DUFFLE and GREGORY
[2020] FCWA 89
•4 JUNE 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: DUFFLE and GREGORY [2020] FCWA 89
CORAM: SUTHERLAND CJ
HEARD: 6 & 7 MAY 2020
DELIVERED : 4 JUNE 2020
FILE NO/S: PTW 2538 of 2018
BETWEEN: MS DUFFLE
Applicant
AND
MR GREGORY
Respondent
Catchwords:
JURISDICTION - Whether parties were in a de facto relationship - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Mr Sammut |
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Frichot Lawyers |
Case(s) referred to in decision(s):
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Sinclair & Whittaker (2013) FLC 93-551
Truman v Clifton [2010] FCWA 91
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duffle & Gregory has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
SUTHERLAND CJ:
1[Ms Duffle] maintained that she and [Mr Gregory] lived in a de facto relationship from sometime after 2011 until 2017, and that the court had jurisdiction to deal with her application for property settlement. However, Mr Gregory’s position was that their relationship was not a de facto relationship as defined by the relevant legislation and, accordingly, Ms Duffle’s claim should be dismissed. In this regard, Mr Gregory maintained that the parties had a casual (on and off again), non-exclusive sexual relationship from 2008 until 2014, and thereafter remained friends and had very occasional sexual relations until 2017.
WHAT IS THE RELEVANT LEGISLATION?
2These proceedings are determined pursuant to Part 5A of the Family Court Act1997 (WA), (“the Act”) which confers jurisdiction on the court to make orders for property settlement in relation to parties who have lived in a de facto relationship. Section 205Z of the Act provides as follows:
(1)A court may make an order in relation to a de facto relationship only if satisfied —
(a)there has been a de facto relationship between the partners for at least 2 years; or
(b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
(2)In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
(3)Subsection (2) does not limit the matters the court may consider.
3The term “de facto relationship” is defined by section 13A of the Interpretation Act 1984 (WA) (the “Interpretation Act”) as follows:
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 people, but are not essential –
a. The length of the relationship between them;
b. Whether the 2 persons have resided together;
c. The nature and extent of common residence;
d.Whether there is, or has been, a sexual relationship between them;
e.The degree of financial independence, and any arrangements for financial support, between them;
f.The ownership, use and acquisition of their property (including property they own individually);
g.The degree of mutual commitment by them to a shared life;
h. Whether they care for and support children;
i.The reputation, and public aspects, of the relationship between them.
WHAT EVIDENCE WAS RELIED UPON?
4Ms Duffle was represented by a solicitor from a community legal service until December 2018 and thereafter was a self-represented litigant, including at the trial. Mr Gregory was represented by a solicitor throughout the proceedings, including at the trial. Ms Duffle relied upon her trial affidavit and supplementary affidavit,[1] together with the affidavit of her daughter [Ms Z].[2] Mr Gregory relied upon his trial affidavit and supplementary affidavit,[3] together with the affidavits of his son [Mr Y],[4] his daughter [Ms X],[5] his neighbour [Ms W],[6] and his former girlfriend [Ms U].[7] Each of the parties and their respective witnesses were cross‑examined.
[1] Applicant’s affidavits filed on 18 July 2018 and 20 April 2020 respectively.
[2] Affidavit of Ms Z filed 11 July 2018.
[3] Respondent’s affidavits filed on 6 August 2018 and 1 May 2020 respectively.
[4] Affidavit of Mr Y filed 6 August 2018.
[5] Affidavit of Ms X filed 6 August 2018.
[6] Affidavit of Ms W filed 9 August 2018.
[7] Affidavit of Ms U filed 9 August 2018.
5As is usual in trials involving a self-represented litigant, I provided specific procedural information to Ms Duffle in accordance with the guidelines set out by the Full Court in Re: F: Litigants in Person Guidelines (2001) FLC 93-072. Further, at the commencement of the trial I specifically identified for Ms Duffle the various factors listed in s 13A of the Interpretation Act, so as to focus her attention on what she needed to address. I also provided her with the opportunity to indicate whether she agreed with or disputed each of the propositions advanced by Mr Gregory in in respect of the s 13A factors as contained in his Papers for the Judicial Officer. Whilst Ms Duffle made some concessions during that exchange, she ultimately disputed the majority of Mr Gregory’s case.
