Dobbins and Gibbs
[2011] FMCAfam 35
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOBBINS & GIBBS | [2011] FMCAfam 35 |
| FAMILY LAW – De facto relationship – declaration of de facto relationship – appointment of Legal Personal Representative upon death of applicant during proceedings – application for alteration of property interests, whether appropriate – consideration of requirements of s.90SM(3) and (4) – proper approach to such considerations – effect of s.90SF(3) and consequence of death of a party to proceedings – considerations to be noted in relation to any adjustment – factors to be considered in relation to a declaration as to the existence of a de facto relationship – consideration of geographic requirements pursuant to s.90SK – effect of significant initial contributions at the commencement of the relationship – orders as to alteration of property interests. |
| Family Law Act 1975 (Cth), ss.4AA(1)-(6), 75(2), 79(2), 79(4)(a)-(f),90RD, 90RG, 90SF(3), 90SK(1)-(1A), 90SM(3)-(4) |
| Jones v Dunkel (1959) 101 CLR 298 Moby v Schulter [2010] FamCA 748 Roy v Sturgeon (1986) DFC 95-031 Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052 Baker v Landon [2010] FMCAfam 280 Van der Linden v Kordell [2010] FamCAFC 157 Tasmanian Trustees Ltd v Gleeson (1990) FLC 92-156 Menzies v Evans (1988) FLC 91-969 Lee Steere & Lee Steere (1985) FLC 91-626 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 Russell v Russell (1999) FLC 92-877 Pastrikos and Pastrikos (1980) FLC 90-897 Whitely and Whitely (1996) FLC 92-684 |
| Applicant: | ESTATE OF THE LATE MR A DOBBINS |
| Respondent: | MS GIBBS |
| File Number: | BRC 9696 of 2009 |
| Judgment of: | Coker FM |
| Hearing dates: | 13 & 14 July, 8 & 9 November 2010 |
| Date of Last Submission: | 9 November 2010 |
| Delivered at: | Townsville |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cooper |
| Solicitors for the Applicant: | Charles Cooper Lawyers |
| Counsel for the Respondent: | Ms Spence |
| Solicitors for the Respondent: | Wight & Strickland |
ORDERS
IT IS DECLARED THAT
Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the deceased Applicant and the Respondent between 1992 and September 2009.
IT IS ORDERED BY WAY OF PROPERTY SETTLEMENT THAT:
The Respondent pay the Legal Personal Representative of the late MR A DOBBINS the sum of $150,000, such payment to be made within 28 days of the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Dobbins & Gibbs approved under s.121(9)(g) of the Family law Act 1957 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 9696 of 2009
| ESTATE OF THE LATE MR A DOBBINS |
Applicant
And
| MS GIBBS |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced on 23 October 2009 by Mr A Dobbins. Unfortunately, they were not concluded by the applicant, but rather by his legal personal representative, the applicant having died at the conclusion of the first day of hearing, 13 July 2009. The respondent to the application is Ms Gibbs.
Further, when final evidence was taken in relation to this matter, at the conclusion of the hearing on 8 and 9 November 2010, it was the case that the respondent was not present at the court, because she had also suffered an accident and was hospitalised, experiencing particular difficulties as a result of a serious fall, and the consequential pelvic injuries that were sustained.
It is, perhaps, unnecessary to comment that both of the parties to the proceedings, Mr Dobbins and Ms Gibbs, were elderly. Mr Dobbins having been born [in] 1922 and, therefore, 87 years of age at the time of his death, and Ms Gibbs was born [in] 1923 and therefore, also at this time, is 87 years of age.
The application that was brought by the applicant sought orders of a final nature in these terms:
1. A declaration that the Respondent holds her interest in the property known as and situate at [Property M] in trust for the Applicant and the Respondent in equal shares.
2. That the assets of the parties including:
(a)the equity in the property at [Property M] being the property more particularly described as Lot [omitted] on Registered Plan [omitted];
(b) the contents of that property;
(c)the bank accounts and all investments of the Applicant and the Respondent;
(d) the balance of the property of the parties,
be divided in the proportions 55% to the Respondent and 45% to the Applicant.
3. The Respondent pay the Applicant’s costs of and incidental to these orders.
4. Such further or other orders as the Court may deem meet.
The respondent’s response filed on 19 January 2010 sought orders in these terms:
1. That the court make a declaration pursuant to section 90D of the Family Law Act that:
(a)no de facto relationship ever existed between the parties; or
(b)if the parties were ever in a de facto relationship, that such relationship ended before 1 March 2009.
2. That the application filed 23 October 2009 be dismissed.
3. That the applicant pay the respondent’s costs of this application.
The proceedings were heard over a number of months once they commenced before me. The reason for that, is perhaps, obvious from the earlier comment made which related to the death of the applicant, and the fact that there was then a need for there to be steps taken with regard to the appointment of a legal personal representative and, in light of a previous ruling made by me, the need for there to be probate obtained on the will of the late Mr A Dobbins.
The proceedings were conducted a little differently to what might normally be the case in relation to a property application. The first reason for that, related to the fact that there was a threshold issue, if it can be described that way, which related to whether or not there was, in fact, a de facto relationship existing between the applicant and the respondent.
The applicant says that the de facto relationship existed for a period of approximately 16 years. From the respondent’s perspective, it is contended that there was never a de facto relationship but, rather, that it was simply a situation of a friendship between the applicant and the respondent. And, in later years, certainly, a situation where the respondent was no more nor less than the carer for the applicant, he being legally blind, and in need of constant assistance in relation to his life.
I have, obviously, had a number of difficulties in relation to the determination of this matter, not the least of which was to, at least, in the first instance, address that threshold issue with regard to whether there was or was not a de facto relationship in existence. In that regard, I had the opportunity to consider the evidence which was given by the applicant and, of course, to see him in the witness box, he, having being cross-examined on the first day of hearing.
I also had the opportunity to consider the evidence given, on behalf of the applicant, in that evidence was called on his behalf from his nephew, the legal personal representative, Mr K Dobbins, and also had evidence taken from other witnesses on behalf of the applicant. Those witnesses included the legal personal representative’s former wife, Ms A Dobbins, though she was not required for cross-examination. Additionally, called on behalf of the applicant was Mr F Dobbins though, interestingly, Mr F Dobbins was no relative of the applicant but rather a neighbour who simply happened to bear the same surname.
On behalf of the respondent, a number of witnesses were called. They included her daughter, Ms EH, whose evidence was taken by telephone link and evidence briefly from Mr L, the respondent’s grandson, as well as from Ms M, a friend of the respondent, and from Mr S, a business proprietor of New South Wales but, until the respondent and applicant moved in or about 2000 to the Gold Coast, a neighbour of the respondent.
Obviously, I will comment about the various elements of the evidence taken from those various deponents in due course. It is important, however, to note that an election was made, perhaps understandably, in light of the advanced years of both the applicant and the respondent, that with the respondent unable to attend court because of her hospitalisation and concerns of that nature, that it was not intended that she should be cross-examined but rather that there should be reliance placed upon the evidence called in relation to the applicant’s position in respect of the matter. From there, a determination was to be made as to whose evidence could be relied upon.
I am mindful, of course, of the fact that with the respondent not being the subject of cross-examination that there is, at least on the face of it, a general presumption with regard to the truth and acceptance to be placed upon the evidence of the respondent. I shall comment a little further upon that aspect of the matter in due course.
Before turning to the evidence called in relation to this matter, it is important that there should be consideration of what constitutes a de facto relationship. Section 4AA is relevant in relation to the definition required in relation to a matter such as this. The section is in these terms:
(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.
It is obviously necessary to align the evidence in relation to the matter with the various considerations that must be looked at pursuant to section 4AA. I turn then to the evidence called in relation to this matter.
In particular, I note the evidence of Mr K Dobbins, the legal personal representative of the late Mr A Dobbins. I should say, at the outset, that I was most impressed with Mr K Dobbins, both in respect of the evidence contained within his affidavits but also, and perhaps even more specifically, with the evidence that he gave by way of oral evidence including, particularly, the answers that were given with regard to cross-examination.
