Eide & Yoxall (No 2)
[2024] FedCFamC1F 320
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Eide & Yoxall (No 2) [2024] FedCFamC1F 320
File number(s): MLC 2724 of 2021 Judgment of: WILLIAMS J Date of judgment: 16 May 2024 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS- Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship did exist – Where the applicant bears the burden of proving the existence of a de facto relationship as defined by s 4AA of the Act – Where there is a child of the relationship – Where the respondent denies the existence of a de facto relationship – Where the court finds a de facto relationship existed between the parties.
FAMILY LAW – PRACTICE AND PROCEDURE – Application by the respondent for disqualification of the trial judge on the basis of apprehended bias based on comments made in the course of the trial – Where the applicant opposes the application – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the respondent’s application for disqualification is refused.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VIIAB, ss 4AA, 90RD, 90SB, 90SE, 90SG, 90SL, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67)
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) Sch 1, Pt I, r 1(5)
Cases cited: Bienstein v Beinstein (2003) 195 ALR 225; [2003] HCA 7
Cantu & Galloway [2023] FedCFamC1F 993
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fairbairn & Radecki (2022) 400 ALR 613; [2022] HCA 18
Fei & Woong [2021] FamCAFC 2
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Jonah & White (2011) 45 Fam LR 460; [2011] FamCA 221
Jonah & White (2012) FLC 93-552; [2012] FamCAFC 200
Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; [1998] HCA 52
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17
Lynam v Director-General of Social Security (1983) 52 ALR 128; [1983] FCA 274
Onslow & Onslow [2016] FamCAFC 7
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Scott & Munayallan [2022] FedCFamC1A 44
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Velichkov & Velichkov [2024] FedCFamC1F 150
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Whisprun Pty Ltd v Dixon (2003) 234 CLR 49; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 212 Date of hearing: 26 – 28 June 2023; 4, 6, 7 September 2023 and 4-5 March 2024, Place: Melbourne Counsel for the Applicant: Ms Tulloch and Mr Ellis Solicitor for the Applicant: Jag Lawyers Counsel for the Respondent: Mr Dixon SC and Ms Fisken Solicitor for the Respondent: Belleli King & Associates ORDERS
MLC 2724 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YOXALL
Applicant
AND: MS EIDE
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to section 90RD of the Family Law Act 1975 (Cth), there be a declaration that a de facto relationship existed between the parties from March 2017 to December 2020.
THE COURT FURTHER ORDERS THAT:
2.All extant applications, including (but not limited to), the applicants’ application for financial and property orders in her Amended Initiating Application filed on 27 October 2022, be and are hereby referred to the Case Management Judge for fixing in due course as a defended hearing.
3.Within 28 days the applicant file and serve any written submissions as to costs, and email a copy of the submissions to my chambers.
4.Within 28 days of receipt of the applicant’s costs submissions, the respondent file and serve any written submissions as to costs, and email a copy of the submissions to my chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eide & Yoxall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
These proceedings relate to the threshold question of whether there is a de facto relationship between the parties.
The applicant commenced these proceedings in March 2021, seeking both parenting and property orders, with the latter premised upon the allegation she was in a de facto relationship with the respondent, which the respondent denies.
On 27 October 2022, the applicant filed an Amended Initiating Application, wherein she formally sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties from March 2017 to December 2020. Conversely, the respondent denies ever being in a de facto relationship with the applicant and seeks a declaration that such a relationship did not exist between the parties, and for the application and any consequential orders for financial relief, to be dismissed.
For the reasons which follow, it is declared the parties were in a de facto relationship from March 2017 to December 2020. Accordingly, jurisdiction is enlivened to grant financial relief between the parties under Pt VIIAB of Family Law Act 1975 (Cth) (“the Act).
Prior to my reasons for the declaration, I will address the respondent’s Application in a Proceeding filed 20 October 2023 during the trial (“the apprehended bias application”).
THE APPREHENDED BIAS APPLICATION
After seven days of evidence in the trial, on 20 October 2023 the respondent filed an Application in a Proceeding, seeking I disqualify myself from further hearing this matter on the basis of apprehended bias. The respondent contemporaneously filed an affidavit in support. This application was based on an exchange between the respondent and I on 7 September 2023.
On 7 September 2023 the applicant’s case had concluded, as had cross-examination of the respondent. The cross-examination of the respondent’s corroborative witnesses had not then commenced.
On 29 February 2024, the applicant filed a response to the Application in a Proceeding and an affidavit in support.
On 4 March 2024, prior to resumption of the trial, I heard the Application in a Proceeding by way of submissions from both counsel. On that day the following order was made:
1.The Application in a Proceeding filed by the respondent on 24 October 2023 is dismissed.
I advised both counsel I would incorporate my reasons for dismissal of the application in my final reasons for judgement. Both counsel were content with that proposed course of action. Immediately following the making of the orders, the substantive trial resumed for a further two days, when the respondent’s witnesses gave evidence and were cross-examined and thereafter, both counsel made final submissions. On 5 March 2024, I reserved my decision in the substantive proceeding. The respondent has not sought leave to appeal the orders of 4 March 2024, pertaining to the apprehended bias application and was content for the trial to continue to conclusion.
These are my reasons pertaining to the Application in a Proceeding filed 20 October 2023.
Where a question arises as to the independence or impartiality of a judge, the applicable principles are well established.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) the plurality of the High Court of Australia (“the High Court”) said (at [6]):
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
In Webb v The Queen (1994) 181 CLR 41 at 74 (“Webb”) Deane J identified “at least four distinct, though sometimes overlaying, main categories”, which include disqualification by interest, whether pecuniary or otherwise, conduct, association, or extraneous information.
As to the second step and reasonableness of the asserted apprehension of bias, the following propositions can be gleaned from the authorities:
·the inquiry is objective (Johnson v Johnson (2000) 201 CLR 488 at [12] (“Johnson”)) and does not require a conclusion about the judge’s actual state of mind (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 (“QYFM”) at [68]);
·apprehended bias is to be considered in the context of ordinary judicial practice (Johnson at [13]);
·all circumstances must be considered (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. See also, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [20]);
·the criterion is concerned with “possibility (real and not remote), not probability” (Ebner at [7]);
·the apprehension is from the perspective of a fair-minded observer, meaning “it is the court’s view of the public’s view, not the court’s own view” that is determinative (Webb at 52);
·the qualities and attributes of the fair-minded observer must be taken into consideration.
As to the attributes and qualities of the fictional observer and ordinary judicial practice in Johnson the plurality of the High Court said at [13]:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
In QYFM at [46]–[49] the High Court provided the following recent and helpful analysis regarding the attributes of a fair minded lay observer:
Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present.
Being “fair-minded”, the observer "is neither complacent nor unduly sensitive or suspicious". Yet the observer is cognisant of "human frailty” and is all too aware of the reality that the judge is human. The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making".
Being “lay”, the observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge". Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial" and to discharge the judicial function uninfluenced by past professional relationships, "the public perception of the judiciary is not advanced by attributing to the ... observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case". This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
(Footnotes omitted)
The first step in applying the test is to identify the matter or issue which might impact the judge’s decision.
In this case, it is asserted that an exchange between the respondent and I, which occurred on 7 September 2023, might lead a fair-minded lay observer to reasonably apprehend I might not bring an impartial mind to the threshold determination of whether the parties were in a de facto relationship. The respondent relies upon the transcript annexed to his affidavit, and in particular page 413 line 1 to page 418 line 16 inclusive, although he does not particularise which parts of the transcript are relevant.
Senior counsel for the respondent in paragraphs 21 and 22 of his written submissions filed 1 March 2024 said:
21.A fair-minded lay observer would reasonably apprehend based on these remarks, that Williams J was concerned primarily to ensure [the applicant] had enough money to buy a home. The judge clearly wants this payment to come from the much wealthier party, namely [the respondent]. This is a case where, if [the respondent] is found to be correct and there was no de facto relationship, there is no jurisdiction to make any order in [the applicant’s] favour under the Family Law Act.
22.A fair-minded lay observer would reasonably apprehend that according to Williams J, [the respondent] was being unreasonable in challenging the Court’s jurisdiction to make any orders in [the applicant’s] favour and that more important than considering jurisdiction, was the need of [the applicant] to have a home paid for by him, and this was the only reasonable outcome of these proceedings.
It was contended the characterisation of the exchange positively answered the first limb of the test in Ebner.
As to the second step of the test, senior counsel for the respondent stated in his written submissions:
24.The feared deviation between the remarks made by Williams J (made in the middle of [Mr Yoxall’s] cross-examination) and deciding the case on its merits, is that Williams J articulates that more important than the finding of the Court’s jurisdiction to make orders, is the need for the parties’ daughter to be appropriately housed.
25.Williams J clearly states the relationship between [the applicant] and [the respondent] can only be salvaged by a payment from him to her, that it is likely this will resolve issues around his time with [the child] and this is what he ought to do rather than spending money on lawyers.
26.Significantly, Williams J has articulated that, when making the decision she is being asked to determine, important for her is the personal aspect of it.
27.This ought not be the case. If there is no jurisdiction to make any orders for property adjustment in [the applicant’s] favour as [the respondent] contends, then the personal aspect cannot trump the lack of power to make any orders.
28.This court hearing is not about the future of [the child] and her relationship with [the respondent], it is not about salvaging the co-parenting relationship between [the respondent] and [the applicant], and it is not about ensuring [the child] (and by inference, [the applicant]) are appropriately housed. Rather, the threshold hearing is exclusively about whether there is any jurisdiction of this Court to make the orders [the applicant] seeks for an alteration of property interests and other consequential orders.
(Emphasis in original)
Finally, it was asserted that because the bias is apparent in the two limbs of the Ebner test, the reasonableness of the bias is answered in the affirmatively.
During his oral submissions, senior counsel for the respondent submitted my comments that the respondent should pay the applicant a sum of money to resolve the proceedings, was improper and indicative of bias, because any payment could only be made if I had determined a de facto relationship existed.
Counsel for the applicant submitted the respondent had failed to articulate the two steps as required by Ebner. Reliance on five and a half pages of transcript, without identifying or articulating with particularity what comments or statements, does not satisfy the first step of Ebner. Secondly, the respondent has not even attempted to meet the requirements of the second step or reasonableness. The respondent has therefore failed to demonstrate the “double might” test applicable to a fair-minded lay observer.