Ms Duffle and her witness:
6Neither Ms Duffle nor her daughter Ms Z performed well in cross-examination. I formed the strong impression that both Ms Duffle and Ms Z tailored their evidence to in an attempt to best meet the needs of Ms Duffle’s case, including by exaggerating matters that they thought would assist and ignoring matters that they thought would not. Ms Duffle’s evidence in particular was often confused, inconsistent and contradictory. Ms Duffle attempted to explain away her poor performance, for example: by blaming her former lawyer for making mistakes in her trial affidavit and by maintaining that she had been confused when answering some questions in cross-examination about her income tax returns. This was notwithstanding that Ms Duffle was given the opportunity to correct her trial affidavits at the commencement of her evidence and to review her income tax returns overnight before the second day of the trial. Ms Duffle also maintained that Ms Z had been distressed while being cross-examined and became confused in her evidence as a result. However, that did not accord with my observations of Ms Z, whom I considered was composed throughout her evidence and delivered her narrative with confidence.
7I was not satisfied that Ms Duffle was always prepared to be honest in giving her evidence, especially about the nature of her relationship with Mr Gregory. The prime example of this was that throughout the proceedings and up until the first day of the trial, Ms Duffle insisted that the parties’ de facto relationship commenced in 2008. Ms Duffle set out detailed evidence in support of her assertion and annexed to her affidavits many photographs that she maintained proved that the parties were in a de facto relationship. Presuming the photographs were taken on the dates claimed, they were useful evidence of the fact that the parties were at the same place at specific times. Otherwise, the photographs were of little assistance to me in determining whether the parties were living in a de facto relationship.
8Ms Duffle subsequently changed her position about the commencement date, when it was pointed out to her that she had maintained a different position during the contested property settlement proceedings with her former husband. This included the defended trial which took place in July 2011 (and in relation to which, reasons for decision were delivered in September 2011). I stood the matter down so that Ms Duffle could seek legal advice from the Duty Lawyer Service about this issue, before Ms Duffle was required to formally open her case or go into the witness box to give evidence.
9After Ms Duffle had the opportunity to meet with a duty lawyer, Ms Duffle conceded in her opening that the parties had not been in a de facto relationship since 2008 and instead, she maintained that the parties’ de facto relationship commenced at some point in 2012, and certainly before the end of 2013. However, even after Ms Duffle made this concession, her evidence continued to shift. For example, in her cross-examination, Ms Duffle conceded that the parties had still not commenced a de facto relationship as at 30 June 2013 after her tax return for that year was put to her, and it was pointed out that she had declared therein that she was single. Later, Ms Duffle sought to move away from her concessions in cross-examination, and maintained that she had been confused by the questioning. However, having had the opportunity to observe Ms Duffle under cross-examination, I have no doubt that she perfectly understood what she was doing during the following exchange with counsel:
Counsel: So, as at 30 June 2013, you are saying that you were not in a de facto relationship with [Mr Gregory]?
[long pause]
Counsel: Is that correct?
Ms Duffle:Yes.
10Ms Duffle’s evidence was otherwise littered with examples of half-truths and untruths, which I consider were intended to create the perception of a de facto relationship, but which were ultimately misleading. For example:
a)Ms Duffle deposed that the parties had, in 2012, “opened a joint offset account with ANZ to help in reducing the mortgage interest”.[8] That evidence was clearly intended to convey the impression that the parties had made a joint financial decision. In cross‑examination, Ms Duffle conceded that she, and she alone, had opened the offset account ostensibly in her own name, and she did not realise that the bank had opened the account in the parties’ joint names.
b)Ms Duffle deposed to Mr Gregory having visited her home half an hour before his mother’s funeral in 2013.[9] In cross-examination, her evidence changed completely. Instead, she claimed that she was working on the day of the funeral, and this is was the reason for her non-attendance at what may fairly be described as a significant event in Mr Gregory’s life. Ms Duffle sought to blame the lawyer who prepared her affidavit for this inconsistency, notwithstanding that she was provided with the opportunity to correct any errors in her affidavits at the commencement of her evidence.
c)As I discuss in more detail below, Ms Duffle claimed that she catered Mr Gregory’s son’s 21st birthday party, when the very clear evidence to the contrary (which I accept) was that that event was fully catered by a professional caterer.