I did not think that Mr K Dobbins was, in any way, untruthful or even evasive in the answers that were given. I thought that his comments in respect of what he observed – and it is important to note that in relation, particularly, to this threshold aspect, that the observations of outsiders is an important consideration – was an accurate reflection of what an outsider looking in might think of the relationship that they observed between the applicant and the respondent.
Mr K Dobbins was the subject of vigorous cross-examination on the part of the respondent through her counsel, and at no time did he appear to be, in any way, troubled or to be, in any way, avoidant in relation to the questions that were asked or the answers that were given. In particular, he commented upon the fact that he had had the opportunity, certainly it would seem over a period of some eight or nine years, since the commencement of [a farm] at the Gold Coast, to spend regular time at the Gold Coast, albeit only for periods of perhaps three or four days, and that the vast majority of those occasions were spent with him staying overnight at the residence of the applicant and the respondent.
His observations were telling because it seemed clear that on at least some of those occasions, it was not necessary for there to be changes in bedroom arrangements that became such a significant issue in relation to this matter. Whilst his evidence was to the effect that on numerous occasions he was accompanied by his partner, Ms B, and on some occasions by her son, as well as on other occasions by business associates who might be interested in the purchase of [animals], there were also clearly occasions where it was not necessary for there to be changes, as suggested on the part of the respondent, with regard to sleeping arrangements, he being the only visitor.
His evidence was that on every occasion that he was there, no matter what the circumstances or numbers that accompanied him, that the applicant was sleeping in the same room as the respondent. I accept, without hesitation, that that is an accurate reflection of the position in relation to this matter. It will be something that I will comment upon a little later in these reasons, but it is perhaps also necessary, at this time, to make a very specific finding and a very specific comment in relation to the issue of whether there is any significance to be drawn from the fact that on some occasions, whatever might have been the reasons for it to occur, the applicant and the respondent slept in the same bed.
There is certainly contention as to whether there was an intimate relationship between the applicant and the respondent. It is acknowledged that apparently a sexual encounter occurred on one occasion, though whether that was at a time that the respondent was intoxicated or not, is a matter that perhaps does not need to be addressed. In any event, there is certainly a different position taken by the applicant in that he says that for the first six or so years of their relationship, a normal intimate relationship existed but that, thereafter, there was perhaps a change that occurred as a result simply of the encroaching years, which had caught up with each of the parties.
It was suggested, on the part of the respondent, that, therefore, there was little of any significance, if I can use that term, in the fact that on occasions she and the applicant shared the same bed, because there was no intimacy and there was always pyjamas worn by the parties. I must say that that flies in the face of other suggestions that were made as to the character of the respondent. By that, I mean that the suggestions that she would not have used the name, Dobbins, if there was a relationship between them because they were not married, and that she would not have used the term “husband”, because they were not married, flies in the face of a rather stern view, if that is the appropriate term, of what might be the relationship between the respondent and the applicant.
Quite simply, if a very proper position or stance was taken by the respondent in respect of the relationship between she and the applicant, then one cannot imagine that there would have been a circumstance, where, no matter what might have occurred and no matter what assurances there might be regarding the wearing of pyjamas and a lack of intimacy, that she would share a bed, and apparently it occurred on a number of occasions by her admission and upon the evidence of the applicant, on a daily basis, for some 16 or more years, without there being more of a relationship than simply that of a carer or of even a close friendship.
I cannot envisage that there would have been such a situation occurring. And one can only imagine that if, what might in more enlightened times be referred to as, a prudish stance was taken with regard to the name to be used by the respondent, or the terminology of “husband” or “partner” being used, that there would have been a correspondingly prudish stance taken in relation to whether the bed would be shared with a person with whom there was not a very close bond.
It is a matter that is, in my view, significant in relation to these proceedings and therefore the observations of Mr K Dobbins in relation to what occurred is most appropriate and most telling. It is clear that Mr K Dobbins was really the only person, apart from Ms A Dobbins, whose evidence was unchallenged in relation to this matter, who was able to comment upon the sleeping arrangements within the home.
I was also impressed with Mr K Dobbins’ evidence in relation to the exchanges between he and the respondent, as well as the respondent’s daughter, Ms C. Quite clearly, there were difficulties in relation to the behaviours of the applicant and it would appear, particularly when one considers the evidence that has been subpoenaed, that there were occasions where the applicant drank to excess and that that led to difficulties in his relationship with the respondent.
I accept that a call was made by the respondent to Mr K Dobbins in, or about, November of 2007. I acknowledge and accept that there were difficulties at that time and a complaint was made. I draw no inference whatsoever from the fact that Mr Dobbins was unable to recall the date that that might have occurred and, perhaps, thought that it was a year or so later in time than that which was suggested by counsel on behalf of the respondent.
The real issue here is that he acknowledged that calls occurred and, more particularly, was adamant that he came up, not necessarily to find accommodation for his uncle, though he would take that step if it was necessary, but rather to try and sort out the issues and the circumstances in respect of the relationship between the applicant and the respondent.
It is noteworthy that the applicant continued from November of 2007 until, it would seem, about September of 2009 to live at the respondent’s home. It is almost impossible to imagine that there were circumstances where, notwithstanding the lack of any significant relationship, the respondent would have agreed to the applicant continuing to stay at her residence, if their relationship was one of only landlord and boarder, or perhaps friends. The behaviours that were complained of, in relation to the applicant, were such that unless there was a far more binding and significant relationship, then one could not imagine that there would have been, under any circumstances, a basis upon which the applicant would have been able to remain at the respondent’s home.
I must say that I thought Mr K Dobbins’ responses in relation to that, particularly with regard to how he dealt with the situation and the steps that were taken by all to deal with the issues of no doubt excessive alcohol consumption, on that occasion or at about that time by the applicant, was appropriately dealt with. I also accept that there, at least, appears on occasion to have been situations where perhaps, unfortunately, the respondent also overindulged because of course it is her own evidence which was to the effect that she, under the influence of liquor, had the one occasion where there was intimacy between she and the applicant.
I am quite confident that the evidence given by Mr K Dobbins, in relation to this matter, particularly with regard to the arrangements made by him in respect of his uncle’s continued residence at the home owned by the respondent, was an appropriate one, and that his observations of occasions where both were unable, unfortunately due to alcohol consumption, to properly express themselves were an accurate reflection of his observations.
I should also say in passing, that I was not assisted in any way by the cross-examination, obviously upon instruction, of Mr K Dobbins, in relation to the communications made with possible relatives of the late Mr A Dobbins, Mr G and Ms I. Quite clearly, they were advised of the applicant’s death and of the proceedings that were underway in relation to the matter. The terms of the correspondence which were forwarded on behalf of the legal personal representative, Mr K Dobbins, was in my view, appropriate correspondence and it set the position out. There was no obvious intent to try and dissuade possible beneficiaries from taking any stance, in relation to the proceedings.
It was simply a bland statement and I accept the evidence of Mr K Dobbins, with regard to having had discussions with his legal representatives about what course had to be followed to attempt to locate other possible beneficiaries, and then properly relying upon his legal representatives to attend to such matters. The inference or suggestion which was sought to be made, that he was seeking to dissuade them so that he could perhaps keep all, or any proceeds to himself, was disingenuous and I thought designed to, if anything, mischievously influence the court, rather than to assist the court.
Quite simply, I was most impressed with Mr K Dobbins and his evidence in relation to this matter and I accept it categorically.
Also called on behalf of the applicant was Mr F Dobbins. Mr F Dobbins, as I indicated, is not a relative of the applicant but rather simply bears the same name. His evidence, in relation to this matter, was as a neighbour who had had some significant involvement, over a number of years, with both the applicant and the respondent.