Counsel for the applicant submitted the context of my comments in the exchange was critical to an objective assessment. I accept that submission.
In the morning of 7 September 2023, the court informed the parties that unforeseen circumstances required the court to adjourn at lunchtime that day and would not be available to sit the following day, as had been anticipated. The trial would be adjourned part heard for a second time to 8 November 2023.
The adjournment afforded the parties an opportunity to explore settlement options which would not otherwise have been available to them during the running of an ongoing final hearing.
Immediately prior to the exchange between the respondent and I, counsel for the applicant had cross-examined the respondent about two other court proceedings between himself and the applicant. The following exchange occurred between the respondent and the applicant’s counsel about the partly heard criminal case and Supreme Court proceedings:
HER HONOUR: Well, it is because the proceedings in the Supreme Court are about the alleged blackmail of the $16 million. Isn’t that the whole point of the Supreme Court proceedings, [Mr Yoxall]?‑‑‑Yes, your Honour.
Yes. So there you go.
MS TULLOCH: So there are Supreme Court proceedings that you and [F Pty Ltd] have brought against [Ms Eide]?‑‑‑Yes.
Which is this blackmail application?‑‑‑Yes.
Yes?‑‑‑Blackmail, extortion – what else is there?
Okay?‑‑‑There’s quite a lengthy pleading.
And you – I think you’ve amended the statement of claim, so far, nine times?‑‑‑Well, as I said to you, we ‑ ‑ ‑
Well, hang on. Is that a yes or a no?‑‑‑Yes, we amended it nine times. Yes.
Okay?‑‑‑Yes.
So it’s ongoing. I guess it’s costing everybody a lot of money?‑‑‑Yes, of course.
Okay?‑‑‑Lots of money.
And then you’ve got the criminal proceedings ‑ ‑ ‑?‑‑‑Yes, brought by [Ms Eide]. Yes.
Well, she doesn’t bring criminal proceedings. She’s the informant and the police or the OPP make a decision to prosecute?‑‑‑Yes.
MS TULLOCH: And coming back to my – and that ‑ ‑ ‑
HER HONOUR: Sorry, she’s a witness.
MS TULLOCH: And she’s a witness in those proceedings?‑‑‑Yes, she was. Yes.
Okay. And when I asked you about the accuracy of paragraph 31 of her affidavit ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ being the charges that she says you have been committed to stand trial [in] ..... [early] ’20, common law assault [early] 2020 stalking. That’s the criminal case that you’re talking about. Is that right?‑‑‑Yes, that’s the current – that was – that was resolved out of the committal. Those charges were left.
Right. Okay. So there’s two other court proceedings that involve you and [Ms Eide], apart from this one, [Ms Eide] being a witness in the criminal ‑ ‑ ‑?‑‑‑The Supreme Court?
Yes?‑‑‑And the partly heard criminal case .....
Okay?‑‑‑And this one.
(Transcript 7 September 2024, p.412 line 1 to p.413 line 7)
Thereafter the following exchange occurred between the respondent and I about the desirability of resolving all three legal disputes:
HER HONOUR: Has it ever occurred to anybody maybe you may have wanted to resolve all three?‑‑‑Sorry, your Honour?
I said has it ever occurred to anybody that you might want to resolve all three sets of proceedings?‑‑‑Yes, I would like to.
That there’s a way forward?‑‑‑Yes, I would love to do that, your Honour. It would give me a lot more pleasure to do that.
Pardon?‑‑‑It would give me great pleasure to try and settle all this.
(Transcript 7 September 2024, p.413 lines 9–18)
After the respondent stated, “it would give him great pleasure to resolve all of this” and because the court would adjourn at lunchtime on that day, the following exchange occurred between the respondent and I:
Well, now is the opportunity. You’ve each got two sets of barristers. Why don’t you talk about it this afternoon. There’s nothing stopping you resolving all sets of proceedings other than the criminal, and there’s ways around that. If you have some discussions about these proceedings and the Supreme Court proceedings. I mean, seriously, the amount of money that must be spent on legal fees. Maybe it doesn’t worry, but to the average person it’s – it would be mind-boggling?‑‑‑Well, your Honour, I was defending myself of false accusations.
I know that?‑‑‑Okay. And it was very upsetting.
Okay. I’m talking about these proceedings and also the Supreme Court proceedings?‑‑‑Yes.
Quite often, people in these sorts of proceedings can resolve them without any recognition or acknowledgement as to whether there’s a de facto relationship or not. Ex gratia payments can be made. They can be resolved in all manner of ways?‑‑‑Yes, I agree with that, your Honour.
(Transcript 7 September 2023, p.413 lines 20-36)
Thereafter the exchange focused on the impact on the child of the relationship, as permitted by Sch 1, Pt 1, r 1(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the rules”).
Section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) sets out the overarching purpose of family law practice and procedure and includes the efficient use of judicial and administrative resources, the efficient disposal of the court’s overall caseload, the disposal of all proceedings in a timely manner and resolution at a proportionate cost. Section 67(3) of the FCFCOA Act requires that power conferred on the court must be exercised in a way that best promotes the overarching purpose.
Counsel for the applicant submitted my comments about the benefits of settlement were entirely orthodox, referred to the cost of litigation as raised by the respondent, and as required by the rules, the impact of the litigation upon the child.
She further submitted a fair-minded lay observer would have understood my comments were not foreshadowing what I would find, but rather identifying the consequences of what I might find, being a relevant consideration in settlement discussions.
Furthermore, and particularly because of the following comments:
----- As an overall settlement. There is nothing stopping you doing it. And I’m saying this, leaving aside the legalities of the decision that I have been asked to make, because this is a very narrow ambit of dispute, as you understand, obviously whether or not you’re in a de facto relationship and what flows from that depends on my finding about that…..
(Transcript 7 September 2023, p.414 lines 40-44)
Anyway, I just say that maybe turn your mind to that between now and 8 November. I mean, I will make the decision on the evidence that I am required to make according to the law … No, no. It’s hard for you, too.
(Transcript 7 September 2023, p.416 lines 33-35)
A fair-minded lay observer would appreciate that the comments regarding overall resolution meant resolution of the three proceedings under discussion, being the threshold hearing before the court, the civil litigation in the Supreme Court of Victoria and the criminal proceedings. If resolution was unable to be reached, I would proceed to determine the narrow ambit of the threshold dispute according to the law and evidence before the court.
The fair-minded lay observer would understand that I was pointing out the obvious reality that there are human consequences to ongoing litigation which could be ameliorated by settlement. The fictional bystander could not possibly form a view that recommending the respondent consider making an offer to resolve all three separate proceedings would suggest in the threshold proceedings, that I might determine the threshold proceedings other than on its merits.
Counsel for the applicant submitted that mentioning or espousing the merits of settlement does not amount in and of itself to apprehended bias (Fei & Woong [2021] FamCAFC 2) and that the tone and subject matter of the exchange between myself and the respondent was measured and couched in terms of suggestions about the merits of settlement directed at both parties. The transcript does not establish any discourtesy or criticism of the respondent, which in any event would be insufficient to amount to apprehended bias.
I prefer the submissions of the applicant to the respondent because the respondent’s submission do not consider the comments in the correct context. It is apparent from the transcript the compromise discussions referred to all three proceedings, not just the threshold proceeding. The exchange was subsequent to the respondent stating he would love to resolve the dispute between him and the applicant, occurred in accordance with ordinary judicial practice in recognition of the overarching purpose and the rules. I specifically referred to a determination being made about the existence of a de facto relationship in accordance with the law and evidence if compromise was unable to be reached, and the exchange was cordial and courteous.
I do not consider the fair-minded lay observer could or might consider the comments, in their correct context, mean that I was concerned to ensure the applicant had sufficient funds to buy a home, the respondent was unreasonable to challenge the court’s jurisdiction or that a payment to the applicant was the only reasonable outcome. Particularly because of the word “overall” in the context of cross-examination about two concurrent proceedings and my comment that I would decide the threshold question according to evidence and the law.
Putting myself in the position of a fair minded lay observer, with all of the relevant attributes, and bearing in mind it is the courts view of the public’s view that is the relevant test, I am satisfied that the exchange between the respondent and I does not give rise to anything from which a fair-minded lay observer might conclude I might not bring an impartial mind to the task, which is to determine on the evidence whether the applicant and the respondent were in a de facto relationship.
I am also mindful of the observations of the Full Court in Scott & Munayallan [2022] FedCFamC1A 44 at [25]:
The High Court of Australia has made it plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or to readily disqualify him or herself whenever requested by one party to do so. (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Beinstein (2003) 195 ALR 225 at 233; Vakauta v Kelly (1989) 167 CLR 568 at 584 – 585, Re-JRL, Ex Parte CJ L (1986) 161 CLR 342 at 352).
I was not satisfied that the applicant established substantial grounds for disqualification, and I refused the application and continued to hear the conclusion of the trial.
I now turn to the substantive dispute.
THE RELATIONSHIP OF THE PARTIES
The applicant, Ms Eide, was born in 1987 and is 37 years of age. She is a health professional residing in Melbourne.
The respondent, Mr Yoxall, was born in 1960 and is 64 years of age. He is the founder and director of F Pty Ltd and resides in Region H.
It is common ground that the parties commenced some sort of relationship in March 2017, which ceased in late 2020. The respondent deposes that during this period, he was not in an exclusive relationship with the applicant, and he was dating and engaging in sexual relations with many women. He states in his affidavit of 1 June 2023 that the parties “were involved in a co-parenting with benefits arrangement but [they] were never in a committed relationship with each other”. Conversely, the applicant asserts they were a committed de facto couple, and she was financially dependent on the respondent.
There is one child of the relationship, X, born 2018 who is aged six years. The child lives with the applicant and spends limited time with the respondent in accordance with orders made on 23 September 2021 by a Senior Registrar. The respondent has two adult children of a previous relationship.
Prior to commencing a relationship with the respondent, the applicant resided at an apartment on G Street (“the G Street apartment”) which she jointly owned with her ex-partner, with whom she was involved in family law proceedings at the time.
The applicant deposes that after the parties met in March 2017, the respondent told her that he had long-term accommodation at J Hotel in Melbourne and invited her to stay with him. Between 11 March 2017 and 30 March 2017, the applicant purports the parties spent almost every night together and agreed to be committed romantic partners. The respondent denies making any such commitment, other than to continue enjoying a non-exclusive sexual relationship.