[8] Ms Duffle’s trial affidavit filed 18 May 2018, [107].
[9] Ms Duffle’s trial affidavit filed 18 May 2018, [134] and [135].
11In closing, Ms Duffle ultimately submitted that she was not sure when the relationship became a “de facto” relationship, and would leave that determination in the hands of the Court. Given the manner in which Ms Duffle conducted her case, I am not surprised that she was unable to make any cogent submissions about the precise period or date on which she alleged the de facto relationship commenced. Her inability to do so is, in my view, a clear demonstration of the weakness of her case, and symptomatic of her many shifts in position.
12I considered that significant portions of Ms Z’s evidence were not based on her own knowledge or experiences, but rather were “constructed” from Ms Z’s suspicions about what may be occurring from time to time, or from what Ms Duffle later told her, or from her research on the internet about what evidence was required to “prove” the existence of a de facto relationship. For example, Ms Z purported to give detailed evidence of Ms Duffle’s and Mr Gregory’s activities together over the years from 2008 until 2017. However, Ms Z was forced to concede that she was not present most of the time (initially because she was at school and/or at work and later because she moved out of her mother’s home) and that her evidence was either based on what her mother later told her or her suspicions about what was occurring. Even on those occasions when Ms Z was present when Ms Duffle and Mr Gregory were together, I am satisfied that Ms Z regularly exaggerated her evidence. For example, Ms Z initially insisted in cross-examination that over the years, she regularly observed Mr Gregory assisting her mother with the gardening at her mother’s home. When Ms Z was informed that both Ms Duffle and Mr Gregory agreed that this had only occurred on very few occasions, Ms Z explained that what she meant was that she had seen Ms Duffle and Mr Gregory drinking coffee together in the garden and looking at the plants.
13I considered that Ms Duffle’s and Ms Z’s evidence was often inconsistent or implausible and that they contradicted each other in some areas. For example: (1) Ms Duffle’s evidence was that she did all the catering for Mr Y’s 21st birthday party in 2009. On the other hand, Ms Z’s evidence was that each guest brought a plate to share and that her mother did not do all the catering. As will become evident from these reasons, I did not accept either Ms Duffle’s or Ms Z’s evidence in this respect; and (2) Ms Duffle’s affidavit evidence was that from the earliest days of their relationship, the parties generally stayed at her home most of the time, including on weekends, as Mr Gregory’s daughter, Ms X, did not like Ms Duffle staying at her father’s home.[10] In her cross-examination, Ms Duffle maintained that the parties generally spent most weekends at her home, but would stay at Mr Gregory’s home if Ms X was not there. On the other hand, Ms Z’s evidence in cross-examination was that from the earliest days of their relationship, her mother stayed over at Mr Gregory’s home on most weekends (from Thursday nights to Sunday nights), leaving Ms Z at home on her own. Again, as will become evident from these reasons, I did not accept either Ms Duffle’s or Ms Z’s evidence in this respect.
[10] Ms Duffle’s trial affidavit at: [21], [30], and [119].
14At the end of the day, I was satisfied that I should be very circumspect in accepting the evidence of either Ms Duffle or Ms Z, unless it was uncontroversial and/or largely unchallenged.
Mr Gregory and his witnesses:
15Mr Gregory was an impressive witness: I considered that he was frank, open, balanced and largely unchallenged in giving his evidence. Mr Gregory also made appropriate concessions against interest, including in relation to the continuation of the parties’ sexual relationship after 2014. I had no hesitation in accepting Mr Gregory’s evidence.