His observations are telling in relation to this matter because they come from an uninvolved third party, whose assumption, and of course it was only the assumption, was that the applicant and the respondent appeared to live as a married or de facto couple. It may be that that was an assumption that was drawn mistakenly, but the observations are the critical consideration in relation to this matter. And it is clear that the assumption made by an uninvolved outside observer was that the relationship between the applicant and the respondent was far more than that which would simply have existed as between a boarder and a landlord or even friends, sharing a residence.
I was assisted by the evidence of Mr F Dobbins, it being clear that there had been many occasions where he had socialised with the applicant and the respondent, and it was clear from his evidence, that an outside observer would be able to assume that the relationship between the applicant and the respondent was far more than that of simply a boarder and a landlord.
Also called on behalf of the applicant was the former wife of Mr K Dobbins, Ms A Dobbins. She was not challenged in relation to her evidence, and I, of course accept that that was because there was little that could be drawn from her which would be contrary to the evidence or assumptions that had been made by her, in relation to the relationship between the applicant and the respondent. I accept that evidence, particularly insofar as it corroborates the observations of both Mr K Dobbins and Mr F Dobbins as to what was, to all intents and purposes, the relationship between the applicant and the respondent.
Before turning then to the evidence of the applicant and the respondent, it is important also that consideration be given to the evidence called on behalf of the respondent. Mr S was called first in relation to this matter. Mr S is a business proprietor operating, it would appear, both [an accommodation business] in Sydney and an accommodation business in the snow country and that he had, over a number of years, the opportunity to observe the relationship between the applicant and the respondent, as well as, prior to the establishment of whatever relationship there may have been, the opportunity to observe and to comment upon the behaviours of the applicant.
I must say that Mr S’s evidence was not of particular assistance to me in relation to this matter. Mr S, whilst obviously attempting to be forthright and supportive of the respondent, overstepped the mark in very many respects. Most significantly, of course, he was adamant that the applicant had, to all intents and purposes, done virtually nothing, when the applicant had said that his arrangements whilst staying at the [accommodation] owned by Mr S was to provide some maintenance or other services so as to be able to stay at the property.
He was adamant that there had been little, if any, work performed by the applicant and his determination to suggest that there was no work or no value provided by the applicant led to concerns in relation to his evidence, because of the obviously conflicting evidence that was given by the respondent’s own daughter, Ms EH, which specifically noted that there had been works performed by the applicant. Perhaps not to the extent that had been claimed by the applicant, but which were totally denied by Mr S.
More particularly, I was not helped by Mr S’s argumentative approach in relation to questions. He seemed to take the stance that wherever he was asked a question that he did not like, that there would be a response which was, at best, flippant and, at worst, critical of the person asking the question. It may be that that is simply a reflection of the personality and character of Mr S, but it gave me no confidence at all that I could place great reliance upon his evidence in relation to this matter.
In any event, when he was finally pressed to give answers, they were given rather non-committedly and either were exaggerations, or totally unacceptable and unresponsive to the questions that were asked. He was asked, for example, the basis upon which he made the comments with regard to his assessment of the relationship or non-relationship between the applicant and the respondent, and he finally conceded that there was no fence between his property and the property of the respondent and that, therefore, he was able to see them.
He said that he had not seen any handholding or what might be called support of a proper nature as between partners and, when asked whether he had been watching the parties, which was not an unreasonable question, he uncooperatively answered that he had watched them night and day. He failed, unfortunately I thought, to realise that it was perfectly appropriate to explore the basis upon which the comments were made.
In fact, in the end, the assumption that can best be made in relation to Mr S unfortunately, is that he was the next door neighbour of the respondent, he was a friend of the respondent and that, seeking to assist her, he had significantly minimised anything to do with the applicant, including even the works or assistance that might have been provided by the applicant whilst staying at his [accommodation]. I was not aided at all by the evidence of Mr S.
Also called on behalf of the respondent was Ms M. Mrs M was a friend of the respondent and had obviously become friendly after the respondent and the applicant had moved to the Gold Coast from Sydney. It was clear that their friendship was close and Mrs M was able to comment upon the fact that, from her own discussions with the respondent, there were a number of occasions where she had indicated that she was not in any form of a relationship with the applicant, other than that she was his carer.
I thought it noteworthy, however, that Mrs M, as no doubt was the respondent, were very proper and appropriate ladies and one would have been surprised if there had been exchanges between them which would have revealed intimate details existing within their own private lives. I am far more inclined to the view that any statements that were made by the respondent to Mrs M were couched in terms of ensuring that her privacy and, therefore, her respectability were ensured and that, therefore, whilst the relationship between the applicant and the respondent may have been much more significant than Mrs M was aware of, it was not a matter which would lead to a determination that there was no relationship, or only the very limited relationship that was referred to in conversations between the respondent and Mrs M.
Insofar as any comments made by Mrs M in respect of the fact that the applicant had his own room or bedroom at the respondent’s house, it was also clear that all evidence pointed to the fact that his clothes, and perhaps toiletries and personal items were kept in another room, but that, of course, is not necessarily a clear indication of the fact that there was not a more significant relationship, particularly behind closed doors, than would have been obvious to Mrs M. Whilst I, of course, accept that Mrs M is a witness of truth, I am not, again, overly assisted by the evidence given by Mrs M.
I also had the opportunity of reading the affidavit and, of course, seeing the evidence of Mr L, the respondent’s grandson. He is a landscaper by occupation and had had some involvement in works that were performed at the Gold Coast premises of the respondent. I thought his evidence was given honestly in relation to this matter, particularly the very last answer that was given to a question in cross-examination. He was asked whether he saw the applicant as part of his and therefore, of course, the respondent’s family, and he said that he did not. I accept that that was an honest answer and a genuine response to the query that was raised in relation to this matter, though, of course, it does not in any way resolve the considerations of whether there was or was not a more significant relationship between the applicant and the respondent.
It was noteworthy, however, that Mr L spoke about works being performed at his grandmother’s residence and that whilst he said that he had not ever seen any plans that had been drawn up in relation to a retaining wall at the property, he acknowledged that the applicant was present and regularly, and perhaps unnecessarily, offered advice in relation to the preparation and construction of the wall.
It may be that the applicant was exaggerating significantly the role that he took in relation to planning that wall, and of course, in similar terms, exaggerated the works that he had provided and assistance that he had provided for Mr S at his motel and also at his ski lodge, but it is also clear that there was an involvement, albeit perhaps of only a limited nature by the applicant, in relation to all of those aspects around the home.
Mr L was asked in re-examination whether he had ever stayed at his grandmother’s home, and I assume that that was for an overnight period. Mr L indicated that he had done so and when asked whether his observations were that the applicant had stayed in another room or in the room with his grandmother, he said very definitely that the applicant had stayed in his room, which was next to “my nana’s.” Whilst that, again, is accepted by me as an honest reflection and recollection of what occurred on those few occasions, I am more inclined to the view that they were arrangements made, perhaps between the applicant and the respondent, again to ensure the continued feeling of respectability, particularly on the part of the respondent, than for any other purpose. Certainly, one or two nights spent sleeping in another room was in no way reflective of the relationship between the applicant and the respondent.
Also called on behalf of the respondent was her daughter, Ms EH. Ms EH attended by telephone link. I must say that I was most assisted by the evidence of Ms EH in relation to this matter, for a number of reasons. The first of those related to the fact that she was far more open, honest and frank than was Mr S, in relation to what she observed as to the applicant’s0 performance of duties at Mr S’s [accommodation]. She acknowledged that he helped out with some of the building works around the property, that he assisted with regard to general maintenance and gardening, but also she was able to acknowledge that he had specifically done something with regard to putting in a driveway at the property and when asked whether he was, “always doing something,” she responded that that was certainly her observation.
I was also assisted in relation to this matter with her frank and honest answers in respect of what occurred at her mother’s 80th birthday party. An incident was described in a number of the affidavits as occurring on that day which can best be described as an argument between the applicant and Ms EH’s daughter, Ms LH. That argument led to a rather unpleasant scene and it was of such a nature that the applicant sought legal advice as to defamation proceedings.
