considered to be living together on a genuine domestic basis.
It was submitted on the respondent’s behalf that the absence of a common residence during the Melbourne phase of the relationship and arguably during the [V] phase of the relationship is such that the parties could not be seen to have been “living together”.
It was further argued on behalf of the respondent that there was no degree of financial dependence or interdependence between the parties, particularly when the applicant was in receipt of Centrelink payments and maintenance during the Melbourne phase.
It was argued on behalf of the respondent that there was no common ownership, use or acquisition of property as all funds for the assets acquired during this period were provided by the respondent.
In relation to the issue of the degree of mutual commitment to a shared life, it was submitted on the respondent’s behalf that the deception by the applicant in relation to the paternity and financial support of [Z] was such that she could not argue that they had any commitment to a shared life. It was argued that the nature and extent of that deception was so great as to undermine any concept of a shared life.
In respect to the parties’ reputation and the public aspects of the relationship, the respondent argued that it was not at all unusual for people of the parties’ age to refer to each other as “partners” as opposed to “boyfriend and girlfriend”. The respondent acknowledged that the parties were in a relationship but was adamant as to its’ status, particularly as to it not being a de facto relationship.
In reply the applicant submitted that she has been very involved with the respondent and his life since they commenced their relationship. She argued that she has been totally financially and emotionally dependent on the respondent for the last seven years and that the entire direction her life took was because of the respondent. She submitted she would not have relocated to [V] but for the respondent nor would she be living in Geelong now if she had not been in an ongoing committed relationship with him.
I was invited by the respondent’s Counsel to make findings in relation to the credit of each of the parties in the context of the evidence that they gave.
It goes without saying that the respondent’s Counsel wanted me to make an adverse finding in relation to the applicant’s evidence.
I do not intend to make adverse findings of credit in relation to either of the parties. I am satisfied that each of them presented their evidence accurately from their perspective and in the context of how they viewed their relationship. On some level there is no doubt that there were times when the applicant may well have exaggerated the level of her involvement in the respondent’s enterprises and there were occasions when the respondent underplayed that involvement as well as the extent of the intensity of the relationship between the parties from time to time. However I am satisfied that overall each of the parties gave their evidence accurately from their perspective.
I did however have some difficulties with the respondent’s evidence in the context of the [V] phase. It is puzzling to me that someone would sell all of their Australian assets and invest in another country if they did not see for themselves a future in that country. I am also satisfied that in 2007 both parties told their family and friends they were moving to [V]. Be that as it may, I accept that the [V] “experiment” was unsuccessful.
Section 4AA(3) of the Family Law Act 1975 is very clear that:
“No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.”
The court has a very broad discretion as to whether a de facto relationship exists and determines same on the balance of probability.
In this matter, there is no doubt that the applicant was financially dependent upon the respondent from April 2003 to January 2010. For that period he paid all rental on her accommodation, contributed to her living expenses and during the [V] phase, albeit with some reluctance, totally and completely supported her and her son [Z].
In the matter of Moby & Schulter [2009] FamCA 1285 Cronin J was satisfied that there was a de facto relationship:
“because of the interdependence upon one another, or certainly on the basis of the dependence by the applicant upon the respondent up and until some time in 2009.”
It was the evidence before His Honour that the applicant in that matter had been dependent upon the respondent paying for her accommodation for a period after they had ceased to live together in the same residence.
I find that the parties in this matter were in a committed ongoing relationship over a very long period of time.
Whilst the Melbourne phase of their relationship was unconventional in that the parties did not have a shared residence, I accept that they spent time together almost every day of the week in circumstances that accommodated the realities of their personal commitments and their mutual decision not to conduct their relationship by adjoining their disparate family circumstances. By April 2003 the applicant was financially dependent upon the respondent as he was paying her rent and a substantial portion of her living expenses.
I am satisfied that the [V] phase came about as a result of a joint decision to pursue investments and a life in that country and that both acted to put those plans into effect. Unfortunately they were unsuccessful.
Accordingly, having considered all of the aspects of the parties’ relationship, and having looked at
“all of the circumstances of their relationship”
as is required under section 4AA(1)(c) of the Family Law Act 1975, I am satisfied that the parties were in a de facto relationship between April 2003 and December 2009 as defined by the Family Law Act 1975 and I so declare.
I certify that the preceding one-hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate:
Date:
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