16Mr Gregory’s witnesses were each only cross-examined briefly and on a very limited number of issues. From the short amount of time I had to observe each of the witnesses, I considered that they gave considered and thoughtful responses, and did their best to answer the questions put to them in a manner that assisted the court. None of the witnesses’ evidence in chief was successfully challenged in cross‑examination, and I therefore accept their evidence. In particular:
a)I accept Mr Y’s evidence that he lived at his father’s home in [Suburb A] until April 2016. He first met Ms Duffle in or about May 2008 when he was 19 years old. He could only recall Ms Duffle and her children eating dinner at the Suburb A property on one occasion: in 2008. Ms Duffle and Ms Z also attended his 21st birthday party at the Suburb A home in 2009. Approximately 80 people attended his party, which was professionally catered for. Mr Y only attended at Ms Duffle’s home in [Suburb B] on one occasion for a social event: a graduation party in 2009. Between 2008 and 2014, Ms Duffle only slept overnight at the Suburb A home on approximately three to five occasions. Mr Gregory slept at the Suburb A home almost every night whilst Mr Y lived there. However, on odd occasions (usually on a Saturday), Mr Gregory did not sleep at home and would text Mr Y (and his sister Ms X) to say that he was staying overnight at Ms Duffle’s home. From 2008 until 2010, this occurred approximately once a month. After 2010 and until 2014 this occurred approximately six times each year. Ms Duffle attended a few of his family’s gatherings and social events between 2008 and 2014, but not thereafter. Mr Y never considered Ms Duffle to be a part of his family. Rather he considered that she was a friend that his father saw socially.
b)I accept Ms X’s evidence that she lived at the Suburb A home with her father and brother until January 2015. She met Ms Duffle in or about May 2008, when she was 17 years old. From her observations, it appeared to Ms X that between 2008 and 2014, her father and Ms Duffle dated each other intermittently. Ms X did not consider Ms Duffle to be a part of the family, and she had no reason to think otherwise. Ms X could only recall Ms Duffle and her children eating dinner at the Suburb A property on one occasion: in 2008. Ms X only attended at Ms Duffle’s home on approximately three occasions, for dinner in 2008, and for dinner and the graduation party in 2009. Between 2008 and 2014, Ms X could only recollect Ms Duffle sleeping overnight at the Suburb A home on approximately three to five occasions. She estimated that between 2008 and 2010, her father slept over at Ms Duffle’s home approximately once a month. Between 2011 and 2014 this reduced to approximately six times a year. Ms X denied Ms Duffle’s assertions that she would “blackmail” Mr Gregory, by telephoning him and asking him to come home if he was staying at Ms Duffle’s house.
c)I accept Ms W’s evidence that she has lived next door to Mr Gregory and his family in Suburb A for over 15 years and that she has a “friendly neighbour” relationship with Mr Gregory, including over the years having discussions with each other about their lives in general and significant life events. Since Mr Gregory’s first wife’s death in 2006, she has never observed anyone (other than Mr Gregory and his children) staying at Mr Gregory’s home for extended periods or on a regular basis. Mr Gregory had never told her in their discussions that he was in a de facto relationship or introduced anyone to her as his “life‑partner”. Until Ms W attended at the court for the purposes of the trial, she had never seen Ms Duffle before and did not know who she was.
d)I accept Ms U’s evidence that she met Mr Gregory at her friend’s New Year’s Eve party in Suburb A on 31 December 2014. They started dating each other in January 2015, before ending their relationship in April 2015. During this time, Ms U very regularly visited Mr Gregory at his home in Suburb A: during the day, night and overnight; and Mr Gregory also stayed over at Ms U’s home. During the time that they were dating, Ms U met Mr Y and Ms U and Mr Gregory attended numerous social events together with friends, including parties, dances and movie nights. They also went away together for a weekend.
WHAT ARE THE BASIC BACKGROUND FACTS?
17Ms Duffle was born [in] 1961 and was nearly 59 years old at the commencement of the trial. She is now a disability pensioner, but has previously worked [in administration]. Mr Gregory was born [in] 1954 and was 66 years old at the commencement of the trial. He is now retired. Prior to his retirement he worked [in a professional services firm].