An apology was subsequently provided by both Ms EH and her daughter to the applicant, and Ms EH noted that it was at her mother’s request. The evidence was, of course, telling in relation to this matter because one cannot imagine that a friend’s hurt feelings or concerns would take priority over the natural love and affection that would be felt between a mother, her daughter and her granddaughter, and similarly, that similar concerns would arise in relation to a relationship between a landlord and a tenant.
More significantly, of course, a period of some six years or so passed between 2003 and 2009 where there was no physical contact whatsoever between Ms EH and her mother, and from the applicant’s perspective no communication whatsoever, though Ms EH said that there were telephone calls. Again, one could not possibly imagine a circumstance where a decision would be made, in this instance by the respondent, to favour her tenant or her friend over her daughter and granddaughter, particularly when Ms EH had spoken previously of the very close nature of her relationship with her mother, unless it were a situation of there being a much closer and much more significant relationship between the applicant and the respondent, than that which is now considered.
I was assisted by the evidence given in relation to this matter by Ms EH, as I say. I thought that Ms EH was an honest witness and her honesty clearly included very clear statements as to the consequences of her argument with the applicant in these proceedings.
Before turning then to the evidence of the applicant and respondent in relation to the matter, it is important that a comment be made with regard to the fact that no evidence has been called from Ms C, the other daughter of the respondent. That has been answered on the part of the respondent by suggesting that because of the frailty of the respondent, it was necessary for someone, obviously close to the respondent to provide support for her.
In particular, that was not only moral support but also physical support, it being noted, quite correctly, that there had been numerous occasions where the respondent had taken falls in more recent years and that there had been serious consequences as a result of that. What is emphasised on the part of the applicant, however, is that there could not be a failure to note that the daughter, having the closest and obviously, therefore, the greatest opportunity to comment upon what the relationship was between the respondent and the applicant for many years, whilst living in the same household at the Gold Coast, did not do so.
It was urged upon me that there must be some inference drawn, particularly when one considers what is sometimes referred to as the rule in Jones v Dunkel (1959) 101 CLR 298 to assist in relation to this matter. The fact that Ms C was not called can only be reflected, it was submitted, in the fact that her evidence, not being adduced, leads to the assumption that her evidence would not assist the respondent.
The fact that the respondent needed assistance is, of course, a significant one, but the far greater inference to be drawn, in relation to this matter, is that the person having the closest opportunity to observe and to interact with the applicant and the respondent was not called to give evidence in support of the position taken by the respondent, in relation to this matter.
Whilst obviously there is a need to consider much evidence in relation to this matter, it would be a failure on my part to not note that there is an inference that arises in relation to the non-provision of evidence by Ms C, in relation to these proceedings.
I turn now to the evidence of the applicant and the respondent. As I said, I did not have the opportunity to consider the respondent in the witness box because having taken a fall shortly prior to the resumption of the hearing; her health was such that she was unable to attend court. I did, however, have the opportunity to see Mr A Dobbins in the witness box, unfortunately, on the last day of his life.
I must say that I was enormously impressed with Mr A Dobbins. I found him to be an honest man in almost every respect. He was elderly and frail as, of course, also was the respondent. I have no doubt, however, that he had for many years worked in whatever capacities were open and available to him and that he had worked to the best of his ability.
He may certainly have been a person prone to exaggeration and, in a number of instances, I am inclined to find, as was suggested to me, that he had exaggerated the circumstances, including, for example, the engineering and management roles taken by him in projects [in the business] owned by Mr S, or the involvement that he had in the works that were performed by Mr L at his grandmother’s residence.
I am also perhaps inclined to think that his suggestion that he had $20,000 or thereabouts in funds available to him at the time that he commenced to stay at the residence of the respondent is an exaggeration, particularly when balanced against the fact that he quite clearly was looking for the cheapest means to accommodate himself, prior to establishing any relationship of whatever nature with the respondent. If, as he said, he had $20,000 in cash available to him, then there were other opportunities than working as a handyman and roustabout [in the business] owned by Mr S.
By the same token, however, I was impressed by what I considered to be the genuineness of the evidence given by him, particularly in respect of the relationship with the respondent. I accept without hesitation that from his perspective, there was far more than simply a relationship of carer and person in need of care, or landlord and tenant. One cannot imagine that other findings than that could be made, particularly in light of a number of matters that arose.
The first of those, of course, simply relates to the fact that, as I have said, there was a difficulty in the relationship whatever its nature in the latter part of 2007, but that following the intervention and, no doubt assistance of Mr K Dobbins and perhaps also Ms C, that the applicant and the respondent continued residing under the same roof for nearly two years more.
Additionally, there can only be positive inferences drawn from the fact that in 2000 or thereabouts, the respondent determined that she was moving from Sydney to the Gold Coast and that the applicant would accompany her. The applicant’s position was, of course, to say that that was because of the nature of the relationship between them. For the respondent to suggest, as she did, that it was simply that there was no one else to care for or provide for the applicant flies in the face of the fact that calls were clearly made to Mr K Dobbins to provide assistance and to intervene on different occasions, in relation to arrangements. It is a significant point in relation to this matter.
There was also, obviously, the comments that appear regularly to have been made by the applicant in relation to the relationship between he and the respondent. The material is abundant with comments about “partner” and there being more than simply a landlord/tenant or carer/friend relationship existing. I draw little, if anything, from the fact that in the latter part of the relationship there may have been documentation filled in with a nurse that did not make reference to a de facto relationship or otherwise. I am, in fact, more inclined there to draw the conclusion that the applicant may have been experiencing difficulties, perhaps as a result of alcohol consumption, and that anything contained within those documents, particularly in more recent times leading up to the time of separation, were a reflection of answers that were given by the respondent to questions directed to the applicant.
I was enormously impressed with the applicant and to his answers given in relation to this matter. Without hesitation, I find that he was a gentleman, and by that, I particularly make reference to the fact that his need was to ensure that a lady, and that means any lady, would be treated with the appropriate concern and respect.
In that regard, for example, I gained the impression when questions were directed to the applicant about the other lady who on occasions assisted him to attend at race meetings at the Gold Coast, that his answers were not in any way, designed to avoid answering difficult questions, but were much more a reflection of his determination as an old world gentleman, to protect the respectability of that lady. It was for that reason that he gave answers, particularly with regard to the fact that he had little involvement with the woman and was in no relationship with her. I draw no adverse inference whatsoever from those answers.
Similarly, and perhaps tellingly in relation to this matter, and it was only emphasised at the conclusion of submissions made in relation to the matter, the fact that the applicant shared information about what might have been his actions during the early parts of the Second World War, signing up in another man’s name who was older than him so that he could be involved in the defence of his country, smacked of the most reliable evidence that could be given on such issues.
In fact, and without hesitation, I am absolutely convinced of the legitimacy of the position taken in relation to this matter by the applicant and of the fact that, whilst it may not have been a relationship that would exist between a younger couple, it was, from his perspective certainly, a relationship which in all respects involved a significant relationship, perhaps appropriately described herein as a de facto relationship between he and the respondent.
It is clear that the applicant was a gentleman. His answers in relation to the questions that were directed to him in relation to this matter, in my assessment, were in every respect designed to treat the respondent with the respect that she, as a lady and a person important in his life, was entitled to expect.
I have no doubt that his evidence in respect of the relationship between the applicant and the respondent was, reflective in every sense of the word, of a de facto relationship.
Those comments, of course, lead me to the necessary comments to be made in relation to the respondent’s evidence in this matter. Of course, she was not able or called upon to give evidence in relation to the proceedings but the circumstances of her own health were the factor which was most significant in that regard. I accept that much of what was said within the affidavits filed on behalf of the respondent was a reflection of her wish to be seen as a respectable woman. It is clear that she would not, as I commented previously, refer to the applicant as her husband, nor would she adopt his name because they were not married.
