Dandridge and Barron
[2012] FMCAfam 141
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DANDRIDGE & BARRON | [2012] FMCAfam 141 |
| FAMILY LAW – Whether the parties lived in a de facto relationship within the meaning of the Act – evidence does not support a declaration – Elias principle. |
| Family Law Act 1975, ss.4AA, 90RD, 90SM |
| Moby & Schulter [2009] FamCA 1285 Baker & Landon [2010] FMCAfam 280 Roy v Sturgeon (1986) 11 Fam LR 271 Elias v Elias (1977) FLC 90-267 |
| Applicant: | MS DANDRIDGE |
| Respondent: | MR BARRON |
| File number: | DGC 3464 of 2010 |
| Judgment of: | McGuire FM |
| Hearing dates: | 4 November 2011 & 5 December 2011 |
| Date of last submission: | 22 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Triaca |
| Solicitors for the Applicant: | Borchard & Moore |
| The Respondent: | In person |
ORDERS
That the application filed 11 October 2010 by Ms Dandridge be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dandridge & Barron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 3464 of 2010
| MS DANDRIDGE |
Applicant
And
| MR BARRON |
Respondent
REASONS FOR JUDGMENT
Ms Dandridge is the applicant for alteration of property interests pursuant to s.90SM of the Family Law Act 1975 (“the Act”). As a preliminary issue, the parties ask that I determine whether or not there be a declaration of a de facto relationship between the parties pursuant to s.90RD of the Act. The respondent, Mr Barron, disputes that he and the applicant were in a de facto relationship within the meaning of the Act. He agrees that the parties were in a relationship from about 2000 until late 2009. He says that the relationship did not proceed beyond that of “boyfriend and girlfriend”.
The law
Section 4AA of the amended Act defines de facto relationship as follows:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (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.
Section 4AA(2) sets out a number of “circumstances” which may be indicative for the Court of such a relationship. These references are, however, not necessarily definitive of a de facto relationship, nor do they cover the field. This is clear from the wording of the subsection which says:
(2) Those circumstances may include [my emphasis] 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.
The Act at s.4AA(4) and the authorities[1] make it clear that the Court has a wide discretion in determining whether there be a declaration. The Act states at s.4AA(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.
[1] Moby & Schulter [2009] FamCA 1285.
The relevant date for operation of jurisdiction of this Court in making a declaration is 1 March 2009.
Federal Magistrate Riethmuller considered the nature and extent of the Court’s jurisdiction in Baker & Landon[2] with his Honour commenting at [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.
[2] [2010] FMCAfam 280.
Without the precision, certainty and formality of a marriage certificate, courts in various jurisdictions have long been confronted with the plethora of types of relationships and levels of domestic and emotional commitment between adults in determining the status of a de facto relationship. Justice Powell in Roy v Sturgeon[3] when dealing with a matter under the New South Wales Property (Relationships) Act 1984 stated at [458]:
With respect, it seems to me that 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 markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case…
[3] (1986) 11 Fam LR 271.
The applicant’s case
Ms Dandridge’s argument can be summarised as follows, and borrowing from her counsel’s final submissions:
a)The applicant says, and the respondent concedes, that there was an ongoing sexual relationship between the parties over a period of approximately 10 years.
b)There are two children of the relationship being X born (omitted) 2002 and Y born (omitted) 2004.
c)The applicant says, and the respondent concedes, a regular and significant degree of financial support and assistance afforded her by the respondent over the 10 year period and that the parties appear to have consistently and regularly argued over financial matters.
d)The parties presented themselves publicly as a couple and a family unit.
e)The parties “lived together” for periods being either at the respondent’s various residences and/or at the applicant’s rented premises.
f)The parties were in fact engaged to be married.
The respondent’s case
Mr Barron’s argument can be summarised as follows:
a)The parties did not live together such as they could be considered to be in a genuine, consistent and committed domestic relationship as distinct from regular liaisons for the purposes of sexual intimacy.
b)The applicant maintained separate rented premises throughout the relationship.
c)The applicant had independent means of support for herself and the children by way of Centrelink benefits and child support payments and in respect of both benefits the applicant denied that she was living in a de facto relationship and/or was financially supported by the applicant.
d)The applicant publicly, and through various social media, held herself out to be a single woman who was open to other sexual relationships.
e)There was no mutual financial commitment in the sense of joint bank accounts or commonly owned property.