18The parties met in early 2008. At the time, Ms Duffle had separated from her former husband, with whom she had three children: including Ms Z, who was then aged approximately 13. Ms Duffle lived in the home in Suburb B that she owned with her former husband. At the time the parties met, Mr Gregory was a widower, his wife having passed away in 2006. Mr Gregory and his deceased wife had two children: Mr Y (then aged approximately 20) and Ms X (then aged approximately 17). Mr Gregory lived with his two children in his home in Suburb A.
SECTION 13A FACTORS
19As the party asserting the existence of the de facto relationship, Ms Duffle bears the onus of proving it having regard to the factors listed in s 13A of the Interpretation Act. With that in mind, I turn to consider each of the factors.
The length of the relationship between them
20The parties’ relationship commenced in 2008 and ended in mid‑2017, with various breaks over the years, as set out below.
Whether the parties have lived together
21The parties resided in their own separate residences throughout their relationship, but did occasionally stay overnight at each other’s homes as set out below.
Whether there is, or has been, a sexual relationship between them
22The parties had a sexual relationship from May 2008 until early 2017, with various breaks over the years, as set out below.
Whether they care for and support children
23I am satisfied that neither Mr Gregory nor Ms Duffle cared for or supported each other’s children to any appreciable extent. In arriving at this finding, I accept and prefer the evidence of Mr Gregory’s children as to the nature and extent of the relationship they had with Ms Duffle, as set out above. I also accept and prefer the evidence of Mr Gregory that each party was responsible for supporting their own children, and that there were only a handful of occasions on which the parties socialised with their children as a group. I do not consider the few examples of the parties giving gifts to each other’s children on significant birthdays takes the matter any further. As Mr Gregory explained under cross‑examination, he would be mortified if he attended a 16 year old’s birthday party (Ms Z’s) without a gift.
The ownership, use and acquisition of their property (including property they own individually)
24The parties did not acquire any property together during their relationship. Except as set out below, the parties did not intermingle their finances in any way.
25Between 2009 and 2011, Mr Gregory lent Ms Duffle over $75,000 (“the Loan”) to enable her to pay her litigation costs relating to the disputed property proceedings with her former husband. I am satisfied that Mr Gregory lent the funds to Ms Duffle on condition that she repaid him at the conclusion of her property settlement proceedings. Mr Gregory’s evidence in this regard accorded with Ms Duffle’s position at the 2011 trial, which was she was expected to repay the Loan.
26The property settlement proceedings between Ms Duffle and her former husband were finalised in late 2011. Ms Duffle was required to make a payment of $190,000 to her former husband to enable her to retain the Suburb B home. Ms Duffle was unable to extend the existing mortgage to enable her to do so. I am satisfied that Mr Gregory agreed to assist Ms Duffle by being a co-borrower for the new mortgage, on the basis that: (1) Ms Duffle would take sole responsibility for the mortgage repayments; and (2) if she could not afford to keep up the payments, then she would sell the Suburb B home and use the proceeds to repay: (a) the new mortgage; and (b) the balance owing to him on the Loan.
27Pursuant to their agreement, Ms Duffle made all the repayments in relation to the new mortgage. In June 2013, Ms Duffle made arrangements with her bank to open an offset account in her name. The bank established the new account, but in the joint names of both parties. As indicated above, I am satisfied that Mr Gregory had no knowledge of the bank account being opened, and only became aware of the existence of the account during these proceedings.
28In mid-2015, Mr Gregory was due to leave on an overseas holiday for three months. I am satisfied that shortly prior to Mr Gregory’s departure, Ms Duffle informed him that she was concerned about not being able to obtain [a further fixed term employment contract] and that she may not be able to afford to meet the mortgage repayments. Mr Gregory was very concerned that if Ms Duffle failed to make the mortgage repayments, then his credit record would be adversely effected. Accordingly he set up a direct debit to make the mortgage repayments of $400 a week. Upon his return to Australia in September 2015, Mr Gregory asked Ms Duffle to make arrangements to sell the Suburb B home. Ms Duffle would not do so. Eventually, in March 2016, Mr Gregory stopped the direct debit payments from his account. Ms Duffle subsequently put the Suburb B home on the market for sale but it did not sell. In July 2017, Ms Duffle asked Mr Gregory to consider taking over the mortgage repayments for her Suburb B home. Mr Gregory was shocked by the request and refused to do so.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
29Although Ms Duffle maintained that she was financially dependent on Mr Gregory, I am not persuaded this was the case. Rather, I am satisfied that:
a)Mr Gregory lent money to Ms Duffle to pay her family law litigation costs, on the basis that he would be repaid. Mr Gregory also assisted Ms Duffle to retain the Suburb B home by being the co-borrower on her new mortgage, on the basis that Ms Duffle would meet the mortgage repayments and if she could not, then she would sell the property. Mr Gregory also made the mortgage repayments for several months in 2015 and 2016, after Ms Duffle raised concerns that she could not afford to make the repayments and Mr Gregory became concerned about his credit record if the mortgage fell into arrears.