In March 2017, the respondent travelled to Town K with a friend where they remained until April 2017. During this time, the respondent invited numerous women to join him throughout the holiday, at his expense. In March 2017, the respondent invited the applicant to accompany him, and she joined the holiday for approximately two days in which they engaged in sexual relations, however occupied separate suits. The respondents’ eldest daughters were present, and the applicant posits that the respondent introduced her as his “partner”, which the respondent denies.
Shortly after the trip to Town K, the respondent deposes to commencing dating Ms M. Between June 2017 and July 2017, the respondent and Ms M travelled together to the USA, engaged in sexual relations, and referred to each other as their respective girlfriend/boyfriend.[1] The respondent deposes that this was not a secret, nor did he hide this relationship from the applicant. This is denied by the applicant who deposes to being assured by the respondent that he was not in a relationship with Ms M.[2]
[1] Respondent’s affidavit filed 1 June 2023.
[2] Applicant’s affidavit filed 23 June 2023.
It is agreed that in May 2017, the respondent paid for the applicant to travel to the United States for two weeks with her father and two friends, and that in June 2017 the respondent paid for the applicant to meet him in the United States for four days following a business trip.
In 2017, the applicant learned she was pregnant. At the time, the respondent was at his home in Region H and asked the applicant to fly to Region H the next day. Upon learning of the applicant’s pregnancy, the respondent deposed that he requested she have an abortion as they “barely knew each other” and he “was not ready to enter a new relationship”.[3] The respondent offered the applicant $100,000 if she agreed to undergo an abortion, which she refused.
[3] Respondent’s affidavit filed 1 June 2023, paragraph 3.
During a phone conversation in 2017, the respondent conceded it was the applicant’s decision as to whether she would have an abortion and acknowledged he would have a financial obligation to care for the child.
In late 2017, the respondent gave the applicant a credit card so she could spend money in his absence while he was travelling for business or spending time with his daughters in Region H. The parties also attended social and charity events together in which the applicant was invited as the respondent’s date.
The respondent travelled to the USA from October to 5 November 2017 on business. Ms M accompanied him. Upon his return, the respondent deposes to spending the remainder of the year, until December 2017, at his home on the Region H whilst the applicant continued living in her G Street apartment in Melbourne.
The applicant contends that during the first twelve months of their relationship, she would stay with the respondent at J Hotel almost every night, whenever he was in Melbourne. She gave evidence that the parties were both living together on a full-time basis, and she only attended her G Street apartment for an hour every few days to get new clothes. Whilst the respondent agrees he stayed for long periods of time at the J Hotel, he denies that the applicant ever lived there with him. He maintains that his primary residence was in Region H, where his two eldest daughters also lived.
In late 2017, the applicant flew to the Region H to meet the respondent before driving to Town L to spend Christmas with his mother and daughters. Shortly thereafter, the parties and their child travelled overseas for a holiday between late 2017 and early 2018.
In February 2018, the respondent states that he went on a short holiday to Perth to watch a sporting competition with his girlfriend, Ms M, and did not hide this from the applicant. The applicant denies this and asserts she was told by the respondent that his friend had invited Ms M, and he had no idea Ms M would be present.
In February 2018, the respondent sent two letters to the applicant via his internal legal counsel, Mr N. These letters detailed the child support the respondent would pay, rental assistance, and confirmed his commitment to provide for the child subject to a DNA test confirming paternity. The applicant contends that prior to receiving such letters, she received a phone call from the respondent who explained he was advised to send her letters to protect himself financially by his lawyer but “not to be concerned as they meant nothing”.[4] I further refer to this dispute below.
[4] Applicant’s affidavit filed 23 June 2023, paragraph 12.
In early 2018, the respondent directed an employee of F Pty Ltd to assist the applicant in securing a new rental premises. An apartment was subsequently found at O Street (“the O Street apartment”) and rented under the applicant’s name. The applicant subsequently moved out of the G Street apartment. The respondent deposes that whilst the F Pty Ltd guaranteed the lease of the Melbourne apartment, paid the bond, and contributed to the cost of furnishing and ongoing rent, it was not his apartment, he never lived there, did not have a key, and denies the parties cohabited at any point.
In 2018, the parties’ child X was born, with both parents present. After the birth, the respondent returned to his house in Region H and upon leaving hospital, the applicant returned to the O Street apartment with the child.
Following the birth of X, the respondent travelled extensively, including between Region H and Melbourne. The parties also went on frequent international trips together. When in Melbourne, the respondent stayed at J Hotel due to his living preferences and work commitments, and the applicant and child would often join him.
During the relationship, the respondent purchased extravagant gifts for the applicant and financially provided for her by depositing funds directly into her bank account. The respondent deposes to being a wealthy man of means and “[enjoying] the company of younger women” whereby “to secure their attention and attendance… from time to time [he provided] them with financial incentives” and this was not unique to the applicant.[5]
[5] Respondent’s affidavit filed 1 June 2023, paragraph 215.1.
The respondent deposes to informing the applicant in mid-2018 that he no longer wished to “continue dating [her] as part of the coparenting”.[6] Around this time the respondent began growing frequently concerned about the applicant’s mental health as she was struggling with the effects of depression.
[6] Respondent’s affidavit filed 1 June 2023, paragraph 79.
In mid-2018, the parties visited the United States with their child and one of respondent’s daughters of a previous relationship, Ms P. Ms P deposes in her affidavit of 2 June 2023 that the applicant had attempted to bribe her after discovering she had a tattoo her father was unaware of. This resulted in Ms P giving the applicant approximately USD$2,000-$3,000. Ms P also states the applicant was acting erratically, and the respondent deposes to suspecting the applicant was using drugs. Such behaviour is denied by the applicant. At the commencement of this trip in mid-2023, the respondent paid for the applicant and child to fly to Country Q to visit the maternal grandfather, and the respondent flew to City R for a work opportunity.
Whilst in City R, the respondent invited four women to join him on the trip, including some he had previously dated. In mid-2018, the applicant flew from Country Q to City R to join the group. The respondent deposes that once the applicant arrived, she knocked on his door and upon seeing a woman in his room became hysterical and started punching him in the chest. Shortly thereafter, hotel security removed her from the respondent’s room and took her back to her own. Approximately thirty minutes later, the hotel fire alarm went off and the respondent saw the applicant handcuffed outside the hotel. The respondent was asked if he wanted to press charges or make a statement, but he refused, and the applicant was told to leave the hotel. In her Response of 23 June 2023, the applicant denies these events and claims she checked out of the hotel on her own volition after seeing the respondent with other women. It is not necessary to make a specific finding about this dispute. Both parties accounts include that the respondent was with another woman. The facts of the immediate aftermath do not require determination.
Around the end of August 2018, the respondent ceased his relationship with Ms M. In September 2018 he commenced a new relationship with Ms S. They attended his daughter, Ms T’s, party together and the respondent deposes to introducing her as his new girlfriend.
In October 2018 the respondent invited the applicant and X to Town L so the paternal grandmother could see X. After having dinner with the paternal grandmother, the respondent dropped the applicant and child at their hotel and as he was leaving an argument ensued. The respondent deposes in his affidavit of 1 June 2023 that the applicant “picked up a decorative [object] that was located on a glass table and threw it down on my foot” resulting in a fracture. The applicant denies this and is unaware how the respondents foot became injured. The respondent was later interviewed by police and advised whilst he did not want to press charges, he wanted a record of the incident to be kept. Nevertheless, the respondent extended his trip in City R so he could “spend some time with [the applicant] and try and get her out of the bad space she was in”.[7] The applicant returned to Australia in mid-2018.
[7] Respondent’s affidavit filed 1 June 2023, paragraph 98.
In December 2018, the parties travelled to Town L to spend Christmas with the respondent’s mother as she had been unwell. This trip was funded by the respondent and the applicant and child stayed at separate accommodation to the respondent.
After Christmas, the respondent arranged and paid for the applicant, X, Ms T, Ms P, and their boyfriends to travel to Country U for a holiday between late 2018 and early 2019. The applicant and X shared a separate suite.
During this trip to Country U, the applicant became unwell, and the respondent posits that she was irritable and argumentative throughout the entirety of the holiday and several arguments ensued between the applicant, Ms P and Ms T. One morning after the parties were walking back to their hotel after breakfast, the parties began arguing and the respondent alleges the applicant pushed him down a flight of stairs causing him to reinjure his previously fractured foot.[8]
[8] Respondent’s affidavit filed 1 June 2023.
Ms T deposes in her affidavit filed 2 June 2023 that during this trip, the applicant asked her and her former boyfriend if they had any drugs she could take, and how she could obtain drugs on the island. When the respondent raised this with the applicant, she vehemently denied the interaction, however acknowledged that she had used drugs in the past and did not intend to do so again. Nevertheless, the respondent told the applicant that “there would be no more surgery or money allowances until she went to drug rehabilitation”.[9] Rather than a formal drug rehabilitation program, the respondent alleges he took the applicant two destinations overseas to detox as both countries have a no drugs policy.
[9] Respondent’s affidavit filed 1 June 2023, paragraph 131.
In mid-2019, the parties travelled overseas with their daughter X. The respondent asserts that the purpose of this trip was for the applicant to “detox and attempt to commencer her sobriety from drugs”.[10] Conversely, the applicant alleges that this trip was a family holiday, funded by the respondent. She denies ever discussing detoxification or sobriety from drugs as being the purpose of this trip.[11]Irrespective of the purpose of the trip, both parties agree they travelled overseas together with their daughter and the respondent paid all expenses.
[10] Respondent’s affidavit filed 1 June 2023, paragraph 137.1.
[11] Applicant’s affidavit filed 23 June 2023.
In early 2019, the respondent learnt that someone had updated an online page about him to include reference to the applicant as his partner. Shortly thereafter the respondent instructed an employee to update this page to include X as one of his children and remove reference to the applicant.
In late 2019, a cast meeting was held with people who were set to appear in an upcoming F Pty Ltd commercial. The applicant was one such person set to appear in this commercial, as was the respondents then girlfriend, Ms V, whom he purports to have been seeing non-exclusively, for approximately twelve months. Filming took place over four days and involved a dinner which was attended by the applicant. During this time, the applicant and X stayed at a hotel along with the other cast members, and the respondent resided at his apartment.
In late 2019, the respondent executed a new will and amended a discretionary trust to include X as a specified beneficiary, and expressly excluded the applicant.
