DOBSON & SEABROOK
[2015] FCCA 1503
•5 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOBSON & SEABROOK | [2015] FCCA 1503 |
| Catchwords: FAMILY LAW – Application for declarations pursuant to s.90RD of the Family Law Act – whether parties were in a de facto relationship – when de facto relationship ceased – whether de facto relationship finally broke down before |
| Legislation: Family Law Act 1975, ss.4AA, 4AA(b), 4AA(1), 4AA(1)(a), 4AA(1)(b), 4AA(1)(c), 4AA(2), 4AA(3), 90RD |
| Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 Aitken v Deakin [2010] FMCAfam 35 Cadman & Hallett [2013] FamCA 819 Cadman & Hallett [2014] FamCAFC 142 Clisbey & Vas [2011] FamCA 611 Dabney & Laird [2013] FCCA 214 Fenton & Marvel [2013] FamCAFC 132 Harrell & Nesland [2014] FCCA 1921 Hibberson v George (1989) 12 FamLR 725 Jonah v White (2011) 45 Fam LR 460 Kelly & Temple [2011] FMCAfam 683 Mason & Hammett [2011] FMCAfam 1004 McGee & Kerr [2013] FCCA 402 S & B [2005] 1 Qd R 537 Taisha & Peng& Anor (2012) 48 Fam LR 150 Vaughan & Bele [2011] FamCA 436 Volen & Backstrom [2013] FamCA 40 |
| Applicant: | MS DOBSON |
| Respondent: | MR SEABROOK |
| File Number: | BRC 1587 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 August 2014 |
| Date of Last Submission: | 11 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 5 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hackett |
| Solicitors for the Applicant: | Evans & Company |
| Counsel for the Respondent: | Mr Locke |
| Solicitors for the Respondent: | A E Dunne Solicitors |
ORDERS
THE COURT DECLARES:
Pursuant to ss.90RD(1) and (2) of the Family Law Act 1975, that:
(a)a de facto relationship existed between the parties;
(b)such relationship commenced in September, 1983; and
(c)such relationship did not finally breakdown before 1 March, 2009.
The proceedings be listed for further directions on 2 July 2015 at 9.30 a.m. in the Federal Circuit Court of Australia sitting at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Dobson & Seabrook is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1587 of 2014
| MS DOBSON |
Applicant
And
| MR SEABROOK |
Respondent
REASONS FOR JUDGMENT
Ms Dobson filed an application for property adjustment orders on 21 February, 2014. She contends that she and Mr Seabrook were in a de facto relationship from when they commenced living together in (omitted) 1983 until she determined to end it in February, 2014.
Whilst Mr Seabrook does not deny that the parties commenced a de facto relationship in (omitted) 1983, by his response filed on 15 May, 2014, he seeks a declaration that the parties’ de facto relationship ended in 2004. Consequently, he seeks that the application be dismissed on the basis that the parties’ de facto relationship ceased before 1 March, 2009 and therefore this Court has no jurisdiction to determine the application.
On 19 May, 2014 the Court ordered that the question of the existence of a de facto relationship between the parties and its duration be determined as a separate issue.
Both parties were represented by counsel. Whilst counsel for Ms Dobson did not articulate the ultimate issue for determination by the Court in terms, counsel for Mr Seabrook did. He articulated the issue for determination as follows:
MR LOCKE: There are two issues, your Honour: whether there was a de facto relationship on and after 1 March `09. If yes, was it finally determined? If your Honour is satisfied there wasn’t a de facto relationship on or after that date
HIS HONOUR: The requirement…
MR LOCKE: …that’s the end of it.
Fenton & Marvel (2013) 51 Fam LR 142 deals with the ultimate issue that I have to determine in this case. In Fenton, Murphy J (with whom May J agreed) explained the circumstances in which federal courts such as the Family Court of Australia and the Federal Circuit Court of Australia have come to be invested with jurisdiction to determine property adjustment applications between de facto spouses. His Honour then articulated the issue that confronts this Court in this case:
Jurisdiction in De Facto Relationships
49. The jurisdiction to hear applications for property settlement orders emanating from de facto relationships arises by a referral of powers by the States to the Commonwealth (insofar as it pertains to Queensland, where this case arose and was heard, it arises via the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld)). The [Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amendment Act”)] effected the referral by inserting Part VIIIAB and making other consequential amendments (for example, Part VIIIB and s 4AA). The latter section defines the meaning of “de facto relationship.”
50. Section 86 of the Amendment Act provides, relevantly, that “Parts VIIIAB and VIIIB, and subsection 114(2A) of the [Family Law] Act do not apply in relation to a de facto relationship that broke down before commencement” (emphasis added). There is nothing in the Amendment Act that requires the relationship to be in existence as at the date of commencement so as to attract jurisdiction; the Amendment Act merely requires that the relationship broke down after commencement. No requirement of the (Family Law) Act specifies any such requirement.
51. Commencement was set at 1 March 2009. However, the Proclamation as made was, for reasons not relevant to this appeal, ineffective to establish that commencement date. Section 2(1) of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) cured that difficulty. The commencement date for the Amendment Act is now, validly, 1 March 2009.
52. If the jurisdiction of the court is to be attracted so as to permit the exercise of power to make a property order, a number of facts – indeed, “jurisdictional facts” (see, Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148) – must be established and the findings of a trial court must reflect satisfaction of those facts on the evidence before the court. Those jurisdictional facts are found, relevantly, in s 86 of the Amendment Act, and ss 4AA and 90SB of the Act.
53. Taken together, the provisions of the Amendment Act and the Act specify that a court is required to find that a relationship did not break down before 1 March 2009; that the relationship which broke down after commencement was a “de facto relationship”; and, that the period, or total of the periods, of the de facto relationship is “at least 2 years”. Because s 86 refers to a “de facto relationship that broke down before commencement”, the first and second of the relevant findings are intertwined.
54. The requirement for the de facto relationship to have subsisted for “at least 2 years” can be met by aggregating periods of de facto relationship (see, Dahl & Hamblin [2011] FamCAFC 202; (2011) FLC 93-480). That fact gives rise to two considerations relevant to the other two jurisdictional facts just referred to. The first is that the de facto relationship must have broken down finally after 1 March 2009. Secondly, the finding that there was a de facto relationship subsisting for “at least two years”, can be comprised of findings that there were one or more periods of a de facto relationship in existence prior to commencement provided that at least some of the de facto relationship existed post-commencement. (That is because if at least some of the de facto relationship existed post-commencement, axiomatically, it cannot have broken down finally before commencement).
55. The legislative requirements have produced differing formulations of the test that must be applied if jurisdiction is to be attracted. Care must be taken if error is to be avoided. For example, other relevant factual findings may make it possible to say, on the particular facts of a case, that jurisdiction is attracted by reason of the de facto relationship being in existence “as at” or “on” 1 March 2009. But none of those formulations is the same thing as saying that a court must be satisfied that a de facto relationship existed “as at” or “on” 1 March 2009 so as to attract jurisdiction. While a finding that a de facto relationship exists “on” or “as at” 1 March 2009 may, in combination with other factual findings, encompass satisfaction of the relevant jurisdictional fact (that the de facto relationship did not break down finally before 1 March 2009), a finding alone that a de facto relationship existed “on” or “as at” that date does not do so.
56. In my view, the difference is not mere sophistry; at issue is a jurisdictional fact. There is no jurisdictional requirement to the effect that a de facto relationship must exist “as at” or “on” 1 March 2009.
Neither party has sought to bring the decision in Fenton & Marvel (above) to my attention. It seems to me, however, that to answer the question that has been posed for determination in the terms articulated by Mr Seabrook will be to repeat the error, or an error of a very similar nature, identified in Fenton & Marvel. I do not propose to do that.
It is appropriate to reformulate the question to be answered as follows: “Did the parties’ de facto relationship finally break down before 1 March, 2009”.
For the reasons set out below, in my view, the answer to that question is: “No”.
The Facts
At the commencement of the proceedings, Ms Dobson’s counsel handed up a schedule (exhibit 1) of objections to Mr Seabrook’s evidence, and that of his witness Ms B. I was invited to not rule upon those objections, but to simply ascribe whatever weight I thought appropriate to the evidence the subject of the objections. Presumably, the implication is that the evidence, if seen as inadmissible should attract little or no weight.
Many of the facts are uncontroversial. Where a controversy exists about the facts, and those facts are important, I have made relevant findings. Otherwise the facts appear to be agreed or are not challenged.
Ms Dobson is currently 75 years of age. Mr Seabrook is currently 78 years of age.
The parties met in 1982. They commenced cohabitation in about (omitted) 1983. They both accept that at that time they were in an intimate, personal relationship with each other. They both see the commencement of cohabitation as the commencement of their de facto relationship.
They rented a property in (omitted) Sydney in which to live. At that time Ms Dobson was working as a (occupation omitted) at a (employer omitted) in (omitted), Sydney. Mr Seabrook was employed as a (occupation omitted). He also has a (qualifications omitted) and was a qualified (occupation omitted), although he preferred to work in (employment omitted). Each party had savings of about $50,000, neither owned any real property and Mr Seabrook had some superannuation entitlements. Both parties shared the costs of rent and all outgoings equally.
Although the parties have no children of their relationship, both have children from earlier marriages. I have evidence from the children of Ms Dobson, Ms M and Mr R. She had another son, A, who passed away in 2007. Both Ms M and Mr R gave sworn evidence in the proceedings by way of affidavit and neither was cross-examined.
Mr Seabrook also has two daughters, Ms B and Ms A. Ms B is a (occupation omitted) and until shortly before the trial (omitted). I have evidence from Ms B. I have no evidence from Ms A. She lives on the (omitted) with her daughter – Mr Seabrook’s granddaughter. Mr Seabrook and Ms A had a difficult relationship according to the evidence. Despite both living on the (omitted) since 2004, their contact was limited and sporadic. However, he had most recently seen her the day before the trial. He was asked whether there was any reason why Mr Seabrook was not calling her to give evidence in the proceedings. His only answer was that: “There’s no reason – real reason. But I didn’t think it necessary to involve her in these proceedings with yet another affidavit.” I infer from the absence of evidence from Ms A that any evidence should would have been likely to give in the proceedings would not have helped Mr Seabrook’s case.