The evidence
Both parties relied upon a number of affidavits. The respondent tendered many documents into evidence corroborating the factors set out above and in support of his case. The applicant adduced evidence from her mother, Mrs Dandridge, and third party witnesses. The respondent adduced evidence from a number of third parties effectively to corroborate his argument that the parties did not live together at all or consistently.
Both parties and their witnesses gave evidence and were cross-examined.
The applicant was represented by counsel at the hearing. The respondent represented himself throughout the proceedings and at the hearing. He did so in a competent, detailed and articulate manner.
Discussion
The duration of the relationship
It is clear on any version of the evidence that the parties met in about 2000 and continued a form of relationship for near 10 years. Both parties agree that the relationship was volatile and that there were breaks in that relationship, sometimes for a period of months. The applicant’s own mother gave evidence of many arguments and breaks in the relationship only for the parties to reconcile.
The nature and extent of the parties’ common residence
During the course of the relationship the respondent bought and sold a number of residences. On each occasion the title was registered in his own name, although the applicant says that, on at least one occasion, she assisted in the inspection and choice of his home. There is no suggestion that the applicant made a direct financial contribution to the purchase of any real estate.
Although not immediately clear from the applicant’s own affidavit material, it became apparent from cross-examination and from documents tendered by the respondent, that the applicant maintained rented premises for herself from January 2004 until October 2009. She rented an investment property owned by her mother. She admitted that she paid actual rent to her mother.
I have some concern that the applicant did not see fit to admit in her early affidavit material that she maintained a separate rented residence for almost six years. In her lengthy affidavit sworn 5 April 2011 and in support of her amended initiating application filed the same day, the applicant sets out her evidence in respect of the “nature and extent of common residence”. At paragraph 9 of that affidavit she refers to three various homes owned by the respondent which she says “…the Respondent and I moved in to…”. Nowhere does she disclose that she maintained her own rented premises.
Her later affidavits are similarly silent in this regard although she does allude to the fact that she would “go to my mother’s” during periods of argument or breaks in the relationship. No satisfactory explanation was given during her evidence as to what I see as this relevant omission.
The applicant says that she provided furniture and contents for the respondent’s homes. He counters by arguing that these were purchases made by the applicant in anticipation of her bankruptcy and that the applicant at no time provided more than isolated items of furniture and contents for his home. Numerous photographs were tendered which may corroborate either version of events.
The respondent called a number of witnesses including men who boarded with him at various times and effectively deposed as to the lack of a permanent presence by the applicant and the children.
Similarly, the parties each tendered a deal of email correspondence between them which is suggestive of a lack of commitment by the applicant. This material is relevant to, and corroborative of, what she says is the emotional and financial controlling traits of the respondent.
Similarly, whilst the applicant’s affidavit states that she on occasion used the respondent’s address for her personal correspondence, she did not disclose, as evidenced by the many documents tendered by the respondent, that she habitually used her rented premises as her mailing address. Similarly, the respondent was not challenged in his evidence that a school was chosen for the children close to the applicant’s rented home.
I find the failure of the applicant to disclose that she maintained permanent rented premises to be important. A reading of her affidavit material suggests a consistent common residence in the respondent’s properties over the years. I find this evidence to be misleading.
I am satisfied that the parties’ regular sexual liaisons took place at both the respondent’s homes and at the applicant’s rented premises. It is clear that the applicant was a regular visitor to the respondent’s home but I am satisfied on the evidence that she did not achieve the status of permanent or full time resident.
The respondent, representing himself in these proceedings, placed much emphasis on his claim that the parties did not “live together”. Despite my findings above, the authorities make it clear that such a finding is not necessarily determinative of the fact or otherwise of a de facto relationship.
Existence of a sexual relationship
The fact of an ongoing and regular sexual relationship between the parties over the 10 year period is not in dispute on the evidence of either party. Indeed, the respondent argues and emphasises that this was the basis of their “boyfriend and girlfriend” relationship. Mr Barron’s emails to the applicant, admittedly being post separation, certainly emphasise the importance he placed on the sexual aspects of their relationship which he in admirable quantitative terminology pronounces his post-separation conquests in a relative sense. He says, however, and it is not disputed, that the relationship was not monogamous on the part of the applicant. He tendered material from social media suggesting that the applicant held herself out for sexual relationships with other men. For her part, she says that her extra-curricular sexual activities were confined to periods or separation from the respondent.