In late 2019, the respondent and Ms V travelled to Town L to spend Christmas with the respondent’s mother. The applicant and X did not attend. Following Christmas, the applicant and X travelled to Region H to spend time with the respondent.
The respondent purports to not sharing a residence with the applicant at any point during 2019 and states they rarely spent a night together. Despite this, he deposes to providing the applicant with approximately $305,387 in money and other benefits.[12]
[12] Respondent’s affidavit filed 1 June 2023, paragraph 162.
In January 2020, the applicant visited the respondent at J Hotel in Melbourne. They had a conversation about a former business associate whose services had been recently terminated. The respondent learnt that the applicant was secretly recording the conversation and an altercation ensued in which the respondent sought to wrestle the phone out of the applicant’s hand. The applicant alleges that the respondent punched her repeatedly in the face causing a fracture. This is denied by the respondent. A year later in January 2021, the applicant made a police report regarding this alleged assault and a Committal Hearing was held in the Melbourne Magistrates Court in early 2023. At this hearing, the Magistrate dismissed the charge of causing reckless injury, however, the respondent was committed to stand trial for three offences. The respondent entered a plea of not guilty to all charges.
In early 2020, the respondent alleges that he discovered the applicant had made disparaging posts on social media regarding him and the F Pty Ltd brand. As a result, the next day he instructed an employee to terminate the applicant’s contract as an F Pty Ltd ambassador. The applicant asserts, however, that on this day she was fired and rehired within hours by F Pty Ltd and was also given an extra $10,000.[13] I accept the applicant’s evidence in this regard as it is consistent with the respondent’s objective attempts to minimise the actual relationship, with the assistance of his advisers, whilst on the other hand representing the contrary to the applicant.
[13] Applicant’s affidavit filed 23 June 2023.
Throughout 2020, the respondent assets that due to the Covid-19 pandemic the parties spent more time together as they were in the same city and unable to travel. During this time, the respondent lived at J Hotel in Melbourne and the applicant resided in the O Street apartment with X. At times, he would attend the O Street apartment to spend time with X and at other times, the applicant would take X to the respondent’s suite in J Hotel.
In July 2020 the parties had planned to travel to Sydney together, however, for reasons unknown to the court the applicant did not travel on this day. As the applicant returned to her O Street apartment that day, she found an unknown man in the apartment who she chased out of the apartment with the assistance of a contractor working in the apartment building.
On the same day, the respondent sent the applicant a text message with a picture of their hotel room in Sydney with rose petals on a bed and said that he was going to propose to her. The applicant deposes that the respondent had expressed to her on numerous occasions that he intended to marry her and kept her informed as to his enquiries into purchasing an engagement ring.[14] The respondent denies ever intending to propose to the applicant and described his behaviour during cross-examination as “future faking”.
[14] Applicant’s affidavit filed 24 October 2022.
In mid-2020, Victoria Police made an application to the Magistrates Court for an Intervention Order against the respondent due to allegations of family violence arising from the incident in July 2020. In mid-2020 this was varied to allow for contact between the parties, provided the respondent did not commit family violence. The applicant deposes to living with the respondent “again after [mid] 2020 until [their] separation on 18 December 2020”.[15]
[15] Applicant’s affidavit filed 24 October 2022, paragraph 26.
In mid-2020, the applicant recommenced work as a health professional and gained employment at a Covid-19 treatment facility. Upon the IVO condition being varied in mid-2020, the applicant deposes that the respondent demanded she cease working at the facility on the basis that both his and X’s health was at risk. Subsequently, the applicant left her job as the respondent offered to pay her double what she was earning at the Covid-19 treatment facility. The respondent denies asking the applicant to quit her employment, however, explains that he “made her aware of the fact that [he is] immunocompromised”.[16]
[16] Respondent’s affidavit filed 1 June 2023, paragraph 237.
During the second half of 2020, the respondent deposes to becoming aware of recordings made by the applicant concerning their interactions. He alleges that the applicant threatened him by saying that she would go to the police or the media with the recordings if they did not get engaged or he pay her $16,000,000.[17] This is denied by the applicant. Allegedly, the respondent subsequently agreed to buy an engagement ring. During cross-examination, the respondent described this behaviour as “future faking” because of the threats levelled against him.
[17] Respondent’s affidavit filed 1 June 2023, paragraph 200.
In late 2020, the parties travelled to Sydney together to visit a diamond merchant where they selected a diamond to purchase, and the respondent provided the jeweller with a deposit to have a diamond brought to Australia. The respondent admits to making inquiries into diamonds, however denies ever viewing diamonds with the intention of proposing to the applicant.
It is alleged that the respondent assaulted the applicant in late 2020. Subsequently, Victoria Police made an application to vary the Intervention Order to prevent the respondent contacting the applicant and the child. The applicant posits that the parties separated shortly thereafter, however, the respondent denies being in a de facto relationship with the applicant at any time.
After the alleged late 2020 incident, the applicant remained living in the O Street apartment and the respondent ceased paying the rent. As the applicant could no longer afford the rent, she moved to an undisclosed location with X.
The applicant issued proceedings on 12 March 2021 seeking orders for a part property settlement, spousal maintenance, and parenting orders. The respondent filed a Response to Final Orders on 2 September 2021 seeking parenting orders and a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship did not exist between the parties.
There are ongoing criminal proceedings against the respondent, based on a complaint made by the applicant, in the County Court of Victoria which resulted in an adjournment of these proceedings.
The parties’ preliminary dispute about the existence of their alleged de facto relationship was separately listed for hearing to determine whether the Court is seized of jurisdiction to make orders adjusting the parties’ property interests.
The matter came before me for trial on 26 June 2023.
THE ORDERS SOUGHT BY THE PARTIES
The applicant asks the court to make orders in accordance with the Minute of Orders as stated in her Outline of Case filed on 26 June 2023:
(a)A declaration pursuant to Section 90RD of the Family Law Act 1975 (Cth) that the Applicant and the Respondent were in a de facto relationship from 11 March 2017 to 18 December 2020.
(b)The respondent pay the applicants costs of obtaining the declaration that the applicant and respondent were in a de facto relationship.
The respondent asks the court to make orders in accordance with his Case Summary Document filed on 25 June 2023 as follows:
(a)There be a declaration pursuant to s 90RD of the Act that a de facto relationship did not exist between the parties.
(b)The applicant pay the respondents costs on an indemnity basis.
LEGAL PRINCIPLES
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)) and the applicant who seeks the declaration bears the burden of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The applicant and respondent relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 at [62], Gleeson CJ, McHugh and Gummow JJ said:
62.…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
De facto threshold
The jurisdiction of the court to make orders in relation to the financial aspects of the breakdown of a de facto relationship arises pursuant to Part VIIIAB of the Family Law Act 1975 (Cth).
Pursuant to s 90RD, the court has the power to make a declaration about the existence of a de facto relationship. Section 90RD provides as follows:
90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
The significance of a declaration being made as to the existence of a de facto relationship is that it provides a gateway for the making of orders pursuant to s 90SM and s 90SE relating to the alteration of property and maintenance as and between the parties to the de facto relationship, together with any declaratory (and consequential) orders in relation to the respective title or rights of the parties to property pursuant to s 90SL.
Per Austin J in Cantu & Galloway [2023] FedCFamC1F 993 at [25], “a declaration as to the existence of a de facto relationship under s 90RD of the Act does not involve an exercise of judicial discretion (Jonah & White (2011) 45 Fam LR 460 at [39]). Rather, it is an evaluative factual determination, taking into account the criteria set out within s 4AA of the Act (Lennon & Sanil (2020) FLC 93-962 at [8])”.
The meaning of a de facto relationship is defined by s 4AA, with the essential test being whether the parties had a “relationship as a couple living together on a genuine domestic basis”. Section 4AA of the Act states as follows:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
As identified by the Full Court of the Family Court of Australia in Jonah & White (2012) FLC 93-552 at [33]:
The Court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
However, even with the indicia identified in section 4AA of the Act, the question of whether a de facto relationship exists is one that is often difficult to define, as the boundaries of what might constitute a de facto relationship are difficult to enunciate, and each case will invariably turn on its own facts.
As observed by the Federal Court in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:
… Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons… meets the statutory test.
As such, I am required to look at the “composite picture” and consider all elements of the relationship to determine whether the parties had a relationship as a couple living together on a genuine domestic basis.
Per Carter J in Velichkov & Velichkov [2024] FedCFamC1F 150 [30], whilst a relationship may objectively appear unusual, it “does not mean it cannot be a de facto relationship, as the case law makes it clear that many differently expressed relationships can appropriately attract the legal definition of de facto”.
MATERIAL RELIED UPON
Documents relied upon by the Applicant
The applicant relied upon the following documents:
(a)Amended Initiating Application filed 27 October 2022;
(b)Financial Statement filed 12 March 2021;
(c)Affidavit of Ms Eide filed 24 October 2022;
(d)Affidavit of Ms Eide filed 23 June 2023;
(e)Affidavit of Mr W filed 24 October 2022;
(f)Affidavit of Ms Z filed 24 October 2022;
(g)Notices to Admit (x2) filed 8 March 2023;
(h)Notices to Admit (x4) filed 21 March 2023;
(i)Application in a Proceeding filed 26 May 2023;
(j)Outline of Case document filed 26 June 2023; and
(k)Documents tendered by counsel, including documents produced pursuant to subpoena.
Documents relied upon by the respondent
The respondent relied upon the following documents:
(a)Response to Initiating Application filed 2 September 2021;
(b)Affidavit of Mr Yoxall filed 1 June 2023;
(c)Affidavit of Ms AA filed 22 May 2023;
(d)Affidavit of Ms BB filed 22 May 2023;
(e)Affidavit of Mr CC filed 22 May 2023;
(f)Affidavit of Ms DD filed 22 May 2023;
(g)Affidavit of Dr EE filed 23 May 2023;
(h)Affidavit of Ms FF filed 24 May 2023;
(i)Affidavit of MR GG filed 25 May 2023;
(j)Affidavit of Ms HH filed 25 May 2023;
(k)Affidavit of Ms JJ filed 25 May 2023;
(l)Affidavit of Ms KK filed 25 May 2023;
(m)Affidavit of Mr LL filed 29 May 2023;
(n)Affidavit of Mr NN filed 29 May 2023;
(o)Affidavit of Mr MM filed 30 May 2023;
(p)Affidavit of Ms T filed 2 June 2023;
(q)Affidavit of Ms P filed 5 June 2023;
(r)Affidavit of Mr OO filed 7 June 2023;
(s)Affidavit of Mr PP filed 9 June 2023,
(t)Outline of Case document filed 25 June 2023; and
(u)Documents tendered by senior counsel, including documents produced pursuant to subpoena.