Ms M, Mr R and Ms B all gave evidence, which I accept, that in 1983 they lived with Ms Dobson and Mr Seabrook in the rental accommodation at (omitted).
In 1984 and after approximately 6 months of living in the rental accommodation in (omitted), Ms Dobson and Mr Seabrook bought a house together at Property J. They purchased the property as tenants in common in equal shares. They contributed equally to the deposit, payments of the mortgage and outgoings on that property. When it was eventually sold, the proceeds were divided equally between the parties.
The parties, together with Mr R and Ms M lived in the Property J property after its purchase. Ms B had moved to her own accommodation by that time and Ms M and Mr R both moved out after a short while. However, all three children remained in touch with the parties and visited them regularly.
Mr Seabrook’s evidence describes a relatively unremarkable domestic arrangement in the parties’ household at that point irrespective of the house in which they were living. Ms Dobson did the cooking and cleaning while Mr Seabrook ensured the house was properly maintained. He put the garbage out weekly. Mr Seabrook ensured that the parties’ property was insured and he carried out odd jobs where necessary. That evidence is consistent with that of Ms M and Ms B about their recollections of the parties’ domestic arrangements.
I accept Ms Dobson’s evidence that the parties maintained separate personal bank accounts from the commencement of their relationship. However, the parties held other joint accounts that were established for their joint financial enterprises, of which there were a few.
The first seems to be in approximately 1984 when the parties commenced a (omitted) business together at (omitted), Sydney. The evidence does not reveal for how long they operated that business.
The parties bought and sold real property. In 1987 they purchased a property at Property N, Sydney as tenants in common in equal shares. They moved to live in that property and used it as their home. They contributed equally to the purchase price, mortgage repayments and other outgoings. When the property was ultimately sold, they shared equally in the proceeds.
According to Mr Seabrook’s evidence, the domestic arrangements remained the same when they lived in this house as they were in their previous accommodation.
In approximately (omitted) 1992 Mr Seabrook took up employment at the (employer omitted) in (country omitted). Ms Dobson joined him in (country omitted) in (omitted) 1992. While in (country omitted), their Property N property was rented to others. Mr Seabrook became “the sole bread winner” and “supported Ms Dobson.” I accept that was so. I accept Ms Dobson’s evidence that because of the immigration requirements in (country omitted), she was unable to work there. However, she ran the household and organised social engagements. The parties had a maid who did the cooking and the cleaning. Ms M, Mr R and Ms B each visited and stayed with the parties in (country omitted) from time to time. The parties returned to Australia from (country omitted) in (omitted) 1994.
Both parties agree that they lived together and slept in the same bed from 1983 to 1994. They engaged in sexual intimacy. During that time they went to friends’ homes for meals and parties, entertained friends at their home, went to the movies and theatre and went out for lunches and dinners together. They also went away together for holidays and weekends. Their children visited “from time to time”. They celebrated each of their children’s birthdays and their own. Neither party suggests that at this point in time their relationship was anything other than a de facto relationship as that term is commonly understood.
Upon the parties’ return to Australia, they initially resided with Ms B at (omitted) for a month or two. Their Property N property was not then available as the lease term that they put in place whilst in (country omitted) had not expired. Ms Dobson soon moved into her son Mr R’s accommodation at (omitted) to await the Property N home becoming available. No reason is given in the evidence about why the parties lived separately at that point.
When the tenants vacated the Property N property, the parties moved back to live there. However, in a break from their usual arrangements, Ms Dobson moved into the spare bedroom. The parties have maintained separate bedrooms ever since. However, Ms Dobson gave evidence, which I accept, that when they were away together, they would often sleep in the same bed.
Ms Dobson gave unchallenged evidence that Mr Seabrook has been impotent since “the early 1990s”. She said that around that time, they made a decision to sleep in separate bedrooms so that they could each enjoy a better night’s sleep. Ms Dobson said that Mr Seabrook needed to get up frequently during the night to go to the toilet. She also said that he had claimed that she snores.
Mr Seabrook alleges that Ms Dobson continued to clean the house but started to cook fewer meals and he began cooking for himself. Ms Dobson swears that throughout the whole of the relationship (as she defines it) the parties’ shared meals and activities and were committed to each other’s well-being. She specifically denied that in 1994 her cooking and other household tasks diminished and Mr Seabrook took on a greater role for his own care. She thought that occurred “a lot later on than 1994”. I accept her evidence about that.
Around 1996 Ms Dobson, Ms M and Mr Seabrook purchased a “terrace at Property A as tenants in common in equal shares”. All three contributed equally in time and money. The property was renovated and sold. The proceeds were distributed evenly between them.
Mr Seabrook and Ms Dobson also purchased a property at Property G. They contributed to the purchase price and the costs of ownership and renovation equally. When it was later sold, the net proceeds of sale were divided equally between the parties.
In 1996 Mr Seabrook purchased a unit at Property W solely from his own money. He says Ms Dobson did not assist in looking for or purchasing this property. Nor did she assist with the renovations or maintenance of the property; although he gives no evidence that any renovations or maintenance has been done to the property. He still owns that unit.
In 1997 Mr Seabrook purchased a unit at Property R. Mr Seabrook says Ms Dobson was unwilling to contribute equally to the purchase of that property. Her evidence was that she was not happy with Mr Seabrook’s decision to purchase the property. She swears that she contributed approximately $100,000 towards the purchase price as well as approximately half the renovation costs. I accept Ms Dobson’s evidence that she requested the property be registered in hers and Mr Seabrook’s names but Mr Seabrook said it would be too expensive to do that because he had signed the purchase contract. Accordingly, it was only registered in Mr Seabrook’s name.
The parties moved to live in the Property R property. They maintained separate bedrooms. Mr Seabrook argues that he tried to maintain “the relationship” but over time this became more difficult as Ms Dobson involved him less in “things”. Counsel for Mr Seabrook put to Ms Dobson that from the point that the parties moved into the Property R unit, they were spending less time together. Ms Dobson accepted that was so and said that she was working full-time and out of the house eight hours a day. However, they still did things together, such as eating out and going on holiday. They were devoting time to their own interests as well. Ms Dobson gave the examples of Mr Seabrook’s interest in (hobby omitted) and the local (hobby omitted) Club, interests that she did not share and in which she did not generally participate.
Ms Dobson was an adopted child. Ms B gave evidence that in about (omitted) 1997 Ms Dobson said to her that she wanted to find out about her natural parents. She says that she and Mr Seabrook took Ms Dobson out for farewell drinks a couple of nights before she left for (country omitted) and at that dinner Ms Dobson said: “I may not return from (country omitted). When I get over there I may decide to live there again, I just wanted to let you know that is a possibility.”
In cross-examination, Ms Dobson said that whilst she accepted that she and Ms B and Mr Seabrook all went out to dinner prior to her departure for (country omitted), either Ms B or Mr Seabrook had said: “You might not come back,” and Ms Dobson said flippantly in reply: “I might not.”
Ms B was cross-examined about her recollection of the conversation. She was adamant that Ms Dobson had said the words that she had recorded in her affidavit and that they were not said flippantly, but seriously. However, I found Ms B’s evidence less than satisfactory. She agreed with counsel’s proposition that Ms Dobson was a fairly light-hearted and flippant person at times. Thereafter followed the following exchange:
May I suggest to you that those words were spoken flippantly, or in jest?‑‑‑My recollection is that they weren’t.
Well, given that you’ve told his Honour you have a recollection in that regard, would you tell his Honour of the context in which the words were spoken?‑‑‑I don’t recall the context in which the words were spoken.
Well, how can you tell his Honour that they weren’t spoken in jest or flippantly if you don’t recall the context?‑‑‑Well, I recall the way - I recall the words, and it wasn’t said in a manner that was flippant or in jest.
So, when you knew, because you were at a dinner for her to go to (country omitted), when she said she may not return, you took her seriously, did you?‑‑‑Yes. I took it seriously.
You knew she owned an interest in real estate in Sydney jointly with your father?‑‑‑I don’t know if I - what I - I don’t remember what I knew at that time.
Did you know - you knew, didn’t you, that all of her immediate family resided in Australia?‑‑‑Yes.
And yet you still took her seriously that she may not return from these travels to the (country omitted)?‑‑‑Yes.
I accept Ms Dobson’s explanation for the comment that she may not return to Australia. I accept that it was nothing more than a flippant remark made at a convivial dinner between Mr Seabrook, Ms Dobson and Ms B. I reject Ms B’s evidence about that matter.
Of Ms Dobson’s plan to travel to (country omitted), Mr Seabrook says that he was “not included in [Ms Dobson’s] plans to do this”. But Ms Dobson’s evidence is that she asked Mr Seabrook to go with her but that he said he could not get the time off work. He was then employed part-time at a (employer omitted). Ms Dobson suggested that she meet him somewhere on the return leg of her trip but he informed her that he had already booked a holiday in (country omitted). I accept Ms Dobson’s evidence about that and that Mr Seabrook left for his holiday in (country omitted) the day before Ms Dobson left for (country omitted).
Whilst Ms Dobson did go to (country omitted), in cross-examination she said that her primary reason for going there was to support her step-sister who was ill. Ms Dobson went to (country omitted) for that purpose in 1998. She was there for three months and took the opportunity to track down some of her other relatives, including her parents, whom she discovered were deceased.
Ms Dobson returned to Australia at the end of 1998 and resided in the Property R unit. The parties continued their separate sleeping arrangements.
Mr Seabrook swears that he and Ms Dobson thereafter conducted their lives separately apart from attending the “occasional Christmas dinner and the like” together. He swears that Ms Dobson occasionally cooked and cleaned but he mainly cleaned his own area of the Property R unit. Ms Dobson attended to her area of the unit. He does not describe what those areas were. It is, seemingly, this point that Mr Seabrook identifies as the commencement of the breakdown of the parties’ relationship.
In cross-examination, counsel for Mr Seabrook put to Ms Dobson the following propositions:
Would you dispute that as and from that time in the Property R property you and Mr Seabrook were sleeping in separate bedrooms? --- Yes.