What went on, however, and what was the real extent of their relationship behind closed doors is a very different matter. When, perhaps to use the colloquial, “their guard was down” and others had the opportunity to observe their relationship, it was one of a supportive, nurturing nature and one that perhaps until more recent times continued in an appropriate manner. It was only perhaps with the encroaching ill health associated with their years as well as apparently the more significant resumption of drinking by the applicant, that the relationship started to deteriorate.
I am far more inclined to the view that the evidence, unfortunately given by the respondent in relation to this matter, is a reflection of her desire for respectability above all else including, unfortunately, in many respects, an accurate reflection of what existed between she and the applicant, as well as a reflection of her dismay and perhaps hurt at the breakdown in trust associated with the resumption of heavy drinking by the applicant.
Whilst I have no doubt that the respondent sought to be as open and frank as she could be in the evidence that was called in relation to this matter, I am far more inclined in the circumstances, to accept the evidence of the applicant and of the outside observers in respect of what was the relationship between the applicant and the respondent.
I obviously therefore need to turn to the law and to the various issues that must be considered in respect of the determination of a finding as to whether there is a de facto relationship, and then if a de facto relationship is found, the determination of property distribution between the parties.
The applicant’s initiating application in these proceedings sought an alteration of property interests pursuant to the provisions of Part VIIIAB of the Act. However, it was clear that the question of whether there was or was not a de facto relationship in accordance with the legislation had to be determined. The power to make a declaration, as is sought in the initiating application is contained within the provisions of section 90RD of the Family Law Act. Section 90RD is in these terms:
90RD(1) [Declaration of existence of de facto relationship] If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
90RD(2) [Declaration of other factors] A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Subsection (1) clearly empowers the Court to make a declaration that a de facto relationship existed or never existed between two persons. To the extent that it is relevant in the application, subsection (2) empowers the Court further to declare, amongst other things, a period or periods of the de facto relationship, when a de facto relationship ended and where each of the parties to the de facto relationship was ordinarily resident during the course of the de facto relationship. Obviously, I will be required to determine whether there was a de facto relationship between the parties and the period or periods during which such a relationship existed.
The significance of those two matters is obvious in that they relate to the requirement of a relationship having endured for a period of at least two years before financial orders can be made and, secondly, the requirement that the relationship was to have existed at least until 1 March 2009 which was the commencement date for operation of the legislation.
The third point, where each of the parties to the de facto relationship, if same is found, was ordinarily resident during the de facto relationship relates to the requirements that arise pursuant to the provisions of section 90RG of the Act.
The Court must be satisfied that one or both of the parties were resident within a participating jurisdiction before being empowered to make an order for maintenance. Of course that is not a relevant consideration here in light of the fact that an order for maintenance is not being sought in respect of the proceedings.
The definition of what constitutes a de facto relationship is, as I have indicated at the commencement of these reasons, detailed in the provisions of section 4AA of the Family Law Act. There are two preliminary requirements needed to be looked at in relation to a determination of whether there is or is not a de facto relationship in existence.
The first of these is that the parties to the relationship may not be “legally married to each other” and the second is the parties must not be “related by family.” Obviously, neither of these exclusions arose in relation to the determination of these proceedings and accordingly the requirement is to determine whether the parties, having regard to all the circumstances of their relationship have a relationship as, “a couple living together on a genuine domestic basis.”
Subsection (2) of section 4AA contains the matters which may be considered in relation to the determination of whether two people are or have been in a de facto relationship. It is a comprehensive list and, of course, it is noteworthy that subsection (3) goes on specifically to provide that it is not necessary to make any particular finding with regard to any of the matters listed in the subsection, in order to establish that there is or is no a de facto relationship between the parties.
The Court is, of course, empowered to have regard to such matters as it considers appropriate and to attach such weight to any matter as may seem appropriate to the Court in the circumstance of the case. There is obviously therefore a considerable discretion that falls upon the Court in relation to the determination as to whether, finally, there is a relationship between two persons, be they of the same sex or opposite sex such that they could be seen as a couple living together, on a genuine domestic basis.
Case law
There are a significant number of decisions of both an appellate and first instance nature which consider similar legislation in other jurisdictions. I have been referred to a number of those decisions and, in particular, to the most helpful examination that has been espoused by Mushin J in Moby v Schulter [2010] FamCA 748. In that decision his Honour considered the case law arising from various jurisdictions and in particular made reference to a consideration of the definition, as it was given in Roy v Sturgeon (1986) DFC 95-031 a decision of Powell J considering a similar definition to that contained within section 4AA of the Family Law Act. At page 75,364 his Honour held:
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.
Mushin J similarly went on to comment that in the decision of Kearney J in Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052 a similar approach to that taken in Roy v Sturgeon was followed and reference was made specifically to the manner in which there could be some dissection of the phrase, “living together as a husband and wife on a bona fide domestic basis.” In Simonis v Perpetual Trustee Co. Limited, Kearney J said:
I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
Mushin J having considered both of those comments in relation to the definition contained within that jurisdiction’s legislation commented, at paragraphs 139 to 141 as follows:
While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept”, there are two specific elements of that definition which require individual consideration. The first of those is the concept of “a couple.” For the purposes of the definition, “a couple” is constituted by two people, whether of the same or opposite sexes.
140.
The second specific element is the concept of “living together.” In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
141.
Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor.
Mushin J then made particular reference to the decision of Riethmuller FM in Baker v Landon [2010] FMCAfam 280 and commented that the approach taken by Riethmuller FM in that case was similar to that taken by him in relation to the proceedings and that it was an approach with which he agreed. In Baker v Landon, Riethmuller FM spoke of the requirements of section 4AA of the Family Law Act. In particular at paragraph 11 Riethmuller FM said:
The requirements of section 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 section 4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (section 4AA(3),) nor does the section attempt to prescribe the weight to be attached any particular factor (section 4AA(4)). As a result the definition cannot be said to be closely prescribed.
Riethmuller FM then went on to consider the definition of de facto relationship under the provisions of the Social Security Act 1991. It is, in fact, a very relevant discussion in relation to these proceedings because, from the perspective of the respondent at least, some weight was sought to be gained from the fact that the respondent received a carer’s pension or benefit, in relation to assistance that she provided to the applicant, in respect of these proceedings.
It was argued, on the part of the applicant, and of course subsequent to his death, by his legal personal representative, that there was no great weight to arise from that particular aspect of the matter.
In considering the distinction to be drawn between the definition of a de facto relationship under the provisions of the Social Security Act 1991 and the provisions of the Family Law Act, as recently amended, Riethmuller FM said, at paragraph 22, the following:
As a result, it is likely that there will be differences in the relationship covered by the term “de facto” as it appears in various enactments as a result not only of differences in wording, but the different purposes of the statutory schemes. It may well be that a person is in a relationship sufficient to satisfy section 4AA of the Family Law Act, yet not satisfy the relevant provisions of the Social Security Act 1991. As a result, the receipt of a single rate of pension will not be determinative of the question, under the Family Law Act, although the circumstances leading to such a pension being granted will be a factor to take into account.
It is, in my view, a very different consideration that arises in respect of whether there is or is not a de facto relationship, pursuant to the definition contained within the Family Law Act, as opposed to what might or might be considered a de facto relationship pursuant to various other enactments which have, as was described by Riethmuller FM, different purposes for their particular statutory scheme.
Accordingly, I must, of course, turn to an examination of the circumstances of the parties relationship, taking into account the various matters that are contained within section 4AA(2) of the Family Law Act, together with any other matters that I might consider relevant. I do not intend, however, to exhaustively address such issues but rather to address those matters arising pursuant to subsection (2) which are, in my view, determinative of this particular matter.
Of course, in the comments that I have already given in relation to this matter I have referred to the length of the relationship. Here, it is strongly contended, on the part of the applicant, that the relationship was one which endured, continuously, for a period of approximately 17 years from 1992, until toward the end of 2009.
Alternatively, the case of the respondent is to say that there was house-sharing as between the two, for a period a little less than 17 years, perhaps 15 years, but that it was certainly not a situation of a de facto relationship. In this instance, however, there is no particular need to consider the type of relationship but simply the duration of the relationship, whatever that relationship may have been.