Tendered documents
The following documents were tendered during the course of the trial:
Exhibit Number Description A-1 Adduced bundle of photographs from annexure ME-17 to applicant’s trial affidavit. A-2 Bundle of text messages between the parties. A-3 Pages 408-412 inclusive of the transcript. A-4 Text messages from Ms JJ to Ms Eide dated 3 January 2021. A-5 Transcript of recording of early 2020 R-1 Telephone records of F Pty Ltd ending in …69 dated 11 March 2017 – 10 April 2017. R-2 Telephone records of F Pty Ltd ending in …69 for 11 August 2017 – 3 September 2017. R-3 Telephone records dated 9 November 2017 – 10 December 2017 R-4 Telephone records dated 10 February 2018 – 11 March 2018. R-5 Telephone records (2 PDF documents) titled June 2019 and July 2019. R-6 Documents subpoenaed from QQ Hospital, pages 2, 17, 61 and 62. R-7 Text messages at the foot of page 949 and 950 of the respondent’s tender bundle. R-8 Email dated 29 January 2020 at 1.12pm from applicant to Mr LL (and others), page 1316 of the court book. R-9 Text messages between applicant and respondent dated 22 January 2020, time stamp 22:14, page 945 of the respondent’s tender bundle. R-10 Text messages between the applicant and respondent dated 12 September 2018, time stamp 22:17, page 206 of the respondent’s tender bundle. R-11 Text messages between the applicant and respondent dated 1 February 2019, pages 217 and 218 of the respondent’s tender bundle. R-12 Text messages between applicant and respondent dated 10 June 2019, pages 249 and 250 of the respondent’s tender bundle. R-13 Text messages between applicant and respondent dated 7 October 2019, page 258 of the respondent’s tender bundle. R-14 Text messages between applicant and respondent dated 16 December 2019, time stamp 23:51 and 00:11, page 456 of the respondent’s tender bundle. R-15 Text messages between applicant and respondent dated 17 December 2019, time stamp 18:25, page 462 of the respondent’s tender bundle. R-16 Email from Mr W to the respondent dated 9 March 2021 R-17 Facebook posts J-1 Agreed mud map. Tendered by consent. J-2 Email from Ms Fisken to the associate of Justice Williams dated 6 September 2023 explaining the coding in the agreed mud map. THE HEARING
The trial commenced on 26 June 2023 and concluded on 5 March 2024. The hearing was conducted in person, with some witnesses appearing virtually via Microsoft Teams due to geographical limitations.
Delays in the resumption and conclusion of the trial were due to an ongoing criminal trial in the County Court, unavailability of counsel, and my health issues which prevented me from sitting in late 2023.
CREDIBILITY OF WITNESSES
The applicant
The applicant gave evidence and was cross-examined by senior counsel for the respondent over the course of two days. As cross-examination progressed, she became increasingly agitated and argumentative. It was clear that she felt personally aggrieved by the situation and was under a significant amount of anxiety and stress. Despite these observations, I accept her generally as a witness of truth and for the reasons below, I generally prefer her accountant and accept her evidence of disputed events, rather than the respondent’s evidence.
The applicant’s witnesses
The applicant called two witnesses to give evidence as to their interactions between the parties and their observations as to the state of the relationship between the parties. Those witness’ were as follows:
(a)Ms Z; and
(b)Mr W.
Mr W is the applicant’s father who resides in Country Q. He swore an affidavit on 24 October 2022 in which he deposed to his perspective of the relationship and what he witnessed when he travelled to Australia, on a trip funded by the respondent, to spend time with the parties and their child. He was cross-examined by senior counsel for the respondent on 28 June 2023 via Microsoft Teams and unsurprisingly gave evidence that supported his daughters case.
Ms Z is the long-term girlfriend of Mr W, the applicant’s father, who swore an affidavit on 24 October 2023. She similarly gave evidence via Microsoft Teams about what she witnessed when she visited Australia in early 2020 and deposed to the parties being “a couple and a family”.[18] She was cross-examined by senior counsel for the respondent on 28 June 2023 and her evidence was supportive of the applicant’s case.
[18] Annexure “MZ-1” to Ms Z’s affidavit filed 24 October 2022.
The respondent
The respondent gave evidence and was cross-examined by counsel for the applicant over the course of two and a half days. He repeatedly failed to answer questions without aid of the agreed ‘mud map’ (Exhibit J-1) or documents which he could corroborate his evidence with, rather than using any independent recollection.
He sought to portray himself as a generous man who enjoyed the company of many women, so as to diminish his relationship with the applicant. In order to further minimise the relationship, it was clear he sought to discredit and embarrass the applicant, evinced through the exhibiting of many sexually explicit and compromising images to his affidavit of 1 June 2023, references to her alleged prior drug use and previous sexual partners.
During cross-examination, he frequently engaged in impression management and his explanations of certain events were unconvincing. One example of this was his evidence regarding the potential purchase of a diamond engagement ring for the applicant and texts sent about the status of their relationship, which he described as “future faking”, because he said at some stage, the applicant was blackmailing him.
Even if what he said was true about the blackmail, which I don’t accept, the concept of “future faking” demonstrates the respondent’s capacity to systematically deceive and mislead the applicant about the nature of the relationship, over a prolonged period. From his perspective, “future faking” supposedly justified his conduct. That evidence and the ease with which the respondent manipulated the truth to the applicant, including that he intended to propose to her, undermines the respondent’s credibility in this proceeding, particularly now when he seeks that the court accept his evidence about other matters, in preference to the applicant. In that context, it is almost impossible to properly discern the truth.
It is clear the respondents’ actions and behaviour are often in contrast to his alleged intention. I gained the impression that throughout the relevant period he had sought to rely on advice of his lawyers and other advisors, to attempt to carefully characterise his relationship with the applicant as anything other than a de facto relationship, despite their lived experiences together. He sought to tailor his evidence through that prism.
Despite his evidence of relationships with other women, including Ms M and Ms V, neither gave evidence for the respondent. His evidence of his relationship with Ms V is at odds with the recorded conversation at [178].
For these reasons, where there is a factual dispute between the applicant and respondent, I generally prefer the evidence of the applicant.
The respondent’s witnesses.
The respondent called nine witnesses to give evidence as to their interactions between the parties and their observations as to the state of the relationship between the parties. Those witnesses were as follows:
(a)Mr LL;
(b)Mr MM;
(c)Ms DD;
(d)Ms T;
(e)Mr OO;
(f)Mr PP;
(g)Ms KK;
(h)Ms P; and
(i)Ms JJ.
Each of the respondents witness’ were subjected to cross-examination.
Mr LL is employed by F Pty Ltd in a senior managerial role, who previously held the position of a national manager. He swore an affidavit on 29 May 2023 in which he deposes to the advertising strategy employed by F Pty Ltd and the applicant’s employment at the company. Much of his evidence regarding the relationship between the parties was what the respondent told him, rather than his own observations. He was cross-examined by counsel for the applicant on 4 March 2024. Whilst he did not admit to feeling compelled to swear an affidavit in support of the respondent, it is clear due to his close personal and financial relationship with the respondent, that it would have been difficult to refuse to do so. I do not consider him an independent or objective witness.
Mr MM is a professional, who F Pty Ltd has engaged since around 1999. He swore an affidavit on 30 May 2023, in which he deposes to a conversation he had with the applicant in March 2020 at an event he attended as a guest of the respondent. He was cross-examined by counsel for the applicant on 4 March 2024 regarding this conversation, and he was unable to provide any credible evidence as to why the alleged conversation ended in “ha-ha”. Mr MM did not accept the comment was made in jest. I also consider him objectively compromised, because of his longstanding financial/legal relationship with the respondent.
Ms DD is employed by F Pty Ltd as a manager, who previously held the position of bookkeeper. She has worked for the company for approximately 17 years. Ms DD affirmed an affidavit on 22 May 2023 in which she annexed a ‘summary of payments’ the respondent has “made to or on behalf of women he has been seen [sic] since 2017”. She was cross-examined by counsel for the applicant on 4 March 2024 regarding this document and how she knew such payments were going towards ‘girlfriends’ rather than usual business expenses. It is clear her knowledge of such payments was derived from what the respondent disclosed to her. Due to her financial reliance on her employment income from F Pty Ltd, little weight is attributed to her evidence.
Ms T is the respondent’s eldest daughter from a previous relationship. She is 23 years of age and is financially reliant on the respondent, receiving $1750 as a weekly allowance. She swore an affidavit on 2 June 2023 and deposed to holidays she attended with the parties to Town K in early 2017 and Country U in late 2018, in addition to her perception of the relationship. She was cross-examined by counsel for the applicant on 4 March 2022 regarding her version of events. She gave evidence that she was suffering from memory loss following the death of her mother and was unable to recall certain events. I agree with counsel for the applicant that little weight should be given to her evidence, as it is likely she had no option, other than to agree to participate in these proceedings, due to her familial relationship with, and financial reliance on the respondent.
Mr OO is a businessman and friend of the respondent. He swore an affidavit on 7 June 2023, in which he deposed to his perception of the relationship and conversations he had with each party regarding same. He was cross-examined by counsel for the applicant on 4 March 2024 and treated the process with a degree of flippancy. He organises sports events of which F Pty Ltd are a major sponsor. During cross-examination he gave evidence that he has received four to six interest free loans from the respondent of up to $20,000 each. It is clear he has significant loyalty towards the respondent and enjoys a close personal and financial relationship with him. As such, little weight is attributed to his evidence.
Mr PP is an athlete, who is currently unemployed. He swore an affidavit on 7 June 2023 in which he deposed to his previous relationship with the applicant. He was cross-examined by counsel for the applicant on 5 March 2024 and gave evidence that he was asked by the respondent’s current fiancé to swear an affidavit in the proceedings, despite having not met the fiancé before. During cross-examination, it was extremely difficult to understand his evidence. From what I could decipher, he seemed mostly concerned with “getting his point across” because he “does not like his name being spoken badly about”. When asked why he thought he was being spoken badly about, he was unable to explain why, other than it being an assumption based on the way in which his relationship with the applicant ended. He seemed to be driven by acrimony towards the applicant and was not an impressive witness. It was accepted by senior counsel for the applicant little turns on what he said. Little weight is given to his evidence.