And that you were living essentially separate lives apart from the occasional social event that you went to? --- Yes.
That you occasionally cooked for him? ---Yes, I would have cooked.
Sometimes he did his --- ?--- But he wasn’t there a lot of the time.
That’s right. That’s --- ?--- So I couldn’t cook.
But he sometimes did his own cooking? --- Presumably.
And that was quite different from the arrangement that had been in place back at Property J and the other properties you had lived in previously where you did all that, didn’t you? --- I think the circumstances changed.
Despite the ambiguity, it is clear that Ms Dobson accepted each of the propositions put to her by Mr Seabrook’s counsel. The changed circumstances were described by Ms Dobson in her trial affidavit and were not challenged by Mr Seabrook. She said that her suspicions were alerted to potential infidelity by Mr Seabrook when, upon her return from (country omitted) in 1998, she discovered Viagra secreted in the parties’ home. She had a discussion with Mr Seabrook about that and he revealed that he had been seeing a lady named “Ms H”. Mr Seabrook and Ms Dobson had earlier discussed him taking the drug Viagra within their relationship; however Mr Seabrook had expressed concerns that he was likely to suffer a heart attack and that he had been warned about that.
Ms Dobson’s discovery led to a period of separation between the parties. The separation commenced in late 1998 and ended when the parties reconciled, I find, in (omitted) 1999 upon Mr Seabrook ending the affair with Ms H. Given their separation, it is little wonder, then, that during that time Ms Dobson and Mr Seabrook did not spend much time together, did not attend social events together and Ms Dobson did not cook for Mr Seabrook. It was indeed quite different to the situation that existed when the parties lived at Property J.
Further, upon Ms Dobson’s discovery of Mr Seabrook’s infidelity she instructed solicitors to act for her in a claim pursuant to the Property (Relationships) Act 1984 (NSW). Mr Seabrook swears that Ms Dobson instituted proceedings under the Act and subsequently discontinued. The clear purport of his evidence was that court proceedings had been commenced and then discontinued. In cross-examination he said this:
She did not commence any legal proceedings against you in 1998 or at any other time until these proceedings were commenced. That’s what I’m putting to you?‑‑‑Well, that’s not my belief. You could be right. I’m not going to argue with you because I don’t have the documents in front of me.
Well, you say in the next paragraph of your affidavit those proceedings were discontinued. May I suggest to you ‑ ‑ ‑?‑‑‑Correct. That’s my belief.
Yes. Well ‑ ‑ ‑?‑‑‑Whether it’s accurate or not I – I can’t vouch for it because I – I ditched the documents some years ago. I didn’t believe I would have to refer to them in 2014.
May I suggest to you that what happened was you ceased receiving letters from her solicitors when you ceased your relationship with Ms H and returned home full-time. Do you agree with that?‑‑‑No, I don’t – that doesn’t accord with my memory. But what I’m going to do now is plead the passage of the years and the fact that I don’t have the documents and I never believed I would need to refer to them and have dismissed them from my mind.
(my emphasis)
The cross-examination demonstrated Mr Seabrook’s evidence to be an exaggeration. I prefer Ms Dobson’s evidence that in fact, all that had occurred were letters between the parties’ lawyers. Proceedings had not commenced and nothing was discontinued. Ms Dobson ceased the action through her solicitors once Mr Seabrook ceased his liaison with Ms H.
Those parts of the evidence set out above that I have emphasised are curious. If the parties had separated permanently as Mr Seabrook suggests and if Ms Dobson had indicated a desire to make a property claim under the relevant Act as Mr Seabrook claims and given that Mr Seabrook was in fact a lawyer (although not practising), it is strange that he would “ditch” the documents. It might have been important to retain any court documents so that in the event that a question arose about a limitation period that might apply, it could be easily answered.
In any event, I reject Mr Seabrook’s evidence on this point and accept that of Ms Dobson. There were no proceedings, only the commencement of some negotiations that evaporated upon the parties’ reconciliation.
Ms B also gave evidence that Ms Dobson had commenced proceedings against Mr Seabrook pursuant to the Property (Relationships) Act and then discontinued them. Despite her evidence being presented in a fashion to invite the inference that she was giving evidence from direct knowledge, cross-examination demonstrated that she was merely repeating what her father had told her. As is clear from the above, however, her father’s asserts about those matters were misleading.
Mr Seabrook swears since the return of Ms Dobson from (country omitted): “We have slept in separate bedrooms, cooked and cleaned for ourselves, and there was no sexual or romantic relationship between us”.
That certainly appears to have been so during the period of separation when on the evidence Mr Seabrook lived between the Property R unit and Ms H’s home. But when Mr Seabrook ceased the relationship with Ms H, he returned to living fulltime in the Property R unit and spent all of his time there.
During the period of the parties’ separation, it seems that Ms Dobson’s son, Mr R, married his wife, Ms R. Mr Seabrook makes the point that he was not invited to Mr R’s wedding, seemingly so as to suggest that the relationship between he and Ms Dobson had come to an end. But given that the wedding fell at a time when Mr Seabrook’s relationship with Ms H was still ongoing, it is little wonder that he was not invited. Ms M describes that period as a “time of upheaval”. Ms B, however, who was always considered a part of the family by Ms Dobson, Mr R and Ms M, was invited and did attend.
Mr Seabrook was subsequently invited to Ms Dobson’s son A’s wedding in 2007.
In 2000, Ms Dobson commenced to receive a (country omitted) pension which is presently $150/month. On the claim form for the pension Mr Seabrook wrote, for Ms Dobson, the words “Common Law Wife” in response to the question “Are you a married woman or widow?”
In January, 2004 the parties moved from Sydney to the (omitted). Two factors seem to have motivated the move. First, Ms Dobson’s health was suffering in the colder weather of winter. The warmer weather of the (omitted) was attractive to Ms Dobson indeed it seems, to both of them. She thought it might improve her health. Second, both parties had either retired, or intended to retire in the short term.
Ms Dobson and Mr Seabrook discussed the move to Queensland in 2013. Mr Seabrook gave evidence in cross-examination that he was in two minds as to whether to come to Queensland. But he decided to come to Queensland with Ms Dobson. He said: “But I was unsure about the quality and strength of our relationship.” In my view, that was a curious statement to make if, as he contended, the parties separated in 1998 upon Ms Dobson’s return from (country omitted). Whilst it is difficult to ascertain from Mr Seabrook’s case whether he positively asserts 1998 as the time the parties separated, to the extent that he does, the statement I have just highlighted seems inconsistent with an unequivocal determination by him of the relationship, or by Ms Dobson for that matter.
Ms B swears that she spoke to Ms Dobson “in or about 2004” about Ms Dobson’s intended move to the (omitted). Ms Dobson said to her “I am retiring and moving to the (omitted).” Ms Seabrook swears that she then asked Ms Dobson: “Is Dad moving with you?” to which Ms Dobson replied: “I don’t know, that is up to him.” Ms Dobson could not recall any of that conversation. However, she did not specifically deny the conversation.
I was left with a little unease about Ms B’s evidence about this matter. She was cross examined on it:
Could you tell his Honour when you first had cause to recollect that conversation? --- May I suggest to you that it was when you prepared this affidavit? ---Yes. It was around that time.
So about 10 years after the alleged conversation?--- Correct.
And you attribute some words in quote. Do you say they are the precise words spoken from your recollection, or words to the effect of what were spoken?--- Words to the effect.
Thank you. Now, may I suggest to you that you had no conversation with Ms Dobson in 2004 to the effect that you describe in that paragraph? Do you agree with my suggestion, or disagree? --- I’m sorry. Could you repeat that?
I’m suggesting to you that you had no conversation with Ms Dobson in 2004, or at any other time, to the effect that you describe in paragraph 25? --- That’s my recollection.
I see. You see if you go down about three paragraphs - you might want to read it in context - but the effect of paragraph 28 is that following on from these discussions with Ms Dobson, your father told you - so I assume this is after, or sometime in 2004 - that, “Property N is on the market as Ms Dobson and I are moving to the (omitted)”? --- Yes.
Well, Ms Dobson - sorry, I apologise, Ms Seabrook - the Property N property was sold at auction in (omitted) 2003? --- It may well have been. As - as you’ve said, it’s 10 years ago. It’s just my - it’s my recollection.
So the date might be wrong? Is that what you’re trying to tell his Honour now? Correct.
I accept that the conversation reported by Ms B probably occurred. I will deal with the importance of that conversation later in these reasons.
Ms B also swears that she had a subsequent conversation with Mr Seabrook and he said to her: “Ms Dobson has decided to retire and move to the (omitted).” Ms B asked: “Are you moving with her?” and he said: “I don’t know, I haven’t decided yet. I may stay down here and move into the apartment at Property W.” However, soon after that Mr Seabrook said to her: “Property N is on the market as Ms Dobson and I are moving to the (omitted).”
And so it was. Ms Dobson gave evidence, which I accept, that the parties carried out some work to the property to ready it for sale. The property was sold in (omitted) 2013 at auction for $635,000. Settlement occurred in (omitted) 2014 and the net proceeds were to be divided 75% to Mr Seabrook and 25% to Ms Dobson. However, Mr Seabrook says he paid to Ms Dobson 50% of the net profit of sale – he says she received a financial benefit at his expense of $53,905 and a total payment of $212,655. Of the additional payment by Mr Seabrook to Ms Dobson, counsel for Mr Seabrook put the following to Ms Dobson:
But in fact it’s the case – is it not – that even though you were only entitled to 25 per cent of the proceeds that Mr Seabrook actually gave you half of the net proceeds – 50 per cent?‑‑‑That’s correct because I did most of the renovation and put 50 per cent of the renovation money in.
Okay. But in any event, that was something that he opted to do?‑‑‑If I did the work, yes
Well, there was no contractual obligation or anything?‑‑‑No, no.
It was essentially a matter of grace and favour?‑‑‑Between us.
Grace and favour?‑‑‑Absolutely, yes.
Grace and favour. All right. And I take it you would have been grateful for him for having done that?‑‑‑Well, it – the renovation wouldn’t have got done probably.
An act of grace and favour, as counsel puts it, of the magnitude claimed by Mr Seabrook is much more likely between parties in a de facto relationship than between “flatmates”.