In this instance, both parties acknowledge that the relationship, whether it is of landlord and tenant, carer and cared for person or de facto relationship, however that might be defined, is one of between 15 and 17 years.
There needs, also, of course, to be consideration of the nature and extent of the parties common residence. It in fact is a most significant factor. in relation to the determination of this matter. At paragraph 146 of his decision in Moby & Schulter, Mushin J, when commenting upon this particular subsection made the following comments:
I treat the words “common residence” as they appear in the subsection as “living together”. I have already noted the importance of this circumstance as it appears in the definition. There is a vast discrepancy in the evidence of the parties and their respective corroborative witnesses.
I should note here, that in this particular matter, exactly the same discrepancies arise between the position taken by the applicant and, as supported by the various witnesses called on behalf of the applicant, as opposed to the position taken by the respondent and supported by her various witnesses.
The applicant’s evidence was clearly to the effect that the parties were in a relationship and that there was common residence, be it in New South Wales or subsequently in Queensland at the Gold Coast, for a period of a continuous nature of some 17 years.
The respondent sought specifically to draw a distinction between the concept of living together and whether, in fact, there was common residence. It was clearly the respondent’s position in relation to this matter, which was to the effect that even if there were a common residence, there was not a commonality of purpose in relation to this matter and that therefore there was not a common residence which gave rise to a determination that there might be a de facto relationship.
Mushin J, in Moby & Schulter, dealt with a similar argument arising from a shorter term relationship, but still one of some significance, about nine years or thereabouts. In that case the respondent, seeking to convince the Court that there was not a de facto relationship, sought to draw a distinction between the concepts of “living together” and the applicant having “stayed” with him overnight.” Mushin J indicated in that decision that in his view, the distinction between the concepts was, “more a term of art rather than reality”. I must say that I am of a similar mind in relation to this particular determination, as considered by me.
I have already found that whilst there is a distinction to be drawn between the positions taken by the applicant and the respondent I am more inclined to prefer the evidence of the applicant, because of the overriding consideration to which I made reference, namely that the respondent sought to protect her good name.
Accordingly, I find that subject to the other matters, which must be considered in relation to this matter, that the parties did have a common residence and that that common residence continued for a period of between 15 and 17 years.
There is a necessity for the Court to give consideration to whether a sexual relationship existed between the parties. There was, certainly commonality of position to say that there was a sexual relationship though there was very great discrepancy between the parties, as to the regularity or even continuity of that sexual relationship. Certainly the applicant says that, being mindful of the parties’ respective age, that there was an intimate relationship between them which endured for perhaps the first 10 years or thereabouts of their relationship with each other. Once they reached their eighties, however, the applicant indicated that the nature of any intimae relationship between them changed but there was still that common affection and support that he says existed, until very late in the relationship.
From the respondent’s perspective, it was very much more a situation of there being one occasion where there was a sexual relationship between the parties, which occurred very soon after the relationship commenced, in either 1992, according to the applicant or 1994 according to the respondent, but that it was a “one-off” occasion which came about as a result of intoxication, certainly on the part of the respondent.
Again it is a difficult determination to make in relation to this matter but I must say, in light of the findings that I have made, and in particular the significance that I placed on both the evidence of the late Mr A Dobbins and the particular weight that I gave to the evidence of the legal personal representative, Mr K Dobbins, I am far more inclined to the view that, whilst the sexual relationship may have tapered over time, particularly being mindful of the parties age, that there was an enduring sexual relationship between the parties from the commencement of their common residence until the latter part of the time that they lived under the same roof.
Insofar as a consideration of the degree of financial dependence or inter-dependence and arrangements for financial support between the parties is concerned, there was certainly a significant discrepancy between the version of each of the parties. There was, however, also, on many occasions, instances of what might be called different perspectives but similar factual bases upon which here could be reference to the financial dependence or inter-dependence of the parties.
It was admitted that the applicant contributed significantly towards the costs of food. It appears to be acknowledged that that was in the vicinity of 90 to 95 per cent of those costs, but the respondent’s position in that regard was to say that she did not eat very much, particularly as a result of an existing medical condition, and that therefore the applicant was simply paying for primarily his own needs. I am not necessarily comforted at all by that position, being mindful of the fact, that, if one is to look at the multitude of various arrangements that might exist of a domestic nature between any parties, there is always going to be divergence in relation to the use and needs by parties of not only food but power and other resources within a household and certainly it would seem that there was inter-dependence between the parties.
More particularly there was also, it would seem, agreement that the applicant paid at least one half of the electricity bills that were received by the respondent and clearly there was an intention, however it may be expressed, for some form of sharing or inter-dependence in relation to the expenses associated with the household.
There is a very real consideration that arises, pursuant to the provisions of section 4AA(2)(e), relating to the ownership, use and acquisition of property. Quite clearly there was a very real disparity between the financial circumstances of the applicant and the respondent, at the commencement of their relationship. It appears that the respondent owned her own residence in New South Wales and when, in or about 2000, a move was made from New South Wales to the Gold Coast in Queensland, the respondent purchased, in her own name, the property, [Property M].
That was a continuation of the pre existing ownership of the property in New South Wales but it is noteworthy that it occurred some eight years or so, subsequent to the commencement of the applicant living within the same residence as the respondent and yet there was not a joint acquisition of the property.
By the same token it may simply be explained and I am inclined to think that it would be explained by the respondent’s wish to ensure that there was an easy transition, at some time in the future between the respondent and her family pursuant to any entitlements that might exist or arise from her will. It would seem that there is little, if any, evidence of ownership, use and acquisition of property which was of a joint nature and that is a factor which needs to be considered, in relation to the determination of this matter.
There needs also, of course, to be consideration of the parties mutual commitment to a shared life. Again, there is a very real difference between what each of the parties to the relationship suggest was the commitment, in relation to their shared life. The applicant says that there was a total commitment of himself and the respondent to sharing their life together. He says that this was from 1992 when he commenced to reside in the respondent’s house and that it continued, albeit with some “rough patches” particularly towards the end of their relationship, up until the time of separation in the latter part of 2009.
It was in fact noteworthy that the applicant’s very clear evidence was to the effect, that he was distraught and surprised at the indication given at the time of separation, that the relationship was over. It was clear from the evidence given by the applicant that he regarded the respondent and he to be committed to the sharing of their life together.
From the respondent’s perspective, however, there was a total denial of any commitment to a shared life and it was asserted, repeatedly, that there was no basis upon which it could be suggested that there was any joint commitment to a shared life together. This was reflected, it was said, in the fact that a number of the corroborative witnesses for the respondent indicated that they had never heard the respondent refer to the applicant as “my husband” or “my partner” and that any indications that might have been given as to the relationship, were referred to very much as either a boarder or a person cared for, in other words, a carer and cared for relationship.
As I indicated, however, I was not necessarily impressed with that particular aspect of the evidence in relation to this matter and as previously commented upon by me, what might have been the subject of discussion or comment, particularly by the respondent to other persons was not, I would think reflected in the longer term observations and particularly the unrehearsed observations of the relationship between the applicant and respondent. I am far more inclined to the view that there was, whether it was acknowledged by the respondent to other persons or not, a degree to a significant extent of mutual commitment by the applicant and the respondent, to a shared life.
Subsection (g) of 44AA requires there be consideration as to whether there was registered under a proscribed law of a state or territory, any particular relationship. There does not appear to be any reference to such a registration in respect of any law of the State of Queensland or of New South Wales, though there certainly was reference to documentation, particularly the most recent in time medical records, which indicated that there was a carer relationship between the parties. There was also, of course, as I have previously referred to, the receipt by the respondent of a carer’s benefit in relation to the assistance that was provided by her to the applicant, he being legally blind.
Whilst it is a factor to be considered in relation to this particular matter, I must say that it is not one upon which I would give great weight and certainly, the far more significant issues in relation to the matter are those to which I have already referred.