Ms KK is the respondent’s former employee. She swore an affidavit on 25 May 2023 after being asked by one of the respondents’ daughters. She deposed to the events that took place on a two-week holiday she accompanied the parties on to Country U, which was fully funded by the respondent. She was cross-examined by counsel for the applicant via Microsoft Teams on 5 March 2024 about the Country U holiday and maintained her version of events was true, despite admitting that she did not see the applicant throw her jewellery into the ocean. Notwithstanding this inconsistency, I generally accept her as a witness of truth.
Ms P is the respondent’s daughter from a previous relationship. She swore an affidavit on 2 June 2023 and was cross-examined via Microsoft Teams on 5 March 2024. She is 21 years of age and lives in Region H where she is studying. She is financially reliant on the respondent and receives a weekly allowance of $1750. During cross-examination, she gave conflicting evidence about the incident involving a designer bag and her knowledge of the proceedings before me. I agree with counsel for the applicant that little weight should be given to this evidence, as it is unlikely she had any option but to agree to participate in these proceedings due to her relationship with, and financial reliance on the respondent.
Ms JJ has an extensive history of employment with the respondent. She worked at one the respondent’s companies, in 2014 or 2015 where she provided the respondent with services. She also provided services for the respondent’s eldest daughters during 2017 and 2018 and worked as an executive assistant for the respondent while he was in Suburb RR. She swore an affidavit on 25 May 2023 in which she deposes to her understanding of the respondent’s dating life in recent years, in addition to his relationship with the applicant. In cross-examination she denied currently working for the respondent and stated that in the past twelve months, her proportion of income derived from the respondent, or his related businesses was approximately 3%. She was cross-examined to some length regarding text messages sent between her and the applicant (Exhibit A-4) and her answers were largely non-responsive, and she was unable to concede their obvious meaning. As such, I do not consider her a witness of truth. Furthermore, she clearly suffers from the same affliction of many of the respondents witnesses whereby she has a longstanding financial relationship with the respondent, and it is unlikely she had any option but to agree to participate in these proceedings.
The respondents’ other witnesses were not required for cross-examination.
FINDINGS
Section 4AA(1)
It is not controversial that s 4AA(1)(a) and (b) are satisfied as the parties are not legally married, nor related by family. The issue in dispute is whether having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis (s 4AA(1)(c)).
Section 4AA(2)(a) the duration of the relationship
Throughout the proceeding, counsel for the applicant maintained the parties commenced a relationship in early 2017 which ended in late 2020. In the respondents Outline of Case filed 25 June 2023, he posits that “in early […] 2017, the parties met and commenced a non‑exclusive sexual relationship which ended acrimoniously in late 2020”. In closing submissions, however, it was asserted by senior counsel for the respondent that the parties were not in a relationship whatsoever.
In final submissions, counsel for the applicant asserted that there is no requirement for the applicant to establish a de facto relationship of a particular duration because the parties have a child together per s 90SB of the Act.
The evidence is clear that the parties met in 2014, and upon reacquainting in early 2017, they engaged in ongoing sexual relations and contact until late 2020, and I so find. Thus, however defined, they clearly had some sort of relationship during this period. The characterisation of this relationship, however, is contentious.
Section 4AA(2)(b) the nature and extent of their common residence
Throughout the entirety of the parties relationship, they did not share a common residence in a traditional sense, thus this was a significant issue in dispute. Due to the nature of the respondent’s business, he split his time between Region H, Melbourne, and various international locations whilst the applicant remained living in Melbourne, however, she frequently travelled with, and to visit, the respondent.
During the proceeding, an agreed ‘mud map’ and corresponding explanation was jointly tendered by consent (Exhibit J-1 and J-2 respectively) which sought to outline the overnight time the parties spent together. From the period of February 2017 to December 2020, the parties agreed that they spent a total of 275 nights together which equates to an overall percentage of 19.62% - being the total overnight time the parties spent together. A significant proportion of this time was spent either on holidays or in hotel accommodation. Significantly, the ‘mud map’ does not refer to where each party was during the day and whether time was spent together. Further, the ‘white cells’ are not an agreement that there was no overnight time spent together on those dates, but rather an agreement that there is an absence of evidence to support and corroborate each parties position.
At the commencement of the relationship, the respondent resided in an apartment on G Street before moving to the O Street apartment in March 2018. The O Street apartment was rented under the applicant’s name and the lease was guaranteed by F Pty Ltd. The rent was paid for either by F Pty Ltd or the respondent personally. From December 2020 onwards, the respondent ceased paying rent and the applicant moved to another location. The respondent denies that the O Street apartment was ever his and deposes to not having a key, nor keeping any personal possessions there, which I accept. He admits to spending the night there, however, on limited occasions.
Whilst the respondent deposes to living in Region H, he frequently travelled to Melbourne and when he did so, he would stay at various rooms/suites at J Hotel. The applicant posits that during these periods, she would spend minimal time at her apartment as she stayed with the respondent at J Hotel due to “the facilities and restaurants… and the luxury of having a maid”.[19] She deposes that she would only go back to her apartment to check on it and collect more clothes as required. I accept this evidence. The respondent was adamant, however, that they have never shared a common residence. I find that whilst the parties did not share a residence in the traditional sense, J Hotel became a quasi-common residence for the parties.
[19] Applicant’s affidavit filed 23 June 2023, paragraph 14.
The need for cohabitation was considered by the High Court of Australia in Fairbairn & Radecki (2022) 400 ALR 613 which unanimously said:
33.Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA. (Footnote omitted).
35.Two decisions support the proposition that physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.
39.The language of s 4AA of the Act and its reference to "living together" requires no different approach to determining whether a relationship exists of the kind defined. "Living together", consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a "common residence" to some "extent" and of some "nature". Such a construction is entirely denied by s 4AA(3). (Footnote omitted)
Whilst the respondent is a man of significant wealth and owned numerous residences during the relationship, he frequently opted to stay in hotel accommodation for extended periods at a time. The parties did not engage in domestic chores such as cooking and cleaning, as they had maids and restaurants at their disposal. It was proposed by counsel for the applicant in closing submissions that the “concept of residence should be viewed in light of these preferences and not in the more conventional manner that may apply to most other members of the community”. This proposition is accepted, and whilst the residences were frequently hotels and holiday accommodation, I regard that to be merely a manifestation of a modern and luxurious sharing of lives.
In this case, the concept of common residence is accordingly viewed considering the parties’ preferences to live a luxurious lifestyle in which travel, and holidays were at the fore. The evidence clearly supports the conclusion these parties shared life as a couple with their daughter, although in an unusual and unorthodox manner.
Section 4AA(2)(c) whether a sexual relationship exists.
The existence of a sexual relationship was not denied by either party, although the respondent asserts this was non-exclusive. Nevertheless, a sexual relationship existed between them, and I so find.
Section 4AA(2)(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them.
The respondent’s financial generosity towards the applicant is well-documented and not a matter of controversy. He admits to enjoying the company of younger women and that in order to “secure their attention and attendance with me from time to time I provide them financial incentives. For the women I like, I do spoil them with gifts, presents and surgeries”.[20] The respondent asserted that his financial generosity was not exclusive to the applicant, but extended to other females in his life including his three daughters. This was supported by the evidence of Ms DD during cross-examination. In relation to his financial support towards the applicant, the respondent posited that this was motivated by his desire to ensure that his young daughter is appropriately accommodated and cared for.[21]
[20] Respondent’s affidavit filed 1 June 2023, paragraph 215.1.
[21] Respondent’s Outline of Case filed 25 June 2023, page 9.
At the commencement of the relationship, the applicant was employed full time as a health professional and earned approximately $50,000 per annum. She deposes that early on in their relationship, the respondent told her that it was “pointless” for her to continue working “as he was very wealthy and could afford to pay for all our expenses and travel”. I accept that evidence, although it is denied by the respondent, because of the matters referred to in the following paragraphs.
Just prior to the birth of X in 2018, the applicant ceased working and did not commence work again until in or about mid-2020. During the relationship, including the period in which the applicant was employed, the respondent supported her financially by depositing funds directly into her bank account and paying for other expenses as he “preferred that I not work and rather that I spend the majority of my time with [the respondent] (when he was not working)”.[22]
[22] Applicant’s affidavit filed 24 October 2022, paragraph 64.
The applicant deposes that upon review of her bank statements, that the respondent deposited the sum of $518,300 in her account in the period of 2017 to 2020.[23] This figure is not inclusive of other expenses such as travel, accommodation, clothes, jewellery and dining out and is not denied by the respondent. On 8 March 2023 the applicant’s solicitors served on the respondent’s solicitors a Notice to Admit pertaining to funds transferred to the applicant by the respondent. The respondents Notice of Dispute was filed outside the requisite time and not included in the court book. I have therefore had regard to the applicant’s evidence in this regard.
[23] Applicant’s affidavit filed 24 October 2022, paragraph 65.
During the relationship, the applicant was also given the use of a motor vehicle, mobile phones, a laptop and rental payments and bills were covered by the respondent. He also assisted the applicant in funding her legal fees, relevant to family law proceedings with the applicant’s ex‑partner.
Whilst there is no evidence of the parties’ finances being intermingled into joint bank accounts, the applicant was financially dependent upon the respondent’s financial generosity during their relationship. Upon the relationship ending in late 2020, the applicant had no choice but to move out of the O Street apartment as the respondent was no longer paying the rent, and she could not afford to remain there. Similarly, the applicant deposes that she has not travelled overseas nor had a holiday of any length since the breakdown in the relationship.[24]
[24] Applicant’s affidavit filed 24 October 2022, paragraph 74.
Section 4AA(2)(e) the ownership, use and acquisition of their property
There is no jointly owned property between the parties, nor any evidence of their finances being intermingled into joint bank accounts.
The applicant deposes, however, to spending a considerable amount of time viewing and discussing the purchase of a potential home with the respondent in the latter months of their relationship from June 2018 through to December 2020. As part of this process, she refers to twelve different real estate agency’s she contacted and exhibits various emails sent to her by the respondent in relation to same.[25] Conversely, the respondent denies this was a joint endeavour. He deposes to undertaking a “preliminary search for an apartment in Melbourne to purchase for [himself]” and to directing the applicant “to make some enquires which she did”.[26] Such purchase never materialised.