Financial dependence, interdependence and arrangements for financial support
I am of the view that further failure by the applicant to make material disclosure in respect of financial matters is of some significance. In her affidavit material filed 6 April 2011 and at paragraph 14 and following, the applicant says:
At the time of cohabitation I was a (omitted) and the Respondent was a (omitted). Expenses of the household were contributed to equally, until the birth of the [sic] X on (omitted) 2002 where my contribution largely became non-financial in nature as homemaker and primary caregiver to X. The Respondent supported both the children and I financially throughout the relationship.
Further the Respondent supported the children and me by purchasing motor vehicles throughout the course of the relationship to ensure that the children and I always had safe transportation…
That in the Respondent’s affidavit sworn 3 December 2010 he acknowledges supporting the children and me. In the section titled “reply to para 6” the Respondent states that he paid me “gratuities” during the relationship. Further he deposes in this section that he and I had arguments about money in all three homes, and complains that I was not contributing and not offering to despite as the Respondent states “living comfortably from his benefit.” The Respondent further asserts in this section of his affidavit that “it was a one way street as far as money went, in that I provided & Ms Dandridge did not.” These statements not only reflect the Respondent’s thoughts but also support the fact that there was a financial dependence by me and the children on the Respondent for our living.
The applicant in her affidavit goes on to detail further financial contributions to her by the respondent such as the provision of credit cards and televisions. The applicant relies on material tendered into evidence by the respondent himself setting out in fine detail his contributions to her.
However, the applicant fails to disclose that she was, for most of the relationship, in receipt of a Centrelink benefit for herself and the children and child support paid to her by the respondent. The respondent adduced documents to corroborate these facts.
I am satisfied that the applicant has been in receipt of Centrelink benefits for herself from 2002 and also consistently in receipt of child support from the respondent. The failure to make these disclosures is relevant to, and in my view contrary to, the applicant’s claims that she habitually lived together with the respondent and that the respondent was responsible for her financial support.
The applicant, while saying that the respondent was generous to her, also says that he was financially controlling. She argues that he would make gifts to her or provide her with necessities only to then reclaim them during a period of argument. Nevertheless, it would still be incumbent on the applicant to declare her de facto status to Centrelink during the periods in which she says she was living with the respondent and receiving financial support as she claims in her argument before this Court.
This evidence, which came to light during the trial, caused me to raise with counsel for the applicant the so-called Elias principle. I was concerned that the applicant was making and relying on representations to Centrelink in order to benefit herself but then denying these representations when it did not suit her argument before this Court. In this regard, I accept the submissions of counsel for the applicant that the considerations arising from the facts in Elias v Elias[4] do not provide a definitive principle of estoppel. Nevertheless, the factual platform and the inherent contradictions in the applicant’s behaviour and representations are matters that I can and do take into account.
[4] Elias v Elias (1977) FLC ¶90-267.
The ownership, use and acquisition of their property
The respondent’s real estate throughout the relationship was registered in his name alone. This is despite the fact that a number of purchases were made during the course of the relationship. Similarly, motor vehicles provided for the use of the applicant by the respondent were registered in the name of the respondent. This situation may, of course, have been impacted by the applicant’s bankruptcy during the period of the relationship.
Having had the benefit of seeing and hearing the parties give their evidence in Court and considering the affidavit material, I find some merit in the applicant’s claim that the respondent used his finances as a form of control in the relationship. There is evidence that he would give and then demand the return of material possessions including motor vehicles from the applicant at various times. While such behaviour is unbecoming, clearly a form of financial abuse, and does the respondent no credit, equally it does not denote a sharing of finances within the relationship as suggested by the applicant.
The parties did not keep joint bank accounts, and the revelations as to the applicant’s Centrelink and child support status suggest financial independence and a lack of financial interdependence between them.
The degree of commitment to a mutual shared life
The respondent, Mr Barron, gave his evidence in Court and cross-examined at times in a very emotional manner. He professed his ongoing love for the applicant. Email correspondence from the time of the relationship and tendered in evidence was also suggestive of Mr Barron being an emotional and financially controlling individual. I have little doubt that his material generosity to the applicant during the relationship was such that he sought a committed shared life with her. Ironically, however, I am of the opinion that this very behaviour by the respondent caused the applicant to baulk at commitment and caused her to retain some residential and financial independence as a fallback and safeguard for herself and the children against his emotional volatility.
Registration of the relationship
There is no evidence that the relationship between the parties was registered under any prescribed law of a State or Territory.