The parties retired from paid employment. In 2004 they moved to the (omitted). Mr Seabrook paid removalist costs of $3,404. Initially they rented accommodation while they looked for somewhere to purchase. Indeed, it is Mr Seabrook’s evidence that they looked for a property to purchase together.
Ms B swears that in 2004, she went to the (omitted) for the first time after the parties moved there. The parties were living in a rented unit. She swears that Ms Dobson said to her: “I don’t want to see you with your father. I want to see you separately.” Ms Seabrook asked why and says Ms Dobson said: “Because I have decided to live a separate life to your father.” She said that she asked Ms Dobson: “In what way?” and the response was: “We will share a place together but I will have my life and he can have his life.”
In cross-examination Ms Dobson accepted that she had said to Ms B: “I don’t want to see you with your father. I want to see you separately.” but that she had done so “down the track” – that is to say some time after the parties had moved to the (omitted). However, Ms Dobson denied that she had said to Ms B: “Because I have decided to live a separate life to your father.” or that: “We will share a place together but I will have my life and he can have his life.” Rather, Ms Dobson said that she had said that she wanted to see Ms B separately because: “each time we would go out to lunch Ms B never – and myself would also end up in an argument between Ms B and her father and I did not want to be present any more.” She otherwise denied Ms Seabrook’s evidence about these matters.
I prefer the evidence of Ms Dobson on this matter. I think it more likely that Ms Dobson’s version of the conversation is more accurate. There is no evidence that Ms B took up with Mr Seabrook about Ms Dobson’s expressed desire to live a separate life from him. The absence of such evidence from Mr Seabrook and Ms B is telling in my view. According to Ms B the person who had been her father’s life partner, on one version for at least 15 years and on another more than 20 years, had just told her that she was changing the nature of their ongoing relationship in a significant way – Ms Dobson was separating from her father. If the conversation had taken place as contended for by Ms B, I have no doubt she would have taken the matter up with her father. But neither gives evidence of her having done so.
In the middle of 2004 Mr Seabrook purchased a property at Property C, for $495,000. He swears that Ms Dobson did not want to contribute to the purchase price of that property. He had received $404,250 from the sale of Property R property but needed an extra $90,750 to pay for the Property C property (plus stamp duty). Mr Seabrook obtained a mortgage for $112,000 which he discharged entirely from his own funds over approximately a 4 year period.
Ms B swears that when she first visited Ms Dobson and Mr Seabrook on the (omitted) in 2005 and saw the Property C property, Ms Dobson showed her around the property and said: “This is my area”. She swears that Ms Dobson then showed her the main bedroom and ensuite and said: “This is your father’s area.” She swears that she was then taken and shown the family room where, she was told, Mr Seabrook watched television and the lounge room where, she was told by Ms Dobson, she watches television. Ms Dobson could not recall giving Ms Seabrook a tour as she described. Moreover, Ms Dobson expressly disavowed the proposition that the home had two televisions until about 2011 or 2012 when Ms Dobson purchased a second television.
I accept Ms B’s evidence that Ms Dobson showed her around the Property C property and pointed out the areas occupied by both of the parties. I think that Ms B is mistaken about the evidence that she gives concerning the separate television watching areas. I accept Ms Dobson’s evidence that it did not occur. It is highly unlikely that such a conversation would have taken place because the parties only had one television on the premises.
Ms Dobson never paid rent or board to Mr Seabrook for her use of the Property C property. Mr Seabrook swears that Ms Dobson never offered to pay rent or contribute to the mortgage repayments. I am satisfied that Mr Seabrook met all of the outgoings associated with that property from his own funds. Ms Dobson never offered to or contributed to those expenses.
Mr Seabrook’s case is that since moving to the (omitted) Ms Dobson has purchased food and clothing for herself. He has purchased his own food and clothing. They agree that there has been no sexual or romantic relationship between them. Mr Seabrook says that he has cooked his own meals or arranged for them to be delivered by Lite N’ Easy. He says they shopped separately, cleaned their own areas of the property and he washed and ironed his own clothes. According to Mr Seabrook, they lead separate and independent lives.
Ms Dobson agrees that since moving to the (omitted), she purchased food and clothing primarily for herself. Mr Seabrook purchased his own food and he shopped separately. As to Mr Seabrook obtaining his meals from Lite N’ Easy, Ms Dobson swears that Mr Seabrook tried purchasing his dinners from there for approximately 6 months in 2011 so that he could eat more red meat. She swears that she did not eat a lot of red meat and was diagnosed as celiac in about 2004 – by Mr Seabrook eating these dinners, it saved her having to cook separate meals – one for him and one for her.
The parties washed their clothes and ironed them separately.
The parties had a cleaner for their home. She cleaned the property. She has given evidence in these proceedings which I have set out later in these reasons.
In 2007 Ms Dobson’s son A was diagnosed with terminal cancer. He lived in (omitted) and had a very short life expectancy. Ms Dobson undertook some trips (omitted). Mr Seabrook did not accompany her.
In (omitted) 2007, A and his wife Ms S had their second child. In (omitted) 2007 A and Ms S married and had a dual wedding and christening celebration. Ms Dobson, Mr Seabrook, Mr R, his wife Ms R and Ms M went to (omitted) for that occasion.
In fact, it seems that Ms Dobson and Ms M went a bit earlier than the others and helped out with organising the celebrations and helping generally in A’s home. Ms Dobson and Mr Seabrook stayed on in (omitted) after the wedding and visited the (omitted) area and the wineries there. Ms M swears that she saw photos and heard their stories of their travels in (omitted).
A passed away at the end of 2007. Ms Dobson went back to (omitted) for his funeral, but Mr Seabrook did not accompany her.
In (omitted) 2008 Ms S and Ms Dobson’s two grandsons stayed with Ms Dobson and Mr Seabrook in their home at Property C. Because the visitors occupied the other bedrooms, Ms Dobson and Mr Seabrook, I am satisfied, slept in the same bedroom during that visit.
In (omitted) 2009, Ms Dobson lent her daughter Ms M money to facilitate the purchase of a property at (omitted). She did not tell Mr Seabrook about this loan as she “was fearful of his anger”. The money remains on loan to her daughter.
Ms B swears that over the past 10 years Ms Dobson has said to her on a number of occasions: “Your father and I are leading separate lives. We buy our food separately and we cook separately.” She gives no particulars, however, of the occasions upon which these words were said. There is no context put to the statements, and in light of her conversation with Ms M in January, 2014 which I have set out later in these reasons, I think it unlikely that Ms Dobson said those words to Ms B in the way in which she would now have the Court accept they were said. I place little weight on this evidence.
The parties’ children have had the opportunity to observe them since the move to the (omitted). Ms M swears that she would regularly visit Ms Dobson and Mr Seabrook and have dinner with them at least once a month. Ms Dobson would make dinner including dessert for all to enjoy.
Ms M gave evidence that she investigated provision of meals through “Meals on Wheels” for Ms Dobson and Mr Seabrook when Ms Dobson was sick. She visited their office on a couple of occasions to see what sort of food they had available. The last time she took over a selection of 3 course meals for Mr Seabrook, he told her they were okay but he did not like them enough to continue with them. Ms Dobson could not use the service as she needed gluten free meals. Ms M enquired about “Meals on Wheels” on a few occasions in the period between 2010 and 2012.
The only change that Ms M observed in the parties’ relationship was after the separation initiated by her mother – her mother stopped cooking for Mr Seabrook and stopped driving him around to his medical appointments and other engagements after the first court date in these proceedings when she found out he was denying their relationship.
Mr R swears that he, his wife Ms R and their two children regularly visited the parties on the (omitted). He swears that Mr Seabrook was always included “as part of the family”. For example, Mr Seabrook attended his son’s Holy Communion in 2008, his daughter’s Holy Communion in 2010, a family get together at (omitted) in 2012, a belated Christmas lunch in 2012 at Ms M’s home and a Christmas family lunch at Ms M’s home in 2013. He exchanged Christmas gifts with Mr Seabrook at Christmas.
Mr R always considered the parties as a de facto couple and they held themselves out as such to him, family and friends. Mr R swears that: “They lived together, holidayed together, and celebrated together like any normal couple.” He observed that their relationship was consistent. Mr R’s evidence was neither the subject of objection, nor challenge in cross-examination. I accept it.
Ms M gave unchallenged evidence that “in the last few years” Ms Dobson and Mr Seabrook discussed with her the possibility of them moving from their home at Property C into a 3 or 4 bedroom unit. Ms M gave evidence that in 2011 or 2012 she inspected a unit at (omitted) overlooking the (omitted) with Ms Dobson, Mr Seabrook and her partner Mr G. They met with the agent at the unit. The unit was on the top floor and had a large roof garden. Ms M neither saw nor heard any indication that Ms Dobson and Mr Seabrook would not be moving in together. During the inspection, each of Ms Dobson and Mr Seabrook made comments about what they would do with this or that room or space or feature and where their furniture would go or whether they liked one thing or another.
Ms M swears that in approximately (omitted) 2014 Ms B travelled to the (omitted) from Sydney and stayed with Ms Dobson and Mr Seabrook at their home. There was what Ms M describes as a “family lunch” on a Sunday. Ms B wanted to go to the shops but had no transport so Ms M drove her to the shop. Ms M swears that:
76. …During the outing she said words to the effect that she has “Never seen him so bad”. She indicated to me that she was referring to him being irritable and cranky.
77. Ms B told me that he had a pension through his superannuation worth $700,000 and that Mum as his de facto would be entitled to claim the superannuation pension on his death. She stressed this fact to me and that I was to make sure that Mum did claim for these monies as she said that on this visit she and Ms A had been talking and that they had both come to the same conclusion that Mum after all these years was entitled to it, as she was his spouse.
78. She made clear that her side of the family had been having discussions about what was to happen when death parted Mum and Mr Seabrook.
In cross-examination, Ms B accepted that the conversation recorded by Ms M had taken place. She made no attempt to take issue with Ms M’s record of that conversation. The importance of the evidence is that it demonstrates that even to the children of these parties, they had a reputation as a de facto couple.