[25] Applicant’s affidavit filed 24 October 2022.
[26] Respondent’s affidavit filed 1 June 2023, paragraph 251.
I consider this to be an example of the respondent intentionally misrepresenting his intentions to the respondent. Whilst the parties’ intentions may have differed, the objective evidence before me is clear that there was discussion regarding the potential acquisition of property, and I so find.
Section 4AA(2)(f) the degree of mutual commitment to a shared life
Contemplation of marriage
Throughout the proceedings the applicant maintained that the respondent had expressed to her on several occasions that he intended to marry her. This was reiterated by Mr W who deposed he “asked [Mr Yoxall] if he was going to marry [Ms Eide] and he told me that he intended to marry her and said that he was looking forward to spending the future with [Ms Eide] and [X]”.[27] He was not challenged about this during cross-examination.
[27] Mr W’s affidavit filed 24 October 2022, paragraph 22.
The respondent vehemently denies any suggestion that he intended to marry the applicant and attempted to explain any evidence that supported such a conclusion as “future faking” and lies. In his affidavit of 1 June 2023, the respondent explains that his promises regarding marriage arose in the second half of 2020 after the applicant “made recordings of our interactions [and] threatened me that she would go to the police or the media with the recordings if we did not get engaged or pay her $16,000,000”. He elaborated that he “hoped to diffuse the situation by cajoling her until such time as I could travel back to Queensland without having to spend time in quarantine. I did not intend to marry [Ms Eide]”. In final submissions, senior counsel for the respondent submitted by doing this, the respondent was merely doing what he considered necessary to try and avoid the applicant from releasing a tape she had to the police.
In mid-2020 the applicant was due to travel to Sydney to meet the respondent, however, cancelled the trip at the last minute as her O Street apartment was broken into. On the same day, the respondent sent a picture to the applicant of the hotel room in Sydney depicting a bed with rose petals on it and an accompanying text saying, “I told you I was going to propose to u [sic]”. During cross-examination, counsel for the applicant and the respondent had the following exchange:
MS TULLOCH: you were going to go up there - you told her, “Let’s go and have a look – we’re going to have a look at a diamond engagement ring”? --- I am not sure I said diamond engagement -no. I’m not sure I said that, but we were going up there to look at some things.
To look at an engagement ring? --- Yes. Well, look at – look at some stones.
Because that’s why, in your text message, you say, ‘I told you I was going to propose to you”? --- Yes. I told you this. I’m lying to her. I told you – now, it might be hard for you to understand, but I’m lying, because I’m being blackmailed and being extorted.
(Transcript 7 September 2023, p.52 lines 26-36)
During cross-examination, counsel for the applicant also tendered a bundle of text messages (Exhibit A-2) in which during one exchange, the parties refer to each other as “future husband” and “wifey”. The respondent also sent a text to the applicant on 1 November stating that he had made a new will that included her as his future wife. On 12 October 2020, the respondent sent the following text messages to the applicant:[28]
I love you
With all my heart
You are my everything
I miss you
[28] Exhibit A-2 – Bundle of text messages between the parties.
As a result of the respondents’ actions and behaviour, the applicant had a genuine belief that the respondent intended to marry her. She was unaware he was “cajoling” her. Despite the respondents purported intention, the evidence before me supports the conclusion that they did share a mutual commitment to a shared life, and his alleged private thoughts and “future faking” regarding these matters do nothing to dilute the actions taken by him.
Social events, celebrations, and other gatherings
The parties attended social events as a couple, including dinners, birthdays, events and outings with friends. The applicant also accompanied the respondent to intimate family events such as Christmas in 2017 and 2018, to spend time with the respondent’s mother and two older daughters. The respondent contends that this invitation was only extended because “he wanted to introduce [his] mother to the mother of [his] new child” and it was done as a kind gesture because “[the applicant] […] was without family or friends to spend the holiday with”.[29] It was clear during cross-examination how important the respondent’s mother was to him, as he found it difficult to discuss events or look at photos which she was in without shedding a tear. It is significant that the applicant was included in these events.
[29] Respondent’s affidavit filed 1 June 2023, paragraph 260.
The applicant also exhibited a bundle of photographs (Exhibit A-1) depicting the parties together at various times throughout the period in question, embracing or otherwise in poses suggesting emotional intimacy. The photographs speak for themselves, both as to attendance at social functions together and the intimacy of the relationship.
During the relationship, the respondent also paid for the applicants’ father and his girlfriend to travel to Australia to spend time with the parties and X. He also paid for the applicant to accompany him and his oldest daughters on family holidays to Town K and Country U. Although it is clear both trips were marred with elements of volatility and toxicity, per the Full Court decision in Onslow & Onslow [2016] FamCAFC 7 [101] “an unsatisfying, often unhappy de facto relationship ought not to be confused with the absence of one” (footnotes omitted).
Email to the applicant dated 5 March 2018
The respondent relied upon an email sent to the applicant on 5 March 2018, which sought to frame their relationship in a particular light by stating:
…I do have strong feelings for you, but as I have tried to explain to you, after much anguish, I have reached the decision that although we will be co-parents and although we have developed feelings for each other, circumstances are such that I cannot commit to taking our friendship to the next level, notwithstanding that we will be co-parents.
When this was put to the applicant during cross-examination, she gave evidence the respondent “had to send this for his lawyers… because they didn’t want it to look like we were in a relationship”.[30] She further elaborated that prior to receiving the email the respondent told her “you’re not going to like what I have to send through” but reassured her by stating “don’t worry about it. It doesn’t mean anything. My lawyers are just making me do it”, and she trusted him.[31]
[30] Transcript 27 June 2023, p.108 lines 35-40.
[31] Transcript 27 June 2023, p.109 lines 8-11.
In final submissions, senior counsel for the respondent submitted that the fact that the respondent took legal advice in relation to the preparation of this correspondence should not be held as a negative against him, as he wanted it to be clear to the applicant “exactly where he stood”.[32]
[32] Transcript 5 March 2024, p.146 line 7.
In this instance, I prefer the evidence of the applicant and find that this formal letter was accompanied by direct communication from the respondent in which he assured her that she did not need to worry about the content of these letters. I also find it inconceivable that the parties were only in a “friendship” after hearing the evidence adduced in cross-examination by the respondent. I regard this correspondence as an unsuccessful attempt at impression management by the respondent.
Transcript of a recording dated 18 January 2020
After much deliberation between counsel for the applicant and senior counsel for the respondent, a non-official transcript was tendered on the last day of trial by consent (Exhibit A-5), and I was addressed by both counsel in their final submissions of the contents therein. This transcript records a conversation between the parties on 18 January 2020 at J Hotel, without the knowledge of the respondent. It was submitted by both counsel that context is important when reading this document, which I accept.
During final submissions, counsel for the applicant submitted that for their purposes, the relevant part of the transcript commences at line 94 (Exhibit A-5 whereby the parties are discussing Ms V in the context of a legal issue the respondent is facing whereby he may require witnesses. The respondent maintained throughout trial that he was “seeing [Ms V] non-exclusively for approximately 12 months from late 2018” and that “[the applicant] knew about my relationship with [Ms V]”.[33] From line 101 (Exhibit A-5), the following exchange takes place:
[33] Respondent’s affidavit filed 1 June 2023, paragraph 156.
[Mr Yoxall]: Clearly, so do you want me to fire her as well and lose my main witness. I have only got 4 witnesses.
[Ms Eide]: It’s not up to me babe.
[Mr Yoxall]: Well you know what!
[Ms Eide]: I’m not… look this is nothing to do with me, literally none of this…
[Mr Yoxall]: You’re interfering with by business.
[Ms Eide]: I’m not interfering, I’m giving you. [Mr Yoxall] I'm telling you what I’m being sent
[Mr Yoxall]: No, he said…..
[Ms Eide]: I’m telling you that because you’re my partner.
[Mr Yoxall]: You’re interfering with my business.
[Mr Yoxall]: He’s saying “all will be revealed on the 20th”, okay. That’s what he’s saying. Whatever that might be. That’s about 4 days away, that’s next week. So I’m going to get served by a writ or I’m going to have problems okay, that stresses me the fuck out, and now I’m fighting with one of major witnesses now. I don’t need it, okay.
[Ms Eide]: You mean your lover?
[Mr Yoxall]: It’s not my lover, I told you what I did with her.
[Ms Eide]: What did you do with her?
[Mr Yoxall]: I fucking got her to fucking help me with the court case, I told you this…
…
[Mr Yoxall]: None of these things are sexual, they are fucking for to [sic] protect myself, I have no interest in these people, sexually or whatever, they’re to protect me.
Counsel for the applicant submitted that this conversation is entirely consistent with the evidence of the applicant that she was under the impression that she was in a relationship with the respondent and that the relationship between the respondent and Ms V was nothing more than business. This was evinced in the applicant’s affidavit in reply dated 23 June 2023 in which she states that “[the respondent] had told me that [Ms V] was [an employee] at his Region H [business]. [The respondent] told me I was crazy to think that they were in any relationship beyond boss and employee”. I accept that submission.
Shortly thereafter the above exchange, the parties went on to say:
[Mr Yoxall]: I keep saying to you forget about it, I’m helping them, forget about it, forget about it, forget about it, it’s nothing sexual. He’s trying to bring them in cause [sic] he knows the evidence that they’re going to give. So he’s trying to stop me from using those people, and all your doing is driving me nuts, cause you think I’m fucking these people.
[Ms Eide]: I’m not going anything.
[Mr Yoxall]: and I’m not fucking nobody.
[Ms Eide]: Well, ok.
[Mr Yoxall]: Okay you’ve got no proof of me fucking, I’ve been giving her money. I told you that.
[Ms Eide]: [Mr Yoxall], stop well that’s the same thing.
[Mr Yoxall]: It’s not. Protecting my interest and my family’s interests.
[Ms Eide]: You’re not protecting me.
[Mr Yoxall]: You’re my family
In final submissions, counsel for the applicant submitted this exchange epitomises the parties’ relationship at that time, as the respondent was maintaining to the applicant that they were in an exclusive relationship because he was not having a sexual relationship with anybody else, and that he is protecting his interests and his families’ interests and considers the applicant to be his family. I accept that submission.
In addition to some lines from the aforementioned conversation, senior counsel for the respondent further directed me to line 268 which starts by saying:
[Mr Yoxall]; Just go.
[Ms Eide]: Okay I have no pants on, could you just like…..