There is, of course, no need to give consideration to whether there was care or support of children, it being the case that the parties were well past the child rearing age at the time that their relationship commenced.
Finally, and I must say I think significantly in relation to this matter, consideration needs to be given to the issue of the reputation and public aspects of the relationship. There was again a very different position taken by the applicant and the respondent in relation to this matter. In that regard, however, whilst I noted the comments made on behalf of the respondent and in particular by her corroborative witnesses, I must say that in relation to the public aspects of the relationship I was far more inclined towards the view of the legal personal representative, Mr K Dobbins, and in particular to the observations that were made by MR F Dobbins. In that circumstance I found that the evidence, particularly of Mr F Dobbins, was compelling in relation to this particular aspect of the matter.
I turn now to the necessary consideration of all of the relevant circumstances of the parties relationship and the determination of whether, in conjunction one with the other, there is a basis to find that there was a de facto relationship arising, in accordance with the legislative definition. The essential question that is required to be determined, is whether the parties relationship is one of a couple living together, on a genuine domestic basis. It must not be seen as a term of art as was referred to specifically by Mushin J in Moby and Schulter but rather it must be given it’s ordinary meaning. It should therefore include the concept of the diversity of relationships that exist between couples within our society.
That diversity is reflected, of course, in the fact that subsection 5 of section 4AA specifically makes reference to the fact that a de facto relationship can exist between two persons of different sexes, as well as between two persons of the same sex. It is also noteworthy, though not relevant in relation to this matter, that a de facto relationship can exist even if one of the persons is legally married to someone else or is in fact in another de facto relationship.
The relevance of those two particular inclusions in the definition is obvious. It is a far wider definition than simply that which arises pursuant to the provisions of the Marriage Act, which is a union between 2 persons of the opposite sex, to the exclusion of all others. It is here a far wider and I must say far more accepting definition of what constitutes relationships within our society at this time.
Here the parties relationship, as is so often the case in any relationship, be it one of marriage, de facto, same sex or opposite sex, has gone through a number of different phases. The facts applicable to each of those phases has changed, not the least of those changes is the fact that the sexual relationship, to whatever extent it may have existed, has varied over time and with the increasing age of the parties.
Similarly, the needs of each of the parties have changed and in particular the need for nurture and support experienced by the applicant, particularly when he was found to be legally blind, is a relevant consideration but it is also simply one more of the telling factors in relation to there being an ongoing relationship between the parties, which included common residence.
I am satisfied that there was a continuing relationship between the parties from 1992 until, at least, September 2009. Quite clearly the nature of that relationship, as is the case in almost all relationships of any significant length, changed and in the latter part of the relationship, certainly it would seem from 2007 onwards, there were difficulties but notwithstanding those difficulties, the parties continued to have a mutual commitment to a shared life, as evidenced by the fact that whilst there appears certainly to have been an increase in the consumption of alcohol, particularly on the part of the applicant during the latter part of the relationship, he continued to reside in the residence and on the findings that I have in relation to this matter, he continued to share the same bed as the respondent.
As I have indicated, when one considers all of the circumstances of the relationship that existed between the applicant and the respondent for a period of some 17 years or thereabouts and the nature of their common residence, the nature of their sexual relationship, the nature of their mutual commitment to a shared life together and, in particular, the public aspects of their relationship, I am satisfied that there was a de facto relationship in existence between the parties from 1992 until September 2009 and I intend to make the appropriate declaration in that regard.
Having made the findings that I have made in relation to this matter, I turn now to the issue of the property settlement to be effected between the parties. I turn to a consideration of the issues of both the law and its application, in relation to this matter. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement as between parties to a marriage. Section 79(2) provides that:
The court shall not make an order under this section unless it is satisfied that in all the circumstances, it is just and equitable to make the order.
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a) the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b) the contribution made by a party to the welfare of the family including any contribution made in the capacity of home maker or parent;
c) the effect of any proposed order upon the earning capacity of either party;
d) the matters referred to in subsection 75(2) as far as they are relevant;
e) any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f) any child support payable.
In relation to a de facto relationship, provisions in virtually identical terms are set out in section 90SM(3) and (4). They are in these terms:
(3) [Just and equitable requirement] The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) [Matters to be taken into consideration] In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 90-897; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC92-595 and In the marriage of Whitely and Whitely (1996) FLC 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable [see section 79(2)]. It is the justice and equity of the actual orders that the court must consider [see Russell and Russell (1999) FLC 92-877].
Accordingly, it is necessary to follow a four-step process in respect of the determination of what might be the appropriate distribution of assets as between the parties. I am satisfied that it is proper in all the circumstances to follow a similar approach in relation to determining an appropriate distribution of assets as between the parties to a de facto relationship.
The first of those steps is the requirement that there be a determination of the assets of the parties, as at the time of trial. In this matter it would appear that there is generally agreement that the pool should be assessed at approximately $1,000,000. It was made up primarily of the residence, [Property M] and there appears clearly to have been agreement that it had a value of approximately $785,000. That property is held solely in the name of the respondent.
Additionally, there are funds held in the bank accounts of the respondent, being two bank accounts at the Commonwealth Bank, [omitted], containing respectively, $105,000 and $81,000 as well as a minimal amount held in an ANZ bank account in the name of the applicant, in the sum of approximately $2.300. The total value of those assets totals $978,300. For convenience in relation to the determination of these proceedings, it being clear that there are, of course, additional chattel items and the like, which have not been the subject of valuation, I intend to find, and do find, that the property for the purposes of distribution to be considered in relation to this matter, totals $1,000.000.
The second step in relation to any such a determination is to consider the contributions of the parties to the asset pool to be distributed between the parties. It is certainly the case, that the vast bulk of the assets of the parties were contributed at the commencement of the relationship, by the respondent. As I have indicated, the respondent owned property in New South Wales which was subsequently sold and utilised towards the purchase of the [Property M]. That property was also held solely in the name of the respondent.
The applicant certainly gave some evidence to the effect that he had contributed at the commencement of the relationship, a sum of approximately $20,000 as well as to have brought into the relationship a [omitted] sports car of indeterminate value. That vehicle appears however to have been subsequently sold, particularly after the declaration that the applicant was legally blind. It would seem that there is a vast discrepancy between the initial contributions of each of the parties to the relationship, and it would not be unreasonable to suggest, that even if there were a cash component brought into the relationship by the applicant, that at the very least the percentage contribution, which fell in favour of the respondent would be in the vicinity of 95 per cent/5 per cent I would think that that would be an appropriate consideration of the initial contributions by each of the parties, at the commencement of the relationship.
Subsequently of course, they contributed to the relationship during the 17 years that they shared a residence in appropriate manners, as they were able to do. Quite clearly, the respondent was far more financially able to contribute to the relationship, she having assets independent of any entitlements that might have arisen pursuant to pensions or other Government benefits. It would appear clear that the only entitlements that the applicant was able to bring into the relationship, at least of a financial nature, were benefits arising from any eligibility for social security, pension or benefit.
There were, however, significant other contributions again made by each of the parties, appropriate to the capacities of each of them. In that regard it was contended on the part of the applicant in final addresses that the applicant, as the partner of the respondent, throughout the proceedings made significant contributions. For example, it was submitted that he purchased the vast bulk of the food for the relationship, paying 90-95 per cent of the costs of food and that he paid for alcohol for the couple, and that he paid for electricity bills, or at least one half of the electricity bills. Further, and that he helped out around the home and in particular prepared meals and was a companion to the respondent.
Similarly, of course, though perhaps it was not elaborated on as particularly as was the case for the applicant, the respondent contributed to the financial needs of the household and also contributed in her own way, to the non financial contributions within the home. Quite clearly she was a companion to the applicant, and in the latter part of their relationship provided very significantly as a carer, or at the very least a companion, particularly during travels that the applicant and the respondent took together.
I am satisfied that during the relationship each of the parties contributed as they were able to do so and that there was an equal contribution of a non financial nature during the period that they shared their residence, though perhaps, on the face of it, not as significant a financial contribution by the applicant as was the case for the respondent.