According to Ms M, she has observed Ms Dobson and Mr Seabrook together for over 30 years. There is no reason to doubt that evidence. According to Ms M, Ms Dobson saw Mr Seabrook as her husband, and referred to him in that way over that time. Ms M did not observe Ms Dobson to cease or stop her relationship with him. Ms Dobson did confide in Ms M and told her that there was unhappiness in the relationship when Mr Seabrook was unfaithful but that she forgave him for the affair in 1998/1999 in Sydney.
Ms M never observed anything to suggest that Ms Dobson and Mr Seabrook had concluded their relationship or that it had changed in nature or that they had separated before 2014. Neither Ms Dobson nor Mr Seabrook said anything to Ms M that indicated that they had separated before Ms Dobson’s separation in (omitted) 2014.
Ms R gave unchallenged evidence that she first met Ms Dobson and Mr Seabrook in 1989 when she began a relationship with Ms Dobson’s son Mr R. She has always known Ms Dobson and Mr Seabrook: “to be a couple”. She swears that Ms Dobson and Mr Seabrook have:
14. …always presented as a couple and held themselves out as such. When we have attended at their home on a number of occasions for family get togethers, Mr Seabrook is there as part of the family and sits and interacts with us all. It is the same when we have got together at our home in Brisbane. Mr Seabrook travels up to Brisbane with Ms Dobson, sits at the table and participates in the occasions as Ms Dobson’s partner.
Ms R has heard nothing from either Ms Dobson or Mr Seabrook that would indicate that they were not in a committed relationship. In particular, she says that Mr Seabrook has never said that: “they were just flatmates”.
Ms R has observed Ms Dobson and Mr Seabrook engaging in conduct that is consistent with them being in a committed relationship. She says:
16. I would describe Mr Seabrook as being quite grumpy a times. Ms Dobson would try and make sure that he had everything he needed such as food and drink and generally make sure he was comfortable. I had witnessed Ms Dobson take the nurturer role in the relationship in that she always sought to make Mr Seabrook happy.
17. l have observed over the years that Ms Dobson was responsible for the majority of the household tasks such as cooking, cleaning and washing as is normal for a couple of their ages. Mr Seabrook was much more sedentary. He spent a significant amount of time enjoying his hobby of reading.
18. I have witnessed Mr Seabrook in a caring and nurturing role in respect of Ms Dobson and particularly as she has had a few health issues as she gets older. He employed a cleaner to help Ms Dobson with the heavier household tasks. I can also recall that in (omitted) 2011, Ms Dobson was hospitalised as she required a knee replacement and Mr Seabrook was at the hospital and respite care facility when we visited Ms Dobson. I can recall that I asked Ms Dobson how she was managing and she informed me that Mr Seabrook was popping in and out frequently with everything she needed.
19. I have seen Mr Seabrook help Ms Dobson in and out of the car when they have visited our home in Brisbane. I have heard Mr Seabrook refer to Ms Dobson as “Ms Dobson” affectionately.
A number of other witnesses gave evidence about their perceptions of the relationship between Ms Dobson and Mr Seabrook. Their evidence was on affidavit and none of it was challenged by Mr Seabrook, whether in his own material or in cross-examination.
Ms J was one of those witnesses. She gave evidence that she knows Ms Dobson and Mr Seabrook because she was their neighbour when she lived in a home next door to them at Property C. She was already living there when Ms Dobson and Mr Seabrook moved into their home. She gave evidence that she had been invited to their home on several occasions for coffee. During those times, they have appeared to Ms J to be a “normal couple”. On those occasions, Mr Seabrook would quite often be sitting reading the paper in an arm chair whilst Ms Dobson and Ms J would sit at a nearby table. Mr Seabrook would stop reading and have a chat with the ladies intermittently.
Ms J invited Ms Dobson and Mr Seabrook to her 80th birthday party at (omitted) Club. The event was a sit down dinner. According to Ms J, Ms Dobson and Mr Seabrook sat at the same table. She recalls that they left together. She also recalls that “in the last few years” Ms Dobson and Mr Seabrook stayed together at the (omitted) Hotel in (omitted). Ms J has seen Ms Dobson and Mr Seabrook in 2013 at a coffee shop at (omitted) located upstairs outside of (omitted). She stopped and had a chat with them.
According to Ms J, she would see Ms Dobson and Mr Seabrook arriving home together after doing their shopping. She would also often see Ms Dobson and Mr Seabrook going out together in their car.
Mr C was another of those witnesses. He gave evidence that his home is situated behind that of Ms Dobson and Mr Seabrook. They share a back fence. Mr R moved into his home in (omitted) 2009 after Ms Dobson and Mr Seabrook had been there for about 5 years. Mr R moved there with his partner who subsequently passed away. Ms Dobson and Mr Seabrook attended Mr C’s partner’s funeral.
Mr C gave evidence that he has been invited to Ms Dobson and Mr Seabrook’s home on several occasions for social occasions. During those times, they have appeared to Mr C to be a “normal couple”. He assumed that they were married. Mr C was also invited to Ms J’s 80th birthday celebration. He observed them to sit together at the same table as him. They appeared to be “there as a couple. I recall that Ms Dobson went and got Mr Seabrook a drink.”
Another witness who gave evidence of their perception of the parties’ relationship was Ms W. Ms W said that she has known Ms Dobson and Mr Seabrook since they moved into their home at Property C. She lives next door to them. She has lived in her house for 14 years.
Ms W swears that prior to “their separation earlier this year” – a reference to February, 2014 – she would quite often go over to Ms Dobson and Mr Seabrook’s house for drinks or morning tea with both of them. Mr Seabrook would normally sit in his leather chair and read whilst Ms Dobson and Ms W chatted. Mr Seabrook would join in at various points.
To Ms W’s observation, Mr Seabrook is an avid reader and would spend most of his time in his chair reading when she has been in the home. Ms Dobson would normally top up Mr Seabrook’s drink to save him getting up.
Ms W would often see Ms Dobson and Mr Seabrook coming and going in the car together. She would describe Ms Dobson and Mr Seabrook as a “normal couple”. She too, was invited to Ms J’s birthday party. She observed that Ms Dobson and Mr Seabrook sat together. Ms Dobson and Mr Seabrook have also talked with her about their holidays together. If they had a holiday planned or had come back from holiday, they would both discuss the arrangements or details with Ms W when she was visiting them at their home.
Ms L was another of those witnesses. She gave evidence that she has been employed by Ms Dobson and Mr Seabrook since 2004 as a cleaner. She cleans the parties’ residence at Property C fortnightly. She gave evidence about the work that she performs. She:
a)sweeps the front door step then washes it with water;
b)sweeps all the tiled areas being the laundry, hall, kitchen and family room tiled area and mops these areas;
c)vacuums carpeted areas which “consists of Mr Seabrook’s bedroom, the lounge and the study”; and
d)changes the respondent’s sheets and cleans his bathroom.
Normally, she would then have a cup of tea with Ms Dobson.
Significantly, Ms L gave unchallenged evidence that Mr Seabrook would occasionally buy Ms Dobson flowers. According to Ms L he also bought her Christmas and birthday gifts. Ms L gave evidence that she was aware that the parties went on holidays together. They discussed those plans with her, or the holidays after they had occurred. They would discuss meals at restaurants with her. They discussed the Christmas they spent at the (omitted) Hotel with her. She also observed Ms Dobson taking Mr Seabrook to doctors’ appointments.
Further, I am satisfied that until February, 2014:
a)Mr Seabrook did not have a credit card. Ms Dobson would often use her credit card for holidays or dinners. However, Mr Seabrook would provide Ms Dobson with “some funds to put towards” her credit card account – Ms Dobson considered this “normal” and did not consider a need to perform “precise accounting”;
b)Mr Seabrook paid for medical insurance for both parties with (omitted) Health. Both parties used that insurance and both were involved in deciding how they would fund medical care;
c)Ms Dobson would take Mr Seabrook to his medical appointments (he has diabetes and Meniere’s disease) and she would attend appointments with him, give feedback about symptoms and hear diagnoses and recommendations;
d)Ms Dobson would send out cards from she and Mr Seabrook to their friends and family. Ms Dobson would sign the cards for both Ms Dobson and Mr Seabrook;
e)Ms Dobson and Mr Seabrook received Christmas cards from family and friends addressed to both of them. Ms Dobson provided copies of the numerous Christmas cards the parties received at Christmas 2013 addressed to both Ms Dobson and Mr Seabrook;
f)and since living on the (omitted), Ms Dobson and Mr Seabrook have enjoyed eating out together. Ms Dobson was able to give particulars of where they would eat out together. She gave evidence that in the last few years, they would commonly eat out once a week at one of the following establishments:
i)a fish and chip shop at (omitted) which is now closed, but which the parties liked because there were gluten free options;
ii)(omitted) restaurant at (omitted) for lunch normally every 4 weeks or so;
iii)Pizza at the (omitted) Club, again this had a gluten free option; and
iv)(omitted) at (omitted); and
g)although the parties would purchase their groceries separately, they would often shop together at (omitted) at (omitted), or at (omitted) if Mr Seabrook was seeing his general practitioner at (omitted).
Ms Dobson gave evidence that despite not having had intercourse for some years, she and Mr Seabrook continued to engage in physically intimate acts such as cuddling, kissing and other means of showing affection for each other. It was put to her, however, that her evidence about that was not correct:
And you assert in your affidavit evidence that your relationship with Mr Seabrook was affectionate. There was cuddling, holding of hands – that sort of thing – don’t you?‑‑‑Yes.
Do you say that just continued right through until recently?‑‑‑Yes.
And you see, I suggest to you that there hasn’t been any overt displays of affection of that nature for many years now – probably at least 10 years. Would you agree with that?‑‑‑No.
And would you agree that there has – there’s nothing in your affidavit evidence of any statement of affection or love for Mr Seabrook having been made. Certainly ‑ ‑ ‑?‑‑‑I think going away together and sharing a room.
But you don’t suggest that Mr Seabrook has made any statements to you expressing love and affection for you or any commitment to a relationship, do you, anywhere in your affidavit?‑‑‑I can’t remember.