b)Mr Gregory generally contributed more than did Ms Duffle to their entertainment costs when they went out together, for example: restaurant bills. He also purchased gifts for Ms Duffle, including some clothing and a friendship ring in or about 2008 or 2009 and the “commitment ring” in 2013.
c)Otherwise, each party generally kept their finances separate.
The nature and extent of common residence
30The parties met in early 2008 and started dating in April 2008. The parties’ sexual relationship started in May 2008. I am satisfied that Mr Gregory and Ms Duffle would socialise with each other approximately twice a week. During 2009, the parties increasingly had disagreements with each other (including about their respective children and extended family members). In late December 2009, the parties broke up for a few weeks, before starting dating again in about February 2010. Even after the parties resumed dating each other, the parties continued to have disagreements, including because Mr Gregory was not prepared to “commit” to the relationship.
31I am satisfied that in 2010, the parties’ friendship took on a more “casual” nature and they saw each other less frequently. The parties started dating other people from time to time and they also went on holidays separately from each other. However, they would occasionally catch up with each other for coffee or dinner, and they would also occasionally be sexually intimate during times when they were not dating other people.
32In early 2012 Mr Gregory retired. I am satisfied that thereafter, the parties started socialising with each other a little more often, including catching up with each other at the beach. In June 2012, Mr Gregory joined Ms Duffle and Ms Z on a holiday to [Country A], on the basis that he paid his own way. Shortly after their return from Country A, the parties again had disagreements with each other about Mr Gregory’s family, and again stopped seeing each other for some weeks.
33I am satisfied that by the end of 2012 the parties were seeing less and less of each other. Mr Gregory declined Ms Duffle’s invitation to go to [Country B] on a holiday with her in late 2012 and they both continued to date other people. In the first half of 2013, the parties saw each other if they were not dating other people. In June 2013, the parties had a major disagreement and then stopped seeing each other for several months.
34In late October 2013, Mr Gregory made contact with Ms Duffle again. I am satisfied that Ms Duffle told Mr Gregory that she would only see him if he bought her a ring to show his commitment to her. In or about November 2013, Mr Gregory purchased Ms Duffle a diamond ring and the parties resumed seeing each other, including socialising with each other and with their respective friendship groups, attending some family functions together, and being sexually intimate with each other. Within a short period of time, the parties’ relationship again deteriorated. Mr Gregory declined Ms Duffle’s invitation to go on an extended holiday with her to [Country C] in mid-2014 and he made arrangements to have a separate holiday to Country C in 2015. The parties also continued to have disagreements about Mr Gregory’s family. I am satisfied that the parties’ relationship ended again in late 2014.
35I do not accept Ms Duffle’s or Ms Z’s evidence that either Mr Gregory or Ms Duffle stayed overnight at each other’s homes on a regular or frequent basis. Rather, I am satisfied that: (1) between 2008 and 2014 Ms Duffle only slept overnight at the Suburb A home on a very few occasions; and (2) from 2008 until 2010, Mr Gregory stayed overnight at the Suburb home approximately once a month, and thereafter until 2014, approximately six times each year.
36I accept Mr Gregory’s evidence that he resumed seeing Ms Duffle again shortly after his relationship with Ms U ended in April 2015. I am satisfied that Mr Gregory made it very clear to Ms Duffle that he did not want any type of committed relationship with her, and he understood Ms Duffle accepted this. I am also satisfied that from 2015 until 2017 the parties would see each other intermittently. They would also occasionally be sexually intimate when they were not dating other people. There were also long periods of time when the parties had little, if any, contact with each other (for example, for approximately six months in 2016).