[Mr Yoxall]: Just go
[Ms Eide]: Stop
[Mr Yoxall]: Leave me.
[Ms Eide]: I’m not doing anything.
[Mr Yoxall]: You’re doing enough, to get me ropable, get out of here.
[Ms Eide]: No.
[Mr Yoxall]: I want you to go.
[Ms Eide]: How am I going to get home?
[Mr Yoxall]: Get a cab.
[Ms Eide]: No.
[Mr Yoxall]: Well there’s no point staying here.
[Ms Eide]: You don’t get to come over and abuse me and do this like every time, I’m staying here [Mr Yoxall] (inaudible).
[Mr Yoxall]: I said just go, I said go, leave me alone.
[Ms Eide]: You’re the worst person I’ve ever dated.
Senior counsel for the respondent asserted in his final submissions that the above conversation (Exhibit A-5) is demonstrative of the “games” that the applicant and respondent appear to enjoy between each other, however, do not support the contention that they were a couple living in a genuine domestic relationship.
I accept the submission of senior counsel for the respondent that this is but one example of the “games” the parties play with each other, and they were not living in domestic bliss, however, I do not accept it demonstrates that the parties were not in a de facto relationship. As mentioned previously, per the Full Court decision in Onslow & Onslow [2016] FamCAFC 7 [101] “an unsatisfying, often unhappy de facto relationship ought not to be confused with the absence of one” (footnotes omitted). Whilst some parts of this conversation may have been another example of the respondent “cajoling” the applicant, his comments made in private to the applicant support my finding that the parties exhibited a mutual commitment to a shared life, particularly by referring to the applicant is his “family”.
Correspondence exchanged between the parties prior to the birth of X
In his final submissions, Senior Counsel for the respondent submitted a series of text messages and emails annexed to his client’s trial affidavit were accurate indicators of the position between the parties.
The first email, sent by the applicant to the respondent in 2018 (MY-4) states:
Your lies this weekend have left me completely lost and heartbroken. I have no idea where I belong, but it is clear it is not with you.
In 2018, the applicant sent the respondent the following email regarding his attendance at the impending birth of X (MY-5):
I want our baby to know that no matter what has happened, or what will happen that love is real. Even if it’s the only moment the three of us ever get to share, please let it be the day she enters the world.
In late 2018, the applicant sent the respondent the following email (MY-19):
I do not wish you to be apart of my life anymore.
It was submitted by senior counsel for the respondent that this correspondence, when compared to what the applicant asserts regarding the status of the relationship, is diametrically opposed. Whilst he conceded these are only snapshots of the relationship, it was submitted that the communication demonstrated the relationship was not in accordance with the applicant’s position. Senior counsel further submitted that this contemporaneous correspondence accurately demonstrated the real and factual situation of the relationship between the parties at that time.
Whilst I accept correspondence is a contemporaneous snapshot of the relevant time, it must be considered in the context of prior and subsequent events and the tumultuous and volatile nature of the relationship.
Despite the correspondence in 2018 the respondent assisted the applicant to obtain a new rental property, which he or his company paid for. The emails/messages were sent prior to X’s birth in emotionally charged circumstances.
In mid-2018 the parties went on a family holiday to the United States, and in December 2018, subsequent to the text message of October 2018, they spent Christmas together with the respondents’ mother.
Senior counsel for the respondent did not address the events which took place before and after each tranche of emails/ messages relied upon. I find the communications should be considered in the correct temporal context and having regard to the volatility of the relationship between the parties. For these reasons, I do not accept the submission of the respondent’s senior counsel in this regard, or that emails and texts exchanged at that time are determinative of the nature of the parties relationship.
QQ Hospital records
Senior counsel for the respondent tendered medical records from the QQ Hospital dated 2018, following a referral by a nurse that the applicant has an inpatient mental health assessment (Exhibit R-6). This visit took place after the birth of X in 2018. The nurse made the referral as she was concerned regarding the applicants’ symptoms of post-natal depression, themes of hopelessness and suicidal ideation[34] The notes state that:
[The applicant] was angry, felt dismissed and irritable and wanted to leave. Adamantly refused for partner to be contacted stating it could cause more difficulties and that she had not planned on having him involved in “childrearing” anyway.
[34] Exhibit R-6 – Documents subpoenaed from QQ Hospital.
When the relevant notes were put to the applicant during cross-examination, she denied ever using the words “childrearing”, and did not know whether she said words to the effect that she ‘did not want the respondent involved in relation to the child’. She stated that the day was a blur. She denied believing she was not in a relationship with the respondent at this time.
In final submissions, senior counsel for the respondent asserted that these medical documents indicate the situation concerning the relationship at that time, and demonstrate as far as the applicant was concerned, the respondent was not involved with X, nor did she want him to be.
The hospital records should also be considered in the framework of the parties’ volatile relationship and temporal context. It is clear from the evidence the mother has a history of anxiety and minimal support network in Melbourne and these comments were allegedly made by the applicant after giving birth to X, when she had been admitted to hospital because of possible depression and was emotionally vulnerable. At that time, the hospital sought a mental health assessment of the applicant, obviously because there were concerns about her mental health. Comments made in these circumstances, particularly having regard to what occurred between the parties subsequently, cannot possibly be considered as ultimately determinative of the nature of the relationship between them.
Section 4AA(2)(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The parties did not register their relationship as a prescribed kind of relationship under State law.
Section 4AA(2)(h) the care and support of children
The parties have one child together. It is common ground that the respondent was not supportive of the applicant proceeding with the pregnancy, but ultimately recognised that the decision fell to the applicant. According to the applicant, they later discussed having another child together, although during cross-examination the respondent qualified any suggestion of such comments as “future faking”.
Throughout X’s life, the applicant has assumed the role as primary care giver and the respondent has spent time with her on occasions when he is in Melbourne. The respondent has provided financial support to the applicant and third parties for the benefit of X, including childcare and private school fees in addition to the applicants previous rent at the O Street apartment. The respondent estimates that since X’s birth to May 2023, he has paid the applicant and/or various service providers approximately $91,984.32 for the child’s benefit.[35]
[35] Respondent’s affidavit filed 1 June 2023, paragraph 18.
Parenting orders were made on 23 September 2021 stipulating the child, X, live with the applicant and for limited spend time with the respondent. The parenting aspect of these proceedings remains extant.
The respondent also has two daughters (“the girls”) from a previous relationship, who were both teenagers during the parties relationship. They lived in Region H in the respondent’s primary care. During the relevant period, the applicant attended family holidays to Town K and Country U with the girls and shared Christmas with them in 2017 and 2018. The applicant did not engage in any significant domestic or child-caring responsibilities of the girls, which is understandable due to their age and residence in another state.
Section 4AA(2)(i) the reputation and public aspects of the relationship
The public aspects of the relationship are contentious, as the respondent openly led a lifestyle in which he dated numerous women on a casual basis, which extended throughout the parties’ relationship. It is asserted that the respondents “lifestyle and choices were known both within private circles, and by reference to his public profile… he publicly and proudly displayed those elements of his life on his social media profiles”.[36]
[36] Respondent’s Outline of Case filed 25 June 2023, paragraph 64.
During the proceeding, 120 photographs were tendered by the applicant (Exhibit A-1) depicting the parties on numerous holidays, at various social events and alongside the respondent’s extended family and friends seemingly enjoying each other’s company. In many of the photos the parties are situated in close proximity to each other, arms wrapped around each other or kissing. Notably, the respondent also posted images of the applicant on his own Facebook page (Exhibit R-17). I find that in both private and public settings, the parties presented in a way that suggested they were a couple.
Notably the applicant did not attend the respondents 60th birthday, nor the 18th birthday of his daughter Ms T. When the applicant was asked about why she was not preset at Ms T’s 18th birthday party, she stated that it was because the respondents’ daughters “do not like my daughter”.[37] She went on to say that the respondent had told her that “his selfish little daughters were only worried about their trust fund and if he has another daughter that means it’s a third”.[38]
[37] Transcript 27 June 2023, p.163 lines 26-27.
[38] Transcript 27 June 2023, p.164 lines 1-3.
I accept the respondent’s two older daughters did not have a positive relationship with the applicant, and it is entirely plausible Ms T would not want the applicant at her 18th birthday.
Mr W states in his affidavit of 24 October 2022 that “during our visit, [Ms Eide], [Mr Yoxall], and [X] presented as a loving committed couple and close family unit. [Mr Yoxall] holding hands and putting his arm around [Ms Eide] was a common behaviour”. This is in contrast to the way in which the respondents’ eldest daughters describe the relationship between the parties. Ms P deposes that following the breakdown of the respondent’s previous de facto relationship “he did not introduce me or [Ms T] to any woman who held significant importance to him until he introduced us to his current partner… around 2022”.[39]
[39] Ms P’s affidavit filed 5 June 2023, paragraph 3.
The respondent posits that on 16 January 2019, he instructed Mr LL to edit his online page to include reference to his child, X. Shortly thereafter, according to the respondent Mr LL advised him that “someone had been trying on numerous occasions to include [the applicant] as my partner on my [online] page” to which he replied it was “not true” and to “keep removing it until that person gives up”.[40] It was the respondents’ evidence that following X’s birth, the applicant was known as the mother of his child to friends, family and work colleagues and the respondent asserts that it was well known they were in a “situationship” and were co-parenting.
[40] Respondent’s affidavit filed 6 June 2023, paragraph 127.
Section 4AA(4) provides that “a court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case”. I do not consider it appropriate to attach much weight to the factor outlined in s 4AA(2)(i), as it is clear the respondents modus operandi was to diminish the parties relationship in public in an attempt to make it seem as though the parties were not in a de facto relationship, despite the reality of the situation being in stark opposition.
CONCLUSION
I find that the parties formally had “a relationship as a couple living together on a genuine domestic basis”. That evaluative factual finding emerges from the conglomeration of the considerations prescribed by s 4AA(2) of the Act which are referred to and considered in these reasons.
Whilst it is impossible to say with precision the duration of the de facto relationship, I accept the relationship spanned from March 2017 to December 2020.
COSTS
Both parties sought costs from the other, in the event they succeeded in their respective applications before the court.
I do not intend to address costs in these reasons but will make procedural orders for the filing of costs submissions. If submissions are filed, I will then list a hearing to determine the question of costs.
For all the foregoing reasons, I now make those orders that appear at the commencement of these reasons.
I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 16 May 2024
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