Well, I suggest ‑ ‑ ‑?‑‑‑I think so. I think if you read of all the holidays we had together ‑ ‑ ‑
I’m talking about an oral statement. You have never ‑ ‑ ‑?‑‑‑I beg your pardon.
--- said that Mr Seabrook said, “I love you”, or anything of that nature, have you? No.
And ‑ ‑ ‑?‑‑‑Only on birthday cards.
Indeed, there’s no evidence that either of you have said anything like that to each other at all, certainly in the last 15‑ ‑ ‑?‑‑‑Yes, I think there is.
Well, are you able to‑ ‑ ‑?‑‑‑Birthday cards, gifts.
Well, I’m talking about an oral statement here – do you understand – not some implied act. There’s nothing in your affidavits of you ever having told Mr Seabrook that you love him? I don’t think we have ever done that sort of thing – we have ever been overly gushing.
Ms Dobson’s evidence that there was evidence of the parties and in particular Mr Seabrook expressing love and affection for Ms Dobson was entirely correct. Annexed to her affidavit was a birthday card for the 2013 year in which Mr Seabrook expressed his love for Ms Dobson using words: “with lots of love.” The printed words on the card were also suggestive of love and affection towards Ms Dobson:
Happy Birthday
to someone
with a generous,
caring heart
and
a special way
of sharing
the gift
of eachmoment.
Not a card that one would give to a “flatmate” I would think. Such a card is much more consistent with there being a close and personal relationship between the giver and the receiver.
So too, for Christmas 2011 Mr Seabrook gave to Ms Dobson a card which he addressed using the phrase: “with love” and signed off with: “XXXX”, which I take to be the common abbreviation for “kisses”.
Further, whilst Counsel’s suggestion to Ms Dobson in cross-examination that:
… there’s no reference in any of those affidavits to anyone having observed any hand holding, cuddling or anything of that nature between you and Mr Seabrook?
was perhaps technically correct, the substance was not accurate because at least one other witness – Ms L, had given evidence of overt acts by Mr Seabrook such as the buying of flowers that were consistent with a loving relationship between them.
There is significant evidence that since at least 1998, when Mr Seabrook contends that the parties became “flatmates”, they socialised and spent much time together, including:
a)In (omitted) 2000 the parties took a cruise around the (country omitted) and went sightseeing in (country omitted) and had a stopover in (country omitted).
b)In 2001 the parties attended a masquerade party for Mr Seabrook’s grandson at the (omitted) function rooms.
c)In around 2002 Ms Dobson went to see (omitted) (a (entertainer omitted)) at the (omitted) with Ms B (Mr Seabrook’s daughter), Mr Seabrook’s ex-wife Ms O and her daughter Ms M. Ms B organised this outing.
d)In (omitted) 2005 Ms Dobson went to Sydney for approximately 2 weeks to care for Ms B after she had had a medical procedure. During this time, she stayed at Ms B's (omitted) home.
e)In around September October, 2006 Ms Dobson was injured while gardening and the injury required surgery. She was admitted to (omitted) Hospital for approximately 1 week and during this time, Mr Seabrook visited her daily. Ms Dobson was then sent to (omitted) for rehabilitation where Mr Seabrook visited her and eventually took her home to the Property C property.
f)In (omitted) 2007 the parties attended A’s wedding to Ms S in (omitted) and Ms Dobson’s grandson’s christening. This was the first time that Mr Seabrook had travelled to (omitted). Ms Dobson left for (omitted) about a week before Mr Seabrook. The parties stayed in (omitted) in a rented townhouse together with Mr R, Mr R’s wife Ms R and Ms M. Mr Seabrook arrived in (omitted) the day before the wedding. After the wedding, the parties stayed in a (omitted) hotel for a couple of nights. They then took a coach trip to (omitted) arranged by Ms Dobson. The parties’ coach trip was for about 4 or 5 days and included an overnight stay in (omitted) and a few other locations. They visited wineries, including (omitted). Upon their return to (omitted), the parties had lunch at “(omitted)” restaurant. Mr Seabrook returned to the (omitted) before Ms Dobson who stayed with her son A for another week.
g)In (omitted) 2007, A passed away. Mr Seabrook did not attend the funeral as he had only just returned to the (omitted) from the wedding. Ms Dobson stayed in (omitted) for a week and then returned to the (omitted) on Christmas Day.
h)In January, 2008 the family had a delayed Christmas lunch at the parties’ home in Property C. Ms Dobson prepared the lunch. Mr Seabrook was at the lunch along with Mr R, Ms R, their 2 children B and C, Ms M, her then partner Mr M, his daughter and Mr Seabrook’s eldest daughter Ms A and his granddaughter D.
i)In 2008 the parties attended the First Holy Communion of Ms Dobson’s grandson B at (omitted).
j)On 25 December, 2009 the parties spent Christmas Day at Ms M’s home in (omitted).
k)In (omitted) 2010 the parties went on a trip on (omitted) for about 12 days. The trip was organised by Mr Seabrook. The parties flew to (omitted), spent 3 days sightseeing and stayed at the (omitted). They then boarded (omitted) and travelled for 3 days visiting (omitted) and (omitted). When they arrived in (omitted) they travelled along the (omitted) on a river boat for 2 nights and 3 days. Upon their return to (omitted), they stayed at the (omitted) for 3 days before flying back to the (omitted).
l)In (omitted), 2010 Ms Dobson was admitted to (omitted) Hospital for about 10 days. She was suffering from pneumonia and a collapsed lung. Mr Seabrook visited her and took her home when she was discharged.
m)The parties spent Christmas Day in 2010 at Ms Dobson’s daughter Ms M’s home in (omitted).
n)In (omitted) 2011 the parties travelled to (omitted) and stayed for 2 nights at the “(omitted)” at (omitted). While in (omitted) they celebrated Ms Dobson’s sister-in-laws 80th birthday.
o)In (omitted) 2011 Ms Dobson had a knee replacement and spent 5 nights in (omitted) Hospital. She then spent 4 weeks in (omitted). Mr Seabrook visited most days Ms Dobson was in (omitted) Hospital and then every other day when she was in (omitted). Ms B, Mr Seabrook’s daughter also visited Ms Dobson.
p)The parties spent Christmas Day in 2011 at Ms Dobson’s daughter Ms M’s home in (omitted).
q)In (omitted) 2012 the parties went to (omitted) for a holiday and spent 3 nights at the (omitted). Also in (omitted), Ms Dobson’s daughter-in-law Ms S visited for 2 weeks from (omitted). Ms S’s friend and her 3 children also came. They all stayed with Ms M in a rented holiday house on the river at (omitted). The parties stayed in a small unit close by and went to the house daily for meals and to spend time with the family.
r)In (omitted) 2012 Ms Dobson booked and paid for accommodation at the (omitted) Hotel in Brisbane for (omitted) 2012 for the parties. They travelled to Brisbane by train and spent 3 nights at the (omitted) Hotel. The room had a queen size bed only and they slept together. The purpose of the travel was for Ms Dobson to attend at the (omitted). During their stay, they went to the markets at the top of the mall, had dinner at the (omitted) Hotel and had lunch in the city with Mr R. The parties also had a (omitted) meal in a restaurant at the mall and went on a sightseeing bus where they got off at (omitted) and walked along the river.
s)In (omitted) 2012 the parties holidayed at the (omitted) Hotel. The room had one bed. Ms Dobson paid the deposit and balance on her credit card. The parties stayed for 3 nights and had Christmas Eve dinner at (omitted) restaurant at (omitted) with Ms M and her partner Mr G. The parties walked around (omitted) on Christmas Day and had lunch together at the (omitted) Hotel. They also went to the “(omitted)” building. On another day they walked to “(omitted)”. Later they lunched together.
t)In (omitted) 2013 Mr Seabrook’s daughter Ms B was in hospital in Sydney for an operation. Ms Dobson sent her flowers.
u)In (omitted) 2014 Ms Dobson went to (omitted) to visit her youngest grandson for his 6th birthday. During this time Mr Seabrook did not want to stay at home by himself so Ms B travelled from Sydney and they stayed in a 2 bedroom unit at the (omitted) Hotel. Ms B stayed for 1 week and Mr Seabrook remained at the (omitted) Hotel for a further week.
v)On Christmas Day, 2013 the parties had Christmas lunch at the (omitted) Hotel.
w)Later in (omitted) 2013 the parties had lunch at Mr R and Ms R’s home in (omitted). Mr Seabrook gave Ms Dobson’s grandchildren, B and C, a (gifts omitted) each. Mr Seabrook had (hobby omitted) as a child and had (hobby omitted) for each of the children.
x)During the last weekend in (omitted) 2014 Ms B stayed with the parties at the Property C home. She arrived around 5:00pm Friday afternoon and left around 8:00am the following Monday. Ms Dobson cooked all meals except for the lunch on Saturday the parties and Ms B had at “(omitted)” restaurant at (omitted). Ms M attended lunch on Sunday to see Ms B.
y)On (omitted) 2014 the parties attended Ms J’s 80th birthday.
In late February, 2014, Ms Dobson told Mr Seabrook that she wanted to separate from him. She put her intention into action. She has set up a post box for her mail. Prior to separation all the parties’ mail went to the Property C home. Ms Dobson has also organised her own medical insurance.
It was put to Ms Dobson that since living on the (omitted), she has claimed an aged pension at the “full” rate. She gave evidence that she claimed the pension in about 2001 to 2004.
Counsel suggested that when she applied for the pension, she would have given Centrelink information about her living arrangements and whether she was living as a couple with anyone. Ms Dobson said that she filled in the forms, but otherwise did not remember what she had put in the forms. Confusingly, counsel variously put to the witness that she was receiving a “full” pension or a “single” pension. The tenor of the questions suggested that Ms Dobson was receiving a rate of pension to which she was not entitled because she had informed Centrelink that she was not living as a couple. Ms Dobson denied those matters and did not recall what she had put in her pension claim documents some ten or so years earlier. She gave evidence that she was under not the impression that she was receiving a single pension.
Exhibit 2, tendered by Ms Dobson, is a schedule of the pension payments received by her seemingly between 2001 and close to the date of trial. It sets out the amounts received by her from time to time, but little else. There is no explanation of the rate paid to Ms Dobson or any qualifying criteria for that rate.