In any event, with the effluxion of time, there quite clearly was a situation where the applicant gained some further interest in the property of the respondent. That of course, comes not only from the general maintenance that the applicant said was performed primarily by him to the residence in New South Wales, and in the latter part of the relationship, to [Property M], but also from the fact that the applicant suggested that there were certain improvements that were effected to the property. Whilst he may not necessarily have performed much, if any, of the physical labours, he was a contributor in relation to those particular improvements.
I am satisfied that there was during the relationship, contributions of an appropriate nature by both the applicant and the respondent, and that in the circumstances there has been an accrual by the applicant of a further interest in the property of the respondent. It would not however be the vicinity of 45 per cent, as was suggested in the original application filed by the applicant in these proceedings.
That in fact was, to some extent conceded in the submissions that were made on behalf of the legal personal representative for the applicant, in that it was noted, that whilst the applicant in the originating application sought a 45 per cent proportion of the asset pool, it was sought in light of the contributions that were made by the applicant as well, a consideration of the section 75(2) factors, or more particularly, the section 90SF(3) factors, which arose whilst the applicant was still alive. The proportion sought was reduced to 35 per cent in final addresses.
I must say that in light of the enormous disparity between the initial contributions of the parties and the fact that that initial contribution, particularly by the respondent has significantly influenced the final assets of the parties at the time of the trial, I am not at all minded to think that there would be a contribution factor of 45 per cent or anywhere approaching that. I am far more inclined to the view that the appropriate consideration in relation to the distribution of the assets of the parties would be more in line with an 80 per cent/20 per cent division of assets between the respondent and the applicant, in favour of the respondent.
Of course, it is necessary then, as a final consideration to look at those matters which are commonly referred to as the section 75(2) factors, though more appropriately here would be the section 90SF(3) factors. Section 90SF(3) is in these terms:
(3)[Details of matters to be considered] The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
Further there needs now to be specific consideration of what should occur, in light of the death of the applicant. Quite clearly, the factors to be looked at in that regard have significantly changed in that there are not, for example, the future needs of the applicant that would normally be taken into consideration, as opposed to the very significant needs of the respondent, particularly in light of the current concerns with regard to her health.
In that respect it was strongly argued on the part of the legal personal representative for the applicant, that the applicant’s share of the estate should not be eroded to satisfy the respondents claims pursuant to the provisions of section 90SF(3) of the Family Law Act. In that respect, I was referred particularly to the decision of the Full Court of the Family Court of Australia in Van der Linden & Kordell [2010] FamCAFC 157, a decision handed down on the 23rd of August 2010. In that decision specific consideration was given to the issue of a section 75(2) adjustment in light of the subsequent death of one of the parties to the proceedings.
At paragraph 80 onward in that decision the Full Court said:
80.… it was submitted on the behalf of the husband that the Estate has no needs whereas the husband has the significant and ongoing responsibility to support and accommodate himself and the two children. It was submitted that the needs of the surviving spouse have a “decisive impact” and that an adjustment of 10 per cent was inadequate, especially given that the dollar value of the adjustment is only approximately $99,000. Counsel contended that the pool of property available for distribution in this matter is not large, and that as such there should have been a greater adjustment. In support of this contention counsel referred us to the decision of Tasmanian Trustees Ltd and Gleeson (1990) FLC92-156, per Full Court (Nygh J with whom Sprouse and Baker JJ agreed).
81.In that case, the husband died while judgment with respect to property settlement was reserved. The Full Court recognised that the most obvious difference caused by the husband’s death was the fact that the deceased no longer had any s75(2) needs for the future, while the survivor continued to have such needs. While the Full Court recognised (at 78,086) that the deceased had “a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage”, the surviving wife’s needs were found to be large enough to justify an adjustment in her favour of the share to which the husband might have been entitled to by way of contribution had he not died, in circumstances where the estate was very small and the wife’s needs were “overwhelming”. The trial judge had found it was no longer appropriate to make an order with respect to the former matrimonial home which the wife would retain by survivorship.
The Full Court in Van der Linden & Kordell went on in paragraph 83 however to make the following comments:
83.However, although it is clear that when a spouse dies there are generally no s75(2) factors that can be taken into account in favour of the estate, and that that should highlight the needs of the surviving spouse and the fact that they have to be met, it is equally apparent that that should not detract from the need to recognise the entitlement of the deceased spouse (which devolves onto that spouse’s estate) arising from a consideration of the respective contributions of the parties.
It was noted that this was highlighted by Smithers J in Menzies and Evans (1988) FLC 91-969, where his Honour said at 77,010:
The only significant difference in the analysis of the case arising out of the death of the deceased, is the obvious one that, when comparing the position of each of the parties, the deceased no longer has s75(2) needs for the future, while the husband continues to have such needs. This does, in my view, alter the situation in a way which should be reflected in the outcome of the case. Even though his needs can be met out of income, the fact that he does have to meet them, and that the deceased does not have such needs, is the significant factor here. This aspect of the case should be of moderate significance only however in view of the amount of the assets, the age of the husband, and the extent of his future needs. Save to the extent necessary to reflect this aspect of the case it would in my view be wholly inappropriate that the deceased should be deprived of the benefits of her contributions over so many years. That is to say that it is still appropriate, following the death of the deceased, that the outcome of the case should depend, largely, upon the extensive contributions of the parties over so many years.
The Full Court then go on to say:
We observe that this was referred to with approval by the Full Court in Tasmanian Trustees Ltd and Gleeson at 78,085-086.
It is relevant in relation to this matter, particularly in light of the difference between the ongoing needs of the deceased applicant and the surviving respondent. It is however also necessary to recognise that there is a difference that arises in relation to the future needs considerations, pursuant to section 90SF(3) of the Family Law Act. In this matter there are clearly very specific and ongoing needs that fall upon the respondent. The clear evidence, and in fact the inability to attend at Court for the finalisation of these proceedings is that there are real needs, and of course, therefore expenses associated with the respondents hospitalisation and ongoing medical treatment.
In my view they must be reflected in at least some adjustment in relation to this matter, though as was clearly noted by Smithers J in Menzies and Evans and commented upon favourably in Tasmanian Trustees Ltd and Gleeson, “it is still appropriate following the death of the deceased that the outcome of the case should depend largely upon the extensive contributions of the parties over so many years”.
In this instance there is a need for an adjustment to be made in light of those factors arising pursuant to the provisions of Section 90SF(3), but in my view, they would not be so significant as to diminish to almost nothing the entitlements of the estate, of the late applicant. In my view an adjustment pursuant to the provisions of section 90SF(3) of the Family Law Act would be constituted by an adjustment of approximately 5 per cent in favour of the respondent.
Accordingly the division of the asset pool which would be just and equitable in all of the circumstances would be a division of 85 per cent in favour of the respondent and 15 per cent in favour of the estate of the late applicant. Accordingly the amount that would be received by the estate, pursuant to this determination would be an amount of $150,000, such an amount can properly be able to be met from funds and assets available to the respondent in relation to those assets and monies held by her, and I find that a payment of $150,000 to the state of the late applicant is, in all of the circumstances, just and equitable.
Before formally making the orders that I have indicated here, it is necessary to note the provisions of section 90SK(1) and (1A). They are as follows:
Geographical requirement
(1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and
(b) that either:
(i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.(1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
A declaration under section 90SL or an order under section 90SM can only be made if the court is satisfied as to the geographical requirement. No point was taken in that regard but in any event, I am satisfied that the requirements of both section 90SK(1)(a) and (b) and alternatively section 90SK(1A) have been met.
Accordingly the orders that I intend to make in relation to this matter are as follows:
(1)A declaration that pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the deceased Applicant and the Respondent between 1992 and September 2009.
(2)By way of property settlement, the Respondent pay the Legal Personal Representative of the late MR A DOBBINS the sum of $150,000, such payment to be made within 28 days of the date of this Order.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 21 January 2011
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