The degree of mutual commitment by them to a shared life
37Although Ms Duffle maintained that both parties were committed to a shared life together, I am not persuaded this was the case. Rather:
a)I am satisfied that the parties maintained their own separate residences and never cohabited together. There was little or no evidence to suggest that Ms Duffle regularly left any of her belongings at Mr Gregory’s home. Although both Ms Duffle and Ms Z maintained that Mr Gregory kept some belongings in the wardrobe in the main bedroom at the Suburb B home, I am not persuaded that he did so and accept his evidence to the contrary. I am satisfied that Mr Gregory brought a change of clothes with him, for example: if he stayed overnight. Although both Ms Duffle and Ms Z maintained that Mr Gregory regularly assisted with the household chores, I am also not persuaded that was the case. However, I am satisfied that if Mr Gregory and/or Ms Duffle were visiting at each other’s homes, they may have assisted each other, for example: with the washing up after a meal.
b)I am satisfied that the parties’ relationship waxed and waned over time. At times they resumed their friendship (including resuming their sexual relationship and socialising together). At other times, their friendship broke down and they had little, if any contact, with each other for weeks or months at a time. In particular, I am satisfied that by late 2009 or early 2010 Mr Gregory had formed the view that he was not prepared to have a committed relationship with Ms Duffle and that she was well aware of his views in this regard. Both parties dated other people. Although Ms Duffle initially maintained in her cross‑examination that she did not date other people because she and Mr Gregory were in a committed relationship, she later conceded that she did not close down her profile on an online dating website after meeting Mr Gregory and continued to maintain her active profile for virtually the entire time that she knew Mr Gregory. Ms Duffle also conceded that she told Mr Gregory about other boyfriends she was dating from time to time, including at least one making her a marriage proposal, (albeit Ms Duffle also maintained that she lied to Mr Gregory about the marriage proposal in an attempt to make him jealous and spark a greater commitment from him).
The reputation, and public aspects, of the relationship between them
38I am not persuaded that the parties’ families, friends and acquaintances would have considered Ms Duffle and Mr Gregory to be a couple. Mr Gregory’s children and neighbour (Ms W) certainly did not view the relationship that way, and there was simply no evidence from anyone else that would support a finding otherwise.[11]
[11] Obviously excepting Ms Duffle and Ms Z, whose evidence as the nature of the relationship I did not accept.
39In addition, after 2014, both Ms Duffle and Mr Gregory kept their friendship secret from their respective families and friends.[12] They continued to date other people from time to time. They did not tell their respective families that they would occasionally socialise with each other and/or were occasionally sexually intimate. They did not attend any family functions together. They did not socialise together with their respective friendship groups. Apart from one weekend trip to [Town A] in May 2015, they did not go away on holidays together and instead holidayed separately and/or with other people.
[12] Albeit they were “caught out” on at least one occasion during this period by Ms Z.
40There was also no evidence to suggest that the parties held themselves out to be a couple to relevant government agencies. For example: Ms Duffle declared that she was single and/or did not list Mr Gregory as her de facto spouse in her 2012, 2013, 2014, 2015, 2016 and 2017 income tax returns, including for the purposes of claiming the Centrelink seniors and pensioners tax offset. There was no evidence before the court as to whether Ms Duffle made any declaration to Centrelink about her alleged de facto status.
41The fact that certain statements or representations are made to lenders or government authorities does not elevate same to a higher status, and the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not the parties.[13] A party’s perception of the nature of their relationship – as communicated to such third parties – is relevant but not determinative.[14] In this case, and having regard to the evidence as a whole, I am satisfied that Ms Duffle’s representations to the Australian Taxation Office (that she was single) accurately reflect how she perceived her relationship with Mr Gregory, notwithstanding that she now asserts the opposite is true.
DISCUSSION AND CONCLUSIONS
[13] Sinclair & Whittaker (2013) FLC 93-551, 87,395.
[14] Ibid.