Ultimately, there is no evidence that I accept, that the rate of pension received by Ms Dobson was a rate to which she was not entitled or that she had misled Centrelink when she applied for the aged pension.
Finally, in 1996, Mr Seabrook completed a document entitled “Application for a Retirement Benefit”. Ms Dobson is noted as his spouse and the date that they commenced cohabitation is recorded as (omitted) 1983. Although the document does not constitute a direction to pay benefits to Ms Dobson upon Mr Seabrook’s demise, the purpose of the form is expressed to be to “assist the board to determine if a spouse entitlement exists”. Mr Seabrook agreed that he had no other de facto spouse other than Ms Dobson.
In 2013, Mr Seabrook wrote to his superannuation fund. The letter is in evidence (exhibit 4). In the letter he said:
I would appreciate your answers to the following queries regarding my superannuation viz:
(a) an estimate of the lump sum payable today upon my demise;
(b) an estimate of the fortnightly sum that a partner may qualify for in lieu of the above;
(c)any conditions to be complied with to claim such partner’s payment.
That was a curious letter to write given Mr Seabrook’s asserted position that he had no partner and that Ms Dobson was nothing more than his flatmate. In cross-examination, Mr Seabrook agreed that he had written the letter but was quick to point out that he had written it at Ms Dobson’s insistence. But I do not see how that is important. The fact is that he wrote the letter and signed it himself. He provided no explanation as to why he would write such a letter at the insistence of Ms Dobson.
Some principles
A de facto relationship is necessarily different to a marriage relationship in terms of the Court’s ability to define when it begins and ends. There is generally no difficulty determining when a marriage commenced, or when it ended (by divorce), or generally, whether it exists.
There are no similarly clear signposts for a de facto relationship. But that is not to say that the same difficulties associated with identifying when a personal relationship between parties, however it might be described, commenced or came to an end is not a feature of family litigation between married couples. In the context of married couples, identification of the end point of a personal relationship, often said to be signified by “final separation” is regularly agitated by parties in proceedings for both property adjustment and parenting issues.
The significance of the date that the relationship came to an end through the act of the parties, rather than through a juridical act as in the case of divorce was remarked upon by Dutney J (with whom McPherson and Williams JA agreed) in S & B [2005] 1 Qd R 537 where his Honour said at para. 33:
De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George (1989) 12 Fam. L.R. 725 at 739–740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.
In the present case, there is no dispute between the parties that they were in a de facto relationship between (omitted) 1983 and at least 1998. Mr Seabrook concedes as much.
As the passage from the judgment in Fenton & Marvel (set out above) illustrates however, the question of whether the de facto relationship ended after 1 March, 2009 is a jurisdictional fact – a fact which must exist if federal power is to be attracted: Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at para [12]. Without proof of that fact or a concession by the parties that would permit the Court to find that fact proved, the application must fail for want of jurisdiction: Jonah v White (2011) 45 Fam LR 460; Taisha v Peng (2012) 48 Fam LR 150.
The onus of proving that the Court has jurisdiction falls upon the party seeking to invoke it Taisha v Peng (above) at [6]. In that sense, the onus is upon Ms Dobson to prove that the de facto relationship continued past 1 March, 2009 so that it could not be said that the relationship had finally broken down before that date. As Fenton & Marvell (above) demonstrates that is not the same as finding that the de facto relationship existed as at, or on, 1 March, 2009.
In Harrell & Nesland [2014] FCCA 1921 I said :
It appears to be the case that it is not necessary for either party to communicate with the other that the de facto relationship is over. In S & B, the Court of Appeal applied a passage from Mahoney J in Hibberson v George (above) in these terms:
... a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.
I was not referred to what appears to be well accepted remarks of McGuire FM (as his Honour then was) in Aitken v Deakin [2010] FMCAfam 35 where his Honour said:
9. Those authorities make it clear that there are three elements of separation in a legal sense. They are:
a. The development of an intention to separate. That intention need not be mutual.
b. The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c. Some form of action upon the determination to separate.
10. I am of the view that the test of the element of “communication” is an objective one.
11. As Watson J stated in Todd and Todd (No. 2) at [75,079]:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
12. The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken, it should be unequivocal, unconditional and unambiguous.
13. Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey at [75,214]:
...it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
(footnotes omitted)
That passage has been adopted and applied on many occasions in this Court: Mason & Hammett [2011] FMCAfam 1004 at [30]; Kelly & Temple [2011] FMCAfam 683 at [28]; McGee & Kerr [2013] FCCA 402 at [21]; Dabney & Laird [2013] FCCA 214 at [15]; and in the Family Court of Australia at first instance: Clisbey & Vas [2011] FamCA 611 at [47] and Volen & Backstrom [2013] FamCA 40 at [27].
Superficially, it might be thought that the statement in S & B that: “It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision.” is inconsistent with Judge McGuire’s observation that: “The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional…. I am of the view that the test of the element of “communication” is an objective one.” But on a proper analysis, it is not. Acting on an intention to bring a de facto relationship to an end must necessarily mean that the intention is communicated to the other party. It need not be communicated by express words, but might be communicated by acts which are unequivocally indicative of and consistent only with cessation of the relationship.
In Cadman & Hallett [2013] FamCA 819, after referring to a number of authorities dealing with both married and de facto couples Rees J said:
133. The Full Court [in Price & Underwood [2008] FamCAFC 46] stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.
134. Thus the authorities establish that in order to establish that a relationship has “broken down” for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.
That statement of principle was referred to by the Full Court on appeal without adverse comment: Cadman & Hallett [2014] FamCAFC 142 at [28].
Whether a de facto relationship has ended is a question of fact to be judged in light of the nature and extent of the parties’ relationship and the evidence relied upon by the party suggesting that the relationship has ended.
As Cronin J observed in Vaughan & Bele [2011] FamCA 436:
11. However in Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447 for the purposes of deciding whether the parties were in a de facto relationship, Mushin J thought it inappropriate to look at the parallel situation of a marriage. His Honour said:
163. In my view, it is inappropriate to try to draw parallels between marriage and a de facto relationship as contemplated by the legislation. Marriage is celebrated in accordance with a formal process prescribed by legislation (Marriage Act 1961) and is proven by a Certificate issued pursuant to that legislation. In contrast, a de facto relationship may be evidenced by registration pursuant to the laws of some State jurisdictions but that is not a necessity and is not relevant in this matter. The Court’s jurisdiction to determine an application for alteration of property interests between two people who are or have been married to each other is based on the formality of marriage including the Certificate.
164. There are other significant differences between a marriage and a de facto relationship for the purpose of the legislation. A marriage can only be between a man and a woman. The legislation includes a de facto relationship between two people of the same sex. It is a criminal offence for a person to be a party to two marriages simultaneously. The legislation enables a person to be in two de facto relationships or one or more de facto relationships and a marriage simultaneously. While the legislation includes “the degree of mutual commitment to a shared life” as one of the relevant circumstances, sometimes referred to in the context of marriage as “consortium vitae”, there is no requirement that there be such a commitment in order for a de facto relationship to exist.
12. With respect, I agree. It is the parties who define the nature of their relationship. It may evolve and alter dramatically over time. For that purpose, the legislature provided various requirements such as s 90SB and s 90SK.
13. The critical question about when something comes to an end is whether it existed in the first place or, as in many relationships, satisfied the legal requirements such that it could be said to exist at some or various times.
14. For reasons to which I shall turn, there is a distinction between actions which connote unhappiness in a relationship and the termination of it. Termination has a distinct finality about it but it must be such that both parties acknowledge but not necessarily accept, that at least one of them has decided to permanently end the relationship.
(my emphasis)
Consideration
A de facto relationship is defined in s.4AA(l) of the Act. The provisions of ss.4AA(1)(a) and (b) are of no concern in these proceedings. Ms Dobson and Mr Seabrook were never married to each other. They are not related by family for the purposes of s.4AA(b) of the Act.
For a de facto relationship to exist, s.4AA(1)(c) of the Act requires that the putative de facto parties, having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis.
Whilst the Act does not define “relationship as a couple” or “living together on a genuine domestic basis”, in Jonah v White (above), Murphy J said:
It is the manifestation of “coupledom “, which involves the merger of two lives ....... that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
Section 4AA(2) of the Act directs attention to a non-exhaustive list of circumstances to which the court may have regard, the existence of any one of which is unnecessary before a court might find that a de facto relationship existed: s.4AA(3) of the Act. The Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate in the circumstances of the case: s.4AA(3) of the Act.
I am satisfied that having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis commencing from when they commenced living together in (omitted) 1983. Mr Seabrook does not contend to the contrary. He concedes that at its outset his relationship with Ms Dobson had the qualities necessary for it to be considered a de facto relationship for the purposes of the Act.
However, the evidence leads inexorably to the conclusion that over time the nature of that relationship changed. Some features that were more prominent at its commencement became less so over time. Two particular examples stand out in that respect. First, the parties ceased engaging in sexual intercourse from the mid-1990’s. Second, the parties commenced sleeping in separate bedrooms after they returned to the Property N property in about 1994.
But neither party suggests that those changes brought an end to their de facto relationship. It continued despite those changes. At best, Mr Seabrook argues that it was, perhaps, the beginning of the end. But even on his evidence, the relationship had not ceased and he was working to maintain it.
As I have indicated above, to demonstrate the end of a de facto relationship, one or both of the parties must form an intention to end the relationship. They must communicate that intention by words or actions to the other. Here, Mr Seabrook does not suggest that he ever determined to end the parties’ relationship. He gave no evidence of ever forming such an intention. To the extent that it might be suggested that his infidelity in 1997 was an outward manifestation of an intention to end the relationship with Ms Dobson, I do not think that it was. Certainly Mr Seabrook does not suggest that it was. The fact of infidelity without more does not lead inevitably to the conclusion that the guilty partner intends to end the relationship then extant with their de facto spouse.