The care and support of the children
The evidence makes it clear that the applicant, Ms Dandridge, has been the primary carer of the children. Mr Barron concedes that this is the case.
Interestingly, both children carry the mother’s surname, “Dandridge”. Whilst this fact can have any number of explanations and is certainly not definitive of a lack of committed shared life or living arrangement, it is a factor that I can take into account although without exploration by cross-examination at the hearing, little weight can be attached.
I do take into account that Mr Barron’s formal financial support of the children has for many years been by way of child support and the connotations that follow as to the nature of the parents’ relationship. I am aware that there are instances where parents can and do live together whilst a primary parent claims and is eligible for child support. However, there is no evidence before me that the applicant has claimed such an extraordinary circumstance in her applications to the Child Support Agency and Centrelink.
The reputation and public aspects of the relationship
There is evidence that the parties socialised together during their relationship. They attended a wedding together. They attended sporting events together. However, again such facts are not determinative and are consistent with either party’s view of the nature of the relationship.
The applicant says that the parties became engaged in 2002. There is no evidence of any public formal announcement of engagement. The applicant says that she wore a ring on her relevant finger and photographs tendered by the respondent himself show this to be the case. The respondent counters by saying that he purchased the applicant much jewellery and that she would often wear various items on that finger. The applicant’s mother says that the parties announced to her that they were engaged although there is no evidence of any public celebration or announcement.
Findings and conclusions
It is the applicant, Ms Dandridge, who asserts the status of de facto relationship. As such, she must give and adduce evidence which causes me to make those findings on the standard of proof being on the balance of probabilities.
As is often and usually the case with such discretionary issues, there are factors which weigh both for and against the arguments of each party. By its very nature, a de facto relationship does not have the formalities and defining characteristics of a marriage such as a ceremony and a marriage certificate. Hence, the discretion is a broad one based on the balancing of numerous empirical factors.
There are a number of indicators that support Ms Dandridge’s claim of a de facto relationship within the meaning of the Act. They include:
a)The relationship was one of some duration being approximately 10 years.
b)There are two children of the relationship.
c)There has been a degree of financial support of the applicant by the respondent.
d)There has been a longstanding sexual relationship.
e)There have been some public aspects of the parties as being a “couple”.
There are, however, empirical factors which favour the respondent’s view that the relationship did not become a committed domestic one and remained in the sense of “boyfriend and girlfriend”. They include:
a)The applicant maintained her own residence throughout the majority of the relationship since well before March 2009.
b)The applicant has held herself out to Centrelink and the Child Support Agency as being financially independent of the respondent since at least 2004.
Such discretionary issues carry with them questions of the credit of the parties.
The failure of the applicant to make full disclosure of her residential and financial circumstances does her no credit. In my view this compromises her evidence. On a bland reading of her affidavit material, she holds herself out to be financially interdependent with the respondent and to be living together in the same residence except for short periods during arguments. The fact that she herself references financial and living arrangements denotes the significance she places on these aspects in her case. As such, her omissions are compounded.
The respondent gave his evidence in a clear and assertive manner. Whilst his emphasis on the fact that the parties did not live together shows some naivety as to the definition of “de facto” under the Act, this consideration now assumes some importance. I generally accept the evidence of his witnesses who as boarders in his house did not observe the permanent presence of the applicant. Similarly, whilst Mr Barron’s own evidence as to his “financial generosity” but also his habit of reclaiming his gifts, perhaps impeaches his personality and morals, it does say something as to his view of the financial relationship between the two parties.
Mr Barron, during the trial, laid out his own emotions and personality for all to see. As I have said above, I have little doubt that he craved a committed loving and emotional relationship with Ms Dandridge. However, Ms Dandridge was reluctant to move to the stage of such commitment and almost certainly due to the financially and emotionally controlling nature and behaviour of Mr Barron. The evidence is that she did not go so far as a commitment. She retained her financial independence. She retained her own residence. There are aspects of her being socially independent. She held herself out to Government departments as being financially and emotionally independent of Mr Barron. The irony perhaps is that it was Mr Barron who desperately pursued commitment in the relationship but now argues there was none, whilst Ms Dandridge who avoided a committed emotional relationship (probably for very good reasons) but now argues that there was one.
Taking all of these matters into account I am not convinced on the balance of probabilities that the relationship of the parties had achieved the status of a de facto relationship. Consequently, I cannot move to make the declaration sought by the applicant and the application is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 23 February 2012
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