42In Truman v Clifton[15] Thackray CJ stated that:
In the case of legal marriage we have the certainty associated with the certificate of marriage. No matter how appalling the nature of the relationship, those who have complied with the formal requirements of the Marriage Act 1961 (Cth), or its overseas equivalents, are without doubt married. However, the moment a construct such as 'marriage-like' is introduced, value judgments will come flooding.
It may well be there are men (and women) who enter into marriage, fully intending to carry on, or at least leave open the possibility of, sexual relationships with others. There are no doubt men (and women) who treat their spouse badly from the very moment they enter into their marriage. There are no doubt marriages in which the wealth or potential wealth of one party is the major inducement to join the union. There are marriages in which husband and wife keep strict accounts, never intermingling what they regard as 'theirs'. Some prospective spouses enter into agreements about how their financial issues will be resolved in the event their marriage ends – a phenomenon now regulated by our legal system.
How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is 'marriage-like' in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?
[15] Truman v Clifton [2010] FCWA 91 [336] - [338].
43As noted earlier, Ms Duffle bears the onus of proving that she was in a de facto relationship with Mr Gregory. As a starting point, I note Ms Duffle’s concession given in her opening statement (and following the receipt of legal advice from the duty lawyer) that the de facto relationship commenced in 2012 and certainly by no later than the end of 2013. Although Ms Duffle attempted to move away from that concession, I explained to her that I would not permit her to do so given Mr Gregory’s counsel had elected to not pursue certain issues in cross‑examination in reliance thereon. Allied to that is Ms Duffle’s concession given in cross-examination that she did not consider herself to be in a de facto relationship as at 30 June 2013.
44In any case, Ms Duffle’s concessions ultimately mattered little, as I am satisfied that there was never a de facto relationship between the parties. Instead, I am satisfied that Ms Duffle and Mr Gregory were in a fractious on again/off again, boyfriend/girlfriend type relationship between 2008 and 2014, and thereafter remained friends (who had sex occasionally) until 2017. It follows that I am not persuaded, on the balance of probabilities, that the parties were at any time in a de facto relationship, as defined by s 13A of the Interpretation Act.
45The most compelling (and I use that word conservatively) aspects of Ms Duffle’s case were Mr Gregory purchasing her a “commitment” ring in 2013, and evidence of some not insignificant financial intermingling between the parties, including that Mr Gregory: (1) paid for Ms Duffle’s legal fees (albeit at a time when Ms Duffle conceded there was no de facto relationship); (2) acted as a co-borrower so that she could refinance and keep her home following property settlement with her first husband (again, at a time when Ms Duffle conceded there was no de facto relationship); and (3) paid Ms Duffle’s mortgage for a time in light of her representations that she was unable to meet the repayments herself, to ensure the mortgage remained in good standing.
46However, those indicia must be viewed in context and weighed and balanced and against the other findings I have made, to the effect that (1) the parties otherwise maintained separate residences and finances; (2) Mr Gregory’s payment of Ms Duffle’s mortgage for several months in 2015/2016 was born out of his desire to avoid the loan becoming delinquent with a corresponding black mark on his credit record; (3) the parties engaged in a fractious, on again/off again relationship, with no cogent evidence before me that would support a finding that the parties were considered by others to be a couple (save for Ms Z, whose evidence on that point I do not accept); (4) the parties attended only a handful of family functions together, and after 2014 actively kept their interactions with each other secret; (5) the parties dated other people; (6) the parties did not jointly engage in the care and support of each other’s children to any appreciable extent; and (7) in Ms Duffle’s case, she represented to the Australian Taxation Office that she was single throughout the period 2012 to 2017.
47For these reasons, I am satisfied that Ms Duffle’s and Mr Gregory’s relationship was not a marriage-like relationship at any time during the period 2008 to 2017. I intend to dismiss her application.
ORDERS:
1.The Applicant’s Form 1 Application filed 20 March 2018 be dismissed for want of jurisdiction.
2.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
3.In relation to material tendered as an exhibit into evidence in these proceedings:
a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits; and
c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
4.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 2 and 3 above do not apply.
5.All outstanding proceedings otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate4 JUNE 2020