In the absence of any evidence from Mr Seabrook that he determined to end the parties’ relationship, it must be his case that Ms Dobson formed the necessary intention and communicated that to him by either words or deeds. But he does not give any evidence to suggest that Ms Dobson expressly informed him of any intention on her part to separate from him at the time he alleges the separation occurred, or at all. His case is that the Court should infer the requisite intention on her part because of the circumstances in which the parties chose to live their lives.
Ms B gave evidence of some statements that she claims were made to her by the applicant. Those statements, Mr Seabrook argues were indicative of an intention on the part of Ms Dobson to separate from him. I have dealt with that evidence above and indicated a preference for Ms Dobson’s version of those conversations. But even if my assessment of that evidence is wrong and the conversations propounded by Ms B took place, there is no evidence that those statements were ever brought to Mr Seabrook’s knowledge, either by Ms B or by Ms Dobson. The communication must be to the other party to the relationship.
Mr Seabrook’s written submissions identify 2004 as the end of the relationship. In oral submissions at the conclusion of the trial, when asked to identify the end point of the relationship, counsel for the respondent said that:
…the nature of the relationship changed fundamentally, really, in about 1998. There was a series of events after that that are set out in his affidavit, the cessation of any sexual relationship and so on and so forth. But whilst it may be debatable as to whether or not the relationship had ceased as early as 1998, what my client would contend is that in 2004 he and Ms Dobson moved to the (omitted) and into a property there, and at that point - there is evidence also from Ms Seabrook about this - we say that there was, effectively, a division of the area within the property, Ms Dobson’s area and Mr Seabrook’s area. You know, it wasn’t as if they were prohibited from trespassing on it but they had their own areas within the property. There was, in effect, a geographical delineation between it.
In my client’s perception his view is that by that stage, given now that factor as well as the other factors that are referred to in his affidavit, at that point at the very latest the relationship came to an end as a de facto relationship. On one view it was potentially as early as 1998, but there was a succession of events over that time. But the one additional aspect in ‘04 was the move to Queensland and the, effective, division of the area of the house into Ms Dobson’s area and Mr Seabrook’s area, and at that point we contend that was unequivocally the time the relationship had ended but a view could be taken it could have been earlier.
As can be seen from that extract, Mr Seabrook contends that the end of the relationship had arrived by the time the parties moved to the (omitted). He describes them as living as “flatmates”. The “division” of the house in which they lived on the (omitted) is critical to his reasoning. However, it is clear that the parties, according to Mr Seabrook’s evidence, had already divided their accommodation and living arrangements whilst living in Property R. After Ms Dobson had returned from (country omitted) in 1998 and discovered Mr Seabrook’s affair, the parties separated for about three or four months. Mr Seabrook swears that he and Ms Dobson thereafter conducted their lives separately. He refers to them as “flatmates” from that point. He swears that Ms Dobson occasionally cooked and cleaned but he mainly cleaned his own area of the Property R unit and Ms Dobson attended to her area of the unit. The arrangements put in place when the parties moved to the (omitted) continued what had already been established whilst they were living in Property R.
The living arrangements established following the move to the (omitted) are consistent with a continuation of their relationship as it had come to be fashioned at that time. Mr Seabrook makes the point that he purchased the property at Property C without financial assistance from Ms Dobson. He points out that she has lived there rent free and that she has never offered to assist him to meet the mortgage repayments or other outgoings in respect of the property. But rather than indicating an absence of a de facto relationship as Mr Seabrook contends, in my view it is consistent with the existence of such a relationship. By the provision of accommodation at no cost, Mr Seabrook has continued to support Ms Dobson at a time when she has ceased employment and therefore no income, apart from her aged pension, to contribute. In the absence of a de facto relationship between them, it is difficult to conceive of a reason why he would do that. He certainly offered no reasons in his evidence.
Moreover, Ms M’s evidence that she accompanied the parties on the inspection of another unit into which they were considering moving points in the same direction. If the parties were just flatmates as Mr Seabrook contends and Ms Dobson was simply taking advantage of his good nature to live in cost free accommodation, why then would they look for another unit to live in together? In my view, the answer is because they were a couple. An elderly couple who did not engage in sexual intercourse and who each liked their own space. But there is, I venture to suggest, nothing remarkable about that. They were a couple who nonetheless supported each other financially and I am satisfied, in a myriad of other ways.
As Ms Dobson submits, the parties have resided together since 1983. Commonality of residence was a feature of their lives from (omitted) 1983 to the present. Even when challenged with Mr Seabrook’s fidelity, he still returned to the parties’ common residence regularly.
The lack of sexual relations between the parties from around the mid 1990’s is not remarkable given Ms Dobson’s evidence of Mr Seabrook’s impotence. Curiously, counsel for Mr Seabrook submitted that Ms Dobson’s claims that he was impotent were denied, but I can find no reference in his written or oral evidence to that. Her evidence about that is unchallenged.
I have set out the parties’ financial arrangements above. The parties have always had separate bank accounts and separately expended money for the benefit of each other. Sometimes that have shared their expenses and sometimes they have not. They invested in the (business omitted) at (omitted) jointly. Sometimes they purchased real estate together and sometimes Mr Seabrook purchased real property on his own. On one occasion the parties purchased real property jointly with Ms M. Sometimes Mr Seabrook financially supported Ms Dobson entirely (such as when they were in (country omitted) and she could not work) and sometimes only partially (such as during their time when they both worked). Mr Seabrook funded some of their living expenses (other than accommodation) such as private health insurance.
The parties have, to the observation of all the witnesses save for Mr Seabrook and his daughter, conducted themselves in public and within the confines of their broader family circle of their own children, as a couple, particularly since moving to the (omitted) in 2004. None of that evidence was challenged by Mr Seabrook. His assertion that “We do not shop together, and do so separately” is directly contradicted by the evidence of Ms J.
Mr Seabrook’s claim in his affidavit that the parties lived separate lives “apart from the occasional attendance at a Christmas dinner and the like.” is simply not made out on the evidence. His claim (and that is all it is – he gives no evidence in support of his claim) is clearly gainsaid by the evidence of Ms Dobson about the parties’ travel and holidays together, their dining out and their attendances at social gatherings such as formal parties and informal occasions in their home with neighbours. It is also inconsistent with his attendances at family gatherings every Christmas since 2004, save for two and A’s wedding.
Mr Seabrook claimed that following Ms Dobson’s return from (country omitted) in 1997 “We have also socialised separately, and very rarely go to any functions together.” Leaving aside the matters that I have referred to in the previous paragraph, Mr Seabrook gives no evidence of any social functions that he has attended without Ms Dobson or any that she has attended without him. His assertion is not made out by the evidence.
There can be no doubt that until Ms Dobson formed an intention to separate from Mr Seabrook in February, 2014 they had a mutual commitment to a shared life. As Ms Dobson points out in submissions, she and Mr Seabrook have resided together for over 31 years.
Since 2004 and the move to the (omitted), the parties have continued to demonstrate their commitment to each other by:
a)relocating to and living together on the (omitted);
b)jointly selecting the Property C property which was paid for by Mr Seabrook and therefore put in his name;
c)undertaking holidays together;
d)attending social functions with family and friends together;
e)entertaining family and neighbours together at the Property C home;
f)supporting each other following medica1 intervention and in the case of Ms Dobson she was supported and comforted by Mr Seabrook following the death of her son in late 2007;
g)supporting each other through companionship, spending time with each other dining out and undertaking other recreational activities like visiting Brisbane; and
h)assisting each other with their attendances at medical appointments.
The parties have provided for each other’s children and grandchildren in a traditional way by giving gifts at Christmas and on birthdays. They have participated in family functions as a couple, particularly in respect of Ms Dobson’s family. If Mr Seabrook felt estranged from Ms Dobson, or that their relationship was somehow nothing more than that enjoyed by “flatmates”, it is curious that he would attend so many important functions in the lives of Ms Dobson and her family.
Finally, Mr Seabrook’s own conduct in 2013 can only be consistent with the continuation of what he considered a de facto relationship. Exhibit 4, is the letter that Mr Seabrook wrote to his superannuation fund asking what the entitlements of his partner were from his super fund in the event he died. If it truly was the case that he did not consider Ms Dobson to be his spouse when he wrote that letter, that he wrote that letter can only be described as bizarre. For the reasons I have already given I reject Mr Seabrook’s claims that he wrote that letter at the insistence of Ms Dobson.
In my view the evidence clearly demonstrates that until February, 2014 Ms Dobson and Mr Seabrook were in a de facto relationship as that term is defined by s.4AA(1) of the Family Law Act.
Mr Seabrook argues that if I came to the view that the parties were in a de facto relationship after 2004, I could not be satisfied that it has now come to an end, and if it has, I could not be satisfied that it has come to an end permanently.
However, I am satisfied that the parties’ de facto relationship has come to an end permanently. I accept that Ms Dobson formed an intention to end the parties’ de facto relationship and communicated that to him. She has acted upon her intention by separating the parties’ lives.
Counsel for Mr Seabrook argued that Ms Dobson has been in receipt of the “full” age pension prior to and since March, 2009. He argues that she has been under a continuing obligation to keep Centrelink informed of her living arrangements while she was in receipt of the age pension, and in particular as to whether she was a “member of a couple” . I am asked to infer that she has not disclosed to Centrelink that she was a “member of a couple”, or the various matters upon which she relies in her affidavit evidence in support of her “de facto claim”.
However, I decline to draw those inferences because whilst I accept that Ms Dobson is in receipt of the aged pension, there is nothing to suggest that:
a)she receives the “full” aged pension, whatever that might be; or
b)she did not tell Centrelink of the arrangements between she and Mr Seabrook when she sought the pension.
I was invited to conclude that Ms Dobson had not disclosed to Centrelink all that she should and that she was in effect defrauding the revenue. Those matters were put to Ms Dobson, seemingly without any evidence to support the veracity of what was being put. The suggestions are entirely unsupported by any evidence. I decline to draw the inferences that I am asked to draw about those matters.
Conclusion
Having regard to the above findings I have made, I am not satisfied on the balance of probabilities that the parties’ de facto relationship finally broke down before 1 March, 2009. I am satisfied on the balance of probabilities that the parties’ de facto relationship finally broke down after 1 March, 2009. The relationship finally broke down in February, 2014.
I make the declarations and other orders set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 5 June 2015
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